CHIRAG & KANELKA
[2018] FamCAFC 240
•3 December 2018
FAMILY COURT OF AUSTRALIA
| CHIRAG & KANELKA | [2018] FamCAFC 240 |
| FAMILY LAW – APPEAL – REINSTATE APPEAL DEEMED ABANDONED – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of her failure to file appeal books as ordered – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where there is no adequate or acceptable reason for the failure to file the appeal books on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where in the interests of justice the application must be refused – Application dismissed. |
| Family Law Act 1975 (Cth) Marriage Act 1961 (Cth) Family Law Rules 2004 (Cth) rr 22.44 & 22.57 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Chirag |
| RESPONDENT: | Mr Kanelka |
| FILE NUMBER: | MLC | 1365 | of | 2018 |
| APPEAL NUMBER: | SOA | 41 | of | 2018 |
| DATE DELIVERED: | 3 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 December 2018 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Order
The Application in an Appeal filed on 24 October 2018 be 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 Chirag & Kanelka 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 MELBOURNE |
Appeal Number: SOA 41 of 2018
File Number: MLC 1365 of 2018
| Ms Chirag |
Applicant
And
| Mr Kanelka |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the court is the Application in an Appeal filed by Ms Chirag (“the wife”) on 24 October 2018. In that application the wife seeks an order reinstating appeal no. SOA 41 of 2018, and extending the time for filing of appeal books until 15 November 2018. The application was supported by an affidavit filed on the same date.
Both parties appeared without legal representation, with the wife on a telephone-link.
The application is opposed by Mr Kanelka (“the husband”) and in that regard he filed a Response on 19 November 2018 seeking, in effect, dismissal of the application. That Response is also supported by an affidavit of the same date. However, as I have explained to the respondent husband, the material in that affidavit is not relevant to the issues that I have to decide. In summary, the affidavit seeks to put before this Court a detailed history of the matter and, in particular, of the relationship between the husband and the wife, and the lead-up to the hearing before the primary judge which resulted in the orders being made which are the subject of the appeal now sought to be reinstated.
I note also for the record, that the wife sought to file a lengthy affidavit in response to the affidavit of the respondent husband. That affidavit has not been received for filing. It too contains irrelevant material for the purposes of the hearing today, and attempts to put the wife’s perspective on the lengthy history of this matter, and the circumstances leading up to the hearing before the primary judge that I have just referred to.
To return to the application before the court, which, to repeat, is an application to reinstate an appeal deemed abandoned.
The appeal sought to be reinstated was initially filed by the wife on 20 June 2018, appealing against an order made by the primary judge, Bennett J, on 5 June 2018. That order provided for the application for a decree of nullity filed by the wife on 9 March 2018 to be dismissed.
It is necessary to spend some time detailing the history of this matter in the Appeal Court.
To repeat, proceedings commenced with the Notice of Appeal filed on 20 June 2018. That Notice of Appeal came before this Court on 27 July 2018, and at that time, not only was a Notice of Appeal before the court, but there was an Application in an Appeal filed by the wife on 26 June 2018 seeking to expedite the hearing of the appeal.
On 27 July 2018 I dismissed the application seeking expedition. Although there was an affidavit in support of that application, that affidavit did not provide any acceptable or necessary basis for the hearing of the appeal to be expedited.
In relation to the Notice of Appeal, I indicated to the parties, but particularly to the wife, that the appeal was incompetent, in that there was no proper ground of appeal set out in the Notice of Appeal, and I also indicated to the wife that, as the matter stood, the appeal should be dismissed for those reasons.
However, at the request of the wife I adjourned the matter to 24 August 2018 to give her an opportunity to file an Amended Notice of Appeal containing competent grounds of appeal alleging appellable errors made by the primary judge.
The wife filed an Amended Notice of Appeal on 22 August 2018, and the matter came back before this Court on 24 August 2018.
Unfortunately, my assessment of the amended grounds of appeal was that they were still incompetent, and thus the spectre of the appeal being dismissed again loomed large. I was not able to act on that assessment though, namely to dismiss the appeal there and then, given that that could only be done by a three-member bench of the Appeal Division. Thus I referred the matter to the Appeal Registrar for the purpose of conducting a directions hearing to list the appeal for hearing, intending that, in the event that the three-member bench was of the same view that I was, namely that there was no competent ground of appeal, then the appeal would be dismissed.
