Weng & Wah - [2021] FamCAFC 71

FAMILY COURT OF AUSTRALIA
Weng & Wah [2021] FamCAFC 71

Appeal from: Weng & Wah and Ors [2019] FamCA 562

Appeal number(s): NOA 82 of 2019

File number(s): MLC 9718 of 2014

Judgment of: ALDRIDGE, WATTS & CAREW JJ

Date of judgment: 11 May 2021

Catchwords: FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – SUMMARY DISMISSAL – Appeal from property orders – Appellant failed to file Summary of Argument – Grounds too broad to make sense without Summary of Argument – Where the first respondent sought summary dismissal of the appeal – Where the appellant sought an adjournment of the appeal – Where the appellant consistently failed to comply with procedural orders – Appeal has no reasonable prospects of success – In the public interest to maintain timely compliance with procedural directions – Application for adjournment is dismissed – Application for summary dismissal granted – Appeal dismissed – No order as to costs.

Legislation: Family Law Rules 2004 (Cth) r 22.45

Division: Appeal Division

Number of paragraphs: 32

Date of hearing: 11 May 2021

Place: Brisbane

Appellant: Self-represented litigant

First Respondent: Self-represented litigant

Second Respondent: Self-represented litigant

Third – Eleventh Respondents: No appearance
ORDERS

NOA 82 of 2019
MLC 9718 of 2014

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MR B WENG

Appellant

AND:
MS WAH

First Respondent

MR C WENG

Second Respondent

D PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

ALDRIDGE, WATTS & CAREW JJ

DATE OF ORDER:

11 MAY 2021

THE COURT ORDERS THAT:
1.The Application in an Appeal filed by the first respondent on 1 March 2021 be granted.
2.The Application in an Appeal filed by the appellant on 10 May 2021 be dismissed.
3.Appeal No. NOA 82 of 2019 be dismissed.
4.There be no orders as to costs.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weng & Wah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

