WOODBY-CHATTERJEE & CHATTERJEE - [2018] FamCAFC 182

FAMILY COURT OF AUSTRALIA

WOODBY-CHATTERJEE & CHATTERJEE

[2018] FamCAFC 182

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the applicant seeks that the respondent provide a copy of the transcript of proceedings before the primary judge – Whether the court has the power to make such an order – Discussion of Sampson & Hartnett (2013) FLC 93-542 – Prima facie merits of the appeal – Whether the applicant can afford all or parts of the transcript – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file appeal books that complied with the registry’s requirements – Where reinstatement would be futile if the applicant is unable to also file the transcript – Where it is likely that the applicant will be able to obtain the parts of the transcript necessary to prosecute the appeal – Application allowed – Appeal reinstated.

Family Law Act 1975 (Cth) ss 94(1AA), 94(2)
Family Law Rules 2004 (Cth) rr 22.21, 22.44

Bainton v Rajski (1992) 29 NSWLR 539
Barton v Walker [1979] 2 NSWLR 740
Chatterjee & Chatterjee-Woodby [2018] FamCA 474
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Woodby-Chatterjee

RESPONDENT:

Mr Chatterjee

FILE NUMBER:

SYC

3822

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

19 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

6 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 April 2018

LOWER COURT MNC:

[2018] FamCA 474

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Obrart

SOLICITOR FOR THE APPLICANT:

G & D Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Bricknell Legal

Orders

Pursuant to r 22.44 of the Family Law Rules 2004 (Cth), Appeal EA61 of 2018 is reinstated.
The time in which the appellant is to file and serve the appeal books is extended up to and including 24 September 2018.
The time for filing and serving an electronic copy of the transcript is extended up to and including 10 October 2018.

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 Woodby-Chatterjee & Chatterjee 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 61 of 2018
File Number: SYC 3822 of 2013

Ms Woodby-Chatterjee

Applicant

And

Mr Chatterjee

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 17 August 2018, Ms Woodby-Chatterjee (“the applicant”) seeks to have her appeal against orders made by Stevenson J on 6 April 2018 reinstated pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”). The appeal was deemed to be abandoned because the applicant failed to file the appeal books by 31 July 2018 in accordance with procedural orders made by a registrar on 19 June 2018 (r 22.21 of the Rules).
In addition to seeking a reinstatement of the appeal, the applicant seeks an order that in lieu of the order requiring her to provide a copy of the transcript to the Court, Mr Chatterjee (“the respondent”) or his legal representatives be directed to do so.
The appeal is from a refusal of the primary judge to disqualify herself from hearing financial and parenting proceedings between the applicant and the respondent.
The hearing commenced on 3 April 2018. The day was taken up with procedural matters and objections to evidence. On the following day an application for summary dismissal of aspects of the proceedings was heard. Shortly before the lunch break the hearing was adjourned to 5 April 2015. On that day an application was made for her Honour to disqualify herself. On 6 April 2018 it was refused (Chatterjee & Chatterjee-Woodby [2018] FamCA 474).
The hearing continued and at some stage the primary judge was told that the parenting proceedings had settled and was informed of the proposed orders. The consent to those orders was then withdrawn. Her Honour then felt obliged to disqualify herself because of what she had heard about the intended consent orders.
The financial matter, which was an application to set aside a financial agreement, proceeded. Judgment has been reserved but not delivered, no doubt pending the outcome of the appeal.
The parenting matter has been heard and determined by another judge.

Application for reinstatement

The principles to be applied in this case are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 at 480:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
In addition, it is necessary to bear in mind that ordinarily an appeal which has been regularly filed should not be defeated through procedural irregularities: Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”).
The solicitor for the applicant deposed that on 31 July 2018, he arranged for a paralegal employed by his firm to file the appeal books. On arrival at the registry, the appeal books were not accepted for filing because they were not securely bound, they referred to a discontinued appeal and the cover sheet was deficient in a number of respects. He went on to say that it was too late in the day to have the appeal books spiral bound and to attend to the other matters.
I was informed from the bar table, without objection, that the appeal books, at least in the view of the applicant’s solicitor, are now in a form that will comply with the registry’s requirements.
Ordinarily this recitation of events would lead to the conclusion that the appeal should be reinstated. The applicant’s rights to pursue her appeal should not be lost because of her solicitor’s difficulties in preparing the appeal books. However, the issue of transcript remains outstanding and I shall now turn to that issue.

Should the respondent be required to provide the transcript?

