Denniston & Gustz
[2024] FedCFamC1A 153
•9 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Denniston & Gustz [2024] FedCFamC1A 153
Appeal from: Gustz & Denniston [2024] FedCFamC2F 823 Appeal number: NAA 196 of 2024 File number: CAC 1371 of 2023 Judgment of: AUSTIN J Date of judgment: 9 September 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject her Application in an Appeal seeking leave to file an appeal out of time – Consideration of Whitmore & Whitmore [2022] FedCFamC1A 75 – Where the applicant seeks to appeal from orders finding she breached final parenting orders without reasonable excuse – Where the applicant contends the primary judge made an erroneous evidentiary ruling – Where the primary judge upheld the respondent’s objection to the applicant’s call for the respondent’s notes used to prepare affidavits –Where the loss of privilege by operation of s 122(6) of the Evidence Act 1995 (Cth) did not render the notes admissible in evidence – Where the applicant was unable to show how the evidentiary ruling had any material effect upon the final orders – Where the explanation for the delay in bringing the appeal is unconvincing – Application dismissed. Legislation: Evidence Act 1995 (Cth) Pt 2.1, Div 3, ss 32, 34, 43, 101A, 102, 103, 122
Family Law Act 1975 (Cth) Pt VII, ss 69ZM, 69ZT, 69ZX
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 6, r 13.03
Cases cited: Balenzuela v De Gail (1959) 101 CLR 226; [1959] HCA 1
Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266; [2005] FCA 1247
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Grundy v Lewis (Unreported, Federal Court of Australia, Cooper J, 14 September 1998)
Hackett v Rochow [2000] ACTSC 96
Hamilton v State of NSW (No. 10) [2015] NSWSC 114
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
MGICA (1992) Ltd v Kenny & Good Pty Ltd (No 2) (1996) 135 ALR 743; [1996] FCA 1223
Stead v State Government Insurance Office (1986) 161 CLR 141; [1986] HCA 54
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Whitmore & Whitmore [2022] FedCFamC1A 75
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 53 Date of hearing: 3 September 2024 Place: Newcastle (via video link) Counsel for the Applicant: Dr Smith Solicitor for the Applicant: Foster Johnson Solicitors The Respondent: Litigant in person ORDERS
NAA 196 of 2024
CAC 1371 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DENNISTON
Applicant
AND: MS GUSTZ
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
9 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 22 August 2024 is dismissed.
2.The Response to an Application in an Appeal filed on 3 September 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Denniston & Gustz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of an application to review a decision made by the appeal registrar on 12 August 2024 refusing the applicant’s application for an extension of time within which to appeal from the judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2) pronounced on 22 March 2024.
Background
The parties are the parents of a child, now aged nine years.
The parties agreed upon parenting orders in respect of the child in May 2019, which provided for them to have equal shared parental responsibility for the child and for the child to either live or spend generous amounts of time with each of them.
In August 2023 and October 2023, the respondent filed two contravention applications alleging the applicant’s breach of the May 2019 orders without reasonable excuse on 11 separate occasions.
The contravention applications were heard by the primary judge over two days and judgment was delivered by her Honour ex tempore at the conclusion of the hearing on 22 March 2024. Count 1 was dismissed because the respondent failed to establish a prima facie case against the applicant (at [60]), but the remaining 10 counts were found proven against the applicant (at [151]) and consequential orders were made.
The primary judge was requested to publish settled reasons, which her Honour later did. The parties were furnished with the settled reasons for judgment on 28 June 2024.
On 25 July 2024, the applicant filed an Application in an Appeal seeking an extension of time within which to bring an appeal from the orders made by the primary judge on 22 March 2024. The application was dismissed by the appeal registrar on 12 August 2024.
