Chong & Chong
[2016] FamCAFC 211
•3 November 2016
FAMILY COURT OF AUSTRALIA
| CHONG & CHONG | [2016] FamCAFC 211 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file an appeal – Where the respondent seeks that the application be dismissed – Where the affidavit filed by the respondent in support of the application for dismissal is unnecessary and improper – Where there is neither an adequate nor an acceptable explanation for the failure to file a Notice of Appeal within time – Where there is no merit in any of the proposed grounds of appeal and there is no chance of the appeal succeeding if leave to appeal was granted – Where the prejudice to the respondent in defending the proposed appeal outweighs any prejudice or injustice caused to the applicant if the application is dismissed – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks costs on a party/party basis – Where the application has been wholly unsuccessful and the respondent should have an order for costs in her favour – Costs ordered in favour of the respondent save and except for costs in relation to the respondent’s affidavit filed in support of an order for dismissal. |
| Family Law Act 1975 (Cth) – s 94AA Family Law Rules (2004) (Cth) – rr 22.03 and 22.09 |
| Gallo v Dawson (1990) 93 ALR 479 Gronow v Gronow (1979) 144 CLR 513 McMahon and McMahon (1976) FLC 90-038 Rutherford and Rutherford (1991) FLC 92-255 |
| APPLICANT: | Mr Chong |
| RESPONDENT: | Ms Chong |
| FILE NUMBER: | MLC | 11660 | of | 2015 |
| APPEAL NUMBER: | SOA | 52 | of | 2016 |
| DATE DELIVERED: | 3 November 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1559 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Teicher |
| SOLICITOR FOR THE APPLICANT: | Jeanne Gorman Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Vohra |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
The application in an appeal filed by the applicant husband on 7 July 2016 be dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to the application in an appeal (but not including any costs for the affidavit of the respondent wife filed on 3 August 2016), such costs to be assessed in default of agreement.
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 Chong & Chong 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 52 of 2016
File Number: MLC 11660 of 2015
| Mr Chong |
Applicant
And
| Ms Chong |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in an appeal filed on 7 July 2016, Mr Chong (“the husband”) seeks an extension of time to file a Notice of Appeal against paragraph 2 of the orders made by Judge Small on 30 May 2016. The husband’s application is supported by two affidavits; one sworn by Ms Natalie Trinh Vu, a solicitor employed at the law firm representing the husband, deposing to the circumstances surrounding the delay in filing the Notice of Appeal; the second is an affidavit of the husband’s solicitor expressing that the grant of an extension of time would not prejudice the respondent in the matter.
Ms Chong (“the wife”) filed a response on 3 August 2016, together with a supporting affidavit, seeking that the husband’s application be dismissed and that the husband pay the wife’s costs of and incidental to the application.
At the outset I note that the wife’s supporting affidavit traverses in significant detail the history of the parties and their relationship. I attempted to understand from counsel for the wife at the hearing of this application what the purpose behind this level of detail was in relation to a discrete application for an extension of time. Counsel sought to justify it as being relevant to whether an extension of time should be granted. Though it is helpful to know the history in general terms, the level of detail and evidence provided in the wife’s affidavit is unnecessary, and in fact improper, and thus I propose to ignore much of it.
Background
The proceedings before her Honour were interim proceedings concerned with the amended application in a case filed by the husband on 10 May 2016. In this application the husband sought the payment of a sum of $80,000 from the sale proceeds of the former matrimonial home for the purposes of funding his further pursuit of the final property proceedings between the parties.
In response to the husband’s application, the wife sought that she be paid $150,000 from the proceeds of sale, and that this payment, and the payment sought by the husband, be characterised as partial property settlement. It was agreed that there was a sum of $269,195 from the proceeds of sale held in a solicitor’s trust account.
On 30 May 2016 her Honour ordered that the husband receive the $80,000 sought by him, that the wife receive the $150,000 she sought, and that both sums be characterised “as a partial property settlement”. The order providing for the wife to receive $150,000 is the order sought to be appealed by the husband.
In accordance with r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) the time for filing a Notice of Appeal in relation to this order expired on 27 June 2016. Further, the husband’s application in an appeal before me was not filed until 7 July 2016 and thus the husband did not seek to file a Notice of Appeal or an application in an appeal for 10 days following the expiration period.
