Saso & Saso

Case [2023] FedCFamC1A 65

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Saso & Saso [2023] FedCFamC1A 65   

Appeal from: Saso & Saso [2022] FedCFamC2F 1535
Appeal number(s): NAA 234 of 2022
File number(s): BRC 881 of 2021
Judgment of: ALDRIDGE J
Date of judgment: 11 May 2023
Catchwords: FAMILY LAW – APPEAL – Appeal from property settlement orders – Whether the primary judge afforded the appellant procedural fairness in coming to a determination that the matter proceed on an undefended basis – Where the appellant was legally represented at the final hearing but only as to an application for an adjournment and was otherwise self-represented – Where the adjournment application was refused – Where the refusal of the adjournment did not compel the matter to proceed on an undefended basis – Where submissions were not sought from the appellant as to proceeding undefended – Denial of procedural fairness – Error established – Appeal allowed – Orders set aside – Matter remitted for rehearing – Cost certificates granted.  
Legislation:

Family Law Act 1975 (Cth) s 102NA

Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 10.27
Cases cited:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Morgan & Valverde (2022) FLC 94-100; [2022] FedCFamC1A 133

Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Number of paragraphs: 32
Date of hearing: 13 April 2023
Place: Sydney (via video link)
Counsel for the Appellant: Mr Looney KC
Solicitor for the Appellant: Damien Greer Lawyers
Counsel for the Respondent: Mr Wilson KC
Solicitor for the Respondent: C & C Law

ORDERS

NAA 234 of 2022
BRC 881 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS SASO

Appellant
AND:

MR SASO

Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

11 may 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 8 February 2023 is dismissed.

2.The appeal is allowed.

3.The orders made by the primary judge on 26 September 2022 are set aside.

4.The matter is remitted for rehearing by a judge other than the primary judge.

5.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.

6.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate…

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AGLC
Saso & Saso [2023] FedCFamC1A 65
Case
[2023] FedCFamC1A 65
Decision Date

CaseChat Overview and Summary

The appeal before the court involves Saso and Saso, who are in dispute over a matter that has reached the Federal Court of Australia. The nature of the dispute pertains to procedural fairness in the original hearing process, specifically focusing on the exclusion of the appellant from the hearing. The appellant, Saso, seeks to challenge the decisions made during the hearing which led to their exclusion and argues that the process was not fair.

The legal issues before the court centre on whether the appellant was denied procedural fairness by being excluded from the hearing without being given the opportunity to address the court on the matter. The court had to determine whether the exclusion of the appellant constituted a material lack of procedural fairness, and whether the appellant should have been provided with an opportunity to present their case or objections before being excluded.

In its reasoning, the court recognised that excluding a litigant from a hearing is a significant action, especially when alternative options were available. The court found that the appellant was not given the opportunity to address the court on the issue of their exclusion, which was a fundamental requirement of procedural fairness. The court concluded that this failure to provide the appellant with the opportunity to be heard was a material lack of procedural fairness. Consequently, the appeal was allowed, and the orders from the original hearing were set aside. The matter was to be remitted for rehearing to ensure that procedural fairness is upheld. Both parties requested that costs be awarded under the Federal Proceedings (Costs) Act 1981 (Cth), and the court agreed that it was just for each party to receive cost certificates for the appeal and the rehearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is a drastic step to prevent a litigant from participating in a hearing at all, especially when other options were available. Both parties should have been given the opportunity to address the Court on that issue. The failure to give the appellant that opportunity was a material lack of procedural fairness. CONCLUSION AND COSTS It follows that the appeal will be allowed. Both counsel agreed that such a finding would require the orders to be set aside and the matter remitted for rehearing. That is the appropriate order. It follows that it neither necessary nor desirable to consider the remaining grounds as the subject of them will now be re-litigated. As requested by the parties, I am satisfied that it is just that each party receive cost certificates under the Federal Proceedings (Costs) Act1981 (Cth) for the appeal and the rehearing.

Ratio Decidendi

Legal Principle Established

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