Telama & Telama
[2023] FedCFamC1A 106
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Telama & Telama [2023] FedCFamC1A 106
Appeal from: Review of Appeal Judicial Registrar's decision made 9 May 2023 Appeal number(s): NAA 134 of 2023 File number(s): BRC 13278 of 2021 Judgment of: TREE J Date of judgment: 5 July 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF DECISION – Where the applicant seeks review of the decision by the appeal registrar to refuse to accept for filing an Application in an Appeal seeking an extension of time to file an appeal – Where the proposed appeal seeks to appeal orders which have previously been the subject of an earlier appeal – Where the previous appeal was dismissed for non-compliance – Whether the filing of the second proposed appeal is an abuse of process – Where it was open to the applicant in the first appeal to raise the grounds in the proposed second appeal – Application dismissed – Costs ordered in a fixed sum. Legislation: Bankruptcy Act 1966 (Cth) s 153
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.24, 13.40, 13.45
Cases cited: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Number of paragraphs: 24 Date of hearing: 20 June 2023 Place: Cairns (via video link) The Applicant: Self-represented litigant Counsel for the Respondent: Mr Bateman (direct brief) ORDERS
NAA 134 of 2023
BRC 13278 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TELAMA
Applicant
AND: MS TELAMA
Respondent
order made by:
TREE J
DATE OF ORDER:
5 July 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 16 May 2023 is dismissed.
2.The applicant is to pay the respondent’s costs in the sum of $2,000 within 28 days.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Telama & Telama has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Application in an Appeal filed 16 May 2023, Mr Telama (“the father”) seeks to review a decision by an Appeal Judicial Registrar to refuse to accept for filing three documents. Ms Telama (“the mother”) opposes the Application in an Appeal.
For the reasons which follow, the application will be dismissed.
BACKGROUND
The mother and father have been involved in family law litigation since 2008. In 2013, they entered into a binding child support agreement (“the 2013 agreement”) in respect of their four children. In 2015, the mother commenced proceedings seeking enforcement of the 2013 agreement.
On 1 May 2018, a judge of the Federal Circuit Court of Australia (as it was then known) declared the amount of child support owing to the mother to be $375,127.29 and ordered payment to be made within 120 days. The father did not pay any of that sum, but rather later that year, on his own petition, became bankrupt, from which he was discharged in 2021.
Thereafter, on 6 October 2021, the father filed an application to discharge the child support arrears accrued under the 2013 agreement pursuant to s 153(2A) of the Bankruptcy Act 1966 (Cth). On 1 July 2022, the primary judge dismissed that application.
On 29 July 2022, the father filed a Notice of Appeal from those orders. Thereafter the mother filed an Application in an Appeal seeking that the father pay security for her costs of the appeal, and on 9 September 2022, an Appeal Judicial Registrar ordered that the father pay the sum of $15,000 into Court by way of security, failing which the appeal would be stayed. No application to review that decision was brought. The father did not comply with that order and the appeal was stayed.
On 25 October 2022, the Appeal Judicial Registrar dismissed the father’s appeal for non-compliance with the 9 September 2022 order pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). No application to review that decision ensued.
On 29 March 2023, upon the mother’s application, a second bankruptcy notice was issued to the father in respect of the outstanding child support arrears.
On 8 May 2023, the father attempted to file a Notice of Appeal, an Application in an Appeal (seeking an extension of time to appeal) and an affidavit, all in a renewed attempt to have the orders made on 1 July 2022 set aside.
On 9 May 2023, the Appeal Judicial Registrar advised the father that his documents had been rejected for filing pursuant to r 2.24(1)(e) of the Rules, on the basis that they were an abuse of process. This is the decision the father now seeks to review.
REVIEW
Pursuant to r 13.40(1)(b) of the Rules, a party may apply for a review of the rejection of a document by an Appeal Judicial Registrar. Such a review proceeds as a hearing de novo. Nonetheless, both parties naturally focussed upon whether or not the bringing of a second appeal from the 1 July 2022 orders is an abuse of process.
