Applegate and Applegate
[2013] FamCAFC 82
FAMILY COURT OF AUSTRALIA
| APPLEGATE & APPLEGATE | [2013] FamCAFC 82 |
FAMILY LAW – APPEAL – PROCEDURE – Application to extend time to file Notice of Appeal – Where the husband seeks leave to appeal from a decision for property settlement proceedings to be heard undefended and orders dismissing a subsequent application for an adjournment – Where no order was drawn up or issued to the parties by the Court following the decision to list the matter to proceed undefended if the husband failed to appear at the next hearing – Where the wife’s solicitor informed the husband of the decision as required by the Federal Magistrate – Where the husband engaged solicitors who appeared on his behalf at the hearing – Where the solicitors for the husband made an oral application for an adjournment, which the Federal Magistrate refused – Where the delay in bringing the application for leave to appeal out of time is short and explained – Where the draft grounds of appeal raise real issues for consideration about procedural fairness in this case – Where there is significant prejudice to the wife, which may be partially compensated by an order for costs – Application allowed, husband to pay the wife’s costs of and incidental to the application.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Applegate |
| RESPONDENT: | Ms Applegate |
| FILE NUMBER: | TVC 454 of 2011 |
| APPEAL NUMBER: | NA 21 of 2013 |
| DATE DELIVERED: | 23 May 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 May 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 8 February 2013 28 November 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 144 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Barron & Allen Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows |
| SOLICITOR FOR THE RESPONDENT: | SR Wallace & Wallace Lawyers |
Orders
The application in an appeal filed on 18 April 2013 be allowed.
The time for the husband to file a Notice of Appeal out of time be extended to 13 June 2013.
The husband pay the wife’s costs of and incidental to this application to be assessed. Such costs be deducted from the husband’s share of the property settlement payable to the wife, or be payable to the wife on or before
31 August 2013, whichever be the earlier.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Applegate & Applegate 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 BRISBANE |
Appeal Number: NA 21 of 2013
File Number: TVC 454 of 2011
| Mr Applegate |
Appellant
And
| Ms Applegate |
Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time to file a Notice of Appeal against a decision made on 28 November 2012 and orders made on 8 February 2013 by Federal Magistrate Coker (as His Honour then was). The applicant is the husband in property proceedings not yet completed in the Federal Circuit Court (formerly the Federal Magistrates Court).
On 28 November 2012 a direction was made that the matter be listed to proceed as an undefended hearing on 5 February 2013. It is apparent that no order was formally recorded or distributed to the parties. The transcript records that the wife’s solicitors were requested to “forward [the husband] notice” of the matter being listed as undefended and that if he did not appear on
5 February 2013 the matter would be dealt with in that manner.
On 21 December 2012 the solicitors for the wife sent a letter to the husband with such information.
The orders made on 8 February 2013 followed a hearing on 5 February 2013.
A solicitor appeared for the husband and made an oral application for an adjournment. The Federal Magistrate dismissed the application and required the wife to file written submissions in relation to the undefended hearing within 21 days. The reasons for judgment for those orders were delivered on
22 February 2013. There has been no stay application filed against the orders sought to be appealed from.
The husband is represented by solicitors who filed a Notice of Address for Service in the property proceedings on 4 February 2013. The wife is also represented. The husband appears to have been unrepresented in the property proceedings between the period 23 August 2012 and 4 February 2013.
On 15 March 2013 the husband’s solicitors attempted to file a Notice of Appeal. As the 28 day period for filing a Notice of Appeal in accordance with the Family Law Rules 2004 (“the Rules”) had lapsed (by 7 days), the Regional Appeals Registrar returned the documents to the solicitors and advised of the procedure for filing an application for an extension of time.
The application for an extension of time was subsequently filed on
18 April 2013. A supporting affidavit sworn by the husband’s solicitor was also filed on that day. The application in respect of the 5 February 2013 orders is therefore brought approximately six weeks out of time.
The husband also seeks to appeal from the decision of 28 November 2012. The application for an extension of time in respect of that decision is therefore brought four and a half months out of time.
