Baghti & Baghti & Ors

[2014] FamCAFC 89

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI AND ORS [2014] FamCAFC 89

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – Where the applicant seeks that the appeals deemed abandoned be reinstated – Where the application is opposed – Where the interests of justice require that the application be granted upon strict conditions – Appeals reinstated.

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – Where the respondents and the Independent Children’s Lawyer seek their costs of the application – Where there should be an order for costs in favour of the respondents but not in favour of the Independent Children’s Lawyer – Costs of the respondents to be assessed on a party/party basis in default of agreement.

Family Law Act 1975 (Cth) – s 117

Family Law Rules 2004 (Cth) – r 22.21

Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479

APPLICANT: Mr Baghti

FIRST RESPONDENT: Ms Baghti

SECOND RESPONDENT: Mr B

THIRD RESPONDENT: Mrs B

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2145 of 2009

APPEAL NUMBERS:	EA	118	of	2012
EA	10	of	2013

DATE DELIVERED: 14 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Strickland, Ryan & Austin JJ

HEARING DATE: 14 May 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 August 2012
27 November 2012

LOWER COURT MNC: [2012] FamCA 711
[2012] FamCA 1112

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Corbett

SOLICITOR FOR THE APPLICANT: Demir Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Lawson

THE FIRST RESPONDENT: In person

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr Gould

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: McDonell Milne Toltz

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The time for the applicant to file the amended application in an appeal filed on 30 April 2014 be extended nunc pro tunc to 30 April 2014.

2. The Notice of Appeal in EA 118 of 2012 and the Notice of Appeal in EA 10 of 2013, to the extent that that appeal has not previously been dealt with, be reinstated.

3. The time for the applicant to file and serve with the Appeals Registrar the transcript books comprising all of the transcript of the hearing before Justice Fowler, his summary of argument and list of authorities be extended to the close of business on 30 June 2014.

4. The applicant pay to the first respondent all existing orders for costs that are fixed in favour of the first respondent up to the amount of $16,300 on or before 30 June 2014.

5. In the event of the applicant failing to comply with either of Order 3 or Order 4 hereof the appeal numbered EA 118 of 2012 and the appeal numbered EA 10 of 2013, to the extent that that appeal has not been previously been dealt with, be dismissed.

6. The time for the first respondent, the second respondent and the third respondent to file and serve their summaries of argument and lists of authorities with the Appeals Registrar be extended to 11 August 2014.

7. The time for the Independent Children’s Lawyer to file and serve a summary of argument and list of authorities with the Appeals Registrar be extended to the close of business on 25 August 2014.

8. The applicant pay the costs of the first, the second and the third respondents of and incidental to this application such costs to be assessed on a party/party basis in default of agreement.

9. The oral application for costs made by the Independent Children’s Lawyer be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti and Ors 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 SYDNEY

Appeal Number: EA 118 of 2012 and EA 10 of 2013
File Number: SYC 2145 of 2009

Mr Baghti

Applicant

And

Ms Baghti

First Respondent

And

Mr B

Second Respondent

And

Mrs B

Third Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Strickland J

Introduction

1. This is an amended application in an appeal filed on 30 April 2014.  The orders sought in that application in summary, are first, an order extending the time for that application to be filed, and then a review of orders and/or decisions made by the Appeals Registrar in this matter on a number of dates, in the context of that review seeking to set aside those orders and decisions, and then orders extending the time for the husband to file and serve transcript books, a summary of argument, and list of authorities, as well as orders as to the respondents and the Independent Children’s Lawyer (“ICL”) filing their summaries of argument and lists of authorities.

2. As it has turned out, the application as argued today is not strictly an application seeking a review of the exercise of power by the Appeals Registrar on various dates, and I will return to that issue.

3. There is no opposition to an order extending the time for the applicant to file the application to the extent that that is necessary, and I propose to make such an order in due course.

4. To put the application into context, and highlight the issue which is in dispute, I need to record the relevant history of this matter.

Relevant history

1. There were procedural orders made by the Appeals Registrar on 19 February 2013 in these appeals.  Those orders in summary provided for three sets of books to be filed and served namely, appeal books, supplementary appeal books, and what are described in the order as transcript books.

2. At the time that order was made there were unresolved issues about who would provide the transcript of the hearing before Justice Fowler, and my recollection is that is why there was a separate order for the filing of transcript books.  In any event, that order provided for the appeal books to be filed within six weeks of delivery of the judgment by the Full Court in relation to an appeal which was heard on 14 March 2013, and the supplementary appeal books and the transcript books were to be filed eight weeks after the delivery of that judgment.

