Czeb and Czeb - [2011] FamCAFC 103

FAMILY COURT OF AUSTRALIA

CZEB & CZEB

[2011] FamCAFC 103

FAMILY LAW - APPEAL – Application to extend time to appeal

Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; (1996) 70 ALJR 541

Family Law Act 1975 (Cth)

APPELLANT:

MR CZEB

RESPONDENT:

MS CZEB

FILE NUMBER:

SYC

7329

2008

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

28 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

28 April 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 February 2011

LOWER COURT MNC:

[2011] FamCA 87

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

Self represented

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Pigott Stinson

Orders

That the time within which to lodge an appeal against orders of Justice Barry made on 23 February 2011 be extended to 4pm on 28 April 2011.
In consequence of Order 1 the Amended Notice of Appeal filed 21 April 2011 be deemed to have been filed in time.
That a copy of the transcript of the trial on 18 & 19 November 2010 be made available to the appellant husband on the basis that the husband consents to his entitlement to a settlement of property pursuant to the orders of the Court being charged with reimbursement of the costs of the production of such transcript.
That the hearing of the husband's appeals against the orders of Barry J of 23 February 2011 and 6 April 2011 be consolidated.
That the Appeals Registrar is requested to list the husband’s appeals for hearing in the sittings of the Full Court at Sydney commencing 22 August 2011.
That the appellant husband be responsible for the preparation of the appeal books with respect to each of his appeals.
That the appeal books for the husband's appeals comprise each of the following documents arranged in the following order:
·     Any Amended Notice of Appeal;
·     Orders of the trial Judge;
·     Reasons for judgment of the trial Judge;
·     Transcript of the proceedings relevant to the appeal;
·     Application and response and any relevant affidavit material;
·     Exhibits tendered before the trial Judge; and
·     Summary of Argument.
That the appellant husband's written outline of argument in support of his appeals not exceed 20 pages of single typescript.
That the appellant husband file and serve appeal books in accordance with the previous orders in the Sydney Registry of the Court by no later than 4 pm on 1 August 2011 four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondents, together with a copy of the certificate.
That by 4 pm on 1 August 2011 in addition to his appeal books the husband file and serve a separate appeal book containing documents which the husband contends the trial judge erroneously failed to consider.
That the wife's written outline of argument be filed and served by no later than 4 pm on 18 August 2011.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon 72 hours notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

IT IS NOTED that publication of this judgment under the pseudonym Czeb & Czeb 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 PARRAMATTA

