Acland & Grohl

Case [2022] FedCFamC1A 112

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Acland & Grohl [2022] FedCFamC1A 112

Appeal from: Grohl & Acland [2018] FamCA 732
Appeal number(s): NAA 68 of 2022
File number(s): WOC 692 of 2016
Judgment of: AUSTIN J
Date of judgment: 21 July 2022
Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Review of decision – Where the applicant seeks review of the dismissal of Application in an Appeal seeking leave to appeal out of time – Where the evening before the hearing the applicant confirmed he would invite the dismissal of his application – Where the application and proposed orders were misconceived – Application dismissed – Costs – Where the respondent sought costs on an indemnity basis – Where the application demonstrably lacked merit and had no realistic chance of success – Where the applicant rejected an offer that costs would not be sought if the application was withdrawn – Where rejection of that offer was unreasonable – Costs ordered in a fixed sum.
Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 117
Cases cited: Aclund & Grohl [2019] FamCAFC 69
Number of paragraphs: 38
Date of hearing: 21 July 2022
Place: Newcastle (via video link)
Counsel for the Applicant: Mr Eardley
Solicitor for the Applicant: S & R Lawyers Pty Ltd
Counsel for the First Respondent: Ms Tabbernor
Solicitor for the First Respondent: Sydney Family Law Specialists
The Second Respondent: Did not participate

ORDERS

NAA 68 of 2022
WOC 692 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ACLAND

Applicant
AND:

MS GROHL

First Respondent

MS LIVINGSTONE

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 JULY 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 6 June 2022 is dismissed.

2.The applicant shall pay the respondent’s costs of and incidental to the review application in the fixed sum of $10,450.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. In September 2018, Carew J made an order under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) declaring that the applicant and the respondent were in a de facto relationship for two confined periods, with their relationship finally ending on 6 March 2016.

  2. The applicant appealed from the order within time in October 2018 but, following numerous amendments of the appeal, on 12 April…

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Details
AGLC
Acland & Grohl [2022] FedCFamC1A 112
Case
[2022] FedCFamC1A 112
Decision Date

CaseChat Overview and Summary

The case before the court was an appeal by Mr Acland against the dismissal of his application seeking to extend the time to appeal from a decision made in September 2018 by Carew J. The dispute involved a challenge to a declaration that the parties were formerly in a de facto relationship. The matter was heard in the Federal Circuit and Family Court of Australia, Appellate Jurisdiction, by Austin J. The legal issues that the court had to decide included whether the applicant had a valid basis for extending the time to appeal and whether the respondent should be awarded costs on an indemnity basis.

The court found that the application for an extension of time to appeal was misconceived and lacked merit. The applicant had confirmed the day before the hearing that he would invite the dismissal of his application. Furthermore, the applicant had failed to provide a proposed draft Notice of Appeal, and most of the proposed grounds of appeal were irrelevant to the appeal from the September 2018 order. The court held that the application for an extension of time to appeal was entirely without merit and had no realistic chance of success.

The court dismissed the application for an extension of time to appeal and ordered the applicant to pay the respondent's costs of and incidental to the review application in a fixed sum of $10,450. The court found that the applicant had unreasonably rejected an offer by the respondent not to seek costs if the review application was withdrawn. The court held that the applicant should have known that the review application had no realistic chance of success and that the respondent was put to unnecessary expense in defending the orders made by the Appeal Registrar.

The final orders of the court were that the application for an extension of time to appeal filed on 6 June 2022 is dismissed, and the applicant shall pay the respondent's costs of and incidental to the review application in the fixed sum of $10,450. The form of the order is subject to entry in the Court's records, and any minor typographical or grammatical errors may be subject to review or variation.

