Stopford Malloy & Malloy
[2020] FamCAFC 69
•1 April 2020
FAMILY COURT OF AUSTRALIA
| STOPFORD MALLOY & MALLOY AND ORS | [2020] FamCAFC 69 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an order that the applications for leave in the appeal and the cross-appeal be dealt with on the papers without the need for oral submissions – Where the application is not opposed by the second respondents or the interveners – Where the first respondent opposes such an order being made asserting that it is a denial of natural justice and a denial of his rights as a self-represented litigant – Where to provide for the applications for leave here to be dealt with on the papers only does not infringe the requirements of procedural fairness or natural justice – Where it is clear that the first respondent can ably present his case albeit he is self-represented – Where the first respondent will not be disadvantaged in any way by the applications being heard on the papers only – Orders made as sought by the applicant. |
| Acts Interpretation Act 1981 (Cth) s 13(2)(d) Bennett v Min for Public Works (NSW) (1908) 7 CLR 372 |
| APPLICANT: | Ms Stopford Malloy |
| FIRST RESPONDENT: | Mr Malloy |
| SECOND RESPONDENTS: | The Malloy Group and Mr Q Malloy |
| INTERVENERS: | Mr R and Mr S, Receivers |
| FILE NUMBER: | ADC | 2595 | of | 2015 |
| APPEAL NUMBER: | SOA | 4 | of | 2020 |
| DATE DELIVERED: | 1 April 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| DATE HEARD: | 26 March 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2019 |
| LOWER COURT MNC: | [2019] FamCA 986 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Piper Alderman Lawyers |
COUNSEL FOR THE APPLICANT: | Mr Wells of Queen’s Counsel with Mr McGinn |
| THE FIRST RESPONDENT: | In Person |
| SOLICITORS FOR THE SECOND RESPONDENTS: | Barnes Brinsley Shaw Lawyers |
COUNSEL FOR THE SECOND RESPONDENTS: | Mr Harris of Queen’s Counsel with Mr Barnes |
| SOLICITORS FOR THE INTERVENERS: | Crawford Legal |
| COUNSEL FOR THE INTERVENERS: | Mr Jackson |
Orders Made 26 March 2020
Pursuant to Rule 22.12 of the Family Law Rules 2004 (Cth) the applications of the applicant for leave to appeal be dealt with by the Full Court without an oral hearing.
The said applications for leave to appeal be dealt with by way of written submissions.
The said applications for leave to appeal be determined prior to the fixing of a date for the hearing of any appeal by the Full Court.
The said applications for leave to appeal be referred to a directions hearing before the Southern Appeal Registrar for orders to be made as to the preparation and filing of the application book, the provision of electronic transcript and the filing of written submissions.
Certify fit for Senior Counsel.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stopford Malloy & Malloy and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE DIVISION OF THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 4 of 2020
File Number: ADC 2595 of 2015
| Ms Stopford Malloy |
Applicant
And
| Mr Malloy |
First Respondent
And
| The Malloy Group and Mr Q Malloy |
Second Respondents
And
| Mr R and Mr S, Receivers |
Interveners
REASONS FOR JUDGMENT
Introduction
On 26 March 2020 this Court heard the Application in an Appeal filed by Ms Stopford Malloy (“the applicant”) on 10 February 2020, seeking an order that the applications for leave in the appeal and in the cross-appeal in appeal no. SOA 4 of 2020, be dealt with by written submissions, without an oral hearing. Because of time constraints I made the orders sought by the applicant, but I was unable to provide my reasons for judgment, and I indicated that I would attend to that at the earliest available opportunity. These are those reasons for judgment.
On 8 January 2020, Mr Malloy (“the first respondent”) filed a Notice of Appeal seeking leave to appeal and if leave is granted to appeal against orders made by a judge of the Family Court of Australia on 13 December 2019.
On 10 January 2020, the Malloy Group and Mr Q Malloy (“the second respondents”) filed a cross-appeal, seeking leave to appeal, and if leave is granted to also appeal against the orders made on 13 December 2019.
On 10 February 2020, the applicant filed the Application in an Appeal referred to above.
That application was not opposed by the second respondents, or by the receivers Mr R and Mr S (“the interveners”). Only the first respondent opposed the application, and he filed a Response on 23 March 2020, in which he sought that the application be dismissed, and that the applications for leave be dealt with by “oral hearing” with “oral submissions”.
Thus, the issue to determine was whether the applications for leave should be dealt with by written submissions without an oral hearing, or by way of oral hearing with oral submissions.
Is the consent of the parties required?
Section 94AAB of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:
94AAB Appeals, and applications for leave, without oral hearing
(1)Subject to subsection (2), an appeal under section 94 or 94AAA may be dealt with without an oral hearing if all the parties to the appeal consent to the appeal being dealt with in that way.
(2)Subsection (1) does not apply to an appeal if the court to which the appeal is made otherwise orders.
(3)A consent given under subsection (1) may only be withdrawn with the leave of the court.
Plainly, that section only applies to “appeals” and not “applications for leave to appeal”, but curiously the heading appears to suggest otherwise. However, a heading is not to be treated as part of the Act (s 13(2)(d) Acts Interpretation Act 1981 (Cth)), and in any event, as submitted by the applicant, “even when part of the Act, a heading cannot force adoption of an interpretation which the operative words cannot reasonably bear (Silk Bros Pty Ltd v SEC (Vic) (1943) 67 CLR 1, per Latham CJ at 16, (Rich & McTiernan JJ conc), citing Bennett v Min for Public Works (NSW) (1908) 7 CLR 372, per Isaacs J at 383)”.