This is the hearing of two Applications in an Appeal.
The first application, filed on 1 March 2021 by the first respondent, seeks the dismissal of the appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”), because the appellant failed to file a Summary of Argument in the time permitted by the orders of the Appeals Registrar.
The second Application in an Appeal was filed yesterday, on 10 May 2021, by the appellant. The application seeks the adjournment of the appeal so as to permit the appellant time to prepare and file his Summary of Argument.
The Court has heard both applications this morning.
The appellant’s application is opposed by the first respondent and the second respondent. There has been no appearance by the third to eleventh respondents.
The appeal arises out of property settlement proceedings between the appellant and the first respondent, which also included the second respondent who is their son, and a number of companies and trusts associated with him. In those proceedings, the appellant failed in his claims, which were that properties owned by the second to the eleventh respondents were in fact beneficially owned by him. Those proceedings were finalised by orders made on 16 August 2019.
The appellant filed a Notice of Appeal on 13 September 2019. In response, the first and second respondents each filed an application for the provision of security for costs of the appeal. Both applications were heard by Justice Kent on 9 December 2019, and dismissed on 10 December 2019. Additionally, the appellant’s costs of and incidental to those applications, fixed in the sum of $10,000, were reserved to the Full Court hearing of this appeal.
Scheduled procedural hearings for 21 February 2020 and 6 April 2020 were administratively adjourned because the parties were unable to attend due to COVID-19 travel restrictions. The parties were in China.
On 13 July 2020, orders were made for the preparation of the appeal. The appellant was directed to file and serve his Summary of Argument by 15 November 2020.
On 13 November 2020, the appellant filed an application seeking an extension to file his Summary of Argument. At that time the appellant was represented by lawyers. On 14 December 2020, the time for filing his Summary of Argument was extended up to and including 15 January 2021. The appellant’s lawyers withdrew from the proceedings at that hearing. The appellant did not file a Summary of Argument by 15 January 2021 and has not filed one to date.
On the 28 January 2021, the Appeals Registrar wrote to the appellant and informed him that if he did not remedy his failure to file a Summary of Argument, the appeal would be listed for consideration of dismissal under r 22.45 of the Rules. That rule empowers the court to dismiss an appeal where a party has not complied with an order in relation to the appeal.
On 1 March 2021, as I have said, the first respondent filed an Application in an Appeal seeking the dismissal of the appeal for non-compliance with the directions of the Appeals Registrar to file a Summary of Argument. On 20 April 2021, the Appeals Registrar directed the appellant to file a response to that application by 23 April 2021. He did not do so.
Yesterday, on 10 May 2021, the appellant filed an Application in an Appeal and an affidavit in support. It is convenient to deal with the application for adjournment first.
The appellant says that he needs an adjournment because he is in a poor state of health and needs time to rest and recover, cannot afford to engage lawyers to act for him, but nonetheless proposes to borrow money to engage lawyers to act for him. That of course will take some time.
As to the appellant’s health, he says that he has recently been diagnosed with severe recurrent vertigo, and says that he is told he will not recover quickly. He does not adduce any evidence from a doctor as to his condition. It is therefore difficult to place any significant weight on his statements as to his medical condition.
The appellant has not yet engaged the lawyers, and indeed has not yet borrowed the funds. He does not give any explanation as to why he has not done so, particularly since 28 January 2021 or 1 March 2021, where he became aware of the steps to be taken for the dismissal of the appeal. The appellant does not say who the proposed lawyers are, who he proposes to request the funds from, and the likelihood of him receiving the funds. In addition, the appellant says he proposes to call new evidence in the appeal but does not say what it is. These are significant issues.
The Notice of Appeal bears a note that the grounds of appeal are to be treated as preliminary until such time that the transcript of primary proceedings is properly considered, at which point the appellant will file a more detailed grounds of appeal. He has not yet done so.
It is apparent that Grounds 6 to 10 of the Notice of the Appeal are so broadly drafted that they are incapable of being seen as proper grounds of appeal. Grounds 1 to 5 assert errors in findings of fact.
Two difficulties arise from those grounds. The first is that the primary judge found that the disclosure by the parties in the primary proceedings was particularly poor. The appellant will therefore be constrained in the appeal by being limited by the evidence that was before the primary judge.
Secondly, appeals from findings of fact face some difficulties. Whilst it is invidious determining the strength of an appeal at an early stage, it cannot be said however at this stage, that there are obvious grounds of appeal that have reasonable prospects of success.
The appellant has not remained silent since 28 January 2021, and has engaged in a series of correspondence via email with the Appeals Registrar, where a number of emails were sent between 28 January 2021 and 6 April 2021. In the responses to those emails, the Appeals Registrar repeatedly advised the appellant that he could not proceed with the appeal via email correspondence as he proposed, and that he should seek an extension of time to comply with the orders of the court.
Whilst it is true that the appellant has prosecuted the appeal to the extent of having an appeal book prepared, transcript of primary proceedings filed and successfully defending applications for security for costs, he has otherwise taken no steps to bring the appeal on for hearing. He has not explained why an amended Notice of Appeal and Summary of Argument have not been filed, other than to say he has not been well and cannot afford lawyers.
As I have already observed, there are some difficulties with those submissions. In particular, it is completely unexplained as to why he has not yet sought to borrow the money to engage lawyers. In my opinion this case for adjournment is not strong and I have no confidence that if the matter was adjourned, he would take the necessary steps to prepare the appeal for hearing. I consider he has had a sufficient opportunity to proceed with this appeal, but he has not taken this opportunity up.
For her part, the first respondent says that she is not in good health and has had to undergo at least two operations. More relevantly, she points out that the matter commenced in 2014 and is it time it be dealt with.
Finally, there is a public interest to be considered. Public confidence in the administration of justice is maintained by timely compliance with procedural directions.
In addition, such compliance is not only in the interests of the parties and the court, but also other litigants. If this matter is now adjourned, it would require further allocation of court resources, including a further listing for the hearing of the appeal that will necessarily displace another matter from having its appeal heard in its ordinary course.
Taking all these matters into account, I would dismiss the appellant’s application for adjournment.
As to the first respondent’s Application in an Appeal for summary dismissal, it is clear that despite being given more than ample opportunity to do so, including an extension of time granted by the Appeals Registrar, the appellant has failed to comply with the orders to provide a Summary of Argument. As I have already observed, the Notice of Appeal faces some difficulty, and so a Summary of Argument will be essential to understand the issues on the appeal. I am accordingly satisfied that r 22.45 of the Rules applies, and for the reasons already given, I would dismiss the appeal.
Consequently, I propose orders that the Application in an Appeal filed on 10 May 2021 be dismissed, and that the appeal be dismissed.
WATTS J:
I agree with the orders proposed by Aldridge J and with the reasons his Honour has given.
CAREW J:
I agree with the orders proposed by Aldridge J and agree with the reasons.
ALDRIDGE J:
The orders of the Court will be:
(1)The Application in an Appeal filed by the first respondent on 1 March 2021 be granted.
(2)The Application in an Appeal filed by the appellant on 10 May 2021 be dismissed.
(3)Appeal No. NOA 82 of 2019 be dismissed.
(4)There be no orders as to costs.

