Clivery & Conway

[2007] FamCA 1435

FAMILY COURT OF AUSTRALIA

CLIVERY & CONWAY [2007] FamCA 1435

FAMILY LAW - APPEAL – Leave to apply for security for costs out of time

Family Law Act 1975 (Cth) s 117AB
Family Law Rules 2004 r 1.14, r 19.05, r 22.49

FAI v Southern Cross (1988) 77 ALR 411
Gallo v Dawson (1990) 93 ALR 479
Harris and Harris (1991) FLC 92-254
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT: [Ms Clivery]

RESPONDENT:	[Mr Conway]
FILE NUMBER:	CAF	551	of	2002

APPEAL NUMBER: EA 61 of 2007

DATE DELIVERED: 8 November 2007

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May, Thackray and O’Reilly JJ

HEARING DATE: 8 November 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 March 2007

LOWER COURT MNC: [2007] FamCA 1306

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT: Anne Marie Proctor & Associates

COUNSEL FOR THE RESPONDENT: [Mr Conway] appeared in person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. That the time within which the applicant, [Ms Clivery], had to file her application for security for costs be extended to the date on which it was filed.

2. That the costs of the application for leave to institute proceedings for security for costs out of time and the costs of the application for security for costs be reserved as costs in the appeal.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 61 of 2007
File Number: CAF 551 of 2002

[Ms Clivery]

Applicant

And

[Mr Conway]

Respondent

REASONS FOR JUDGMENT

1. The application before us is that filed by [Ms Clivery] (“the mother”) on 26 October 2007 seeking leave to file an application for security for costs of an appeal out of time. 

2. The respondent, [Mr Conway] (“the father”), opposes the application.

Background

1. On 30 May 2007, Finn J granted the father an extension of time within which to appeal orders made by Waddy J on 26 March 2007.  The Notice of Appeal was duly filed on 27 June 2007. 

2. The appeal related to an order for costs made by Waddy J on 26 March 2007 following a 10-day trial conducted in 2005 dealing with matters concerning the welfare of the parties’ daughter, [Alexandra]. 

3. His Honour determined that [Alexandra] should move from the mother’s home to live with the father.  It appears the principal reason for so ordering was his Honour’s finding that the mother had physically abused [Alexandra], notwithstanding her strong and repeated denial of ever having done so. 

4. The father’s application for costs was heard on 26 March 2007 at which time the father was represented by his solicitor and the mother was represented by counsel.

5. After hearing submissions and taking some additional evidence, his Honour delivered judgment ex tempore and ordered the mother to make a contribution to the father’s costs fixed in the amount of $7,500 (which he decided could be offset against certain sums thought then to be owed to the mother by the father).

6. It is noted that in making the order for costs his Honour relied on the provisions of s 117AB(2) which had been inserted into the Family Law Act 1975 after the substantive trial in the proceedings had been completed and judgment delivered.

7. The father is now self-represented and has drafted his own Notice of Appeal.  The Grounds of Appeal run to two and a half closely typed pages and are more in the style of a submission, rather than grounds of appeal.  The father has noted in his affidavit sworn 26 October 2007 that Finn J has “provided the opportunity for me to file an amended notice of appeal” but he went on to say that he was “unable to identify how my existing notice of appeal fails to address the relevant issues”.  As the appeal itself is not before us, we do not propose to say any more about the grounds of appeal.

Relevant statute law and rules

1. Part 19.2 of the Family Law Rules 2004 relates to applications for security for costs. Rule 19.05(1) provides that “a respondent may apply for an order that the applicant in the case give security for the respondent’s costs”. Rule 19.05(2) lists matters the court may take into account in determining whether to order security for costs.

2. Rule 22.49, which specifically relates to appeals, provides as follows:

   22.49(1)A respondent may apply for security for costs within 21 days after the service on the respondent of the Notice of Appeal.

   22.49(2)Part 19.2 applies to an application for security for costs in an appeal as if the appellant is the applicant in the case.

3. Rule 1.14 provides as follows:

   1.14(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.

   1.14(2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.

   1.14(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.

4. The principles in relation to extensions of time provided by Rules were discussed by McHugh J in Gallo v Dawson (1990) 93 ALR 479. Although his Honour was there considering an application for leave to appeal out of time, it is accepted that the principles he discussed are relevant to all applications for leave to extend time limits provided by Rules.

