Ardell & Thorn (No 2)
[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 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 JUDGMENTAUSTIN J:
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 order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 22 March 2023.
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)
Those principles are applicable now.
Discussion
The question of whether there is a substantial question to be raised in the proposed appeal requires consideration of the reasons given for the judgment which the applicant seeks to impugn and the grounds of appeal upon which the applicant proposes to do so.
The costs order made by the primary judge was determined on the papers in chambers, following the parties filing evidence and written submissions pursuant to procedural orders made in November 2022.
The respondent sought costs of $31,092.50 from the applicant, which the primary judge treated as an application for indemnity costs (at [4]–[5]). The applicant opposed any order for costs being made against her (at [6]).
The primary judge correctly referred to the governing statutory provisions (at [10]) and then discussed the evidence and submissions in that context. Her Honour accepted the applicant was impecunious, but correctly acknowledged how that fact alone did not preclude a costs order being made against her (at [11]–[13]). Her Honour also found the applicant’s conduct of the substantive proceedings was remiss in some respects (at [17], [18] and [24]) and her application proved to be wholly unsuccessful (at [20] and [24]).
Those considerations justified a costs order (at [24]), but the primary judge was not satisfied an award of indemnity costs was warranted (at [25]–[26]). Instead, her Honour awarded scale costs of $10,300, including costs of the disputed costs application (at [27]–[29]).
If permitted to do so, the applicant intends to challenge the judgment by these two grounds of appeal:
1.Incorrectly applying 117 2A (c) of the Family Law Act 1975 by order that the Appellant pay cost condoning the Respondents conduct in his refusal to itemize hidden funds of $360,000 to the commonwealth causing a significant Jurisdictional error; intentionally miscategorising the Respondents financial resources as house proceeds when both parties had adduced evidence as $960,000 proceeds.
2.Failing to apply s140 of the Evidence Act 1995, by granting indemnity costs pursuant to her honour taking the Appellants evidence at its highest, adding no weight to the respondents claims that funds of $80,000 were disclosed to the Commonwealth (CSA); giving legal grounds to a fair contested hearing investigating significant matters in the proceeding.
(As per the original)
For present purposes, it is only necessary to assess the ostensible, as distinct from the actual, merit of the proposed grounds of appeal.
The applicant deposed this in her affidavit:
5.Leave to extend time to file Notice of Appeal should be granted as the matters raised on appeal are of significant importance.
The proposition is self-evidently a submission, not evidence, and is rejected. Analysis of the proposed grounds of appeal reveals it to be incorrect.
Ground 1 supposedly attacks the primary judge’s application of s 117(2A)(c) of the Family Law Act 1975 (Cth) (“the Act”), which provision makes the parties’ conduct of the underlying substantive proceedings a relevant consideration in the costs dispute. In that respect, the primary judge found the applicant’s conduct of the proceedings caused the respondent to incur more costs in relation to a court event in September 2022 (at [17]) and by him having to manage multiple affidavits filed by her (at [18]). In both respects, the applicant failed to comply with either the Rules or procedural orders and such conduct was found to be influential in the costs decision (at [24]).
However, the ground neither attacks the integrity of those findings nor the use to which they were put in accordance with s 117(2A)(c) of the Act. Rather, the complaint purports to call into question the validity of the decision made by the primary judge in November 2022 to dismiss the substantive application brought under the Assessment Act, which is impermissible in an appeal from costs order made in March 2023. The former judgment disallowing the applicant’s belated appeal from the judgment in November 2022 explained why the applicant’s complaints of “jurisdictional error” and the primary judge’s alleged “intentional miscategorisation” of the evidence were misconceived (Ardell & Thorn [2023] FedCFamC1A 78 at [21]–[22]).
The applicant intends to prosecute Ground 2 on false premises. First, s 140 of the Evidence Act 1995 (Cth) had no work to do in the costs decision made by the primary judge in March 2023 because none of the evidence adduced by the parties on the question of costs was considered controversial. Any evidence within historical affidavits to which they may have referred in the costs dispute merged in the findings made by the primary judge to support the judgment delivered in November 2022. Secondly, the primary judge did not grant indemnity costs, as the applicant alleges. In fact, her Honour dismissed the respondent’s application for indemnity costs and granted only scale costs, fixed in an amount approximating one-third of the sum sought by the respondent. Thirdly, the applicant again improperly refers to a complaint about the judgment delivered in November 2022 and the primary judge’s findings in relation thereto. The alleged failure by the respondent to declare his receipt of $80,000 to the Commonwealth was also addressed in the former judgment disallowing the applicant’s belated appeal from the judgment in November 2022 (Ardell & Thorn [2023] FedCFamC1A 78 at [23]).
The applicant also intends to maintain an overarching complaint in the proposed appeal in these terms:
The primary Judge erred by making an order that is plainly unreasonable and unjust, by failing to exercise discretion correctly and a substantial wrong has occurred.
This complaint is presumably intended to allege that an appealable error must be implied if no frank error can otherwise be identified (House v The King (1936) 55 CLR 499 at [504]–[505]; Lovell v Lovell (1950) 81 CLR 513 at [519] and [533]). But the reasons given by the primary judge for the costs order appear to show an entirely regular exercise of discretion, applying factual findings (not challenged by the proposed grounds of appeal) to uncontroversial legal principles. The result is not so incongruent as to engender suspicion that some form of unidentified appealable error occurred.
It follows that the applicant has no substantial issue to raise in the intended appeal and it would be futile to extend time for her to bring it.
Even if the delay in bringing the appeal was due to a “clerical error”, as the applicant deposed, her acceptable explanation for the delay of about one week is still not enough to justify her pursuit of an apparently futile appeal. That would cause undue prejudice to the respondent.
The applicant asserted she would be prejudiced if denied the chance to bring the appeal, but that assertion was based upon her grievance with the orders made in November 2022 – not the costs order made in March 2023. She deposed this in her affidavit:
3.I again draw the courts attention to the inappropriate judicial conduct that continues to directly affect the child in the case as stated in paragraphs 4 - 5 of my affidavit 17 February 2023; in support of my appeal from [the primary judge] orders made 10 November 2022. Annexed and marked “B” is a copy of my Affidavit affirmed 17 February 2023.
(Emphasis added)
Her claim of prejudice due to the earlier orders made in November 2022 has no bearing upon the question of whether she should be permitted to appeal from the later orders made in March 2023.
The review application fails. The orders made by the registrar on 12 May 2023 will stand.
The respondent did not seek costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 June 2023
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