COWPER & JENKINS - [2017] FamCAFC 39

FAMILY COURT OF AUSTRALIA

COWPER & JENKINS

[2017] FamCAFC 39

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Where the applicant seeks to appeal three sets of orders made by the primary judge – Where one set of orders was made by the consent of the parties – Where the applicant alleges fraud on the part of the respondent – Where there is no evidence that there is any merit to the proposed appeal – Where there is no reasonable explanation for delay – Application dismissed – Applicant ordered to pay the respondent’s costs of the application.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 1.14, 22.03

Allan and Ors & Allan and Ors (2014) FLC 93-606
Gallo v Dawson (1990) 93 ALR 479
Robinson & Willis (1982) FLC 91-215

APPLICANT:

Mr Cowper

RESPONDENT:

Ms Jenkins

FILE NUMBER:

SYC

7499

2010

APPEAL NUMBER:

2017

DATE DELIVERED:

16 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

2 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2017

LOWER COURT MNC:

[2015] FCCA 357

REPRESENTATION

THE APPLICANT:

In person with a McKenzie friend

SOLICITOR FOR THE RESPONDENT:

Katie Smith Solicitor

Orders

The Application in an Appeal filed on 20 January 2017 seeking an extension of time in which to appeal is dismissed.
The applicant is to pay the respondent’s costs as agreed or, in default of agreement, as assessed.

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 Cowper & Jenkins 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 16 of 2017
File Number: SYC 7499 of 2010

