Raske & Butler & Ors
[2013] FamCAFC 3
•18 January 2013
FAMILY COURT OF AUSTRALIA
| RASKE & BUTLER AND ORS | [2013] FamCAFC 3 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where there is no appearance by either party – where the appellant has failed to file an Amended Notice of Appeal or a fresh Notice of Appeal – appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Taylor v Taylor(1979) FLC 90-674 Wilkes and Wilkes (1981) FLC 91-060 |
| APPELLANT: | Mr Raske |
| FIRST RESPONDENT: | Ms Butler |
| SECOND RESPONDENT: | Fordes Pty Ltd |
| THIRD RESPONDENT: | Juniper Pty Ltd |
| FOURTH RESPONDENT: | Fordes Investments Pty Ltd |
| FILE NUMBER: | MLC | 11769 | of | 2010 |
| APPEAL NUMBER: | SOA | 66 | of | 2012 |
| DATE DELIVERED: | 18 January 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 January 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 August 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 915 |
REPRESENTATION
| THE APPELLANT: | No Appearance |
| FIRST RESPONDENT: | No Appearance |
| SECOND RESPONDENT: | No Appearance |
| THIRD RESPONDENT: | No Appearance |
| FOURTH RESPONDENT: | No Appearance |
Orders
The Notice of Appeal filed on 23 August 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Raske & Butler and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 66 of 2012
File Number: MLC 11769 of 2010
| Mr Raske |
Appellant
And
| Ms Butler |
First Respondent
And
| Fordes Pty Ltd |
Second Respondent
And
| Juniper Pty Ltd |
Third Respondent
And
| Fordes Investments Pty Ltd |
Fourth Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is the adjourned hearing of a directions hearing which took place on
30 November 2012 in relation to an appeal filed on 23 August 2012 against orders made by Federal Magistrate O’Dwyer on 17 August 2012.
At the directions hearing on 30 November 2012 Mr Raske, the appellant, appeared, but there was no appearance by the first respondent. There was also no appearance by any of the other respondents, but that was not unexpected.
Today there is no appearance by any party.
I note that there is no requirement that a respondent appear at a directions hearing, and I proceed on the basis that that is why the first respondent did not appear on 30 November 2012, and why she has not appeared today. However, that does not apply to the appellant, Mr Raske.
On 30 November 2012 I explained to Mr Raske that his appeal as currently framed could not proceed, and the reasons that I gave to Mr Raske are recorded on the transcript of that day, but in brief they are these. The orders made by Federal Magistrate O’Dwyer on 17 August 2012 were made in the absence of the appellant. The first respondent to the appeal now filed appeared by counsel. She was in fact the applicant before the Federal Magistrate. However, there was no appearance by Mr Raske who was the respondent to that application. In the absence of Mr Raske the Federal Magistrate made the orders sought by Ms Butler.
Mr Raske appealed against those orders and, as I say, that Notice of Appeal was filed on 23 August 2012. What Mr Raske complains of in that Notice of Appeal is that the Federal Magistrate heard and determined the application and made orders, as I have just indicated, in his absence. He sets out in the Notice of Appeal, inappropriately so, but for the purpose of understanding his position, helpfully, that he informed the court that he was unable to attend the hearing on medical grounds, and that is the basis of his appeal.
However, in Wilkes and Wilkes (1981) FLC 91-060, a decision of the Full Court of the Family Court, the court indicated that where a party does not appear at a hearing, but later seeks to have orders set aside upon that basis, the proper course is to apply to a single judge for an order for a rehearing rather than to deal with the matter by way of appeal. In the High Court decision of Taylor v Taylor (1979) FLC 90-674 it was held that there is inherent power to set aside orders made without having heard both sides, even if made regularly and validly, after due service of notice upon the other side, and even though the failure of the other side to be present did not result from the fault of the moving party or the court.
Whether as a result of being informed by the Appeal Registrar, or by dint of his own research, Mr Raske then took it upon himself, correctly in my view, to file an application in the Federal Magistrates Court seeking a number of things, but primarily seeking that the orders made on 17 August 2012 be set aside. As I understand it that application was made on the basis that Mr Raske was not in attendance on 17 August 2012, yet the Federal Magistrate proceeded to make the orders.
That application came before Federal Magistrate O’Dwyer on 25 September 2012 and on that day the Federal Magistrate dismissed that application.
That was the state of play when the matter came before me for directions on 30 November 2012, and what I explained to Mr Raske at the time was that he had correctly sought an order from the Federal Magistrate as I have just indicated, and that rather than pursue an appeal against the orders of 17 August 2012, given what he had done, what he was then to do was to either amend his Notice of Appeal to appeal against the order of 25 September 2012, or lodge a fresh Notice of Appeal.
Upon hearing that explanation, Mr Raske indicated that he wanted to think about his position, and on that basis I adjourned the matter to today. In order though to move the matter along, I also made an order that Mr Raske file and serve an Amended Notice of Appeal by close of business on Monday
14 January 2013, and I interpolate, intending that that amendment would pick up the order of 25 September 2012. Mr Raske indicated that that would be what he would do if he determined to proceed with the matter but as I say, he sought an adjournment to think about his position.
The other matter I should record is that although a number of matters were discussed with Mr Raske on 30 November 2012, and I have covered the most important issues, I overlooked indicating to Mr Raske that if he did seek to appeal against the order of 25 September 2012, because there is a requirement to file a Notice of Appeal within 28 days after an order is made, he was out of time and accordingly, I arranged for the Appeal Registrar to send correspondence to Mr Raske indicating to him that if he did wish to appeal against the orders of 25 September 2012 he would need to formally make an application to extend the time for filing that appeal. I note from the file that a letter to that effect was forwarded to Mr Raske on 4 December 2012.
With that background, I observe that not only has Mr Raske has not appeared, but he has not filed any further documents. In particular he has neither filed an Amended Notice of Appeal or a fresh Notice of Appeal, nor has he filed an application seeking an extension of time.
In the absence of an Amended Notice of Appeal, and in the absence of
Mr Raske to indicate that he wishes to take any other course, or that he wants more time to attend to that, I propose to dismiss the Notice of Appeal. Indeed, I indicated to Mr Raske on 30 November 2012 that if he did not file an Amended Notice of Appeal I would be dismissing his Notice of Appeal for the reasons that I indicated on that day, and as I have set out again today namely, it is an appeal that cannot proceed, and what he should be doing, is appealing against the order of 25 September 2012.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
18 January 2013.
Associate:
Date: 4 February 2013
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