Rule 2.24(1)(e) permits the rejection of a document received for filing if, it “on its face, appears to the court to be an abuse of process, frivolous, scandalous or vexatious”. As to what may comprise an abuse of process, in Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507, the plurality of the High Court said at [24]–[26]:
24.To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25.Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26.Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel…
(Footnotes omitted, emphasis added)
Although this statement of principle arose in a very different context to the refusal to accept a second appeal for filing, there is no reason to doubt it is nonetheless of direct application to r 2.24(1)(e).
The father says that the proposed second appeal raises different challenges than did his earlier appeal and therefore is not an abuse of process. Particularly the proposed second appeal now focuses on the following findings of the primary judge:
58.[The father] argues also that if the arrears are not discharged the mother may take enforcement action which could result in a second period of bankruptcy. His Counsel put to the mother in cross-examination that she could do so.. She said that it is “not [her] intention” to file a creditor’s petition, which may result in the father being forced into bankruptcy.
59.Counsel for the father argued that her intention might change and that based on the litigation history between the parties, I should find that there is a risk of her sending the father into another period of bankruptcy in order to cause him distress. I note that the father entered into bankruptcy in 2018 of his own volition, not at the hands of the mother. History does not suggest she would do so in the future. The father relied on an argument that the mother had disclosed family law documents to a third party without permission from the court. The mother’s evidence, which I accept, was that she did so without legal advice, shortly after the death of her father, and in the hope that if she provided the documents requested she hoped that the matter would “go away”. I do not accept the submission of the father that she did so out of malice.
60.I accept the submission of the mother’s Counsel that there would be no advantage for the mother in forcing the father into bankruptcy. In my view, the submissions of the father as to the risk of a future period of bankruptcy are no more than speculation on his behalf.
(Emphasis added)
As I have already observed, on 29 March 2023 a bankruptcy notice issued at the behest of the mother and it was served on the father on 3 April 2023, both dates being, of course, well after the 1 July 2022 judgment. The father says that therefore this new development means that an appeal relating to the above passages of the primary judge’s reasoning was not previously open to him. Specifically he contends in his affidavit filed 16 May 2023:
15.Later that same day, now with the knowledge that the matter before [the primary judge] would be concluded on the following day, [the mother] made application to the Australian Financial Security Authority for the issue of a bankruptcy notice against me.
16.The Bankruptcy Notice […] was issued on 29 March 2023 and served on me on 3 April 2023. A copy of the Bankruptcy Notice is included as Annexure E.
17.The matters referred to in the preceding two paragraphs could not have been anticipated by me at the time that I filed the previous Notice of Appeal on 29 July 2022.
However plainly the father’s submissions before the primary judge, as recorded at [59] recited above, show that he was well aware that the mother’s “intention might change” as it apparently has. It was therefore open to the father in the first appeal to challenge the primary judge’s order by reference to the grounds in the proposed second appeal and, given his submissions to the primary judge as noted by her Honour in [59], he ought reasonably have done so.
It follows that to do so now by way of the proposed second Notice of Appeal, would be an abuse of process.
In those circumstances, it is not necessary to consider whether any other limb of r 2.24(e) is satisfied.
The filing of the Application in an Appeal, affidavit and proposed Notice of Appeal, all dated 8 May 2023, should be rejected.
CONCLUSION
The Application in an Appeal filed 16 May 2023 will be dismissed.
COSTS
The mother sought that the father pay her costs of defending the application on an indemnity basis, in the amount of $3,750 (or perhaps $4,125).
The Application in an Appeal was without merit. There is no reason to think that the father cannot pay the mother’s costs, and even if he cannot, impecuniosity is not a bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164). I am satisfied that a costs order is appropriate here.
The mother seeks indemnity costs on the basis that the second appeal was an abuse of process, contending that such is an established basis for awarding costs on a more generous basis. However it cannot be ignored that the mother has indeed done that which she told the primary judge she would not do, and thereby precipitated the father’s subsequent response in the form of the proposed second appeal and this review. I therefore decline to order costs on anything other than the usual basis.
I fix those costs at $2,000. They should be paid within 28 days.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 5 July 2023
2
0