ALLAMAR & BENNY - [2011] FamCAFC 251

FAMILY COURT OF AUSTRALIA

ALLAMAR & BENNY

[2011] FamCAFC 251

FAMILY LAW – APPEAL – Application in an appeal for an extension of time – No merit in the appeal – Application dismissed – Costs awarded in favour of the respondent.

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth), s 79(8), s 94
Family Law Rules 2004, r 1.14, r 22.02, r 22.03

Joshua v Joshua (1997) FLC 92-767

APPLICANT:

Ms Allamar
(As Administratrix of the Estate of Mrs Carver)
(Also known as Carver)

RESPONDENT:

Ms Benny

FILE NUMBER:

PTW

1162

1996

APPEAL NUMBER:

2011

DATE DELIVERED:

18 August 2011

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

18 August 2011

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

6 July 2010

LOWER COURT MNC:

[2010] FCWA 72

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Hills

SOLICITOR FOR THE RESPONDENT:

Hartrey Legal

Orders

The application for leave to appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $2,500 payable within 28 days.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 16L of 2011
File Number: PTW 1162 of 1996

Ms Allamar (As Administratrix of the Estate of Mrs Carver) (also known as Carver)

Applicant

And

Ms Benny

Respondent

REASONS FOR JUDGMENT

The application before the Court today is the Form 21 Application in an Appeal filed on 7 June 2011 by Ms Allamar, in which she seeks an extension of time in which to file an appeal against orders of Martin J made on 6 July 2010. The application therefore was formally filed, and came to the attention of the other parties, the best part of a year after the orders were made.
I accept, however, that the affidavit that Ms Allamar filed in support of her application was sworn on 15 April 2011, and it appears from what Ms Allamar has told the Court today that there must have been some difficulty with the paperwork at the time she endeavoured to present it for filing, as it was not ultimately filed until 7 June 2011.
The background is complicated and, to say the least, unfortunate. I do not propose to set out all of the background, or indeed any significant part of it, because – to the extent it is material – Martin J set out the background in her judgment. I note that in the proposed Notice of Appeal, no issue is taken with her Honour’s findings in relation to the background.
Further evidence concerning the background of the matter is contained in an affidavit sworn by Ms Benny filed on 8 August 2011. However, as Ms Allamar has pointed out in her submissions today, she has not responded formally to that affidavit, and no doubt would seek to take issue with the position that Ms Benny has put forward in her affidavit.
What is apparent, however, is that the parties have been involved in quite horrendous litigation in this and other courts over an extended period of time. These proceedings, giving rise to this application to extend time in which to appeal, have been before the Family Court of Western Australia since 1996.
Put simply, Martin J determined that the Court did not have jurisdiction to deal with the pending application for property settlement after the death of not one but both parties to the marriage. When I refer to “the marriage”, I of course acknowledge there is an issue pending, yet to be determined by the Full Court, in relation to the validity of the marriage. But the outcome of that appeal has no bearing on the question of whether this Court had jurisdiction to deal with property issues relating to a marriage, or a purported marriage, where both parties to that marriage or purported marriage are deceased.
The relevant law and principles dealing with applications for extension of time within which to appeal are well known and established. Section 94 of the Family Law Act 1975 (Cth) provides for appeals to the Family Court from courts other than the Federal Magistrates Court, and that includes therefore the Family Court of Western Australia.
Section 94(1)(a) of the Act provides that an appeal is to be instituted within the time prescribed by the standard rules of court, or within such further time as is allowed in accordance with the rules of court. Sections 94(2D), (2E) and (2F) of the Act are also relevant, they provide as follows:
(2D) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
(2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by the filing of a notice of appeal. Rule 22.03 provides that a notice of appeal must be filed within 28 days after the order appealed from is made. Rule 1.14 deals with the extension of time. It provides:
1.14 Shortening or extension of time
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
The principles relevant to applications for an extension of time within which to appeal were set out by Lindenmayer J in Joshua v Joshua (1997) FLC 92-767, at 84,440 and in the written version of these reasons the relevant passage from his Honour’s judgment will be quoted:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.
For present purposes, it is sufficient to say that the power of the Court to extend the time within which to institute an appeal is a discretionary power, and it is to be exercised when it is shown to the satisfaction of the Court that strict compliance with the relevant rules would work an injustice to the applicant seeking the extension of time.
Lindenmayer J said the first and most important question to be determined is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If it is established that there are substantial issues to be raised on appeal, then other considerations may become relevant to the exercise of the discretion, notably the extent of the delay and the explanation offered for it, any hardship or prejudice flowing to the respondent to the application from the applicant’s delay, which cannot be compensated by cost orders or otherwise, and the desirability in the public interest that there be finality to the litigation.
Dealing with those matters, the first and most important is whether or not the applicant to the proposed appeal has raised a substantial issue, and that in turn relates to questions of whether or not there is, in fact, any possible merit in the proposed appeal. I have had the benefit of reading the judgment of Martin J. It is a comprehensive and clear document that sets out all of the relevant authorities, including importantly comments made by the High Court in relation to the issues presented in this matter. The judgment acknowledges that there has been amendment to the legislation and it deals with other authority, after the amendments, which support the proposition that her Honour ultimately found to be the law, namely that once both parties to a marriage or purported marriage have died, the Court lacks jurisdiction to hear the matter.
