DIGLEN & KEARTLEY - [2020] FamCAFC 98

FAMILY COURT OF AUSTRALIA

DIGLEN & KEARTLEY

[2020] FamCAFC 98

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATE APPEAL DEEMED ABANDONED – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where the reason proffered by the applicant for the failure to file the electronic appeal book within time is unsatisfactory – Where if that was the only issue to be determined in relation to reinstatement then the appeal would be reinstated given the delay in filing was short – Where the applicant relies on his grounds of appeal to establish leave to appeal – Where there is no merit in any of the grounds of appeal and no basis for leave to appeal to be granted – Where even if the appeal were reinstated it would be dismissed because there would be no competent ground of appeal before the court – Where there is prejudice to both parties depending on the outcome – Where it is beyond doubt that it is in the interest of justice that the application for reinstatement be refused – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs on an indemnity basis – Orders made for the filing of written submissions in support of an application for costs to be calculated on an indemnity basis.

Family Law Act 1975 (Cth) ss 75(2) and 119
Family Law Rules 2004 (Cth) rr 22.44 and 22.57

Aon Risk Services Aust Ltd v ANU (2009) 239 CLR 175
Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479
Henry v Henry (1996) 185 CLR 571
Jackamarra v Krakouer (1998) 195 CLR 516
Kent & Kent (2017) FLC 93-792
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT:

Mr Diglen

RESPONDENT:

Ms Keartley

FILE NUMBER:

PTW

2140

2016

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

2 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

2 April 2020

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

27 August 2019

LOWER COURT MNC:

NA – Transcript only

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Carr

SOLICITOR FOR THE RESPONDENT:

Carr & Co

Orders

The applicant husband have leave to rely on his outline of argument dated 1 April 2020.
The Application in an Appeal filed on 6 February 2020 be dismissed;
Within 28 days of the date hereof the respondent wife file and serve written submissions in support of an application for costs to be calculated on an indemnity basis.
The applicant husband, within 21 days of receiving the submissions filed on behalf of the respondent wife, file and serve written submissions in response.
The respondent wife, within 14 days of receiving the written submissions in response filed by the applicant husband, file and serve any submissions in reply.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Diglen & Keartley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: WEA 38 of 2019
File Number: PTW 2140 of 2016

Mr Diglen

Appellant

And

Ms Keartley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Before the court today is an Application in an Appeal filed by Mr Diglen (“the husband”) on 6 February 2020, seeking to reinstate an appeal deemed abandoned by his failure to file the electronic appeal book within the time provided for in the orders made by the Appeal Registrar on 9 December 2019. The Amended Notice of Appeal now been deemed abandoned, was filed on 13 December 2019, and in that Notice the husband sought leave to appeal, and if leave was granted, to appeal from orders made by Magistrate Mackey on 27 August 2019.
The Application in an Appeal is supported by an affidavit of the husband also filed on 6 February 2020.
The application is opposed by Ms Keartley (“the wife”), and to that end the wife filed her own Application in an Appeal on 3 March 2020 wherein, in effect, she sought that the application be dismissed. She also sought that the Amended Notice of Appeal be dismissed. I pause there to indicate that that application was unnecessary because, of course, if the Application in an Appeal is dismissed, then the appeal remains abandoned.
A further order sought by the wife in her application was that the husband pay the wife’s costs on an indemnity basis.
There was no affidavit filed by the wife in support of her application, but on 13 March 2020 she filed a summary of argument, which addressed all of the issues and the relevant factors that need to be considered in determining an application for reinstatement.
On 1 April 2020, the husband sought to file a written outline of argument. It was not filed because it is inappropriate to attempt to file a document such as that the day before the hearing. In any event, because there was no objection to this Court receiving that outline of argument, I allowed the husband to rely on it.
I also mention at this stage that in relation to the husband’s affidavit filed on 6 February 2020, I indicated to the husband that there were paragraphs in that affidavit which, in my view, were irrelevant or inadmissible for other reasons, and I struck out a number of those paragraphs. It is unnecessary for me to say anything more about that, because the paragraphs struck out, in my view, had no relevance to the application before the court, and I did not strike out any of the paragraphs of the affidavit wherein the husband deposed to his reasons for his failure to file the electronic appeal book within time, and nor did I strike out any of the paragraphs wherein he addressed the merits of the appeal, although as will become apparent shortly, much of what he says in those paragraphs is incorrect, and does not enhance the grounds of appeal in any way.

