DAKIN & SANSBURY
[2014] FamCAFC 11
FAMILY COURT OF AUSTRALIA
| DAKIN & SANSBURY | [2014] FamCAFC 11 |
| FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – where the applicant seeks a number of orders but only the order seeking an extension of time to appeal orders made on 1 July and 30 August 2013 can be pursued – where the application is opposed – where the documents filed in support of the application are difficult to understand and impossible to disentangle – where the interests of justice require that the application be refused – application dismissed. FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – COSTS – where the respondent seeks his costs – where the applicant opposes that application – where the applicant has failed to comply with a least two previous orders for costs – where there are circumstances that justify an order for costs being made – where impecuniosity is no bar to an order for costs – costs ordered in favour of the respondent. |
| ||||
| APPLICANT: | Ms Dakin | |||
| RESPONDENT: | Mr Sansbury |
| FILE NUMBER: | MLC | 3048 | of | 2010 |
| APPEAL NUMBER: | SOA | 68 | of | 2013 |
| DATE DELIVERED: | 10 February 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 January 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 30 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1370 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Mort |
| SOLICITOR FOR THE RESPONDENT: | Cahill & Rowe Family Law |
Orders
The amended application in an appeal filed on 9 January 2014 be dismissed.
The applicant pay the respondent’s costs of and incidental to the amended application in an appeal on a party/party basis, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakin & Sansbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 68 of 2013
File Number: MLC 3048 of 2010
| Ms Dakin |
Applicant
And
| Mr Sansbury |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the court is the amended application in an appeal filed by Ms Dakin (“the applicant”) on 9 January 2014. That application is opposed by Mr Sansbury (“the respondent”).
The application sought a number of orders, but only one of those can be pursued before this court; that is the application for an extension of time to appeal against orders made by Judge Bender on 1 July 2013 and on 30 August 2013 (paragraph 1).
Also in paragraph 1 of the application the applicant sought an extension of time to appeal against orders for property settlement made on 30 January 2012 by Federal Magistrate Bender (as she then was). However, I propose to dismiss that application because on 3 August 2012 I dismissed the applicant’s appeal against those orders (see appeal no. SOA 9 of 2012) and in the circumstances of why that appeal was dismissed it is not open to the applicant to again seek to appeal against those same orders.
In paragraph 2 of the application the applicant sought “Leave to Appeal” the orders made by Judge Bender on 12 December 2013 dismissing the applicant’s application for a stay of the orders made on 30 August 2013. However, that application is misconceived because leave to appeal needs to be sought in a Notice of Appeal and not in an application in an appeal. I observe that in the amended Draft Notice of Appeal filed on 9 January 2014 in support of the amended application in an appeal before the court, the applicant seeks leave to appeal against the orders of 12 December 2013, but of course that is only a draft filed in support of the application. It is unknown why the applicant did not file this Notice, limited though to seeking leave to appeal against the orders made on 12 December 2013, but the fact is that she did not, and now she is out of time, and to pursue this she needs to apply for an extension of time, which she has not yet done. Thus, I also propose to dismiss paragraph 2 of the application.
I observe that it was not an answer to in effect treat paragraph 2 of the application as an application for an extension of time, because there was nothing in the applicant’s affidavit filed on 9 January 2014 which would support the granting of an extension of time.
In paragraph 3 of the application the applicant sought that this court “allow evidence to be adduced and make orders that the respondent provide hitherto undisclosed evidence to the Appeal Court.” The “undisclosed evidence” is then identified in paragraph 4 of the application. Again this application is misconceived, and both paragraphs 3 and 4 will be dismissed. There is no basis to make such an order in the context of an application for an extension of time, and even if that application was granted and an appeal was allowed to proceed, the orders sought, which are in the nature of discovery, would not be made. I consider this to be just one example of the applicant deliberately or otherwise refusing to listen to what she has been told about the nature of an appeal. She was informed of this when her appeal against the orders made on 30 January 2012 was dismissed.
In support of her application the applicant relied on two affidavits filed respectively on 6 November 2013 and 9 January 2014. Save and except in relation to one paragraph (paragraph 32) of the latter affidavit I find that that affidavit is irrelevant to the issue that this court has to decide, and as will become apparent later in these reasons, even paragraph 32 could be said to fall into the same category. First, bearing in mind that this affidavit was filed in support of the amended application in an appeal, it is expressed to comprise “Additional Information in relation to seeking to Adduce Evidence” (paragraphs 3 and 4 of the amended application) and “Additional Information in relation to seeking Stay of Orders of December 12, 2013” (paragraph 2 of the amended application). On the basis that paragraphs 2, 3 and 4 of the amended application will be dismissed, that renders the contents of this affidavit otiose. Secondly, and in any event, this affidavit comprises 54 pages and four annexures of entirely confusing and unhelpful information. I would describe it as a gallimaufry – something that is difficult to understand and impossible to disentangle.