Subsequent to that, on 3 September 2018, a Further Amended Notice of Appeal was filed by the wife, and that was in the context of a directions hearing being undertaken by the Appeal Registrar. I will in a moment set out some of the history of what happened in terms of communications between the wife and the Appeal Registrar, but for present purposes, the Further Amended Notice of Appeal still failed to raise any competent ground of appeal alleging recognisable appellable error by the primary judge. It contained 19 pages of narrative said to comprise the grounds of appeal. A number of those 19 pages comprised quotations from various pieces of legislation in India which were of no relevance to the appeal.
Various sections of the Marriage Act 1961 (Cth) were also quoted. Now those sections were relevant in the sense that, of course, the application before the primary judge was for a decree of nullity, and relevantly the primary judge needed to have regard to some of the provisions of the Marriage Act in order to determine that. However, outside the references to the Marriage Act, the narrative failed to, as I say and I repeat, set out a competent ground of appeal. What it tended to do was to revisit the evidence that was put before the primary judge, and to not put too fine a point on it, the basic proposition was that the primary judge got it wrong because she should have accepted what the wife was saying and made the decree of nullity.
In any event, to repeat, there was no competent ground of appeal raised in that Further Amended Notice of Appeal.
The appeal was deemed abandoned as a result of the failure by the wife to file her appeal books in time. The relevant order of the court made on 4 September 2018 was for the wife to file her appeal books by no later than 16 October 2018. She failed to do that, and as I say, as a result the appeal was deemed abandoned, and the parties were advised of that by letter from the Appeal Registrar dated 18 October 2018.
The wife immediately indicated to the Appeal Registrar that she wanted to seek to reinstate the appeal, and the Registrar sent to her the detail of the documents that were required for that purpose, and that is what is before the court today, namely, the Application in an Appeal filed on 24 October 2018 seeking reinstatement.
In terms of the legal principles that apply, r 22.44 of the Family Law Rules 2004 (Cth) provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor, namely r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court to reinstate or not. That is consistent with the Full Court decision of Bemert & Swallow (2010) FLC 93-441 (“Bemert & Swallow”) where their Honours concluded at [154]:
… [i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
The Full Court also noted (at [154]) that it was “important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175]”.
As to the latter case, and in particular the issue of case management, French CJ said this (at [30]):
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
Importantly, and despite what the Full Court said at [154], it was also identified in Bemert & Swallow that the principles applicable to the determination of an application for an extension of time, as set out for example in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said at 480-481:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
I note that what his Honour there said has been followed on many occasions by the Full Court of this Court, and in particular in Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
As is apparent from the authorities, the overarching principle is to ensure that justice is accorded to both parties, and in that context it is also important to note that in Bemert & Swallow there was an acceptance of the principle that, unlike where a Notice of Appeal has not been filed at all, where an appeal has been commenced within time, ordinarily, the appellant is entitled to have the appeal determined in the usual way. However, as the Full Court said at [133] – [137], other considerations apply where the appeal is futile or is devoid of merit.
In summary then, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies there are a number of factors that may be relevant to be taken into account.
The three primary factors that I propose to have regard to in this case are, first, whether there are adequate reasons that explain the failure to comply with the orders of the court in relation to the filing of the appeal books; secondly, the merits or otherwise of the appeal; and thirdly, the prejudice to the parties depending upon the result of the application or, put another way, the consequences for the parties of the granting or the refusal of the application.
Turning then to the first factor, namely whether there are adequate reasons explaining the failure to comply with the order of the court.
As I have said, the relevant order of the court was that made on 4 September 2018 by the Appeal Registrar, and at that hearing the wife appeared by telephone, and the husband appeared in person. That was also the day when orders were made for the listing of the appeal for hearing, and all orders necessary to prepare the appeal for that hearing, but primarily and importantly and again to repeat, orders were made for the filing of appeal books by the wife no later than 16 October 2018.
In the usual way that order set out that the wife was to be responsible for the preparation of the appeal books, and the order provided and set out all the documents that were to be included in the appeal books. I might also say that 4 September 2018 was not the first time that the parties, and particularly the wife, were aware of what was required to prepare the appeal for hearing and, more particularly, the need to file appeal books. I say that because there was a directions hearing set up for 10 August 2018, and prior to that the Appeal Registrar had provided to the parties a draft order setting out all of the matters that needed to be attended to. However, that hearing was adjourned because that was in the period when the wife had the opportunity to file an Amended Notice of Appeal, as I have referred to earlier in these reasons.