The Principles of Law

Rule 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”), provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor, r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert & Swallow (2010) FLC 93-441, where their Honours concluded at 154:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175].
As to that latter case, and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than mention that.
11. In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert & Swallow that the principles applicable to the determination of an application for an extension of time as set out, for example, in the oft quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…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. 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. 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. 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. 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…
(Citations omitted)
In summary then, the fundamental issue is whether reinstatement of the appeal 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 be taken into account.
In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the order of the Appeal Registrar. Secondly, the merits of the appeal, and, thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed.
It could be said that the history of the proceedings is also relevant here, as well as the conduct of the parties and the nature of the litigation, but I propose to confine my remarks to what I see as the three most relevant factors.

The reasons for the failure to file the draft appeal index within time

Rather than attempt to summarise those reasons as proffered by the husband, it seems to me it is convenient to set out paragraphs 23 to 51 inclusive of the husband’s affidavit filed on 6 February 2020, wherein those reasons are contained, as follows:
Reasons for Delay in Filing the Appeal Book
23.Orders were made on 9 December 2019 by [the Appeal] Registrar.
24.Order 1 was for the filing and service of the Amended Appeal Book Index by 16 December 2019, which was complied with.
25.Order 4 stipulated what documents were to be included in the Appeal Book and Orders 5 and 6 stipulated the PDF format of the document to be prepared.
26.Orders 7 and 9 required that the Appeal Book be filed and served by 4pm on 24 January 2020.
27.Order 8 stipulated that failure to file by the deadline would mean that the appeal would be taken to be abandoned.
28.Following the hearing on 9 December 2019, I filed an amended appeal notice and requested that my contempt application and supporting affidavit of 23 July 2019 (which I had sought to lead before Magistrate Mackey but he had rejected it) be added to the Appeal book.
29.In Order 2 of 6 January 2020, the Registrar granted me leave to include the affidavit, but not the application, in the Appeal Book.
30.The affidavit of 23 July 2019 has two exhibits, the second of which runs to over 250 pages long.
31.Unlike most of the other documents in the appeal book, I only have a hard copy of the affidavit.
32.I am a litigant in person and only have home office facilities available to me.
33.Sometime around this time I attended court to try to scan the affidavit onto a USB drive, using the copier/scanners at the court that have substantial sheet feeders.
34.Unfortunately, it seemed that the functionality of the machines was limited to taking photocopies and I was unable to get them to operate as a scanner. I spent some time going through the menus without success. The scanner option appeared to have been disabled.
35.I was not that concerned, since my backup plan was to use a multi function device that I have at home, an Epson …, a photograph of which is attached at Exhibit [D]-1.
36.The Epson machine has an automatic sheet feeder, not as big as the machines at court, but it can handle around 30 to 40 pages at a time.
37.The other issue that I had was that the orders required that the Appeal Book was prepared as a single, paginated and indexed PDF file, with searchable text.
38.While I had most of the other documents in PDF or electronic format, they were separate documents and some at least had been created as image files and so were not searchable.
39.I therefore focussed at this stage on acquiring and then learning to use commercial software that would enable me to prepare the document in the format required by the court.
40.Having worked out how to complete the formatting, I returned to scanning the remaining hard copy documents, by far the most significant of which was the affidavit previously mentioned.
41.On the morning of 24 January 2020, I tried to scan the affidavit. It became apparent that the scanner was not working. It became clear that it was not a mechanical problem, but rather that the compatible ink cartridges in the scanner were now being recognised as incompatible by the machine. Although they were not needed to carry out the scanning, the effect was to disable all functions of the multi function machine.
42.I spent most of the morning replacing the ink cartridges with others that I was able to find. That resolved the problem for 3 out of 4 of the cartridges, but not the last one.
43.By this stage, too much time had passed and it was apparent that I would not be able to comply with the orders, since after scanning the document, I would then need to compile the PDF in the correct format, number the pages and so on. I therefore wrote to the court and Carr & Co, a copy of that letter is attached at Exhibit [D]-2. The letter made it clear that I was not intending to abandon the appeal.
