Bernieres and Anor and Dhopal and Anor
[2016] FamCAFC 149
•11 August 2016
FAMILY COURT OF AUSTRALIA
| BERNIERES AND ANOR & DHOPAL AND ANOR | [2016] FamCAFC 149 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the application and affidavit have only just been served – Where the respondents are aware of the orders being sought and previously consented to the reinstatement of the appeal and provided a Notice of Address for Service – Where apart from that the respondents have not sought to be heard nor to file documentation in either the first instance proceedings or the appeal proceedings – Where absent that consent the interests of justice require the application to be granted – Appeal reinstated after seven days to allow the respondents to respond if they wish to. |
| Family Law Act 1976 (Cth) |
| APPLICANTS: | Mr and Mrs Bernieres |
| RESPONDENTS: | Mr and Mrs Dhopal |
| FILE NUMBER: | MLC | 4167 | of | 2014 |
| APPEAL NUMBER: | SOA | 69 | of | 2015 |
| DATE DELIVERED: | 11 August 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 August 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 September 2015 |
| LOWER COURT MNC: | [2015] FamCA 736 |
REPRESENTATION
| SOLICITOR ADVOCATE FOR THE APPLICANTS: | Mr Boers |
| SOLICITOR FOR THE APPLICANTS: | Boers Associates |
| THE RESPONDENTS: | No appearance |
Orders
The Notice of Appeal filed on 7 October 2015 be reinstated as on and from Thursday 18 August 2016.
In the event that prior to Thursday 18 August 2016 the respondents file any documents responding to the application in an appeal filed on 6 July 2016, order (1) herein be vacated and the application in an appeal filed on 6 July 2016 be listed for hearing on a date to be fixed.
SUBJECT TO THE APPEAL BEING REINSTATED AS ON AND FROM THURSDAY 18 AUGUST 2016:
The appellants file and serve any Amended Notice of Appeal within fourteen (14) days of the date hereof.
No later than Thursday 25 August 2016 the appellants file in the Southern Region Appeal Registry of the Court four (4) copies of the appeal books amended in accordance with the directions of the Appeal Registrar, together with a Certificate pursuant to Chapter 22, Rule 22.20(2) of the Family Law Rules 2004 (Cth).
No later than Thursday 25 August 2016 the appellants serve on the respondents those documents in the appeal books which the respondents do not already have together with a letter advising the respondents that if they require an appeal book to be served upon them that request be made within fourteen (14) days of the receipt of the letter and in that event the appellants serve two copies of the appeal books on the respondents within a further fourteen (14) days.
A summary of argument and list of authorities to be relied upon for the purposes of the appeal be filed:
(a) by the appellants by no later than Thursday 25 August 2016; and
(b) by the respondents by no later than Thursday 22 September 2016.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bernieres and Anor & Dhopal and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 69 of 2015
File Number: MLC 4167 of 2014
| Mr and Mrs Bernieres |
Applicants
And
| Mr and Mrs Dhopal |
Respondents
EX TEMPORE REASONS FOR JUDGMENT
This is an application in an appeal filed by Mr and Mrs Bernieres (“the applicants”) on 6 July 2016, namely some five months after the appeal was deemed abandoned. The application seeks that the Notice of Appeal filed on 7 October 2015 be reinstated, and that leave be granted to the applicants to file the appeal books out of time, on or before 30 July 2016.
The Notice of Appeal filed on 7 October of 2015 was against orders made by Berman J on 9 September 2015. Perhaps to clarify that, there is no appeal against any of the specific orders made by his Honour, but rather the appeal is in relation to his Honour’s refusal to make a declaration as sought by the applicants.
Following the filing of the Notice of Appeal a draft appeal index was filed on 2 November 2015. Then, in the usual way, the appeal came before the Appeal Registrar on 2 December 2015, for the purpose of making orders and directions to prepare the appeal for hearing. On that day the Appeal Registrar made the required orders, including an order that the applicants file the necessary copies of the appeal books in the Appeal Registry by no later than 28 January 2016.
It is the failure to comply with that order which then led to the appeal being deemed abandoned, and the advice to that effect was provided to the parties by the Appeal Registrar on 5 February 2016. According to the affidavit filed in support of the application before the court today, it was sought to file the appeal books on 29 January 2016, namely the day after the appeal books were due to be filed.
I note that in the letter from the Appeal Registrar of 5 February 2016, the Registrar pointed out certain deficiencies in the appeal books which were sought to be filed. Plainly though, if the appeal books had been filed in time, those matters would not have led to the appeal being deemed abandoned, and they would have been able to be attended to in the normal course of events.
The reasons for the failure to file the Notice of Appeal in time are set out in extenso in the affidavit filed in support of this application, and I do not need to repeat them here.
On 30 March 2016 the Appeal Registrar sent a letter to the parties indicating that in the event that Mr and Mrs Dhopal (“the respondents”), filed a Notice of Address for Service in the appeal file, and provided written consent to reinstatement of the appeal within a reasonable time, the Appeal Registrar would refer the documents to a Judge of the Appeal Division to consider reinstatement of the appeal. The Appeal Registrar also indicated that any formal application for reinstatement should be made on an application in appeal supported by an affidavit and filed in the Appeal Registry.
In relation to that advice a Notice of Address for Service providing an address for service in Australia was subsequently provided to the court, and the consents of the respondents to the appeal being reinstated was also obtained.
