Bele & Vaughan (No.2) - [2012] FamCAFC 125

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN (NO. 2)

[2012] FamCAFC 125

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REVIEW OF REGISTRAR’S DECISION – where the Regional Appeal Registrar refused to accept for filing the Notice of Appeal dated 4 May 2012 against orders made on 9 June 2011 and 13 December 2011 – where the applicant relies on r 24.10(3) of Family Law Rules 2004 (Cth) – where the process and principles are the same regardless of the Rule utilised – where the orders are “affected orders” under the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) – where the applicant says that the time to file a Notice of Appeal commences to run from the time of commencement of that Act – where these arguments are flawed – where to pursue an appeal against the orders of 9 June and 13 December 2011 still requires either reinstatement of the abandoned appeal and/or an extension of time to appeal – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where in the alternative the applicant seeks to reinstate the appeal previously filed against orders made by Cronin J on 9 June 2011 – where that appeal was deemed abandoned pursuant to r 22.21 Family Law Rules 2004 (Cth) – where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – where the applicant provides no adequate explanation of the failure to comply with the order for the filing of the appeal books or the delay in filing an application until 13 June 2012 – where there is no merit in the grounds of appeal set out in the abandoned Notice of Appeal – where there is no actual error by either trial judge raised in the Notice of Appeal dated 4 May 2012 and no grounds of appeal as such are set out – where in any event there is doubtful merit in the challenges set out in that Notice of Appeal – where the appropriateness of seeking to pursue the constitutional arguments raised by the applicant by using the appeal process itself is called into question – where it is found that the approach adopted by the applicant is part of a concerted effort to prevent the sale of the property being completed pursuant to the orders of Le Poer Trench J of 13 December 2011 – where there can be no criticism of the conduct of the respondent – where the conduct of the applicant and her legal advisers is “appalling” – where there is an obvious prejudice to the respondent in granting the application – where the applicant has been found to lack bona fides – where the interests of justice demand that the application be refused – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where in the further alternative the applicant seeks an extension of time to appeal the orders of Le Poer Trench J of 13 December 2011 – where the applicant provides no adequate explanation for the failure to file a Notice of Appeal within the time specified in the Rules or the failure to file an application until 13 June 2012 – where the conduct of the applicant of itself is sufficient to require that the application be refused – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks that the applicant pay his costs of and incidental to the proceedings on an indemnity basis – regime set up for the filing of written submissions.

Family Law Act 1975 (Cth)
Judicature Act 1903 (Cth)

Family Law Rules (2004) (Cth) – rr 22.10(3), 22.21 and 22.40

Bailey v Marinoff (1971) 125 CLR 529
Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
C & C [2006] FamCA 300
DJL v The Central Authority (2000) FLC 93-015
DMW and Another v CGW (1982) 151 CLR 491
Gallo v Dawson (1990) 93 ALR 479
Metwally v University of Wollongong (1985) 60 ALR 68
Rand & Rand [2009] FamCAFC 88
Re Macks & Others; Ex parte Saint (2000) 176 ALR 545
Residual Assco Group Ltd v Spalvins and Others (2000) 172 ALR 366
Suttor v GundowdaPty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491

APPLICANT:

Ms Bele

RESPONDENT:

Mr Vaughan

FILE NUMBER:

MLC

9056

2009

APPEAL NUMBERS:	SOA	45	of	2011
SOA	46	of	2012

DATE DELIVERED:

21 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne and
Adelaide via video-link

JUDGMENT OF:

Strickland J

HEARING DATES:

13 July 2012 and
19 July 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 June 2011

LOWER COURT MNC:

[2011] FamCA 436

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT CONSENT ORDER DATE:

13 December 2012

LOWER COURT MNC:

N/A

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Y (solicitor) - 13 July 2012

COUNSEL FOR THE APPLICANT:

Applicant appeared in person - 19 July 2012

SOLICITOR FOR THE RESPONDENT:

Y Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Harriss (solicitor)

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

Paragraphs 1, 2 and 3 of the Application in an Appeal filed on 13 June 2012 be dismissed.
The Response filed on 6 July 2012 be dismissed.
The parties are at liberty to file written submissions with regard to the question of costs in accordance with the following timetable:
(a) On behalf of the respondent within twenty-one (21) days hereof;
(b)On behalf of the applicant in response thereto within twenty-one (21) days thereafter;
(c)On behalf of the respondent in reply thereto within fourteen (14) days thereafter.
Each submission as to costs have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bele & Vaughan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Numbers: SOA 45 of 2011 and SOA 46 of 2012
File Number: MLC 9056 of 2009

Ms Bele

Applicant

And

Mr Vaughan

Respondent

REASONS FOR JUDGMENT

Introduction

The application that is before the court is the Application in an Appeal filed by Ms Bele on 13 June 2012 in which she seeks the following orders:
1.An order permitting the filing of the Notice of Appeal annexure NBB “A” to the Affidavit of [Ms Bele] filed herewith.
2.Alternatively, an order reinstating the appeal previously filed in proceedings SOA45 of 2011 in respect of the orders of Cronin J.
3.In relation to the orders of Le Poer Trench J dated 13 December 2011 an order extending the time in which to lodge an appeal.
4.A Status Quo order restoring the position which existed prior to the orders of Cronin J of 9 June 2011 and Le Poer Trench of
13 December 2011 and prohibiting the sale of the Applicant’s property at No 9.
That application is supported by an Affidavit filed by Ms Bele also on 13 June 2012.
Also before the court is a Response filed by Mr Vaughan on 6 July 2012 supported by an Affidavit of his filed on the same date.
At the commencement of the hearing on 13 July 2012 an objection was made by the applicant’s solicitor Mr Y to the court receiving the respondent’s Response and Affidavit. I ruled against that objection given that first the Respondent was quite entitled to file a Response to the Application and seek orders in that Response, and secondly, it was readily apparent that the contents of the Affidavit were relevant not only to the orders sought in the Response, but to the alternative applications for reinstatement and an extension of time made by the applicant.
There then arose an issue as to which should be heard first, the Application or the Response. In the context of that issue an oral application was made by