3. Judgment was delivered by the Full Court on 18 December 2013, and thus it was from that date that time commenced to run in accordance with the orders of the Appeals Registrar to which I have just referred.  I observe that in addition there were orders made by the Appeals Registrar for the filing of summaries of argument and lists of authorities.

4. On the basis of time commencing to run as I have indicated, the Appeals Registrar wrote to the parties, and in particular the applicant, on 20 January 2014, identifying 29 January 2014 as the date by which the appeal books needed to be filed.  I note that there was no reference in that letter to the date by which the supplementary appeal books, or the transcript books, were to be filed, but clearly on the basis of the orders of 19 February 2013 they were due to be filed two weeks after 29 January 2014, namely by 12 February 2014.

5. On 29 January 2014 the appeal books and the supplementary appeal books were filed, but not the transcript books.  They were not due as I have said until

   
   

   12 February 2014.

6. On 11 February 2014, the applicant filed an application supported by an affidavit, seeking an extension of time to 8 April 2014 to file the transcript books, the summary of argument and list of authorities.

7. On 10 March 2014 the Appeals Registrar wrote to the parties, and in particular the applicant, allowing the extension of time sought by the application of

   
   

   11 February 2014, until 8 April 2014, provided that the applicant forwarded written evidence within 14 days, in other words, by 24 March 2014, that he had ordered and paid for the transcript.  The letter went on and indicated that if such evidence was not provided, and the transcript books and summary of argument were not filed by 8 April 2014, then the appeal would be listed before the next available Full Court for consideration of dismissal.

8. On 27 March 2014, the applicant’s solicitors forwarded a letter to the Appeals Registrar saying that the transcript had been requested and payment arrangements had been made with Auscript.

9. On 1 April 2014, the Appeals Registrar forwarded an email to the applicant’s solicitors saying that her requirement for evidence of transcript purchase had not been met, and indicating that if the transcript books and summary of argument was not filed by the close of business on 8 April 2014, then the application of

   
   

   11 February 2014 would be dismissed, and the appeals “will stand abandoned”.

10. I make two observations about the content of that email. First, although it said that the application of 11 February 2014 would be dismissed, I note that in effect the application had already been granted, albeit subject to a proviso. Secondly, in relation to the statement that the appeals “will stand abandoned”, abandonment of course occurs automatically under the Family Law Rules 2004 (Cth) (“the Rules”), so it is not a matter that is subject to the decision of the Appeals Registrar for example, nor is it a matter put before the Full Court for the Full Court to make a decision about. However, it is necessary to put before the Full Court whether an appeal should be dismissed for failure to comply with an order, for example. I note the inconsistency between the earlier advice, and the advice contained in this particular email as to the consequence of failing to file the transcript books, and the summary of argument, by 8 April 2014.

11. On 7 April 2014 the applicant’s solicitors forwarded a letter to the Appeals Registrar attaching a copy of the estimate of costs for the transcript, and confirming that the applicant had ordered the transcript.  On that same date,

    
    

    7 April 2014, the applicant’s solicitor sent to the Appeals Registrar an application in an appeal and an affidavit in support of that application, seeking a further extension of time to 20 May 2014 to file transcript books, and a summary of argument.

12. That application and affidavit were not accepted for filing by the Appeals Registrar, and on 8 April 2014 the Appeals Registrar wrote to the parties, and in particular the applicant, noting that the applicant was to file and serve transcript appeal books, so described, by 8 April 2014, that they had not been filed, and drawing attention to r 22.21 of the Rules, and concluding by saying that pursuant to that Rule, the appeal (sic) was taken to be abandoned.

13. On 14 April 2014 a letter was sent by the applicant’s solicitors to the Appeals Registrar pointing out the inconsistency to which I earlier referred, namely on the one hand indicating the matter would be put before a Full Court to consider dismissing the appeals, and on the other hand indicating that the appeals would be deemed abandoned.  In any event, in that letter, the applicant’s solicitors, on behalf of the applicant, sought a review by the “Principal Appeals Registrar” of the orders made by the Appeals Registrar.

14. That brings us to the amended application that is currently before the court which, as I indicated, seeks an extension of time to file the application, and also a review of the exercise of power by the Appeals Registrar.

