Crawford and Crawford
[2008] FamCAFC 30
•28 February 2008
FAMILY COURT OF AUSTRALIA
| CRAWFORD & CRAWFORD | [2008] FamCAFC 30 |
| FAMILY LAW – APPEAL – Application to extend time to appeal |
| APPLICANT: | Ms Crawford |
| RESPONDENT: | Mr Crawford |
| FILE NUMBER: | SYF | 3378 | of | 2005 |
| APPEAL NUMBER: | EA | 7 | of | 2008 |
| DATE DELIVERED: | 28 February 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 28 February 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 November 2007 |
| LOWER COURT MNC: | [2007] FamCA 1360 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Picker |
| SOLICITOR FOR THE APPELLANT: | Lynden E Hopper & Co |
| SOLICITOR FOR THE RESPONDENT: | Taylor & Scott |
Orders
That the time to file a Notice of Appeal against Orders 3, 4, 5, 6, 7 and 8 of the Honourable Justice Rose made 21 November 2007 be extended until 4.00 pm on 14 March 2008.
That the appellant wife file and serve a pre-argument statement on or before 4.00 pm on 14 March 2008.
That the appellant wife file and serve a draft appeal index on or before 4.00 pm on 14 March 2008.
That the Appeal Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal such procedural hearing to be held at a time and date notified to the parties by the Appeal Registrar.
Liberty to either party to relist the matter before the Honourable Justice Boland (or if she is not reasonable available another member of the Appeal Division) on 7 days notice in writing to the other party and to the Appeal Registrar.
No orders as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Crawford and Crawford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 7 of 2008
File Number: SYF 3378 of 2005
| Ms Crawford |
Applicant
And
| Mr Crawford |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By application in a case filed on 21 December 2007 Ms Crawford, (“the wife”) seeks an order to extend time in which to file Notice of Appeal against orders made by the Honourable Justice Rose on 21 November 2007 under s 79 of the Family Law Act 1975(Cth) (“the Act”).
The application is not opposed by Mr Crawford (“the husband”).
There is no dispute that pursuant to the Family Law Rules, 2004 any appeal against his Honour’s orders was required to be filed on or before 19 December 2007.
Evidence
The wife relies on the affidavit of her solicitor Lynden Edwards Hopper sworn 21 December 2007 (“Mr Hopper”).
Mr Hopper deposes to receiving instructions from the wife to commence appeal proceedings on 14 December 2007 after a conference with counsel on 10 December 2007.
Mr Hopper says that he received a Notice of Appeal prepared by counsel on 17 December 2007 and that the Notice was accompanied by a letter advising the last day for filing of an appeal was 21 December 2007 and that the Notice should be filed on 20 December 2007 or before that date.
Mr Hopper honestly and candidly admits that the documents were in his possession ready to file on 17 December, but that he was under pressure of work and did not send the documents to his city agent for filing until the evening of 19 December 2007. He also concedes that he did not check the date for filing an appeal under the rules.
Relevant statute law and rules
Section 94 of the Act provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:
An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Sections 94(2D), (2E) and (2F) are also relevant. They provide:
(2D) Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
……
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
(2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).
Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made. Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.
Relevant legal principles – application for leave to appeal out of time
The relevant principles to be applied in deciding whether to extend time for lodging an appeal or an application for leave to appeal are set out in Gallo & Dawson reported in (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties for the grant or refusal of the leave.
The principles have been referred to in a number of cases in this Court including McMahon & McMahon reported in (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at page 80,017 and Gallo & Dawson (supra) at 480 to 481 where McHugh J said:
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.
Discussion
The factual background leading to this application is not in dispute. It is clear that failure to file the Notice of Appeal in the time provided by the rules was not in any way due to conduct on behalf of the wife. It is also clear that the wife’s solicitor extremely promptly, when the error in filing on time was apparent, filed this application. However as the granting of leave is not automatic, but an exercise of discretion, I am of the view that I should briefly consider matters relevant to the granting of leave, and in particular whether a strict application of the rules would work an injustice on the wife.
(a) History of the proceedings
The parties were married for approximately 20 years. They were divorced in June 2006. Before the trial Judge the wife sought orders for property settlement, a parenting order in respect of the school the youngest child should attend, a child support departure order, and leave to review a Registrar’s costs order out of time. The proposed appeal is directed only to the property orders.
(b) The conduct of the parties
There is nothing relevant in the conduct of the parties themselves which I should take into account in the exercise of my discretion.
(c) The nature of the litigation
I have already discussed the nature of the litigation.
(d) Consequence for the parties of the grant or refusal of the application for extension of time
The consequence for the wife, absent an extension of time in which to appeal is that, unless she has a claim under s 79A, the property orders will be final and binding on her. There is no suggestion of any matter which would raise a ground under s 79A.
From the husband’s point of view, the litigation with its attendant costs and stress will be ongoing.
(e) The prospects of success of the appeal
It is not appropriate for me on this application to extensively examine the grounds of appeal. However, I note that ground 1 is a challenge to the exercise of discretion by the trial Judge in his determination of the appropriate percentage adjustment to be made in the wife’s favour under s 75(2). The limits on appellate inferences with discretionary judgments are well known (see House v The King (1936) 55 CLR 499).
The wife does raise as an issue the asserted failure by the trial Judge to deal with a potential common law claim by the husband, and to make any adjustment in her favour for such award, or in the alternate, to adjourn the proceedings under s 79(5). It is impossible for me on this application without the appeal books (including transcript) to consider the merits of these grounds. I accept, prima facie, that on their face the grounds do raise a substantial issue to be agitated on the hearing of the appeal. This factor favours the granting of leave to the wife.
(f) Can hardship or injustice to the husband be compensated by an order for costs
It is clear from reading his Honour’s reasons for judgment that the wife has the ability, in the event the appeal is unsuccessful, to meet an order that she pay the husband’s costs of and incidental to the appeal. This is a relevant matter for me to take into account in the exercise of my discretion favouring the wife.
(g) Delay by the wife and explanation for the delay
As I have already explained the delay was of very short compass, and the present application was brought immediately the error was apparent to the wife’s solicitor.
Error by a solicitor in failing to file documents in time provided in the High Court rules in a special leave application was recently considered by Heydon J in Mackey and Mackey [2007] HCATran 271 (28 May 2007). On making orders to restore the application, his Honour referring to the solicitor’s error, said “Whilst these events are regrettable, they are the kind of events which can easily happen in professional practice. They are not events for which the husband was personally responsible”. His Honour remarks are apposite in this case.
Conclusions
I am satisfied in the circumstances of this case that strict compliance with the rules would work an injustice on the wife, and that an extension of time in which to file an appeal should be granted. In so determining I have taken into account that the wife appears to have a substantial issue to agitate on the appeal which would be lost if time were not extended. I have also taken into account the very short delay outside the time provided in the rules for filing an appeal, and the circumstances which lead to the failure to file the Notice of Appeal without any fault on the wife’s behalf. I also have regard to the fact that any prejudice to the husband can be ameliorated by an order for costs in the event the appeal is unsuccessful.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland
Associate:
Date: 28 February 2008
2
0