ADAIR & ADAIR

[2018] FamCAFC 184

FAMILY COURT OF AUSTRALIA

ADAIR & ADAIR [2018] FamCAFC 184

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed serve and file the appeal books and transcripts on time – Where the applicant sought an extension of seven days from the respondent – Where the respondent refused – Where the appeal was deemed abandoned as per Rule 22.21 of the Family Law Rules (2004) – Where the applicant seeks a reinstatement of the appeal – Where it was found that the appeal has merit – Where there would be no significant prejudice to the respondent – Appeal reinstated – Orders made to extend time for the filling and serving of appeal books, Summary of Arguments and List of Authorities.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPELLANT: Mr Adair

RESPONDENT: Ms Adair

FILE NUMBER: PAC 3350 of 2013

APPEAL NUMBER: EA 60 of 2018

DATE DELIVERED: 18 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 18 September 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 April 2018

LOWER COURT MNC: [2018] FamCA 239

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Jones

SOLICITOR FOR THE RESPONDENT:  Ms Wanschers

Orders

1. The appeal against the orders of Justice Rees made on 18 April 2018 be reinstated.

2. The Appellant file and serve the Appeal Books by 4pm 25 September 2018.

3. The Appellant file and serve the Summary of Argument and List of Authorities by 23 October 2018.

4. The Respondent file and serve the Summary of Argument and List of Authorities by 20 November 2018. 

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 60 of 2018
File Number: PAC 3350 of 2013

Mr Adair

Appellant

And

Ms Adair

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 15 May 2018 Mr Adair (“the appellant”) appealed against property settlement orders made by Rees J on 18 April 2018.  The appeal having been filed, the matter came before an Appeals Registrar on 10 July 2018 who made orders for the preparation of the appeal, including the preparation and service of the appeal books and the obtaining of the relevant transcript of proceedings.  The appellant was ordered to file and serve the appeal books and the transcript by 28 August 2018.  The appeal books were not filed nor was the electronic transcript made available on the ordered date.

2. Because the procedural directions were not complied with, the appeal was deemed abandoned pursuant to Rule 22.21 of the Family Law Rules (2004) (“the Rules”). Thus the appellant was required to seek reinstatement of the appeal to maintain it.

3. On 7 September 2018 an application for reinstatement was brought and supported by an affidavit of the appellant’s solicitor. I note that that application was not served on the other side until the evening before the hearing in which event the solicitor for the respondent was permitted to file in court a response to the application and an affidavit in support of that response.   In the applicants affidavit his solicitor deposed that shortly after the directions were made, he requested provision of the relevant transcripts and was informed of the cost of providing the transcript.  He says that he immediately contacted the appellant who said he was struggling to find the necessary funds, which nevertheless were provided on 17 August 2018.  The solicitor further said that notwithstanding paying for the transcripts to be delivered within 10 days (which would have fitted within the ordered time frame), only one day of the transcript was provided within that time and he was told that the second day would not be available until 4 September 2018. 

4. The solicitor said that on realising that he would not meet the ordered timetable sought consent from the respondent’s solicitor for a seven day extension of time.  That request was refused.  Thus the solicitor sought a reinstatement of the appeal.

5. The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 which case dealt with an extension of time to appeal although the principles have been taken to apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88).

6. The central principle is that such applications ought be allowed where to do otherwise may cause a substantial injustice.

7. The order reinstating an appeal is not automatic but involves the exercise of discretion.  The discretion is given for the sole purpose of enabling the court to do justice between the parties.  In determining whether strict application of the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.  Part of that involves consideration of the merits of the proposed appeal which, it must be accepted may only be gleaned by reference to the documents already filed, and any prejudice that might accrue to the respondent.  It was not argued, nor could it in my view be argued that the appeal was so totally devoid of merit that it ought to be effectively dismissed at this stage by refusing to reinstate the appeal.  I am satisfied that there is sufficient merit in the appeal.

8. Equally, whilst the respondent contended that the respondent was prejudiced by reason of being kept out of the fruits of the judgement in my view the delay which in this case is little more than a month, to the extent that it caused prejudice that prejudice it does not outweigh the other factors. Those factors are whether to strictly apply the rules would work an injustice.

9. It is  important to bear in mind was said in the High Court decision of Jackamarra v Krakouer (1998) 195 CLR 516, Gummow and Hayne JJ said at [33]:

   ... [w]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail.  Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. 

   In this case, I am satisfied that a strict application of the rules would work an injustice on the appellant in circumstances where the appeal was regularly filed and I will thus order the appeal be reinstated. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

18 September 2018.

Associate: 

Date:  18 September 2018