SUREDA & VERGONYOS - [2020] FamCAFC 280

FAMILY COURT OF AUSTRALIA

SUREDA & VERGONYOS

[2020] FamCAFC 280

FAMILY LAW – APPLICATION IN AN APPEAL – REMOVE RESPONDENT’S LEGAL REPRESENTATIVES – Where the appellant asserts that there is a conflict of interest given that the parties’ daughter works for the firm of solicitors representing the respondent – Where it has not been established and indeed no allegation is made that there is the prospect of confidential information being passed by the daughter to the firm of solicitors which would be available to that firm in the context of their representation of the respondent – Where the mere fact of the daughter being employed by the solicitors who represent the respondent is insufficient to justify an order being made as sought – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the grounds of appeal are incompetent and do not identify any appealable errors made by the primary judge – Where there is no prospect of success of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where the amount sought is reasonable and within the scale of costs which would be applied by this Court – Where the appellant has chosen to make no submissions but this Court will proceed on the basis that the application is opposed and the appellant is impecunious – Where the appellant has been wholly unsuccessful – Where impecuniosity is not a bar to an order for costs being made where there are circumstances justifying an order for costs such as apply here – Costs ordered as sought by the respondent.

Family Law Act 1975 (Cth) ss 96AA, 117

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251; [1996] HCA 14

APPELLANT:

Ms Sureda

RESPONDENT:

Mr Vergonyos

FILE NUMBER:

MLC

11434

2019

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

6 November 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link

JUDGMENT OF:

Strickland J

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 May 2020

LOWER COURT MNC:

[2020] FCCA 1277

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Borger

SOLICITOR FOR THE RESPONDENT:

Z Lawyers

Orders

The Application in an Appeal filed by the appellant wife on 27 October 2020 be dismissed.
The Notice of Appeal filed on 19 June 2020 be dismissed.
The appellant wife pay the costs of the respondent husband of and incidental to the said Notice of Appeal, the Application in an Appeal filed on 16 October 2020, and the Application in an Appeal filed on 27 October 2020 fixed in the sum of $2,500.

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 Sureda & Vergonyos 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 52 of 2020
File Number: MLC 11434 of 2019

