Cavanough v Hayes
[2001] WASCA 62
•7 MARCH 2001
CAVANOUGH -v- HAYES [2001] WASCA 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 62 | |
| Case No: | FUL:197/2000 | 28 FEBRUARY 2001 | |
| Coram: | MASTER BREDMEYER | 7/03/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| PDF Version |
| Parties: | TRACY ANN CAVANOUGH WILLIAM JOHN HAYES |
Catchwords: | Appeal Extension of time to file and serve a cross-appeal Power to extend |
Legislation: | Family Court Act 1997 (WA), s 211(3) and (5) Rules of the Supreme Court, O 3 r 5, O 63 r 4, r 7, r 9(4) and (5), O 64 r 3 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
WILLIAM JOHN HAYES
Respondent
Catchwords:
Appeal - Extension of time to file and serve a cross-appeal - Power to extend
Legislation:
Family Court Act 1997 (WA), s 211(3) and (5)
Rules of the Supreme Court, O 3 r 5, O 63 r 4, r 7, r 9(4) and (5), O 64 r 3
Result:
Application allowed
(Page 2)
Representation:
Counsel:
Appellant : Mr R M Dunlop
Respondent : In person
Solicitors:
Appellant : Shann & Associates
Respondent : In person
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: This is an application by the respondent to extend the time within which to lodge a cross-appeal.
2 The appellant (mother) and the respondent (father) are the parents of a daughter named Abbey Jane Hayes. They were not married. The father brought an application in the Family Court of Western Australia for better custody and access to the child. The application was opposed by the mother and resulted in a decision of Barlow J in the Family Court on 8 November 2000. He published his reasons and made orders as to the custody of the child on that date. The appellant (mother) lodged an appeal against that order on 8 December 2000. The appeal is to the Full Court of this Court. That appeal notice was served on the respondent on 13 December 2000. This application for an extension of time within which to enter a cross-appeal was filed on 15 February 2001.
3 I need to refer to the rules under which this application is brought and to consider how late is the application. Because the parties were not married the orders made by Barlow J were made in the non-Federal jurisdiction of the Court: see s 36(2) of the Family Court Act 1997 (WA). By s 211(3) and (5) of that Act, an appeal in respect of a non-Federal jurisdiction of the Family Court of Western Australia lies from the Family Court to the Full Court of the Supreme Court, and appeals "are to be made in the manner and within the time prescribed by the Rules of the Supreme Court". The relevant rules are O 64 which expressly applies to the Family Court of Western Australia supplemented, where those rules are deficient, with necessary modifications, by O 63. Order 64 r 3 provides for that supplementation. Under O 64 r 3(2) an appeal from the Family Court must be lodged within 21 days from the date of judgment or order appealed from, or within such further time as may be fixed by the Full Court, a Judge or a Master. The appellant's appeal in this action should have been lodged by 29 November. It was lodged on 8 December. It is thus nine days out of time.
4 Order 64 has no provision relating to a cross-appeal, so the court must apply O 63 with necessary modifications. Order 63 r 9(4) provides that a cross-appeal (inter alia) must be served on the appellant within 21 days after service of the notice of appeal on the respondent. By r 9(5) a respondent, by whom a notice of cross-appeal is given under this rule, must "within two days after service of the notice on the appellant, file a copy of the notice ... at the Central Office".
5 There is no power given in O 63 r 9 to extend the time within which a notice of cross-appeal must be served and filed. Contrast r 9 in that
(Page 4)
- respect with O 63 r 4 which provides that a notice of motion by way of appeal must be served within 21 days from the date of the judgment or order, or within such extended time as the Full Court or a Judge may allow. Also, contrast it with O 63 r 7 which deals with an entry of an appeal for hearing. It provides that unless the Full Court or a Judge otherwise orders, an appeal must be entered for hearing before the expiration of 12 weeks from the institution of the appeal.
6 There is no power in O 63 to extend the time within which a respondent may lodge a cross-appeal, or, for that matter, a notice of contention. But I am only concerned with a cross-appeal. Under O 3 r 5 the court may, on such terms as it thinks just, extend the time within which a person is required to do something under these rules. Does that apply? According to Seaman, at 63.9.2, an extension of time is possible and I quote:
"If there is a cross-appeal or an application to vary the judgment in a way different from that which the appellant contends, time limits are to be applied in the same way as they are in relation to an appeal: VCS Ltd v Magmasters Ltd [1984] 3 All ER 510 at 511."
