Batey-Elton and Elton
[2008] FamCAFC 176
•21 November 2008
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON | [2008] FamCAFC 176 |
| FAMILY LAW - APPEAL – Application to extend time to appeal trial judge’s refusal to disqualify himself – where notice of appeal filed two days out of time – consideration of the “overall interests of justice” – application to extend time to appeal granted – applicant to pay costs of all other parties, though payment stayed pending the determination of financial proceedings between the husband and wife. |
| Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 |
| APPELLANT: | Ms Batey-Elton |
| RESPONDENT: | Mr Elton |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| APPEAL NUMBER: | NA | 79L | of | 2008 |
ORDERS MADE: REASONS DELIVERED: | 10 November 2008 21 November 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May and Strickland JJ |
| HEARING DATE: | 10 November 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 562 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
| COUNSEL FOR THE OFFICIAL TRUSTEE IN BANKRUPTCY: | Mr Rodgers |
| SOLICITOR FOR THE OFFICIAL TRUSTEE IN BANKRUPTCY: | Rodgers Barnes & Green |
Orders made 10 november 2008
That the applicant wife be granted an extension of time until Monday 21 July 2008 to file a notice of appeal.
That all parties attend upon the Appeal Registrar this afternoon to make arrangements for a procedural hearing to be conducted by the Appeal Registrar in relation to the hearing of the appeal.
That the Appeal Registrar will advise parties as soon as possible of a date for hearing the appeal, most likely to be in the two week sittings of the Full Court commencing on Monday 24 November 2008 in Sydney (with the parties to participate via video link between Brisbane and Sydney).
That the wife pay the costs of and incidental to her application to extend time to file the notice of appeal incurred by the husband, the Independent Children’s Lawyer and the Official Trustee in Bankruptcy, with such payment to be stayed pending the determination of the s 79A proceedings pending between the wife and the husband.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved 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 79L of 2008
File Number: TVF 2250 of 2004
| Ms Batey-Elton |
Appellant
And
| Mr Elton |
Respondent
REASONS FOR JUDGMENT
On 10 November 2008 this Court granted Ms Batey-Elton (to whom we will refer as “the wife”) an extension of time until 21 July 2008 to file a notice of appeal against orders made by Jordan J on 20 June 2008.
These are our reasons for granting that extension of time and also for the other orders made that day which related to costs and certain procedural matters.
Background
There are pending in the Family Court of Australia proceedings between the wife and Mr Elton (to whom we will refer as “the husband”), both in relation to the parenting arrangements for at least one of the two children of the parties’ marriage and also under s 79A of the Family Law Act 1975 (Cth) (“the Act”) to set aside or vary property settlement orders made with the consent of both parties on 10 September 2004.
We understand that Jordan J has been “judge-managing” those proceedings since at least the beginning of 2007 and that his Honour was due to commence a final hearing of all applications between the parties on 10 November 2008 (being the same date as that on which we granted the wife the extension of time to file an appeal against his Honour’s orders of 20 June 2008).
On 13 June 2008 the wife filed an application in which she sought some eight orders, the first of which was that Jordan J “excuse himself from further hearing of this matter for reason of clear, on the record or alternatively, apprehended bias”.
The second order sought was that the remainder of the application be listed before another judge for directions and hearing, and the third order sought was for the discharge of the Independent Children’s Lawyer.
The remaining five orders sought related to property and financial matters, the inspection and copying of subpoenaed material, and matters concerning the schooling arrangements for the parties’ daughter.
The application filed by the wife on 13 June 2008 was listed before Jordan J on 20 June 2008. It appears from his Honour’s “ex tempore” reasons for judgment delivered on that day and also from his orders made that day, that he dealt only with the first three orders sought by the wife. He dismissed the applications for those three orders (being the disqualification of himself; the listing of the proceedings before another judge; and the discharge of the Independent Children’s Lawyer), and he adjourned the applications for the remaining orders “to the trial in November 2008”.
In addition his Honour ordered that the wife should pay the costs of the husband’s counsel and of the Independent Children’s Lawyer in relation to the hearing on 20 June 2008 on an indemnity basis, but with the payment of such costs being stayed “pending the hearing of the trial in November 2008”.
It emerges from an affidavit by the wife filed on 2 September 2008 (in support of her application to extend time to appeal Jordan J’s orders of 20 June 2008) that her notice of appeal against the orders of 20 June 2008 was received by the Brisbane Appeal Registry on Monday 21 July 2008, and that the Appeal Registrar wrote to her on Tuesday 22 July 2008 apparently explaining (correctly, in our view) that the time for filing had expired on Friday 18 July 2008.