Further, ss 94AA(3) of the Act reserves to the Family Law Rules 2004 (Cth) (“the Rules”), the conditions by which an application for leave may be dealt with.
In that regard, r 22.12(c) provides as follows:
22.12 Application for leave to appeal
In considering an application for leave to appeal from an order, a Judge, a Regional Appeal Registrar or other Registrar may make procedural orders, including:
…
(c)an order that the application be dealt with by the court without an oral hearing and orders in relation to the conduct of the application, including the filing of written submissions.
Thus, the consent of the parties is not required to dispense with an oral hearing of an application for leave to appeal.
Discussion
In support of the application, the applicant provided the following reasons why the hearing should be on the papers:
5.1Oppression: The alternative (full hearing of the application for leave to appeal as if an appeal) would be oppressive in the circumstances;
5.2Practice and procedure only: The non-parties seek leave to challenge, by way of interlocutory appeal, a decision pertaining to practice and procedure only, and in the interests of the efficient and effective management of both the appeal list and the principal proceeding (Initiating Application (Parenting Orders & Property Settlement), filed 14 July 2015), such applications for leave should be closely vetted;
5.3Refusal of leave not without prospects: The refusal of the application for leave is not without prospects – which would relieve the Court and the parties of the burdens of a full oral hearing as if an appeal.
In relation to the first reason, it is said that to determine the applications without an oral hearing is consistent with the protocols that the Court has put in place to minimise the possibility of infection and safeguard the wellbeing of litigants, the legal representatives, the court staff and the judicial officer, given the increasing spread of Covid-19.
Further, it is submitted, accurately, that this is the third interlocutory appeal for which leave has been sought by the respondents, and in the meantime, the first respondent continues in default of orders requiring him to pay spousal maintenance to the applicant.
As to the second reason, there is no doubt that because of the nature of the challenged orders, the question of leave to appeal should be determined separately from the hearing of any proposed appeal. Thus, as submitted by the applicant, it would be appropriate for the applications to be determined on the papers, so as not to unduly burden the limited resources of the court, and particularly given the impact on those resources by the increasing spread of Covid-19.
It is a matter of the efficient and effective case management of the appeal list in this Court.
With the third reason, that entails an assessment of the merits of the applications. However, at this stage of the process, that is a task that is quite difficult. It is not readily apparent from the documents that are now before the court, whether the applications will be either granted or refused. Thus, it must be said that either prospect is open, and it is legitimate to say that the refusal of the applications is not without prospects.
Turning to first respondent’s opposition to the hearing being on the papers.
The first respondent asserts that to determine the applications on the papers without an oral hearing:
a)is a denial of natural justice in the form of a failure to ensure procedural fairness; and
b)is a denial of his rights (as a self-represented litigant).
In support of those assertions the first respondent submits that he will be significantly disadvantaged because:
a)he is unable to fund legal representation, and where he will be self-represented, the applicant will be represented by “senior and junior counsel and a large commercial firm of solicitors”;
b)he is not legally trained, and he will be unable to present his case without an oral hearing, and solely on written submissions;
c)each party must be given a reasonable opportunity to present his or her case, and in an open court “it may be appropriate for the court to give some assistance to a self-represented party”;
d)to be provided with an opportunity to present their case, a party must be given a reasonable opportunity to be heard, and the court must ensure that “an unrepresented litigant has sufficient information about the practice and procedure of the court” to comply with the requirement that there be a fair hearing; and
e)he seems to disagree with the documents that the applicants suggest should be before the court.
There is no question that a hallmark of the judicial process is the requirement to afford all parties natural justice in the form of procedural fairness.
As cited by the first respondent, French CJ said this in International Finance Trust Company Ltd v New South Wales Crimes Commission (2009) 240 CLR 319 at [54]:
Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitution context, it is an incident of judicial power exercised pursuant to Ch III of the Constitution. It requires that a Court be and appear to be impartial, and provide each party to the proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it…
That said, to provide for the applications here to be dealt with on the papers without an oral hearing, does not infringe those requirements.
Plainly, the respondent will be provided with the opportunity to present his case, and to respond to the case of the applicant, albeit by written submissions.
The requirement “to be heard” does not require that there be an oral hearing, and can be satisfied by the first respondent being given the opportunity to identify the documents relevant to his case, and to provide written submissions in support of that case, and in opposition to the case of the applicant.
The first respondent relies on the fact that he will not be legally represented, and he will be opposed by experienced counsel and solicitors. However, that does not require there to be an oral hearing. The nature of the applications is straightforward, and in my view, well understood by the first respondent.
The first respondent has demonstrated that he can ably present his case, albeit he is self-represented. In his affidavit filed in support of his Response, he has set out the relevant principles of law, he has cited authority, and he has been able to clearly set out his arguments. That has also been demonstrated in his oral submissions. Further, in relation to his concerns as to the documents to be before the court, there will be a directions hearing before the appeal registrar, when he will have the opportunity to make submissions about that issue.
I do not accept that the first respondent will be disadvantaged in any way by the applications being heard on the papers without an oral hearing.
For those reasons I made the orders sought by the applicant.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 1 April 2020.
Associate:
Date: 1 April 2020
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