Ms Sureda

Appellant

And

Mr Vergonyos

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is a Notice of Appeal filed by Ms Sureda (“the wife”) on 19 June 2020.
That Notice of Appeal was abandoned in circumstances I addressed when this matter was before me on 1 October 2020, but on that date, I made an order reinstating the appeal. The appeal was then adjourned to today, to enable the wife to file and serve a complete draft appeal index, and, if so advised, for Mr Vergonyos (“the husband”) to file and serve an Application in an Appeal seeking summary dismissal of the appeal.
Both of those orders have been complied with in that on 29 October 2020, the wife filed a fulsome draft appeal index, and on 16 October 2020, the husband filed an Application in an Appeal seeking summary dismissal of the appeal.
What I first need to deal with is an Application in an Appeal filed by the wife on 27 October 2020, wherein she sought, in effect, removal of the legal representatives for the husband on the grounds of conflict of interest and inadequacy.
There is an affidavit filed in support of that application which says as follows:
1.That my daughter is employed by the law firm [acting for the husband].
2.That [the law firm] is now acting as legal representative on behalf of my husband Mr Vergonyos.
3.That there is a direct connection with a first degree family member in the legal representation for [the husband] in these proceedings between my husband and myself. This representation is inadequate.
4.That I live in the UK.
The application is opposed by the husband, and I can say that there is absolutely nothing deposed to in that affidavit in support of the application which would require any order removing the solicitors for the husband. The fact that the daughter is a solicitor employed by that firm, per se, cannot, and does not, provide any basis for the making of the order.
What the wife needed to establish, was that there was the prospect of confidential information being passed by her daughter to the firm of solicitors, which would then be available to that firm of solicitors in the context of their representation of the husband against the wife.
However, no such allegation is made, and nothing that I have read in this matter would suggest that that is the case in any event. I repeat, the mere fact that the daughter is employed by the solicitors who represent the husband, is insufficient to justify an order being made as sought by the wife.
Thus, for those reasons, I propose to dismiss that application.
I now turn to the Notice of Appeal filed by the wife on 19 June 2020, appealing orders made by a Judge of the Federal Circuit Court of Australia on 22 May 2020.
The primary order the subject of the appeal is a divorce order made by her Honour on that day. Her Honour also dismissed the wife’s response to the application for a divorce order, dismissed her application for review of an exercise of power by the Registrar, dismissed her Application in a Case, and made an order that the wife pay the husband’s costs.
In the wife’s Notice of Appeal, all those orders appear to be the subject of the appeal. However, to repeat, the primary order complained of is the order for divorce.
Also before the Court today is an Application in an Appeal filed on 16 October 2020 by the husband, seeking summary dismissal of the Notice of Appeal, and an order for costs, and there is an affidavit filed in support of that application. I note that there was very little in that affidavit which, frankly, went to the issue of summary dismissal. However, I have received extensive oral submissions today from the husband’s counsel, which were directed to that issue.
I have also received oral submissions in response from the wife. However, with respect to the wife, very few, if any, of those submissions were relevant to the Application in an Appeal seeking dismissal, but rather, dealt with the appeal itself.
It is plainly necessary for me to deal first with the Application in an Appeal seeking summary dismissal.
That application is made pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides as follows:
96AA(1)       If:
(a)      an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal):
The court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2)       This section does not limit any powers that the court has apart from this section.
It is submitted on behalf of the husband that that is the case here, namely, having regard to the grounds of appeal, the appeal would have no reasonable prospects of success.
The grounds of appeal in the Notice of Appeal comprise nothing other than the following general assertions:
1.Procedural unfairness
2.Bias
3.Inadequance [sic] of reasons and errors of facts
4.Denial of a natural justice
(As per original)
Fortunately, the wife has attached a number of pages to the Notice of Appeal wherein she has amplified those grounds of appeal, and I will come to that further detail later in these reasons.
As is plain from her Honour’s reasons for judgment, her Honour was required to address three issues. First, the jurisdiction of the Court to make the order sought, secondly, whether the marriage had been proved, and thirdly, whether the marriage had broken down irretrievably. There was a fourth matter though, and that was, her Honour needed to consider the applicability of s 55A(3) of the Act, and correctly, her Honour declared that there were no children of the marriage to whom that section applied.
Her Honour found that the Court had jurisdiction, found the marriage to be proved, and found that the ground for the application for divorce order, namely that the marriage had broken down irretrievably, was also proved.
The first difficulty I highlight with the Notice of Appeal, is that none of the grounds of appeal directly address those three issues which confronted her Honour.
I turn now to the detail provided in the extra pages annexed to the wife’s Notice of Appeal, and which, to repeat, is an attempt by the wife to amplify, or explain, those general assertions to which I have earlier referred.
First, procedural unfairness, and the complaint here appears to be that the wife could not afford to meet the order for costs made by her Honour, and in addition, she suggests that her Honour ignored the issues that the wife raised in relation to, and I quote, “inhibition of contact with my daughters, violation of my parental rights and patria potestas, stealing family items and personal safety”.
No procedural unfairness has been demonstrated in relation to the order for costs. Her Honour dealt with that at [29] to [35] of her reasons for judgment, and on my reading of those paragraphs, her Honour correctly addressed the relevant section of the Family Law Act in relation to costs, and correctly determined that there were circumstances that justified an order for costs, departing from the usual rule that each party bear their own costs. As to the quantum, her Honour was not prepared to make an order for costs in the amount sought by the husband, and reduced that amount significantly, and, in my view, appropriately so.
As to the matter of her Honour ignoring the issues raised, as identified above, frankly, whether her Honour ignored any of those issues or not, does not provide any basis for a claim of procedural unfairness. None of those issues were relevant to the application that was before her Honour. I note however, that her Honour took the time in her reasons for judgment, and in particular in [6], to set out what she described as a number of additional matters raised by the wife. Then in [8] her Honour, in my view correctly, observed that those additional matters were not relevant to the issues in dispute before her. Again, her Honour was perfectly correct in making that observation.
Thus, there is no merit in the wife’s assertion that her Honour failed to provide her with procedural fairness.
Secondly, bias, and it seems, with respect to the wife, that she misunderstands what an allegation of bias in the context of legal proceedings entails. What the wife appears to complain of is that her Honour dismissed all her claims, that her Honour relied upon citizenship to find jurisdiction, and allegedly, that that contravened the “International Convention of Human Rights”, and violated the wife’s rights to have a fair trial regardless of citizenship.
However, none of those matters go to the issue of bias.
The well-known test is that set out in the High Court decision of Johnson v Johnson (2000) 201 CLR 488, where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said this:
11… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
There is nothing raised in the wife’s Notice of Appeal which goes anywhere near satisfying that test.
I then come to the third issue, namely, the alleged inadequacy of reasons and errors of facts. For my part, having carefully read her Honour’s reasons for judgment, and in the knowledge of the particular issues that her Honour had to address, there is no basis for this Court to find that her Honour’s reasons were inadequate and it is nonsense to suggest that is the case. Indeed, I suspect that what the wife has confused this with, and I accept this is speculation, is that she was wanting her Honour to deal with the so-called additional matters to which I have referred, but which her Honour found were irrelevant and did not need to be addressed.
To provide the flavour of the further detail provided by the wife I highlight that one issue that the wife was raising was a claim for damages of $20,000, and she phrased that as being financial compensation for “irretrievable damage to herself” resulting from the breakdown of the marriage, and also for the husband to pay her for the cost of “annual travel and accommodation expenses to visit and recompose” her relationship with her daughters.
To not put too fine a point on it, that has absolutely no relevance to the issues that her Honour had to determine and, indeed, as I have expressed earlier today during submissions, there is no basis whatsoever for any such claim by the wife. In any event, it is not a claim that this Court can entertain.
In terms of the errors of facts, the wife failed to provide any significant detail in relation to that, but doing the best I can from the pages annexed to her Notice of Appeal, she appears to be raising issues about the time lapse, the age of her daughters, the distance involved, issues about her safety, and the like. Whatever they may relate to, none of those matters comprise errors of fact made by her Honour. None of those are matters that her Honour had to have any regard to in determining the application for divorce, which was the application before her Honour.
Finally, I come to the allegation of denial of natural justice.
The wife has failed to provide any understandable particulars that support such an allegation. She frames it in the context of her claims being ignored and dismissed. That is not a denial of natural justice. Her Honour gave ample opportunity to the wife to respond to the application that was before her and to present her case, and a plain reading of her Honour’s reasons for judgment fail to reveal any denial of natural justice.
To return to s 96AA of the Act, I refer to the judgment of Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. There, Kirby J set out six principles to be applied in applications for summary relief (at page 256). Not all of those principles are relevant to this matter, but for completeness I set them all out hereunder:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
For the purposes of the application here, I highlight the second and the sixth principles.
In relation to the second principle, I find that that is the case here; the husband has demonstrated that the wife’s Notice of Appeal has no basis.
With the sixth principle identified by his Honour, in my view, that certainly applies here. It is unfortunate that this Court has had to deal with a Notice of Appeal which has absolutely no legal merit, and has taken up the time of this Court which could have been devoted to addressing claims which do in fact have some merit and deserve the time of this Court.
In the circumstances, I find that not only do the grounds of appeal have no reasonable prospect of success, they have no prospect of success whatsoever, and the Notice of Appeal should be dismissed.
I now have an application for costs consequent upon my decision to summarily dismiss the wife’s Notice of Appeal. The amount sought is a total of $2,500 and, as has been explained by counsel for the husband, that merely comprises counsel fees for the hearing on 1 October 2020 and the hearing today. It does not include the costs of preparation or solicitor’s fees. Thus, it is, in my view, a perfectly reasonable claim and within the scale of costs applied by this Court.
I have invited the wife to respond to that application, but she has chosen not to, and instead she has simply indicated that she will be, and these are my words, taking this matter further. That is her right, but it does not assist me in dealing with the question of costs. Thus I will proceed on the basis that the application is opposed.