By an Application in an Appeal filed on 22 August 2024, the applicant seeks judicial review of the appeal registrar’s decision, in support of which she relies upon:
(a)two of her own affidavits – the one filed on 25 July 2024 in support of her application to extend time and the one filed on 22 August 2024 in support of her review application;
(b)an affidavit filed on 2 September 2024 by a legal assistant employed by her solicitors; and
(c)the transcript of the first day of hearing before the primary judge (27 February 2024).
On the morning of the review hearing, the respondent filed a Response to an Application in an Appeal and her supporting affidavit, to which the applicant took no objection. Although the Response does not make it clear, the respondent confirmed she opposed the application for an extension of time within which to appeal.
Legal principles
This being an application to review the decision made by the appeal registrar, the underlying application to extend the time within which to bring the intended appeal is heard de novo.
The principles governing the disposition of applications for an extension of time within which to appeal are not in doubt. This statement of principle in Whitmore & Whitmore [2022] FedCFamC1A 75 is adopted for present purposes:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Accordingly, attention must turn firstly to the ostensible merit of the proposed appeal before the need arises to consider the other identified discretionary considerations.
Proposed ground of appeal
The draft Notice of Appeal which the applicant wishes to file is annexed to her first affidavit.
The applicant proposes only one ground of appeal – the primary judge denied her procedural fairness. The ground is particularised by an alleged erroneous evidentiary ruling, which it is asserted foreclosed the possibility of the applicant challenging the respondent as to her lack of credit in cross-examination and so it is contended the primary judge’s favourable finding about the reliability of the respondent’s evidence was reached in disregard of the possible challenge.
As can be discerned, this is not really a complaint about the denial of procedural fairness at all, but rather a complaint of evidentiary error made by the primary judge. There was no denial of procedural fairness because the primary judge heard the parties’ arguments on the voir dire concerning the evidentiary dispute. The decision to reject the applicant’s argument was not procedurally unfair – it was either correct or incorrect. The applicant is aggrieved by only the allegedly unfair forensic consequences which flowed from the evidentiary decision, but if the evidentiary decision was correctly made then the applicant has no valid complaint at all, because there can be no quibble about the consequences of a correct decision. Conversely, if the evidentiary decision was wrong, it may be challenged for legal, factual or discretionary error within the appeal which lies from the ultimate judgment it thereby vitiates.
Ultimately, the applicant conceded that was so, in which event it would be necessary for her to revise the ground of appeal she wishes to prosecute if permitted to appeal out of time. For that reason, the ostensible merit of the ground will instead be considered as if it were drafted to allege the evidentiary ruling is beset appealable error – the nature of which error also changed as the applicant’s submissions developed.
The underlying facts of the dispute must be exposed to appreciate the nature of the applicant’s complaint. During the respondent’s cross-examination on the first day of the hearing (27 February 2024), she alleged having made contemporaneous notes of the applicant’s alleged breaches of the parenting orders and to having used the notes when preparing her affidavits which were filed in support of the contravention applications. Having made that concession, the applicant’s counsel called for the respondent to produce the notes, which call the respondent resisted due to her claim of legal professional privilege, it being alleged the notes were prepared for the dominant purpose of her receiving legal advice regarding the applicant’s alleged contraventions of the orders. On the voir dire, the primary judge upheld the respondent’s objection and gave ex tempore reasons for the ruling.
The reasons given for the evidentiary ruling cannot be independently confirmed because the transcript does not transcribe them and no settled reasons for the ruling were ever published. However, the parties agreed before the appeal registrar that the primary judge relevantly found:
(a)the respondent had already instructed her lawyers at the time she made her notes;
(b)the dominant purpose for the notes being created was to instruct her lawyers in relation to the proposed contravention applications and to prepare her supporting affidavits; and as a consequence
(c)the legal professional privilege in the notes, afforded under the Evidence Act 1995 (Cth) (“the Evidence Act”), was not waived as they had not been used to refresh her memory in readiness for cross-examination at the hearing.
