Rilak & Tsocas (No 2)
[2018] FamCAFC 78
•23 April 2018
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO. 2) | [2018] FamCAFC 78 |
| FAMILY LAW – APPEAL – Where the appellant failed to comply with an order for security for costs in relation to an appeal – Where the appeal was thus listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where it is important that disputes be resolved in a just and timely manner – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) were satisfied – Appeal dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.45 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Rilak & Tsocas (No 3) [2017] FamCAFC 217 Rilak & Tsocas [2018] FamCAFC 70 |
| APPELLANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| FIRST APPEAL NUMBER: | EA | 60 | of | 2017 |
| SECOND APPEAL NUMBER: | EA | 108 | of | 2017 |
| DATE DELIVERED: | 23 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Aldridge JJ |
| HEARING DATE: | 23 March 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 May 2017; 26 September 2017 |
| LOWER COURT MNC: | [2017] FamCA 289; [2017] FamCA 757 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
On the Court’s own motion, pursuant to r 22.45 of the Family Law Rules 2004 (Cth), Appeal No EA 60 of 2017 against the orders of Rees J made on 11 May 2017 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 60 of 2017; EA 108 of 2017
File Number: SYC 2062 of 2010
| Ms Rilak |
Appellant
and
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
The Full Court of its own motion is considering whether two appeals brought by Ms Rilak (“the appellant”) should be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
Rule 22.45 relevantly states:
(1)This rule applies if:
(a)the appeal is not taken to have been abandoned; and
(b)a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2)A court having jurisdiction in the appeal or application may:
(a)if the defaulting party is the appellant or the applicant:
(i)dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b)if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii)proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
On 5 June 2017 the appellant filed a Notice of Appeal No EA 60 of 2017 against a costs order made by Rees J on 11 May 2017 in which the appellant was ordered to pay the costs of Mr Tsocas (“the respondent”) in the sum of $5,000. On 23 October 2017, the appellant filed a second Notice of Appeal No EA 108 of 2017, against the orders of Rees J made on 26 September 2017 dismissing the appellant’s applications that her Honour disqualify herself and that the costs order made by her Honour on 11 May 2017 be stayed.
On 5 March 2018, the appellant was notified that both appeals had been listed before the Full Court on 23 March 2017 for consideration of dismissal pursuant to r 22.45.
At the hearing of this motion, the appellant sought that Ainslie-Wallace J recuse herself. On 12 April 2018 her Honour delivered reasons for judgment refusing that application (Rilak & Tsocas [2018] FamCAFC 70). Those reasons should be read in conjunction with the reasons that follow.
Appeal No EA 60 of 2017
The costs order made by Rees J to which Appeal No EA 60 of 2017 relates was made consequent on her Honour’s dismissal of the appellant’s application on 22 July 2016 seeking that the respondent be dealt with for contravening parenting orders.
In response to the filing of that appeal, the respondent sought and on
13 October 2017 obtained an order that the appellant give security for costs of the appeal (see Rilak & Tsocas (No. 3) [2017] FamCAFC 217).
The order stated:
3. In the event that a solicitor acting for the respondent in Appeal
EA 60 of 2017 files a Notice of Address for Service and provides to the Appeal Registry and to the appellant a written undertaking that the solicitor will hold the ordered security in trust on account of any costs order that may be made in the appeal, then the appellant shall pay to those solicitors the sum of $10,000 as security for any costs ordered in the appeal to be held in accordance with the terms of the undertaking.4. In the event that the security as provided in Order (3) is not paid within 28 days of compliance with Order (3), then the appeal is stayed until the order is complied with.
The ordered security has not been paid. As a result the appeal has not progressed.
The appellant conceded that she had not provided the ordered security and submitted that as a student, with no income other than a student support allowance, she had no capacity to pay the security. She further said that, if she had the money, she would pay the ordered costs in the sum of $5,000 rather than lodge the $10,000 ordered as security. As to whether she might be in a position to comply with the order, the appellant said perhaps in the future she might have the funds.
The respondent argued that the appeal should be dismissed and contended that the appellant had six months to find the necessary amount and further pointed out that earlier costs orders had been made in his favour against the appellant which have not been paid. In essence he argued that the appellant will not meet the ordered security and the appeal should be dismissed.
It is timely to remember what the High Court said in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 213:
98 ...Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account.
In this case, given the circumstances to which we have just referred, we are of the view that there would be no point in allowing the appeal to continue on foot. There is no realistic prospect of the appellant complying with the order to lodge security in respect of any costs order made against her. This appeal will be dismissed.
Appeal EA 108 of 2017
As has been noted, the second Notice of Appeal EA 108 of 2017 is against the order of Rees J made on 26 September 2017 dismissing the appellant’s applications that her Honour disqualify herself and that the costs order made by her Honour on 11 May 2017 be stayed.
On 13 December 2017 a procedural hearing was scheduled in relation to that appeal. The appellant failed to attend. She later contacted the Appeal Registry and asked that a further procedural hearing be listed. On that further date,
21 February 2018, the appellant, again did not appear.
The appellant accepted that she had not attended either scheduled directions hearing. As to the first allocated date 13 December 2017, the appellant said that she was in another court on a contravention application. Given that the appellant is a seasoned litigant in the Full Court, it is unsatisfactory that she chose neither to inform the Appeals Registrar that she would not attend nor make arrangements to reschedule the directions hearing.
As to the second occasion on 21 February 2018, she said that she had simply forgotten to attend.
This appeal was regularly filed and we are conscious of what was said by Gummow and Hayne JJ in Jackamarra v Krakouer (1998) 195 CLR 516 at [33]:
... [w]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
While we accept the submission of the respondent that the appellant’s failures sound in time, cost and expense to him in attending what turns out to be a fruitless court event, nonetheless and with some misgivings, we do not propose to dismiss this appeal for want of prosecution.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 23 April 2018.
Associate:
Date: 23 April 2018
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