Tsoi v Savranski

[2008] FCA 1164

FEDERAL COURT OF AUSTRALIA

Tsoi v Savranski [2008] FCA 1164

NATALIA TSOI v IVAN SAVRANSKI

NSD 606 OF 2008

EMMETT J
11 JULY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 606 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NATALIA TSOI
Appellant

AND: IVAN SAVRANSKI
Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	11 JULY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Notice of Appeal filed 1 May 2008 be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD606 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	NATALIA TSOI Appellant
AND:	IVAN SAVRANSKI Respondent
JUDGE:	EMMETT J
DATE:	11 JULY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter is an appeal from orders of the Federal Magistrates Court made on 10 April 2008.  By those orders, the Federal Magistrates Court ordered that a proceeding in that Court be dismissed and that the applicant pay the respondent’s costs.  The proceeding has had an unfortunate history.  On 18 November 2004, Raphael FM ordered that the proceeding be adjourned for hearing on 15 March 2005.  His Honour observed then that the proceeding had already had an unfortunate history. 

2. The proceeding was commenced by an application filed on 28 February 2003.  It concerns a claim by the applicant that she was sexually harassed by the respondent in December 2001.

3. The matter first came before the Federal Magistrates Court on 16 February 2004, when, after a short hearing, it was adjourned because of want of appearance by the applicant.  The matter came back to the Court on 27 April 2004, on a motion by the respondent that the proceeding be dismissed.  It appears that orders for dismissal were made.  However, on 17 May 2004, the applicant filed a notice of motion asking for those orders to be vacated on the grounds that she had not been served with the motion.  On 27 May 2004, the orders for dismissal were vacated and the matter was adjourned for further hearing on 9 August 2004.

4. There were further directions hearings and a hearing date for 23 November 2004 was fixed.  However, in the meantime, it appears that the applicant sought to vacate that date, and the orders of 18 November 2004 were made in consequence.  However, on 25 February 2005, the applicant again sought vacation of the hearing fixed for 15 March 2005.  In circumstances that are not entirely clear, Raphael FM directed on 25 February 2005, that the matter would proceed on 28 February 2005.  On that day the Federal Magistrates Court was informed by the applicant that she could not participate in the proceeding.  For reasons given on that day, Raphael FM ordered that the proceeding be dismissed and that the applicant pay the respondent’s costs.

5. The applicant appealed from those orders and the appeal came before Wilcox J on 14 April 2005, when his Honour ordered the applicant to file and serve an amended notice of appeal by 29 April 2005.  His Honour directed, subject to the determination of the Chief Justice, that the appeal be heard by a single judge on 12 May 2005.  On that day orders were made by Wilcox J, apparently by consent, that the orders of Raphael FM made on 28 February 2005 be set aside and that the costs of the hearings before Raphael FM be returned to the federal magistrate who ultimately determines the matter.

6. The proceeding then came on for hearing before Smith FM on 3, 4, 5, 6, and 7 March 2008.  His Honour gave judgment on 10 April 2008, dismissing the application, as I have said.  It is from those orders that the present appeal has been brought.  The notice of appeal, which is handwritten and difficult to comprehend, was filed on 1 May 2008.  The appeal was fixed for a directions hearing on 23 May 2008.  An appointment for settlement of the index to the appeal books was fixed for 30 May 2008. 

7. On 23 May 2008, the matter came before Rares J who ordered that any party who wished to make an application as to the further conduct of the proceeding file and serve a notice of motion and affidavit no later than 4 July 2008.  His Honour directed that if any motion is filed, the responding party file and serve any affidavit in reply by 10 July.  His Honour stood the matter over for further directions on 11 July 2008. 

8. In the meantime, the appointment for settling the appeal papers came before Deputy Registrar Ng on 30 May 2008, when the proceeding was adjourned to 4 July 2008.  There was no appearance by either party on that day.  Pursuant to the direction given by Rares J, the respondent filed a notice of motion on 26 June 2008, seeking an order that the appeal be dismissed as incompetent and, in the alternative, seeking an order for security for the costs of the appeal.

9. In accordance with his Honour’s direction, that motion was made returnable today.  When the matter was called on this morning there was no appearance for the appellant.  I have been informed, on behalf of the respondent, that on the last occasion the appellant indicated that she was proposing to seek Legal Aid.  That may or may not be an explanation for her failure to appear today. 

10. The grounds stated in the notice of appeal of 1 May 2008, so far as I can comprehend them, are as follows: 

    (1)The content of the hearing reflected in the decision incongruence, misinterpreting and very much misleading. 

    (2)The decision is prejudicial, formulated to protect the offender, and the fundamental nature of the matter has been buried to close the case.  

    (3)The professional expert opinion provided by number of practition[ers], including an expert forensic psychiatrist, Dr Sokolovic, who I am reading my judgment from, has not acknowledged.

    In the part of the notice of appeal for specifying the orders sought, the following appears:

    The matter is too sensitive to me to participate in the most appropriate, in addition, that Mr Savranski was doing until December 2001 was ongoing harassment.  But what he did in December 2001 was pure assault which had direct traumatic impact on me and caused following attempt of suicide.

11. The notice of motion for summary dismissal relies on the proposition that the notice of appeal seeks to review issues of fact and does not seek a judicial determination on an error of law.  That may be misconceived.  However, the grounds of appeal, as they stand, could hardly succeed.  Had there been an appearance for the appellant, the appropriate course would have been to direct her to file an amended notice of appeal raising comprehensible grounds, whether or not they are grounds related to questions of law or questions of fact.

12. In the absence of appearance by the appellant today, the respondent asks that the appeal be dismissed.  In all of the circumstances, it appears to me to be appropriate to accede to that request.  I will do so, however, on the basis that the respondent inform the appellant as soon as practicable of the orders that I have made, and of the provisions of the rules that permit the Court to set aside orders made in absentia. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       10 September 2008

There was no appearance for the Appellant.
Counsel for the Respondent:	Mr M Hogg

Date of Hearing:	11 July 2008
Date of Judgment:	11 July 2008