Vissell and Ors and Vissell and Anor

[2019] FamCAFC 259

FAMILY COURT OF AUSTRALIA

VISSELL AND ORS & VISSELL AND ANOR [2019] FamCAFC 259

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking leave to appeal against the order of a judge which dismissed an appeal against the decision of a registrar – Where the appellants are third parties to the substantive proceedings – Where the confluence of procedural circumstances weighs in favour of the application being granted – Appellants granted leave to appeal against the judge’s order.

Family Law Rules 2004 (Cth) r 18.08

FIRST APPLICANT: Ms R Vissell

SECOND APPLICANT: Mr Q Vissell

THIRD APPLICANT: L Pty Limited

FOURTH APPLICANT: M Pty Limited

FIFTH APPLICANT: CC Pty Limited

FIRST RESPONDENT: Mr Vissell

SECOND RESPONDENT: Ms Vissell

FILE NUMBER: SYC 2224 of 2018

APPEAL NUMBER: EA 122 of 2019

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 29 November 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 30 September 2019

LOWER COURT MNC: [2019] FamCA 697

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Yates Beaggi Lawyers

SOLICITOR FOR THE FIRST

RESPONDENT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr Livingstone

SOLICITOR FOR THE SECOND RESPONDENT: Marsdens Law Group

Orders

1. The applicants be granted leave to file a Notice of Appeal against the order dated 30 September 2019, in the form annexed to their Application in an Appeal filed 14 November 2019, marked ‘B’, which Notice is to be filed within twenty one (21) days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 122 of 2019
File Number: SYC 2224 of 2018

Ms R Vissell

First Applicant

And

Mr Q Vissell

Second Applicant

And

L Pty Limited

Third Applicant

And

M Pty Limited

Fourth Applicant

And

CC Pty Limited

Fifth Applicant

And

Mr Vissell

First Respondent

And

Ms Vissell

Second Respondent

REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 14 November 2019, the first to fifth applicants (“the applicants”) seek, in effect, to review the decision of a registrar refusing to accept for filing a Notice of Appeal.  The applicants are five individuals and entities who were served with subpoenas for the production of documents at the behest of Ms Vissell (“the wife”).  The applicants objected to production of the documents but were unsuccessful, both before a Registrar and on review.  It is against that latter decision that the applicants seek leave to appeal.

2. The applicants’ objection was first determined on 4 July 2019.  On 16 July 2019, the applicants filed an application to review the decision of the registrar.  That application was determined by a judge in chambers and dismissed on 30 September 2019.

3. It would seem uncontroversial that on 28 October 2019, the applicants presented a Notice of Appeal which sought leave to appeal (the order being interlocutory) the order of 30 September 2019. The necessary filing fee was provided. Correspondence received by the applicants’ solicitor reveals that the registrar formed the view that the Notice of Appeal did not correctly identify all appellant parties and; that the grounds of appeal were in effect, incompetent. The reason for this being that they did not engage with the primary judge’s finding that the review application was filed out of time, which it was. As to the latter point, the Family Law Rules 2004 (Cth) (r 18.08) required that an application to review such a decision be filed within seven days. However, the applicants are not parties to the proceedings and thus, neither they nor their solicitor had access to the Commonwealth Courts Portal. It would seem uncontroversial that the only notification of the registrar’s decision to reject the applicants’ objection was when the order to that effect was uploaded to the portal. Sealed copies of the orders were not issued in paper format. These difficulties were compounded by the fact that the hearing was determined in chambers on the papers, at a date and time not listed in advance. The point being that the applicants had no idea when the objection would be determined or that a decision had been made.

4. However, the applicants became aware that their objection had been determined and, not without some difficulty, they obtained a copy of the order of 4 July 2019 on 11 July 2019, which is the same day that their ability to seek a review as of right expired.   Thus, although the application to review the order was filed within five days of when the applicants received a copy of the order, that application was nonetheless presented out of time.

5. The reviewing judge determined the application in chambers, at a date and time not listed in advance, and without the benefit of oral argument, albeit with the written submissions.  It would seem that the effect of this is that the opportunity for the judge to raise the absence of a formal application to proceed out of time was lost and thus the review application was dismissed.

6. The registrar was aware of some, but not all, of these matters concerning the fairness of the process.

7. As to the identification of the parties, a problem arose because the digital form cannot be unlocked and, with so many parties, the solicitor for the applicants, in effect, adapted the form so as to at least identify the appellants.  As the registrar correctly pointed out, this problem would have been resolved if an additional page had been used to provide all of the information concerning the appellants.

8. The applicants seek that they be given leave to file the Notice of Appeal presented on 28 October 2019, out of time, failing which, they be given leave to file the Notice of Appeal annexed to their Application, out of time.  The latter properly engages the delay in filing the review application and the decision of the primary judge to dismiss the review application because of that delay.  It is difficult to assess the probable disposition of the application for leave to appeal and any appeal. However, the proposed challenge is not so devoid of merit that it could be said it is doomed to fail.

9. In my view, the confluence of procedural circumstances weighs in favour of the application being granted.  To proceed otherwise would see the rules become instruments of injustice.

10. As I indicated during the hearing, the application for leave to appeal and the appeal will be heard at the same time.

11. The costs of this application will be reserved to the leave/appeal hearing.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 December 2019.

Associate: 

Date:  20 December 2019