Section 117 of the Act governs the question of costs. The primary position as set out in subsection 117(1), is that each party is to bear their own costs. However, pursuant to subsection 117(2), where there are circumstances that justify an order for costs, an order can be made. And in considering whether there are such circumstances, I have to have regard to s 117(2A). The circumstance that is relied on by the husband is that the wife has been wholly unsuccessful (s 117(2A)(e)).
The authorities are such that only one such circumstance needs to be present, and that is clearly a circumstance which would justify an order for costs. However, I have a discretion whether to order costs or not, and in considering that issue, s 117(2A)(a) sets out the need to take into account the financial circumstances of the parties.
In terms of the husband, he is a general practitioner and it is conceded that his financial circumstances are, at the very least, adequate. Nothing has been put to me by the wife though in relation to her financial circumstances. To repeat, I invited her to make submissions in relation to this issue, and she chose not to. However, even if I assume that the wife is impecunious, that cannot, and does not in this case, prevent an order for costs being made. There is ample Full Court authority that impecuniosity is not a bar to making an order for costs, where there are other circumstances which justify an order for costs being made.
To repeat, there is such a circumstance here, in that the wife has been wholly unsuccessful, and her Notice of Appeal has been summarily dismissed.
Finally, in the exercise of my discretion, and given the comments I have made about the complete lack of merit in the Notice of Appeal, and the waste of this Court’s time in having to consider the same, I am persuaded that the order as sought by the husband is appropriate.
I note for the record that wife left the hearing shortly before I finished delivering these reasons.

I certify that the preceding fifty (50) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 6 November 2020.

Associate:

Date: 19 November 2020