15. As can be seen from that history just outlined, the current state of the matter is that the appeals are deemed abandoned, given that the transcript books were not filed and served by 8 April 2014, being the last date by which that could occur.  Thus, as explained today, the applicant seeks a reinstatement of the appeals rather than a review.  However, I raised with the applicant’s counsel that there may still be room for a review, for example, of the Appeals Registrar’s decision to refuse to accept for filing the application and affidavit of 7 April 2014.

16. In any event, it seems to me that the issue before the court today is plainly whether we will reinstate the appeals, and then make orders for the filing of the transcript books, and the summary of argument by the applicant, and then appropriate orders for the filing of summaries of argument by the respondents and the ICL. 

17. For my part I am also prepared to proceed on the basis that the application of

    
    

    7 April 2014 and the supporting affidavit are before the court, and I do not understand that there is any opposition to that course.  In that regard, the affidavits relied upon by the applicant are the affidavits filed first, on

    
    

    11 February 2014, the affidavit to which I have just referred, an affidavit filed on 29 April 2014, and a further affidavit tendered to the court today sworn on

    
    

    13 May 2014.

18. The application is opposed by the respondents, and by that I mean what I am taking to be an application to reinstate the appeals is opposed.  The ICL takes no position in relation to the application, and has appeared today as a matter of courtesy.

Applicable Principles

1. As is apparent from a number of authorities including cases such as Bemert & Swallow (2010) FLC 93-441, and the High Court decision of Gallo v Dawson (1990) 93 ALR 479, the overarching issue in considering an application for reinstatement is where the justice of the case lies, and in determining that there are a number of factors that need to be considered, such as any explanation for the failure to comply with the timeframes prescribed, in this case by order of the Appeals Registrar, the merits of the appeals, and the prejudice to the parties depending upon the result of the application.

2. In this case we have received submissions from counsel in relation to the first factor namely, the explanation for the failure to comply with the timeframe prescribed, and the issue of prejudice.  In terms of the merits of the appeals, there were no submissions put to us about that, and understandably so, given that that has been the subject of previous judgments of the Full Court.

3. I note that in the context of prejudice to his client, Mr Lawson has made submissions relative to the utility of a number of the grounds of appeal proceeding, given circumstances that have occurred in the meantime in relation to, for example, a business and a house property.  The primary appeal is of course not only against orders for property settlement, but also against parenting orders made by Justice Fowler, but, to repeat, those submissions were made in the context of demonstrating prejudice to the first respondent, and given there is no submission about the merits of the appeals per se, I do not propose to say anything about that.

Discussion

Adequate Explanation

1. As to the explanation for the failure to comply with the prescribed timeframe,

   
   

   Mr Corbett concedes that the applicant, and this is obvious, failed to file the transcript books and the summary of argument, by 8 April 2014, as was ordered.  However, what he says is that the evidence indicates that at every relevant stage his client has attempted to comply with, and in most cases has complied with, the timeframe set by the court for the management of this appeal.  For example, his client complied with the timeframe for the filing of the appeal books and the supplementary appeal books.

2. The applicant has also made timely applications to extend the time when it has become apparent that he would not be able to comply with a particular timeframe.  That highlights the issue of the application and affidavit of 7 April 2014 which was not accepted for filing by the Appeals Registrar, and which is, in effect, the subject of the application for a review.

3. In further support of the application Mr Corbett points to what I have referred to earlier in these reasons as, the confusion created by the inconsistent statements by the Appeals Registrar, and the circumstance that the transcript that is required is transcript of a hearing of some 27 days.  The applicant needed to make arrangements to be able to purchase that transcript, and apparently he has done that by way of a loan from relatives and/or friends.  Further, the transcript is not able to be obtained in one fell swoop.  As Mr Corbett says the transcript provider provides it as, and when, it is prepared over a period of time.

4. I turn now to the submissions of the first respondent which were adopted by

   
   

   Mr Gould for the second and third respondents.

5. Mr Lawson submits to us that the applicant had a significant period of time to make arrangements for, and to obtain the transcript, well before 8 April 2014, and indeed, well before 12 February 2014, which is when the transcript books were to be filed by.  He points to the period of time extending from when the orders were made on 19 February 2013 to 8 April 2014, and Mr Lawson suggests that we should take account of the fact that there is no explanation as to why the applicant did not in the early part of that period at least commence the process of obtaining the transcript, knowing it would be a lengthy and expensive process.  However, I do not accept that submission.  The applicant was entitled to wait until the Full Court delivered its judgment before committing to the expensive exercise of obtaining the transcript.