In any event, the directions hearing was conducted on 4 September 2018. Importantly, there is no indication in the record and, particularly, at the hearing on 4 September 2018, to suggest that the wife did not then have all of the documents that were required to be in the appeal books. Certainly the wife, for example, did not raise with the Appeal Registrar that she would not be able to comply with the orders for the preparation and filing of the appeal books because she did not have all of the relevant documents.
Subsequent to that directions hearing, there was a myriad of email correspondence passing between the wife and the Appeal Registrar addressing various matters. For example, there was an enquiry by the wife as to whether the appeal book could be filed electronically, to which the response was “yes”. And another example was the filing of an Address for Service in Australia by the wife and there were some difficulties with the wife’s Further Amended Notice of Appeal filed on 3 September 2018.
The wife today has put to this Court, and this is contained in her affidavit as well, namely, that the reason for her failure to file the appeal books within time is that she was not able to obtain documents that she said she did not have, and upon enquiry of the Appeal Registry, she alleged that she was told that she could not have the documents that she was allegedly missing. The wife also put to me today that there was email correspondence which supported that claim.
I spent some time during the hearing of this matter with the wife attempting to obtain or to locate that particular email correspondence, but she could not. Further, I had access to all of the email correspondence and other correspondence in the appeal file, and it is readily apparent from the correspondence files, that apart from what I refer to below there was no email, and no series of emails passing between the wife and the Appeal Registrar raising this issue and, in effect saying “I need access to the file”, or, “I haven’t got the documents”, or, “I can’t comply with the order, because I don’t have the documents”, and more particularly, from the Appeal Registrar saying the wife could not access the file and/or could not have documents from the file.
However, what the wife does refer me to in terms of what, she says, is relevant email correspondence, is an email dated 16 October 2018, namely the date that the appeal books were required to be filed. The lead-up to that particular email, which is apparent from the court file, is that on Monday 15 October 2018 there was an email from the wife to the Appeal Registrar. Now, I indicate that this is the very first email where there is any reference by the wife to documents required to form the appeal books, and what that email says is:
Please find attached the documents required from me to form the appeal books. Please reference the documents you already have on file so that I can attain justice not have to undergo further anguish.
That was responded to within half an hour by the Appeal Registrar as follows:
I refer to the above matter and to your email below.
I respond as follows:
(1) I confirm receipt of transcript of the hearing on 5 June 2018.
(2)I will not file “Final Grounds of Appeal”. It is not acceptable in its current form. If you wish to amend your Notice of Appeal, please do it correctly. It is currently not clear what is new.
(3)You are required to provide me with the Appeal Book. This means you need to prepare the book in Adobe Acrobat Format with an index and with each document included and then email it to me. If you fail to do so by 4.30pm MELBOURNE TIME today (16 October 2018), your appeal will be abandoned.
There was then a response to that email by the wife on 16 October 2018 at 3.26pm as follows:
Please find attached the whole file joined together in PDF format. The pages that are STRICKEN (sic) OUT are the ones that I do not want to add. The pages that I am adding are below it immediately.
I hope you will understand my situation and how I have been made a victim of your entire justice system and have spent close to 5 months in Australia living hand to mouth I am financially and mentally broken, the main priority of the justice system is to give quick relief to the victims instead of hanging onto little details of format. I have attached all the documents I have access to, please attach the file from the wrong decision that was made as that file contains EVERY single document the court needs. I do not have access to those documents and therefore cannot attach them.
This is a very simple solution, I have sent you all that I have and you can easily attach the file that is already in the court system. This would ensure all documents are in court and the victim gets justice.
*Please file “Amended Appeal to Be Filed”
*Please see “Amended Appeal and Transcript” (this is the entire file in PDF format as you had requested)
*I am sending the transcript on it’s (sic) own as well as need may beI am sending you these files as requested in your previous email.
So I am humbly pleading to you to please help me out and not make huge matters of these little mistakes in format. I am only a child myself and doing my best to deal with this justice system. When the system has made a mistake, according to law it should have been the same legal system that helped me out in rectifying their own mistake.
As can be seen that email does not take the matter any further in the sense of indicating, or establishing, that at any time the wife was told by the Appeal Registrar, or anybody in the Appeal Registry, that she could not have access to, or obtain copies of the documents from her file.
There was then within half an hour a response by the Appeal Registrar, again indicating what has to happen to amend the Notice of Appeal, and in bold confirming that the appeal will be abandoned if the appeal book is not filed by email by 4.30pm that day.
