AINSLEY & LAKE
[2016] FamCAFC 253
•24 November 2016
FAMILY COURT OF AUSTRALIA
| AINSLEY & LAKE | [2016] FamCAFC 253 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant failed to provide an adequate explanation for her delay in filing the Notice of Appeal within time – Where the respondent would suffer prejudice if the extension were allowed – Where the property pool is of small compass and the amounts to be pursued on appeal are not of a magnitude that would visit injustice on the applicant if an extension were not granted – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay his costs of the unsuccessful application – Whether circumstances justify an order for costs – Where the applicant was wholly unsuccessful – Where the application was necessitated by the applicant’s failure to comply with timeframes for filing appeals – Costs ordered. |
| Family Law Act 1975 (Cth): ss 90G, 90K(1)(a) Family Law Rules 2004 (Cth): r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Ainsley |
| RESPONDENT: | Mr Lake |
| FILE NUMBER: | WOC | 790 | of | 2014 |
| APPEAL NUMBER: | EA | 166 | of | 2016 |
| DATE DELIVERED: | 24 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 24 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 2132 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Kells |
| COUNSEL FOR THE RESPONDENT: | Mr G. Watkins |
| SOLICITOR FOR THE RESPONDENT: | Rebecca Bailey & Associates |
Orders
The Application in an Appeal filed on 26 September 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application referred to in Order 1 in the amount of $2,500 within six (6) months of the date of these orders.
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 Ainsley & Lake 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 166 of 2016
File Number: WOC 790 of 2014
| Ms Ainsley |
Applicant
And
| Mr Lake |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed 26 September 2016 Ms Ainsley (“the wife”) seeks an extension of time to file a Notice of Appeal against a final order made by Judge Henderson on 26 July 2016. The order under appeal sets aside a financial agreement entered into between the wife and Mr Lake (“the husband”) who is the respondent to this application and any appeal.
In summary, the primary judge set aside the financial agreement pursuant to s 90K(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) on the basis that at the time of signing the agreement the wife failed to disclose approximately $35,000 in superannuation. On the evidence before the primary judge the asset pool was very small, it being the husband’s contention that it was valued in the amount of some $386,000. Findings as to the total value of the property have not yet been made.
It is the husband’s position that the wife’s application be dismissed. However, in the event that the application is allowed, he seeks an order for security for costs in the form of an injunction restraining the wife from selling or further encumbering a real property in New South Wales.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Pursuant to r 22.03, a Notice of Appeal must be filed within 28 days after the date the order appealed from was made.
The principles relating to applications for an extension of time to file an appeal as the solicitor for the wife said today are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether 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 leave. However, the overarching principle is to ensure that injustice is not visited upon either of the parties.
Discussion
The last day the wife had to file a Notice of Appeal as of right was 23 August 2016, being 28 days after the primary judge made the orders which would be the subject of challenge if the appeal proceeded.
In order to determine the question of delay, I record the following brief chronology of events based on the materials filed by the parties in this application:
a)On 15 July 2016 the primary judge conducted a final hearing on the question of the validity of the financial agreement and her Honour reserved judgment;
b)On 26 July 2016 the primary judge delivered oral reasons for judgment and ordered that the Financial Agreement be set aside;
c)On the husband’s evidence, a copy of the orders made on 26 July 2016 was received by his solicitors a few days after the oral judgment was delivered;
d)On 2 August 2016 the wife’s solicitors requested a settled copy of the oral reasons for judgment by way of email to her Honour’s chambers;
e)On 3 August 2016 her Honour’s chambers replied to the wife’s solicitors indicating it would take at least two weeks before the written reasons would be issued to the parties. It is understood that the transcript would need to have been obtained by Auscript, and this is a fairly standard turnaround time;
f)On 23 August 2016, being the last date for filing a Notice of Appeal, the reasons for judgment were distributed to the parties by way of email. The husband also filed an application for costs of the trial;
g)On 24 August 2016 a case management hearing was conducted by Judge Altobelli concerning the husband’s costs application and orders were made for the filing of materials by the parties;
h)On 29 August 2016 the wife’s solicitor requested a copy of the transcript of the hearing before the primary judge, which was unable to be located by Auscript due to technical difficulties at their end;
i)On 16 September 2016 the wife attempted to file her Notice of Appeal out of time by way of email to the Appeals Registry, a copy of which was served on the solicitors for the husband. As should have been anticipated, the notice was not accepted for filing;
j)On 26 September 2016 the wife filed her Application for extension of time and supporting affidavit material, including a draft Notice of Appeal;
k)On 30 September 2016 Judge Altobelli determined not to make any order regarding costs, property settlement or parenting matters pending the determination of this application. His Honour has listed the proceedings for a final hearing over three days in 2018.