The ancillary particulars of the intended ground of appeal (as currently drafted) assert error in the evidentiary ruling in two respects: first, by failing to find the respondent’s legal professional privilege was waived pursuant to s 122(6) of the Evidence Act; and secondly, by failing to require the respondent’s production of the notes pursuant to s 32 of the Evidence Act. However, in the second respect, the applicant asserted a typographical error in the draft Notice of Appeal and said the reference should instead be to s 34 of the Evidence Act.
Despite the quasi-criminal nature of the contravention proceeding, the two applications were prosecuted under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and so selected provisions of the Evidence Act did not apply, unless a contrary order was made (ss 69ZM, 69ZT(1) and 69ZT(3) of the Act). Since no such contrary order was made, neither s 32 or s 34 of the Evidence Act (being part Div 3 of Pt 2.1) applied to govern the hearing procedure. The applicant was impelled to concede that was correct.
The applicant also conceded it was impossible to maintain her allegation that the respondent breached her duty of disclosure under Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) by not having produced the notes to the applicant for inspection, either in advance of the hearing or during her cross-examination when the call was made for her to produce them.
The applicant consequently re-calibrated the complaint of appealable error to encapsulate these propositions: first, the notes were not covered by legal professional privilege at all because the respondent gave no evidence they were prepared for the dominant purpose of obtaining legal advice; secondly, even if the notes were initially covered by legal professional privilege, since the respondent had used the notes to refresh her memory for the purpose of preparing her affidavits, the privilege she enjoyed in the notes was lost under s 122(6) of the Evidence Act; and thirdly, it was an error for the primary judge to then refuse to compel the respondent to produce her notes to the applicant pursuant to the discretionary power within s 69ZX(1)(e) of the Act, as the refusal unreasonably hindered her chance to attack the respondent’s credibility in cross-examination.
As to the first point, the respondent’s counsel asserted to the primary judge the notes were prepared for the dominant purpose of the respondent obtaining legal advice, which submission was made without any foundational evidence given by the respondent. The applicant’s point was that the absence of such evidence was fatal, which proposition is rejected. The legal point was not taken at first instance before the primary judge and, if it had, it could have been cured by the respondent giving evidence to verify the fact on the voir dire. In any appeal the applicant might now be permitted to bring, she would be bound by the manner in which she initially ran the case (Water Board v Moustakas (1988) 180 CLR 491 at 497; Coulton v Holcombe (1986) 162 CLR 1 at 7; Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
In any event, even if the applicant could now raise that argument, the foundation for the existence of privilege does not necessarily need to be established by evidence. It might also be established by reference to the nature of the subject document, supported by submissions made about it (Grant v Downs (1976) 135 CLR 674 at 689; Commissioner of Taxation v Pratt Holdings Pty Ltd (2005) 225 ALR 266 at 278). The applicant advanced no argument at all to explain why the submissions made by the respondent’s counsel to the primary judge as to the circumstances in which the notes were created, which were not challenged, should be rejected out of hand. That being so, any appeal would proceed on the premise that legal professional privilege attached to the respondent’s notes.
The second point concerns the asserted loss of such privilege under s 122(6) of the Evidence Act, which undoubtedly operated despite the application of s 69ZT(1) of the Act, and provides as follows:
122 Loss of client privilege: consent and related matters
…
(6)This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness’s memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence given by police officers).
(Emphasis added within the text of the sub-section)
By its terms, s 122(6) of the Evidence Act provides the legal professional privilege which ordinarily attaches to a document pursuant to Pt 3.10, Div 1 of the Evidence Act does not prevent the document from being adduced in evidence if it was used by the witness in one of three different ways. The first way is if the witness used the document to try and revive his or her memory about a fact. In that singular respect, s 122(6) does not confine the witness’ attempt at the revival of memory to either in or out of court use.
