Abercrombie and O’Brien - [2011] FamCAFC 92

FAMILY COURT OF AUSTRALIA

ABERCROMBIE & O’BRIEN

[2011] FamCAFC 92

FAMILY LAW - APPEAL – Application to extend time to appeal – Where the applicant has not pursued the application despite consent being provided by the respondent – Where nothing to which the applicant has referred the Court enlivens a basis for appellate intervention – Application allowed and appeal dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004

Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-300

APPELLANT:

Mr Abercrombie

RESPONDENT:

Ms O’Brien

APPEAL NUMBER:

114

2010

FILE NUMBER:

CAC

1647

2007

DATE DELIVERED:

4 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

4 April 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 July 2010

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearances

SOLICITOR FOR THE APELLANT:

Mazengarb Barralet Family Lawyers

COUNSEL FOR THE RESPONDENT:

No appearances

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson Family Lawyers

Orders

That the time for filing the Notice of Appeal against orders of FM Baumann of 22 July 2010 be extended to 5pm on 23 August 2010.

That the Notice of Appeal filed on 23 August 2010 is deemed to have been filed in time.

That the Notice of Appeal is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Abercrombie & O’Brien is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

APPEAL NUMBER: EA 114 of 2010
FILE NUMBER: CAC 1647 of 2007

Mr Abercrombie

Appellant

And

Ms O’Brien

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 23 August 2010, Mr Abercrombie filed a Notice of Appeal against orders made by Baumann FM on 22 July 2010 in proceedings between Mr Abercrombie (“the husband”) and Ms O’Brien (“the wife”). On a date which appears to be 1 September 2010, the husband filed an application seeking an extension of time in which to appeal against the learned Federal Magistrate’s orders.
The proceedings were described in that application as involving division of matrimonial property, spousal maintenance and departure from an assessment of child support. The learned Federal Magistrate’s orders of that day are consistent with that description.
In support of the application to extend time, the husband’s attorney, Ms Barralet, swore an affidavit on 26 August 2010. In that affidavit, Ms Barralet deposed to having been instructed to “ascertain any grounds for appeal” against the learned Federal Magistrate’s decision. Ms Barralet deposes to instructing Counsel and receiving advice, in reliance upon which advice a Notice of Appeal was filed.
The Notice of Appeal would appear to have been filed one day out of time. An explanation for the delay was provided by Ms Barralet in her affidavit in which Ms Barralet courageously said, having referred to the Notice of Appeal being filed one day out of time:
The mistake in the filing date was my fault. It was not the fault of my client.
In the circumstances, the issue is not whether an extension of time should be refused by reason of any failure to adequately explain the failure to file within time, it being clear that the Notice of Appeal fortuitously being filed one day late could not prejudice the respondent and is adequately explained. Particularly as there is no appeal from the refusal of an extension of time within which to appeal, save to the High Court, this Court exercises its discretion in relation to applications of this kind cautiously. And, to the extent that it errs in the exercise of a discretion, this Court errs on the side of facilitating appeals being heard and determined on their merits, rather than being dismissed without a determination on the merits, in reliance upon what, as is the case here, is a clearly technical non-compliance which was swiftly rectified and explained.
It is necessary then to look at the procedural history of the matter subsequent to the filing of the application to extend time.
The file reveals that the Appeals Registrar wrote to the parties to the proceedings on 9 September 2010. In the course of so doing, the Appeals Registrar asked whether the respondent consented to the extension of time. So doing was sensible, given the explanation of delay and the fact that the Notice of Appeal was filed out of time by merely one day. There was no reply to that letter.
On 18 November 2010, the Appeals Registrar telephoned and spoke to the appellant’s solicitor inquiring as to whether the husband intended to pursue his application and appeal if time were extended. The solicitors for the husband wrote to the Appeals Registrar on 3 December 2010.
The letter from the attorneys dated 3 December 2010 said, in response to the Appeals Registrar’s inquiry:
We remain specifically uninstructed in relation to the appeal matter.
What that might mean, one can only guess.
The Appeals Registrar wrote again to the attorneys for the husband on 11 March 2011 advising that, as nothing had happened, the application to extend time within which to appeal would be listed for hearing. That in fact happened and the Appeals Registrar, by letter dated 17 March 2011, informed both parties that the matter would be listed before the Court this day for the Court to consider whether to dismiss the appeal for want of prosecution.
Putting to one side for the moment that unless and until the time to appeal is extended there is no appeal, the Appeals Registrar’s letter makes it sufficiently clear that the matter was being listed today with a view to its dismissal.
