Saha & Lahiri (No 4)
[2024] FedCFamC1A 82
•15 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saha & Lahiri (No 4) [2024] FedCFamC1A 82
Appeal from: Lahiri & Saha (No 8) [2023] FedCFamC1F 1000 Appeal number: NAA 346 of 2023 File number: BRC 8518 of 2020 Judgment of: TREE, GILL & HOWARD JJ Date of judgment: 15 May 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Where the wife seeks leave to appeal from enforcement orders requiring her to vacate the former matrimonial home – Where the wife contends the enforcement orders were final – Where contrary to her assertion the orders are interlocutory – Whether the decision is attended by sufficient doubt to warrant appellate intervention – Where all of the wife’s grounds lack merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 105, 109A, 117
Federal Circuit and Family Court of Australia Act2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 11.56, Sch 3
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Dakin & Sansbury (Costs) [2017] FamCAFC 15
Medlow & Medlow (2016) FLC 93-962; [2016] FamCAFC 34
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Number of paragraphs: 66 Date of hearing: 22 March 2024 Place: Heard in Brisbane, delivered in Canberra The Applicant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Neggo Solicitor for the Second Respondent: Stacks Law Firm ORDERS
NAA 346 of 2023
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
ORDER MADE BY:
TREE, GILL & HOWARD JJ
DATE OF ORDER:
15 MAY 2024
THE COURT ORDERS THAT:
1.Leave to appeal the orders of the Federal Circuit and Family Court of Australia (Division 1) made 22 November 2023 is refused.
2.The Amended Notice of Appeal of 21 March 2024 is dismissed.
3.The applicant is to pay the second respondent’s costs of the appeal, in the sum of $15,911.32 within 28 days.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lahiri & Saha has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, GILL & HOWARD JJ:
The parties to these property proceedings are the applicant wife, first respondent husband and second respondent trustee in bankruptcy of the wife’s estate.
The wife appeals from interim property orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) (“the primary judge”) on 22 November 2023. In her application before the primary judge she sought the review of orders made in the exercise of delegated judicial power by a judicial registrar on 13 September 2023. The orders of the primary judge and the judicial registrar were directed to the enforcement of orders made by Jarrett J on 13 February 2023 (Lahiri & Saha (No 3) [2023] FedCFamC1F 181) and 23 February 2023 (Lahiri & Saha (No 4) [2024] FedCFamC1F 182). Those orders required the wife to give vacant possession of a property in Suburb C NSW to the trustee within 28 days. That property had been held solely in the name of the wife until 8 December 2014 when it was transferred 99 per cent to the corporate trustee of a superannuation fund of which the husband and wife were the only members, and 1 per cent to the husband.
The orders provided for a writ of possession to issue 28 days after the orders. They further provided for the trustee to exercise a power of sale.
The wife’s application for leave to appeal from those orders was refused by the Full Court on 24 August 2023 (see Saha & Lahiri (No 3) (2023) FLC 94-158).
The orders of the judicial registrar on 13 September 2023 extended the wife’s time for compliance with the 13 February 2023 orders that required her to give vacant possession of a property in Suburb C and made machinery orders in relation to enforcement by a Warrant of Possession.
The wife did not appear in the proceedings before the judicial registrar.
Relevantly, the primary judge dismissed the review, but extended the time for the wife to give vacant possession of the Suburb C property to 7 December 2023. His Honour repeated the orders for the issue of a warrant of enforcement, modifying the date of issue to 7 December 2023, and made orders for the wife to pay costs of the husband and trustee.
It is from those orders that the wife appeals.
THE APPEAL
By an Application in an Appeal filed 16 February 2024, the wife sought the adjournment of the appeal until after the determination of certain proceedings in the Supreme Court of NSW and sought leave to adduce further evidence. However, that application was overtaken by a further Application in an Appeal filed 21 March 2024, the day prior to the appeal. There the wife sought leave to rely upon an Amended Notice of Appeal and Summary of Argument, bearing the date 19 March 2024, but they were also filed the day prior to the appeal. Leave was granted during the hearing of the appeal and both applications were otherwise dismissed.
By her Further Amended Notice of Appeal, the wife asserted that the appeal was from what she termed as a “final decision for enforcement” and so denied that leave was required. However, in her Summary of Argument the wife set out the basis on which she asserted leave should be given if required.
Section 28(3)(e) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”) imposes the requirement of leave from prescribed judgments of the Federal Circuit and Family Court of Australia (Division 1), being identified in reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) as including an interlocutory decree (other than in relation to a child welfare matter).
With respect to the wife, this line of argument is simply not open to her. The Full Court in Saha & Lahiri (No 3) (2023) FLC 94-158 (at [62]–[100]) held that the orders of Jarrett J made on 13 February 2023 and 23 February 2023 were interlocutory. The natural conclusion that follows is that subsequent orders providing for their enforcement cannot be characterised as final orders. Notwithstanding her assertions to the contrary, the enforcement orders are interlocutory in nature and the appeal therefore requires leave.