Appeal Number: EAA 43 of 2011
File Number: SYC 7329 of 2008

MR CZEB

Appellant

And

MS CZEB

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 8 April 2011 Mr Czeb (“the applicant”) sought an extension of time within which to appeal against Orders for settlement of property made by Barry J on 23 February 2011 in proceedings between the applicant and Ms Czeb, his former wife (hereinafter referred to as “the respondent”). As is apparent, the applicant failed to file his Notice of Appeal within time by a period of slightly in excess of two weeks. That delay was minimal in the circumstances of this case.
In his affidavit in support of his application for an extension of time, the applicant provides an adequate explanation of his failure to lodge his Notice of Appeal within time. It is sufficient for present purposes to refer only to the reality that during the period in which a Notice of Appeal could have been filed as of right, the applicant was, and continues to be, incarcerated at a Correctional Centre, where he is serving a lengthy custodial sentence. Without in any way criticising the authorities who administer the penitentiary, the Court accepts that this applicant would have encountered somewhat more difficulty in filing a Notice of Appeal within time than would a litigant who was at large in the community. If the issue becomes one of delay, the Court would not decline to exercise its discretion to extend time on that basis.
The second matter of relevance is prejudice to the respondent. In the circumstances of this application, that topic has dual significance. The first is that, as discussed with Counsel for the respondent, whatever the outcome of the appeal or appeals, about which more will shortly be said, the respondent to this application will be in a position where any costs awarded to her by the Full Court will clearly be recoverable from the not insignificant award made in favour of the applicant by the trial Judge. In that sense, there is no financial prejudice to the present respondent in the context of costs of proceedings in the Full Court.
The other aspect of prejudice to the respondent is that as a result of Orders for costs made by Barry J on 6 April 2011, which Orders were clearly, in some way that is not currently known to this Court or needs to be known to this Court, referrable to the outcome of the substantive proceedings determined by his Honour on 23 February 2011, against which the present applicant has filed a Notice of Appeal. That Notice of Appeal, there is no doubt, has been filed within time. It is not an appeal in respect of which leave is required and is an appeal which the applicant is able to prosecute as a right in the Full Court. The point of that is that, irrespective of the outcome of the present application, the present respondent will have to engage with the present applicant in the Full Court at least with respect to the costs of the proceedings which resulted in the judgment of 23 February 2011.
In those circumstances, although clearly the respondent is prejudiced in the sense alluded to by her learned Counsel, namely that she is denied the fruits of success in the litigation at first instance, there is no prejudice of the kind which would disincline the Court to exercise the discretion to extend time if it were otherwise appropriate to do so.
The real basis of opposition to this application, as learned Counsel for the respondent clearly indicated at the outset, relates to the merit or, it was submitted, that there is a demonstrable absence of merit or possible merit in the proposed appeal.
The applicant has filed a Draft Notice of Appeal and, in more recent days, an Amended Draft Notice of Appeal. With respect to the applicant, and notwithstanding his undoubted intellect and industry, it is very difficult to discern the prospect of success on appeal in any of the challenges agitated by him, and very extensively agitated, in the material which the applicant has filed to date. As suggested to Counsel for the respondent, however, it is not the function of this Court to determine an issue which would obviously require more extensive agitation in order for it to be properly and finally determined. The highest that the Court can put the position on the material presented by the applicant is that the Court is not persuaded that the proposed challenges to the trial Judge’s substantive decision are doomed to failure.
Justice Kirby, in a judgment of Lindon v The Commonwealth (No. 2) (1996) 136 ALR 251; (1996) 70 ALJR 541, with his Honour’s customary wisdom and clarity of expression, spelled out to courts placed in a position such as the present Court dealing with summary dismissal applications, the caveats which properly attach to the exercise of that discretion.
Of particular relevance are the fact that the respondent will be protected as to costs no matter what eventuates and that the respondent will be in the Full Court resisting an appeal against the costs Order of 6 April 2011. In addition, the Full Court dealing with that appeal may be placed in a somewhat invidious position if this application were refused insofar as, in circumstances where the substantive decision was sought to be challenged and the substantive decision was integral to the costs judgment, the Full Court would potentially have to go behind a judgment which a member of that very Court had declined to allow the applicant to challenge. For all of these reasons, the Court concludes that the discretion should be exercised in favour of the applicant.
That is not to say, however, that the exercise of discretion in favour of the applicant ought simply be open ended or unconditional. That, indeed, should not be the case. As Counsel for the respondent has submitted, fairness to the respondent, and the broader interests of justice, demand that the applicant’s day in court be the day when he agitates all appeals. The appeal against the substantive Orders of 23 February 2011, Barry J’s costs Order of 6 April 2011, and, to the extent that anything of practical significance could turn on it, any appeal against the stay component of Barry J’s 6 April 2011 Orders should all be heard on the same day.
For reasons which do not require restating and which relate essentially to the limitations upon the applicant’s ability to prepare appeal books, the Court is disposed to allow the inordinately long period of three months within which the applicant is to prepare his appeal books with respect to all his appeals.
The Court is, however, minded, as requested by learned Counsel for the respondent, to expedite the appeal and to request the Appeals Registrar to list the appeals for hearing before the Full Court on 22 August 2011 in Sydney.
The Court will, for reasons which emerge from the transcript, make a somewhat unusual, if not novel, order with respect to the provision of transcript and will make directions for the filing of appeal books so as to obviate the necessity for, and costs of, any further appearances for directions.
For more abundant caution and to avoid hopefully carefully considered orders miscarrying, the Court will reserve liberty to apply to a Judge of the Full Court, being me if I am available, on 72 hours notice for further directions so that if matters are not proceeding in accordance with the terms of the Orders, remedial steps can possibly be taken prior to the matter necessarily being adjourned or an appeal becoming abandoned.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 28 April 2011.

Associate:

Date: 10.05.11