With the earlier affidavit, that comprised approximately 12 pages, but apart from six paragraphs which I will address later in these reasons, the balance of this affidavit was also irrelevant and unhelpful.
The applicant also filed two draft Notices of Appeal, one on 6 November 2013 in relation to her initial application in an appeal, and the other on 9 January 2014 in relation to her amended application in an appeal. Again though confusion reigned, and these documents were almost entirely unhelpful. The onus on the applicant was to set out identifiable grounds of appeal alleging error(s) by the judge in order that this court could make an informed assessment of the merits of the appeal. That onus simply has not been satisfied.
In the first draft Notice leave to appeal was sought but leave was unnecessary in relation to the orders made on 30 August 2013. Nevertheless, in that Notice there were 46 pages of “facts” allegedly supporting the application for leave, and there were then 16 pages under the heading of “Grounds of Appeal”. Again, this immediately reveals the failure of the applicant to listen to what she has been told about the nature of an appeal. She says this in paragraph 8 of her “Grounds of Appeal”:
… The appellant urgently requires an Appeal by way of de novo Appeal if possible because there has never been a Trial of the parties’ evidence for property settlement. There have been many errors of fact and principle and there has been demonstrated bias, abuse of process, and procedural unfairness in the test of the miscarriage of justice. There has been dire financial hardship caused solely by the fact that the judge saw fit to make orders in January 2012 based on the only filed evidence before her which was that of the respondent, which she had no reason to find reliable.
As has been explained to the applicant a number of times, an appeal is not a
re-trial.
In any event, the applicant’s complaints initially set out in this Notice comprise bald statements ranging from bias, to inconsistent findings, to procedural irregularities, to procedural unfairness, to errors of fact, to errors of principle, to failure to deal with reckless spending, premature distribution of funds and failure to apply rules in dealing with a litigant in person. There then follows a combination of assertions and evidence rather than proper grounds of appeal. It is a jumble that masks rather than illuminates any alleged errors made by the judge.
There is then the second draft Notice of Appeal. One would think that this Notice superseded the previous Notice, but that is not the case; the applicant indicated that it was necessary to read both Notices together. However, with the second Notice of Appeal there are no separate “Grounds of Appeal” to be found; what there is, is 31 pages of narrative under the heading “Part C – Added Facts based upon the Reasons for Judgment of December 12 2013”.
Part C of course is where the facts in support of an application for leave to appeal are to be set out, and I again note that leave is not required in relation to an appeal against the orders made on 30 August 2013 dismissing the applicant’s application filed on 6 February 2013 seeking orders pursuant to s 90SN(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). Of course, leave to appeal is required against the orders made on 12 December 2013 dismissing the application for a stay, and that is perhaps what the applicant had in mind given the heading she set out, and given that in this Notice the applicant has added as orders sought to be appealed, the orders made on 12 December 2013.
The difficulty though is still the absence of specific grounds of appeal in this Draft Notice of Appeal. In response to this, the applicant indicated during the hearing that in the 31 pages of narrative she has combined the “amended grounds of appeal” and the “facts” in support of the purported application for leave to appeal. However, although invited to do so, the applicant was unable to identify the grounds of appeal as compared with the “facts”, and it is impossible for this court to undertake that task. Thus, as the documents stand, it is not possible to discern the grounds of appeal that need to be addressed to make an informed assessment of the merits of the proposed appeal.
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 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.
Applicable Principles
The law in relation to applications for extension of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 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 & 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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
Discussion
The application to extend time to appeal against the orders made on
1 July 2013
The first thing to note is that the application before her Honour which resulted in the orders of 1 July 2013 was an application by the respondent to summarily dismiss the applicant’s Initiating Application filed on 6 February 2013 referred to above. In paragraph 101 of her Honour’s reasons for judgment her Honour said this:
Accordingly, the applicant’s application pursuant to section 90SN(1) of the Act to set aside the orders made on 30 January 2012 on the basis of the respondent’s failure to make full and frank disclosure of all the documents in his possession or control and on the basis that he failed to disclose or properly value all assets in Australia is summarily dismissed on the basis that there is no merit to such claims.
However, her Honour omitted to formally make an order to this effect. If necessary this oversight could be corrected by using the slip rule, but that is not required because that is not a complaint that the applicant makes.
Her Honour also said this in paragraphs 104 and 105 of her reasons for judgment:
104.I am satisfied that these are matters upon which the applicant has reasonable cause to pursue an application under section 90SN of the Act.
