RENDALL & RENDALL - [2013] FamCAFC 33

FAMILY COURT OF AUSTRALIA

RENDALL & RENDALL

[2013] FamCAFC 33

FAMILY LAW – APPEAL – CONSIDERATION OF DISMISSAL OF AN APPEAL FOR WANT OF PROSECUTION – Where the appeal had previously been deemed abandoned and re-instated by the Full Court – where the wife filed an application for dismissal for want of prosecution – where the Full Court dismissed the application and made self-executing orders requiring the husband to file a summary of argument in a specified time frame – where the Full Court ordered that if the husband did not comply with the orders then the appeal would stand dismissed – costs reserved as costs in the appeal.

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Rendall

RESPONDENT:	Ms Rendall
INDEPENDENT CHIDLREN’S LAWYER	Cathleen Corridon

FILE NUMBER:

MLC

12129

2007

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

7 March 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Thackray and
Strickland JJ

HEARING DATE:

7 March 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 June 2011

LOWER COURT MNC:

[2011] FAMCA 413

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baker

SOLICITOR FOR THE APPELLANT:

Strongman & Crouch

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:
INDPENDENT CHILDREN’S LAWYER	Appearance excused

Orders

Unless by the close of business on 12 April 2013 the appellant husband has filed and served a summary of argument in support of the appeal, the appeal will stand dismissed.
The respondent wife file and serve a summary of argument in reply to the husband’s summary of argument (in the event that it is filed and served) by close of business on 31 May 2013.
The Appeal Registrar is to list the appeal for hearing in the week commencing 17 June 2013.
The application of the respondent filed 31 January 2013, insofar as it seeks the dismissal of the appeal, is dismissed.
The costs of and incidental to the proceedings today are reserved as costs in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rendall & Rendall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA42 of 2011
File Number: MLC 12129 of 2007

