D’Aloia and Barbaro
[2010] FamCAFC 265
•21 December 2010
FAMILY COURT OF AUSTRALIA
| D’ALOIA & BARBARO | [2010] FamCAFC 265 |
| FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the wife’s failure to file the appeal books within time – where there were also deficiencies in the appeal book – where the delay was short – where the applicant has attempted to comply with all orders and has remedied the defects in the appeal books – where there appears to be arguable grounds of appeal – consideration of the consequences for the parties if the application is allowed or dismissed – where the justice of the case requires that the application be granted – appeal reinstated. |
| Family Law Rules 2004 (Cth) rr 22.21, 22.44 & former r 22.57 |
| Bemert & Swallow [2010] FamCAFC 100 Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms D’Aloia |
| RESPONDENT: | Mr Barbaro |
| FILE NUMBER: | DGC | 5137 | of | 2007 |
| APPEAL NUMBER: | SA | 8 | of | 2010 |
| DATE DELIVERED: | 21 December 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 21 December 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 December 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1357 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bramich |
| SOLICITOR FOR THE APPLICANT: | Bramich Legal |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
The Notice of Appeal filed on 20 January 2010 be reinstated.
The Notice of Appeal be listed before the Southern Regional Appeals Registrar for a directions hearing at a date and time to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym D’Aloia & Barbaro is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 8 of 2010
File Number: DGC 5137 of 2007
| Ms D’Aloia |
Applicant
And
| Mr Barbaro |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an Application in an Appeal filed on 14 September 2010 by the wife in these proceedings. The application seeks that the wife’s appeal be reinstated and set down for final hearing. Separately the application seeks an order that the respondent husband make the appeal books available for collection. I will come back to that issue and in particular as to whether that order will still be needed or not. First though I will deal with the application for reinstatement.
The relevant history of this matter is that the hearing of the issues in dispute, which comprised both parenting and property settlement issues, took place before Hughes FM over a number of days in February, March and July 2009 and her Honour delivered her reasons for judgment on 24 December 2009 and made extensive orders in respect of both issues.
The wife filed a Notice of Appeal on 20 January 2010. In that Notice of Appeal very brief grounds of appeal were set out, but it was indicated that they were preliminary grounds until such time as the transcript of the proceedings could be properly considered with the intention of there being an Amended Notice of Appeal filed with more fulsome grounds of appeal. I note that no Amended Notice of Appeal has yet been filed.
In the Notice of Appeal there were also extensive orders sought in the event the appeal was successful, and I take from that that what was being sought on the appeal was a re-exercise of discretion and not a remission of the matter to the Federal Magistrate in the event the appeal was successful.
A directions hearing was held on 13 May 2010 and at that time the usual orders were made to progress the appeal, including for the filing of appeal books. They were to be filed by the appellant by 24 June 2010.
Extensions of time were sought by the appellant to file those appeal books and those extensions were granted. The final extension of time was to 5 July 2010 and that was an extension granted by the registrar on 1 July 2010. Unfortunately the appeal books were not able to be filed within that extended time and they were, in fact, delivered to the appeal registry on 9 July 2010.
On 5 July 2010 the appellant filed an Application in an Appeal seeking a further extension of time to 9 July 2010. That was served upon the respondent, but I am told by both counsel for the wife and the respondent, who appears in person, that that application was not the subject of any orders and it is agreed that there was no consent given by the respondent to an extension of time to 9 July. Thus I proceed on the basis that the appeal books were due to be filed on 5 July, but that order was not complied with, and they were delivered to the registry on 9 July, some four days late.
However, that failure to comply with the order for the filing of the appeal books was not the only issue of concern here and once the appeal books were delivered to the registry and considered by the appeals registrar, it was ascertained that there were a number of problems with the appeal books and a letter was sent, on 20 July 2010, to both the appellant’s solicitor and the respondent husband, identifying, firstly, the late filing of the appeal books but secondly identifying the specific problems with the appeal books.