Both parties filed an outline of argument and extensive affidavits in this application. Much of the content of these documents focussed on arguing the substantive appeal itself and unfortunately descended to criticism of legal practitioners. The issue for my determination in this application is confined to whether or not the husband should be granted an extension of time in which to bring his appeal. Consideration of the prospects of that appeal is relevant to the application but not determinative.
History of the Proceedings
The Federal Magistrate’s reasons for judgment delivered on 22 February 2013 canvass the procedural history of the property proceedings.
The wife filed an initiating application for property settlement orders in May 2011. The husband filed a Notice of Address for Service in June 2011. Then in August 2011 he filed a response, financial statement and affidavit.
In September 2011 consent directions were made requiring the parties to make financial disclosure within 28 days, authorising the parties’ solicitors to liaise with accountants in relation to a partnership, and to participate in a private mediation within four months of the orders.
Orders made on 14 May 2012 provided for a two day hearing on a date to be fixed. Provision was made for procedural arrangements in preparation for the trial. The husband was represented at the time the orders were made.
The orders also recorded a notation that steps were being taken for the parties to participate in a mediation, and that there may be an application made for the appointment of a case guardian for the husband.
On 23 August 2012 the husband’s solicitors withdrew as his lawyers. The husband’s address noted by the lawyers on the Notice to Withdraw was B Street in Suburb C, Queensland. It was to this address (and also the address of the husband’s mother) that the solicitor for the wife wrote on 21 December 2012 advising that the property proceedings may be heard on an undefended basis.
On 25 September 2012 the Registry forwarded correspondence to the husband at that address. The correspondence advised that the matter had been listed at a callover to be conducted on 28 November 2012 at Townsville. The letter stated “His Honour will…be holding a Callover of the matters awaiting trial dates so that they can be given their required priority.”
On 27 November 2012 the husband sent a facsimile to the Court, which included a copy of his driver’s licence which noted a different address: S Street, in Suburb T, Queensland. The facsimile also included a medical certificate indicating the husband was not fit for court from 27 November 2012 until
31 December 2012.
The husband also attached to the facsimile a statement suggesting unsuccessful attempts to negotiate with the wife’s solicitors and expressing dissatisfaction with the Federal Magistrates Court.
The transcript of proceedings reveals that there was no appearance by or on behalf of the husband at the hearing on 28 November 2012. The hearing appears to have lasted a very short time. It appears His Honour was aware of the correspondence sent by the husband. The judge understandably said that he had “no idea what they mean[t]”.
The wife’s solicitor, Mr Bailey, urged that the matter be listed for trial on the basis that there had been two previous attempts to arrange a mediation which had failed. The wife’s solicitor said the husband’s financial position was unclear, that the principal assets of the relationship were two properties worth approximately a million dollars (subject to a mortgage), and that the solicitors were having great difficulty in “making any kind of progress” with the husband at all. Reference was made to correspondence sent by the wife’s solicitor to the husband by registered post, returned weeks later to the sender.
No formal order was drawn up nor issued. It is as well therefore to set out the part of the transcript where His Honour makes the decision about which there is complaint:
HIS HONOUR: …If there has been no cooperation in relation to the matter, is it appropriate that I perhaps take steps to list the matter as an undefended hearing, and then if there is no participation or involvement by [the husband], at least we can try and deal with the matter.
MR BAILEY:Yes, certainly, your Honour.
HIS HONOUR: All right…What I will direct is that this matter be listed to proceed as an undefended hearing at 9.30am on 5 February 2013. I will further direct that the applicant file, but not necessarily serve, any further material updating the position in relation to proceedings by 4pm on 22 January 2013, and that the matter be listed, as I say, as an undefended hearing for 9.30am on 5 February 2013. And I would ask, Mr Bailey, if you be so kind as to forward to the respondent notice of the fact that the matter is listed as an undefended hearing and if there’s no appearance that it will be deal with on that day. And if you could simply have a copy of the correspondence and any proof of its forwarding for me so as to enable me to make the necessary findings as to notice being given.
MR BAILEY:Thank you, your Honour.
As mentioned, by the letter dated 21 December 2012, the solicitor for the wife wrote to the husband giving him the notice as required by His Honour.
On 24 January 2013, two days after the 22 January 2013 timeline set by His Honour, the wife filed an amended initiating application and affidavit.