The applicant’s point is that the evidence given by the respondent in cross-examination about her use of the notes to prepare affidavits containing her evidence-in-chief about facts relevant to the contravention applications thereby engaged s 122(6) of the Evidence Act, in which event the primary judge was wrong to conclude otherwise.
The applicant cited authority to make good on that proposition (Hamilton v State of NSW (No. 10) [2015] NSWSC 114 at [5]–[11]; Hackett v Rochow [2000] ACTSC 96 at [34]–[36]; MGICA (1992) Ltd v Kenny & GoodPty Ltd (No 2) (1996) 135 ALR 743 at [9]), but there is some countervailing authority (Grundy v Lewis Federal Court of Australia per Cooper J, 14 September 1998 unreported; Odgers 19th edition at EA.122.390).
Given it is the ostensible and not actual merit of the applicant’s intended appeal which is being considered at this point, no concluded view should be expressed about the state of equipoise in which those authorities sit. Rather, the applicant’s argument should be taken at its highest and this application should decided upon the assumption that s 122(6) of the Evidence Act did apply to the respondent’s notes and legal professional privilege was lost.
Significantly though, s 122(6) of the Evidence Act did not then render the notes admissible in evidence. Rather, the only work done by s 122(6) of the Evidence Act was to remove one obstacle to the eventual admissibility of the notes. But the applicant does not now complain of the deprivation of the chance to tender the notes in evidence. She complains only of the deprivation of the chance to decide whether to use the notes to cross-examine the respondent. That being so, there were other obstacles for her to defeat.
The factual situations in the authorities upon which the applicant relied were not analogous. Those authorities concerned police witnesses and expert witnesses using historical documents to refresh their memories before giving oral evidence. They did not concern parties to the litigation using their own contemporaneous notes to help prepare affidavits containing their evidence-in-chief well before they are called for cross-examination on their evidence at trial. The authorities to which the applicant referred emphasise how the forensic decision as to whether documents used to revive memory should be compulsorily produced in answer to a call are guided by “the interests of fairness”. There are good reasons why the interests of fairness did not demand the production of the respondent’s notes to the applicant.
If the ousted provisions of the Evidence Act had applied, then the primary judge had residual discretion to decide whether the notes had to be produced to the applicant (s 34 of the Evidence Act). The loss of privilege by operation of s 122(6) of the Evidence Act did not automatically oblige the production of the notes to the applicant. If production of the notes had been compelled, then the applicant might have used them to cross-examine the respondent, but only if the notes were inconsistent with the content of her affidavits (s 43(1) of the Evidence Act), which statutory provision is not necessarily engaged by the applicant’s idle speculation.
The proposed appeal is founded upon the applicant’s unjustified assumption that the respondent’s notes would have differed in some material way from the contents of her affidavits, meaning there would have been some forensic advantage in cross-examining the respondent about the disparity as the premise for an ultimate submission to the primary judge about her unreliability. Of course, if the notes were consistent with the respondent’s affidavits then it would have been positively disadvantageous for the applicant to have cross-examined the respondent upon them. The applicant also unjustifiably speculates her cross-examination of the respondent on the notes would have been a triumph, thereby foreclosing the credit findings later made by the primary judge which were favourable to the respondent and unfavourable to the applicant, but the respondent’s contemporaneous notes could just as easily have shored up the finding about the respondent’s reliability as a witness.
Even if the applicant’s hopes were fulfilled and the produced notes had been inconsistent with the respondent’s affidavit evidence, the notes could still not have been tendered in evidence unless the respondent denied such inconsistency during her cross-examination (s 43(2) of the Evidence Act), and additionally, the inconsistent notes were then capable of “substantially” affecting the primary judge’s assessment of the respondent’s credibility (ss 101A, 102, 103(1) and 103(2) of the Evidence Act).
