Saha & Lahiri
[2022] FedCFamC1A 152
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Saha & Lahiri [2022] FedCFamC1A 152
Appeal from: Lahiri & Saha [2022] FedCFamC1F 271 Appeal number(s): NAA 115 of 2022 File number(s): BRC 8518 of 2020 Judgment of: ALDRIDGE J Date of judgment: 21 September 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment of the appeal – Where it is not in the interests of justice to delay the hearing – Application dismissed. Legislation: Bankruptcy Act 1966 (Cth) ss 120, 139ZS
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Number of paragraphs: 36 Date of hearing: 21 September 2022 Place: Sydney (via video link) Counsel for the Applicant: Mr Fernon SC (Direct brief) The First Respondent: Self-represented litigant Counsel for the Second Respondent: Mr Keane Solicitor for the Second Respondent: Stacks Law Firm The Third Respondent: Self-represented litigant ORDERS
NAA 115 of 2022
BRC 8518 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SAHA
Applicant
AND: MR LAHIRI
First Respondent
MR FELTOS
Second Respondent
D PTY LTD AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND
Third Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
21 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 19 September 2022 is dismissed.
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 Saha & Lahiri 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 by the appellant for an adjournment of an appeal which is listed for hearing next Tuesday, 27 September 2022 on the basis that she will be unable to prepare the appeal by that time, but will be able to do so if she is granted an adjournment of the hearing of the appeal until October or November 2022.
On 27 April 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) refused to grant an extension of time to the appellant within which to commence an application pursuant to s 139ZS of Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).
The notice that the appellant sought to set aside was a notice served upon D Pty Ltd, which was the company that was the trustee of the superannuation fund for both the appellant and the first respondent, and forms part of the subject matter of their property proceedings in this Court.
The notice alleged that on 15 October 2014 the appellant transferred 1/100th interest in a property owned by her to the first respondent for consideration of $5,000.
Shortly thereafter, the notice alleged that on 8 December 2014 the appellant and the first respondent transferred their interests, that is the appellant’s 99/100th interest and the respondent’s 1/100th interest, to D Pty Ltd. The notice alleged that that transfer took place after an act of bankruptcy committed by the appellant on 18 November 2014, was not for valuable consideration and consequently was void as against the appellant’s trustee in bankruptcy, pursuant to s 120 of Bankruptcy Act.
The notice required D Pty Ltd to pay to the trustee the debtor’s interest in the property, being $853,875.
A number of matters involving these issues came before the primary judge which resulted in the order the subject of the appeal, which is a refusal to grant to the appellant an extension of time to seek to set that notice aside.
At the same time, consent orders were made between first respondent in the appeal, D Pty Ltd and the trustee in bankruptcy of the appellant’s bankruptcy, who is the second respondent in this appeal.
To settle the underlying issues between them, an order was made by consent that D Pty Ltd pay the trustee in bankruptcy the amount claimed in the notice, which was to be paid from the sale of a property in Suburb C.
The appellant filed Notice of Appeal on 24 May 2022, which came before an appeal judicial registrar for a procedural hearing on 19 July 2022. The appellant was directed to file Amended Notice of Appeal on or before 4 pm on 2 September 2022, and to file a Summary of Argument and List of Authorities by the same date. She did not comply with either order.
The matter was listed for hearing on 27 September 2022 and the appellant was advised of that hearing date by the Court on 28 July 2022. That correspondence reminded the appellant of her obligations under the earlier orders.
On 9 September 2022, the appeal judicial registrar wrote to the appellant, noting that she had not complied with the direction to serve the Summary of Argument and List of Authorities by Friday, 2 September 2022, drew her attention to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and informed her that pursuant to r 13.45(2)(a)(i), the court may dismiss an appeal if an appellant is the defaulting party who has failed to comply with an order in relation to the appeal and may do on its own initiative.
The appellant was advised that the Court would consider whether to make such an order at the hearing of the appeal at 10am on 27 September 2022.
Acting for herself, the appellant filed an Application in an Appeal on 19 September 2022 seeking the adjournment of the appeal to a date not before late November 2022.
Her affidavit in support of the application is brief. She states she told the appeal judicial registrar on 19 July 2022 that she would be unlikely to comply with the timetable as it was only four months since the making of the orders.