5. The principles emerging from Gallo v Dawson may be summarised as follows:

   ·    The grant of an extension of time is not automatic.

   ·    The object is to ensure that Rules which fix times do not become instruments of injustice.

   ·    Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.

   ·    When determining 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.

   ·    When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.

6. The High Court also had occasion to discuss time limits fixed by Rules of Court in FAI v Southern Cross (1988) 77 ALR 411. In that case the Court was concerned with a rule not dissimilar to Rule 1.14 of the Family Law Rules 2004. Wilson J, with whom Brennan, Deane and Dawson JJ agreed, said at 417:

   The plain meaning of these words is very wide.  The court may extend “any time” fixed by “any . . . order” and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired.  As Baggallay LJ said in Carter of the analogous English rule, it gives “very full discretionary power; indeed, I can hardly imagine a more extended discretion” … It is a remedial provision which confers on a court a broad power to relieve against injustice.

7. The principles governing applications for leave to extend time have also been stated by this Court on many occasions.  In one of the first published decisions of the Court, Evatt CJ said in McMahon v McMahon (1976) FLC 90-038 at 75,144:

   The general principles governing applications for leave to extend time are established by a number of cases.  In summary, the applicant must show that there are adequate reasons which explain the delay; that there is a substantial issue to be raised on appeal; and that no hardship or injustice is caused to the Respondent which cannot be compensated by orders as to costs or otherwise.

8. As was pointed out in Tormsen and Tormsen (1993) FLC 92-392 at 80,018, the principles referred to in McMahon are factors to be taken into account, rather than legislative directions.

Discussion

1. The father’s Notice of Appeal was filed on 27 June 2007.  There is no evidence of the date on which the Notice of Appeal was served, but the mother’s solicitors wrote to the father by letter dated 11 July 2007 advising him of the mother’s intention to apply for security for costs.  The application for security for costs was not presented for filing until 5 September 2007, by which date it was well out of time.

2. The mother at all material times has been represented by solicitors. The mother has sworn an affidavit in which she deposes that both she and her solicitor were unaware there was a time limit for the filing of an application for security for costs. It is always unfortunate when a party’s legal advisor is not apprised of all the relevant Rules, but regrettably the Family Law Rules have undergone numerous amendments over the years and we note that until 2004 there was no time limit for the filing of applications for security for costs in appeals.

3. We understand the father’s submission that the mother should have produced evidence to corroborate the claim that her solicitor was unaware of the time limit.  However, the critical issue is whether the mother herself was informed of the time limit and we have no reason to doubt her claim that she was not so informed.

4. In our view, strict compliance with the Rule would work an injustice upon the mother as she would then be denied the opportunity to pursue her application for security for costs, which was foreshadowed well within the requisite time limit but not filed due to the apparent oversight of her legal advisors.  We observe in passing that the father was the beneficiary of an extension of time within which to file the appeal itself.  In support of his application for an extension of time he too relied upon the failure of his solicitors to lodge a document within the time prescribed by the Rules. 

5. The father in his affidavit in response to the application for an extension of time has not provided any evidence that satisfies us that he would suffer any injustice in the event that the mother were permitted to prosecute her application for security for costs.  He did say in para 11 of his affidavit of 26 October 2007 that he will experience “substantial disadvantage” but gives no evidence of what the disadvantage might be.  The father was given an opportunity in oral submissions to expand on his affidavit but we were still not persuaded that he will suffer material disadvantage by leave being granted.

6. In considering the merits of the mother’s proposed application, we find it necessary only to say that she has an arguable case in relation to her foreshadowed application for security for costs.  In this regard it is noted that the father is pursuing an appeal against the exercise of discretion.  As this Court said in Harris v Harris (1991) FLC 92-254 at 78,711:

   Orders for costs are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere with a costs order.

7. This is not to say that security for costs would ordinarily be ordered on an appeal against a costs order, but the fact that such appeals are rarely successful provides at least some justification for considering that the mother’s application for security for costs may have merit.  Until such time as the argument of both parties has been advanced, it is not appropriate for us to say more in relation to the likely success of the application other than that the manner in which the father has chosen to draft his Notice of Appeal tends to obscure whatever merit there might be in his case.

8. Accordingly the order we propose to make is to extend the time within which the mother had to file her application for security for costs to the date on which it was filed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  30 November 2007