Mr Cowper

Applicant

And

Ms Jenkins

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 20 January 2017 Mr Cowper (“the applicant”) seeks an extension of time in which to appeal from orders of the Federal Circuit Court of Australia made on 27 February 2015, 24 June 2015 and 1 November 2016. The orders were made in de facto property proceedings between Ms Jenkins (“the respondent”) and X Pty Ltd on the one hand and the applicant on the other.
On 27 February 2015 Judge Kemp declared that the applicant and the respondent had been in a de facto relationship for periods totalling 10 years and seven months, which finally broke down on 28 February 2010. The primary judge found that it was appropriate to make an order adjusting the interests that they held in their property. An order was made that within 42 days the applicant was to transfer all his interest in a property at H Town to the respondent. Within the same period, the respondent was to pay him the sum of $61 863.18 and to transfer all her interest in a property at G Town to him.
If these orders were not complied with, the H Town property was to be sold and the applicant was to pay the respondent $378 136.82.
It appears that neither course was followed, because on 24 June 2015 those orders were set aside by consent. They were replaced by orders that required the respondent to transfer her interest in both the H Town and G Town properties to the applicant within 56 days. At the same time, the applicant was to pay the respondent $378 136.82.
Again, it appears that these orders were not complied with.
On 1 November 2016, on the application of the respondent, the court declared that the sum outstanding under the 24 June 2015 orders, including costs and interest, was $404 932.67. Orders were made requiring the applicant to transfer the G Town and H Town properties to the respondent and to give her vacant possession. The properties were to be sold by her and she was to receive the sum owed to her by the applicant from the proceeds, with any surplus to be paid to him.
The applicant wishes to appeal against all three sets of orders.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) requires a Notice of Appeal to be filed within 28 days of the date the order appealed from was made. That time may be extended by an order of the court (r 1.14 of the Rules).
In considering whether to grant an extension of time the court will have regard to what was said by McHugh J in Gallo v Dawson (1990) 93 ALR 479 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 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature and the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the Rules would work an injustice on him.
The applicant appeared for himself with the assistance of a McKenzie friend who had prepared the application and the applicant’s affidavit.
The text of the affidavit simply stated that:
I seek an out of time appeal to HH Kemp orders of 27/2/2015, consent orders 24/6/2015, orders of 1/11/2016 on grounds of clear cut fraud newly discovered. Annexure ‘A’ 24 pages.
The annexure consists of five typed pages setting out the McKenzie friend’s understanding of the purported fraud, followed by pages of diary entries, bank statements, emails, lists of matters for investigation and newspaper articles.
The essence of the complaint seems to be that when the G Town property was acquired, the applicant and the respondent were wrongly registered as owners as joint tenants. According to the applicant, there was an agreement between them that they would hold the property as tenants in common with the applicant owning 75 per cent and the respondent 25 per cent. The document prepared by the McKenzie friend asserts that the applicant only became aware that he and the respondent had been registered as joint tenants when he paid out the loan used to acquire the property and received the certificate of title.
Included among the documents annexed to the applicant’s affidavit is an email from a firm of solicitors, who were then acting for the applicant. (That is made clear by the other email in the chain which forwarded the email to the applicant.) The email, dated 2 March 2012, said in part (as per the original):
Mr [Cowper] and Ms [Jenkins] purchase this property at auction and signed and exchanged as joint tenants.
We were engaged after the contracts were exchanged and had our dealings primarily through Ms [Jenkins].
Following settlement Mr [Cowper] advised he wished to change the relationship on title.
Ms [Jenkins] would not agree and would not sign a transfer.
This email establishes that the applicant was well aware that the G Town property was held as joint tenants prior to the property hearing before Judge Kemp. Indeed, one of the applicant’s complaints expressed on the hearing of this application was that there was evidence as to this before the primary judge and that his Honour had ignored it.
According to the primary judge, the G Town property was purchased on 15 August 2009. One of the diary entries annexed by the applicant to his affidavit for that day says, as best as I can read it (as per the original):
Ask [Ms Jenkins] Tenants in Common: ~~or joint tenants~~
percentage to me 75%? her ?25% 75%-25%
~~or 50/50~~
The applicant does not say why or when the line was put through the words that now appear to be struck out.
A diary entry on 17 August 2009 appears to indicate that the applicant rang a person called Ms E and said “75% [Mr Cowper] 25% [Ms Jenkins] at tenants in common”.
The text prepared by the McKenzie friend says that:
[Mr Cowper] kept his past diaries and bank records in a locked shed in a box and when he went to source information they were G O N E ?from the box with only books remaining inside . What’s important were removed BEFORE [Ms Jenkins] suing for defacto
The text does not identify how or when the applicant obtained the diary pages annexed to his affidavit, if they were, in fact, removed by the respondent.
In short, the evidence does not disclose whether the applicant had the relevant diary entries all along or, if not, when he recovered them.
The delay in bringing this application from the first two orders, in particular, is extensive. No explanation for the delay is given in the evidence other than, by inference, that he could not bring the application until he had obtained the diaries. However, the applicant’s evidence is silent as to that.
In submissions, the applicant said that he could not act sooner than he had, because reading the judgment and orders made him so upset and sick that he could not attend to filing an appeal. That is not a satisfactory explanation for such an extensive delay.
I consider the orders of 24 June 2015 to be very significant. By consent, the earlier orders were varied so as to enable the applicant to retain both the H Town and G Town properties and to pay to the respondent the lump sum referred to in the earlier orders. They are a powerful affirmation by the applicant of the correctness and appropriateness of the earlier orders.
The applicant asserted from the bar table that those orders did not reflect his intention, because the original consent orders were prepared in pencil and were later altered without his knowledge when the typescript was prepared. There is no evidence that this was the case, no record of any previous complaint about the orders by the applicant and no application was made to set them aside. The orders themselves record that at the time they were made, the applicant was represented by counsel. The orders gave the applicant the benefit of retaining both the H Town and the G Town properties.
I therefore consider that it is highly likely that the June 2015 orders reflect the intention that the applicant had at that time.
This makes it very difficult to challenge either set of orders. It is difficult to assert error in the first orders given that they were, in substance, affirmed by the second orders. As to the second order, the applicant did not identify any error on the part of the primary judge in making orders by consent. In any event, if orders are by consent they cannot be appealed on their merits. If the orders were obtained through fraud or similar misconduct then they may be the subject of an appeal or an application to set them aside (Robinson & Willis (1982) FLC 91-215 at 77,153 – 77,154 and 77,161; Allan and Ors & Allan and Ors (2014) FLC 93-606 at 79,507).
The applicant had not prepared a draft Notice of Appeal identifying error in the reasons for the making of the three orders. Indeed, no reference at all was made to the orders of 1 November 2016, either in the affidavit or in submissions.
Rather, the applicant’s approach was that the first orders were obtained by fraud and, at least implicitly, if that was found to be the case, the other sets of orders would be similarly vitiated.
As I have endeavoured to explain, the better view of the applicant’s evidence is that the material on which he relies to establish fraud was known to him at the time of the hearing in 2015, although the evidence does not disclose when or how he obtained the diary entries which he said were removed by the respondent.
If that is the case, the applicant does not explain why the primary judge was in error in making the orders that he did.
If the applicant’s assertions were to be accepted, the primary judge would have found that the G Town property was owned as tenants in common with a 75 per cent share owned by the applicant. Instead, his Honour found it was jointly owned.
However, that was a finding without significance in these proceedings. In compiling the lists of the parties’ property to be divided, the primary judge included the G Town property at its full value. I do not see that any different course would have been taken if the applicant’s assertions as to ownership had been accepted. If, on the other hand, the applicant became aware of the facts on which he relies to assert fraud after judgment, his remedy is to seek to set the orders aside. However, even in that event, the issues of delay, merit and difficulty caused by the consent orders of June 2015 would still be significant obstacles in his way.
Lest there be any doubt about it, I am not satisfied by the evidence that any of the orders are vitiated by the conduct asserted by the applicant.
Finally, the applicant’s evidence raised issues about bank loans and the applicant’s business which I simply could not understand and cannot take further.
I am not satisfied that any of the applicant’s grounds of appeal against any of the orders have any merit. I do not accept that the applicant has given a satisfactory explanation for the delay in appealing or the delay in bringing this application.
The application for an extension of time in which to file a Notice of Appeal is dismissed.

Costs

The respondent sought an order for costs. The applicant opposed this, saying that the respondent had recently served a garnishee notice on his bank, which resulted in him having no available funds. He does, however, have the G Town and H Town properties, subject to his obligation to pay the respondent the sum he agreed to in the June 2015 orders. I was informed without objection that he owns a third property from which he receives rent.
The applicant was entirely unsuccessful.
No other matter was raised in relation to the issue of costs.
Taking these two matters into consideration, the appropriate order is that the applicant will pay the respondent’s costs, as agreed or, in default of agreement, as assessed.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 March 2017.

Associate:

Date: 16 March 2017