Caffyn & Protz Group
[2018] FamCAFC 147
•9 August 2018
FAMILY COURT OF AUSTRALIA
| CAFFYN & PROTZ GROUP AND ANOR | [2018] FamCAFC 147 |
| FAMILY LAW – APPEAL – Application in an appeal for an extension of time – Where final orders were made by consent – Where the primary judge in making the orders was not exercising discretion under the Family Law Act 1975 (Cth) – Therefore the primary judge need not be satisfied that the orders were just and equitable – Where the appeal has no merit – Application refused. FAMILY LAW – APPEAL – Application in an appeal for expedition – Where final orders were made by consent – Where wife seeks expedition of appeal on basis of personal medical and financial circumstances – Where supporting documents provided did not address wife’s condition in relation to her participation or continuation of present legal proceedings – Where wife has not demonstrated circumstances that would cause this appeal to be given priority over other cases – Application dismissed – Where orders as to costs to be determined in chambers. |
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A(4) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Warby & Warby (2002) FLC 93-091; [2001] FamCA 1469 |
| APPELLANT: | Ms Caffyn |
| FIRST RESPONDENT: | Protz Group Pty Ltd & B Pty Ltd (in liquidation) |
| SECOND RESPONDENT: | Mr Caffyn |
| FILE NUMBER: | PAC | 3892 | of | 2015 |
| APPEAL NUMBERS: | EA 72 | a and EA 82 | of | 2018 |
| DATE DELIVERED: | 9 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 17 July 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | Not applicable |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICTOR FOR THE 1ST RESPONDENT: | Mr O’Neill |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Heazlewood |
| SOLICITOR FOR THE 2ND RESPONDENT: | Lewarne & Goldsmith |
Orders
Application to extend time in which to appeal against the orders of Rees J made on 23 April 2018 is dismissed.
Application for expedition of Appeal EA 72 of 2018 against the orders of Rees J made on 26 April is dismissed.
Direct that the wife file and serve by 4 pm 24 August 2018 a submission of no more than two pages on the issue of the costs orders sought by the respondents.
The respondents file and serve any reply no more than two pages by 4pm
31 August 2018.
The question of whether costs are to be ordered is reserved to be dealt with in chambers.
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 Caffyn & Protz Group 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 72 and 82 of 2018
File Number: PAC 3892 of 2015
| Ms Caffyn |
Applicant
and
| Protz Group Pty Ltd & B Pty Ltd (in liquidation) |
First Respondent
and
| Mr Caffyn |
Second Respondent
REASONS FOR JUDGMENT
On 23 April 2018 Rees J made consent orders between the Ms Caffyn (“the wife”), Mr Caffyn (“the husband”) and the liquidator of B Pty Ltd (in liquidation) (“the liquidator”). On 26 April 2018 her Honour made further consent orders resolving the remaining property settlement issues between the wife and the husband.
The consent orders of 23 April 2018 were made in the context of contested property settlement proceedings between the husband and the wife. The company, B Pty Ltd had been a vehicle through which the parties operated a business. It seems that the husband was the sole director and shareholder of B Pty Ltd. The company was placed in liquidation on 12 December 2016 and Mr Protz appointed as liquidator of the company. On 3 November 2017 the liquidator was joined as a party to the property settlement proceedings as a third party creditor. The liquidator had previously commenced proceedings in the District Court claiming a debt owed to the business by the parties but discontinued those proceedings on being joined as a party to the property settlement proceedings in the Family Court of Australia.
The hearing of the property settlement proceedings commenced before the primary judge on 23 April 2018 to be heard over four days. During the first day the parties, with the assistance of their respective legal advisers, reached a compromise with the liquidator to the effect that consent orders were made by which judgment was entered for the liquidator in the sum of $385,000 together with interest. The orders further enjoined the liquidator from taking action on the debt before 15 August 2018.
The hearing continued and on 26 April 2018, the parties resolved the balance of their property issues and, again her Honour made consent orders.
The wife now challenges the making of the consent orders.
On 22 May 2018 the wife filed an appeal from the consent orders made by Rees J on 26 April 2018. That appeal is No EA 72 of 2018. On 2 July 2018 the wife filed an application that this appeal be expedited.
On 21 June 2018 the wife applied for leave to appeal against the orders made on 23 April 2018 and filed a draft Notice of Appeal together with an Application in an Appeal for an extension of time in which to file that appeal. That appeal is No EA 82 of 2018.
Application to extend time EA 82 of 2018 – orders 23 April 2018.
The application to extend time in which to file an appeal was listed before me on 3 July 2018. At that time, because of the inadequacies of the draft Notice of Appeal, the wife was permitted time to redraw the grounds of appeal. On 13 July 2018, the wife produced a document containing proposed amended grounds of appeal.