Since s 69ZT(1) of the Act applied, the above-mentioned provisions of the Evidence Act did not apply and so the applicant submitted the primary judge erred by failing to compel the respondent to produce her notes by resorting to the power reposing within s 69ZX(1)(e) of the Act instead of under s 34 of the Evidence Act. But similarly, the exercise of power under s 69ZX(1)(e) of the Act is entirely discretionary and its exercise is motivated by the same considerations which influence the engagement of ss 34, 101A, 102, 103(1) and 103(2) of the Evidence Act. Cross-examination of a witness exclusively as to credit, which is what the applicant now hypothesises could possibly have occurred with the respondent, is strongly discouraged by multiple statutory provisions other than in very narrow circumstances.
Trite though it is, in the proposed appeal the applicant would have to demonstrate the primary judge erred in making the evidentiary ruling on the premise of the arguments as they were put by the parties at first instance and, for that purpose, the submissions made by the applicant to the primary judge on the issue were confined to this:
[Counsel for the applicant]: We would say, if [the notes] were privileged to begin with, then the privilege has been waived. The witness has relied upon those notes to construct her affidavit. It would be an unfairness to not have access to the source of her recollections.
…
[Counsel for the applicant]: But I take it from what the witness has said that she took contemporaneous notes and used those notes for the purposes of her affidavit. That’s very different to giving notes to a solicitor for the purposes of getting legal advice.
(Transcript 27 February 2024 p.13 lines 6–9; p.13 lines 26–28)
As can be seen, the arguments now put by the applicant in this review hearing stray far beyond those made at first instance and the ambit of the ruling then required of the primary judge. The proposed appeal could not be conducted on the hypothetical basis that the primary judge should have decided an application under s 69ZX(1)(e) of the Act which her Honour was not asked to decide. Even if the applicant could conduct the appeal in such an academic way, it is difficult to see how she could have properly satisfied the primary judge that the discretion to compel the respondent to produce her notes must have been exercised in the applicant’s favour and it is therefore unlikely she could sustain a submission in the appeal that the primary judge erred by failing to do so.
True enough, the primary judge did ultimately make credit findings in respect of the parties, but the findings were not influenced by the respondent having made notes of the disputed events. Her Honour found the respondent to be honest and thought it was unlikely the notes gave the respondent much assistance because of the relative contemporaneity between the factual events and the respondent making her affidavits about those events (at [24]). Her Honour rejected the applicant’s novel submission of a legal duty to prefer her evidence to that of the respondent when she was not compelled to produce her notes (at [25]). Comparatively, the applicant was found to be “a less impressive witness” than the respondent on account of her demeanour, the nature of her evidence, and her conduct of the litigation (at [30]–[44]).
It is well established that when material evidence has been wrongly rejected at trial at the insistence of the successful party then, to deny the unsuccessful party the remedy of a new trial, the court must have some sure ground for saying the reception of the evidence would not have affected the result or that it ought not to have done so (Balenzuela v De Gail (1959) 101 CLR 226 at 232, 235, 239 and 244; Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 463; Stead v State Government Insurance Office (1986) 161 CLR 141 at 147). But that principle has no present application. The respondent’s notes were not wrongly rejected by the primary judge as being inadmissible in evidence. The primary judge’s decision did not affect the body of evidence before the Court because it had nothing to do with the admissibility of the notes. Her Honour only adjudicated the anterior dispute over the respondent’s production of the notes to the applicant for her inspection.
In an appeal from a final judgment, an appellant may challenge an interlocutory decision, but only to the extent it can be shown to have affected the final result (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497). The applicant has been unable to show how the evidentiary ruling on 27 February 2024 had any material effect upon the final orders made on 22 March 2024. It seems inherently unlikely the respondent’s notes, if produced and used to cross-examine her, could have made any tangible difference to the credit findings or influenced the ultimate decision to find 10 contravention counts proven against the appellant. The highest the applicant’s submissions rise is to speculatively say the notes might have made a difference, but only if they happened to be inconsistent with the contents of the respondent’s affidavits.
