Sitwell & Sitwell (No. 2) - [2014] FamCAFC 84

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL (NO. 2)

[2014] FamCAFC 84

FAMILY LAW – APPEAL – Application for summary dismissal of appeal – Where the appeal concerned dismissal of an application that the trial judge disqualify himself – Where the trial judge has retired – Where the appeal concerned the dismissal of an application to extend time for the husband to purchase a business which has since been sold - Whether the appeal is considered nugatory – Where the fact that a judge has retired does not make an appeal against a disqualification application an appeal without utility – Where it is open to the appellant to argue that orders made were impugned by apprehended bias – HELD – Application dismissed.

Family Law Act 1975 (Cth): s 79

Batey-Elton & Elton (Review) [2010] FamCAFC 71
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Sitwell & Sitwell [2013] FamCAFC 54

APPLICANT:

Ms Sitwell

RESPONDENT:

Mr Sitwell

FILE NUMBER:

PAC

5769

2010

APPEAL NUMBER:

2013

ORDERS MADE:

2 May 2014

DATE DELIVERED:

13 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Ryan JJ

HEARING DATE:

2 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 March 2013

LOWER COURT MNC:

[2013] FamCA 199

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jamieson of Champion Legal

FOR THE RESPONDENT:

In Person

Orders made 2 may 2014

The application in an appeal filed on 17 April 2014 be dismissed.
Upon the oral application of the appellant (respondent to this application) for an extension of time to file written submissions, the written submissions in appeal EA 26 of 2013 be filed and served by 4:00 pm on 30 May 2014.
Should the appellant (respondent to this application) fail to file and serve the submissions on or before the due date, appeal EA 26 of 2013 filed 15 March 2013 be dismissed.
The respondent (applicant in this application) to appeal EA 26 of 2013 file and serve written submissions by 4:00 pm on 20 June 2014.
The appellant (respondent to this application) pay the costs of the respondent (applicant to this application) to be fixed in the sum of $2,500.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell (No. 2)l has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 26 of 2013
File Number: PAC 5769 of 2010