The document consists of at least 80 numbered paragraphs under headings; “Equity’s jurisdiction to set aside judgments tainted by fraud” (50 paragraphs); “New evidence” (6 paragraphs); “Procedural fairness” (14 paragraphs); and “Conduct” (23 paragraphs).
None of the headings and the paragraphs to which the heading refer raises any identifiable ground of appeal asserting error by the primary judge but rather seems to raise issues which go to the integrity of the orders themselves and the conduct of the husband and the solicitor for the liquidator.
During the hearing on the application, the wife clarified her complaint against the primary judge in relation to the orders made on 23 April 2018 and asserted that she erred in failing to satisfy herself that the orders to which the parties consented were just and equitable before making the orders.
The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties.
As part of a consideration of the application, it is necessary to determine whether the proposed appeal is so devoid of merit that the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. It is recognised that what must be clearly shown before an applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
Counsel for the husband contended that the proposed ground of appeal is incompetent because, as the primary judge was exercising accrued jurisdiction in dealing with the liquidator’s claim against the parties, and was not therefore exercising jurisdiction under the Family Law Act1975 (Cth) (“the Act”) to resolve the property dispute as between the parties, there was no requirement for her Honour to be satisfied that the orders in favour of the liquidator were just and equitable.
I accept that argument, the primary judge in making the orders entering judgment for the liquidator was not exercising a discretion under the Act but was giving effect to the resolution of a commercial dispute as between the parties and a creditor (Warby & Warby (2002) FLC 93-091 at 88,790-88,793). There was thus no requirement that she be satisfied that the orders were just and equitable.
It follows that the proposed ground of appeal is incompetent and the application for an extension of time to appeal against the orders made on 23 April 2018 by Rees J is refused.
Appeal EA 72 of 2018 – application for expedition
On 22 May 2018 the wife brought an appeal against orders of Rees J made by consent of the parties on 26 April 2018. These orders provided for property adjustment between the parties and which dealt with financial matters concerning the children of the parties.
By application of 2 July 2018, the wife seeks an order that this appeal be expedited because she “has been diagnosed with Post Traumatic Stress Disorder and [an] Adjustment Disorder” and she is unable to work and thus suffering financial hardship. She further contended that she is suffering from anxiety and if the appeal is not expedited, she “will suffer serious emotional and/or psychological trauma”.
In support of those allegations, the wife produced documents including medical reports. But for a short note from the wife’s general practitioner, to which I will return, the bulk of the medical information is from practitioners who examined the wife as part of her application to have early access to the preserved benefit portion of her superannuation. The issue there for determination was whether by reason of a mental incapacity, the wife was unlikely ever to work again. The wife’s application was successful. Clearly then the issue of concern to each of those practitioners was not the effect on the wife’s condition from participation in or the continuation of her present legal proceedings but whether she was permanently incapacitated from working.
One examining consultant psychiatrist, Dr W, said that she will need ongoing support while going through the court process although he further noted the “unknown timeframe” for the resolution of the court processes.
The wife’s general practitioner offered the comment that “her symptoms have been exacerbated by ongoing and prolonged court proceedings. It is in her medical best interest to have the appeal process expediated (sic)”. The doctor offers no explanation for his conclusion that it is the appeal process which is exacerbating her symptoms rather than the other proceedings presently on foot brought at the wife’s behest. The report is of limited use.
The respondent challenges the relevance and contemporaneity of the reports prepared for the superannuation proceedings, noting that report was some twelve months old.
Section 94(2D)(j) of the Act provides for the expedition of appeals, although no criteria or considerations for making that determination are provided. Recourse is often had to r 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which addresses applications for expedition of hearings before a judge.
The considerations under r 12.10A(2) that the Court must take into account are:
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)whether the application has been made without delay;
(c)any prejudice to the respondent; and
(d)Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed)
The issue for determination here is whether the wife has demonstrated a circumstance which would cause this appeal to be given priority over other cases. In my view she has not. While it seems undoubtedly the case that she has been diagnosed with mental health issues, and even taking her general practitioner’s bald and unsupported statement of opinion into account, I am unpersuaded that it would require this case to displace other appeals.
The application for expedition will be dismissed.
Both the husband and the liquidator sought orders for costs against the wife in the event that the applications were unsuccessful. The husband sought that costs be paid on an indemnity basis although no submissions were directed to why in this case, the circumstances would support such a costs order. I am unpersuaded that there is anything in this application which would warrant such an order. However, the wife did not directly respond to those claims in her written submissions nor in her oral submissions. In the circumstances, I propose to order that the wife provide a written submission of no more than two pages in relation to the orders for costs sought by both respondents. When that submission is filed, the question of costs will be determined in chambers without necessity for further appearance or submission.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on ## July 2018.
Associate:
Date: 9 August 2018