Scott & Munayallan

Case [2022] FedCFamC1A 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Scott & Munayallan [2022] FedCFamC1A 44

Appeal from: Scott & Munayallan (No. 3) [2021] FamCA 617
Appeal number(s): NAA 6 of 2021
File number(s): SYC 59 of 2010
Judgment of: AUSTIN, TREE & SCHONELL JJ
Date of judgment: 1 April 2022
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant sought leave to appeal an order dismissing an adjournment application – Where the proposed appeal from that order is incompetent pursuant to s 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the applicant sought leave to appeal an order dismissing an application for the primary judge’s disqualification – Apprehended Bias – Where the conduct relied upon to establish apprehended bias was not made clear – Where the applicant’s contention appeared to rest upon two decisions made earlier in the proceedings by the primary judge – Where no error is demonstrated in the determination of the disqualification application – Leave to appeal refused – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VII, s 69ZR

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28
Cases cited:

Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300; [1998] HCA 52

Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Munayallan & Scott [2020] FamCA 1141

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79

Scott & Munayallan [2021] FamCAFC 133

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30
Number of paragraphs: 32
Date of hearing: 28 March 2022
Place: Sydney (via video link)
The Applicant: Litigant in person
Counsel for the Respondent: Mr Duc (direct brief)

ORDERS

NAA 6 of 2021
SYC 59 of 2010

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

MR SCOTT

Applicant
AND:

MS MUNAYALLAN

Respondent

ORDER MADE BY:

AUSTIN, TREE & SCHONELL JJ

DATE OF ORDER:

1 APRIL 2022

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Notice of Appeal filed on 8 September 2021 is dismissed.

3.The applicant shall pay the respondent’s party/party costs of and incidental to the application for leave to appeal, fixed in the sum of $8,946.44.

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…

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AGLC
Scott & Munayallan [2022] FedCFamC1A 44
Case
[2022] FedCFamC1A 44
Decision Date

CaseChat Overview and Summary

The case of Scott & Munayallan involved an application by the applicant, Mr Scott, for leave to appeal an order dismissing his application for an adjournment and his application for the disqualification of the primary judge. The matter was heard in the Family Division of the Federal Circuit and Family Court of Australia. The applicant sought leave to appeal on the basis that the primary judge had demonstrated apprehended bias and that the dismissal of the adjournment application was an error of law.

The court considered whether the appeal from the order dismissing the adjournment application was competent, given section 26(2)(b)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court found that the appeal was incompetent as the primary judge's decision to dismiss the adjournment application did not involve a substantial error of law. Additionally, the court examined the applicant's contention of apprehended bias, which appeared to be based on two earlier decisions made by the primary judge. However, the applicant had not clearly articulated the conduct relied upon to establish apprehended bias. The court found no error in the primary judge's determination of the disqualification application.

In light of the above, the court refused the applicant leave to appeal. The court dismissed the Notice of Appeal filed on 8 September 2021 and ordered the applicant to pay the respondent's costs of and incidental to the application for leave to appeal, fixed in the sum of $8,946.44. The court's reasons for judgment and the form of the order are subject to review and potential variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 6 of 2021

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SCOTT

Applicant

AND:

MS MUNAYALLAN

Respondent

ORDER MADE BY:

AUSTIN, TREE & SCHONELL JJ

DATE OF ORDER:

1 APRIL 2022

THE COURT ORDERS THAT:

1. Leave to appeal is refused.

2. The Notice of Appeal filed on 8 September 2021 is dismissed.

3. The applicant shall pay the respondent’s party/party costs of and incidental to the application for leave to appeal, fixed in the sum of $8,946.44.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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