105.Accordingly, I intend to order that the application for summary dismissal of the applicant’s application pursuant to section 90SN of the Act be dismissed insofar as the application relies on the question of the assets and liabilities held or disposed of by the respondent in [V] and the damages payable by the respondent to [that] Government arising from the sinking of the [P].
Again, her Honour omitted to formally make an order dismissing that part of the application for summary dismissal. However, this is also not the subject of complaint by the applicant and there is no need to apply the slip rule here either.
The formal orders that her Honour did make were to adjourn the applicant’s Initiating Application to 30 August 2013 for final hearing on the discrete issues identified in paragraph 105 of her Honour’s reasons for judgment.
The upshot of this is that it is probable that leave is required to appeal against the orders made on 1 July 2013.
Adequate Explanation
The applicant directed the court to paragraph 8 of her first affidavit, and paragraph 32 of her second affidavit as providing the necessary explanation.
It seems that the orders made on 1 July 2013 and the settled reasons for judgment were not received by the applicant until 13 July 2013, and she claims that that did not leave her sufficient time to seek advice and file a Notice of Appeal. However, nowhere in her affidavits does she set out what attempts she made to obtain advice and/or prepare a Notice of Appeal for filing in the
16 days that were still available to her. All she tells the court is that on
17 October 2013 she sought to file a Notice of Appeal in relation to not only the orders made on 1 July 2013, but also the orders made on 30 January 2012 and 30 August 2013, but it was returned by the Regional Appeals Registrar because it was out of time. It was then not until 9 January 2013 that the applicant sought an extension of time to appeal the orders made on 1 July 2013.
In these circumstances I find that the applicant has not provided an adequate explanation as to the failure to file a Notice of Appeal within the prescribed time.
The merits of the appeal
I confirm that it is not possible to discern from the material filed by the applicant recognisable and understandable grounds of appeal alleging errors made by the judge, and it is also impossible to separate out the complaints that relate to the orders made on 1 July 2013 from the complaints that relate to the orders made on 30 January 2012 or 30 August 2013.
The question for this court is whether it has been demonstrated that there is an arguable case on appeal, and I observe that even the remotest chance of success is enough. In this regard the exercise is somewhat similar to the exercise required in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies as a result of the consideration of all the other relevant factors, the appeal should be allowed to proceed.
However, this is a case where it can safely be said that the appeal is hopeless. In the absence of identifiable and understandable grounds of appeal, a close perusal of her Honour’s reasons for judgment was necessary. That exercise failed to call into question the correctness of the decision of the judge, and no appealable error emerged.
The history of the proceedings
The proceedings were commenced by the applicant in 2010 and final orders for property settlement were made on 30 January 2012. There was an appeal by the applicant against these orders but that was dismissed on 3 August 2012. The applicant then filed an application on 6 February 2013 seeking to set aside the orders for property settlement and part of that application was dismissed on 1 July 2013, and the balance was dismissed on 30 August 2013. In the meantime, the respondent has proceeded to conduct his financial affairs on the basis of the orders made on 30 January 2012.
This is a history that militates against the applicant now being given an opportunity to challenge the orders made by her Honour on 1 July 2013. As can be seen the applicant has had a number of opportunities to pursue her claim, but she has been unsuccessful on each occasion, and the justice of the case may now require that these proceedings be brought to a conclusion.
There were no submissions made by either party that suggested the nature of the litigation or the conduct of the parties (save and except as emerges from the history of the proceedings outlined above), are relevant to this court’s determination, and thus I do not propose to say anything more about either of these factors.
The consequences of granting or refusing the application
As the matter presently stands, all of the orders made by the judge are in place, there is no appeal on foot in relation to the orders made on 1 July 2013, the respondent is able to proceed on the basis that he has the benefit of all of the orders made, and he would not need to do anything further in relation to that. However, if the application is granted then the appeal will be able to proceed and the respondent will have to deal with it. Thus there is clear prejudice to the respondent in that event.
On the other hand, if this court refused the application there would be undoubted prejudice to the applicant. There is no appeal from a refusal of such an application, save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in the circumstances of the case, and thus for that to be the only avenue for the applicant to pursue is a serious prejudice to her.
Conclusion
As the authorities recognise the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here, I have found that the applicant has not provided an adequate explanation for her failure to file a Notice of Appeal within the prescribed time, that the appeal has no merit, and the history of the proceedings suggest that this application should be refused. The only factor in the applicant’s favour is the prejudice to her if the application is refused, but that does not necessarily outweigh the prejudice to the respondent if the application is granted.
This is a clear case where the interests of justice require that the application seeking an extension of time to file a Notice of Appeal against the orders made on 1 July 2013 be refused, and that is the order that I propose.