The Legal Principles
The principles relating to extensions of time are well settled. In Gallo v Dawson (1990) 93 ALR 479, McHugh J said at 480:
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 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.
Further, the authorities identify that the extent of the delay and the reasons for any delay are matters highly relevant to determining an application for an extension of time (see McMahon and McMahon (1976) FLC 90-038).
Discussion
Not all of the factors referred to by McHugh J were the subject of submissions before me, nor are they all relevant in the circumstances of this case. I have set out briefly the history of the proceedings and the nature of the litigation and need not discuss these aspects in any more detail. There is also no need to consider the conduct of the parties in these proceedings, there being no suggestion that this factor is relevant to the determination of this application. Thus, the relevant factors which must be considered are the reasons for the failure to file a Notice of Appeal within time, the prospects of the appeal succeeding and the consequences for the parties of the result of the application. I will now turn to those factors.
Failure to file within time
There are two asserted reasons for this; first, the availability of the reasons for judgment relative to the orders of 30 May 2016, and secondly, the availability of the transcript of the hearing before her Honour.
As to the reasons for judgment, Ms Trinh Vu asserts that she contacted the chambers of her Honour on three separate occasions seeking the provision of the reasons; namely by letter on 10 June 2016, and by email on 17 and 23 June 2016 respectively. The reasons were ultimately provided to the parties on 24 June 2016.
The first thing to note is that the reasons were provided to the parties prior to 27 June 2016, and therefore prior to the expiration of the 28 days. Therefore, there was clearly opportunity for the parties to consider these reasons within the time allowed to institute an appeal. Secondly, even if the reasons for judgment were not provided prior to this date, an appeal lies against orders, not reasons, and thus there was no requirement for the reasons to be provided to the parties within any specific timeframe. Thirdly, the reasons were delivered orally on 30 May 2016, and thus the parties had a basis and a context for the consideration of any appeal against any of the orders well before the receipt of the written version of the reasons. Fourthly, r 22.09 of the Rules provides that the grounds of appeal and orders sought in a Notice of Appeal may be amended “without permission, at any time up to and including the date fixed for filing of the summary of argument by the appellant”. It was therefore open to the husband to file a Notice of Appeal within time, but to amend it upon receipt of the reasons for judgment.
In relation to the availability of the transcript, Ms Trinh Vu asserts that despite ordering the transcript on 22 June 2016 “specifying the turnaround delivery time as ‘next day’”, the transcript was not provided within time. Ms Tranh Vu deposes to having contacted Auscript as to this issue on 24 and 27 June 2016 respectively. The transcript was then emailed to the parties on 27 June 2016, and on 30 June 2016 Auscript advised that the husband would receive a refund for the next day turnaround delivery fee due to the failure to provide the transcript in this timeframe.
The wife asserts that this is not a valid reason for the failure to file within time, given the solicitors for the husband were under instructions to file an appeal from at least 15 June 2016. In any case, the wife asserts that the transcript was not necessary for, or relevant to, the preparation of the Notice of Appeal, and even if it were, r 22.09 would allow for the Notice of Appeal to be amended when the transcript was made available.
Although counsel for the husband sought to argue the need for the transcript as a basis for determining whether or not an appeal would be instituted, both counsel appearing before me in relation to this application also appeared before her Honour on 30 May 2016 and would have been aware of what occurred on that date, and why her Honour made the orders that she did.
It is also important to note that the application seeking an extension of time was not filed on 27 June 2016, upon receipt of the transcript. Rather, there was a further delay of 10 days in the filing of the application, which delay remains unexplained by the husband.
In these circumstances, I find that there is neither an adequate nor an acceptable explanation for the failure to file a Notice of Appeal within time.
Prospects of success
In the husband’s draft Notice of Appeal he relies on seven grounds of appeal to demonstrate error in the primary judge’s reasons. Of course, it is not possible for me to determine with absolute certainty whether any one of these grounds would be successful on appeal, but I will nevertheless consider each of the grounds in order to determine as best I can, their chances of success.
It is also important to note that as the orders sought to be appealed are interlocutory in nature, leave to appeal is required pursuant to s 94AA of the Family Law Act 1976 (Cth) (“the Act”), and the husband will therefore be required to prove that there has been an error of principle and/or a substantial injustice caused such that leave to appeal should be allowed (see Rutherford and Rutherford (1991) FLC 92-255). The two factors relied upon by the husband in his draft Notice of Appeal in support of leave to appeal significantly overlap with his proposed grounds of appeal and will be considered in that context.