44.I then went to Office Works in Suburb U, being the nearest store that should have replacement ink cartridges. However, it became clear that they only had bulk buy packages of ink that cost more than a replacement device. I also priced their in store scanning services, which again were more expensive than buying a new device with a sheet feeder for scanning.
45.I therore (sic) purchased an Epson … device and attached a copy of the sales receipt at Exhibit [D]-3. It has a sheet feeder that can deal with around 20 pages at a time.
46.It was Australia Day weekend, so the following Monday was a public holiday.
47.Over the course of the weekend, I scanned the documents that needed scanning, in particular the large affidavit.
48.      Unfortunately, during the course of that process, there was at first a fault that required scanning to be re-done as there was a mark put onto the pages. Then, as I tried to complete the task on Tuesday, 28 January 2020, the sheet feeder on the new machine failed. By this stage, I was well into completing the task, so decided the better option was to complete the scanning manually, one page at a time, rather than abandon what had already been scanned. However, it meant that my attempt to file the appeal book on that day was also not going to be possible.
49.      Some of those issues were documented in an exchange of texts with my ex-wife at the time.
50.      I completed the task, combined the documents, made them searchable for text and paginated them. I filed and served the appeal book and the numbered index on 29 January 2020, two working days late. I apologise to the court for that delay.
51.      The reason for the delay can be summarised as there being a large document that needed to be scanned, learning how to prepare a document in the format required, the court’s devices not allowing me to scan and save the document and then mechanical failure of two scanners that I had to complete the task; combined with limited resources and being without office support.
The situation though, is that the directions hearing where orders were made to prepare the appeal for hearing, was conducted on 9 December 2019, and in terms of the contents of the electronic appeal book, there was no dispute about documents numbered 1 to 20, but there was a dispute about document 21 which, as I understand it, was an affidavit dated 23 July 2019, and the dispute was about whether that affidavit should be included in the documents to be before the court for the purpose of an appeal.
That issue was subsequently resolved by an order made by the Appeal Registrar on 6 January 2020, wherein the Appeal Registrar gave the husband leave to include the affidavit to which I have just referred, that affidavit being sworn on 23 July 2019 and accepted for filing on 26 July 2019, in the electronic appeal book. I should add though, that it was not accepted necessarily as a document that should be before the court. It was still to be subject to challenge on that front, but at least it was to be made part of the electronic appeal book, and as is apparent from the reasons set out in the affidavit of the husband, it is that affidavit which he says caused him the difficulties which led to his inability to comply with the order for the filing of the electronic appeal book on or before 24 January 2020.
There does not appear to be any challenge to what the husband says in his affidavit as to the difficulties that he had in relation to that affidavit, but what is said, is that the real difficulty that arose was that the husband left this until the last minute. For example, as I said, the directions hearing took place on 9 December 2019, and there was no dispute about documents numbered 1 to 20, and there was nothing then to prevent the husband immediately thereafter attending to collate those documents and scan them, and commence the creation of the electronic appeal book. However, it seems he did not.
I then come to the order of 6 January 2020.
What the husband says in his affidavit is that thereafter he first attempted to scan the affidavits by using the court facilities, but that was unavailable to him. Importantly, he fails to indicate in his affidavit when he first made that attempt. In any event, he then in his affidavit traverses the subsequent difficulties that he experienced. In submissions today the husband says that he was not concerned about the initial problem of not being able to scan using the court facilities, because he had his own device which he, at that time, was confident would still be able to be used. Ultimately, it turned out that that was not the case because there were problems with that device, and I will not repeat what the husband said about that in his affidavit. However, it is not apparent that following the order of 6 January 2020, the husband made every effort to be able to complete the electronic appeal book expeditiously, including the troublesome affidavit. He says that he was able to complete the electronic appeal book to the extent of the documents that he was able to scan and get ready, but not in relation to this affidavit of 23 January 2020.
Thus, I accept the submission of the wife that the real issue, and the real difficulty is, the husband failed to get on with what he should have done, then left matters to the last minute, and found with the difficulties that he was then confronted with, that he could not comply with the timeframe.
Although I accept that the husband had those physical difficulties – call them that for the moment – in my view, it does not provide a satisfactory reason for the failure to comply with the order of the Appeal Registrar.

