Rader & Haines
[2022] FedCFamC1A 156
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Rader & Haines [2022] FedCFamC1A 156
Appeal from: Rader & Rader [2022] FedCFamC1F 375 Appeal number(s): NAA 124 of 2022 File number(s): SYC 1641 of 2019 Judgment of: ALDRIDGE J Date of judgment: 8 September 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where the appeal judicial registrar refused to reinstate the applicant’s appeal – Where the property proceedings are part heard – Where the proposed appeal would be futile given the commencement of property proceedings – Where the grounds of appeal are meritless – The application is dismissed – The applicant is to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.14, 13.44
Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Marsh v Marsh (1994) FLC 92-443; [1993] FamCA 57
Number of paragraphs: 32 Date of hearing: 8 September 2022 Place: Sydney The Applicant: Self-represented litigant Solicitor for the Respondent: Dettmann Phair ORDERS
NAA 124 of 2022
SYC 1641 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RADER
Applicant
AND: MS HAINES
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
8 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 August 2022 is dismissed.
2.The applicant is to pay the respondent’s costs fixed in the sum of $2,562.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rader & Haines has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an application for the review of a decision of an appeal judicial registrar of 5 August 2022, in which the registrar refused to reinstate the applicant’s appeal.
In order to understand the application, it is necessary to set out a little bit of the background of this matter.
It appears that there are proceedings between the parties in the District Court of New South Wales that have been commenced by the applicant. In addition, one of the parties’ children has also commenced proceedings in the District Court of New South Wales for damages, which is being prosecuted by the applicant on the child’s behalf as the child’s litigation tutor.
There are proceedings extant in this Court for both property and parenting orders. On 25 March 2022, a judicial registrar made a number of orders, most of which were procedural in nature and designed to bring the property proceedings between the parties to a state where they could be heard.
There was also a consensual dismissal of all outstanding interim and final applications for parenting orders and, perhaps significantly, dismissal of the applicant’s Application in a Proceeding filed on 23 March 2022, in which he sought either a stay of the parties’ property dispute until the completion of the proceedings in the District Court of New South Wales or, alternatively, an adjournment of the proceedings until after that determination.
The applicant was not satisfied with those orders and filed an Application for Review, which came before the primary judge on 12 May 2022. The Application for Review was dismissed, which had the effect that the orders of the judicial registrar stood.
On 3 June 2022, the applicant filed a Notice of Appeal against the decision of the primary judge. He was due to file a draft appeal index no later than 1 July 2022, but he did not do so, and accordingly, the appeal was taken to be abandoned because of the application of r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
As r 13.44 of the Rules permits, the applicant filed an Application in an Appeal seeking reinstatement of the appeal. That application came before the appeal judicial registrar, as I have said, who dismissed it, and this is the review of that decision. Thus it falls to me to exercise afresh the discretion as to whether or not to reinstate the appeal.
When the matter came before me this morning, the applicant indicated that he was unable to speak. The hearing is being conducted electronically by way of Microsoft Teams, and the applicant was able to type responses to questions that were then read onto the transcript by one of my staff.
The applicant’s first point is that he seeks an adjournment of these proceedings because he is too sick to continue. He says that he has tested positive for COVID-19. He relied upon a medical certificate from Dr P from a telehealth medical centre of 2 September 2022 which says, simply, that the applicant is unable to attend court from 2 September 2022 to 9 September 2022 inclusive “due to a medical condition”. No further detail is given. Dr P does not purport to identify any symptoms said to be suffered by the applicant, offer any diagnosis as to what the medical condition might be and how those symptoms and condition would impair the applicant from proceeding with today’s application.
When I indicated to the applicant that I was minded to proceed with the application, he said that he was too sick to continue, was about to vomit and left the Microsoft Teams link.
Ordinarily in these circumstances, the Court would take or may take, a somewhat lenient approach to such an application and tend to err on the side of caution. However, there are other factors to be taken into account which are relevant to the application to adjourn. First of all, it appears that the respondent’s lawyers have sent a number of letters to the applicant, opposing any adjournment and pointing out the lack of appropriate medical evidence.
Significantly, I am informed that the property proceedings, being the proceedings that the applicant sought to have stayed until after the conclusion of the District Court proceedings, were listed for hearing before a judge of this Court on Tuesday, 6 September 2022, where an application by the applicant for an adjournment was refused.