Counsel for the applicant advanced two main propositions in support of this aspect of the matter. The first was that the applicant cannot afford to pay for the transcript and the second is that the respondent already has a copy of it.
As to the first, counsel for the respondent correctly pointed out that the evidence in support of this proposition was sparse. However, the evidence did disclose that the applicant had a number of significant debts. In addition, counsel for the respondent informed the Court that the applicant has recently incurred an obligation to pay costs in relation to proceedings in the Supreme Court of New South Wales in the sum of $300,000. The applicant’s solicitor further deposes that he has been acting for the applicant without payment since late 2014.
I shall proceed on the assumption that the applicant has some financial difficulties.
The respondent does not demur from the proposition that he has a copy of the transcript. However, he asserts, and the evidence bears out (albeit in somewhat unsatisfactory form), that his contract with the provider of the transcript prohibits him from providing a copy to the applicant as it would be a breach of copyright.
It is necessary here to mention that it was submitted by the respondent that he did not in fact have a copy of the transcript and that it was his solicitor who owned it. This is because he says that despite him asking the solicitor to order the transcript and paying the cost of obtaining it, it was in fact sent to the solicitor so it remains the solicitor’s property and not his. I do not accept that proposition, which seems quite foreign to ordinary concepts of agency.
The question then becomes, on what basis should an order of the kind sought by the applicant be made? Her counsel did not refer to any authority that sets out such a proposition or, indeed, records an occasion where such an order as the one presently sought has been made.
In Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) the Court held that it has the power itself to obtain a transcript and can do so in the exercise of its discretion where the interests of justice require it (at [14]). The basis of the Court’s power to order the provision of a transcript is seen as the exercise of its incidental powers necessary to fulfil the statutory function under s 94(2) of the Family Law Act 1975 (Cth) (“the Act”). Whether that extends to an order of the present kind is doubtful.
Counsel for the applicant did not refer me to any authority where an order of the kind presently sought has been made.
I am concerned that the order, if made, would, in effect, cause a breach of copyright. When the Court obtains the transcript at the request of a party it does so by paying for it. Here, the point of the application is to rely on the transcript already obtained by him. Unfortunately the terms of the agreement by which it was acquired are not before me.
I am not satisfied, as presently advised, that there is a proper legal basis for making the order as sought.
However, I am not persuaded to make such an order even if there is power to do so.
In Sampson the Court noted that the provision of transcript by the Court would be exceptional. I consider that the same high threshold applies to orders directed to the respondent who is, after all, opposing the appeal.
In Sampson at [16], the Court set out a number of factors that ordinarily would be taken into account in determining whether the Court would provide the transcript. Not all of those are applicable to the present circumstance, but some undoubtedly are.
The proceedings as they remain consist of an application to set aside a financial agreement. That is, they are proceedings concerning the financial interests of the parties. They are not proceedings that concern the best interests of children. In such cases the public interest in an appeals court being adequately equipped to deal with the issues before carries greater weight.
The respondent pointed to the delay occasioned in the proceedings. It is true that there was an unfortunate set of circumstances that arose where the initial hearing was not reached. Then, the first judge allocated to hear the matter ultimately disqualified himself after three days of hearing. When it was listed before the primary judge, the first hearing could not proceed due to her illness. None of this, however, can be sheeted home to the applicant.
The respondent also submitted that the application should be dismissed because it is futile, as the appeal itself is so devoid of merit that it could not possibly succeed (see Jackamarra at 521).
The basis of this submission was that, in essence, the appeal was premature because the primary judge has not yet delivered final reasons.
It is true that in other jurisdictions a judge’s refusal to disqualify him or herself is not of itself an appealable order because it does not of itself determine the rights or interests of the parties (see, for example, Barton v Walker [1979] 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539). Rather, a person who wishes to appeal from a judge’s failure to disqualify him or herself must appeal against the orders ultimately made, relying upon that failure as one of the grounds of appeal.
That is not the position under the Act. Section 94(1AA) provides:
An appeal lies to a Full Court of the Family Court from a decree or decision of a Judge exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Thus, the appeal is not bound to fail on the ground asserted by the respondent.
There is no material before me that would permit me to arrive at any view as to the prospects of success of the appeal otherwise.
The applicant estimated the cost of the transcript to be of the order of $5,000 for the four relevant days of hearing. If I understand the Amended Notice of Appeal correctly, it contends the primary judge erred in not finding that events which occurred on 3 and 4 April 2018 justified disqualification (the Notice erroneously refers to 3 and 4 May and will need to be corrected). I do not see why it would not be sufficient to obtain just those two days which would lessen the cost.
The applicant did not oppose an order being made on 19 June 2018 that she provide the transcript by 31 July 2018.
Finally, it is unlikely that not making the order sought will stifle the appeal. Counsel for the applicant said that if the order for the provision of the transcript by the respondent was not made, the applicant had other avenues for the provision of the transcript. She said that her solicitor would obtain it.
I return then to the issue of the reinstatement. The transcript will be essential to the running of this appeal as it is only by reference to it that the applicant will be able to show error. As I have said, it is likely to be provided so any reinstatement is unlikely to be futile.

Conclusion

Taking into account the nature of the matters that led to the abandonment it is in the interests of justice to reinstate the appeal and to make orders extending the time in which the appeal books and transcript are to be filed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 September 2018.

Legal associate:

Date: 19 September 2018