Batta & Batta
[2021] FamCAFC 120
•24 June 2021
FAMILY COURT OF AUSTRALIA
Batta & Batta [2021] FamCAFC 120
Appeal from: Batta & Batta [2020] FCCA 3637 Appeal number(s): SOA 10 of 2021 File number(s): MLC 694 of 2018 Judgment of: STRICKLAND J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Where the reasons for the failure of the applicant to file the Notice of Appeal within the time are understandable but not satisfactory – Where the applicant’s grounds of appeal are incompetent and do not identify any appellable error by the trial judge – Where there would be no prejudice to the applicant if the application is dismissed but serious prejudice to the respondent if it is granted – Application dismissed.
FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Order made.
Legislation: Family Law Act 1975 (Cth) s 102NA Cases cited: Gallo v Dawson [1993] ALR 479 Division: Appeal Division Number of paragraphs: 35 Date of hearing: 24 June 2021 Place: Adelaide (parties appeared by MS Teams audio link) Solicitor for the Applicant: In person Solicitor for the Respondent: Ms Sim ORDERS
SOA 10 of 2021
MLC 694 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS BATTA
Applicant
AND: MR BATTA
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 5 March 2021 be dismissed.
2.The applicant wife pay the costs of the respondent husband fixed in the sum of SEVEN HUNDRED AND FIFTY DOLLARS ($750).
AND UPON NOTING THAT the order for costs is in addition to the order for costs made previously on 27 April 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Batta & Batta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Ms Batta (“the applicant wife”) on 5 March 2021. In that application, the primary order sought is for an extension of the time to file a Notice of Appeal against the orders made by Judge Stewart on 15 December 2020. There is also reference in the orders sought to the applicant wife not agreeing with the orders that were made, and the orders she wishes to appeal against, but that doesn't take the matter any further.
The application is supported by an affidavit also filed on 5 March 2021, and that is a brief affidavit to which I will come in a moment. In addition, there is a draft Notice of Appeal, which is the Notice of Appeal on which the applicant wife proposes to proceed in the event that an extension of time is granted.
Also before the court is the Response filed by Mr Batta (“the respondent husband”), filed on 26 April 2021. That Response is supported by an affidavit filed on the same date. The respondent husband seeks that the application be dismissed, and there is also an application for costs, which I will come to somewhat later.
Helpfully, the respondent husband also filed a summary of argument on 27 April 2021, and on 24 June 2021, he filed written submissions in relation to the question of costs.
As I have said, the orders the subject of the proposed appeal were made on 15 December 2020, and the relevant rules of court provide that an appeal against those orders needed to be filed within 28 days of when they were made. Now, that did not happen and, of course, that led to the need for the applicant wife to file the Application in an Appeal on 5 March 2021.
The orders the subject of the proposed appeal are orders by way of property settlement, and those orders followed a hearing before the primary judge from 7 to 9 December 2020. I further note that at that hearing, both parties were represented by counsel, and I particularly note that the applicant in the application before the court today was represented by counsel.
In any event, the principles applicable to an application seeking an extension of time to file a Notice of Appeal are well-settled and in that regard, I refer to the well-known decision of Gallo v Dawson [1993] ALR 479 (“Gallo & Dawson”), and in particular, the judgment of McHugh J. His Honour said this at [480]:
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 summary then, there is a discretion to extend time fixed by rules of court, and the sole purpose of giving that discretion is to enable the court to do justice between the parties, and in considering where the justice of the case might lie, there are a number of factors to which regard needs to be had.
There are three primary factors, and they are first, the reasons for the failure to file a Notice of Appeal within the time period permitted under the rules. The second primary factor is the merits of the appeal or, put another way, whether the appeal has any reasonable chance of success. And the third primary factor is the prejudice that might be suffered by the parties depending upon the result of the application and by that I mean if the application is dismissed, then the question of the prejudice to the applicant wife needs to be considered and on the other side of the coin, if the application is allowed, then the prejudice to the respondent husband needs to be considered.
There are other factors which are sometimes taken into account, such as the history of the proceedings, the conduct of the parties, and the nature of the litigation, but in the matter before the court today, I consider that it is unnecessary to address factors such as those. Indeed, there is nothing that either party has put to the court which would relate to those factors, and thus I propose to consider only the three primary factors referred to above.
With the first factor, namely the reasons for the failure to file a Notice of Appeal within the time allowed, I need to go to the affidavit of the applicant wife filed on 5 March 2021. There the applicant wife deposed as follows:
1.The first application was sent on the 14th January, I calculated subtracting the both public holidays and weekends. My paper was sent back, stating that I was 2 days late. I then sent appeal application via registered post on the 9th February and noted that it was received on the 10th February 2021. No communication received until I came to the Court on 2nd March 2021.