I certify that the preceding thirty-one (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Aldridge, Watts & Carew.
Associate:
Dated: 11 May 2021
SCHEDULE OF PARTIES

NOA 82 of 2019
MLC 9718 of 2014

Respondents

Fourth Respondent:

E PTY LTD

Fifth Respondent:

F PTY LTD

Sixth Respondent:

G PTY LTD

Seventh Respondent:

THE MR C WENG FAMILY TRUST

Eighth Respondent:

THE H FAMILY TRUST

Ninth Respondent:

THE J FAMILY TRUST

Tenth Respondent:

K PTY LTD

Eleventh Respondent:

L PTY LTD

Appeal from:	Weng & Wah and Ors [2019] FamCA 562
Appeal number(s):	NOA 82 of 2019
File number(s):	MLC 9718 of 2014
Judgment of:	ALDRIDGE, WATTS & CAREW JJ
Date of judgment:	11 May 2021
Catchwords:	FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – SUMMARY DISMISSAL – Appeal from property orders – Appellant failed to file Summary of Argument – Grounds too broad to make sense without Summary of Argument – Where the first respondent sought summary dismissal of the appeal – Where the appellant sought an adjournment of the appeal – Where the appellant consistently failed to comply with procedural orders – Appeal has no reasonable prospects of success – In the public interest to maintain timely compliance with procedural directions – Application for adjournment is dismissed – Application for summary dismissal granted – Appeal dismissed – No order as to costs.
Legislation:	Family Law Rules 2004 (Cth) r 22.45
Division:	Appeal Division
Number of paragraphs:	32
Date of hearing:	11 May 2021
Place:	Brisbane
Appellant:	Self-represented litigant
First Respondent:	Self-represented litigant
Second Respondent:	Self-represented litigant
Third – Eleventh Respondents:	No appearance

NOA 82 of 2019 MLC 9718 of 2014
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MR B WENG Appellant
AND:	MS WAH First Respondent MR C WENG Second Respondent D PTY LTD (and others named in the Schedule) Third Respondent

ORDER MADE BY:	ALDRIDGE, WATTS & CAREW JJ
DATE OF ORDER:	11 MAY 2021

NOA 82 of 2019 MLC 9718 of 2014
Respondents
Fourth Respondent:	E PTY LTD
Fifth Respondent:	F PTY LTD
Sixth Respondent:	G PTY LTD
Seventh Respondent:	THE MR C WENG FAMILY TRUST
Eighth Respondent:	THE H FAMILY TRUST
Ninth Respondent:	THE J FAMILY TRUST
Tenth Respondent:	K PTY LTD
Eleventh Respondent:	L PTY LTD