Dalrymple and Dalrymple - [2010] FamCAFC 90

FAMILY COURT OF AUSTRALIA

DALRYMPLE & DALRYMPLE

[2010] FamCAFC 90

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – extension of time to file a Notice of Appeal – where there are adequate reasons explaining the delay – where there are prima facie arguable grounds of appeal – where it is necessary to extend the time to enable the Court to do justice between the parties – extension of time granted.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Dalrymple

RESPONDENT:

Mr Dalrymple

APPEAL NUMBER:

2010

FILE NUMBER:

ADC

2406

2008

DATE DELIVERED:

26 February 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

26 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

3 September 2009

LOWER COURT MNC:

[2009] FMCAfam 931

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

In Person

Orders

That the time for the applicant to file a Notice of Appeal against the orders of Federal Magistrate Brown on 3 September 2009 be extended to close of business on Friday 5 March 2010.

IT IS NOTED that publication of this judgment under the pseudonym Dalrymple & Dalrymple is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

APPEAL NUMBER: SA 12 of 2010
FILE NUMBER ADC 2406 of 2008

Ms Dalrymple

Applicant

And

Mr Dalrymple

Respondent

EX TEMPORE REASONS

This matter involves an Application in an Appeal filed on 5 January 2010 by Ms Dalrymple seeking an extension of time to file a Notice of Appeal. The proposed appeal is against orders made by Federal Magistrate Brown on 3 September 2009. The application initially came before me on 15 January 2010 and I adjourned the matter to today, and delivered some brief reasons for doing that. I do not propose to repeat those reasons, but in summary, both the applicant and the respondent appeared in person and I was concerned that they did not appreciate or understand the relevant issues and the principles that applied to, firstly, an application for an extension of time to file a Notice of Appeal, and secondly, the appeal process itself.
At that time the applicant had also filed a proposed Notice of Appeal which was to be her Notice of Appeal if she was granted an extension of time, and that was a document of some 18 pages in length. Again, without repeating all that I said on the last occasion, it simply was inappropriate and inadequate, and did not raise relevant grounds of appeal. The format was incorrect and the content was inappropriate. In any event, I adjourned the matter to today on the application of the applicant, on the basis that she was going to seek legal advice about the application for an extension of time and also the proposed appeal if she was successful in that application.
I also invited the respondent to seek some legal advice about these matters as well because it appeared to me that, as I say, he, like the applicant, had little appreciation of what was involved with these matters. The matter has been called on again before me today. Both parties are still appearing in person. However, Ms Dalrymple tells me that she has seen a lawyer, taken some advice, and she has now presented a further proposed Notice of Appeal which has been prepared by the lawyer that she saw. She is not though in a financial position to have that lawyer, or indeed any lawyer, actually appear for her in the proceedings. Mr Dalrymple tells me that he did seek some legal advice but he has not proceeded with that because of the costs involved.
Now, the position is that Ms Dalrymple still pursues her application for an extension of time. That application is still opposed by Mr Dalrymple. Ms Dalrymple filed an affidavit in support of that application on 5 January 2010. At the time of the last hearing I did indicate to Ms Dalrymple that she should also seek legal advice about that application, because I was concerned about the evidence that she was presenting in support of that application, given certain comments made by Mr Dalrymple at the time, namely that he was proposing to challenge the reasons for, for example, the delay in filing a Notice of Appeal. However, Ms Dalrymple has not filed any further affidavit and she still relies on that same affidavit.
I raised with Mr Dalrymple again, what his position is in relation to that application, and he indicated that he opposed it. I queried with him why he had not filed a response, and he put to me that he was told by the Court that he did not need to file the response. Now, I do not accept that the Court would have told him that.
Mr Dalrymple then indicated that he wanted to file a response but I then explored with Mr Dalrymple what he would put in a responding affidavit, and as a result of that it became apparent that there was nothing that he could in fact say in opposition to, or challenging the reasons proffered by Ms Dalrymple as to the delay in filing the Notice of Appeal.