In Medlow & Medlow (2016) FLC 93-692 the Full Court identified at [57] the test in the general run of cases seeking leave as:
…whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original)
While acknowledging this as the general approach, it must also be recognised that it may be departed from, due to the wide discretion conferred to grant leave pursuant to s 28 of the FCFCOA Act, where the interests of justice so demand.
The key interests of justice question in this case relies upon the issue of sufficient doubt, which in turn relies on the identification of error by the appeal grounds relied upon by the wife.
Ground one
The first ground is as follows:
The Division One Family and Federal Circuit Court had no jurisdiction to make or enforce the orders
(As per the original, emphasis in original)
From the wife’s Summary of Argument, this appeared to involve the contention that the proceedings before the primary judge were criminal in character, and thereby beyond the bankruptcy jurisdiction of the Court.[1]
[1] Wife’s Summary of Argument filed 21 March 2024, paragraphs 10–16.
The assertion made in support of this is that the husband and the trustee are potentially facing a number of criminal charges. Even if that be the case, that is not a matter that would convert the proceedings before this Court into criminal proceedings. Thereafter the wife’s submissions in support of this ground appear to be thinly veiled attacks upon the substantive orders being enforced by the orders of the primary judge. Those substantive orders have already been the subject of an unsuccessful appeal by the wife. A further and collateral attack upon them in this appeal in relation to enforcement is impermissible.
As an ancillary point the wife argued that there was no jurisdiction for the primary judge to “order ‘state and federal police’ to do the NSW Sheriff’s job.”[2]
[2] Wife’s Summary of Argument filed 21 March 2024, paragraph 17.
This appeared directed to the terms of the enforcement warrant directed to the state and federal police. There is no merit to this point.
Section 105 of the Family Law Act 1975 (Cth) (“the Act”) empowers the Court to enforce its decrees. Section 109A specifically empowers the Court to make Rules of Court in respect of enforcement including relating to taking possession of property, the issue of warrants against property, and authorising a person to take possession of property.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) identify that an order for the possession of real property may be enforced by a warrant, and that such warrant may authorise an enforcement officer to seize and detain real and personal property. Rule 1.05 defines an enforcement officer to include a person appointed by the Court for the purpose of enforcing an order.
There is no restriction, either explicit or implied, that restrains the court from the appointment of a person other than the NSW Sheriff to enforce the possession of real property as authorised by warrant.
Ground one is without merit.
Ground two
The second ground is as follows:
The Judgment being enforced was erroneous
(As per the original)
This was again, at best, a further attempt to impugn the underlying judgment being enforced. Such an attack falls outside the legitimate bounds of this appeal.
Ground two is without merit.
Ground three
The third ground is as follows:
Orders Cannot be Enforced Until They are Final Orders, Not in Dispute in Other Proceedings.
(As per the original)
In the wife’s Summary of Argument, this ground was supported by assertions as to collateral proceedings being conducted by her in the Supreme Court of NSW, and in the Federal Court of Australia.
Insofar as can be identified, those collateral proceedings appear to concern proceedings in the Supreme Court of NSW in relation to the husband and the trustee, relating to purported contraventions of bankruptcy, superannuation and corporation laws.[3]
[3] Wife’s affidavit filed 21 March 2024, paragraph 9.
It remains unclear why the proceedings in the Supreme Court of NSW or the Federal Court impact upon either the orders made by Jarrett J or their enforcement.
There is no demonstrable merit in the wife’s contention, and Ground 3 fails.
Ground four
The fourth ground is as follows:
No Proof of Debt Pursuant to s82 Bankruptcy Act
(As per the original)
The cryptic nature of this ground does not disclose any meritorious attack on the judgment of the primary judge. Again, at best, this appears to be an attack directed to the underlying judgment by Jarrett J which, as noted above, is not the legitimate subject of this appeal.
Ground five
The fifth ground is as follows:
The Order of a Warrant of Eviction was Erroneous
(As per the original)
The attack on the orders issuing the warrant was unclear, albeit variously claiming a lack of notice (a claim difficult to sustain given that the order constituted the third extension of time before the warrant would issue), and an overall complaint of the trustee behaving unconscionably in pursuit of the proceedings against the wife.
Again, at best, this appeared to be a collateral complaint directed at the earlier judgment of Jarrett J in determining the order for vacant possession.
Ground 5 is without merit.
Ground six
The sixth ground is as follows:
No Evidence to Support the Costs Orders
(As per the original)
By her Summary of Argument the wife directed this complaint both to costs orders made by the primary judge and by Jarrett J. Insofar as the complaints are directed to Jarrett J’s judgment, the ground is incompetent.