We observe in passing that the wife states in that affidavit (filed 2 September 2008) that she “believed at the time that the time allowed for filing expired on Monday 21 July”.
On 2 September 2008 the wife filed an application (supported by the affidavit to which reference has already been made) seeking that she be granted:
· “leave to appeal”;
· “leave to appeal out of time or, in the alternative, the time to file is extended until 21 July 2008”;
· “leave to adduce further evidence in her appeal”.
We observe again in passing that the wife does not need leave to appeal the order of Jordan J dismissing her application that he disqualify himself from further hearing her proceedings. Section 94(1AA) of the Act expressly provides an appeal as of right against a decree or decision of a Judge rejecting an application that he or she disqualify himself or herself from further hearing a matter. Nor does the wife need leave to appeal the indemnity costs order made against her as that is a final order.
We also observe that the wife’s application to adduce further evidence in support of her appeal will be determined with the appeal.
It was thus only the wife’s application for an extension of time to appeal the orders of 20 June 2008 which had to be determined by us on 10 November 2008.
Appearances at the hearing on 10 November 2008
At the hearing before us on 10 November 2008 the respondent husband was represented by senior counsel, Mr Page and the Independent Children’s Lawyer by Mr McGregor of counsel. On behalf of their respective clients, both Mr Page and Mr McGregor opposed the grant of an extension of time to the wife to file an appeal against the orders of 20 June 2008. Their opposition was based essentially on an alleged lack of merit or substance in the wife’s proposed appeal.
As the wife is a bankrupt, her trustee in bankruptcy was represented by a solicitor, Mr Rodgers, who neither opposed nor consented to the application for an extension of time for the appeal.
The wife appeared before us without representation by an admitted legal practitioner. However, a Mr B, who is apparently her social partner and is legally qualified, but not an admitted legal practitioner, sought to be permitted to appear on her behalf.
In support of his application to appear on behalf of the wife, Mr B relied not only on the fact that he was legally qualified, but also on a medical certificate from a general practitioner in relation to the wife, and also on certain observations which Jordan J was said by Mr B to have made concerning prejudice to the wife if she did not have legal representation.
The medical certificate (which was not supported by an affidavit) stated that in the opinion of the doctor, the wife was suffering “from acute situational stress disorder with anxiety” and that because of the nature of this condition, she would be unable to attend court for the period of 2 November 2008 to 2 December 2008. Notwithstanding the content of the medical certificate, we did not understand the wife to rely on it to seek an adjournment of the hearing of the application to extend time to appeal, but only for the purpose of obtaining leave for Mr B to appear on her behalf.
We ruled that we would not permit Mr B to appear (in the sense of “speak”) on behalf of the wife, as opposed to sit with her and assist her as a “McKenzie’s friend”. Our reasons for so ruling (which we now provide) were that we considered it inappropriate that Mr B should assume such a representative role in the proceedings given that not only is he the wife’s social partner, but also (as will later emerge) he has already apparently had a close involvement in the proceedings before Jordan J, and it would seem that a substantial part of the wife’s grievances in relation to Jordan J relate to his Honour’s perceived attitude to the involvement in the proceedings of Mr B.
To the extent that there was any concern that the wife might be prejudiced or otherwise at a disadvantage if she had to speak for herself because of her medical condition, we agreed with senior counsel for the husband who submitted (in opposing Mr B’s appearance for the wife) that the wife’s application for an extension of time could effectively be dealt by us on the basis of the written material which was before us, thus avoiding the need for the wife to speak. For this purpose senior counsel tendered and we were prepared to receive, the wife’s written submissions received by Jordan J on 20 June 2008.
Furthermore, given the preliminary view which we took of the wife’s application, we considered that it was only necessary, from a procedural fairness point of view, that we provided the opportunity to make oral submissions to those appearing for the husband and the Independent Children’s Lawyer. As it turned out the wife, speaking for herself, did make brief oral submissions including citing authorities in support of her application.
The principles governing the grant of an extension of time to appeal
One of the most authoritative statements in this country of the principles governing the grant of an extension of time to file an appeal, is to be found in the decision of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 where his Honour had to determine an application to extend time to appeal the order of another Justice of the High Court made over 16 months out of time. McHugh J explained the relevant principles in the following way (emphasis added):
…The present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal “depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional”. This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was that she decided to appeal. Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. Since I am firmly of the opinion that the proposed appeal of the applicant cannot possibly succeed, however, it is unnecessary to determine what conclusion I would have reached in this matter if I had thought that the appeal was arguable.