She then said:
4.I was aware I would be unable to comply, because the barristers who were recommended to me lacked capacity to provide the services by 2 September, and I also lack capacity, being occupied full time with my applications in the Childrens Court …, which were partly successful at a full day hearing on … September after I spent 2 weeks preparing, my applications to Court of Appeal and Supreme Court Sydney to get relief for my son who my ex husband … abandoned to FACS (DOCS) on 21 February 2019 without communication to me or my parents, and my appeal against Health Care Complaints Commission which is fixed for hearing soon.
(Appellant’s affidavit filed on 19 September 2022, paragraph 4) (As per the original)
That is the only detail she has provided in relation to her attempts to get legal representation.
She does not advise who the barristers are, who are unable to provide services by 2 September 2022, or I might add by 27 September 2022, and when they were approached.
In the absence of any further detail, I have to say I find it difficult to accept that there are no barristers in Sydney or Brisbane able to assist the appellant with this appeal until October or November of this year.
I am supported in that observation by the following paragraph of the primary judge’s reasons, where he dismissed an application by the appellant for an adjournment of the hearing before him:
17.I refused the [appellant’s] second application for an adjournment of the hearing on the morning fixed for the commencement of the hearing of the separate issues. I gave reasons for doing so. Her reasons for seeking the adjournment were essentially the same as those advanced in support of her earlier application. She claimed that she was distracted from preparing the current application by other proceedings in which she was involved in the Supreme Court of New South Wales. She also said that she had difficulty finding a lawyer although had located one in Brisbane. Although she only sought an adjournment until May or June, she also deposed to having no funds with which to pay a lawyer. The arguments she foreshadowed in the adjournment application all went to the legitimacy of her bankruptcy and the actions of the substituted petitioning creditor upon whose application the sequestration order was made against her estate. Those arguments have long been put to rest in other places as the decisions to which I have referred later in these reasons show. She also wished to cavil with the actions of her trustee in the administration of the estate, but it was difficult to see how those arguments could have an impact upon the issues raised for my determination. An adjournment seemed, in the circumstances, futile.
The similarity between the two is obvious.
I accept that the appellant has been busy with other proceedings involving her son and they have taken up much of her time. However, she has been able to deal with barristers, apparently, to such a degree to find their availability. I am not satisfied that she did not have the time to instruct lawyers to appear for her. It is, after all an appeal, the preparation for which obviously requires very much less input from the appellant herself, than would a trial.
Senior counsel who appeared for the appellant today to argue for the adjournment has indicated that he is not briefed to appear next week and if the adjournment is refused he will not be appearing.
There is no reason to think that had the appellant chosen to do so, senior counsel who may or may not have been the one briefed today, who was put in position to argue today’s application, could alternatively have been put in a position to prepare for and run the appeal next week.
Senior counsel who appeared today was in a position to identify submissions which he thought could be at the heart of the appeal and I do not see why even at this late stage the appeal could not be made ready to proceed next week, albeit that may place the respondents in a difficult position in having to deal with it, but nonetheless I consider that to be manageable.
The upshot of that is, I accept for present purposes, that the appellant has arguable grounds of appeal. I am not satisfied that she has taken any proper steps to prepare that appeal for hearing.
The above also raises a concern that if the adjournment is granted, the position is unlikely to improve in the future.
I was informed that the appellant has an interest in the property in the United States of America, which has been disclaimed by her trustee. There is no evidence to that effect and the first respondent says, in fact, that the property is owned by the superannuation fund. It seems to me, that if the appellant does have an interest in that property, it is unlikely to have been waived by the trustee in bankruptcy and if it is held by another entity, then she cannot easily access it.
It was also suggested she could borrow funds from a family member. There is no evidence to that effect and no evidence as to why that course has not been followed already.
There is no offer on the part of the appellant to pay the costs of the respondents that may have been thrown away by reason of the appeal.
The trustee in bankruptcy points to the fact that in absence of such a proposal, ultimately the costs of this appeal that would be incurred by an adjournment would be borne by creditors of the appellant.
The interests of justice are two way street and they are matters which must be taken into account, as must the interests of the court in ensuring that litigants comply with appropriate directions for hearing and that precious hearing dates are not necessarily lost.
Having regard to those matters, the application to vacate the hearing date on 27 September 2022 is dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 27 September 2022
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