However, I must say, that given the circumstances, if that was the only issue to be determined as to whether the appeal would be reinstated or not, then I would allow the appeal to be reinstated because, despite the difficulties, the husband was able to complete the exercise not long after 24 January, namely, by 29 January 2020. And thus it is apparent that, call it the delay for the moment, was not lengthy.

The merits of the appeal

I indicated earlier that the Amended Notice of Appeal sought leave to appeal, and if leave was granted, to appeal from the orders made by the Magistrate on 27 August 2019.
The issue of leave to appeal, and whether it is needed in relation to all the orders made by the Magistrate, was not addressed in argument before me. My assessment though, is that leave to appeal is required, in that the orders made by the Magistrate are of a procedural nature and, for that reason, leave is required. I note though, that the facts the husband relies on in support of his application for leave to appeal, are precisely the same as his grounds of appeal, in the event that leave to appeal is granted.
Thus, in short, the husband is relying on his grounds of appeal to establish leave to appeal.
Now, the tests in relation to whether leave to appeal is granted are well-known. The test most often applied is whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and whether substantial injustice would result if leave were refused. However, this is not a test of universal application to be rigidly applied.
What I propose to do though is address the grounds of appeal, and their merits, because, of course, if there is no merit in the grounds of appeal then, leave to appeal cannot be granted.
In the Amended Notice of Appeal there are 11 grounds of appeal, and I will address all of them shortly, but leaving Ground 1 until after Ground 9.
In considering the merits of the grounds of appeal, I am not able to be determinative as to whether the appeal will succeed or will not succeed. I do not have the full range of documentation that the Full Court, for example, would have before it in considering the appeal, if it got that far. Obviously I do have most of those documents, and in that context I also have written summaries of argument provided by the parties, as well as oral submissions. Nevertheless, that still does not permit me to be definitive about whether the appeal will succeed or not. Thus, my task is, on the documents that I do have, to make an assessment as to whether there is any chance of success of the appeal, and by that I mean that even if there is the remotest chance of success, then the appeal should be allowed to proceed. That is because it is only if it can be demonstrated that there is no chance of success, that it would be futile to order reinstatement.
As was said by Kirby J in the High Court decision of Jackamarra v Krakouer (1998) 195 CLR 516 at [7]:
…But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
(Citations omitted)
To repeat then, the merits of the appeal will only be relevant in the sense of the application being refused, if I am able to find that there is no merit in any of the grounds of appeal.

Ground 2 – Magistrate rightly dismissed the other party’s application seeking to prevent proceedings being commenced in the courts of England & Wales. However, this leaves open the likelihood that there will be two sets of proceedings occurring in courts of two different jurisdictions. Such a situation is oppressive and vexatious.

This is not a competent ground of appeal, and it does not demonstrate any error by the Magistrate.
The Magistrate did dismiss the application filed by the wife on 3 July 2019, but that was in the context of it being accepted during the course of the hearing, that it was unnecessary for the relevant order being sought in that application to be made, because the previous order made in the proceedings, whereby an injunction restraining the husband was granted, was made until further order and, thus, it continued until further order. It is simply inaccurate and a misrepresentation for the husband to suggest that by formally dismissing the application of 3 July 2019, for the reasons expressed, that thereby meant the previous order by way of injunction was also dismissed.

Ground 3 – Only the courts of England & Wales can deal with the entire controversy. They are therefore the courts that should properly be seized of these proceedings.

This is a bare assertion. It does not identify any error by the Magistrate and, thus, is not a competent ground of appeal.

Ground 4 – Certain causes of action are only available to the Appellant under the laws of England & Wales and should only be heard before the courts of England & Wales.

This is another incompetent ground of appeal. It is an assertion, similar to Ground 3, and as a discrete ground of appeal, it is incompetent. It does not identify error by the Magistrate. At best, and as will be seen shortly, like Ground 3, it is an argument that seems to be intended to support Ground 1.