Ground One – The learned Judge erred in fact and law in failing to identify circumstances that made it appropriate to give consideration to exercising its power to make an interim order.
Ground Three – The learned Judge erred in failing to have regard to the failure by the wife to provide sufficient reasons to warrant the exercise of the court’s power to make an interim order.
Ground Four – The learned Judge failed to identify the circumstances relied upon by the wife which made it appropriate for the court to exercise its powerto [sic] make an interim order.
These grounds all relate to the “circumstances” upon which the judge relied when determining to make an interim distribution to the wife.
First, I note that it was the husband who initially sought an interim payment from the property pool and who asserted that the court had power to do so. Thus, if these grounds are relied upon to suggest that her Honour erred in making an interim distribution, that argument cannot be sustained. If the husband asserts that it was open for her Honour to make an interim distribution to him out of the property pool of the parties, he must accept that there is also power to do so in favour of the wife, especially in circumstances where her Honour has characterised such payments as “partial property settlement”.
Secondly, it is clear that the wife made submissions as to her need for the distribution and her Honour identified those submissions when considering whether a distribution should be made. Although her Honour considered that there was a lack of corroborative evidence to support these submissions, and thus was not inclined to make findings in respect of them, it cannot be asserted that the wife did not explain why she needed the money nor that her Honour failed to consider these assertions.
Further, her Honour clearly identified the circumstances which justified an interim order when at [31] – [32] she stated that it was “very clear that the wife, if she is successful, will get at least 50 per cent of the pool” and thus “if she [wished] to take part of her property settlement now, rather than later, and there [was] plenty of capital to allow that to happen” there was no reason why the distribution shouldn’t be made.
On this basis, I do not consider that there is merit in any of these grounds.
Ground Two – The learned judge erred in fact and law in failing to ensure that order 2 was just and equitable.
Although her Honour did not expressly say that it was just and equitable to make an order for partial property settlement in favour of the wife, such a conclusion is readily identifiable from her Honour’s reasons for judgment.
At [30] – [32] of her Honour’s reasons for judgment, her Honour notes that there is a lack of corroborative evidence to support the wife’s submissions as to her need for the funds, but nonetheless states that the relevant question is whether it would be proper for the wife to have the benefit of $150,000 from the property pool, given the dispute between the parties. Her Honour then clearly finds that it is proper and orders that the wife receive payment in circumstances where the wife will receive at least 50 per cent of the property pool and where there is sufficient capital to meet her application.
I do not consider there is merit in this ground.
Ground Five – The learned Judge erred in fact and law in that she failed to have sufficient regard to the fact that the wife had previously received $40,000by [sic] way of partial property settlement.
This ground raises a weight challenge, and to succeed on this basis the husband faces significant hurdles (see Gronow & Gronow (1979) 144 CLR 513).
It is plain that at [21], [22] and [27] her Honour considers the previous payments which had been made to the wife and the amount the wife would receive overall if a partial property settlement was made in her favour. Despite this, her Honour considered that the wife is likely to receive 50 per cent of the property pool in the final property settlement orders, and thus, as there was sufficient capital to make the payment sought by the wife, there was no reason that the wife could not receive part of that property prior to the final hearing (at [31] – [32]).
In those circumstances, I do not consider that this ground has any prospects of success.
Ground Six – The learned Judge erred in failing to have regard to whether it was in the interests of justice to exercise the power under s79 and to the fact that the usual order under s79 is a once and for all order made after a final hearing and that the power ought to be used conservatively.
This ground again ignores the fact that the initial application for partial property settlement was brought by the husband, albeit he sought to characterise it as such only in the alternative to his primary position of “litigation funding”, and the wife, in accepting that she could not oppose this order, sought an order for a partial property settlement in response.
In circumstances where both parties sought an interim distribution from the property pool, I do not consider it is open to the husband to assert that her Honour erred in doing what each of the parties asked of her.
Thus, I do not consider this ground has any chance of success.
Ground Seven – The learned Judge erred in failing to require the wife to provide proof of matters relied upon by her including the allegation that the bank had frozen accounts since 17 March 2016.
