Bania and Jacopo
[2011] FamCAFC 67
•7 March 2011
FAMILY COURT OF AUSTRALIA
| BANIA & JACOPO | [2011] FamCAFC 67 |
| FAMILY LAW - APPEAL – Application to reinstate appeal deemed abandoned pursuant to the Rules – Where material filed ten days out of time – where reasonable explanation for the failure to file within time – where no indication that appeal is not bona fide or that it is demonstrably hopeless – Appeal reinstated – Costs of reinstatement application reserved to abide the outcome of the substantive appeal. |
| Gallo v Dawson (1990) 93 ALR 479; (1990) 64 ALJR 458; [1990] HCA 30 Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| APPLICANT: | Ms Bania |
| RESPONDENT: | Mr Jacopo |
| FILE NUMBER: | PAC | 3577 | of | 2009 |
| APPEAL NUMBER: | EAA | 121 | of | 2010 |
| DATE DELIVERED: | 7 March 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 7 March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1080 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Warda |
| SOLICITOR FOR THE APPLICANT: | Thurlow Fisher Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Gersbach |
| SOLICITOR FOR THE RESPONDENT: | Coleman & Greig |
Orders
That the appeal be reinstated.
That the Appeal Books be deemed to have been filed on 14 February 2011.
That the appeal is to be heard by arrangement with Justice Ainslie-Wallace.
That the costs of and incidental to the Appellant Wife’s Application in an Appeal filed on 24 February 2011 are reserved to the Full Court hearing the substantive appeal.
IT IS NOTED that publication of this judgment under the pseudonym Bania & Jacopo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3577 of 2009
APPEAL NUMBER: EAA 121 of 2010
| Ms Bania |
Applicant
And
| Mr Jacopo |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court is an Application filed on 24 February 2011 to reinstate an appeal deemed abandoned pursuant to the Rules. By Direction of the Court of 5 November 2010, Ms Bania (“the appellant”), who is the wife, was to have filed and served her material in the appeal by 4 February 2011. As is not in doubt, that did not happen by that time. As is also not in doubt, the Appeal Book was, in fact, filed on 14 February 2011, ten days out of time.
In support of the Application to reinstate the appeal, the appellant’s attorney, Ms Warda, has sworn an affidavit on 22 February 2011 setting out the two bases upon which the necessity for reinstatement arose. They are referred to in paragraphs 3(a) and 3(b) of that affidavit.
Whilst it is not ultimately necessary to express a concluded view, if 3(a) were not present in the affidavit of the appellant’s attorney, the issue may be more difficult. But the combination of the two paragraphs, and particularly the existence of difficulties within the Court Registry, does provide a reasonable explanation for the failure to file within time. The diligent filing of the material as soon thereafter as it could be, and only ten days out of time, is further illustrative of the bona fides of the appellant, and the reasonableness of the appellant’s attorney’s actions in seeking to achieve compliance with the Court’s Directions.
Not insignificantly for present purposes, unlike many appeal directions which the Court as presently constituted makes, the Directions in this matter on 5 November 2010 did not provide the liberty to restore for further directions by telephone on 72 hours notice. With hindsight, that is unfortunate because, had there been such a liberty and it been availed of, we would not be here today. Instead, we would have foregathered last Friday and the appeal would be over and done with.
The principles governing the application are not in doubt. They were referred to by McHugh J in Gallo v Dawson (1990) 93 ALR 479; (1990) 64 ALJR 458; [1990] HCA 30. It is unnecessary for present purposes to refer in detail to what his Honour there said, save to say, as the subsequent Judgment of Kirby J in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 (albeit in the context of summary judgment which is, in effect, on the other side of the reinstatement coin) says, it is a very significant step for a court to take to deny a citizen of this country his or her right to challenge a decision of a trial court in a competent court of appeal. And that right, as McHugh J in Gallo v Dawson, and Kirby J in Lindon v The Commonwealth made clear, is something which our law holds dear.
In this case, there is quite fairly, no suggestion by Counsel for the respondent that the appeal is not bona fide or that it is demonstrably hopeless. It may have merit; it may not. But it is not a case which ought not proceed to be heard and determined because it will inevitably fail.
To be clear, Counsel for the respondent clearly says that it will fail – should fail – but for present purposes, there is nothing to indicate that the appeal is not bona fide, or that it is demonstrably hopeless.
