YG and RG

[2006] FamCA 1097

FAMILY COURT OF AUSTRALIA

YG & RG [2006] FamCA 1097

Application for leave to appeal –  directions made by trial Judge setting out a timetable for the filing of documents in the appeal and listing the appeal for hearing – The applicant wife based her claim upon the failure of the trial Judge to adjourn the trial date while an application for leave to appeal against an order requiring the appellant’s solicitors to refrain from disbursing monies held in their trust account was still pending – That application for leave to appeal was subsequently deemed abandoned – no error of principle and/or a substantial injustice demonstrated  - Application for leave to appeal dismissed – Costs ordered.

Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1991) 148 CLR 170
Emamy & Marino (1994) FLC 92-487
Rutherford & Rutherford (1991) FLC 92-255

APPLICANT WIFE: YG

RESPONDENT HUSBAND: RG

FILE NUMBER: MLF 1675 of 2003

APPEAL NUMBER: SA 37 L of 2006

DATE DELIVERED: 27 October 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: KAY, WARNICK & GUEST JJ

HEARING DATE: By way of written submissions

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDER DATE: 9 June 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITORS FOR THE APPLICANT: ISSAC BROTT & CO

COUNSEL FOR THE RESPONDENT:

SOLICITORS FOR THE RESPONDENT: FORTE FAMILY LAWYERS

Orders

1. That the application for leave to appeal filed 23 June 2006 be dismissed.

2. That the applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement as assessed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 37 L of 2006
File Number: MLF 1675  of 2003

YG

Applicant Wife

And

RG

Respondent Husband

REASONS FOR JUDGMENT

1. On 23 June 2006 the applicant wife sought leave to appeal against orders made by Carter J on 9 June 2006.  Directions were subsequently made that the application be dealt with by a Full Court without oral hearing. 

2. The application was supported by an affidavit sworn by Issac Brott, the applicant’s solicitor.  The respondent filed an affidavit on 15 August 2006 in opposition of the application annexing submissions prepared on his behalf by Sharon Johns of Counsel.  There have been no further submissions filed in reply on behalf of the applicant.

3. The orders of 9 June 2006 were made at a directions hearing conducted by Carter J as judge manager of the substantive proceedings awaiting trial.  Those orders, apart from discharging some earlier procedural orders required the wife to file and serve within 10 days:

   (a)an affidavit by Mr [T] annexing his report to the wife’s solicitor dated 24 July 2005;

   (b)an affidavit by the wife to stand as her evidence for trial, such affidavit to be limited to the particulars of the miscarriage of justice relied upon by the wife in her application and/or relating to the financial agreement made 30 April 2004; and,

   (c)on or before 30 June 2006 to file and serve a further affidavit from Mr [M], or some other forensic accountant limited to matters to which Mr [M] had not deposed in his earlier affidavit which are relevant to paragraphs 3(a) and (l) of the particulars of the miscarriage of justice relied upon by the wife in her application.

4. The orders also provided for the husband to file and serve material in response to any such affidavits filed on behalf of the wife.

5. The proposed Notice of Appeal relies upon the following grounds:

   1.The Honourable Justice Carter erred in law in confirming the hearing date on 10 July 2006 in respect of the final hearing of the further amended form 2 application (deemed pursuant to the orders of Justice Joskie(sic) made 30 August 2005 to be a form 1 application).

   2.The Honourable Justice Carter erred in law in failing to adjourn the hearing date on 10 July 2006 in respect of the final hearing of the further amended form 2 application (deemed pursuant to the orders of Justice Joskie (sic) made 30 August 2005 to be a form 1 application).

   3.The Honourable Justice Carter erred in law and failed to take into consideration that a failure to adjourn the hearing date on 10 July 2006 in respect of the final hearing of the further amended form 2 application (deemed pursuant to the orders of Justice Joskie (sic) made 30 August 2005 to be a form 1 application) would render the appeal in SA18L of 2006; nugatory.

6. The proposed Notice of Appeal sought orders that:

   …

   3.The hearing of [the proposed] appeal be heard and determined at the same time as the hearing of the appeal in number SA18L of 2006 in this proceeding.

   4.The final hearing of the further amended form 2 application…of the wife listed on 10 July 2006 be vacated.

   5.The final hearing of the further amended form 2 application…be stayed pending the determination of the appeal in number SA18L of 2006.

