WADSLEY & CABASSA

FAMILY COURT OF AUSTRALIA

WADSLEY & CABASSA

[2021] FamCAFC 16

FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file an appeal book as ordered – Where there is no utility in allowing the appeal to proceed – Where there is no adequate or acceptable reason for the failure to file the appeal book on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where in the interests of justice the application must be refused – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.44, r 22.57

Bemert and Swallow (2010) FLC 93-441; [2010] FamCAFC 100
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

APPLICANT:

Mr Wadsley

RESPONDENT:

Ms Cabassa

FILE NUMBER:

ADC

3383

2017

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

9 February 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

9 February 2021

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

7 May 2020

LOWER COURT MNC:

[2020] FCCA 1089

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Matthew Mitchell Lawyers

Orders

The Applications in an Appeal filed respectively on 25 September 2020 and 26 October 2020 be dismissed.

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 Wadsley & Cabassa 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 ADELAIDE

Appeal Number: SOA 47 of 2020
File Number: ADC 3383 of 2017

Mr Wadsley

Applicant

And

Ms Cabassa

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Before the court today is an Application in an Appeal filed by Mr Wadsley (“the applicant”) on 26 October 2020, seeking an order that the Notice of Appeal filed on 3 June 2020, appealing against orders made by a Judge of the Federal Circuit Court of Australia on 7 May 2020, be reinstated.
There is an affidavit filed in support of that application, also on 26 October 2020.
The reason for the application is that the appeal was deemed abandoned, and that arose as a result of the applicant failing to comply with an order made by the Appeal Registrar on 11 September 2020, providing for…

CaseChat Overview and Summary

The applicant, Mr Wadsley, sought to reinstate an appeal that had been deemed abandoned due to his failure to file an appeal book as ordered by the Appeal Registrar. The appeal in question arose from orders made by the Federal Circuit Court of Australia on 7 May 2020. The appeal was deemed abandoned following Mr Wadsley's non-compliance with an order to file and serve the appeal book by 4:30pm on Friday 16 October 2020. The respondent, Ms Cabassa, opposed the application to reinstate the appeal. The court had to decide whether it was in the interests of justice to allow the appeal to proceed, considering the adequacy of the reasons for the failure to comply with the timeframe, the merits of the appeal, and the prejudice to the parties.

The court found that there was no adequate or acceptable reason for Mr Wadsley's failure to file the appeal book on time. The affidavit provided by Mr Wadsley did not satisfactorily explain why he could not comply with the relevant timeframe, as he had still not received subpoenaed documents or transcripts of the hearing, which were not necessary for filing the appeal book. Additionally, the court found that the appeal had no merit, as the grounds of appeal were general assertions that did not identify any appealable errors by the primary judge. The applicant's misunderstanding of the nature of an appeal, as demonstrated by his attempt to re-run his case in the summary of argument, further supported the finding that the appeal was without merit. The court concluded that allowing the appeal to proceed would be a waste of everyone's time and resources, and that there would be prejudice to the respondent if the application was granted.

In light of the findings, the court dismissed the application to reinstate the appeal. The dismissal of the application meant that the earlier application filed on 25 September 2020 had to be dismissed as well. The court's decision was based on the fundamental issue of whether it was in the interests of justice to allow the appeal to proceed, and in this case, the court found that the application for reinstatement must be refused. The interests of justice demanded that the application for reinstatement be refused, given the lack of satisfactory explanation for the failure to file the appeal book within time, the lack of merit in the appeal, and the prejudice to the respondent if the application was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established