As I explained to Mr Dalrymple, though, the issue of delay is not the only matter that I have to address in determining an application for an extension of time, and I outlined to Mr Dalrymple what I would have to determine, such as – and I honed in on – the issue of prejudice. However, I indicated that, overall, it was an issue of where the justice of the case might lie, taking into account all the facts that are before me and also whether there are substantial issues to be raised on appeal and the like.
Mr Dalrymple confirmed with me the obvious prejudice that he feels that he would suffer if the application was granted, and given that, and given that Mr Dalrymple could not put anything of a factual nature in opposition to the affidavit filed by the applicant, Mr Dalrymple then withdrew his request, if you like, to be able to file a response. In the circumstances I did not consider that there was any longer any need for him to file a response. I am aware of the prejudice that he will suffer if the extension is granted. He cannot say anything about the reasons for the delay. Of course, in terms of the question of the proposed appeal itself, Mr Dalrymple takes the obvious position that the Federal Magistrate got it right and there would be no successful grounds of appeal that the applicant could raise. Thus I have to take all that into account in making my decision.
Ms Dalrymple has indicated that she does not want to put anything more before me, nor does she want to make any further submissions about it.
The law in relation to what I have to take into account in such an application is well settled, and there are numerous authorities in this Court and also in the High Court. I mention just one and that is a High Court decision of Gallo v Dawson (1990) 93 ALR 479. That decision has been followed in this Court, for example, in cases such as Tormsen and Tormsen (1993) FLC 92-392 and, indeed, the Full Court of this court in 1976 in a decision of McMahon and McMahon (1976) FLC 90-038 set out the principles that apply where such an application is made and they are consistent with the subsequent High Court decision of Gallo v Dawson, to which I have referred.
In Gallo v Dawson, McHugh J said that the overarching issue is the justice of the case, and in determining that the Court needs to take into account the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties for the grant or the refusal of the application, the prospect of success or otherwise in the appeal, the important consideration that the respondent is entitled to enjoy the fruits of the judgment of the lower court and, of course, that it is always desirable in the public interests for there to be finality of litigation. And just to compare that range of factors with what was identified by the Full Court in McMahon and McMahon, Evatt CJ there said that an applicant for leave to extend time must show firstly, that there are adequate reasons which explain the delay, secondly, that there is a substantial issue to be raised on appeal, and thirdly, that no hardship or injustice is caused to the respondent which cannot be compensated by orders as to costs or otherwise.
Now, of course, in this case I interpolate by saying that there is no issue of legal costs. The parties are still acting in person but that may be different if I extend the time for filing the Notice of Appeal.
The delay here is explained in the affidavit of the applicant and given that there could be no challenge to the reasons put as Mr Dalrymple has conceded, I accept those reasons. I accept that what the applicant says happened did happen and that those reasons explain the delay. I am concerned, though, as I say, if I accept Mr Dalrymple as I do that her lawyer did not carry out her instructions and it took some two months for Ms Dalrymple to realise that and determine that she needed to do something herself.
That is a concerning fact in this case but there it is. It is clear to me that Ms Dalrymple has not had an appreciation of the relevant principles and what she has needed to do. She relied on her lawyer who appeared for her at the trial. She was entitled to rely on him doing the right thing in terms of carrying out her instructions but apparently that did not happen and Ms Dalrymple was left to her own devices and she has done the best that she could with her limited knowledge in bringing this application.
Thus I find that there are adequate reasons which explain the delay.
In terms of the history of the proceedings this matter commenced in June 2008 in the Federal Magistrates Court. Ultimately, judgment was delivered on 3 September 2009 by the Federal Magistrate. There is nothing that either party has drawn my attention to though which would impact upon the decision I have to make today, save and except I suppose, the issue of the need for finality and the fact that if I allow a Notice of Appeal to be filed then clearly the matter will not be finalised yet and there will be further proceedings to be dealt with. Thus that is a factor I need to take into account.