Insofar as the ground is directed to the judgment of the primary judge, the complaint was as to a lack of evidence to support the sum awarded to the husband, and in excess of the quantum sought by the trustee.
As to the costs of the husband, the primary judge applied, perhaps unfavourably to the husband and favourably to the wife, the Division 2 scale of costs rather than the Division 1 scale of costs (Sch 3 of the Rules). This is a matter that undermines an assertion, insofar as quantum is contested, that failure to grant leave would result in a substantial injustice. Given the manner of the use of the scale by the primary judge, restricted to two elements of the scale that could readily be inferred to be applicable, the complaint as to lack of evidence is also without merit.
As to the costs of the husband, the primary judge had before him the submissions by which the trustee quantified costs as before the judicial registrar. Those submissions, filed on 2 October 2023 in the first instance proceedings, included evidence of the itemisation of the costs. The trustee quantified the costs before the primary judge in submissions as $6,000 for counsel, and $4,200 for the solicitor component. When asked as to her position in quantum, the wife declined to engage, asserting that there should be no costs.
The discretion to order costs, while subject to s 117 of the Act, is broad. Its breadth was indicated in Penfold v Penfold (1980) 144 CLR 311 (“Penfold”), where the plurality observed that a judge is not required to “specify the circumstances which justify the making of an order,” and that judges “very frequently make orders for costs without giving reasons or making findings, even when costs are in issue”.[4]
[4] Penfold at 315.
By way of example of such an approach in the assessment of quantum, in Dakin & Sansbury (Costs) [2017] FamCAFC 15, Strickland J relied upon a what he was told the costs were combined with his assessment that in the circumstances it was apparent that such were reasonable (at [13]).
Here the primary judge was in an even stronger position to give an assessment of the reasonableness of costs. Having taken into account the detailed manner of quantification of the costs before the judicial registrar, he was well placed to assess the reasonableness of the sum identified for the proceedings before him.
Although he could have, the primary judge was not required to receive evidence as to quantum in establishing the sum to be awarded. It was permissible for the primary judge to assess whether the claimed amount was reasonable, provided that the wife was provided the opportunity to he heard on the quantum, which she was, declining to engage.
Neither error, nor any substantial injustice are established by the wife.
Ground seven
The seventh ground is as follows:
Failed to Consider Expert Medical Evidence
(As per the original)
The complaint was that the primary judge disregarded evidence from a medical practitioner as to the wife’s unfitness to move house prior to 12 May 2024 due to an injury.
This aspect may be dealt with in short compass. The primary judge noted the expert evidence referred to by the wife in respect of her injury from a medical practitioner. The evidence is contained in annexure “R” of the affidavit of the wife filed 24 March 2023. It appeared firstly to be related to whether the wife could travel to Brisbane for proceedings there. In respect of the prospects of the wife moving house it recorded the practitioner’s somewhat ambivalent opinion of 16 February 2023 as follows:
She asked me if she can move house and because of her recent accident and injuries, I suggested that she not be involved in moving furniture or any other activities related to moving house, until her symptoms settle down.
The practitioner offered that the symptoms may take up to a year to so settle.
It may be noted that the opinion appears directed to the wife engaging in the physical activities, such as moving furniture, of moving house, rather than to some other reason for not moving. Further, by the time the matter came on for determination many months had passed, without further expert identification from the wife that the symptoms remained.
On delivering judgment the primary judge referred to the wife suffering some hardship if she were evicted from the property.
The proposition that the primary judge did not take this issue into account should not be accepted.
Ground eight
The eighth ground is as follows:
Failed to Consider the Equitable Interests of Other Parties
(As per the original)
The equitable interests of the other parties were not identified by the wife.
The ground lacks merit.
DISPOSITION
Examination of each of the proposed grounds reveals them to be lacking in merit. Even if leave were granted the appeal would fail due to the absence of merit in respect of each of the grounds.
Leave to appeal should be refused.
COSTS
Whilst the starting point pursuant to s 117 of the Act is that each party bear his or her own costs, there is ample reason to consider that the wife should be the subject of an adverse costs order.
The wife has been wholly unsuccessful.
The manner of conduct of the appeal, including a failure to file a Summary of Argument in a timely fashion, and then the filing of an application on the eve of the appeal to substantively amend the appeal grounds, provides further justification.
Although it may be anticipated that the wife is of limited financial means, nonetheless the above matters justify an award of costs.
The husband was not legally represented at the appeal and did not seek an order for costs. Accordingly, no costs order in relation to the husband will be made.
An order will be made for the wife to pay the trustee’s costs of the appeal in accordance with the schedule of costs calculated at scale of $15,911.32 (including GST).
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & Howard. Associate:
Dated: 15 May 2024
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