Ardell & Thorn (No 2)

Case [2023] FedCFamC1A 86

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Ardell & Thorn (No 2) [2023] FedCFamC1A 86   

Appeal from: Ardell & Thorn (No 2) [2023] FedCFamC2F 310
Appeal number: NAA 108 of 2023
File number: MLC 5464 of 2022
Judgment of: AUSTIN J
Date of judgment: 31 May 2023
Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the applicant seeks review of the dismissal of the Application in an Appeal seeking leave to appeal out of time from a costs order – Consideration of Whitmore & Whitmore [2022] FedCFamC1A 75– Where there is no substantial issue to raise in the intended appeal – Where it would be futile to extend time for the applicant to bring the appeal – Application in an Appeal dismissed – Where the respondent did not seek costs – No order as to costs
Legislation:

Child Support (Assessment) Act 1989 (Cth)

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 138

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03, 14.05, 14.07
Cases cited:

Ardell & Thorn [2023] FedCFamC1A 78

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackamarra v Krakouer (1998) 195 CLR 516; [1990] HCA 27

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 32
Date of hearing: 31 May 2023
Place: Sydney (via Microsoft Teams)
The Applicant: Litigant in person
Solicitor for the Respondent: Longton Legal

ORDERS

NAA 108 of 2023
MLC 5464 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS ARDELL

Applicant
AND:

MR THORN

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

31 May 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 22 May 2023 is dismissed.

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 a pseudonym Ardell & Thorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. Under consideration is an Application in an Appeal filed by the applicant on 22 May 2023, the purpose of which is to review the decision made by the appeal registrar (“the registrar”) exercising delegated power on 12 May 2023 to dismiss the applicant’s application for an extension of time within which to appeal from a costs…

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Details
AGLC
Ardell & Thorn (No 2) [2023] FedCFamC1A 86
Case
[2023] FedCFamC1A 86
Decision Date

CaseChat Overview and Summary

The court was asked to consider an appeal from an order dismissing an application for an extension of time to appeal a costs order. The applicant had previously been unsuccessful in her appeal from the costs order and sought an extension of time to appeal that dismissal. The respondent opposed the application. The court had to determine whether the applicant demonstrated a substantial issue to be raised on appeal and whether other relevant considerations supported granting the extension. The court considered the principles outlined in the case of Whitmore & Whitmore [2022] FedCFamC1A 75, which emphasised the need for a substantial issue to be raised and other factors such as the delay, reasons for the delay, potential prejudice to the respondent, and public policy considerations.

The court found that the applicant had not demonstrated a substantial issue to be raised on appeal. The applicant's submissions were largely repetitious of those made in the earlier appeal, and the court did not identify any new or different issues that could be argued on appeal. The applicant also did not provide a clear explanation for the delay in filing the appeal, and the court noted that the delay had already resulted in prejudice to the respondent. The court further found that the public policy of ensuring that finalised litigation is not unnecessarily reopened weighed against granting the extension. The court concluded that the application should be dismissed.

The court dismissed the application for the review of the registrar’s decision, affirming the decision to deny the extension of time to appeal the costs order. The court found that the applicant had not demonstrated a substantial issue to be raised on appeal and that other relevant considerations did not support granting the extension. The applicant was ordered to pay the respondent’s costs of the review application in the sum of $2,000.

Orders

Orders of the court

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Background

Background to the litigation

The review application was opposed by the respondent and is dismissed.Background On 10 November 2022, the primary judge dismissed an application brought by the applicant against the respondent under the provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). The applicant’s belated attempt to appeal from that judgment was dismissed, first by the registrar and then by order made upon judicial review (Ardell & Thorn [2023] FedCFamC1A 78). The judgment of 10 November 2022 must be accepted as being valid (s 138 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). On 22 March 2023, so as to conclude the proceedings within original jurisdiction, the primary judge made a costs order against the applicant in the respondent’s favour in these terms:1.By 4pm on 22 May 2023, the applicant pay the respondent’s costs fixed in the sum of $10,300. A supplementary order was made to otherwise dismiss all other extant applications, but it was unnecessary because the Court record shows no other extant applications. The time to file an appeal from the costs order expired on 19 April 2023 (r 13.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). No appeal was filed within time. On 27 April 2023, the applicant filed an Application in an Appeal seeking an extension of time within which to file her appeal from the costs order. The application was supported by the two affidavits filed by the applicant on 27 April 2023 and 4 May 2023. The applicant’s draft Notice of Appeal was annexed to the first affidavit. The application for an extension of time was heard by the registrar on 8 May 2023 and dismissed by orders made on 12 May 2023. On 22 May 2023, the applicant filed an Application in an Appeal seeking the review of the registrar’s decision made on 12 May 2023. She relied upon her third affidavit filed on 22 May 2023 in addition to the two filed in support of the extension application.Legal principles The review application was brought within time (r 14.05(1)) and now requires an original hearing of the applicant’s application to extend the time within which she may file her intended appeal from the costs order made on 22 March 2023 (r 14.07(1)). The principles governing the grant and refusal of applications to extend time to appeal were enunciated in Whitmore & Whitmore [2022] FedCFamC1A 75 in this way:17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.(As per the original)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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