The application to extend time to appeal against the orders made on
30 August 2013
Adequate explanation
Again the applicant directed this court to paragraph 8 of her first affidavit as providing the necessary explanation. However, it would seem that paragraphs 4, 5, 6, 7, and 11 are also relevant.
In effect, the applicant says that she did not receive the orders made on
30 August 2013 and the settled reasons for judgment until 19 September 2013, and that only left her “six working days” until the 28 day period expired. Thus she says that she did not have sufficient time to obtain legal advice to establish her grounds of appeal.
However, again, nowhere in either of her affidavits does she set out what attempts she made to obtain legal advice and/or prepare a Notice of Appeal for filing in those “six working days”. Indeed, in paragraph 11 of her first affidavit she tells the court that she is “obliged to represent [herself] and so had no legal representative to assist [her]” to prepare the Notice of Appeal presented to the Regional Appeals Registrar on 17 October 2013. In other words, it was not because of any inability to obtain legal advice that prevented her from filing a Notice of Appeal within time; at no stage did she have legal representation or seek legal advice.
I also observe that it was not until 6 November 2013 that the applicant filed her initial application in an appeal seeking an extension of time to appeal against the orders made on 30 August 2013.
However, despite the flaws in her explanation, there was clearly less time to prepare a Notice of Appeal than she had in relation to the orders made on
1 July 2013, and I propose to give her the benefit of the doubt.
The merits of the appeal
The findings and comments that I have made under this heading in relation to the complaints about the orders made on 1 July 2013 apply with at least equal force to the complaints about the orders made on 30 August 2013.
It is impossible to discern from the plethora of material filed by the applicant the alleged errors made by the judge in the form of identifiable and understandable grounds of appeal.
I observe that a prime reason for dismissing the appeal brought by the applicant against the orders made by her Honour on 30 January 2012 was the same failing by the applicant, and it is apparent that she failed to take on board what was said to her on that occasion on this topic.
In any event, it has not been demonstrated that there is an arguable case on appeal. Indeed, as with her Honour’s reasons for judgment delivered on 1 July 2013 a close perusal of the reasons for judgment delivered on 30 August 2013 raised no doubts as to the correctness of the decision, and no appealable error emerged.
The history of the proceedings
Again, the findings and comments that I made under this heading applies with equal force to this application and I do not propose to repeat what I have said.
Likewise, I do not propose to say anything more about the nature of the litigation or the conduct of the parties.
The consequences of granting or refusing the application
The respective prejudice to the parties depending on the result of the application also is present here and once again I do not need to repeat what I have said about this when considering the application to extend the time to appeal the orders made on 1 July 2013.
Conclusion
The same question must be asked here, namely where does the justice of the case lie?
I have found that there is an explanation that the court can accept as to why the prescribed time limit was not complied with. However, the proposed appeal has no merit, and the history of the proceedings are against the applicant. The applicant of course will suffer prejudice if this application is refused, but equally the respondent will suffer prejudice if it is granted.
Although there is a passable explanation of the failure to comply with the prescribed time limit, and there will be prejudice to the applicant, the fact that there is no arguable case on appeal, and also the history of the proceedings and the prejudice to the respondent, all weigh in favour of refusing the application. Indeed, the interests of justice demand it.
costs
At the conclusion of the hearing I received submissions from the parties as to the question of costs depending on the result of the hearing.
In short, if the application was dismissed the respondent sought his costs, but the applicant opposed that application.
To the court’s knowledge there are at least two orders for costs that the applicant has failed to comply with. There is the order made by her Honour on 30 January 2012 whereby the applicant was required to pay a total of $13,800 to the respondent, and there is this court’s order on 3 August 2012 whereby the applicant was required to pay the sum of $1,000 (to the respondent).
The failure by the applicant to comply with either of these orders for costs could quite easily have been the basis for either a stay of her application or indeed a dismissal of it. However, although that was not an application made by the respondent, her failure to comply with these orders frankly does not assist her in her opposition to the current application for costs.
Section 117 of the Act governs any application for costs, and relevantly that section provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
Here, there are plainly circumstances that justify an order for costs being made, namely the fact that the applicant has been wholly unsuccessful in the proceedings (s 117(2A)(e)). However, the applicant says in effect that her financial circumstances are such that she cannot afford to pay costs.
The applicant presented no specific evidence as to her financial circumstances, but I am prepared to accept that they are poor. Nevertheless, it is not the case that impecuniosity prevents an order for costs being made (D & D (Costs)
(No 2) (2010) FLC 93-435). Here the respondent has been put to the unnecessary expense of opposing an unmeritorious application, and he should not have to bear all of the costs incurred. Accordingly, I propose to make an order for costs in his favour.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
10 February 2014.
Associate:
Date: 10 February 2014
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