Orders

Orders of the court

NAA 68 of 2022

WOC 692 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ACLAND

Applicant

AND:

MS GROHL

First Respondent

MS LIVINGSTONE

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

21 JULY 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 6 June 2022 is dismissed.

2. The applicant shall pay the respondent’s costs of and incidental to the review application in the fixed sum of $10,450.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant’s objective was to challenge the September 2018 declaration that the parties were formerly in a de facto relationship for the stipulated periods, but it is important to observe that events have moved on. With the subject declaration intact and jurisdiction under Pt VIIIAB of the Act thereby established, the consequential property settlement proceedings between the parties were heard by Riethmuller J in November 2021 and determined by orders made in April 2022. The applicant has separately appealed from those orders.Evidence and submissions To prosecute the review of the underlying application to extend time to appeal from the order made in September 2018, the applicant relied upon:(a)the affidavit of his solicitor, filed on 13 April 2022;(b)another affidavit of his solicitor, filed on 10 May 2022; and(c)his affidavit filed on 6 June 2022. In addition, the applicant relied upon his written submissions contained within the Case Outline document filed for him on 10 May 2022. In rebuttal, the respondent relied upon her affidavits filed on 29 April 2022 and 18 July 2022. The respondent also relied upon the written submissions contained within the Case Outline document filed for her on 9 May 2022.The hearing After office hours on the evening before the review application was listed for hearing, the applicant’s lawyers sent an email to the Appeal Registrar confirming that he would invite the dismissal of his application at the hearing. At about the same time, the respondent filed written submissions explaining why the application should be dismissed and foreshadowing an application for costs. In order to satisfactorily adjudicate the costs application it is necessary to advert to how the review application, conducted by de novo hearing, was always hampered by lack of merit.Extension of time to appeal the order made in September 2018 The principal order sought by the applicant was drafted in these terms:1.That the Court grant leave to the [applicant] to extend the time to file a notice of appeal in the matter of Grohl v Acland [2018] FamCA 732 (pseudonym for this matter) until the filing of the notice of appeal or such other time as considered appropriate by the Court in the circumstances. Any extension of time to appeal is pointless if the ostensible merit of the proposed appeal is lacking. The applicant neither filed nor tendered any proposed draft Notice of Appeal, but instead pleaded the proposed grounds of appeal in the Case Outline document filed on 10 May 2022. There were 11 grounds of appeal, nine of which asserted error by Riethmuller J in April 2022 and were therefore entirely irrelevant to this proposed appeal from the order made by Carew J in September 2018. The two residual proposed grounds of appeal were:1.That in the Court below Carew J erred in Grohl v Acland [2018] FamCA 732 (pseudonym for this matter) in finding and making a declaration pursuant to s.90RD of the Family Law Act 1975 (Cth) that the defacto relationship ended between the Applicant and the Respondent on the 6 March 2016 and that the Court should have found and declared that the defacto relationship ended in or about 2004.2.Alternatively, that the defacto relationship ended on a date earlier than the 6 March 2016.(As per the original)

Decision

Reasons for decision

In the absence of any appeal from the orders made by Carew J in September 2018, there could be no opportunity to adduce further evidence. Conclusion and costs The Application in an Appeal filed on 6 June 2022 is dismissed, as the applicant belatedly invited. The orders made by the Appeal Registrar on 16 May 2022 will stand. The respondent sought an order compelling the applicant to pay her costs of and incidental to the review hearing. She should have them. The respondent sought her costs on an indemnity basis in the sum of $10,450. The applicant’s counsel did not eventually take issue with the application, but understandably contended he did not have instructions to consent to such an order. The applicant’s prosecution of the review application until the eve of the hearing was entirely misconceived as it demonstrably lacked merit (s 117(2A)(c)). Properly advised, the applicant should have known the review application had no realistic chance of success. The respondent was unreasonably put to the expense of defending the orders sensibly made and explained by the reasons of the Appeal Registrar. On or about 12 July 2022, the respondent offered to not seek costs if the review application was withdrawn by 14 July 2022. It was not. Rejection of that offer was unreasonable (s 117(2A)(f)). It was not submitted that the applicant’s financial circumstances militate against such a costs order. He privately retained lawyers to prepare and prosecute the application, from which it may be imputed he has sufficient financial resources to meet their legal costs and disbursements (s 117(2A)(a)). Neither party was legally-aided (s 117(2A)(b)).

Ratio Decidendi

Legal Principle Established

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