Application of the principles to the present case
Having regard to McHugh J’s statement that “lack of legal knowledge is a misfortune, not a privilege”, the wife in the present case could place little reliance on the fact that she erroneously believed (as she conceded in her affidavit filed on 2 September 2008) that the time for filing her notice of appeal did not expire until Monday 21 July (being the date on which her notice of appeal was in fact received by the Registry).
But given his Honour’s references to periods of delay, it also had to be remembered that when considering the overall interests of justice that the delay in this case was a mere two days, being the two days of a weekend.
However the real issue in this case as was recognised by Mr Page and Mr McGregor was the prospects of success of the wife’s appeal.
Before referring to the grounds of appeal contained in the wife’s proposed notice of appeal, it will be useful to refer to her written submissions to Jordan J on 20 June 2008 and to his Honour’s reasons for rejecting her application that he disqualify himself from further hearing her proceedings.
The wife’s outline of argument which she provided to his Honour, and which, as we explained above, was before us, began with the statement:
The clear bias against the mother and her partner exhibited by Justice Jordan in this matter is less than exhaustively catalogued as follows.
The wife then went on in her outline to assert (in summary):
· that at a hearing on 13 March 2007 his Honour had refused to allow Mr B to sit alongside her at the bar table to assist her (paragraph 2);
· that later in the hearing on 13 March 2007 when “a particular person” (unnamed) had entered the court room his Honour had said “I will never allow [Mr B] to appear in my court” (paragraph 3);
· that on 4 September 2007 his Honour had made orders prohibiting Mr B from having any contact with the wife’s children “on the basis of … no tested evidence” (paragraph 4);
· that during the second half of 2007 his Honour “displayed bias and failed to discharge his [d]uty to ensure that his orders for the children to attend counselling with the mother and spend time with the mother were complied with” (paragraph 5);
· that “on several occasions” his Honour declined to make “suitable orders to ensure that the father’s attempts to prevent all contact between the mother and the children … were thwarted” (paragraph 6);
· that his Honour had made certain financial orders which were “vulnerable” on appeal (paragraph 7);
· that on 19 February 2008 his Honour “had elected to display bias” against the wife by finding that the husband “had not contravened an order” (paragraph 8);
· that on 15 April 2008 his Honour had permitted the wife to inspect subpoenaed documents, but had prohibited Mr B “from accompanying her to assist” (paragraph 9).
There was then a tenth paragraph in the wife’s outline of argument, which is difficult to understand, but it appears to continue to assert bias on his Honour’s part against Mr B.
It appears from his Honour’s ex tempore reasons for judgment delivered on 20 June 2008 that he dismissed the wife’s three applications which he dealt with that day (being the applications for disqualification, appointment of another judge and discharge of the Independent Children’s Lawyer) for the reason that the wife had “failed to make out any case” in support of those applications.
His Honour’s reasons for reaching his conclusion were as follows:
4.At the commencement of the proceedings, Mr Page, who appears on behalf of the husband, contended that the application should be summarily dismissed because of the lack of any evidence to support the applications and the Independent Children's Lawyer, Ms Hawdon, also made submissions to similar effect. The wife sought an adjournment to enable her to place further evidence before the Court and I refused that application, as will appear on the record.
5.As part of that process, I have allowed the wife to hand to me an outline of argument, which I should admit in these proceedings as Exhibit 1, given that reference has been made to it, and reference to the record will also describe the limited basis upon which that document was received.
…
6.In it, reference is made to a number of aspects of the history of this matter and there has been no explanation why that type of detail, to the extent that it may have been relevant, was not or could not have been included in the wife's affidavit in support, which is the only evidence properly before me. The outline appears to contain the type of evidence upon which the wife would seek to rely had it been incorporated in the material filed in support of her applications.
7.Even making allowances for the wife's lack of legal representation, the reality is that the wife has been applicant and respondent in multiple applications, many of which she has filed herself without the benefit of legal representation. Those applications have necessarily been accompanied by affidavits. For some reason, in this matter, the wife's affidavit in support of her application contains nothing but bald assertions which are largely a replication of the terms of the applications which appear in pars 1, 2 and 3.
8.It could be construed that, after the bald assertions which appear in pars 1, 2 and 3 of the wife's affidavit, there is some effort to demonstrate some asserted incompetence on my part, but there is not contained in the body of the affidavit any particulars, grounds or evidence upon which one could base an argument, much less a finding, of actual or apprehended bias. The document in support is an eight paragraph affidavit and I gather the first three paragraphs are intended to deal with the first three paragraphs of the application.
9.As I say, I have had regard to the totality of the affidavit and, despite many invitations to [the wife] to point to relevant evidence, she herself was unable to point to any evidence contained in her affidavit which would support her case of bias. Her affidavit is similarly simply silent on any alleged impropriety on the part of the Independent Children's Lawyer.
