Acland & Grohl

[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chance of success – Where the applicant rejected an offer that costs would not be sought if the application was withdrawn – Where rejection of that offer was unreasonable – Costs ordered in a fixed sum.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 2019, the appeal was discontinued by the lawyers then retained by the applicant.

3. Three years later, on 13 April 2022, the applicant filed an Application in an Appeal seeking leave to appeal out of time from the declaratory order made in September 2018.

4. The Appeal Registrar heard and dismissed the application with costs on 16 May 2022, relevantly making orders in these terms:

   2.The Application in an Appeal filed on behalf of [the applicant] on 13 April 2022 is dismissed.

   3.That by 4.30pm (AEST) on Tuesday, 14 June 2022 the applicant pay the first respondent’s costs of and incidental to the above Application in an Appeal assessed in the sum of $22,800.00.

5. On 6 June 2022, the applicant filed an Application in an Appeal for the review of those two orders made by the Appeal Registrar and sought these orders instead:

   1.That Orders [2] and [3] made by [the Appeal Registrar] dated 16 May 2022 be reviewed and set aside.

   2.That the Application for Adjournment sought by the Applicant at hearing on 10 May 2022 be granted.

   3.That leave be granted for the applicant to file and serve further evidence on the appeal.

   4.That the Application in an Appeal be relisted for hearing at a time and date convenient to this Honourable Court.

6. 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

7. 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.

8. In addition, the applicant relied upon his written submissions contained within the Case Outline document filed for him on 10 May 2022.

9. In rebuttal, the respondent relied upon her affidavits filed on 29 April 2022 and 18 July 2022.

10. The respondent also relied upon the written submissions contained within the Case Outline document filed for her on 9 May 2022.

    The hearing

11. 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.

12. 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

13. 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.

14. 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.

15. 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)

16. The two grounds blandly assert an error, but do not describe its nature. Although the applicant contends the parties’ de facto relationship ended in 2004, there is no error evident in merely finding otherwise. Carew J found the de facto relationship ended in 2004, but found it resumed in 2005 and did not finally end until March 2016. No attempt was made to articulate how her Honour fell into error by so finding, in which event the applicant’s bare assertions were not competent grounds of appeal.

17. On the material adduced, the applicant’s proposed appeal had little, if any, merit. The applicant’s lawyers were impelled to make that concession to the Appeal Registrar (at [53]), but did not then propound any amended draft grounds of appeal in readiness for this hearing and had apparently intended arguing the application on exactly the same draft grounds of appeal, notwithstanding the concession made to the Appeal Registrar.

18. The conclusion about the proposed appeal’s lack of merit is supported by the circumstances in which the applicant’s original appeal ended in an adverse costs order. The applicant’s lawyers filed a Notice of Discontinuance in the appeal shortly before the appeal hearing in April 2019. The Summaries of Argument had been filed by then, the contents of which were the subject of comment by the Full Court when giving reasons for ordering the applicant to pay the respondent’s costs of the discontinued appeal on an indemnity basis. Relevantly, the Full Court said (Aclund & Grohl [2019] FamCAFC 69):

    6.In this appeal, we have had the benefit of written summaries of arguments from both parties on the merits of the appeal and the Court is therefore in a reasonable position to consider them.

    …

    22.I, therefore, consider that the appeal was, to use the words of Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401:

    … an action… commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.

    23.It also falls within the well-recognised category in [Colgate-Palmolive Company v CussonsPty Ltd (1993) 46 FCR 225] of a case where proceedings were needlessly prolonged by the making of groundless contentions. In this case, the final hearing has been delayed by this appeal.

    (Emphasis added)

19. It would have been futile to pursue the appeal, as the applicant apparently had no substantial complaint to agitate. There is a quite separate question about the validity of an application to bring a fresh appeal out of time when the original appeal brought within time was discontinued, which issue the applicant deliberately did not address even though it was squarely raised by the Appeal Registrar (at [55]–[57]) and he was on notice.

