Burt & Merrill

[2023] FedCFamC1A 20

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Burt & Merrill [2023] FedCFamC1A 20

Appeal from:

Merrill & Burt [2018] FamCA 609

Appeal number:

SOA 63 of 2018

File number:

MLC 9912 of 2013

Judgment of:

AUSTIN J

Date of judgment:

2 March 2023

Catchwords:

FAMILY LAW – APPEAL – Property – Application in an Appeal – Slip rule amendment – Where the applicant’s appeal was previously withdrawn without prejudice to his right to seek re-instatement of the appeal – Where those orders were made upon the applicant’s undertaking that an application at first instance would be pursued within seven days, upon which undertaking the applicant defaulted – Where more than three years later the applicant seeks the order be re-crafted in a way which would enable him to unilaterally and unconditionally re-instate the withdrawn appeal at any future time – Where an amendment in the manner the applicant proposes would be unreasonable – Where the applicant refused an immediate re-instatement of the appeal or a confined period of time within which to elect to re-instate it – Application dismissed – No order as to costs.

Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB, s 90SN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Number of paragraphs:

25

Date of hearing:

27 February 2023 & 2 March 2023

Place:

Melbourne

Counsel for the Applicant:

Mr Cain (on 27 February 2023)

Solicitor for the Applicant:

Vasilaras & Co Lawyers

The First Respondent:

Did not participate

Counsel for the Second Respondent:

Mr Eely

Solicitor for the Respondents:

McKean Park

ORDERS

SOA 63 of 2018
MLC 9912 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BURT

Applicant

AND:

MS MERRILL

First Respondent

MR COUPE, AS TRUSTEE OF THE BANKRUPT ESTATE OF MS MERILL

Second Respondent

order made by:	AUSTIN J
DATE OF ORDER:	2 March 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 16 December 2022 is dismissed.

2.The second respondent’s application for costs is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burt & Merrill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. Before the Court is an application to vary an interlocutory order made in September 2019 within the appellate jurisdiction of the Court.

2. The application is dismissed for the reasons which follow.

   History

3. On 10 August 2018, a judge of the Family Court of Australia (as the court was then known) pronounced property settlement orders between the de facto spouses under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) and delivered reasons for those orders following a lengthy trial in 2017.

4. The applicant appealed from the orders by way of Notice of Appeal filed on 7 September 2018, which appeal was subsequently listed for hearing before the Full Court in September 2019.

5. Not long beforehand, in August 2019, the applicant applied to vacate the appeal hearing, either by staying the appeal or allowing it to be withdrawn and later re-instated. The asserted premise for the Court not proceeding to hear the appeal was that, because of materially changed circumstances, it would be more appropriate for the applicant to pursue an application at first instance under s 90SN of the Act to set aside or vary the appealed orders than to proceed with the appeal and apply to adduce further evidence of such changed circumstances in the appeal.

6. In effect, the application was granted. On 3 September 2019, Strickland J made orders in these terms:

   1.Leave be given to the applicant to withdraw appeal no. SOA 63 of 2018 without prejudice to the applicant’s right to seek reinstatement of that appeal.

   2.The listing of appeal no. SOA 63 of 2018 be vacated from the Full Court sittings commencing on Monday 9 September 2019.

7. However, the orders were made upon the condition of the applicant’s undertaking to the Court in these terms:

   UPON NOTING the undertaking made on behalf of the applicant that an application pursuant to s 90SN of the Family Law Act 1975 (Cth) will be filed and served within seven [7] days

8. More than three years later, on 16 December 2022, the applicant filed an Application in an Appeal seeking to modify the order made on 3 September 2019 in these terms:

   1.That Order 1 of the orders made by the Honourable Justice Strickland on 3 September 2019, be amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, so as to delete the words ‘seek reinstatement’ and inserting in lieu the word ‘reinstate’.

   2.The Second Respondent pay the Applicant’s costs of and incidental to the Application in an Appeal.

9. As can be seen, without wanting to yet actually re-instate the withdrawn appeal, the applicant now wants the Court to re-craft the 2019 order in a way which would enable him to unilaterally and unconditionally re-instate the withdrawn appeal at any future time. That is the application which now requires determination.