Mr Harriss for the respondent to amend the Response. I granted that application and the relevant orders sought then became:
2.That the Application filed on 13 June 2012 be stayed unless and until the Applicant complies with paragraph 1 of the Orders made by the Honourable Justice Cronin in the Family Court of Australia sitting at Melbourne on 25 June 2012 namely:
“That the respondent forthwith produce or cause to be produced to Messrs Mills Oakley of Level 6, 530 Collins Street, Melbourne, duplicate Certificate of Title Volume … Folio … being the duplicate Certificate of Title in respect of the real property at [No 9] and thereafter, Mills Oakley hold the said title on trust pending the settlement of the sale of the real property and the lawyers be authorised to hand over the title to the purchasers of their representatives or bankers upon the settlement of the sale”.
3.That in the event that the Applicant/Appellant has not complied with paragraph 1 of the Orders of Justice Cronin of 25 June 2012 by 31 July 2012, the Application filed on 13 June 2012 by the Applicant/Appellant be dismissed.
I then determined that given the orders sought I should deal with the Response first, but ultimately that simply came down to permitting Mr Harriss to make his submissions in respect of both the Response and the Application first.
The hearing then proceeded, but unfortunately for reasons which may very well sound in costs against the applicant, the hearing was not able to be concluded in the time available on 13 July 2012 and the hearing was adjourned to 19 July 2012.
Towards the conclusion of the hearing on 13 July 2012 Mr Y announced that he had just been handed a note by Mr A which read, “email instructions withdrawn”. It is apparent that this arose without any warning, and it left Mr Y in a difficult position. In the circumstances of clearly needing to sort out with his client what his position was, Mr Y did not seek leave to withdraw and remained at the bar table for the short time that was left of the hearing that day.
At this point I should say something about Mr A. Mr A has been variously described as an “agent” of Mr Y and a “consultant” to Mr Y’s firm. He is not a lawyer yet he describes himself as a “constitutionalist” and as an author of books on certain constitutional and other legal issues. Whatever the word “constitutionalist” may mean, I observe that this was also a word used by Mr Y to describe Mr A.
What is apparent is that Mr A has prepared many, if not all, of the documents that have been filed on behalf of the applicant, including several documents entitled “ADDRESS TO THE COURT”. I hasten to add though that in an attempt to “legitimise” these documents Mr Y’s name is attached to them to give the impression that they are filed and presented under his hand. Mr Y also signs these documents where appropriate.
It has been necessary for me to read many of these documents prepared by

Mr A and they invariably comprise meaningless and incoherent drivel.
Mr A was present in the courtroom during the hearing on 13 July 2012, and it was he, to repeat, who passed the note to Mr Y withdrawing his instructions. This, of course, was an extraordinary turn of events, but to try to put it into some sort of perspective, the applicant was not present at the hearing, she residing in a European country. Earlier in the day I had requested Mr Y to contact his client to obtain her instructions as to when she would be complying with an order made by Justice Cronin on 25 June 2012 that she produce the duplicate Certificate of Title to a property which had been ordered to be sold. Mr Y then attempted to contact his client, but informed me that he was only able to leave a message on her answering service, and send her an email. Thereafter, there was no response from the applicant until Mr A passed the note to Mr Y. Mr Y did not take any telephone call from his client, and nor did he receive an email. Thus, logically, if this was a genuine message from the applicant, which I frankly very much doubt, she would have had to have communicated with Mr A in some way. In any event I have not been informed of how this is said to have occurred. My strong suspicion though is that this was all orchestrated by Mr A in a typically misguided attempt to prevent this matter being finalised in a way that did not suit the applicant or those agitating on her behalf, including Mr A.
Following the adjournment, on 18 July 2012 Mr Y filed a Notice of Ceasing to Act and Ms Bele filed a Notice of Address for Service providing the address of Mr A.
When the hearing resumed on 19 July 2012 Ms Bele made an oral application for Mr A to represent her in the proceedings. That application was opposed and I delivered ex-tempore reasons dismissing that application. The hearing then proceeded with Ms Bele appearing in person, but with Mr A “assisting” her.
I note three further matters at this stage. First, during the hearing on 19 July 2012 I recounted the perplexing circumstances of Mr Y’ s instructions being withdrawn late on 13 July 2012. Ms Bele then informed me that she withdrew Mr Y’s instructions because she was concerned about his health after listening to a telephone message from him. Now I consider this to be nothing more than a trumped up attempt to justify the misguided manoeuvre orchestrated by Mr A to obstruct the hearing of the Response to the Application. Mr Y appeared before me during the entirety of the hearing on 13 July 2012 and there was no evidence of any health condition preventing him from conducting the applicant’s case, and it is just nonsense for the applicant to suggest that that was a reason for withdrawing Mr Y’s instructions.
The second matter is that during the hearing on 19 July 2012 I was informed that an application had been filed by the respondent and was listed before Justice Cronin the next day, namely 20 July 2012, seeking, inter alia, an order for the creation by the Registrar of Titles of a new Certificate of Title for the property that was the subject of the order for sale. It immediately became clear that if made, an order to that effect would obviate the need for the respondent to pursue the orders sought in his Response before me. Thus, at the conclusion of the hearing I requested the respondent’s solicitor to provide the court with a copy of any order made by Justice Cronin on 20 July 2012. That has now occurred and I can record that Justice Cronin did make the order sought. Thus, there is no longer any need for me to determine the application for the orders sought in paragraphs 2 and 3 of Mr Vaughan’s Response. That still leaves though the questions of costs, and I will address that issue later in these reasons.
I might say that, as will shortly become apparent, given that I propose to dismiss the application filed on 13 June 2012, that outcome in any event renders it unnecessary for me to determine the application for the orders sought in the Response.
The third and final matter is that during the hearing on 19 July 2012 I formally dismissed paragraph 4 of the Application. The order sought in that paragraph was nothing more than an order staying the orders made by Cronin J on 9 June 2011 and the Le Poer Trench J on 13 December 2011. However, as I indicated to the applicant (and indeed to Mr Y on 22 June 2012 at a directions hearing, and again on 13 July 2012) such an application has to be made to the judge who made the specific order that is sought to be stayed, and it was not open to this court to take over that task. Indeed, the applicant had previously in September 2011 sought a stay of Cronin J’s order and Cronin J dismissed that application. Further, by Initiating Application filed on 20 March 2012 the applicant sought, inter alia, an order staying the order made on 13 December 2011, and in an Application in a Case filed on the same date she again sought, inter alia, what is described as a “status quo” order in relation to the orders made by Cronin J on 9 June 2011 (in other words using the same terminology as in paragraph 4 of the Application filed on 13 June 2012, and which can have no other meaning than as an application for a stay). On 26 March 2012 before Cronin J the Initiating Application was withdrawn and the Application in a Case was dismissed. I observe that there has been no appeal against any of these orders.