The wife’s affidavits filed in support of her application are silent as to the date when she received the orders made by the primary judge. However, as observed earlier, the husband deposes to his solicitors receiving a copy of the orders a few days after the oral judgment was delivered. Thus, I infer the wife’s solicitors also received a copy of the orders at this time and well within the 28 day period. Further, the wife was represented by solicitors and counsel at the hearing and her solicitors were present before the primary judge on the date the orders were made and the oral judgment was delivered. It is odd and indeed surprising that the wife then waited until 16 September 2016, being some three weeks after time to appeal as of right had expired, to attempt to file her Notice of Appeal.
The answer to this is said to be that the wife could not formulate her grounds of appeal and decide whether she had a viable appeal without the written reasons. If this was a case of some complexity, whether it be factual or legal, there may be something to the argument, but that is not the case here. The judgment is confined, the material is confined, and I do not accept that it was not able to be determined based on her Honour’s oral reasons whether or not an appeal would have some prospects of success.
It was open to the wife to file her Notice of Appeal within time on the basis that she would have understood that the effect of the rules is that she had an automatic right to amend the grounds of appeal upon receipt of the settled oral reasons. It is a matter for the wife and those advising her that she chose not to adopt this course.
On balance, the wife’s explanation for the delay is not reasonable.
Of course, the husband contends he would suffer significant prejudice in the event the wife’s application for an extension of time is allowed. In particular, the husband points to the expense the parties have already incurred in these proceedings, where the pool of assets to be divided is small and the issue the wife seeks to agitate in enforcing the financial agreement would allow her to recover approximately $38,000. The prejudice in terms of the stress and cost associated with yet another front of litigation is accepted.
One has a sense that this is litigation that is now being conducted disproportionate to the amounts in dispute and frankly with no sense of commercial reality.
The wife’s draft Notice of Appeal advances two grounds of appeal which she would pursue. She asserts that the primary judge failed to have regard to s 90G of the Act; and her Honour erred in her determination that the financial agreement was obtained by fraud, thereby invoking s 90K(1)(a). It is difficult to see, when the terms of s 90G are considered in their entirety, how, when her Honour had decided that the agreement should be set aside, s 90G had any work to do. In my view, this is a ground which seems to be without foundation. It is the husband’s contention that s 90G was not raised before the primary judge, and that ground would therefore be irrelevant. I think it is irrelevant for different reasons.
Otherwise the challenge is essentially to the materiality of the non-disclosure, and what is said to be inconsistent findings by her Honour in relation to her ultimate conclusion as to fraud. Notwithstanding the careful analysis of her Honour’s findings on that topic, I perceive no inconsistency.
What does seem inconsistent is the argument that her Honour fell into error by finding a non-disclosure of about $35,000 in superannuation was material compared to the assertion that it would occasion an injustice to the wife is she was not allowed to pursue an appeal where the amount in dispute is $38,000.
In my view, the amount to be pursued here on appeal, and when the costs of litigation are taken into account, could not be said to be sufficient to visit an injustice on the wife if the appeal was not permitted to go forward.
Conclusion and costs
When one has regard to the prejudice to the respondent if the application is allowed, the small size of the property pool, the failure of the wife to take steps to file her Notice of Appeal within time and her lack of reasonable explanation for the delay in filing, it is appropriate that the application for an extension of time be dismissed.
The husband seeks that the wife pays his costs of her unsuccessful application for an extension of time. The costs sought calculated on a party-party basis are some $5,500. On my reading of the itemised costs tendered on behalf of the husband, the total sum sought is more than should be ordered. The proper amount, having regard to the confined nature of this hearing, would be a total sum for solicitor and counsel including GST in the amount of $2,500.
But the question becomes whether costs should be ordered in that amount, or, as the wife would have it, the statutory scheme operate whereby the parties each meets their own costs. In my view, there are circumstances which justify an order for costs, and they are simply that the wife has been wholly unsuccessful in relation to an application necessitated by her failure to comply with the timeframes for filing appeals. Either one of those matters would have amounted to justifying the circumstances.
I am also of the view that notwithstanding the wife’s difficult financial circumstances that an order for costs should be made against her in the amount of $2,500. Although I accept that this is going to occasion her some financial difficulty, impecuniosity is not of itself a barrier to an order for costs.
In the event an order for costs is to be made in the amount of $2,500, the wife seeks that she have 12 months within which to pay it. The husband says the appropriate time is six months. I agree with the husband that six months is a reasonable timeframe for the wife to organise her financial affairs within which to pay the amount. Even if it causes the wife difficulty to which I have made reference, the husband should not be expected to wait a year before the costs he has incurred are reimbursed, at least to some degree.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 November 2016.
Associate:
Date: 1 December 2016
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