The applicant has said that he proposes to appeal against that decision, but he will not be able to do so because of the operation of s 26(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Those proceedings are presently part heard.
The question then arises as to what is the point of any proposed appeal against an order refusing to stay or adjourn the property proceedings.
The decision of the judge on 6 September 2022 to proceed cannot be the subject of an appeal and I cannot see any realistic possibility whatsoever that in those circumstances, the appeal court hearing the appeal would make any order which would in effect undermine that decision. In other words, I consider that the proposed appeal would be futile. That is a powerful factor against granting an adjournment.
There are two other relevant matters that arises from that. The first is that as the solicitor for the respondent points out, the medical certificate relied upon by the applicant is obviously as a result of a telehealth consultation where presumably, he was able to communicate with the doctor sufficiently enough for the doctor to be able to be satisfied it was appropriate to grant the certificate which would have involved some spoken communication.
The second thing is that, when I asked the applicant for assistance as to the merits of his appeal he said he needed to get the benefit of legal advice. However, he has had lawyers acting for him recently and indeed, his lawyer appeared this morning out of courtesy to the Court to inform me that he had recently filed a Notice of Ceasing to Act.
This leads me to the grounds of appeal themselves. There are but two grounds of appeal.
The first is that the primary judge failed to take into account a relevant consideration.
When I asked the applicant what that consideration was, he said that the primary judge’s reference to Marsh v Marsh (1994) FLC 92-443 and Kennon v Kennon (1997) FLC 92-757 was not relevant.
Taking into account an irrelevant consideration can be an error of law in the exercise of a discretion (see House v The King (1936) 55 CLR 499 at 505). However, the point that was being made there by the primary judge was in support of his finding that it would be in the interests of the parties for the property proceedings to be determined prior to the proceedings in the District Court because otherwise the court would have to take into account in the property settlement the entitlement of one party to receive damages and the obligation of the other party to pay those damages as relevant assets and liabilities in the division of their property, which may well have the effect that those entitlements and obligations would be varied through the operation of s 79 of the Family Law Act 1975 (Cth).
So much accords with logic and common sense and I cannot see how any reference to authority, assuming it to be displaced for the moment, identifies any error in his Honour’s reasoning.
The second ground of appeal that the applicant relies on is that the primary judge failed to give sufficient consideration to a relevant matter. It is apparent from the terms of that ground of appeal that there is a difficulty with it because it accepts that the primary judge gave consideration to relevant matters, it was just that the consideration was insufficient. That is, in effect, a challenge that the weight the primary judge gave to particular matters was misplaced.
That is an extremely difficult appeal ground to make out and effectively requires the appellant to show that the primary judge’s judgment was unreasonable or plainly wrong. That is not suggested in the ground of appeal. Accordingly, I find it difficult to see how the proposed appeal has any prospects of success whatsoever.
The principles to be taken into account in dealing with an application for reinstatement have been set out in the well-known passage by McHugh J in Gallo v Dawson (1990) 93 ALR 479:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
In Jackamarra v Krakouer (1998) 195 CLR 516, the High Court of Australia pointed out that all other things being equal, a procedural irregularity should not be permitted to stand in the way of an appeal that has been properly brought.
However, all things are not equal if the proposed appeal is futile. It would not be in the interests of justice, either as between the parties, for a meritless appeal to proceed. It is also not in the public interest to tie up court time unnecessarily.
Therefore, returning to the adjournment application, it seems to me that the applicant faces two difficulties in addition to the porosity of appropriate evidence supporting the adjournment application. The first is that the proposed appeal would be futile, given the commencement of the property proceedings. The second is that it seems to me that the application for reinstatement is doomed to fail because the proposed appeal is futile, having regard to the meritless grounds of appeal relied upon by the applicant.
Thus, there is no point adjourning the application and the application for adjournment is refused.
For the above reasons, the application for review of the appeal judicial registrar’s decision is dismissed.
The respondent seeks her lawyers’ costs of appearing on this application at scale in the sum of $2,562. The application has been wholly unsuccessful and there is no reason why the costs order should not be made as sought and there will be an order that the applicant pay the respondent’s costs fixed in the sum of $2,562.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 4 October 2022
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