Procedural Background

On 6 November 2009 the respondent filed an amended Application seeking orders for alteration of property, alleging that the parties were in a defacto relationship until separation occurred on 2 March 2009. The applicant objected to the court having jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) alleging that the relationship of the parties ended on 1 March 2008. To have jurisdiction under the Act the parties needed to still be in a defacto relationship as at 1 March 2009.
The question of when that relationship came to an end was heard by Cronin J over five days, two days in October 2010 and on 15, 16 and 17 March 2011. On 9 June 2011 his Honour declared that “[p]ursuant to s 90RD and 4AA of the Family Law Act 1975 (Cth) a defacto relationship existed between the applicant and the respondent, and that it came to an end on 2 March 2009.” His Honour then ordered that the Application for Final Orders be listed for hearing.
On 7 July 2011 the applicant filed a Notice of Appeal against the orders made by Cronin J on 9 June 2011. The grounds of appeal were as follows:
1.That his Honour erred in failing to provide adequate reasons in his judgement (sic):
(a)for his determination that the court proceedings in [a European country] were irrelevant
(b)for his determination that the Family Court of Australia had jurisdiction to determine the matter pursuant to Section 90RD and 4AA of the Family Law Act 1975 (Cth) (“the Act”)
(c)of his consideration and application of the geographical requirements of Section 90RG of the Act.
(d)for his consideration of whether the applicant had standing to make the initating [sic] application to the court
(e)of his consideration and application of the facts to determine the proportion of the relationship which was in [a European country] in the context of the whole relationship
2.That his Honour erred in law by failing to apply the law to the facts in relation to the geographical requirement of Section 90RG of the Act whereby a court must be satisfied that a person referred to in paragraph 90RD(1)(B) was ordinarily resident in the participating jurisdiction when the primary proceedings commenced.
3.That his Honour erred in law by determining that the court had the jurisdiction to make the orders whilst proceedings were onfoot in [a European country].
4.That procedural fairness was not provided to the appellant in relation [to] the witnesses and evidence of the appellant and weight given to that evidence.
5.That procedural fairness was not provided to the appellant in relation to provision of a translated version of the court proceedings in [a European country] whereby His Honour unilaterally criticised the appellant for not providing translated copies of the proceedings however His Honour did not criticise the applicant husband for the same.
On 1 September 2011 the applicant sought a stay of the orders made by Cronin J pending the hearing of the appeal. On 13 September 2011 his Honour dismissed that application. To repeat, there was no appeal against that order.
The proceedings were listed to be heard in December 2011 by Le Poer Trench J. The applicant though applied to adjourn that hearing primarily on the basis that her appeal against the orders of Cronin J was pending. That application was dismissed by Le Poer Trench J on 9 November 2011. Again there was no appeal against that order.
On 7 December 2011 the applicant was advised that her appeal was deemed abandoned pursuant to the Family Law Rules 2004 (Cth) as a result of her failure to file appeal books in accordance with orders made on 14 September 2011. I note that pursuant to a request by the applicant’s counsel an extension of time to file those appeal books had been granted by the Regional Appeal Registrar, but there was still no compliance with the order in the further time allowed.

On 8 December 2011 the hearing commenced before Le Poer Trench J. However, on 13 December 2011 a settlement was reached between the parties and consent final orders for property settlement were made. They provided:
1.I make orders as set out in the Minutes of Consent Orders signed by each of the parties
1.The Respondent sign all documents and do all things necessary to transfer to the Applicant on trust for sale and to thereafter sell the real property at [No 9] by public auction by [W & Z] Real Estate Agents no earlier than 15 March 2012 on terms and conditions and for a price of no less than $1,600,000.00 (“the sale”) and the proceeds of the sale be applied in the following order:
a.Firstly, to pay all costs of the selling agent, commissions and expenses in preparing the property for sale;
b.        Secondly, the balance be divided:
i.         46.75% to the Applicant [Vaughan].
ii.        the balance to the Respondent [Bele].
c.From the share of [Bele] to pay $100,000.00 to the Applicant.
1A.In the event that the Respondent [Bele] shall pay to the Applicant [Vaughan] the sum of $962,617.00 (“the sum”) within 45 days then the provisions of paragraph 1 hereof providing for the sale of [No 9] shall be discharged and of no effect.
1B.In the event of the payment to the Applicant of the sum the Respondent shall be entitled to sole ownership of [No 9].
1C.The Respondent [Bele] pay and assume sole responsibility for and indemnify the Applicant for any liability under the mortgage (if any) secured on the title to [No 9].
2.Until the March auction the Respondent [Bele] retain all income obtained from the [No 9] property and she retain all liabilities of whatsoever nature and kind attaching to or encumbering that property.
3.That liberty be reserved to either party to apply with respect to the terms and conditions of and execution of the sale including purchase price in the event of an unsuccessful auction.
4.That unless otherwise specified in these orders and save for the purposes of enforcing any moneys due under these or any subsequent orders:
a.Each party be solely entitled to the exclusion to the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
b.Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
c.Insurance policies remain the sole property of the owner named therein;
d.Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
e.Any past or future redundancy payments remain with the recipient;
f.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
5.The parties each sign all documents and instruments required to give effect to these orders.
6.The Registrar of this Court is appointed pursuant to S106A of the Family Law Act to sign all documents and instruments in the name of the defaulting party.
7.All extant applications be otherwise dismissed.
8.There be no order as to costs.
AND THE COURT NOTES:
A.That pursuant to Section 90ST of the Family Law Act the parties intend to finalise all financial relationships between the parties in Australia.
B.These orders give effect to an adjustment of the parties’ Australian property in approximate proportions of 45% to the Applicant and 55% to the Respondent.
C.Each party retain the entitlements to property in [a European country] as the Courts in that jurisdiction have determined.
D.That the Applicant withdraw his Application for costs made to Cronin J and referable to the 2010 proceedings under S90RD of the Act and any other costs in this matter.
On 3 February 2012, in response to a request to sign the necessary authority to the real estate agents appointed in the order for the sale of the property, the applicant sent an email to the respondent’s solicitors raising various issues about those consent orders. As a result, and given the auction was due to take place on 24 March 2012, the respondent was obliged to instruct his lawyers to have the authority signed by a Registrar, and that was done.
I observe that although in her email of 3 February 2012 the applicant makes allegations of fraud, no application pursuant to s 90SM of the Act has been instituted. I also note that despite being advised in the letter of 7 December 2011 from the Regional Appeal Registrar that she could apply to reinstate the abandoned appeal, no application to that effect was made until 13 June 2012.
It seems that Mr Y commenced to act for the applicant some time in March 2012 after Mr A came on the scene. Then, on 20 March 2012 the applicant, through Mr Y, filed an Initiating Application annexing a document entitled “NOTICE OF OBJECTION TO JURISDICTION OF THIS COURT IN RELATION TO THE ABOVEMENTIONED ACTION AND APPLICATION FOR INTERIM ORDERS TO MAINTAIN A STATUS QUO”. It is entirely unclear what if any final orders the applicant was seeking in this application, but by way of interim orders she sought the following:
1.An Interim Order to stay the Orders contained in the Consent Orders dated 13th December 2011 and in particular Orders 5 and 6, until determination of the abovementioned jurisdiction objection;
2.An Interim Order prohibiting the sale of the property situate at [No 9] and contents, until determination of the abovementioned jurisdiction objections; and
3.An Order for abridgement of time to allow for an urgent Interim hearing.
Separate to that, the applicant, again through Mr Y, filed an Application in a Case on 20 March 2012. In an accompanying document headed “Address to the Court”, and clearly prepared by Mr A, the applicant sought the following orders:
1.An order establishing the status quo as at 8 June 2011, the day prior to the orders of his Honour Cronin J.
2.Orders for the further conduct and hearing of the applicant’s grounds for challenging jurisdiction of this honourable court in respect of non-matrimonial property matters, as per the application filed.
3.That the granting of the status quo orders sought will not, in any way, prejudice the respondents [sic] [Vaughan]. However, the failure to grant the status quo orders sought will seriously prejudice the applicant [Bele], particularly if it is later established that the court indeed had no jurisdiction to make the property orders.
The respondent opposed these applications, and on 26 March 2012 Cronin J noted that the initiating application was withdrawn and his Honour dismissed the Application in a Case. In short, his Honour found that the application was incompetent there being no basis on which he could make an order staying the proceedings.
Again, to repeat, there was no appeal against his Honour’s orders.
Just prior to this hearing, and on 24 March 2012 the auction took place and the house property was sold. Settlement was then due to take place on 2 July 2012.
The applicant refused to sign any document in relation to the sale of the property and the respondent has been obliged to have each such document executed by a Registrar. The documents include the following:
a)The exclusive auction authority appointing [W & Z] to auction the property;
b)The vendors statement and contract of sale;
c)Notices to the tenants of the property requiring them to vacate the premises;
d)Transfer of land;
e)The goods declaration required for stamp duty purposes; and
f)An authority addressed to the Bank seeking production of the duplicate Certificate of Title.
On 4 May 2012 the applicant, through Mr Y and Mr A, attempted to file a Notice of Appeal against the orders made on 9 June 2011 and 13 December 2011. That Notice was not accepted for filing, and by letter dated 8 May 2012 the Regional Appeal Registrar returned the document to Mr Y.
On 13 June 2012 the applicant filed the Application that is now before me together with the supporting Affidavit.
Because of the applicant’s refusal to produce the duplicate Certificate of Title to enable the settlement of the sale to take place, on 12 June 2012 the respondent filed an application seeking, inter alia, orders about that. On