2.It is a final order, I strongly disagree with the orders being made. The perpertrated was favoured, my lawyer was in favour of my exhusband, stating that because he is paying he deserves more. The judge mentioned that the Commonwealth paid and switched the camera off. I am a victim of domestic violence and no justice was given. The lies of me taking alcohol and stealing was so strongly use is this case. I was treated like a piece of dirt in this case.
(as per the original)
Doing the best I can in understanding what is there deposed to, the applicant wife seems to be saying that her first attempt to file a Notice of Appeal was sent on 14 January 2021 after calculating the relevant period by deducting the public holidays and weekends. However, her calculations were not accurate and her attempt to file the Notice of Appeal was some two days late.
She says that she then sent an “appeal application” by registered post on 9 February 2021, and which she says was received by the court on 10 February 2021.
However, if what the applicant wife is referring to there is another attempt to file a Notice of Appeal, that would have come to nought because, of course, once the 28 days had expired, the only option open to a party is to file an Application in an Appeal seeking an extension of time.
On the other hand, if what the applicant wife is referring to there is, indeed, her application seeking an extension of time, as I have said, that was received and filed on 5 March 2021. So pausing there, it seems that the applicant wife attempted to file the Notice of Appeal within time but by dint of a miscalculation of public holidays and weekends, it turned out that the notice was out of time. And it seems that in terms of pursuing the matter, there was no inordinate delay in the applicant wife then filing an Application in an Appeal seeking an extension of time.
Thus, there is an understandable reason for the failure to comply with the 28 day period, but, it is not necessarily a satisfactory reason because, of course, the period is 28 days. It seems what the applicant wife has done is to wait until the very last moment to file the notice. What she should have and could have done is to file it earlier in the 28 day period, but she did not, and as a result of waiting until the very last moment, she found herself out of time.
I now turn to the second factor and that is the merits of the proposed appeal. In that regard, I need to look to any grounds of appeal set out in the proposed Notice of Appeal. However the first difficulty that the applicant wife confronts is that there is no ground of appeal set out in that Notice of Appeal. All that the applicant wife has put under the heading “Grounds of appeal” is:
I respondent [Ms Batta] is appealing the final orders made by judge J. Stewart on the 15th December 2020.
(as per the original)
However, when I turn to the section in the draft Notice of Appeal headed “The orders sought in the appeal”, it is possible to discern, although with some difficulty, the complaints that the applicant wife wishes to pursue by way of appeal against the orders made by the primary judge. There the applicant wife says this:
Final orders made on the 15th December 2020 by judge J Stewart to be dismissed, for the following reasons:
1.My case was granted by the same judge J Stewart for a 102NA, but in her final orders she dismissed it, although ample amount of evidence was provided to her in my affidavit.
2.Mr. [Batta] had denied breaking my daughter’s nose in his two affidavit, but admitted at the final trial hearing, and was not charged for purjury.
3.My daughter [X], has been contributing towards the loan and was not taken to account, suddenly she was considered as a tenant. If so why didn’t Mr. [Batta] mention that previously, when he left the premises.
A.Further orders: refer to sheet provided via email to judge J. Stewart Dec 14th 2020 @ 5:59pm.
(as per the original)
First, it seems that the applicant wife is complaining that the judge in some way dismissed an order made under section 102NA of the Family Law Act1975 (Cth).
Now, that is a section which provides that where there are allegations of family violence, as well as other considerations, then there is a ban on cross-examination, unless it is undertaken by a lawyer, and there is then a provision for legal assistance to be provided to a party where there is such a ban so that a lawyer can conduct that cross-examination. But, it is impossible to comprehend to what the applicant wife is referring because in the primary judge's final orders, she did not dismiss any order made under section 102NA. So that is a complaint that has no merit. And, indeed, as I have indicated previously, the applicant wife was represented by counsel at the final hearing, that counsel undertook cross-examination of the respondent husband, and that adds to the difficulty in comprehending to what the applicant wife is referring.
Turning to the second complaint. That seems to relate to evidence given during the hearing as to the respondent husband breaking the applicant wife’s daughter's nose, which, it seems, he admitted to during the course of the hearing. But, as can be seen, the complaint appears to be that the respondent husband was not charged with perjury.
The primary judge took into account the instances of family violence perpetrated by the respondent husband against the applicant wife and it is irrelevant to her Honour's orders whether there was a basis or not for referring the respondent husband to the relevant authority for the purpose of being prosecuted for perjury.
Then, finally, there is the third complaint. That relates in general terms to the question of whether the applicant wife’s daughter was contributing towards a loan, and the complaint seems to be that the primary judge did not take that into account, and in some way considered the daughter as a tenant.