- Our O 63 r 9 is a copy of the English rule O 59 r 6, so the English practice is significant. The commentary on this in 199 Supreme Court Practice 59/6/6 states:
" Extension of time for serving a respondent's notice - O 3, r 5(4) gives the full Court, a single Lord Justice, and the Registrar of Civil Appeals jurisdiction to extend time for serving a respondent's notice. Applications for such an extension of time are normally heard by the Registrar. If all parties consent in writing, the Registrar will grant the extension without a hearing by initialling the copies of the respondent's notice which are lodged with the Civil Appeals Office. Otherwise, the application must be made by summons (r 14) supported by an affidavit deposing to any facts relied upon by the applicant; the other side are entitled to be heard.
The present practice is that where it is a respondent's notice to affirm (see para 59/6/1) an extension of time will normally be granted, unless it can be shown that granting it will cause significant prejudice to the appellant. Where, however, it is a respondent's notice to vary or a respondent's notice by way of cross-appeal, an extension will only be granted if good reasons
(Page 5)
- for doing so are shown (see generally Magmasters Ltd v VCS Ltd, [1984] 1 WLR 1208; [1984] 3 All ER 510, C.A.).
Normally the party who is out of time will be ordered to pay the other party's costs of and occasioned by the application, unless the respondent to the application (i.e. the appellant in the appeal) has been asked to consent to the extension and has unreasonably refused. A party who unreasonably opposes an application for an extension of time runs the risk of being ordered to pay the applicant's costs."
7 I propose to follow that practice. The respondent has drafted a notice of cross-appeal and that notice is substantial. It seeks substantial alteration to the custody and access orders made. Under the custody orders made, the respondent (father) was given access every alternate weekend from 5.30 pm Friday until commencement of school on the following Monday morning. He was also given access on the non-custodial weekend from 5.30 pm Friday until 10.00 am Saturday. The mother's appeal seeks to overturn that access given to the father on every second Friday night. The father's notice of cross-appeal seeks to overturn the order that he be given access every second weekend. He has drafted a notice of cross-appeal and he seeks equal residency rights with the mother, that is that he should have custody every alternate week, commencing from 5.30 pm on Friday until 5.30 pm on the following Friday. He seeks a reversal of other orders too, one of which is that he pay $5,000 to the mother as a contribution to her costs.
8 To return to the application to serve the notice of cross-appeal out of time, I ask how late is this cross-appeal? As stated, the notice of appeal was served on him on 13 December. His cross-appeal should have been filed within 21 days of that. He also gets the benefit of the Christmas court vacation under O 3 r 5 which provides that, in the compilation of time prescribed by these rules etc for the filing and serving of any notice of appeal, the period or any part of the appeal which is between 24 December and 15 January next following shall not be reckoned unless the court orders. I consider the respondent who is filing a notice of cross-appeal should get the benefit of this provision. From 13 December to 23 December is 10 days and from 15 January to 26 January is 11 days. Friday 26 January 2001 was a public holiday so, by O 3 r 4, the respondent would get the benefit of a further extension until Monday 29 January. This application for an extension was lodged on 15 February. The respondent is thus 17 days out of time.
(Page 6)
9 What are his reasons for getting out of time? The respondent has filed an affidavit sworn 15 February in support of his application. He says that on 23 December 2000 he formally put an offer to settle to the mother. This was rejected by telephone on 8 January and formally in a letter on 28 January 2001. I consider that an excuse for part of the lateness. Secondly, he said he is unrepresented and enquired of the Supreme Court Central Registry on six occasions to ascertain the correct procedures with respect to the appeal. The Court staff told him that he should obtain his own legal advice. He said that the Supreme Court Registry does not cater for litigants in person as well as the Family Court. He says the Family Court has its own web site and is more user friendly for litigants in person. The appellant's counsel says that Mr Hayes is a policeman and has been pursuing the action in the Family Court with vigour and is familiar with rules and court procedures and should not be given any special concessions by the Court. I am not persuaded that Mr Hayes is completely familiar with the appeal rules in this case. They are not easy, because, in this case, the Family Court of Western Australia exercised State jurisdiction. Even counsel for the appellant, who is a solicitor who practises in this area of law, is not so familiar with the rules. He told me that the appeal period was 30 days and that the time for a notice of cross-appeal was also 30 days. That is not so. They are the appropriate periods for an appeal against an order of the Family Court in its Federal jurisdiction. Also, I think the appellant's counsel was unaware that his client's appeal was out of time. How he will remedy that I do not know. The respondent also stated in his affidavit and in oral argument that he has been waiting for a long time for a copy of the transcript from the appellant's solicitors. He said he was promised this on a number of occasions. He says he is entitled under the rules to a copy of that transcript. On 23 January he was told by the appellant's solicitors that they had ordered a copy. He says that the Family Court said it takes seven days to produce a copy. The appellant's solicitors have still not given him a copy.