The husband’s current solicitors then became involved on 30 January 2013.
On 4 February 2013 they filed a Notice of Address for Service and on
5 February 2013 appeared on his behalf and sought an adjournment. At the hearing leave was granted to file an affidavit sworn by the husband’s solicitor, in which the solicitor deposed to instructions from the husband that he was residing in Brisbane while seeking specialist rehabilitation and treatment for a serious medical condition. The husband had instructed the solicitor that after a month of further recuperation he intended to give his full attention to the outstanding legal proceedings.
Two medical certificates were attached to the affidavit. The first stated the husband would be unfit for court from 31 January 2013 to 17 March inclusive. It said the husband was “seeing multiple specialists and awaiting various investigations and possible surgery”. Another medical certificate addressed to Centrelink made reference to a diagnosis relating to osteoarthritis hip and knee and chronic lung conditions.
As there was no order in relation to the proceedings being heard on an undefended basis it seems that the solicitors for the husband were uncertain about the stage the matter had reached.
The Federal Magistrate dismissed the husband’s application for an adjournment and ordered the wife to file submissions in relation to the undefended hearing of the property settlement proceedings which His Honour determined he would finalise in chambers. Counsel for the wife explained that this decision had not yet been delivered.
Relevant Principles
The principles governing extensions of time in procedural matters are well established. In Clivery & Conway [2007] FamCA 1435 the well-known principles in Gallo v Dawson (1990) 93 ALR 479 were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Explanation for the Delay
The affidavit in support of the husband’s application is sworn by his solicitor. The solicitor seeks to explain the delay in filing a Notice of Appeal, and deposes to a chronology of events that suggest delay due to confusion about the status of the proceedings and the relevance of the 28 November 2012 orders.
The solicitors first consulted with the husband on 30 January 2013. The husband advised that the property proceedings were set down for a trial on
5 February 2013.
On 31 January 2013 the solicitors advised the husband they were prepared to appear for him at the trial and seek an adjournment. The solicitors wrote to the respondent’s solicitors seeking advice as to the nature and details of the trial. The solicitor’s responded that day advising that the matter was listed for an undefended trial. The husband’s solicitors also wrote to his former solicitors seeking the file.
On 4 February 2013 the husband’s solicitors filed a Notice of Address for Service. The solicitor states at that time the firm and the husband were under the “(mis)apprehension that the Appellant was participating in a contested hearing by trial”. The solicitor attended the hearing on 5 February 2013 and made an oral application for an adjournment.
After receiving the reasons for judgment dismissing the adjournment application, the solicitor deposes that the husband instructed him to prepare and file an appeal against the orders. Following further client instructions and “enquiries and investigations”, the solicitor says it became apparent that the order made on 28 November 2012 may have been the operative order that should properly be the subject and focus of the appeal.
The solicitor deposes to having inspected the Court file on 6 March 2013 at the Townsville Registry. He observed that: an order flowing from the hearing on
28 November 2012 was never perfected; a handwritten notation on the cover of the file near the 28 November 2012 date recorded “Order-Not Drawn Up”; there was no application filed and served on the husband seeking an order or direction for an undefended hearing; and there was no affidavit filed by the wife’s solicitors detailing any steps that had occurred in the proceedings prior to 28 November 2012 or service of documents or correspondence on the husband or attempts thereof.
It is submitted that the delay in filing the Notice of Appeal has arisen because of uncertainty about what transpired, including the exact terms of the order made, on 28 November 2012. It is said that it was not until the transcript from the hearing on that day was received that any firm view was able to be reached by the solicitor about what the true and correct basis of the husband’s appeal should be in order to properly advise him.
The solicitor deposes to having ordered the transcripts for both hearings
(28 November 2012 and 5 February 2013) on 12 March 2013 and received them on 4 April 2013. The application for leave was subsequently filed on
28 April 2013.
In resisting leave to file a Notice of Appeal Mr Fellows for the wife submitted there is no adequate explanation for the delay and that the husband’s material is insufficient. It is said that there is no effective explanation given for the husband’s failure to participate in the proceedings in the period from August 2012 to February 2013.