10.In the circumstances, I find that the applicant has failed to make out any case in support of pars 1 to 3 of her application and I must, in those circumstances, dismiss those applications.
The wife’s proposed grounds of appeal are as follows:
1.Justice Jordan has displayed clear and on the record bias against appellant [sic] on a number of occasions over the whole time of his involvement with this matter, as was adequately set out in the Outline of Argument before His Honour at hearing and His Honour’s conduct at this hearing further evidenced that bias against the appellant compared to the other party.
2.His Honour failed to cognise that there were adequate grounds before him to require that he disqualify himself.
3.On 20 June 2008, His Honour displayed further impropriety or his discretion miscarried in a number of ways:
a) He twice refused to allow the appellant to swear that the facts set out in her Outline of Argument were true.
b) He twice refuse [sic] to allow the appellant to present oral evidence from a relevant witness who was present in court.
c) He stated that some relevant facts were not properly in evidence before him, when in fact, those facts were directly within His Honour’s own knowledge.
4.His Honour erred in Law by stating that evidence necessarily must be in affidavit form and filed and served before time for the court to consider that evidence when that is not the Law.
5.His Honour’s discretion miscarried in not allowing other forms of evidence to be heard, given that the hearing was brought on on only several days notice to the appellant and there was not time to get further material filed and served.
6.His Honour’s Discretion miscarried in that he dismissed Orders Sought by the appellant when there was evidence enough to warrant the grant of those orders.
7.His Honour’s Discretion miscarried in that he failed or refused to make some or all of the orders sought by the appellant when the law requires that upon the making of her request, he was required to exercise his discretion in her favour.
8.There was no evidence or other material to justify His Honour making the orders he did make.
9.The orders made were an improper exercise of His Honour’s Discretion.
10. The orders made or not made as the case may be, were otherwise contrary to Law.
On their face these grounds are, for the most part, not easy to comprehend. However, when read against the contents of the wife’s outline of argument which was before his Honour, and also his Honour’s reasons for judgment, we had little difficulty in understanding the complaints contained in those grounds. We were also able to conclude that such complaints might found competent grounds of appeal.
However, in the absence of transcript of the various proceedings before Jordan J and to which the wife’s complaints relate, it is impossible for us to determine whether the grounds of appeal embodying those complaints would have substance or merit.
It would of course have been desirable, indeed preferable, had the wife provided transcript to us (and also to his Honour) of the various occasions in which she alleged there was actual or apprehended bias on the part of his Honour. But no good purpose would have been served by further delaying these proceedings by an adjournment of the hearing of the application to extend time to appeal in order to provide the wife with an opportunity to put transcript before this Court.
Rather, against the background of the fact that the wife was only “out of time” to appeal by two days, the more efficient course was, in our opinion, for her appeal to be heard as quickly as possible. For the hearing of the appeal she will of course have to produce the transcripts of the occasions when she alleged actual or apprehended bias on the part of his Honour.
In relation to the various other factors to which McHugh J referred in Gallo v Dawson (supra) as being necessary to have regard to when determining whether strict adherence to the prescribed time limit will work an injustice, we considered the consequences to both parties of a refusal to extend time. In this regard, we were mindful of the fact that it was only on the day on which we heard the wife’s application for an extension of time to appeal, that the trial of all outstanding final applications between the parties was due to commence. If the extension of time to appeal was granted the trial could not then proceed. In our opinion, there was value to both parties in permitting the appellant to have the opportunity to ventilate her complaints regarding the trial judge at this point in time rather than run the risk that such complaints might seek to be ventilated during, or worse still, after, the conclusion of a trial.
For these reasons, we considered that on balance the overall interests of justice required us to exercise the discretion in favour of permitting the wife to proceed with her appeal. This we did by extending the time for her to file her notice of appeal against the orders of 20 June 2008 until the day on which her notice of appeal was received by the Registry, being 21 July 2008.
It is obviously important that the appeal be heard as soon as possible. We therefore made directions for this to happen in the very near future.
Costs of the application to extend time
At the conclusion of the hearing before us, orders for costs against the wife were sought on behalf of the husband, the Independent Children’s Lawyer and the Official Trustee in Bankruptcy.
As we explained to the wife at the time, by applying for an extension of time to appeal, she was seeking an indulgence from the Court, and in such circumstances it is not unusual for the party seeking such an indulgence, to be ordered to pay the costs of the other parties to the proceedings.
Accordingly, we ordered that the wife pay the costs of the other parties of and incidental to her application. Payment of such costs was however stayed pending the determination of the financial proceedings pending between the husband and the wife.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 21 November 2008
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