Ms Sitwell

Applicant

And

Mr Sitwell

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Sitwell (“the wife”) that the appeal filed by Mr Sitwell (“the husband”) on 15 March 2013 be dismissed. We dismissed the wife’s application and made other orders in relation to the appeal. These are our reasons for so doing.
The appeal concerns orders made by Collier J on 14 March 2013 whereby the husband’s application that his Honour recuse himself was dismissed. On that date, his Honour also considered a second application by the husband, filed on 11 February 2013, which was also dismissed. By the latter application the husband sought orders:
1.That the time for completion of the contract that is on foot for [the husband] to purchase [GE Services] from [the husband and wife] be extended too (sic) 11 March 2013.
2.That [GS] pay 50% of the net profits of the partnership for the period since he was appointed (by consent) as financial controller until 28 January 2013 by close of business on 15 February 2013.
3.That [the husband] is to enjoy full access to [Business G] on the same basis as [the wife].
GE Services is a business previously conducted by the parties in a two person partnership (Business G).
In early 2011, an order was made that the parties sell GE Services. GS, one of the parties’ children, was appointed (by consent) to conduct the partnership business in relation to which the parties were ordered to do all things necessary to:
·cause GS to pay to the husband and wife drawings in the sum of $1,000 per week each subject to the ability of the partnership to meet that expense;
·cause GS to distribute to each party monthly detailed MYOB accounts of the partnership, together with a copy of each quarter BAS statement (order 2 dated 7 February 2011).
On 19 October 2011, by consent, Johnston J made final property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Order 10 provided for the sale of the partnership business in relation to which GS was appointed to run the partnership until the partnership was sold.
On the one hand, the husband wished to acquire GE Services as did the wife and three of the parties’ adult children. The broker appointed to act on the sale obtained orders in May 2012 which ultimately resulted in the husband exchanging contracts with the broker, on 8 June 2012, to purchase the business. No deposit was paid and, at the end of the six week period for completion, the husband did not complete the contract.
The broker subsequently terminated his retainer and on 13 November 2012 the wife served the husband with what purported to be a notice to complete the contract. The husband did not complete.
On 11 December 2012, relevantly, Collier J made the following orders:
…
5.That in the event that the contract for sale by the parties as vendors and the husband as purchaser in respect of [Business G] is not completed by close of business on Monday 11 February 2013 then the contract shall be terminated.
6.That upon the contract being terminated, the wife shall be appointed as trustee for the sale of the business, described as [Business G], to such person as may be engaged to acquire the business.
…
9.That I grant liberty to either party to restore the matter to list with no minimum notice requirement by arrangement with my Associate in the event that these Orders are not complied with.
The husband did not complete the purchase on or before 11 February 2013, however, that day he filed his application for the orders referred to at [2] of these reasons.
As we understood the husband’s submission, because GS failed to pay him $1,000 per week, the husband lacked the funds needed to settle. Given that the contract price is $986,000 which vastly exceeds what the husband said he should have received under order 2, dated 7 February 2013, this would appear to be a highly contestable proposition.
It is common ground that GE Services has been sold, with the sale proceeds used to pay partnership debts. It would appear that the purchasers are some of the parties’ children.
In circumstances where Collier J has retired, GE Services has sold and there are final orders which require an equal distribution between the parties of the net proceeds of the sale of the partnership, the wife submits the husband’s appeal is rendered nugatory and should be dismissed. Her application is akin to an application for summary dismissal, the principles for which are:
·the power for summary dismissal is discretionary;
·relief is rarely and sparingly provided;
·the applicant for summary dismissal must show that the application (or appeal) is “doomed to fail” or does not constitute a reasonable cause of action or is advanced in a claim that is clearly frivolous or vexatious;
·if there is a serious legal question to be determined, it should ordinarily be determined at a hearing (which would include a hearing of the appeal) (see Lindon v The Commonwealth (No 2) (1996) 136 ALR 251).
It is uncontroversial that after Collier J retired, the remaining proceedings were allocated to Foster J’s docket. It is the submitted on behalf of the wife that because the result of a successful appeal against Collier J’s refusal to disqualify himself would be that the proceedings would be dealt with by another judge, the disqualification appeal is rendered nugatory. However, the retirement of a judge who has refused to disqualify him or herself does not alter the fact that any orders that judge may have made before retirement and after the refusal to disqualify, still operate. May J explained in Batey-Elton & Elton (Review) [2010] FamCAFC 71 that if a Notice of Appeal is filed against a decision whereby the judge refused to disqualify him or herself and as a result a decision was made that resulted in an injustice, the mere fact that the judge has since retired does not mean that an appeal against the disqualification decision lacks utility. The point being that if the orders are tainted by bias this is likely to influence the outcome of an appeal against the orders made subsequent to an unsuccessful disqualification application.
In our view, it remains open to the appellant to argue the bias ground.
As to the remaining grounds of appeal, it is the wife’s submission that because the business has been sold, there can be no injustice to the husband as a consequence of Collier J’s dismissal of his application for an extension of time within which to purchase the business. At first blush, there would appear to be some force in this submission. However, we understand the purchasers have been intimately involved in the dispute between the parties about their property and it may be, as the husband said, that if the orders made by his Honour are impugned by apprehended bias, he may in turn be able to mount a case for that transaction to be set aside. Lest the husband think differently, he should not interpret these remarks as indicating anything more than at this stage the wife has been unable to persuade us that his appeal is doomed to fail.
The two additional orders sought in the husband’s application filed

11 February 2013 do not appear to be well made. In short, in circumstances where the final property settlement orders do not provide that the husband receive 50 per cent of the net partnership profits for the period GS was financial controller, it is difficult to discern a basis upon which that order might be made.
The husband’s claim for access to partnership records is also dealt with in the s 79 orders. However, this would appear to be an order in the nature of enforcement and once again, it could not be confidently stated that that claim for relief is doomed to fail.
More than once, the husband who has not yet filed and served his summary of argument in the appeal said that he would be able to make cogent written submissions as to the merit of his appeal. He emphasised that he would be able to make more cogent written submissions than those he presented orally. The husband relied on his having filed the appeal books and stated that his failure to file a summary of argument was an oversight.
We accept that there is little more to be done in relation to presentation of the husband’s appeal and that with his appeal listed for hearing on 28 July 2014, it would be contrary to the interests of justice for the appeal to be summarily dismissed at this time. Although the wife would undoubtedly wish not to have to deal with the stress associated with further litigation, it is important that she understand that summary dismissal is rarely ordered. We appreciate, as does the husband, that there may be adverse costs consequences for him should his appeal fail. However, he has assets and the capacity to meet an order for costs should his appeal fail. The husband indicated that he was prepared to pay the wife’s reasonable costs of the application, which was agreed between the parties to be $2,500.
For these reasons, the wife’s application for summary dismissal was refused.
An application was then made by the husband for an extension of time within which to file his summary of argument.
He accepted that if he was given an extension of time, that it should be on condition that if he failed to comply with the timeframe imposed, his appeal would be dismissed. In the event the wife’s application in an appeal failed, she did not oppose the husband being granted an extension of time.
Little needs to be said in relation to the order for costs other than it reflects the parties’ agreement. The application of the wife was properly brought in view of the failure of the husband to comply with directions and file his summary of argument.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 May 2014.

Associate:

Date: 13 May 2014