Suris & Suris

[2022] FedCFamC1A 43

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Suris & Suris [2022] FedCFamC1A 43   

Appeal from:	Suris & Suris [2021] FedCFamC1F 1
Appeal number(s):	NAA 27 of 2021
File number(s):	BRC 1193 of 2019
Judgment of:	ALDRIDGE J
Date of judgment:	24 March 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant requests an extension of time to file a Summary of Argument due to difficulties in engaging a barrister – Not in the interests of justice to delay the hearing – Application granted.
Number of paragraphs:	11
Date of hearing:	24 March 2022
Place:	Brisbane (via video link)
Solicitor for the Appellant:	Lillas & Loel Lawyers
Counsel for the Respondent:	Mr Baston
Solicitor for the Respondent:	Ogge Law

ORDERS

NAA 27 of 2021
BRC 1193 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SURIS

Appellant

AND:

MS SURIS

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	24 MARCH 2022

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to rely on their Summary of Argument dated 21 March 2022.

2.The time in which the respondent is to file and serve their Summary of Argument and List of Authorities is extended up to 5.00 pm on 29 March 2022.

3.The costs of the respondent of and incidental to this application are reserved.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Suris & Suris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an application for the extension of time in which the appellant’s Summary of Argument is to be filed. Pursuant to orders made by an appeal registrar on 15 November 2021, the appellant was to file a Summary of Argument and List of Authorities on which he wished to rely on by 21 January 2022. That did not occur.

2. The evidence of the appellant’s solicitor is that he gave to senior counsel the relevant material to prepare those documents on 18 November 2021. On 20 January 2022, he received an email from senior counsel advising that he couldn’t assist in finalising the outcome or appear at the appeal. On 11 February 2022, the appellant’s solicitor engaged another barrister to prepare the Summary of Argument and sent the relevant material to him. Despite follow up emails sent on 1 March 2022, 9 March 2022, 17 March 2022 and 18 March 2022 enquiring as to the process, there was no response.

3. The upshot was that the solicitor for the appellant, who apparently was a solicitor of some experience but very limited experience in both family law and appeals, prepared the Summary of Argument himself. He sent the present Summary of Argument to the appeal registrar on 21 March 2022.

4. The appeal is listed for hearing next Thursday, 31 March 2022. The application for an extension of time is opposed on three grounds.

5. The first is that the respondent will have insufficient time to prepare a response by that time. Mr Baston, who is the respondent’s counsel and who will be appearing at the appeal next week, has very properly indicated that he would be able to prepare a Summary of Argument by the close of business day on 29 March 2022, although it may not be as extensive and as elegant as he would hope, and he may be required to supplement by some further oral submissions at the appeal itself.

6. That course would preserve the hearing date of the appeal and to the extent that brings some difficulties upon the appellant, they are in effect self-inflicted. It would be in no one’s interests for the appeal to be vacated and for further expense and delay to be incurred.

7. The second ground of opposition is that the appellant’s solicitor has not fully explained the delay. There is force in that argument. The solicitor says in oral submissions that he spent the time between 20 January 2022 and 11 February 2022 trying to find a barrister. That may be so, but it is not in the affidavit. More importantly, steps should have been taken to relist the matter before the appeal registrar and seek an extension of time from the appeal registrar. That did not occur. The appellant’s solicitor accepts that he should have done that, but did not. That is regrettable but it is not the default of the appellant himself. Generally speaking, the consequence of the defaults of solicitors ought not be sheeted home to their client especially in relation to procedural matters.

8. Finally, it is submitted that the Summary of Argument that is proposed to be filed is defective in many ways. There may well be some force in the submissions that have been made, but in my view, they would be more apt to be made at the hearing of the appeal. I would not regard them as being of such weight as would indicate that it would be futile to grant the extension of time.

9. That being so, I consider it in the interests of justice to grant leave to the appellant to rely on the Summary of Argument that has been sent to the appeal registrar and dated 21 March 2022. Accordingly, the appeal registrar will now file the Summary of Argument.

10. I extend the time the respondent is to file and serve a Summary of Argument and List of Authorities up to the close of business day on 29 March 2022.

11. The respondent’s costs of and incidental to this application are reserved.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       28 March 2022