25 June 2012 Cronin J made the following order:
1.That the respondent forthwith produce or cause to be produced to Messrs Mills Oakley of Level 6, 530 Collins Street, Melbourne, duplicate Certificate of Title Volume … Folio … being the duplicate Certificate of Title in respect of the real property at
[No 9] and thereafter, Mills Oakley hold the said title on trust pending the settlement of the sale of the real property and the lawyers be authorised to hand over the title to the purchasers or their representatives or bankers upon the settlement of the sale.
To repeat, those orders have not been complied with by the applicant, and I observe that there has been no stay application made. However, on 6 July 2012 the applicant filed a Notice of Appeal against these orders.
Also on 6 July 2012 the respondent filed his Response to the Application filed on 13 June 2012, together with his supporting Affidavit.
The settlement of the sale of the property was unable to occur on 2 July 2012 because the applicant still had not produced the duplicate Certificate of Title, and tenants remained in possession of the property. I will say more about these circumstances later in these reasons.
An extension of time to settle of 60 days has been sought on behalf of the respondent but the purchasers have simply reserved their rights in relation to the failure to settle.
The Application of Ms Bele, and the Response of Mr Vaughan was heard over two days, namely 13 July 2012 and 19 July 2012, with judgment being reserved.

Discussion

The review application

The first issue to address is the primary order sought in the Application, and which I have taken to be a review of the exercise of power by the Regional Appeal Registrar in May 2012 to refuse to accept for filing the Notice of Appeal dated 4 May 2012 and sought to be filed on that date by the applicant. Such a review can be pursuant to r 22.40 or r 22.10(3) of the Family Law Rules 2004 (Cth) (“the Rules”).
In the Affidavit filed in support of the Application the applicant identified

