CAGAN & SABONE

[2020] FamCAFC 116

FAMILY COURT OF AUSTRALIA

CAGAN & SABONE [2020] FamCAFC 116

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the Draft Appeal Index within the required time – Where the appeal was deemed abandoned per Rule 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks a reinstatement of the appeal – Where the appeal has merit – Appeal reinstated.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 22.13, 22.21

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rand & Rand [2009] FamCAFC 88

APPLICANT: Mr Cagan

RESPONDENT: Ms Sabone

FILE NUMBER: PAC 2113 of 2017

APPEAL NUMBER: EAA 123 of 2019

DATE DELIVERED: 15 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J (via telephone)

HEARING DATE: 12 May 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 October 2019

LOWER COURT MNC: [2019] FCCA 3164

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Shaw (direct brief)

SOLICITOR FOR THE RESPONDENT: Cunningham Solicitors

Orders

1. The Appeal EAA 123 of 2019 filed on 8 November 2019 be reinstated.

2. The applicant is to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 22 May 2020.

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 Cagan & Sabone 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: EAA 123 of 2019
File Number: PAC 2113 of 2017

Mr Cagan

Applicant

and

Ms Sabone

Respondent

REASONS FOR JUDGMENT

1. On 8 November 2019 Mr Cagan (“the applicant”) appealed against an order made by Judge Harman on 14 October 2019 summarily dismissing his application for property adjustment between himself and Ms Sabone (“the respondent”).

2. Following the filing of the Notice of Appeal on 8 November 2019 the applicant’s lawyer was notified by email from the Eastern Appeals Registry dated

   
   

   18 November 2019 that pursuant to Rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the Draft Index to the Appeal Books was to be filed within twenty-eight days of filing the Notice of Appeal and that failure to comply with this rule would cause the appeal to be abandoned.

3. That direction was not complied with and on 9 December 2019 the appeal was deemed abandoned pursuant to r 22.21 of the Rules. Thus the applicant is required to seek reinstatement of the appeal to maintain it.

4. On 24 December 2019 an application for reinstatement was filed and supported by an affidavit of the applicant’s barrister, appearing by direct brief. The applicant’s barrister deposed that the failure to comply with the Rules was entirely his fault and not the fault of the applicant as he had overlooked that time was running against the applicant for the purpose of filing a Draft Index to the Appeal Books. The applicant’s barrister further deposed that immediately when he realised he had overlooked the filing of the Draft Appeal Index he filed the application for reinstatement of the appeal.

5. The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 which case dealt with an application for the extension of time to appeal although the principles have been taken to apply to an application to reinstate an appeal (see Rand & Rand [2009] FamCAFC 88).

6. The central principle is that such applications ought be allowed where to do otherwise may cause a substantial injustice.

7. The order reinstating an appeal is not automatic but involves the exercise of discretion.  The discretion is given for the sole purpose of enabling the court to do justice between the parties.  In determining whether a strict application of the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the leave.  Part of that involves consideration of the merits of the proposed appeal which, it must be accepted may only be gleaned by reference to the documents already filed, and any prejudice that might accrue to the respondent.

8. In Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”), Brennan CJ and McHugh J were of the view that once an appeal has been commenced, the applicant is entitled to have the appeal determined in the usual way. They said, at [7], that where an extension of time for the taking of an interlocutory step is sought “… the merits of the appeal are not a relevant consideration... unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time".

9. Here, of course, the appeal has been deemed abandoned by reason of the applicant’s failure to comply with the procedural directions.  Nonetheless, the discussion in Jackamarra is useful to a determination of whether, notwithstanding the appeal having been regularly instituted, the appeal should not be reinstated.

Merit of the appeal

1. The applicant contends that in making the order for summary dismissal, the primary judge failed to afford the applicant procedural fairness because the matter was listed on that day merely for directions and for mention, and on the oral application of the respondent, the primary judge heard and, ultimately dismissed the applicant’s application for property settlement orders.

2. It was conceded by counsel for the applicant that the applicant had been delinquent in complying with orders made in the primary proceedings for the production of documents and the filing of evidence.

3. The solicitor for the respondent conceded that the applicant had no notice of his intention to seek summary dismissal of the property adjustment application although said that on the evening before the mention date, he had forwarded submissions to the applicant’s lawyer which, apparently, went to the applicant’s failure to comply with procedural orders.  Although counsel for the applicant appeared for the applicant on the date on which the orders were made, he argued that he did not have an opportunity to make submissions on the issue of summary dismissal.

4. While the respondent contended that the applicant’s appeal was devoid of merit and thus ought not be reinstated, I do not agree.

5. The appeal is not totally devoid of merit that it ought to be effectively dismissed at this stage by refusing to reinstate the appeal.  I am satisfied that there is sufficient merit in the appeal.

Prejudice

1. There is, of course, prejudice to the respondent being that there will necessarily be further delay in bringing the parties’ financial proceedings to an end.  However, it is important also to bear in mind what was said by Gummow and Hayne JJ in the High Court of Australia decision of Jackamarra at [33]:

   ... when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail.  Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way.

2. In this case, I am satisfied that a strict application of the rules would work an injustice on the applicant in circumstances where the appeal was regularly filed and I will thus order the appeal be reinstated and for the applicant to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 22 May 2020.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 May 2020

Associate: 

Date:  15 May 2020