While it is true that her Honour did not require the wife to prove that her bank accounts had been frozen, at [26] her Honour recognises this and explains that she could not make a finding of fact as to this issue. Thus, her Honour merely notes the wife’s assertion in this regard and explains that such assertion had not been denied by the husband.
However, her Honour did not rely on this circumstance as a basis for her order that the wife receive $150,000 by way of partial property settlement. At [30] her Honour records the lack of corroborative evidence as to the wife’s reasons for seeking the partial property settlement, but considers that it is proper to make an order in the circumstances of the case where the wife will at worst receive 50 per cent of the property pool, and where there were sufficient funds to meet this request.
I do not consider her Honour erred in failing to require proof of the wife’s assertion in this regard, and even if I am wrong about this, I do not consider such an error is sufficient to amount to appealable error.
Conclusion
I consider that from an analysis of the proposed grounds of appeal and the primary judge’s reasons for judgment there is no chance of the appeal succeeding.
Consequences for the parties
In considering the consequences for the parties of the application either being successful or dismissed, I must balance the injustice which could occasion to the husband if the application is dismissed and his ability to appeal is extinguished, save and except by way of an application for special leave to appeal to the High Court of Australia, with the right of the wife to retain the judgment and the prejudice which could occasion to her in the event of the application succeeding.
Counsel for the husband asserts that if the principles in Gallo v Dawson were to be strictly applied in this case they would “see the rules become an instrument of injustice” as it would prevent the husband from appealing an order which was unjust, namely the order that the wife receive a partial property settlement of $150,000 in addition to the sum of $40,000 that the wife had received at an earlier stage of the proceedings. It is submitted that this order is unjust because of the discrepancy in the amounts received by each of the parties with the wife receiving substantially more than the husband. Counsel also submits that if the application is successful there would be no prejudice to the wife as the “delay in seeking to file the appeal is short, and the orders sought to be appealed from are not final orders”.
On the other hand, counsel for the wife asserts that prejudice will result for the wife due to the significant cost of defending the appeal and the “significant delay in circumstances where the interim injunctions significantly limit her freedom”. In particular, counsel asserts that the wife is aged 65 years, works six to seven days per week and is “without access to her capital whilst these proceedings are on foot”.
Further, counsel for the wife argued that the husband will not suffer any prejudice as a result of his application being dismissed as there are sufficient assets on either party’s case to satisfy their respective entitlements to the property pool at final hearing. Thus, it is asserted that even on the wife’s smaller alleged property pool, the partial property settlement orders made by her Honour did not have the effect of reducing the amount to which either party may be entitled at the final hearing, and therefore did not affect the amount which the husband may receive in final orders.
I agree with the submissions of counsel for the wife. At the time her Honour made the orders for partial property settlement, she considered that “even on the wife’s figures, which the husband says ought be higher … the property pool is worth something like $1.75 million” (at [17]). It was also clear that the parties had a sum of $269,195 in a solicitor’s trust account. In looking at the property available to the parties, her Honour was then satisfied that the amounts they sought by way of partial property settlement were entirely within the realm of what they would each receive in the final property settlement orders, and was content to order that they receive these sums. This course seems completely appropriate and I consider that in allowing these orders to stand there is minimal, if any, prejudice or injustice caused to the husband. In relation to counsel for the husband’s argument as to the discrepancy in the amounts received by each party, in his application the husband only sought $80,000. It was open to him to seek more, and the fact that the wife did so in response does not amount to injustice.
In these circumstances, I consider that the prejudice to the wife in defending the proposed appeal outweighs any prejudice or injustice caused to the husband if the application is dismissed.
Conclusion
In light of all of the circumstances in this case, and considering the factors relevant to an exercise of discretion to allow an extension of time, I am of the view that the Rules do not work an injustice and I propose to dismiss the application.
Costs
At the conclusion of the hearing I sought submissions from the parties as to the costs of the application depending on the result. In the event that the application was dismissed, counsel for the wife sought that the husband pay the wife’s costs on a party/party basis.
This application was filed by the husband to remedy his own failure to file a Notice of Appeal within the allowed time frame. Thus, particularly given that the same has been wholly unsuccessful, an order for costs should be made in the wife’s favour. However, that should not include any costs for the affidavit of the wife filed on 3 August 2016.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 November 2016.
Associate:
Date: 3 November 2016
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