   …

   7.The Honourable Justice Carter be removed as judge manager of the further amended form 2 application…and that another judge be so allocated.

   8.       The husband pay the wife’s costs.

7. In order to understand the context of this application a few salient matters should be referred to.

   7.1On 30 April 2004 contested property proceedings between the applicant and the respondent were compromised, orders were made by Carter J and the parties executed a binding financial agreement.

   7.2On 14 December 2004 the wife filed an application pursuant to s 79A of the Family Law Act 1975 (Cth) seeking to set aside the property orders and requesting that the husband be ordered to pay $7,500,000 to her.

   7.3On 30 August 2005 Joske J ordered that there be a discrete hearing in respect of issues contained in the s 79A application, in particular

   (a)whether there had been a miscarriage of justice within the meaning of s 79A(1)(a);

   (b)If yes, should the court, in its discretion vary or set aside the said order; and,

   (c)whether the maintenance agreement entered into between the parties on 30 April 2004 should be set aside pursuant to s 90K(1) or declared not valid neither enforceable nor effective.

   7.4An application for leave to appeal filed by the wife in relation to the order for a discrete hearing was dismissed by the Full Court on 2 December 2005.

   7.5On 31 October 2005 the husband filed an application seeking security for costs of the s 79A proceedings. Orders were made on 17 February 2006 by Carter J that by way of security for the husband’s costs the solicitors for the wife continued to hold in trust certain monies held by them arising out of the sale of some of the parties’ real estate in the course of enforcement proceedings.

   7.6On 17 March 2006 the wife sought leave to appeal against the orders of 17 February 2006.  That appeal was given file number SA18L of 2006.

   7.7On 11 April 2006 Carter J fixed the trial of the wife’s s 79A application to commence on 10 July 2006.

   7.8At a mention hearing before Carter J on 9 June 2006 her Honour refused to entertain an oral application made on behalf of the wife to vacate the hearing date and made the directions for the filing of affidavits earlier referred to which appear to be the subject matter of the application for leave to appeal.

   7.9On 10 July 2006 the s 79A application came on for hearing before Benjamin J. The wife’s solicitor was given leave to withdraw and the matter was then adjourned for hearing on 26 September 2006. The wife’s solicitor was ordered to pay the husband’s costs of and incidental to the adjournment on an indemnity basis.

   7.10Ten days later on 20 July 2006 the wife’s solicitor filed a fresh Notice of Address for Service on behalf of the wife.

   7.11The affidavits which were the subject matter of the orders of Carter J of 9 June 2006 were all filed by 20 July 2006.

   7.12The application for leave to appeal the orders of 17 February 2006 in SA18L of 2006 was deemed abandoned by 26 July 2006.

8. Section 94AA of the Family Law Act provides that a grant of leave is required for an appeal to lie from a prescribed decree.  The Family Law Regulations prescribe interlocutory orders (other than orders in relation to a child welfare matter).

9. Before leave is granted an applicant needs to show that there has been an error of principle and/or that the decision appealed from imposes a substantial injustice to one of the parties (see Rutherford & Rutherford (1991) FLC 92-255, Emamy & Marino (1994) FLC 92-487 and Adam P Brown Male Fashions Pty Ltd v. Philip Morris Inc. (1991) 148 CLR 170).

10. It is patently obvious from the recitation of the history of this matter that the applicant is quite unable to demonstrate any such error or hardship.  The gravamen of the appeal seems to complain about the matter having been set down for trial on a date when there was still pending an application for leave to appeal against an order requiring the applicant’s solicitors not to disburse monies held in their trust account.  The application for leave to appeal against that order has now lapsed.  The orders of 9 June 2006 did not determine the date for trial in any event but merely made directions about the provision of evidentiary material within a certain time frame.  Nothing has been demonstrated in any of the material provided on behalf of the applicant that would lead us to determine that the relief sought in the proposed Notice of Appeal should be granted.  Accordingly this application is dismissed.

11. In his response to the application the respondent sought an order for costs.  As the application has been wholly unsuccessful it seems appropriate that such an order be made.

12. The formal orders of the Court will be:

    (1)That the application for leave to appeal filed 23 June 2006 be dismissed.

    (2)That the applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement as assessed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court.

Associate: 

Date:  27 October 2006