It is not apparent from the appeal file that the Notice of Address for Service has actually been filed, but I have been provided today with a copy of that Notice, and it is dated 6 July 2016. I suspect what has happened is that given there has been some difficulty with this matter, in terms of documentation, that Notice has not actually made its way to the court file. In any event, I am satisfied from the document handed up that there is an Address for Service for the respondents.
In terms of the consents of the respondents to the reinstatement of the appeal, those consents are annexed to the affidavit filed in support of the application before the court today.
To return to the application before the court today, and the supporting affidavit seeking reinstatement of the appeal, that application and the supporting affidavit have now been served on the respondents, however, that only occurred yesterday, namely 10 August 2016. I have been provided today by Mr Boers with an affidavit of service and also an affidavit deposing to the translation of those court documents from English to Hindi.
Pausing there, I note that at the same time as the application to reinstate and the supporting affidavit were filed, the solicitor for the applicants also forwarded to the Appeal Registry an Amended Notice of Appeal, together with a summary of argument and list of authorities.
That Amended Notice of Appeal, of course, has not been filed by the Appeal Registry because the appeal is still deemed abandoned, and as a result there is no appeal on foot which would allow an Amended Notice of Appeal to be filed. However, the fact of the matter is that the Amended Notice of Appeal is the Notice of Appeal which the applicants will proceed on in the event of the appeal being reinstated.
I also pause to indicate that the difficulty with documentation and service in relation to this matter, stems from the fact that the respondents reside in India, and anything that is provided to them needs to be translated from English to Hindi, and any response by them needs to be translated from Hindi to English. It is apparent from the record and the file, and it is confirmed by the solicitor for the applicants, that all documents provided to the respondents have undergone that process, and any documents received in response likewise. For example, the consents provided by the respondents to the reinstatement have been translated from Hindi to English.
Importantly in the history of this matter, the respondents have not sought to file any documents apart from the Notice of Address for Service and the consents, not only in relation to the proceedings and the hearing before Berman J, but also in relation to the appeal and the reinstatement application. That of course is understandable given the role that they have played in this matter.
It is also significant that the respondents have not sought to be heard, in relation to either the first instance proceedings, or the appeal proceedings. I say that because in the normal course of events one would be concerned about proceeding with this matter, as the respondents only received the application and the affidavit that is before the court today, yesterday, but in light of the history that I have just related, it would not be expected that the respondents would either seek to respond to this application, or be heard in relation to it. However, out of abundant caution, and bearing in mind that procedural fairness must be provided in any event, I would propose to make an order which allows at least some time for the respondents to either respond to this application, or seek to be heard in relation to it.
That said, and given the history of the matter, I am prepared to proceed to determine the application for reinstatement today, but as I say, providing an opportunity to the respondents to be involved if they so wish.
I am content to proceed on the basis of the consents of the respondents to the reinstatement of the appeal, and particularly given that although, as I say, they only just received the actual application and the affidavit in support, they were clearly made aware of what the applicants were seeking when their consent was sought in March 2016. Plainly the response of the respondents was to consent to the reinstatement and raise no issue about it.
Thus I propose to make an order reinstating the appeal.
In any event, and absent the consent of the respondents, I am satisfied on the basis of the evidence that is before the court that the appeal should be reinstated.
First, I am satisfied that there is an adequate explanation provided by the applicants for the failure to comply with the order of the Appeal Registrar for the filing of the appeal books. I am also satisfied that there is an adequate explanation for the application to reinstate only being filed on 6 July 2016.
Further, in terms of the merits of the appeal, it cannot be said that there are no prospects of success, and that is the test in relation to applications such as this. I am not saying here that I am satisfied that the appeal will be successful, but rather, I am indicating that I am not in a position to find that there is no chance of success.
Apart from the need for an adequate explanation for any delay, and considering the merits of the appeal, one other factor which is commonly addressed in reinstatement applications, is the prejudice to the parties depending upon whether the application is successful or otherwise. In this instance, given the history that I have related as to the lack of involvement by the respondents in both the first instance proceedings and the appeal proceedings to date, I am not satisfied that there is any prejudice to them in allowing the application.
On the other hand there would clearly be prejudice to the applicants in refusing the application, in that there is no appeal from such a decision, save and except by way of application for special leave to appeal to the High Court of Australia, but that is sometimes a difficult exercise, and to be required to undertake that exercise, in my view, is a significant prejudice that would need to be taken into account.
In summary then, I am prepared to proceed on the basis that the respondents consent to the reinstatement but, absent that consent, I am satisfied that the interests of justice require that this application be granted.
I indicated earlier in these reasons that I would look to cater for the fact that the respondents have only just received the application and the affidavit, and what I propose to do in that regard is to only reinstate the appeal as on and from Thursday 18 August 2016. That will allow the respondents, if they are so minded, to respond to the application and affidavit that they have now received, and seek to be heard in the matter. If, of course, consistent with the history of this matter, they do not seek to be involved, then the reinstatement will follow, but if unexpectedly the respondents do seek to be involved, then their position will need to be addressed in relation to the reinstatement.
Given that I propose to reinstate the appeal, I need to address the preparation of the appeal for hearing, as some of the orders made by the Appeal Registrar on 2 December 2015 are now out of date. And I also need to address that because it has been indicated that this appeal will be listed in the October 2016 sittings of the Full Court in Melbourne.
Turning to the orders made by the Appeal Registrar on 2 December 2015, it is apparent that the orders for the filing of the appeal books, and the filing of the summaries of arguments, are now out of date, and I propose to set a new regime for those matters to be attended to.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 11 August 2016.
Associate:
Date: 16 August 2016
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