In that letter, the registrar advised, particularly the appellant but also, obviously, the respondent, that in the circumstance of the failure to comply with the orders made the appeal was taken to be abandoned pursuant to the provisions of r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”). Just to interrupt my reasons, I note, now looking more closely at this letter of 20 July that the registrar, on page 2, said this:
The application filed 5 July 2010 seeking an extension of time to 9 July 2010 is dismissed.
Thus it was not entirely accurate that no orders were made on that application. It seems that, as I have just identified, the application was in fact dismissed. In any event, in the usual way, in this letter the registrar advised the appellant to seek the consent of the respondent to a reinstatement of the appeal but if that consent was not forthcoming then the only course open for the appellant was to file an application seeking a reinstatement.
The registrar also suggested that the appellant set about rectifying the appeal books and obviously what was necessary for that purpose was for the recovery of the appeal books from, firstly, the Court, but secondly also from the respondent upon whom copies of the appeal books had been served.
The appellant then set about rectifying the appeal books, firstly by obtaining the appeal books back from the Court and also, as I understand it, seeking the consent of the respondent to the reinstatement of the appeal. Further, as is apparent from correspondence annexed to the affidavit in support of this application, namely the affidavit of Mr Bramich, the wife’s solicitor, requests were made of the husband to make available his copies of the appeal books so they could be rectified.
As is also apparent from the correspondence, there were various arrangements made for those copies of the appeal books to be made available, but for some reason, not specifically identified in the correspondence, save and except on one or two occasions, there were changes made to those arrangements and, indeed, I am told, and there is no dispute about this, the copies of the appeal books held by the respondent still have not been recovered by the appellant.
I note that in relation to the issue of consent to the reinstatement of the appeal, as I say, a request was made to that effect of the respondent husband. He responded, and I want to highlight this, in a letter of 26 July 2010 in this way:
I advise that I will not turn my mind to whether I will or will not consent to the reinstatement of the appeal unless I receive from you the returns for the [Barbaro] Trust from 30.06.2002 to 30.06.2004 and an indication that your client will commence the preparation of the income tax returns from 30.06.2005 to date. These were documents that were not discovered by your client and I give notice that I intend to have any application you make, adjourned off until the documents are supplied and the letter from the ATO is complied with.
Now pausing there, this issue has been addressed in submissions before me today. I understand that there are outstanding issues of taxation, and it is alleged that the Federal Magistrate omitted to address those issues, but in any event, consequent upon the orders the Federal Magistrate has made, and I assume, in any event, there is a need for income tax returns and the like to be filed in relation to the relevant trust entity, but I do not intend to dwell on that matter or look into it any further.
The point I want to make, and I will come back to it, is that, importantly, in this correspondence, Mr Barbaro places conditions upon him considering whether to consent to the reinstatement or not. In any event, as a result of both the apparent refusal of Mr Barbaro to consent to the reinstatement and the inability to recover the copies of the appeal books from Mr Barbaro, the wife filed the application that is before me today.
Where an appeal is deemed to be abandoned, r 22.44 provides that a party may apply to have an appeal taken to be abandoned under this chapter reinstated. Now, that is, of course, the rule under which this application that is before me today has been brought.
I note that r 22.44 took the place of the former r 22.57 which dealt with the reinstatement of appeals, and that rule, namely the former r 22.57, provided a number of factors that the court may consider in determining an application for reinstatement as follows:
22.57 Application for reinstatement of appeal
(1) A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.
(2) In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non‑compliance was intentional;
(e)whether there is a good reason for the non‑compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non‑compliance was caused by the party or the party’s lawyer;
(h)the effect of non‑compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
Although there are no factors set out in r 22.44 to provide guidance when considering such an application but logically, and the authorities support this, the sorts of matters identified in the former r 22.57 are the sorts of matters which are relevant to this application and would and should be considered by the court in dealing with any reinstatement application. Ultimately though, it is a matter of discretion and that has been made clear by a recent Full Court decision of Bemert & Swallow [2010] FamCAFC 100.