In relation to that issue, the contribution of the daughter to the loan was taken into account by her Honour and formed the basis for the adjustment of 2.5 per cent in the applicant wife's favour. I refer to [38] to [39], [41], [63] and [64] of her Honour's reasons for judgment, and I also point out that her Honour did not refer to the daughter as a tenant. So again, that is a complaint that has no merit. It does not demonstrate or establish any appellable error by the primary judge.
Now, there is a fourth paragraph in the section which, as can be seen, refers the reader to an email sent to the primary judge on 14 December 2020. That is an email which is in the court record, and it was an email sent on Monday, 14 December 2020 at 5.59 pm. It was sent to the primary judge's associate by the applicant wife on the evening before her Honour made the orders the subject of the proposed appeal.
That email comprises nothing more than a litany of complaints made by the applicant wife in relation to the evidence that was before the primary judge. It was completely inappropriate for such an email to be sent to the chambers of the primary judge, and I would expect that the primary judge would not have read this email. Indeed, the protocol would have been that it was not even referred to her Honour. In any event I can say categorically that nothing in that email demonstrates any error by the primary judge.
The summary of that is that not only is there no reasonable prospect of success if the appeal is allowed to proceed, there is no prospect of success, and thus, it would be pointless to allow the appeal to proceed because, if it did, it would immediately be subject to dismissal. On that basis it would be an entire waste of time, waste of resources, and waste of the court's facilities, to allow the appeal to proceed.
Accordingly turning to the final factor, namely the question of prejudice. Clearly, there would be prejudice prima facie to the applicant wife if the application is dismissed because she would not then be able to pursue an appeal, but, of course, that is no prejudice at all given what I have just said, namely, that where there is no merit in the appeal, and where it would then be subject to dismissal, creating a waste of time, a waste of resources, and a waste of use of the court facilities, to extend the time would be pointless.
On the other hand, if the application is permitted, the respondent husband would suffer prejudice in that he would need to deal with an appeal where, as the matter stands, there is no appeal before the court and the respondent husband is entitled to enjoy the fruits of the orders made by the primary judge.
Thus, in my view, there can be no prejudice to the applicant wife if the application is dismissed, but there would be serious prejudice to the respondent husband if the application was granted.
In conclusion, as I say, the authorities, and in particular Gallo & Dawson, require this court to assess where the interests of justice lie in the context of rules of court that provide a time period for the filing of a Notice of Appeal. In addressing that issue, although the reasons for the failure to file a notice are understandable, I am not necessarily persuaded that they are satisfactory, but the most significant issue here is that there is no merit whatsoever in the proposed appeal, and added to that, the only prejudice that would be suffered by the parties would be prejudice suffered by the respondent husband if the application was successful. Thus it is beyond doubt that the interests of justice here require that the application be dismissed.
I now have an application on behalf of the respondent husband seeking costs. The costs sought are $9,792.15. They're sought on an indemnity basis and submissions have been filed in support of such an order being made. However, the problem which seems to be overlooked by the respondent husband is that on 27 April 2021 I made an order for costs of $1,500. That covers the costs up to 27 April 2021. Therefore, the only costs that could be sought are those subsequent to that, and, as it turns out, the only costs sought in that regard are, firstly, costs of one and a half hours of preparation for today's hearing, and the time spent in court today, which has been 45 minutes, stretching out now to about an hour. I am told that on an indemnity basis, the total cost for those two items would be about $1,000, and I am told that on scale, the cost for those two items would be about $630.
In my view, there should be an order for costs. The applicant wife sought an adjournment on 27 April 2021, specifically to obtain legal assistance in the context of this court providing a preliminary view that the application she brought had extreme difficulties and would likely be dismissed.
Today, at the adjourned hearing, two things became apparent: first, the order for costs that I made on 27 April 2021 has not been complied with. Secondly, the applicant wife tells me that she did seek some legal advice, but because they wanted some money or more money, she wasn't prepared to do that. Thus she hasn't completed that exercise and she came to this court today to pursue her application, despite the preliminary view that I expressed to her on 27 April 2021. Accordingly it is beyond doubt that there are circumstances that justify the awarding of costs, and the costs that I am disposed to order is $750.
I note that the solicitor-advocate for the respondent husband now submits that the order for costs made on 27 April 2021 did not cover all of the costs in relation to the matter up to that point and specifically it did not cover to the costs of preparation. Thus belatedly the respondent husband seeks further costs other than for the two items that I spent some time addressing. I confirm that, in my view, there are still circumstances that justify an order for costs, but I am not prepared to change what I have already said, and thus, the order for costs will be as I have already indicated, namely, a further $750.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 16 July 2021
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