Ground 5 – The Magistrate incorrectly held that UK pension rights are considered property by the courts of Australia. The other party’s pension rights are the second largest marital property asset and only the courts of England & Wales considers them as property assets and only those courts are able to make pension splitting orders that will be effective in respect of those pensions.

Here, the operative part of this ground is the first sentence. The second sentence is, again, nothing more than an assertion or argument. Thus, in relation to the first sentence, as has been determined during the course of this hearing today, that is not something that the Magistrate held. He did not hold or make a finding that the UK pension rights are considered property by the courts of Australia. Thus, it is not a ground of appeal that can succeed, and there is no error properly identified in this ground of appeal.
I add, that the husband maintained today that the Magistrate made that finding, and I invited him to take me to where that might appear in the transcript or, more specifically, where it was conceded by the wife’s counsel that the Australian courts would not consider the UK pension rights as property, and he was unable to take me to any such statement, either by the wife’s counsel, or by the Magistrate, to that effect.

Ground 6 – Appellant submits that the primary reason for commencing proceedings (improperly) in Australia was to try to prevent the Appellant from legitimately having the UK pensions dealt with as a marital property asset and from seeking pension splitting orders or other appropriate orders in those courts.

This is not a competent ground of appeal. It does not identify any error on the part of the Magistrate. It is an assertion of the purpose for the commencement of the proceedings in Australia by the wife and, indeed, that is an assertion which has no evidentiary basis. No evidence was presented to the Magistrate which goes anywhere near to supporting that proposition.

Ground 7 – The largest marital property asset is the parties (sic) house [in London]. While this court can make in personam orders to seek to circumvent the prohibition for making direct orders against real property in another jurisdiction, the form conveniens for determining the parties (sic) rights in respect of this asset are the courts of England & Wales.

This is another incompetent ground of appeal. It can only be treated as an argument which seeks to support Ground 1. Thus, discretely it has no merit as a ground of appeal and cannot lead to any success on the application for leave to appeal, or the appeal, if leave is granted.

Ground 8 – There are rights of action and remedies that are only available to the Appellant in the courts of England & Wales in respect of that real property. In particular, only the courts of England & Wales can extend the Appellants (sic) Matrimonial Rights Notice on the Land Register in England & Wales.

As with the other grounds of appeal, this is not a competent ground of appeal, and for the same reasons. Again, it can best be described as an argument in support of Ground 1, but it does not identify any error by the Magistrate and, thus, has no merit as a ground of appeal.

Ground 9 – The forum of conveniens test in the Australian courts is different from that applied in all other major common law jurisdictions, including England & Wales. This gives rise to the undesirable situation where different tests will be applied in the two jurisdictions in this matter. Appellant submits that the test under Australian law is wrong and should be changed (by the High Court) to be consistent with other relevant jurisdictions. Appellant appreciates that this is an issue that can only be considered by the High Court, but notes it here in the grounds of appeal, in the event that this appeal is dismissed.

This ground is the height of nonsense by the husband. He says it himself. He appreciates that this is an issue that can only be considered by the High Court of Australia, but for some reason he says, I “note it here in the grounds of appeal, in the event that the appeal is dismissed.” I do not understand what that means. It is not a competent ground of appeal. It does not assert any error made by the Magistrate, and it cannot even be treated as an argument in support of Ground 1.
Turning then to Ground 1.

Ground 1 – Magistrate failed to apply the proper tests when considering the question of staying the Australian proceedings.

