Bilson and Geer
[2016] FamCAFC 209
•22 September 2016
FAMILY COURT OF AUSTRALIA
| BILSON & GEER | [2016] FamCAFC 209 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time in which to file an application for costs in respect of an appeal which was abandoned by the respondent – Where there is a reasonable explanation for the delay – Where the applicant acted reasonably promptly in filing the application – Where the costs application does not lack merit – Application allowed. |
| Family Law Rules 2004 (Cth) rr 22.21, 22.43(2) Gallo v Dawson (1992) 93 ALR 479 |
| APPLICANT: | Ms Bilson |
| RESPONDENT: | Mr Geer |
| FILE NUMBER: | SYC | 6220 | of | 2013 |
| APPEAL NUMBER: | EA | 172 | of | 2015 |
| DATE DELIVERED: | 22 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 22 September 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 September 2015 |
| LOWER COURT MNC: | [2015] FCCA 2511 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
| (1) The time in which Ms Bilson may apply to seek costs in the Appeal EA172 of 2015 is extended up to and including 7 October 2016. (2) The application is otherwise dismissed. |
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 Bilson & Geer 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 172 of 2015
File Number: SYC 6220 of 2013
| Ms Bilson |
Applicant
And
| Mr Geer |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 18 August 2016, Ms Bilson (“the Applicant”) seeks an extension of time in which to bring an application for costs in respect of an appeal that has been abandoned. Mr Geer (“the Respondent”) opposes the application.
The parties were parties to property proceedings in the Federal Circuit Court of Australia. On 17 September 2015 Judge Brewster made final property orders in the proceedings.
The Respondent was dissatisfied with those orders and appealed. An amended Notice of Appeal was filed on 9 November 2015. On that date the Respondent also filed an Application in an Appeal seeking expedition. That application was heard and dismissed by me on 14 December 2015. At that time, the Applicant was represented by lawyers.
Subsequently, the appeals registrar made orders for the preparation of the appeal. Amongst those orders was an order that the appeal books were due to be filed by the Respondent on or before 20 May 2016. The effect of r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) is that if the appeal books were not filed by that day, the appeal was deemed to be abandoned. The appeal books were not filed. However, on 14 April 2016 the Respondent had filed an Application in an Appeal seeking an extension of time in which to file the appeal books. That application came before a registrar on 5 July 2016. There was no appearance for the Respondent. The application for an extension of time was dismissed and the registrar noted that the appeal books had not been filed by 20 May and that the appeal was, therefore, abandoned.
Although it is not directly relevant to the application today, the Respondent asserts that those orders were improperly made because he had, prior to that occasion, forwarded to the Court a medical certificate from a doctor which identifies the Respondent was suffering from anxiety and depression, that he needed a break from his legal matters and that it would help him to recover from mental stress if his legal cases could be considered for adjournment for a six-month period. That medical certificate was dated 27 June 2016. I observe that even if that medical certificate had been before the registrar, it would not have obliged her to grant the adjournment. It was something that, nonetheless, would still have to have been considered. Nevertheless, there has been no application to set aside or vary or review the registrar’s orders by the Respondent.
As the appeal was deemed to be abandoned on 20 May 2016, the Applicant had 28 days from that date in which to bring an application for costs (r. 22.43(2) of the Rules). Her delay in bringing the Application in an Appeal until 18 August 2016 can be explained in two ways. Firstly, up until 5 July 2016 there was an extant application for extension of time in which to file the appeal books and it was not until that application was dismissed and the abandonment of the appeal confirmed that the Applicant was clearly of the view that the appeal had, in fact, been abandoned. Secondly, in her affidavit, she deposes to being unaware of the 28 day time limit for bringing an application for costs. Nonetheless, the Applicant has acted reasonably promptly in bringing this application since the orders of the registrar were made on 5 July. Thus, there is an explanation for the delay and the Applicant has acted reasonably promptly.
I turn, then, to some consideration of the merits of the application, noting, of course, that I am not actually hearing the costs application. It is quite obvious that the Applicant has a reasonable claim for costs in that she was forced to respond to an appeal which was ultimately not prosecuted. All of the above are relevant matters to take into account: see Gallo v Dawson (1992) 93 ALR 479.
The aim of the exercise of the discretion is to attempt to do justice to the parties. Although the Applicant’s costs are not high, she estimates the costs of her lawyers in relation to the appeal to be about five to six thousand dollars. That has to be seen in circumstances where the orders made by Judge Brewster in settlement of the property proceedings require the payment of only $90,000.
The Applicant was not in a position to take me to the costs of her lawyers in detail and how they are arrived at and how they relate to the appeal. That is, of course, something she will need to do on the consideration of the costs application. However, all these matters are sufficient to persuade me that the interests of justice demand that the Applicant be granted an extension of time in which to file an application for costs of the appeal.
In her application, the Applicant also sought an order for security for costs. There being no basis for that order to be made, the balance of the Application in an Appeal will be dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 September 2016.
Associate:
Date: 1 November 2016
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