The consequences of granting or refusing the application

1. In terms of prejudice, Mr Lawson relies on the contents of the first respondent’s affidavit which was filed on 8 May 2014, and it seems to me that the major prejudice that the first respondent can legitimately put before us, is the fact that there are a number of orders that have been made in this matter for costs, and none have been paid.  Some of those orders provide for assessments to be undertaken in default of agreement, but a number of those orders fix the amount of costs to be paid by the applicant to the first respondent, and there has been a further affidavit tendered by the first respondent today which indicates that the total of the fixed costs is $16,300.

2. I do not consider that the other matters raised in the affidavit by way of alleged prejudice to the respondent are matters that are significant enough to outweigh the prejudice to the applicant in not reinstating the appeals given the bases on which the application is brought.

3. However, I am concerned about those costs orders being unpaid.  That places a financial burden on the first respondent in engaging in these proceedings.

4. The applicant also comes to this court seeking an indulgence, and it does not behove him, in seeking that indulgence, to have failed to pay orders for costs which have now been outstanding for some time, and about which there can be no dispute.

5. In any event, I am pleased to record that Mr Corbett’s instructions are that payment of those costs that have been fixed namely, of about the total amount of $16,300, can be a condition of any order that we make today allowing this appeal to proceed, but a period of six weeks is sought for payment of those costs.

6. Given the long-running history of this matter, and the need to bring it to some sort of conclusion, I raised with Mr Corbett the prospect of, if the applicant was successful in his application, there being a self-executing order which would provide for dismissal of the appeal in the event that any further extension of time granted to the applicant was not complied with, in terms of the filing of the necessary documents, and I add, the payment of the costs just referred to.

   
   

   Mr Corbett put no submissions in opposition to such an order being made.

Conclusion

1. In my view the interests of justice require that this application be granted, but with a strict timeframe, and providing strict conditions to ensure that this matter either proceeds expeditiously, or if it does not, that it is concluded by way of dismissal.

2. I observe that during the course of submissions Mr Lawson also indicated that if we were disposed to allow the appeals to proceed, in other words to reinstate them, given that all the transcript has now been obtained, all of that transcript should in fact be filed.

1. Mr Corbett has quite rightly pointed out that the Rules and the usual order, made limit the transcript to those parts of the transcript which are relevant to the appeal. However, in this case, given the history, the need to bring the matter to a conclusion, and the fact that the transcript has been obtained, it seems to me it would not impact negatively upon the applicant if all of the transcript was filed, and I propose making an order that that be done.

Costs

1. Applications for costs have now been made on behalf of the first respondent, the second and third respondents, and the ICL.

2. Those applications are primarily opposed, but if costs are to be considered

   
   

   Mr Corbett seeks that they be made costs in the appeal.

3. In my view there should be orders for costs in favour of the respondents, but not in favour of the ICL.

4. The application that is before us, and that has been heard today, seeks an indulgence from this court as a result of the failure by the applicant to comply with the timeframes prescribed by the Appeals Registrar of this Court.  That failure was a matter that fell entirely at the feet of the applicant.

5. One of the significant issues in granting the indulgence, as I propose, is that the applicant has now paid for and obtained all of the transcript, and is in the position to file the transcript books, but that fact was only conveyed to the respondents, in effect, yesterday.  Thus it seems to me that the respondents were quite entitled to oppose the application and to incur the costs of attending today and arguing for its dismissal.

6. On those bases I would make an order for costs in favour of the respondents.

7. In relation to the ICL, Ms Connor has attended today as a matter of courtesy.  There have been no submissions made by or on behalf of the ICL, and nothing filed.  For those reasons I would dismiss the application for costs by the ICL.

Ryan J

1. I agree with the reasons given by Justice Strickland and the orders he proposes.

Austin J

1. Save as to costs as between the applicant and respondents, I agree with the orders proposed and the reasons given by Justice Strickland.

2. As to the question of costs, the applicant sought an indulgence of the court for non-compliance with procedural orders or Court Rules, but successfully prosecuted his application over the relatively weak objection of all respondents.  The parties’ counter-veiling arguments off-set.  I would make no order as to costs as between the parties.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ryan & Austin JJ) delivered on 14 May 2014.

Legal Associate:       

Date:    16 May 2014