There has been no appearance by or on behalf of either party to the call of the matter outside the court shortly after 10 am this morning. It is now almost 10.15 am and no one has appeared.
The only other matters which emerge from the court file in relation to the husband’s application to extend time emerge by letter from the respondent’s attorneys to the Appeals Registrar dated 14 January 2011. The substance of that letter was that the attorney then acting for the applicant husband was advised in writing on 28 September 2010 that, sensibly, the respondent’s solicitors consented to the extension of time which the husband needed.
There is a file note in the hand of the Appeals Registrar in which the Appeals Registrar reports being advised by Mr Davey, the respondent’s solicitor, that the husband is now acting for himself. In brackets after that entry, appear the words “is a solicitor.” Whether that is correct or not, this Court cannot tell as no one has filed any Reasons for Judgment of the Federal Magistrate.
Apart from noting that the matter would be listed for dismissal, the file note of 19 January 2011 simply records that Mr Davey, the respondent wife’s solicitor, wished to know when the matter was listed. That was done by the March letter of the Appeals Registrar to which reference was made a short time ago.
Justice Kirby pointed out in the course of a judgment of his in the High Court (see Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-300) that natural justice is the opportunity to be heard. Courts must extend to litigants the opportunity to be heard, but that opportunity is not which continues forever in a vacuum unrelated to the facts and circumstances of the particular case.
In this case, the applicant has done nothing to prosecute his application for an extension of time within which to appeal the decision of the learned Federal Magistrate and, if such extension of time be granted, to appeal that decision. That is particularly significant notwithstanding that the attorneys for the respondent wife, quite sensibly and properly, signified as long ago as 28 September 2010 that they consented to the extension of time which the husband needed.
There has been no explanation for the failure since September 2010 to list the application for an extension of time filed 26 August 2010. That is a period of a little over seven months.
Nothing emerging from the file provides a rational basis for concluding that the learned Federal Magistrate erred in deciding as he did on 22 July 2010.
As is well known from the authorities, there is a presumption that the decision of the trial Judge is correct. The bases upon which a discretionary judgment, such as that which his Honour’s judgment of 22 July 2010 must have been, having regard to the orders which he made, may be successfully appealed, are not in doubt, having been made clear by the High Court some 75 years ago and consistently reiterated from time to time by the High Court in the years since that time.
The Notice of Appeal does not, on its face, raise any matter which, without the provision of the Reasons for Judgment of the Federal Magistrate, could be said to enliven or be likely to enliven appellate intervention, notwithstanding the assertion in Ground 1 that the learned Federal Magistrate made errors which distorted the net asset pool by almost $700,000.
In all the circumstances, the appeal, which has always been opposed, if granted an extension of time, could not result in success on appeal.
Perhaps the only matter of possible distinction between allowing the application extending time and then dismissing the appeal, and dismissing the application, might be thought to relate to the Court’s jurisdiction. There is no doubt that a single judge can hear and determine an application to extend time to appeal whereas, in the absence of a delegation to that effect, a single Judge cannot hear and determine an appeal, if there be one, from a decision of a Federal Magistrate.
On 17 March 2011, the Chief Justice issued a direction pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) delegating the jurisdiction of the Full Court to a single Judge. In those circumstances, there is no jurisdictional impediment to making an order extending the time to appeal and then dismissing the appeal.
The consequences are the same, whichever course is adopted. That is to say if, for whatever reason, the husband does, despite his inertia for seven months, wish to continue to challenge the decision of the learned Federal Magistrate of eight months ago, his recourse would necessarily be by way of special leave application to the High Court.
On balance, the tests probably being identical in the present circumstances, and as the attorneys for the respondent wife have consented to an extension of time and do not appear to have ever withdrawn that consent, and appreciating that probably nothing turns on the distinction, either in principle or in practice, the Court will extend the time to appeal and dismiss the appeal, largely for the reasons which have been given, which are, in essence, that nothing to which the husband has referred this Court enlivens a basis for appellate intervention.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 4 April 2011.

Associate:

Date: 20.04.11