That outcome follows from analysis of s 79(8) of the Act, which by the way has an equivalent provision in the Family Court Act 1997 (WA), which deals with parties to a de facto marriage. I make that comment in light of the submission that was made by Ms Allamar about what would be the situation if in fact the parties to this marriage, or the purported marriage, were only living in a de facto marriage relationship.
There is nothing the applicant has put to the Court, either in her affidavit, or in oral submissions today, which satisfies me that there is a substantial issue to be raised on appeal, given there is no merit whatsoever in the propositions of law upon which the applicant seeks to rely in the case she wants to put to the Full Court.
That being the case, it is strictly unnecessary for me to deal with any of the other matters that Lindenmayer J referred to in his judgment. However, for the sake of completeness, I do propose to make some brief observations in relation to those matters.
The explanation that the applicant provides for the delay in bringing this appeal, appeared to be because she considers the orders made by Martin J had, to use her expression, “expired”. This involves a fundamental misapprehension of what her Honour ordered. Her Honour clearly determined that she lacked jurisdiction to hear the property matter then pending before the Court. She therefore dismissed that application. She then, appropriately, discharged injunctions previously made, given that the proceedings were being dismissed. For the sake of completeness, her Honour dismissed any outstanding form 2 applications relating to any property application still pending before the Court. Those were orders 1, 2 and 3 of the orders made on 6 July 2010.
Understandably, given the expense associated with the proceedings, her Honour then proceeded to deal, as is customary, with submissions in relation to cost issues. She directed the respondent to file a form 2 application, presumably seeking an order for costs, together with written submissions in relation to that issue within 21 days, and she then laid down a timetable for the filing of submissions in response and in reply, and then reserved her judgment in relation to the costs issue to a hearing on 2 September 2010.
From what I ascertain from what has been said by Ms Allamar, the respondent to that application apparently failed to file the submissions on time, and may subsequently have sought an extension of time. That does not, in any way, have any impact on the substantive issue that her Honour had determined by the orders made on 6 July 2010. Instead, it merely created an impediment for the respondent to pursue her application for costs. That being the case, the orders in paragraphs 1, 2 and 3 of the orders made on 6 July 2010 remained in full force and effect.
It is clearly the case that Ms Allamar was aggrieved by the decision and, as I understand her position, she then set about trying to challenge the decision by writing letters to various authorities, including the Attorney General, the Chief Judge, and others.
Ms Allamar, as I believe is noted in the respondent’s affidavit, is no novice in these proceedings. She makes herself well aware of relevant procedural provisions, not to mention relevant authorities, and has been involved in litigation now for more than a decade. In my view, she is aware that appeals are to be instituted within 28 days. Were there any doubt about whether she knew what she should be doing, that doubt would be removed by reference to the letter attached to her own affidavit from the Appeals Registrar, dated 31 August 2010, in which the Appeals Registrar indicated that she had already, by letters dated 19 and 24 August 2010, informed Ms Allamar about the procedure necessary for her to appeal the orders made on 6 July 2010.
To put matters beyond doubt, the Appeal Registrar went on to say in her letter, “You will need to institute a fresh appeal against that decision”. Therefore, as of 31 August 2010 at the latest, and clearly earlier than that, Ms Allamar was aware that if she wished to challenge the orders made on 6 July 2010, she was required to institute an appeal.
Ms Allamar has not provided any reasonable or satisfactory explanation as to why she then did nothing further from that time until months later, when she apparently presented to the court the affidavit on which she now relies at the hearing today. In making that observation, I accept that Ms Allamar has been involved in another appeal that was pending at the time, judgment on which is still reserved. I accept also that she has been involved in a wide array of other litigation associated with this matter, and that understandably she may find it difficult to cope with all of that litigation. But, in my now quite extensive experience of this matter, Ms Allamar can accept more than a fair share of the responsibility for that state of affairs by the way in which she chooses to conduct litigation.
It is not a satisfactory excuse to say that being involved in so much litigation prevents her from dealing adequately with one part of it, particularly as the appeal in this matter is a relatively straightforward issue, as is demonstrated by the Notice of Appeal that she has been able to produce for the purposes of this application. I accept that Ms Allamar has indicated that she has been seeking legal advice in relation to this matter. It is notable that in her affidavit, as opposed to what she may have been saying to the Court without the benefit of taking an oath today, there is no indication she has been advised by any competent lawyer that there is any merit whatsoever in the appeal she now wishes to institute before the Court. Therefore, the long delay is not adequately explained.
As to hardship or prejudice involved to the parties; there is no hardship to Ms Allamar in having this application dismissed at this early stage, because it simply avoids the inevitable dismissal of the appeal if she were given leave to file it out of time. On the other hand, I consider there is considerable prejudice to the respondent, who has not been informed of this proposed appeal until almost a year after the making of the orders appealed. She has been involved in considerable litigation, which is obviously very expensive, and must look forward to the time when this agony will come to an end. It is significant that there is at the very least one, and I suspect more, costs order that remains unpaid. And there is no prospect, it would seem from what Ms Allamar herself says, that the respondent would be able to recover any costs order made in relation to the appeal, were it to be instituted.
For all of those reasons, there is no merit at all in this application, and it will be dismissed.

