Federal Court of Australia

Maclean v Brylewski [2025] FCA 173

ORDERS

THE COURT ORDERS THAT:

1.    The hearing of the appeal in this proceeding listed on 13 March 2025 be vacated.

2.    The appellant be granted leave to file an amended notice of appeal in the form of the amended notice of appeal that was filed on 3 March 2025.

3.    The appellant’s interlocutory applications dated 14 October 2024, 24 January 2025 and 4 February 2025 be dismissed.

4.    There be no order as to costs in relation to the appellant’s four interlocutory applications dated 14 October 2024, 24 January 2025, 4 February 2025 and 3 March 2025.

5.    The appellant pay the respondents’ costs thrown away by reason of the amendments made to the notice of appeal pursuant to Order 2 above.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOORE J:

1    The appellant, Ms Maclean, has filed four interlocutory applications in this appeal proceeding, dated 14 October 2024, 24 January 2025, 4 February 2025 and 3 March 2025.

2    At the hearing on Friday, 7 March 2025, counsel for Ms Maclean indicated that no relief is pressed in respect of the first three of these applications. In light of that, orders will be made for their dismissal.

3    In that regard, counsel for Ms Maclean identified that, in light of some correspondence that has been received, an issue could arise in relation to a possible application under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees to sell the property in which Ms Maclean is currently residing as joint tenant. However, that threat is not imminent. If the threat becomes manifest prior to the hearing of the appeal, then Ms Maclean may consider whether that warrants bringing some further interlocutory application (noting that it is not immediately apparent what relief would be sought in the context of the present appeal). This contingent possibility is not a reason to keep on foot any current application where no relief is being pressed.

4    The principal issue for determination is the interlocutory application dated 3 March 2025 seeking an order for the adjournment of the hearing of the appeal in this matter, which is currently fixed for hearing on Thursday, 13 March 2025, and also seeking an order for leave to file an amended notice of appeal.

5    The parties to this appeal (other than the trustee) have been engaged in extensive litigation over at least 7 years, which has been the subject of multiple decisions of the Supreme Court of New South Wales and of the New South Wales Court of Appeal, as well as bankruptcy proceedings in this Court.

6    Ms Maclean had, until the week of 10 February 2025, been without any legal representation in connection with this appeal. On 10 February 2025, the Court issued a pro bono referral certificate. On 12 February 2025, Mr Hudson of counsel communicated a willingness to look at the appeal documents on a pro bono basis. On 14 February 2025, Mr Hudson was provided with a referral certificate.

7    In the week or so following his appointment, Mr Hudson sought to obtain the record from the hearing before the Primary Judge. By 26 February 2025, he was not in possession of all of the documents and other materials from that hearing. On 26 February 2025, Mr Hudson received a further 1,112 pages of material from the solicitors for the first and second respondents, together with further material of approximately 340 pages from the Pro Bono Panel. Mr Hudson does not have any solicitor assisting him.

8    Until last Thursday, 6 March 2025, Mr Hudson had not managed to locate the costs agreement or disclosure provided to Ms Maclean by her former solicitors, which may be relevant to the grounds of appeal in the present matter.

9    The evidence is that Mr Hudson:

(a)    does not have sufficient time prior to the hearing to conduct a proper review of the material which he has received;

(b)    does not have access to documents which he needs to consider in connection with the appeal; and

(c)    does not have sufficient time to properly prepare the appeal.

10    In the limited time available, Mr Hudson has prepared an amended notice of appeal. That includes certain grounds from the original notice of appeal. Mr Hudson indicated at the hearing on 7 March 2025 that he was giving further consideration to whether all grounds would be pressed at the appeal, but would need to obtain instructions on those matters. The affidavit of Ms Maclean indicates that she wishes to understand better, and to discuss with Mr Hudson, any proposal to not press grounds in her original Notice of Appeal prepared without the benefit of legal representation. There is an obvious benefit for the efficient conduct of the appeal in Mr Hudson having a proper opportunity to consider, and obtain instructions on, which grounds of appeal will be pressed at the hearing.

11    It is tolerably clear from the evidence that Mr Hudson needs more time to prepare for the appeal. I conclude that it is in the interests of the proper representation of Ms Maclean and the orderly conduct of the appeal that Mr Hudson have more time than is available between now and this Thursday to prepare for the appeal.

12    When asked to identify the prejudice that the first and second respondents would suffer from any delay at the hearing on Friday, the solicitor for the first and second respondents, Mr Balasubramanian, pointed to two matters. First, it was asserted that proceedings in the Supreme Court of New South Wales are stalled pending resolution of the bankruptcy proceeding in the Federal Court. There was no evidence of that matter before me, or of precisely what impact that might have on the first and second respondents. It was presented at a somewhat general level as an asserted delay in the conduct of those proceedings. Secondly, it was said that the first and second respondents are continuing to incur expenses (such as rates) in relation to the relevant property which cannot be rented or sold. Although that fact was identified in evidence, there was no evidence of the quantum of those expenses.

13    The first and second respondents also rely on Ms Maclean’s delay in seeking pro bono assistance, which they assert is causative of the late application to adjourn the hearing of the appeal.

14    Ultimately, after some discussion, the position adopted by the solicitor for the first and second respondents at the hearing was that if the matter was adjourned until May (rather than to the August Full Court sittings), then the first and second respondents would not oppose the adjournment. As I cannot be certain that the adjournment would be only until May, I will not simply dispose of the matter on that basis, but I take it into account in my consideration (given that it is likely that that will occur).

15    I conclude that the slightly diffuse prejudice identified, and any potential delay in seeking pro bono assistance, is significantly outweighed by the interests of justice in there being sufficient time for counsel for Ms Maclean to prepare for the hearing and to have an opportunity to consider, and obtain instructions on, which grounds are to be pressed.

16    On the question of amendment, the proposed amended notice of appeal has the benefit of being formulated with the assistance of counsel. It should be permitted. As it transpires, Ms Maclean managed to file the amended notice of appeal in the Registry without leave, but I grant her leave to do so.

17    On the question of costs, Ms Maclean has succeeded in obtaining the relief she seeks on her interlocutory application dated 3 March 2025, but her other three interlocutory applications have been dismissed. Rather than making costs orders on each application, which is likely to lead to further debates about which costs are payable by which party (for example, the costs of the interlocutory hearing on 7 March 2025), I simply order that there be no order as to costs on the applications.

Associate:

Dated:    10 March 2025