r 24.10(3) as the Rule relied on, but that is of no moment, given that the process and the principles are the same regardless of which Rule is utilised.
As with any review of an exercise of power the hearing is a hearing de novo, and it is unnecessary for the applicant to demonstrate any error on the part of the Registrar.
It is of assistance though to know on what basis the Registrar refused to accept the Notice of Appeal for filing. The appeal was against the orders made by Cronin J on 9 June 2011 and Le Poer Trench J on 13 December 2011, and simply put, and as the Registrar explained in her letter to the applicant’s solicitor of 8 May 2012, to pursue an appeal against the orders made by Cronin J on 9 June 2011 the appeal filed against those orders and which was deemed abandoned would need to be reinstated on application, absent an application to extend the time to file a fresh appeal. As to the orders made by Le Poer Trench J on 13 December 2011, the 28 day period allowed in the Rules to file an appeal had well and truly passed, and thus to pursue an appeal an extension of time was necessary.
These matters provide the starting point for any discussion as to the ability of the applicant to file a Notice of Appeal in May 2012 against those orders.
The submission of the applicant as to this issue is that in the particular circumstances of this case the time to file a Notice of Appeal against these orders commenced to run from at the latest 19 April 2012, and in any event, no earlier than 10 April 2012. Thus, the Notice of Appeal was presented for filing within time.
To explain that submission, at the time of the making of the orders by Cronin J and by Le Poer Trench J, they were made without jurisdiction given no proclamation had been made by the Governor-General allowing the court to exercise the jurisdiction conferred by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).
That was remedied by a proclamation being made on 8 February 2012 setting 11 February 2012 as the date from which the Family Court could exercise the jurisdiction. However, that proclamation was not retrospective and on 11 April 2012 Schedule 1 of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) commenced. Relevantly Item 2 of Part 1 of that Schedule provides:
2         Rights and liabilities of persons
(1)Subject to subitem (3), the rights and liabilities of all persons are, by force of this item, declared to be, and always to have been, the same as if the following matters (the assumed matters) had been the case:
(a)a Proclamation had been made under subsection 40(2) of the Family Law Act 1975 (as in force before the commencement of this Part), fixing 1 March 2009 as the date on and after which the jurisdiction of the Family Court under paragraph 31(1)(aa) of that Act could be exercised in the following States and Territories:
(i)       New South Wales;
(ii)      Victoria;
(iii)     Queensland;
(iv)     Tasmania;
(v)      the Australian Capital Territory;
(vi)     the Northern Territory;
(vii)    Norfolk Island;
(b)a Proclamation had been made under subsection 40(2) of the Family Law Act 1975 (as in force before the commencement of this Part), fixing 1 July 2010 as the date on and after which the jurisdiction of the Family Court under paragraph 31(1)(aa) of that Act could be exercised in South Australia;
(c)each of those Proclamations had been in force at all times from the start of the date fixed by the Proclamation to the end of 10 February 2012.
(2)      Without limiting the effect of subitem (1):
(a)all persons are, by force of this item, declared to be, and always to have been, entitled to act on the basis that other persons had, and have, the rights and liabilities as declared by subitem (1); and
(b)a right or liability that a person is declared by subitem (1) to have, or to have had:
(i)is exercisable or enforceable; and
(ii)is to be regarded as always having been exercisable or enforceable;
as if the assumed matters had been the case; and
(c)the rights and liabilities that a person is declared by subitem (1) to have, or to have had, include any right the person would have or have had, if the assumed matters had been the case, to appeal, or to seek review of, an affected order.
(3)Subitem (1) does not apply to liabilities arising from a conviction (or purported conviction), before the commencement of this Part, of a person for an offence that relates to a de facto financial cause.
(4)      Subject to subitem (5), an affected order is:
(a)      an order purportedly made, before 11 February 2012, by:
(i)       the Family Court; or
(ii)      the Federal Magistrates Court; or
(iii)     a Registrar;
In the exercise of jurisdiction under the Family Law Act 1975 in respect of matters referred to in paragraph 31(1)(aa) or subsection 39B(1) of that Act; or
(b)      an award purportedly:
(i)made in section 13E arbitration, or in relevant property or financial arbitration; and
(ii)registered in the Family Court, or the Federal Magistrates Court, under section 13H of the Family Law Act 1975 before 11 February 2012 in the exercise of jurisdiction under the Family Law Act 1975 in respect of matters referred to in paragraph 31(1)(aa) or subsection 39B(1) of that Act; or
(c)an order purportedly made, before the commencement of this Part, on appeal from, or review of, an order or award referred to in paragraph (a) or (b) of this subitem.
(5)If, before the commencement of this Part, a court or Registrar purported to vary, revoke, set aside, revive or suspend an order or award referred to in subitem (4), the affected order is that order or award in the form in which, and to the extent to which, it purports or purported to have effect from time to time.
Note:If the affected order was declared or held to be invalid before the commencement of this Part, this Part does not apply in relation to the order: see item 5.
Now, it is beyond doubt that the orders of 9 June 2011 and 13 December 2011 are “affected orders” under this Act.
For completeness, I observe that the reference to 19 April 2012 is misconceived by the applicant. That was the date that by proclamation Schedule 2 of the Act commenced. There is nothing in Schedule 2 though that has any relevance to the applicant’s argument.
The applicant’s argument as expressed is that given the orders are “invalid”, and given that “Parliament” did not “validate” those “invalid orders”, “no appeal against the effect of the invalid orders is required, and it [is] the mirror rights and responsibilities that came into force upon the enactment of [the amending legislation] that is the subject of the appeal”. Put more simply the amending legislation creates the right of appeal and thus there is no time issue here.
The flaws in these arguments are breathtaking and I will give the benefit of the doubt to Mr Y and suggest that these are arguments dreamt up by

Mr A.
There is no doubt that the Act “creates” the rights and liabilities of the parties in relation to an “affected order”, but to suggest that the amending legislation created a new right of appeal such that the time for filing an appeal starts to run from the commencement of the legislation is to completely misunderstand sub-items 2(1) and 2(2)(c). The latter identifies, inter alia, the right to appeal as a right that a person has by virtue of the former sub-item. In other words, a person, in this case the applicant, has the same right to appeal against the orders made on 9 June 2011 and 13 December 2011 as if the proclamation had been made such that the court could exercise its jurisdiction to make those orders at the time they were made. Thus, despite those orders being made without jurisdiction, the applicant is able to appeal against the merits of those orders as if they were made within jurisdiction. This does not alter from when the time to appeal against those orders commences to run.
The applicant in her affidavit and in her oral submission attempted to shore up the arguments of Mr A by latching onto statements in the Explanatory Memorandum and comments made during the second reading of the Bill, for example that:
The Bill explicitly recognises that individuals have had the right to appeal against or seek review of an affected order and the right to vary affected orders in later Court proceedings.
However, that comment confirms what I have just said the Act does, and it does not indicate that there is some separate right of appeal which arose afresh upon the commencement of the legislation to challenge the legislative power of the Commonwealth. The point to note here is that the appeal sought to be filed does not challenge the merits of the orders, but challenges the validity of the legislation, leaving the orders as “invalid” and “unenforceable”.
Secondly, there is ample authority, including High Court authority, that orders such as these, made by a superior court of record, but made without jurisdiction are valid and binding until and unless they are set aside (DMW and Another v CGW (1982) 151 CLR 491; Re Macks & Others; Ex parte Saint (2000) 176 ALR 545; and Residual Assco Group Ltd v Spalvins and Others (2000) 172 ALR 366). That setting aside can be achieved by an appeal in appropriate circumstances, by removal of the proceedings into the High Court under s 40 of the Judicature Act 1903 (Cth), or by the issue of a prerogative writ by the High Court of Australia quashing the orders. During the hearing I did suggest that an application to set aside the orders could be made to the judicial officer who made the orders. However, upon reflection that may not be possible given that the orders have been perfected and entered (Bailey v Marinoff (1971) 125 CLR 529, per Gibbs J at 539; DJL v The Central Authority (2000) FLC 93-015;

C & C
[2006] FamCA 300). I would not want to entirely close the door on that though as a possible option.