Costs

The application before the Court now is the application of the respondent for costs of today’s proceedings in an amount of $2,500. There is a strong basis for an order for costs being made, given that the applicant was entirely unsuccessful in the proceedings, and as I have said there was no merit in her application at all.
The only relevant factor pointing to the contrary, is the fact that Ms Allamar has indicated that she has a very low income. The Court does not have any further information available to it today concerning the extent of her assets, if any, but proceeds on the basis that it is quite possible that she has limited or no assets.
Whether that is the case or not I do not know, but I am nevertheless more than satisfied that this is an entirely appropriate case for an order for costs to be made against the applicant. These proceedings have been absolutely diabolical for the respondent in numerous respects. Ms Allamar is the author of her own misfortune in relation to so many of the matters that have come before the Court, and the Court should recognise that fact by doing whatever it can to extend to Ms Allamar the message that there will be cost consequences of inappropriate applications being made to the Court.
Questions of enforcement can be dealt with on another occasion. As to the quantum of costs, this hearing today has been lengthy. There was a comprehensive and most professionally put together affidavit setting out the respondent’s position, and I am satisfied that costs of at least $2,500 would have been incurred, and the appropriate order is the one that I now make. That is that the applicant will pay the respondent’s costs, fixed in the sum of $2,500, payable within 28 days.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 18 August 2011.

Associate:

Date: 11 April 2014