The Full Court in that case also confirmed, and this had been the law previously, that the principles applicable to the determination of an application for extension of time as set out, for example, in the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 also apply to applications for reinstatement of appeals. McHugh J said this 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 and Agency Co. of Australasia Ltd. (1978) VR 257, at p 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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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 p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 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 p 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.
In this case, it is apparent that the appellant, to use my words, got on with the appeal. The Notice of Appeal was filed well within time. The directions hearing was held in the usual way by the appeals registrar and the usual orders were made. I also accept that the appellant, through her solicitors, made every reasonable and timely attempt to comply with the orders of the Court.
I understand, although it is not referred to in any affidavit before me, that there were difficulties obtaining the transcript. Mr Bramich has explained that, albeit from the bar table. Mr Barbaro has challenged what Mr Bramich has said about that and he particularly points out that it has never been revealed when the transcript was first applied for. However, I can well understand how difficulties can arise in obtaining transcript and I can appreciate and understand Mr Bramich’s submission about the need to obtain transcript from two providers. I am aware that both the Federal Magistrates Court and the Family Court changed providers at around this time and that that has created difficulties in obtaining timely transcript when there is a matter that started under the previous provider and concludes under the subsequent provider, but my difficulty in addressing such matters as this is that these issues are not addressed in any affidavit filed either on behalf of the appellant or the respondent.
The respondent, indeed, has filed no affidavit in relation to this application that is before me and thus I propose to proceed on the basis of Mr Bramich’s submissions. Mr Bramich concedes that part of the blame for the failure to comply should be sheeted home to him. He explained that he is a sole practitioner, that he had staff issues, and it was a busy time in his office. He frankly said to me that if he had realised the work that was involved in preparing the appeal books he would have sought a lengthier timeframe than what the registrar ordered.
Now, that, of course, addresses the issue of the lateness of the appeal books being filed and, as I have outlined, they were due to be filed on 5 July 2010. They were filed, though, some four days late. I will come back to the impact of that in a moment.
The other issue, of course, is the failure to comply with the orders in terms of the content of the appeal books and those issues are identified in the letter of the registrar of 20 July 2010. Now, Mr Bramich, in his affidavit, does not directly address that. From the bar table though he has put to me again the issues that were apparent in his office, and Mr Barbaro in fact has referred me to an affidavit filed in support of an application for an extension of time where Mr Bramich, in effect, says that he has no experience in preparing appeals. Thus, again, it is apparent that the deficiencies in the appeal books can be said to be the fault of the lawyer rather than the party and I note that that issue was a factor identified in the former r 22.57.
In any event, what Mr Bramich then did is he attempted to comply with the suggestions of the Regional Appeals Registrar, to rectify the problems with the appeal books. I understand that Mr Bramich, on behalf of his client, has attended to all of the deficiencies in the original appeal books and they have been refiled and correspondence has been received from the Court confirming that.
Thus, on that basis, it is apparent that the appellant, through her lawyer, has attempted to comply with all orders of the Court in a reasonable timeframe and has attended to all of the matters that have been required to be attended to, save for one aspect, and that is the fact that the copies of the appeal books originally served upon the respondent have not been returned or have not been obtained by the appellant. I am told that the appellant is waiting for the return of the amended appeal books so that copies can be served upon the respondent.
I now turn to the other factors which I consider relevant to this application and also to perhaps identify one or two matters that Mr Barbaro has raised, including about the conduct of the wife in relation to the hearing before the Federal Magistrate. As I said at the time of those submissions though, there is nothing in any affidavit material which details the complaint Mr Barbaro has about that conduct and so it is not possible for me to take that into account.
In terms of the nature of the litigation, it has obviously been a difficult and lengthy matter. In that regard Mr Barbaro has said that the case has been proceeding for a number of years, and obviously there has been a good deal of money spent on legal costs. The hearing took place over something like 10 days, and the reasons for judgment extended over in excess of 100 pages.