Thirdly, it is nonsense to suggest that “no appeal against the effect of the invalid orders is required”, and the appeal right that is now available under the amending legislation is against the “mirror rights and responsibilities”. Any appeal can still only be against the orders of 9 June 2011 and 13 December 2011. To repeat, the legislation does not create a new and additional appeal right in respect of which the time to file commences from the coming into effect of that legislation.
Accordingly, to pursue an appeal against the orders of 9 June 2011 and

13 December 2011 still requires either reinstatement of the abandoned appeal and/or an extension of time to appeal. On that basis I propose to dismiss the application for a review of the exercise of power by the Regional Appeal Registrar.

The reinstatement application

I turn now to the first alternative order sought by the applicant, namely an order reinstating the appeal previously filed against the orders of Cronin J of 9 June 2010. To repeat, that appeal was deemed abandoned pursuant to r 22.21 of the Rules when the applicant failed to file appeal books by the extended time of

18 November 2011.
The principles that apply to this application were considered in the relatively recent Full Court decision of Bemert & Swallow (2010) FLC 93-441. Significantly the Full Court concluded at 154:
… [I]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
It was identified in Bemert & Swallow though that the principles applicable to the determination of an application for an extension of time, as set out, for example in the oft-cited judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said 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.
See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
Thus, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent that cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of a grant or a refusal of the application.

Adequate explanation

The difficulty confronting the applicant here is immediately obvious, namely, her affidavit in support of this application contains almost no evidence which explains the delay, or rather the failure to comply with the order of the Regional Appeal Registrar for the filing of the appeal books. The only evidence that she does present is in paragraph 10 of her affidavit, where she deposes as follows:
… The appeal was lodged but was deemed by the Registrar to be abandoned because my lawyer failed to file the appeal books and within the extended time granted for such filing. It was always my intention to proceed with my appeal. When I received notification that my appeal was deemed abandoned I did not know that there was anything I could do about the matter.
In other words, the applicant attempts to blame her lawyer at the time. However, the lack of any detail and the circumstance that this is an easy claim to make render this an entirely inadequate explanation. Further, as will become apparent shortly, I consider the applicant’s credit to be seriously in doubt, and this is relevant here. In other words, I simply do not believe her when it comes to any fact that is in issue.
This is also amply demonstrated by the lie contained in the last sentence of paragraph 10 of the Affidavit. As is apparent from the letter of 7 December 2011 from the Regional Appeal Registrar indicating that the appeal was deemed abandoned, that letter was sent to the applicant herself and in it the Regional Appeal Registrar explained what the applicant had to do. The applicant of course did nothing about that until the current application was filed on 13 June 2012, and there is no explanation anywhere of why nothing was done. The applicant had ample opportunity to bring an application for reinstatement before now, and of course she had ample opportunity to set out in her affidavit the reasons why no such application was made.

The merits of the appeal

I have set out in paragraph 21 above the grounds of appeal contained in the Notice of Appeal sought to be reinstated.
It is put that the primary complaint was that his Honour failed to address the question of the jurisdiction of the court on the basis that the applicant in the proceedings was not “ordinarily resident in Australia” at the date of his application to the court. As can be seen from the grounds of appeal that was specifically put on the basis that “his Honour erred in failing to provide adequate reasons in his judgement”, and “his Honour erred by failing to apply the law to the facts in relation to the geographical requirement of Section 90RG of the Act”.
However, the plain fact of the matter is that this issue was not raised by

Ms Bele before his Honour, and thus it would not be open for it to be raised on appeal; it does not just raise a question of construction or law, and the facts are controversial (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 per Latham CJ, Williams and Fullagar JJ at 438; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Water Board v Moustakas (1988) 180 CLR 491 at 497). More directly on point though is that the evidence before his Honour was that Mr Vaughan did satisfy this requirement. Thus, this aspect of the appeal simply has no chance of success.
The other complaints raised in the grounds of appeal are not referred to in the Affidavit of the applicant and nor were they the subject of any written or oral submissions before me. Thus I proceed on the basis that it is not suggested by the applicant that there is sufficient merit in those complaints to require the discretion to reinstate to be exercised in her favour. I observe, having read

his Honour’s reasons for judgment, that if I had to comment on the merits of these complaints I would be hard pressed to find any merit whatsoever in them.
In any event, none of the grounds of appeal in the Notice of Appeal filed in July 2010 appear in the Notice of Appeal sought to be filed on 4 May 2012, and what Mr Y candidly told me on 13 July 2012 was that if the appeal was reinstated the grounds would be amended to include only those “grounds” contained in the Notice of Appeal dated 4 May 2012. Thus, I need to consider as best I can, the merits of those “grounds”.
I first observe that there is no actual error by either trial judge raised in that appeal, and there are no grounds of appeal set out as such. What appears is as follows:
The Applicant (Appellant) appeals to this honourable Court against the whole of the Orders of Cronin J dated 9^th June 2011 and the [sic] Le Poer Trench J dated 13^th December, 2011 on the following grounds:-
1.That each of the abovementioned Orders was at the time of making such Order and still is invalid.
2.That each of the said Orders of Cronin J and Le Poer Trench J was made pursuant to judicial power invested in the Family Court of Australia by virtue of the provisions of Family Law Amendment
(De Facto Financial Matters and Other Measures) Act 2008 Hereby refered [sic] to as “Amending attempt No 1” which legislation had not at the time become law as it had not received the required proclamation under Section 40 of the Family Law Act, 1975.
3(a)That the attempt amending piece of legislation being Family Law Amendment (Validation of Certain Orders and other Measures) Act 2012 (which was proclaimed and commenced on 10th April 2012) – (hereafter referred to as Amending attempt No. 3) was and still is ineffectual in its attempt to give validity to the said Orders of Cronin J and Le Poer Trench J because:-
Amending attempt No 1 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 by failure of proclamation in 2009 was not valid in law to provide jurisdiction to the Family Court of Australia to adjudicate upon matters.
(b)Amending attempt No. 2 Proclamation by the Governor-General QUENTIN BRYCE was proclaimed on 9 February 2012 and commenced on 11th February 2012 but was not retrospective.
(c)Amending attempt No. 3 Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 No. 32, 2012 has sought by statute to amend all previously invalid Family Court of Australia de facto financial orders to give them Statutory force as if they were Family Court of Australia orders. The Appellant contends that such purported validation is itself invalid and of no force and effect.
4.That none of the abovementioned legislation is or ever has been valid because:-
(a)All such legislation is ultra vires the power of the Federal Parliament of the Commonwealth of Australia under the Commonwealth of Australia Constitution Act 1900 (UK)(“the Constitution”) with specific reference to Section 51 (xxi and xxii) of the Constitution.
(b)Section 51 (xxxvii) does not give the Federal Parliament the power to make legislation and/or provide judicial powers in relation to de facto financial and other de facto matters.
(c)Such amending legislation can be valid only by virtue of an prior amendment to the Constitution in accordance with the provisions of the Constitution involving a Federal referendum in accordance with the Constitution.
(d)The State of Victoria did not validly exercise its powers in de facto matters when it attempted to transfer to the Federal Parliament that State’s powers (including judicial powers) in relation to de facto matters.
(e)The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 No. 32, 2012 did not intend to validate any non-judicial exercise by a Registrar within s106A of the Family Law Act 1975, of any signing by the Registrar of documents/instruments prior to 10 April 2012 under authority of any invalid Family Court of Australia order, and for this all and any such signing by the Registrar within the provisions of s106A remains without legal validity.
This format highlights the inappropriateness of this appeal as the vehicle to challenge the constitutionality of not only the initial de facto legislation of 2008, but also the amending legislation of 2012. As I have already indicated there are other alternatives, including possibly an application to the judicial officer who made the orders to set aside the orders, although I stress again that that is doubtful. That was of course though the tenor of the applications filed on 20 March 2012 in relation primarily to the orders made by Le Poer Trench J on 13 December 2011, but as is apparent from the reasons for judgment delivered by Cronin J on 26 March 2012, that was a poorly prepared and badly executed attempt to challenge the legislative power of the Commonwealth, again, unquestionably because of the decidedly inept involvement of

