Singam & Moffrey

Case [2015] FamCAFC 42


FAMILY COURT OF AUSTRALIA

SINGAM & MOFFREY [2015] FamCAFC 42

FAMILY LAW – APPEAL – Leave to appeal – Where the trial judge entered a judgment in default of the appellant’s appearance – Where the default judgment is an “interlocutory order” –  Where leave to appeal was sought – Where leave to appeal was granted.

FAMILY LAW – APPEAL – Setting aside default judgment entered at trial – Where the appellant failed to attend trial proceedings – Where the appellant was self-represented during the proceedings – Where the appellant filed sufficient material so as to represent her case before the trial court – Where the appellant failed to comply with the entirety of procedural orders made – Where the appellant misapprehended the nature of the final hearing direction – Where at the final direction hearing a judgment was entered in default of appellant’s appearance – Whether the trial judge’s discretion to hear the matter in default, pursuant to Div 13.1A of the Federal Circuit Court Rules 2001, had miscarried – Where the appeal court held that the trial judge’s discretion had miscarried – Where the appeal court held that the trial judge failed to consider the totality of the appellant’s compliance with previous procedural orders – Where the appeal court held that the appellant provided a sufficient excuse for her failure to attend the last mentioned procedural hearing.

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2006) 236 ALR 665
Bienstein v Bienstein (2003) 195 ALR 225
Broughton & Broughton [2014] FamCAFC 206
Carr v Finance Corporation of Australia (No. 1) (1980) 147 CLR 246
Hodges Hall & Jovanovic and Markov (1995) FLC 92-611
In the Marriage of Smith (1994) FLC 92-494
Jess & Ors & Jess and Ors [2014] FamCAFC 227
Lenijamar Pty Ltd & Ors v AGC (1990) 98 ALR 200
Leslighter & Fitzgerald-Stevens (2012) 47 FamLR 384
Lorde & Chu [2014] FamCAFC 228
Rutherford & Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd  v Apple Inc (2011) 217 FCR 238
Stanford & Stanford (2012) 247 CLR 108
Wilkes & Wilkes (1981) FLC 91-060
Zane & Allan (2008) FLC 93-378

Family Law Act 1975 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Regulation 1984
Federal Circuit Court Rules 2001

APPELLANT: Ms Singam
RESPONDENT: Mr Moffrey
FILE NUMBER: BRC 10485 of 2013
APPEAL NUMBER: NA 72 of 2014
DATE DELIVERED: 19 March 2015
PLACE DELIVERED: Adelaide
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 11 March 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 7 November 2014
LOWER COURT MNC: [2014] FCCA 2889

REPRESENTATION

THE APPELLANT: In Person
COUNSEL FOR THE RESPONDENT: Mr Taylor
SOLICITOR FOR THE RESPONDENT: Quinn & Scattini Lawyers

Orders

  1. That the application for leave to appeal be granted.

  2. That the appeal be allowed.

  3. That the Orders of Judge Cassidy made on 7 November…

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AGLC
Singam & Moffrey [2015] FamCAFC 42
Case
[2015] FamCAFC 42
Decision Date

CaseChat Overview and Summary

Singam & Moffrey involved an appeal against a default judgment made by the trial judge in a family law matter. The appellant, who was self-represented, had failed to appear at the final hearing, resulting in a judgment being entered against her in default of appearance. The trial judge had exercised discretion to hear the matter in default, pursuant to Division 13.1A of the Federal Circuit Court Rules 2001. The appellant sought leave to appeal the decision, which was granted. The legal issues before the court were whether the trial judge's discretion to hear the matter in default had miscarried and whether the appellant had provided a sufficient excuse for her failure to attend the final hearing.

The court found that the trial judge's discretion had miscarried as the judge had failed to consider the totality of the appellant's compliance with previous procedural orders. The appellant had filed sufficient material to represent her case before the trial court and had provided a sufficient excuse for her failure to attend the final hearing. The court held that the trial judge had not adequately considered the appellant's compliance with procedural orders, and that the appellant's failure to attend the final hearing was due to a misunderstanding of the nature of the final hearing direction. The appeal was allowed, and the orders made by the trial judge were set aside.

The final orders of the court were that the application for leave to appeal be granted, that the appeal be allowed, that the orders of the trial judge be set aside, and that the sum of $18,646.34 held in the Supreme Court of Queensland be transferred to the Federal Circuit Court at Brisbane pending further order. There was no order as to costs, and both parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

That the application for leave to appeal be granted.

2.

That the appeal be allowed.

3.

That the Orders of Judge Cassidy made on 7 November 2014 be set aside.

4.

That upon transfer of the sum of $18,646.34 held in the Supreme Court of Queensland to the Federal Circuit Court pursuant to orders by consent made on 21 October 2014, the said sum be held by the Federal Circuit Court at Brisbane pending further order of that Court.

5.

That there be no order as to costs.

6.

That the Court grants to the appellant a costs certificate pursuant to the provision 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.

7.

That 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 that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

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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