Tryon and Clutterbuck

[2009] FamCAFC 66

FAMILY COURT OF AUSTRALIA

TRYON & CLUTTERBUCK [2009] FamCAFC 66

FAMILY LAW – APPEAL – APPLICATION FOR DISMISSAL OF APPEAL – Non-compliance with procedural orders – Serious issue to be considered – Application for dismissal refused

APPELLANTS: MRS TRYON and MR TRYON

RESPONDENT: MR CLUTTERBUCK

FILE NUMBER: PAM 4199 of 2006

APPEAL NUMBER: EA 95 of 2008

DATE DELIVERED: 31 March 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: WARNICK BOLAND & O'RYAN JJ

HEARING DATE: 31 March 2009

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Bellanto

SOLICITOR FOR THE APPELLANT: Christopher M Edwards Solicitor

COUNSEL FOR THE RESPONDENT: Mr Coustas

SOLICITOR FOR THE RESPONDENT: Lexington Law Group

Orders

1. That the application for dismissal of the appeal be refused.

2. That the hearing date listed for today be vacated.

3. That the appeal be listed for hearing on 3 June 2009.

4. That the appellants file and serve any amended or further amended Notice of Appeal upon which they wish to rely on or before 4.00 pm on Friday 17 April 2009.

5. That the appellants have leave to rely on their Summary of Argument filed on 20 March 2009 as the summary of argument in the respect of the appeal.

6. That the respondent file and serve a Summary of Argument and List of Authorities on or before 4.00 pm on Friday 22 May 2009.

7. That the appellants pay the respondent’s costs thrown away by the adjournment of the appeal as agreed and in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Tryon & Clutterbuck is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA95 of 2008
File Number:  PAM4199 of 2006

MRS TRYON and MR TRYON

Appellants

And

MR CLUTTERBUCK

Respondent

REASONS FOR JUDGMENT

1. We propose to vacate the hearing date of today and to fix another day and make further directions in relation to the appeal. 

2. The reason may be shortly stated and has in effect been expressed by

   
   

   Mr Bellanto in any event.  And that is that, although he did not use these words; even blatant disregard for procedural orders will generally give way to the desirability of serious issues being fully tried.

   RECORDED  :  NOT TRANSCRIBED

3. The reason for the costs order is that in our view the adjournment is necessitated solely because of the behaviour of the appellants in failing to comply in a fairly marked degree with the procedural orders relating to the preparation of the appeal for hearing. 

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  21 April 2009