Mr A.
Importantly though, there was no appeal against the orders made by Cronin J on 26 March 2012, and I have heard no basis as to why the applicant should now be able to, in effect, mount an appeal raising almost the same issues. That clearly must be taken into account in assessing where the justice of the case lies; as I might also say does the fact that the purpose of seeking to reinstate the appeal is not to pursue that appeal, but to mount an entirely different challenge.
Thus, my concern here is not so much the merits of the constitutional arguments, but the appropriateness of seeking to pursue that issue by reinstating the earlier appeal, and indeed by using the appeal process itself in the way proposed.
As to the merits of the constitutional arguments, it is difficult to say too much without hearing full argument, but prima facie I would be extremely surprised if the applicant’s arguments met with any success. Significantly though, and as I will elaborate on later in these reasons, I consider this to be nothing more than an esoteric legal frolic by Mr A and Mr Y as part of a concerted effort on behalf of the applicant to prevent the sale of the property being completed pursuant to the orders of Le Poer Trench J of 13 December 2011. In other words, it is all a ruse with that aim in mind.

The conduct of the parties

The conduct of the applicant, her lawyer Mr Y, presumably on her instructions, and his agent/consultant Mr A are highly relevant to where the justice of this case lies.
Before considering that conduct though I indicate that there can be no criticism on the evidence before me of the conduct of the respondent. He has behaved impeccably.
Turning then to the conduct of the applicant and her legal and other advisers:
a)There is the applicant’s transparent attempt referred to above to blame her lawyer for the appeal filed in July 2011 being deemed abandoned, and her blatant lie in paragraph 10 of her affidavit that she “did not know that there was anything [she] could do about the matter”, when the letter from the Regional Appeal Registrar was sent direct to her.
Thus, there is her total failure to not only explain why she did not file her appeal books within time, but also why she did not make a timely application to reinstate that appeal if she was genuine about that.
The timing of the eventual filing of an application seeking to reinstate indicates that it is part of the wider attempt to obstruct the completion of the sale of the property.
b)Next, there is the doomed last minute attempt to prevent the auction by the poorly prepared applications filed on 20 March 2012. It is true that those applications were primarily directed towards the orders made by Le Poer Trench J on 13 December 2011, and not specifically the orders of Cronin J made on 9 June 2011, but it is plain that these actions are all part of the one process, and thus they are highly relevant.
It is noteworthy that there was no appeal filed against the orders made by Le Poer Trench J on 13 December 2011, no s 90SM application to set them aside, and no application to reinstate the appeal against the orders made by Cronin J on 9 June 2011 prior to the applications of 20 March 2012 being filed. This, despite the applicant on 3 February 2012 sending an email to the respondent’s solicitor complaining about the orders and raising allegations of fraud.
c)Mr A attended at the auction on 24 March 2012 and sought to thwart it by seeking to distribute “pamphlets” addressed to the agents conducting the sale to persons in attendance. The “pamphlet” is annexure “TJV19” to the affidavit of the respondent and is plainly a provocative and controversial document. I note that the heading indicates that Mr A is “representing [Y] LAWYERS”.
d)Then there is the refusal by the applicant to sign a single document in relation to the sale of the property, and requiring the respondent to have a Registrar sign instead.
e)As set out in paragraph 28 of the respondent’s affidavit, “[the applicant] has … instructed her lawyers Messrs [Y] [and] Mr [A] to provide mischievous and misleading, correspondence to the Registrar of Titles which has resulted in a Notice of Action to be entered on the Title by the Registrar of Titles which runs the risk of obstructing the settlement of the sale”.
f)The applicant has permitted persons who can only be described as professional agitators to try and obstruct the sale of the property. For example, as deposed to in the respondent’s affidavit, a Mr H has made a number of intimidating phone calls to the purchasers of the property, and he has contacted the Fraud Squad and alleged that the auction was conducted fraudulently.
g)The applicant “failed” to produce the duplicate Certificate of Title to enable the settlement to take place on 2 July 2012 despite she being well aware that it was required, and despite ultimately an order made by Cronin J on 25 June 2012 for its production after the applicant had been given every opportunity to produce it.
It is apparent that the applicant has simply obfuscated and delayed in relation to this issue, and she has instructed her solicitor to do the same.
During the hearing on 19 July 2012 I asked Ms Bele about the duplicate Certificate of Title. She said that she had looked for it but she had not been able to find it. She thought that she had started to look for it in May 2012. However, as I indicated at the time, I do not believe her and consider that she has the duplicate Certificate of Title but saw that by not producing it she could prevent the settlement. Clearly, if she genuinely searched for it and could not find it that would have been conveyed by her solicitors to the respondent’s solicitors, but that was not done. There was indeed no response to the requests made by the respondent’s solicitors save and except that the applicant’s solicitors were “seeking instructions”.
h)On 20 June 2012 the applicant sought to lodge a caveat on the title to the property despite she being the registered proprietor of that property. Disturbingly the caveat was prepared by Mr Y and the ground of claim was expressed to be, “[t]he Caveator challenges as invalid the Family Court Orders pursuant to which Mills Oakley, Solicitors, purport to act for her on the sale of the property against her wishes”.
On 13 July 2012 Mr Y indicated that the caveat was not accepted. That does not surprise me given there is no possible legal or equitable basis for such a caveat to be lodged, and I consider that Mr Y was well aware of that. Nevertheless, again, this is another example of how the applicant and her advisers will clearly do anything to achieve the applicant’s purpose.
i)The applicant has sent emails to the tenants of the property inciting them to resist any attempts to have them vacate the property. The clear aim of this action is to prevent settlement occurring. One example of these emails, is an email dated 11 April 2012 wherein the applicant said as follows:
[K] and [D], I have spoken with [Mr Y], my lawyer, and he is suggesting that you refuse to vacate the property on the basis that the de facto legislation was invalid and we take it to VCAT. There we argue all the invalidity of the legislation and constitutional arguments. I would of course have to pay your legal costs involved....... [Mr Y] is hoping this will stop the settlement as the purchaser will not hand over the money for settlement until they get vacant possession of the house.
[Mr Y] said for you to call him and leave a message when you can arrange a time to discuss this with him. We have to try everything we can to try to stop the settlement.
Once again, a disturbing feature of this email is the advice provided by Mr Y.
j)Then there is of course the attempt to file the Notice of Appeal on 4 May 2012, and the application that is now before me filed on 13 June 2012. The respondent says, and I accept, that these are just part of the overall strategy of the applicant and her advisers to achieve the one aim of preventing the completion of the sale of the property. That of course raises the spectre of a lack of bona fides in pursuing the appeal and the application.

