Dakin and Dakin
[2011] FamCAFC 142
•17 June 2011
FAMILY COURT OF AUSTRALIA
| DAKIN & DAKIN | [2011] FamCAFC 142 |
| FAMILY LAW - APPEAL – Application to extend time to appeal – Application granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gallo & Dawson (1990) 93 ALR 479 Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 |
| APPELLANT: | Mr DAKIN |
| RESPONDENT: | Mrs DAKIN |
| FILE NUMBER: | SYC | 972 | of | 2009 |
| APPEAL NUMBER: | EAA | 49 | of | 2011 |
| DATE DELIVERED: | 17 June 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 17 June 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 2 April 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 177 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sweet |
| SOLICITOR FOR THE APPELLANT: | Stojanovic Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Batley |
| SOLICITOR FOR THE RESPONDENT: | - |
Orders
That leave be granted to the appellant husband to file a Notice of Appeal against the orders made by Federal Magistrate Sexton on 8 March 2011 pursuant to s 94(2D) of the Family Law Act 1975 (Cth).
That the date for filing such Notice of Appeal be extended to 4pm on 27 April 2011.
That the Draft Notice of Appeal filed 27 April 2011 be thus deemed to have been filed within time.
That the matter be referred for hearing before a bench of three Judges.
That by request the Appeals Registrar list the matter for hearing at the first available sittings of the Full Court.
That the appellant husband be responsible for the preparation of the appeal books.
That the appeal books for the appeal are to comprise each of the following documents:
· Any Amended Notice of Appeal;
· Orders of the Federal Magistrate;
· Reasons for judgment of the Federal Magistrate;
· Transcript of the proceedings relevant to the appeal;
· Application and response and any relevant affidavit material;
· Exhibits tendered before the Federal Magistrate; and
· Summary of Argument.
That the solicitors for the appellant husband file in the Sydney Registry of the Court within 35 days of the date hereof 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 respondent mother, together with a copy of the certificate.
That the respondent wife file and serve a Summary of Argument within 21 days thereafter.
10.That the costs of and incidental to this application be reserved to the Full Court.
11.That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
12.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 four (4) days 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 Dakin & Dakin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EAA 49 of 2011
File Number: SYC 972 of 2009
| Mr DAKIN |
Appellant
And
| Mrs DAKIN |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application to extend time within which to appeal against the decision of a Federal Magistrate. That decision was delivered by Sexton FM on 8 March 2011 after a hearing before her Honour on 27 and 28 January and 4 February 2011. Her Honour published her reasons on 8 March 2011.
The record suggests that the husband, who is the present applicant, was represented by a barrister before her Honour, albeit without the benefit of an instructing solicitor, on a “direct access” brief, or something of that nature. For whatever reason, there was not a solicitor until, according to the present applicant’s solicitor’s affidavit, instructions were given some time after 8 March 2011.
In his affidavit which, with respect to him, reveals a candour not always revealed in affidavits in support of applications of this kind, the applicant’s attorney made clear what happened and why. As it turned out, the Notice of Appeal sought to be lodged on behalf of his client was unfortunately received in the Registry one day out of time. As Mr Batley of Counsel for the respondent impliedly submits, out of time is out of time, and the grant of an extension of time to appeal is by no means automatic.
The helpful written submissions of Counsel for both parties clearly and, with respect, correctly identify the relevant legal principles. They are not in doubt and do not require restating this morning. In no particular order of significance, the Court will consider the matters of relevance to the husband’s application.
First, the prospect of the appeal having merit. In this case, it was fairly conceded by Counsel for the respondent that, whilst it was his submission that if there is to be an appeal it will fail, it was not submitted, and with respect quite properly not submitted, that the appeal was demonstrably hopeless.
As McHugh J discussed in Gallo & Dawson (1990) 93 ALR 479 and Kirby J later explained in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541, depriving a citizen of this country of the right to test a decision of a subordinate court by appeal to a court of appeal is a serious matter.
In this particular context the legislature saw fit to remove the right of a person, such as the present applicant, or for that matter the respondent, to challenge a decision in relation to an application for leave to extend time to appeal to the court of appeal of this Court, thereby leaving an unsuccessful litigant with the only option of challenge being by way of appeal to the High Court.
As suggested to Counsel for the respondent, one would think it would be an invidious task for Counsel before the High Court to seek to hold a decision refusing an applicant leave to appeal in circumstances where the applicant, in circumstances which, though regrettable, are understandable, and have been frankly explained, was one day out of time in filing a Notice of Appeal.
The second matter has just been touched upon. That is whether there is an explanation of delay. It is self evident that there can rarely, if ever, be what one could categorise as an entirely adequate explanation for failing to file a Notice of Appeal within time, because such an explanation would have resulted in the Notice of Appeal being filed within time. But here the delay was minimal. The delay could not have been any less. The explanation is credible and, as noted earlier, it has been frankly made by the applicant’s attorney.
The matter of greater significance for present purposes is prejudice to the respondent. It has, again in the Court’s view fairly, been conceded that other than being kept out of the benefit of the judgment in her favour, the respondent would not be prejudiced if an extension of time to appeal were granted, provided, as is implicit in that concession, that the applicant, if he is to become an appellant, prosecutes his appeal diligently. The Court can make that a term or condition of granting an extension of time.
In all the circumstances, and mindful particularly of what McHugh and Kirby JJ said in Gallo & Dawson (supra) and Lindon & The Commonwealth (supra), respectively, the Court is satisfied that to refuse to extend time in the circumstances of this case would be to permit the rules to visit an injustice upon the parties. I say “the parties” advisedly because, superficially, the injustice would be visited upon the applicant by denying him the opportunity to have his day in court, but given that refusing this application would in all likelihood result in the applicant taking the matter to the High Court, thereby delaying it for a potentially very long time and, with respect, one would think being likely to result in the High Court ordering that the matter be heard and determined on its merits, in a broad sense the injustice may also be in a slightly different way, one which the respondent would also have visited upon her.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 17 June 2011.
Associate:
Date: 01.07.11
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