In terms of the conduct of the parties, there is nothing that either party has put to me about that and there is nothing apparent from the reasons for judgment of the Federal Magistrate which raises any issue about that in the context of the application I have before me today.
With the nature of the litigation it is clear that this is a maintenance matter. However, there is nothing about the nature of the litigation which informs the decision that I have to make today. It is a financial matter, and obviously that is important for the parties and, I suppose in that sense, the parties would be very keen still to get on with their lives and put court proceedings behind them. That is where the finality of litigation – the desirability of the finality of litigation comes in.
Whether there is a substantial issue to be raised on the appeal is in dispute. As I say, I was very concerned about the proposed Notice of Appeal which accompanied the documents when they were initially filed and if that was still before me I would have little hesitation in finding that that factor would militate against there being extension of time, because it was just impossible to discern from the proposed Notice of Appeal what the grounds of appeal were and the likelihood of success of any grounds of appeal, but that has changed. I now have a further proposed Notice of Appeal before me which has been prepared by a lawyer that Ms Dalrymple saw. My first comment about it is that the format, finally, is correct. It sets out 11 proposed grounds of appeal and sets out orders sought in the appeal. Now, I have issues even with this document. For example, ground 11 says, “That the Learned Federal Magistrate was biased in reaching a conclusion to discharge the Spousal Maintenance and the arrears arising from it.” Yet there are no particulars of the alleged bias.
There are other examples of a lack of particularity. For example Ground 8:
“In the process of interpreting and applying the relevant Law in order to reach his conclusion to discharge the Spousal Maintenance the Learned Federal Magistrate failed to consider other relevant matters when interpreting and applying section 75(2) and section 83(2).”
What other relevant matters should be identified.
Fortunately though there is sufficient in the grounds of appeal, firstly for me to be able to follow what the complaint is, or what the complaints are that the applicant has and prima facie there is sufficient here to indicate that there are arguable grounds of appeal. Now, that is not to be taken to mean that I am endorsing the grounds of appeal, or suggesting that any of them will be successful. The point about it is I do not know, because of course the appeal has not been heard.
Thus I am satisfied that there are arguable grounds of appeal in this case, prima facie, but as I have indicated, Ms Dalrymple is going to have to do a lot more work to be successful in some of these grounds of appeal.
Then next turning to the justice of the case, and looking specifically at the injustice to the applicant if I did not extend the time and the injustice to the respondent if I did. It is obvious that if I do not extend the time that the applicant will not be able to appeal the decision and she would have to accept that and those orders will stand. She raises issues in her grounds of appeal which challenges the decision of the Federal Magistrate, and suggests his Honour has made errors. Whether he has or not remains to be seen, but clearly to lose the opportunity to appeal against that judgment is the prejudice that the applicant will suffer.
I have to balance that with the prejudice or injustice to the respondent in allowing the matter to proceed and it is just that, that if I did not extend the time then this matter would be over, the judgment would stand, the orders would stand and both parties could get on with their lives in that knowledge. The prejudice to the respondent is obvious, if I allow the application he will then have to deal with the appeal. He does not have to file a response, that is not required under the Rules, but he will have to be in a position to present arguments and file documents setting out those arguments and list of authorities if necessary. If he chooses to instruct a lawyer there will obviously be legal costs involved from his part.
I have to weigh up all those matters in reaching my decision, and as I have said the overarching issue is whether granting an extension of time for leave to appeal out of time is necessary to enable the court to do justice between the parties. That is the bottom line here and each party has a particular position to take about it. It is a difficult decision, but taking into account all those matters that I have referred to, in my view it would be appropriate to grant the application and extend the time for the filing of the Notice of Appeal and I find that that is necessary to enable this Court to do justice between these parties.

I certify that the preceding 25 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 February 2010.

Associate