On the basis of the appalling conduct of the applicant and her advisers, again presumably on her instructions, Mr Harriss for the respondent sought to invoke the equitable maxim that “a person who comes to equity must come with clean hands” however, this maxim cannot apply here given an equitable remedy is not being sought, but the analogy is still apt. In other words, the applicant, who is seeking the indulgence of the court to reinstate her abandoned appeal, should have “clean hands”, but here the applicant decidedly has “unclean hands”. Thus, it is said, the application should be dismissed as a result of her conduct, and I must say that this is an argument which resonates with me.
As referred to above, other factors that can be considered in assessing where the justice of the case lies are the history of the proceedings and the nature of the litigation. However, I do not propose to say anything specific about these matters given that I have touched on them in outlining the conduct of the applicant.

The consequences of the granting or refusal of the application

If the application is granted then the appeal will be reinstated, it will be amended, and the respondent will need to deal with it. That may also further delay or even prevent the settlement of the sale of the property taking place. Thus there is an obvious prejudice to the respondent in granting the application.
If the application is refused the applicant will not be able to pursue that appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court, and this may be something the applicant would take up, but it is still a difficult exercise to undertake. That said though, given my finding of a lack of bona fides on the part of the applicant, and that this is just one aspect of an overall strategy to prevent settlement of the sale of the property, I do not propose to take into account any suggested prejudice to the applicant of refusing the application. Indeed, any prejudice to the applicant can only be of her own making.

Conclusion as to the reinstatement application

As the authorities recognise, the consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies. Here, it is beyond doubt that the interests of justice demand that the application be refused. There is no adequate explanation of the failure to comply with the Rules, there are dubious “grounds” of appeal sought to be promoted, and the conduct of the applicant in the proceedings demonstrates a clear lack of bona fides in bringing this application. To repeat, the application is just a part of an overall strategy by the applicant to prevent the completion of the sale of the property.

The extension of time application

The second alternative order sought is an extension of time to appeal against the orders made by Le Poer Trench J on 13 December 2011.
As referred to above, virtually the same principles that apply to the reinstatement application apply here. Indeed, the leading authority of Gallo v Dawson was a decision involving an extension of time application. Thus, I turn to the relevant factors to be considered in such an application.

Explanation of the delay

Although there was at least an attempt in the applicant’s affidavit to explain the failure to file the appeal books in time, there was absolutely nothing in the affidavit to explain the failure to file a Notice of Appeal within the 28 day period allowed under the Rules, or to explain the significant delay in filing the application seeking an extension of time.
It was not as though the issues that are sought to be raised in the Notice of Appeal dated 4 May 2012 only became apparent to the applicant at that time. It is common ground that the problem with the court’s jurisdiction became apparent in early 2012, by 11 February 2012 the necessary Proclamation had come into effect, and by 22 March 2012 the amending legislation had passed both Houses of Parliament and was awaiting Royal Assent. Thus, lack of knowledge cannot be a reason for the delay.
This is also plainly demonstrated by the applications filed in March 2012. The significance of those applications in considering the extension of time application is that at the very least, the applicant and her advisers had it in mind to challenge the legislative power of the Commonwealth yet there was no appeal filed within time and there was no application for an extension of time to appeal. Thus, as with the reinstatement application, I have heard no basis as to why the applicant should now be able to mount an appeal raising almost the same issues that were the basis of the applications file on 20 March 2012 and dismissed on 26 March 2012.

The merits of the appeal

The same “grounds” of appeal are sought to be relied upon in relation to both sets of orders, and I refer to and repeat what I have said about the merits of those “grounds” above, and for example in paragraph 76.

The conduct of the parties

I have set out above the relevant conduct of the applicant and the conduct of her advisers on her behalf in the context of the reinstatement application, and save and except for the first issue raised, which preceded the orders of

13 December 2011, that conduct is equally relevant in considering the extension of time application. As with the reinstatement application, this conduct is sufficient by itself to require this application to be dismissed.
Consistent with my treatment of the reinstatement application, it is unnecessary for me to refer specifically to the history of the proceedings or the nature of the litigation, given that they are very much caught up in the discussion of the conduct of the applicant.
Finally, I need do no more than refer to, but without repeating, the comments that I made as to the consequences of a granting or refusal of the reinstatement application. Again, those comments apply equally to the extension of time application.

Conclusion as to the extension of time application

The same conclusion can be reached here as with the reinstatement application, namely, it is beyond doubt that the interests of justice demand that the application be refused.

Conclusion

Bearing in mind that I have already dismissed paragraph 4 of the application, I propose to dismiss the balance of the application for all of the reasons that I have articulated herein. That will also necessarily entail a dismissal of the Response filed by the respondent, save and except as to the application for costs to which I will now turn.

Costs

In his Response Mr Vaughan seeks an order that the applicant pay his costs of and incidental to the proceedings on an indemnity basis.
I have not heard any submissions in relation to that order but to avoid the need for a further hearing, I propose to set up a regime for the filing of written submissions on that topic, subject of course to the respondent still seeking to pursue the question of costs.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

21 August 2012.

Associate:

Date: 21 August 2012