The explanation for delay is reasonable. The delay itself was extremely short and, importantly, as will be seen, the attorneys for the appellant took quite proper and extensive attempts to mitigate any damage flowing from the failure to comply with the previous Directions.
As suggested during the course of debate, the statute falls short of providing that abandonment pursuant to the Rules, as opposed to anything occurring pursuant to the statute to which the Rules are made, constitutes a dismissal of an appeal. It may well be, and probably is, as Counsel for the respondent submitted, that abandonment in a case such as this is for all practical purposes the same as dismissal, but there is a distinction in the legislation. It can not have been inadvertent that the Parliament did not legislate to provide that abandonment constitutes dismissal.
On balance, in the circumstances as briefly referred to, this would not be an appropriate case to deny the appellant her day in court. Relevant in that context is the reality that, for whatever reasons – and the reasons do not matter for present purposes – the verdict monies payable by the respondent to the appellant have not yet been paid. They are modest, but on balance, the Court is not persuaded that they would not, if the respondent was wholly successful, be insufficient to meet his party/party costs of the appeal and this application as agreed or assessed. That is a factor relevant to the exercise of the Court’s discretion.
The appeal could have been heard last Friday. More will be said about that shortly in the context of the costs of this application. Given that it was not, it can now be heard but two months hence, on 9, 10 or 11 May. 2011. In those circumstances, to decline to exercise the discretion to reinstate would be to visit an injustice upon the appellant.
The respondent seeks an order for costs of the reinstatement application. That application is superficially attractive, and indeed as the record would show, during the course of discussion with Counsel for the respondent, the Court suggested that avoiding costs would be difficult for the appellant. It is not in doubt that this application arose because the appellant did not comply with the Court’s Directions. However, the matter is not quite so straightforward.
On 8 February 2011, the attorneys for the appellant wrote to the attorneys for the respondent. That letter is Annexure “1” to an affidavit sworn by NK on 7 March 2011 and filed in Court this morning. In that letter of 8 February, Ms Warda, the appellant’s attorney, frankly stated her difficulty in substantially the same terms as she subsequently swore on oath or affirmation to be the bases of her difficulty. Importantly, however, Ms Warda went on to say that she expected to be able to file the books by Monday 14 February 2011. Her letter was written on the Tuesday preceding that Monday. As is not in doubt, Ms Warda actually did file the books as she foreshadowed she would on 8 February 2011. Ms Warda then sought an extension of time to file and serve the books, which can be read in context as seeking consent to reinstatement. Reinstatement would have resulted from such a consent.
Ms Warda in her letter, pointed out that the delay necessarily meant that an extension of time for the respondent to file his submissions would be appropriate. Without having done the mathematics with any precision, it is clear that the extension of time proposed provided that the respondent would have no less time in which to prepare his submissions, and probably would have had a few days more than the original Directions provided. Regrettably, that invitation was refused, it seems, on the very same day as it was communicated. Thus, the hearing last Friday was abandoned. It could have been heard last Friday. It would have been over now, but regrettably it wasn’t.
Counsel for the respondent submitted, and the Court accepts from him that such was the case, that at the point where the appeal was deemed abandoned, or shortly thereafter, Counsel retained to appear on 4 March 2011 was released. That was not unreasonable at the time, but as Counsel for the respondent fairly conceded, it could not seriously be suggested, had the invitation of 8 February been accepted, that competent Counsel could not have been retained to argue the appeal last Friday. Having read the Reasons for Judgment of the Federal Magistrate, one would have thought that competent Counsel could have been retained virtually the day before to have adequately argued this appeal, whatever its merit or lack of merit might ultimately be held to be.
Without being unduly critical, for hindsight is a wonderful thing, the response to the invitation of 8 February 2011 in this Court’s view does change matters materially from those superficially emerging. The Court ultimately concludes that the costs of this application should be reserved to abide the outcome of the appeal. In short, the Court is not persuaded, by virtue of the communication of 8 February 2011 from the appellant’s attorneys, that the costs of this application were necessarily incurred. That is not to say that there was any recklessness on the part of the respondent. The respondent elected, as was his right, to take a hard line. But the letter of 8 February 2011 from the appellant’s attorneys did create a risk that costs of this application would be problematic.
The order of the Court will accordingly be that the appeal is reinstated, that the costs of and incidental to the application filed in an appeal on 24 February 2011 are reserved to the Full Court hearing the substantive appeal.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 7 March 2011.
Associate:
Date: 30 March 2011
0