It is complained that the husband has not filed an affidavit explaining his actions, identifying the major areas of dispute in the wife’s trial affidavit or what the husband says will be necessary “trial management activity” going forward should he be successful in the application and subsequent appeal.
With respect to the wife’s counsel, although these submissions have some relevance, the primary consideration for an application of this kind, to extend time to file a Notice of Appeal, is focused on the time after the relevant orders were made until the expiry of the time allowed for appeal and up until the application is filed.
In this case, the difficulty is compounded by an absence of an order flowing from the hearing on 28 November 2012. As it has emerged it was also unfortunate that it was not the Court rather than the solicitor for the wife who gave the husband, who was unrepresented at the time, notice that the proceedings would be heard on an undefended basis.
In my view, the solicitors for the husband have acted diligently since being engaged by him on 30 January 2013.
Prospects of Success of the Appeal
While it is unnecessary for the purposes of this application to determine the merits of the husband’s proposed appeal, his prospects of success are a relevant consideration.
It is apparent from the draft Notice of Appeal that the essential ground is a claim of procedural unfairness. Specifically, the draft grounds claim that the Federal Magistrate’s decision to proceed to hear the wife’s application for final property orders on an undefended basis denied the husband natural justice.
It will be argued on appeal, should leave be granted, that he was not given proper notice of the possibility of an order being made on 28 November 2012 for the matter to proceed undefended, and further was not served with an order advising him the matter would proceed undefended on 5 February 2013. That the husband engaged solicitors to appear on 5 February 2013 is said to have indicated his willingness to participate in the proceedings.
The Federal Magistrate’s reasons for dismissing the application for an adjournment are contained at paragraphs 18 to 28 of the judgment delivered on 22 February 2013. It is as well to set out part of those reasons here:
18.A number of concerns arise as a result of that communication, not the least of which is the fact that the medical certificate is dated 31 January 2013, which can only mean, that as it is specifically noted as relating to court, that the husband was aware on or before 31 January 2013 that the proceedings were before the court on 5 February 2013. Notwithstanding that there appears to have been no communication until 4 February 2013, though it is troubling, though perhaps only a matter of wording that the affidavit of Mr Castle is in these terms:
On or about 4 February 2013, the Respondent instructed via telephone…
19.If in fact it were the case that communications were received by the solicitors now on the record before 4 February 2013, then the fact that there appears to have been little done otherwise is of concern.
20.Additionally, however, the matters that are referred to as justifying the issue of the medical certificate relate to a period commencing on 31 January 2013 and the previous medical certificate relates to a period concluding on 31 December 2012. As I noted before, there is no explanation as to why any steps were not taken during the one month period from 31 December 2012 to 31 January 2013.
21. It is also of concern and was emphasised by the legal representatives for the applicant wife, that earlier material annexed to the affidavit of the wife, as well as various medical records which were provided clearly indicated that the matters now the subject of concern were in fact the subject of litigation some years ago and the evidence was clearly to the effect that they had appropriately been dealt with and that, for example, the respondent husband did not suffer from any ongoing respiratory difficulties, as well as having received funds specifically for the purposes of orthopaedic surgery to deal with the issues relating to the hip complaint, as a result of a previous motor cycle accident.
22.The fact is that there was also evidence in relation to the matter under the hand of Dr [J] in which it was noted that, in his opinion, which was given in November of 2010, [the husband] did not have an Axis 1 psychiatric disorder and the psychiatrist was of the view that [the husband], did not require any form of psychiatric or psychological therapy. More particularly it was noted that he does not have any permanent psychiatric impairment attributable to the motor vehicle accident.
23.I make reference to that particular aspect of the matter because it was noted at the previous mention, at which the husband was represented, that there may have been a need for a litigation guardian.
24.Quite simply, these proceedings have been on foot for nearly two years. The husband has generally been uncooperative in relation to participation in any form of mediation, provision of documentation or disclosure, as required in relation to the proceedings. It was argued that the appointment of solicitors, taking of instructions from solicitors, withdrawal of solicitors or cessation to act by solicitors were all indicative of the fact that the husband was using all means available to him to avoid participation in the proceedings.