Mr Rendall

Appellant

And

Ms Rendall

Respondent

REASONS FOR JUDGMENT

FINN J

On 30 June 2011, Mr Rendall, whom I will hereafter refer to as “the appellant”, acting on his own behalf, filed a notice of appeal against parenting orders made by Cronin J on 2 June 2011. The orders related to arrangements for the four children of the appellant’s marriage to Ms Rendall, to whom I will refer as “the respondent”.
The appeal is listed before us today in order that we might consider its dismissal for want of prosecution. It is relevant to our consideration of the fate of this appeal that I mention that on 16 December 2011 the appeal was deemed abandoned under the Family Law Rules 2004 (Cth) because the appeal books which the appellant had filed were not in proper form or were defective in some way.
However, on 18 May 2012, another Full Court granted an application by the appellant, which had been filed by solicitors then acting on his behalf on 27 March 2012, for the reinstatement of the appeal. The Full Court made an order which was that the application for reinstatement would be dismissed unless the appellant complied with all directions of the Appeal Registrar within 28 days of the Full Court’s orders. In short, the effect of the orders was that the appeal was to be reinstated (upon compliance with the Registrar’s directions in the required time).
On 20 June 2012, the Appeal Registrar wrote to the solicitors then acting for the appellant, confirming that her directions in relation to the appeal books had been substantially complied with and also advising the parties that the next Full Court sitting was at the beginning of October 2012 and she required that the appellant file a summary of argument by 10 August 2012 if the appeal was to be heard in that next sitting.
On 10 July 2012, the Appeal Registrar wrote again to the appellant’s then solicitors requiring that a summary of argument be filed by 10 August 2012 if the appeal was to be heard in the October sittings. I note from the Registrar’s file that the respondent wrote to the Registrar on 16 July saying that she could not be ready for a hearing in October and, indeed, she also was asking for a postponement at that time.
On 14 August 2012, the Registrar again wrote to the appellant’s solicitors and to the respondent noting that the appellant had not filed his summary of argument and that therefore the appeal would not be listed in the October sittings. The Registrar then, in effect, required the summary of argument to be filed by 16 November 2012 and she foreshadowed that if this did not happen the appeal might be listed before the Full Court to consider dismissal pursuant to rule 22.45 of the Rules.
On 12 December 2012, the Registrar wrote again to the solicitors for the appellant and to the respondent noting that the summary of argument had still not been filed and listing the appeal before the court today so that this Court might consider the dismissal of the appeal for want of prosecution. On 31 January, this year (2013), the respondent filed an application seeking that the appeal be dismissed.
It appears that as a result of the respondent attempting to serve copies of that application on the solicitors for the appellant, who were then still on the record, that contact was made between those solicitors and the Registrar, and as a result of that contact it became clear that those solicitors were no longer acting for the appellant. The Appeal Registrar therefore wrote to the appellant on 26 February this year advising him of the advice that she had received that his solicitors were no longer acting for him and sending him a notice of address for service and also sending him a copy of her letter of 12 December 2012 to his former solicitors.
On 5 March 2013, new solicitors acting for the appellant filed an application seeking “an adjournment”. I am not entirely sure what it was that was sought to be adjourned, but presumably, it was the hearing today and for the purpose of allowing the filing of further documents including a summary of argument. In his supporting affidavit, the appellant relied on his limited financial resources and also the fact that he had been led to believe by his former solicitors that he could delay progress of the appeal until he had saved the necessary funds for the appeal, and that he could do so by not filing the summary of argument. He also claimed that his solicitors had not told him of the letters written by the Appeal Registrar in that period that I have traced from June 2012 until December 2012. The appellant also claims in his affidavit that he could have the necessary documents including the summary of argument ready within the course of the next few weeks.
When the matter came before us today, counsel appeared for the appellant. While he was prepared to concede that his client had been dilatory in fulfilling the requirements necessary to have the appeal ready for hearing, counsel continued to rely on the appellant’s financial circumstances, and also on the fact that, as he claimed, there would be no prejudice to the respondent in making a self-executing order, which would, in effect, give the appellant a few more weeks in which to have his summary of argument filed. Counsel also relied on what he described as the “draconian” nature of the orders which the appellant sought to appeal.
The respondent, appearing for herself before us today continued to seek that we dismiss the appeal today, although she sensibly conceded that the next best option would be a self-executing order. She relied in support of her submission that we should dismiss the appeal on the long period for which this appeal has been pending, and thus, to use the vernacular, “hanging over the head” of herself and the children.
We have considered the arguments put to us on behalf of both parties this morning. I do not need at this point to set out the principles which govern an application such as this. Those principles (contained in Gallo v Dawson (1990) 93 ALR 479) were well canvassed and explained in the judgment of the previous Full Court in May last year. Similarly, in that judgment the Full Court rightly said that it could not get into the merits of the appeal and that probably at best it could be said the appeal was not hopeless, and was accordingly arguable. We would do no more than adopt what the previous Full Court said about the merits of the appeal.
We do appreciate that for the wife, and probably indirectly the children, it is, put simply, a nuisance to have this appeal continue to “hang over their heads”. However, we would propose to give the appellant approximately one month perhaps a little bit more, and I will specify a date shortly, in which he should file his summary of argument. We would do so on the basis that taking into account that he has gone to the expense and trouble of filing appeal books including obtaining the transcript, and he has also now taken steps to instruct new solicitors. Those considerations cannot lightly be overlooked, particularly when it is remembered that all that is needed to have this appeal heard is a summary of argument from the appellant together with a responding summary of argument from the respondent.
Overall then, and certainly in my view, and I understand my colleagues agree with me, the interests of justice which is the fundamental test in a matter such as this (see Gallo v Dawson), would be best satisfied by giving the appellant a few more weeks to file his summary of argument and in the event he does not the appeal will stand dismissed.
I would add, and without wishing to threaten the appellant, but I am sure he will understand when I say, that if he did not comply with our requirement to file the summary of argument and the appeal again abandoned, or more precisely stood dismissed it would be very difficult to get a further indulgence (including an extension of the time-table in our orders) from yet another Full Court. It is for that reason that I have taken some time here today explaining the background and the matters which we have taken into account (just as we here today, know what the previous Full Court considered about this matter, a further Full Court would also have the benefit of our reasoning).
So we propose to make orders that would allow the appellant to have until 12 April, which we understand is a Friday, to file and serve his summary of argument (failing which the appeal will stand dismissed). We would then give the respondent until the last working day in May which I will just check its date – it is the 31^st we have decided - to file her summary of argument in response, and then, we would direct the Registrar to list this appeal for hearing in the Full Court that would sit here in the week commencing 17 June 2013. We will leave it to the Registrar to select the exact date in that week.

RECORDED : NOT TRANSCRIBED

THACKRAY J

I agree with the reasons given by the Presiding Judge and the orders foreshadowed on the basis that the appeal would stand dismissed in the event the summary of argument is not filed by the date specified, namely 12 April.

STRICKLAND J:

Yes, I, too, agree with the reasons delivered by the Presiding Judge and the orders foreshadowed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray and Strickland JJ) delivered on 7 March 2013.

Associate:

Date: 18 March 2013