There is a telephone note in the file of a conversation at 5:15pm between the wife and the Appeal Registry, and it is noted that the wife says she does not have access to the documents. The response given is that she had plenty of time to raise that before today, and her appeal is now abandoned. The rest of the note of the conversation relates to what the wife could do about, for example, seek to reinstate the appeal.
Then we come to the email that the wife appears to rely upon, which was at 5.21pm and reads:
We just spoke on the phone, you mentioned that I did not ask you to get copies of those documents, however please see the attached screenshot below where I am clearly telling you that I do not have access to those documents.
My appeal was abandoned because of your inability to send me documents that you already knew I would need. Please send Application to Reinstate along with all documents you know I will require. So that I can further resubmit everything all over again to make sure I meet your standards.
That email, as is obvious, refers to the telephone conversation that I have just mentioned, but the language is important. As I indicated, what the wife put to me today was that the court, and this is my summary, refused to provide her with documents that the court knew she needed. That is not the case. There is no doubt that in the telephone conversation the wife said to the Appeal Registrar that she did not have access to the documents. However, 16 October 2018 is the first occasion when that was told to the Appeal Registry, and it was too late. If it was the case, the wife had the opportunity to raise it on 4 September 2018 and, indeed, even well before that. It was not done and, again, not raised after 4 September 2018 until right on the very day when the appeal books were due.
That, in my view, does not provide an adequate or acceptable reason for the failure to file the appeal books on time. The wife had ample opportunity to either file the appeal books or raise in good time that she needed access to the documents because she did not have any, or did not have some of them, but that was not done in sufficient time to comply with the orders.
Turning now to the merits or otherwise of the appeal.
I have in effect already touched upon this. By that I mean the Further Amended Notice of Appeal that is now before the court was filed on 3 September 2018, and it does not raise any competent ground of appeal.
I will not repeat what I have said in these reasons already about the content of that Further Amended Notice of Appeal. Suffice to say that, given that there is no competent ground of appeal raised, the appeal the wife seeks to pursue has no merit. Importantly, this is the third attempt by the wife to get it right, and provide competent grounds of appeal which would allow the appeal to proceed. There was the original Notice of Appeal filed on 20 June 2018, then an Amended Notice of Appeal filed on 22 August 2018, and now the Further Amended Notice of Appeal filed on 3 September 2018.
I attempted to explain at the initial directions hearing in July 2018, and again at the subsequent directions hearing in August 2018, what was needed for the appeal to be able to proceed. Thus, in my view, the wife has had ample opportunity to put before this Court a Notice of Appeal which contains competent grounds of appeal identifying appellable errors by the primary judge, and she has failed to do so.
Perhaps the difficulty is that the primary judge did not in fact make an appellable error. Indeed, having read her Honour’s reasons for judgment, I am unable to discern any such error made by her.
The third major factor that I need to consider is the prejudice to the parties depending on the result of the application or, put another way, the consequences for the parties of the granting or the refusal of the application.
If the application is refused there is clear prejudice to the wife in that the appeal will remain abandoned. That means she cannot pursue the appeal. There is no appeal to the Full Court for example, from a decision refusing the application. The wife though, has the ability to seek special leave to appeal from the High Court of Australia, but that is not an easy process and may not be, in practical terms, available to her, but that is a matter for the wife to determine. Thus I proceed on the basis that, effectively, if I refuse the application, there is clear prejudice to the wife.
On the other hand, if I grant the application, there is also clear prejudice to the husband in that he would then have to deal with the appeal, whereas at the moment he does not. The appeal has been abandoned and cannot proceed.
In conclusion, as the authorities recognise, the consideration of the relevant factors informs the court’s determination of the fundamental issue, namely whether it is in the interests of justice to allow the appeal to proceed. Here, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused. There is no adequate or satisfactory explanation of the failure to comply with the order made by the Appeal Registrar for the filing of appeal books, and I have also found that there is no merit identified in the appeal.
In terms of prejudice to either party, to repeat, there is prejudice to the wife if I refuse the application, and to the husband if I grant it. I have to balance out that prejudice, but given that I have found that there is no adequate or satisfactory explanation for the failure to comply with the order of the court for the filing of appeal books, and there is no merit in the appeal, for those reasons alone, to repeat, it is in the interests of justice that this application be refused.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 3 December 2018.
Associate:
Date: 19 December 2018
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