10. The application, if granted, effectively amounts to the Court ceding control of the prospective appellate proceedings to the applicant, regardless of the manner in which his exercise of discretion to re-instate the appeal will affect the interests of other parties to the appeal. The solitary basis upon which such an extraordinary order is sought is that Strickland J intended to make an order in such terms, but inadvertently did not do so.

11. In support of his application, the applicant relied upon his affidavit filed on 16 December 2022.

12. The first respondent became bankrupt at some undisclosed time in the past after the appeal was filed in 2018, though she was apparently discharged from bankruptcy on 18 February 2023. She did not appear at the hearing of this application.

13. The second respondent is the first respondent’s trustee in bankruptcy (“the trustee”). He was joined by the applicant to the current application and he appeared at the hearing. He opposed the application and relied upon the affidavit of his solicitor filed on 24 February 2023.

    The application for relief

14. The applicant believes it was originally intended that he be given the right to re-instate his 2018 appeal – not merely the right to apply for its re-instatement.

15. The debate between the applicant and the trustee about whether Strickland J inadvertently failed to make the interlocutory order his Honour intended is entirely superfluous because, even if an inadvertent error did occur, there is no obligation upon the Court to now correct the error under the slip rule. Whether the order is corrected pursuant to r 10.13(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is discretionary.

16. An amendment of the order in the manner the applicant proposes would be unreasonable.

17. The caveat to the orders made by Strickland J provided that the applicant would file and serve his application under s 90SN of the Act in the original jurisdiction of the Court within seven days, but he failed to comply with his undertaking do so. The application should have been filed and served by 10 September 2019, but it was not filed until 19 September 2019 and it is not known when it was actually served. Since then there have been interminable delays, though some responsibility for that may be attributable to the Court rather than the applicant. What can be said with certainty from the evidence is that trial directions were made in August 2022, requiring the applicant to file his amended substantive application and supporting affidavit material by October 2022. The applicant failed to comply at all with the procedural directions. The trial was listed to commence on 28 February 2023, but was adjourned until August 2023.

18. Aside from the applicant’s failure to comply with his undertaking to the Court and the delay in finalising the parallel proceedings under s 90SN of the Act, there is a question about the utility of preserving the applicant’s right to re-instate the 2018 appeal, which now seems stale.

19. The orders yet to be made in the fresh s 90SN proceedings will overtake the 2018 orders. If the applicant is content with the result of the fresh proceedings, then no appeal from those orders will be necessary, nor will it be necessary to re-instate the 2018 appeal. On the other hand, if the applicant is dissatisfied with the outcome, he may exercise his right of appeal from the new orders, which then renders the withdrawn appeal against the 2018 orders superfluous.

20. What the applicant could not do is abstain from appealing against the new orders, re-instate the 2018 appeal, adduce as further evidence in the old appeal the same evidence he adduced in the fresh proceedings under s 90SN of the Act, and then expect the Full Court to uphold the appeal by making findings in respect of the further evidence which would contradict findings made by the primary judge at first instance in the fresh proceedings.

21. In any event, amending the 2019 order as the applicant wants would not be the panacea he thinks. Being only an interlocutory order made within the appellate jurisdiction of the Court, it is liable to be discharged or varied by another interlocutory order which is better suited to the current circumstances. It would not be sensible to indefinitely preserve the applicant’s right to re-instate the 2018 appeal, either at his will or upon conditions.

22. Any prejudice the applicant asserts he might suffer from the 2019 order not being amended could be cured by either:

    (a)re-instating the appeal immediately and expecting him to prosecute it without further delay; or

    (b)giving him a confined period of time within which to elect whether or not he does re-instate the appeal.

23. Inexplicably, the applicant refused both those alternatives, which necessarily means his generic claim of prejudice dissipates.

24. The application in the form pressed by the applicant will be dismissed.

    Costs

25. The trustee sought his costs of resisting the application, but the application is dismissed. The application for relief was indeed wholly unsuccessful, but the scope of the dispute was quite confined and could not have reasonably caused the trustee to incur any more than modest party/party costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       2 March 2023