Finighan v Zuill

• Jurisdiction: Bermuda
• Judge: Clarke P,Smellie JA,Kawaley JA
• Judgment Date: 27 June 2024
• Docket Number: Civil Appeal 2022 No 35
• Court: Court of Appeal (Bermuda)

Between:

Gareth Finighan

Appellant

and

Katherine Margaret Lilla Zuill

Respondent

2024 Bda L.R. 39

Before: Clarke P; Smellie JA; Kawaley JA

Civil Appeal 2022 No 35

In The Court of Appeal for Bermuda

Family law — Remote hearing of ancillary relief application — Order made in absence of respondent — Failure of appellant to participate in hearing by other means following failure of computer — Whether Judge entitled to proceed

Appellant in person

Mr A Richards for the Respondent

JUDGMENT of Kawaley JA

Background

1. On 28 March 2022, Stoneham J, at a hearing convened by video-link, dismissed all claims of the respective parties against each other for ancillary relief (the “Order”). The recitals to the Order recorded that:

• (a) the Respondent attended the hearing via the link provided and indicated that his camera was not working. The Court indicated video participation was required and adjourned for him to attempt to fix the problem;

• (b) the hearing resumed and the Appellant called the Court to advise that neither the microphone nor video on his computer were working;

• (c) the Respondent declined to avail himself of the opportunity to attend the Court or the Petitioner's attorneys' office to participate in the hearing;

• (d) the Court proceeded in the absence of the Respondent.

2. The final draft of the Order was filed in Court on 30 June 2022 and was perfected on or about 1 July 2022. By Notice of Appeal dated 12 August 2022, the Appellant filed a Notice of Appeal challenging both the merits of the Order and the fairness of the Court's decision to proceed.

3. On 19 June 2024, this Court invited the parties to address the fair hearing ground alone because:

• (a) if that ground succeeded, the matter would have to be remitted to the Supreme Court for rehearing; and

• (b) if that ground did not succeed, the half-day fixed for the appeal hearing was inadequate time to address the merits of the appeal.

4. Having heard the Appellant, appearing in person, and counsel for the Respondent, the Court determined that the complaint that the Supreme Court ought to have done more to ensure the Petitioner's attendance before making the Order lacked merit and must be dismissed. The further issue whether, based on the material before the Judge, she erred in making the Order in question, was adjourned to be heard (based on the material which was before the Court on 28 March 2022) at the next Session.

5. These are the reasons for this Court's decision to...