20. As an additional consideration, the applicant failed to give an adequate explanation for his very lengthy delay. He deposed to certain reasons for the delay, but none was adequate.

21. The applicant said he did not instruct his former lawyers to discontinue the original appeal, did not realise they had discontinued it without his instructions, and did not realise at the time that the $32,000 he paid to the respondent was in satisfaction of the Full Court’s indemnity costs order. He did not say when he was eventually disabused of his misconceptions about the discontinuance and the payment of the respondent’s costs, which is a significant omission. He asserts he instructed his new lawyers to renew his appeal against the judgment of Carew J, but that was not until after he had the judgment of Riethmuller J read to him in March 2022.

22. Even taking the applicant’s unchallenged evidence at its highest, questions such as these were unanswered: Why did the applicant make no inquiry about the progress of the appeal from Carew J’s orders when it must have been apparent for nearly three years between 2019 and 2021 that the proceedings were still moving towards substantive hearing before another judge? What did the applicant think was happening when he was filing affidavits in readiness for the final hearing before Riethmuller J and then appeared at that trial in November 2021 to contest the division of the parties’ property? Why did he wait and do nothing after that trial until he learned of the outcome of the substantive dispute by the publication of Riethmuller J’s reasons for judgment in March 2022 (the final orders being later made in April 2022)?

23. There is no satisfactory explanation for the elapse of time between discontinuance of the first appeal in April 2019 and the filing of the application to extend time to appeal in April 2022. The absence of any satisfactory explanation was enough to scuttle the application but, as the respondent submitted, an inference is reasonably available that, following the discontinuance of the appeal from Carew J’s orders in April 2019, the applicant refrained from attempting to resurrect the appeal while waiting to see whether or not the result of the substantive dispute in March 2022 was acceptable to him.

    Stay of orders made in March 2022

24. The second order sought by the applicant was in these terms:

    2.That the orders made by Riethmuller J in Grohl & Acland [2022] FedCFamC1F 101 on the 16 March 2022 and thereafter be stayed pending the determination of this Application.

    (As per the original)

25. The application for this order was withdrawn by the applicant’s lawyers before the Appeal Registrar (at [28]).

26. The applicant filed a separate appeal from the orders made by Riethmuller J on 21 April 2022. Any application to stay those orders would have to be made within that separate appeal. The single order made by Riethmuller J on 16 March 2022, contemporaneously with the publication of reasons for judgment, was merely procedural and invited written submissions at the election of the parties. That order ceased to be operable once the final orders were pronounced on 21 April 2022. Hence, an application to stay that order would be futile in even the other appeal, but quite impossible to make in the context of this proposed appeal from orders made by a different judge years before.

    Costs of the interlocutory application

27. The applicant sought an order that the respondent pay his costs of the application for the extension of time within which to appeal, which he has now abandoned. It follows that he also abandons the costs application.

    Adjournment

28. The applicant sought an adjournment of the hearing before the Appeal Registrar, which was refused (at [35]–[39]).

29. In his review application, the applicant sought orders in these terms:

    2.That the Application for Adjournment sought by the Applicant at hearing on 10 May 2022 be granted.

    …

    4.That the Application in an Appeal be relisted for hearing at a time and date convenient to this Honourable Court.

30. The proposed orders were misconceived. The hearing de novo sweeps aside the Appeal Registrar’s decision and requires the determination of the underlying applications afresh. This hearing was listed on a date and at a time convenient to the Court, as the applicant wanted, and he was given plenty of notice of the hearing.

    Further evidence

31. In his review application, the applicant sought another order in these terms:

    3.That leave be granted for the applicant to file and serve further evidence on the appeal.

32. 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

33. The Application in an Appeal filed on 6 June 2022 is dismissed, as the applicant belatedly invited.

34. The orders made by the Appeal Registrar on 16 May 2022 will stand.

35. The respondent sought an order compelling the applicant to pay her costs of and incidental to the review hearing. She should have them.

36. 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.

37. 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)).

38. 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)).

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       21 July 2022