Swinbank & Stein (No 2)

[2022] FedCFamC1A 198

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Swinbank & Stein (No 2) [2022] FedCFamC1A 198

Appeal from:

Swinbank & Stein(No 2) [2022] FedCFamC1F 731

Appeal number(s):

NAA 235 of 2022

File number(s):

CSC 103 of 2021

Judgment of:

AUSTIN J

Date of judgment:

29 November 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Amended Notice of Appeal – Where orders were made granting the applicant leave to file an Amended Notice of Appeal, in default of which the appeal would be summarily dismissed – Where the applicant did not comply – Where the relief sought by the applicant cannot be granted as the appeal was automatically dismissed upon his failure to file an Amended Notice of Appeal – Where the application favourably interpreted is an application to re-instate the appeal – Where the original Notice of Appeal was incompetent and had no reasonable prospects of success – Where no draft Amended Notice of Appeal has been prepared – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VIIAB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.38, 13.44

Cases cited:

Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100

Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220; [1986] HCA 13

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681; [1986] HCA 84

Nanschild v Pratt [2011] NSWCA 85

Swinbank & Stein [2022] FedCFamC1A 182

Number of paragraphs:

14

Date of hearing:

Determined on the papers

Place:

Newcastle

Solicitor for the Applicant:

MK Family Law

The Respondent:

Self-represented litigant

ORDERS

NAA 235 of 2022
CSC 103 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SWINBANK

Applicant

AND:

MS STEIN

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	29 november 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 24 November 2022 is dismissed.

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 Swinbank & Stein (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

1. On 24 October 2022, the applicant filed a Notice of Appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1).

2. The appeal was incompetent for reasons promptly explained to the applicant (Swinbank & Stein [2022] FedCFamC1A 182).

3. On 10 November 2022, orders were therefore made in the appeal in these terms:

   1.Leave is granted for the appellant to bring an appeal within the next 14 days from the orders made on 14 September 2022, which appeal may be included within any Amended Notice of Appeal filed by the appellant in these proceedings pursuant to Order 2 hereof.

   2.The appellant shall file an Amended Notice of Appeal within 14 days hereof, in default of which the appeal is dismissed.

4. No Amended Notice of Appeal was filed by 24 November 2022, in which case the appeal was dismissed.

5. On that day, the applicant filed an Application in an Appeal seeking relief in this form:

   1.That the time for the Applicant to file his amended Notice of Appeal be extended by fourteen (14) days to 4pm on 8 December 2022.

6. The applicant sought that the application be determined on the papers in the parties’ absence pursuant to r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), which request can be accommodated.

7. The relief sought by the applicant cannot be granted. The appeal was automatically dismissed on 24 November 2022 upon his failure to file an Amended Notice of Appeal. There is no longer any pending appeal within which to extend time to take a certain step.

8. Instead, the only form of relief which can usefully be granted to the applicant is re-instatement of the appeal under r 13.44 of the Rules.

9. The applicant’s new lawyer filed an affidavit on 24 November 2022 to explain why he failed to file an Amended Notice of Appeal within the 14 days allowed. In effect, the explanation is a combination of some delay caused by the referral of the applicant’s grant of legal aid to lawyers, the applicant’s delay in furnishing the new lawyers with all relevant documents, and the inconvenience of arranging a conference between the applicant and his new lawyers. Those circumstances are understandable, but not dispositive of the application for an extension of time or for the re-instatement of an appeal already summarily dismissed.

10. The applicant’s lawyer deposed:

    13.It is respectfully submitted that there would be no detriment to the Respondent in allowing such extension to the filing of the Notice of Appeal.

    (Affidavit of Mairi Elizabeth Kerfoot filed 24 November 2022)

11. On the contrary, the respondent has the benefit of orders made by the primary judge on 14 and 26 September 2022 dismissing the applicant’s application for property settlement relief under Pt VIIIAB of the Family Law Act 1975 (Cth). She is ordinarily entitled to enjoy the fruit of the judgment even while an appeal is pending (Federal Commissioner of Taxation v Myer Emporium Ltd (No.1) (1986) 160 CLR 220 at 222–223; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No.1) (1986) 161 CLR 681 at 684), let alone when there is no appeal at all. The re-instatement of the appeal would prejudice the respondent by putting the certainty of the original judgment at some risk of disturbance (even if only slight risk) and by causing her to incur cost to defend the appealed judgment.

12. The discretion to re-instate an appeal is broad and unconfined (Bemert & Swallow (2010) FLC 93-441 at 84,900), but it is generally acknowledged there is no point served by re-instating an appeal devoid of apparent merit (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [5], [7], [33] and [66]; Nanschild v Pratt [2011] NSWCA 85 at [39]–[41]).

13. The original Notice of Appeal was summarily dismissed upon effluxion of the time allowed for its amendment because it was incompetent and had no reasonable prospect of success in its original form. As things stand, no draft Amended Notice of Appeal has been prepared and no explanation has been advanced as to the manner in which the appeal might be amended to overcome the deficiencies identified on 10 November 2022. That an amended appeal could be filed soon does not necessarily mean it will be pleaded in a form which ostensibly enjoys a greater chance of success.

14. The applicant’s application is dismissed – both in the form it was made and in the form it has been favourably interpreted.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       29 November 2022