25.It was for that exact reason that the matter was listed as an undefended hearing and it was for that reason that the husband was given ample notice of the position in relation to the matter. He communicated with the court on 27 November 2012 and was certainly aware of the listing of 5 February 2013 by 31 January 2013, but in all likelihood, earlier than that.
26.As was therefore argued on the part of the wife, that the steps taken by the husband in relation to the matter on 5 February 2013 were nothing more than indicative of the delay and obfuscation that has continued in relation to the proceedings from very early on.
27.It is clear that the husband has had all opportunities in relation to appearing and being heard in relation to this matter, including specifically being given advice with regard to appropriate and proper steps that could be taken with regard to the appointment of a litigation guardian in the event of him not being able to adequately and properly represent himself.
28.Those opportunities have been used to the advantage of the husband, to the extent that there is a proper inference that can be drawn that the current situation, seeking a further adjournment to a date some time after Easter, but without any specificity and without any particularity as to the proper reasons for it, should not be acceded to.
For the wife it is submitted that the husband knew the matter was to be mentioned on 28 November 2012 and chose not to be represented or to appear on his own behalf, and ignored a subsequent series of letters. On this basis it is said he cannot now claim there has been an absence of natural justice. The wife’s counsel also submitted that the husband faces an additional hurdle, even if time is enlarged, of seeking leave to appeal from the orders as they are interlocutory.
The Federal Magistrate gave considered reasons for his decision to dismiss the husband’s application for an adjournment and to proceed to hear the wife’s application undefended. It is, nonetheless, a serious step to finally determine property settlement proceedings undefended without hearing a party, where that party has appeared, albeit very late in the proceedings, indicating willingness to participate and provided evidence supporting an adjournment.
Based on the chronology of events as recounted by both the Federal Magistrate and the solicitor for the husband and the transcript of 28 November 2012, the grounds of appeal raise real issues for determination about procedural fairness and the Federal Magistrate’s decision to refuse the adjournment and proceed to an undefended hearing. Appeals should ideally be heard on their merits and the Rules should not operate to work an injustice.
I am satisfied that there is sufficient merit in the husband’s proposed appeal to warrant an extension of time to file the Notice of Appeal.
Prejudice to the Parties
The husband concedes that there is obvious prejudice to the wife if the application is allowed. She will have to answer the appeal and incur further legal costs.
It is appreciated that the wife has already incurred significant legal fees in this litigation, as outlined in the affidavit of her solicitor filed on 21 May 2013. Without appreciating the precise breakdown of those costs it is observed that the quantum of these fees appears significant.
Counsel for the wife pointed to the costs and time wasted for the wife, and the absence of any assurance that the case, going forward, can be conducted without further costs and time expenditure. It is conceded that a costs order may partially off-set the damage to the wife but cannot compensate for the delay. Unfortunately, the expenditure of time and costs is a common feature of litigation. The Court is mindful of the importance of proportionality. Added to this is the unfortunate circumstance that the husband controls all the property and the wife is currently in a very poor financial position.
The solicitor for the husband emphasises however, that the overarching issue for consideration is that it is necessary to grant an extension of time to do justice between the parties. It is said that the husband desires a contested trial and that there was insufficient evidence before the Federal Magistrate to reasonably deny him that opportunity.
Conclusion
I am satisfied in all the circumstances of this case that it is appropriate to grant the husband an extension of time. The reason for the short delay in filing the appeal has been explained sufficiently for the purpose of the application. Having regard to the nature of the litigation, the consequences for the parties and the prospects of success of the appeal, I will grant the husband’s application for leave and direct that he file a Notice of Appeal against the orders of 28 November 2012 and 5 February 2013 by 13 June 2013.
Costs
The husband seeks that costs be reserved to the hearing of the substantive appeal. For the wife it is said the wife should have her costs in preparing for and conducting the trial and the costs of this application are sought.
It is observed that this Court cannot determine the costs of first instance proceedings other than on an appeal from a costs order.
As to the costs of the application in an appeal, generally they are reserved until the determination of the substantive appeal. However, in this case, by reference to s 117(2A) in particular the provision in relation to the conduct of the proceedings, an order for costs should be made regardless of the outcome of the appeal.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 May 2013.
Associate:
Date: 23 May 2013
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