10 I do not consider it a good reason to say that the appellant was waiting on a copy of the transcript. I consider he should have been able to draft grounds of appeal without the transcript. With the help of some legal assistance he has drafted grounds of cross-appeal and I consider those grounds do not require recourse to the transcript, although some reference to the transcript will be needed either in particulars or in the written outline of submissions. I here refer to the draft notice of cross-appeal grounds with respect to O 16, ground (c):
(Page 7)
- "Failing to consider the false and misleading evidence presented by the Respondent during the course of the trial as per s 237(3)(c) of the Family Court Act."
11 However, I consider the other grounds for an extension are reasonable. The time of the extension is short. Some time was lost in putting an out of court offer to the appellant. I accept that the respondent was not clear on the precise rules relating to cross-appeals and I think some leniency for the ignorance of rules of a lay litigant should be given. I, therefore, propose to grant leave to the respondent to file and serve the notice of cross-appeal out of time. I consider the draft notice of appeal and cross appeal should stand. The appellant will need to pay our Court fee of $265 in relation to that. It is clear from the wide basis of his cross-appeal that probably more time will be spent on it than on the appellant's appeal. In those circumstances, I consider it appropriate that he should pay half the cost of obtaining the transcript in any event. It need not be paid forthwith, but it needs to be paid on the conclusion of the appeal in any event, meaning whoever wins the appeal and cross-appeal.
12 It was put to me that the respondent's cross-appeal is hopeless with almost no chance of success. It was put to me that the respondent is almost a vaxatious litigant - one not willing to accept the trial Judge's decision. Mr Hayes signed an earlier consent order giving the mother custody. At the trial he lost on the major issue of equal residency rights yet he chose not to appeal. I was referred to various parts of the judgment - par 28, par 69(5), (6), (10) and (11) to show the weakness of his case. The mother, I was told, by way of contrast, accepted the trial Judge's decision and has only appealed a tiny part of it - viz the respondent's access on alternate Friday nights. I do not consider that as minor.
13 The respondent's case seems weak, but I am not an expert in this area of law. But I am not persuaded that it is so weak that the cross-appeal is vexatious or an abuse of process. The respondent should be allowed to run it and, if the Full Court thinks it hopeless, he can be punished in costs.
14 I will extend the time for lodgment of the cross-appeal to 15 February 2001, conditional on the appellant getting an extension of time for its appeal. A cross-appeal is dependent on a valid appeal. If the appellant fails to get an extension, this application will also fail.
15 The draft notice of cross-appeal is to stand as the cross-appeal. Service is dispensed with.
16 The respondent is to pay the Court's filing fee of $265.
(Page 8)
17 The respondent is to pay the appellant half of the cost of transcript in any event.
18 The respondent, through a solicitor not yet on the record, has referred me, in faxed submissions of 6 March, to a Family Court Practice Direction 23.2 which provides:
"23.2 Subject to the following paragraph, a party to proceedings may order a transcript through the Registry provided the transcript is paid for and upon the transcript being supplied, one copy will be retained by the Registry for the Court file. All other copies will be given to the requesting party who is then to provide one copy free of charge to each other party."
- That direction applies; however I consider that this Court, in exercising its appeal jurisdiction, can make a contrary costs order, as I have done above. I affirm that order.
19 The appellant has asked, in faxed submissions of 6 March, for an extension of time to file its appeal. The respondent has indicated, in its faxed submissions of the same date, that that will be opposed. A proper application supported by an affidavit setting out the reasons for the lateness, needs to be filed.
20 The costs of this application will be reserved. They can be decided by the Master who hears the appellant's application for an extension of time. It seems good that the costs of both applications be determined at the same time.
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