The solitary ground of appeal (hypothetically re-constructed as an allegation of either legal or discretionary error) does not therefore evince reasonable prospects of success.
The explanation for delay
Any appeal from the orders made by the primary judge on 22 March 2024 had to be filed by 19 April 2024 (r 13.03(1) of the Rules).
More than three further months elapsed before the applicant applied for an extension of time within which to appeal.
The explanation advanced by the applicant for her delay in bringing the appeal (or the application for an extension of time to do so) was that she was waiting for the primary judge to publish the settled reasons for the orders.
The applicant deposed in her affidavit filed on 25 July 2024:
5.[The primary judge] delivered ex tempore judgment on 22 March 2024. The reasons were delivered orally.
…
7.On 17 April 2024, my lawyers wrote to [the respondent’s] lawyers putting [the respondent] on notice that I may seek leave out of time with respect to an appeal in circumstances where [the primary judge] has yet to provide written reasons for judgment. …
8.On 28 June 2024, [the primary judge] provided her written Reasons for Judgment…
She then deposed in her affidavit filed on 22 August 2024:
7.I seek reviewed of [the appeal registrar’s] decision refusing me leave to file the Application for an Extension of Time. The only reason that I was unable to file my Notice of Appeal within time was because the original decision maker, [the primary judge] did not release written reasons until over three months after the date that she pronounced the Orders. I was not prepared to instruct my lawyers to file an appeal in relation to [the primary judge’s] orders without having the benefit of the Reasons for Judgment. At that time, I was considering whether I would appeal at all. I acknowledge that it was an option for me to file a Notice of Appeal within 28 days of the Orders seeking leave to amend upon receipt of the Written Reasons. I did not wish to exercise this option because I was trying to decide overall if I should file an appeal. I did not wish to file an appeal without being one hundred percent confident in this course of action. I was not able to gain this confidence until I had read and received on the Written Reasons.
Some obvious points need to be made.
First, the applicant received the primary judge’s reasons by 28 June 2024, but it was another month before she sought an extension of time to appeal.
Secondly, the single issue she seeks to raise in the appeal is the validity of the evidentiary ruling made by the primary judge on the first day of hearing (27 February 2024). True it is, the applicant could not have separately appealed from that ruling as a “judgment” (Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26; Commonwealth v Mullane (1961) 106 CLR 166 at 169), but she knew on 27 February 2024 why the ruling was made. The oral reasons given for the ruling were obvious from the transcript of the hearing that day, which she possessed. No written reasons for that ruling were ever sought or published. Although the ruling was referred to in the reasons for judgment delivered on 28 June 2024 (at [25]), the ruling is not explained within those reasons. To press an appeal from the orders made on 22 March 2024 based on the asserted error made a month beforehand, the applicant did not need to wait for the publication of reasons on 28 June 2024 to explain why she was found to have contravened orders without reasonable excuse.
The applicant could have appealed immediately the subject orders were made on 22 March 2024, knowing full well the nature of her appeal related exclusively to the evidentiary ruling made on 27 February 2024. The reasons for the orders were delivered orally on 22 March 2024 anyway, so the asserted need to wait for the written reasons to be published on 28 June 2024 is not persuasively explained. Nor is the applicant’s decision to wait another 28 days before filing her application to extend time to appeal on 25 July 2024.
The applicant is currently represented by the same lawyers by whom she was represented at first instance. She was not deprived of the benefit of their advice over the time elapsed since the evidentiary ruling was made on 27 February 2024. On the evidence, it may be reasonably inferred the applicant has used the primary judge’s delay in the provision of written reasons as a convenient but unconvincing excuse.
Disposition
In aggregation, the lack of apparent merit in the appeal and the unconvincing explanation for the delay in bringing it militate against any extension of time to do so. The review application is dismissed. The orders of the appeal registrar stand.
The respondent was self-represented at the hearing and confirmed she made no application for costs if the review application was dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 9 September 2024
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