ORPHEUS & ORPHEUS (SUMMARIES OF ARGUMENT)

[2014] FamCAFC 39

FAMILY COURT OF AUSTRALIA

ORPHEUS & ORPHEUS
(SUMMARIES OF ARGUMENT) [2014] FamCAFC 39

FAMILY LAW – APPEAL – Applications to rely on summaries of argument longer than 10 pages – Rule 22.22(2)(c) of the Family Law Rules (Cth) – Leave not granted.

Family Law Rules 2004 (Cth), r 22.22

APPLICANT: Mr Orpheus

RESPONDENT: Mrs Orpheus

APPEAL NUMBER:	SOA	44	of	2013
FILE NUMBER:	MLC	9641	of	2011

DATE DELIVERED: 7 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Strickland & Ainslie-Wallace JJ

HEARING DATE: 7 March 2014

LOWER COURT JURISDICTION: Federal Circuit Court

LOWER COURT JUDGMENT DATE: 7 June 2013

LOWER COURT MNC: [2013] FCCA 465

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort

SOLICITOR FOR THE APPLICANT: Perisic Lawyers

COUNSEL FOR THE RESPONDENT: Ms Teicher

SOLICITOR FOR THE RESPONDENT: Nicolaides & Associates

Order

1. The applications of counsel for the appellant and the respondent for leave to rely on summaries of argument which do not comply with Rule 22.22(2)(c) of the Family Law Rules 2004 are dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

APPEAL NUMBER: SOA 44 of 2013
FILE NUMBER:        MLC 9641 of 2011

Mr Orpheus

Applicant

And

Mrs Orpheus

Respondent

REASONS FOR JUDGMENT

THACKRAY J

1. Both counsel in the appeal listed today seek leave to rely upon summaries of argument that exceed 10 pages, in circumstances where the Family Law Rules 2004 (Cth) are clear that a summary of argument should not exceed 10 pages.

2. Rule 22.22 relevantly provides:

   22.22 Summary of argument and list of authorities

   (1) Each party must file and serve a summary of argument and a list of authorities to be relied on:

   …

   (2)      For subrule (1), a summary of argument must:

   …

   (c)       not exceed 10 pages; 

3. This is a very important but comparatively straightforward appeal in which there are now but four grounds of appeal.  The judgment of the primary judge extended to only 30 pages of which, I note, 10 were recitations from the reports of the report writer.  Yet the appellant’s counsel, has not only exceeded the 10 page limit but has more than doubled it and the respondent has tripled it. 

4. Whilst both counsel endeavoured to provide some excuses, the best excuse of counsel for the appellant was that he has done it before and got away with it, and the excuse of the respondent was “they did it, so we followed suit”.

5. Neither of those propositions, with the greatest of respect to counsel, carries any weight with me.  In my view, this hearing ought to proceed on the basis that the summaries of argument are to be rejected, which will send a firm sign to counsel in this matter, and in others, that this is a practice to be deprecated and is of no assistance to the Full Court.  Also, in this case, the summaries seem to confuse the argument rather than to assist it.

6. In my view, the matter should proceed on the basis that each counsel will be given one hour to make oral submissions to the Court, with the appellant being given a brief opportunity to respond to the respondent’s oral submissions.   

STRICKLAND J

1. Yes.  I agree with the reasons given by the presiding judge and the proposed order.

AINSLIE-WALLACE J

1. Yes.  I too agree with the reasons and the proposed order.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 March 2014.

Associate: 

Date:  19 March 2014