Transcript Sticker-Shock Avoided: Court Steps In to Obtain the Transcript So an Unrepresented Appellant Can Actually Run the Appeal

In Hong & Lai [2026] FedCFamC1A 28 (Riethmuller J, 4 March 2026), the Appellate Division dealt with a practical barrier that routinely kills appeals before they start: the cost of transcripts. Although r 13.19(4) ordinarily requires an appellant to file and serve the transcript, the Court held this was one of the exceptional cases where it was in the interests of justice for the Court itself to obtain the missing day’s transcript and provide it to both parties—relieving the self-represented appellant from an expense of over $2,300 for a single day.

🧩 Facts and Issues

Facts: The appellant brought a de facto property application. The final hearing ran over two days (25 September 2025 and 4 December 2025). By the second day the appellant was unrepresented, despite earlier legal-aid assistance connected to s 102NA (cross-examination restrictions), and the hearing proceeded with the appellant unable to personally cross-examine the respondent. The primary judge dismissed the property application on limitation grounds (relationship found to have ended in 2011; no extension under s 44(6)).

After the Notice of Appeal was filed, a registrar made appeal preparation orders. Importantly, the National Appeal Registry already had the transcript for day 1, but the appellant was ordered to obtain day 2 by 27 February 2026. The appellant then filed an Application in an Appeal seeking either:

• the requirement to obtain/file the transcript be dispensed with; or
• the Court provide the transcript.

Issues (the informative “how-to” point of the decision):

1. Is the day-2 transcript actually necessary to determine the appeal issues?
2. If it is necessary, should the Court dispense with the appellant’s obligation to file it under the Rules and instead obtain it itself (and why would that ever happen)?

⚖️ Applicable Law – Legislation, Regulations, Rules

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

• r 13.19(4) – transcript requirement in appeal preparation (the default rule the appellant was facing).
• The Court also noted it has power to dispense with Rules requirements (including transcript obligations).

Family Law Act 1975 (Cth)

• s 44(6) – extension of time point central to the appealed decision.
• s 102NA – cross-examination restriction underpinning the procedural fairness concern.

Legal Aid Commission Act 1979 (NSW)

• s 57 – mandatory adjournment provision in certain “legal aid review pending” circumstances (raised as potentially relevant and possibly clarified by the transcript).

📌 Precedents Relied On

The judgment is highly practical because it collects the governing principles on court-provided transcripts:

• Forbes & Bream – the Court has, from time to time, provided transcripts where it is demonstrably in the interests of justice, but this is assumed/exercised only in exceptional cases; and the Court is not funded to routinely supply transcripts.
• Sampson & Hartnett – sets out factors relevant to whether the Court should provide a transcript (necessity, cost, capacity to pay, proportionality, prima facie merits, etc).
• Marsters & Radcliffe – Riethmuller J had recently set out the above principles (and applied them again here).
• Webster v Lampard – cited for caution where disputed facts and procedural fairness are in play (supporting why transcript clarity can matter to whether the appellant was deprived of a fair opportunity).

🧠 Analysis

Issue

Whether the appellant should be required to personally pay for and file the transcript of 4 December 2025, or whether the Court should relieve him of that obligation and obtain/provide the transcript itself—given the appeal issues arguably turn on what occurred on that day.

Rule

1. Default position: Under r 13.19(4), an appellant must file and serve the transcript required for the appeal.
2. But the Court can dispense with Rules in an appropriate case and can also, in truly exceptional circumstances, provide transcript where it is in the interests of justice (Forbes & Bream; supervisory/incidental powers).
3. The Sampson & Hartnett factors guide the discretion: is the transcript necessary, what does it cost, can the applicant afford it, proportionality, prima facie merits, and whether it can be left to the appeal hearing.

Application

• Necessity (not a “nice-to-have”): The appellant identified the early part of the day-2 hearing as relevant to his grounds—especially his claimed adjournment request and the legal aid review issue (including potential application of s 57). The Court observed it was unclear whether these matters were apparent from argument without seeing the transcript.
• Cost / capacity to pay: The quote for the single day transcript was in excess of $2,300, and the appellant was a concession card holder on social security without savings, with only modest equity not capable of quick realisation. On his evidence, paying for transcript would likely prevent him pursuing the appeal at all.
• Proportionality: The judge noted that, as a self-represented litigant, the transcript was effectively the only significant cost he had to incur—so it was a “gateway cost” that could shut the appeal down.
• Prima facie merit / “real review”: The Court considered the appellant had arguable grounds, including potential procedural fairness issues arising from the combined effect of lack of representation and s 102NA (preventing personal cross-examination in a case where cross-examination of the respondent mattered). That made a reliable record of what happened on day 2 important to ensure a real review on appeal.
• A key practical detail that saved money: The National Appeal Registry already had the transcript for day 1; the problem was only day 2. Rather than dispensing with transcript altogether (which would undermine the appeal’s proper determination), the Court took a middle path: dispense with the appellant’s obligation to provide it and instead order the Court to obtain and provide it to both parties.

Conclusion

The Court made orders:

• dispensing with the r 13.19(4) requirement for the applicant to file/serve transcript (and discharging prior registrar orders to that extent);
• directing the Court to obtain and provide the day-2 transcript to both parties; and
• dismissing the remainder of the application, with no costs order.

🧠 Why This Decision Is So Informative (the “transcript hack” for self-reps)

This is a rare but extremely useful procedural lesson:

• The Court did not say “transcripts don’t matter.” It accepted the transcript may be necessary to decide the appeal properly (especially where procedural fairness is alleged).
• What it did do was recognise that strict application of the rule would operate as a financial gatekeeping device—and in an exceptional case, the Court can remove that barrier by obtaining the transcript itself.
• The decision shows the kind of evidence that helps: a quote, clear evidence of means, why the transcript is necessary to particular grounds, and an outline showing the appeal is arguable.

Net effect: the appellant avoided a cost that could easily run into thousands (and sometimes far more in longer hearings), without compromising the Court’s ability to conduct a meaningful appeal.