Mr Barbaro says, in a nutshell, that given the time that has elapsed, given the costs that have been incurred, and in relation to the parenting orders, given that the children are now somewhat older, that – these are my words – enough is enough. This matter should be concluded now and the application dismissed.
Next there is what McHugh J referred to in Gallo v Dawson as the prospects of the applicant succeeding in the appeal. I raised this with Mr Bramich in the context of the grounds of appeal which, to put it generously, are somewhat thin. Mr Bramich sought an adjournment to file an Amended Notice of Appeal. That was opposed and I refused that application. Mr Bramich has had 11 months to file an Amended Notice and I am not going to hold this matter up by adjourning it for that now to take place. Thus Mr Bramich’s client will need to stand or fall on the only Notice of Appeal that is before the Court.
I have read the judgment of the Federal Magistrate, and I have obviously read the Notice of Appeal. It is seems to me that there are arguable grounds of appeal. How successful or not they will be is difficult for me to comment on because I have not had before me the entirety of the documentation which would be before the Full Court. Thus I am hamstrung, somewhat, in what I can say about this topic and I can only treat it very superficially.
To repeat, though, from my reading of the judgment and from the issues, thin as they are raised in the Notice of Appeal, there appears to be arguable grounds of appeal. They may only be, for example, issues of weight and as such they may not be successful but to repeat again, I cannot be definitive about that and this is not a case where looking at the reasons for judgment in the Notice of Appeal I can with any confidence say that there are no prospects of success.
Other matters that I need to consider are, and importantly so, the impact upon the parties of either granting or refusing of this application for reinstatement. Looking firstly at the appellant in that regard. The consequences of granting the reinstatement will be that obviously the appellant will be able to pursue her appeal. If though I dismiss the application, then that creates grave consequences for the appellant in that she will therefore not be able to pursue her appeal. Given that I have expressed a tentative and preliminary view about the prospects of the success of an appeal, that result has serious consequences for appellant.
On the other hand, looking at the respondent, if the application is granted, then the respondent, of course, will be put to the time, trouble and expense of responding to the appeal and clearly there would be a significant amount of time and work involved in that exercise. Turning to the respondent’s position if I dismissed the application. Obviously, there are no adverse consequences for the respondent in those circumstances and there is nothing I would need to take into account in that regard.
Can I just come back to any adverse consequences that the appellant might suffer if I dismiss the application. This is sometimes, and in this case may very well be, the most significant issue, namely, there is no appeal from a refusal to reinstate an appeal save and except by way of an application for special leave to the High Court of Australia. Now, such an application is obviously possible but it is not an easy application to make and there are attendant difficulties with that. Thus that is obviously a serious consequence of dismissing the application that is currently before me.
Now, to me they are the relevant factors here. I have addressed the issue of delay, the issue of the nature of the litigation, the success or otherwise of the appeal, and the consequences of the granting or refusal of the application.
To return to the letter written by Mr Barbaro and particularly the paragraph that I quoted, my concern is that Mr Barbaro was placing conditions upon whether he would or would not consent to the reinstatement. I do not say anything about the need for compliance with those conditions as a separate topic but to tie the two together concerns me greatly, and for my part it seemed that Mr Barbaro was not addressing the appropriate issues. However, that is a comment, and it is not a factor which I take into account in whether I should dismiss or grant the application.
It seems to me, looking at the interests of justice in this case, that delay of four days per se, should not be a reason for dismissing the application. However, as is obvious, that is not the only issue. There is that issue combined with the deficiencies in the appeal book which led to the appeal being deemed to be abandoned.
Importantly though, and I repeat, the appellant, through her solicitor has acted reasonably in attempting to comply with the orders of the Court and also remedying the defects within a reasonable time.
Now, the purpose of considering those factors is to inform a consideration of where the justice of this case might lie, and that is the overarching principle to which I now turn. I am not going to repeat anything I have said already but in the circumstances that I have outlined, and taking into account the factors that I have referred to, in my view the justice of the case requires that I grant this application.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 December 2010.
Legal Associate:
Date: 21 February 2011
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