The first comment to make is that the Magistrate in addressing the question of the application to stay the Australian proceedings, applied the test that applies in Australia. If Ground 1 is meant to be a follow-up, or an adjunct, or a supplementary ground to Ground 9, then it fails. However, treating it as a ground which complains that the Magistrate failed to apply the proper test in Australia, it seems, and I will now exclude Ground 9 from this, that Grounds 3, 4, 7 and 8 are intended to support an assertion that the Magistrate failed to recognise that the Family Court of Western Australia is an inappropriate forum. Pausing there, that is the test, not what the husband refers to in Ground 9, namely the “forum of conveniens test”.
In any event, to continue, in my view, that assertion has no merit for the following reasons.
First, the husband has failed to identify any error in the Magistrate’s application of the law.
Secondly, the husband submitted to the jurisdiction of the Family Court of Western Australia prior to raising any argument about the appropriate forum.
Thirdly, the two reasons submitted by the husband to demonstrate that the proceeding should be heard in the United Kingdom in preference to Australia lacked force.
The test in Australia is established by authority commencing with the High Court of Australia decision in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. There it was held that an Australian court has a prima facie right to have the proceedings determined by that court, unless that court is a clearly inappropriate forum. And the High Court held in Henry v Henry (1996) 185 CLR 571 at 587 that a court will be a clearly inappropriate forum:
…if continuation of the proceedings in that court would be oppressive, in the sense of “seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious in the sense of “productive of serious and unjustified trouble and harassment.
I also indicate that the Full Court in Kent & Kent (2017) FLC 93-792 confirmed a non-exhaustive list of the matters properly to be taken into account when considering an inappropriate forum test.
Turning then to the husband’s two reasons for submitting that the proceedings should be heard in the United Kingdom court over Australia.
The first is that he wishes to sue the wife for the tort of deceit, negligent misrepresentation and/or breach of trust, and he submits that these causes of action are not available to him in Australia, and that is only something that the United Kingdom court can entertain. However, that is an argument without substance.
If it was the case that the husband had commenced proceedings for property settlement – call them that for the moment for ease of reference – in the United Kingdom, and the context was, whether those proceedings, or whether the property settlement proceedings in Australia would continue, the issue of whether the husband could take proceedings for a tort, or for breach of trust, would be completely irrelevant to the consideration of any issue as to which of those two courts should be the court to determine the issue of property settlement.
In any event, not only does s 119 of the Family Law Act 1975 (Cth) (“the Act”) permit the husband to bring the actions that he would want to bring against the wife, albeit he would need to do that in Australia, but there is nothing to prevent the husband instituting those proceedings in the United Kingdom. The proceedings in Australia do not prevent that, and cannot prevent that.
Thus, to suggest that any tortious proceeding would be part and parcel of the entire issue between the parties is, in my view, inaccurate.
The Magistrate, in my view, appropriately dealt with that issue, and there is no error identified.
Turning then to the second reason, namely that the United Kingdom courts alone can make an order in relation to the Matrimonial Rights Notice under the English Family Law Act. The basis of the husband’s concern about that was his submission that that Notice was the only mechanism for protecting his rights in the property, given that the wife is the sole legal owner, and the Notice would cease to be in effect, on the parties divorcing. I note, in fact, that the parties were divorced on 12 November 2019, and thus the Notice has ceased to operate.
The wife says, correctly, that the husband provided no evidence to the Magistrate in support of the submission that I have just referred to, but this issue was still canvassed extensively before the Magistrate. What the Magistrate did was identify the orders made in the proceedings in Australia on 23 November 2018, which were extensive orders, and which clearly and plainly and indisputably protect the husband’s interests in the property in the United Kingdom.
Thus, the Magistrate proceeded on the basis that there was no need for proceedings to be taken in the United Kingdom in relation to the Notice of Home Rights, because the husband had all the protections that he could ever require under the order of 23 November 2018.
Again, there is no error, here by the Magistrate.
Today, the husband has, in his oral submissions, put to me that another matter which would be, as he described it, within the exclusive jurisdiction of the courts in the United Kingdom, and would provide another reason for the Australian court being an inappropriate forum, is that because the property in the United Kingdom was in the sole name of the wife, it would be necessary to institute proceedings in the United Kingdom to change that to joint ownership.
I reject entirely that submission.
The proceedings on foot in Australia can amply and adequately cover that issue. There is no basis for suggesting that the only recourse that the husband has in relation to that, is for him to institute proceedings in the courts in the United Kingdom. That is errant nonsense.
The second matter that the husband put to me today related to the issue of the Notice of Home Rights, which I have dealt with.
The third issue the husband put to me as being something that could only be the subject of the proceedings in the United Kingdom, was in relation to the United Kingdom pensions. Now, I have touched on that issue in what I have said to date, because it is referred to in the second sentence of Ground 5 as follows:
The other party’s pension rights are the second largest marital property asset and only the Courts of England & Wales considers them as property assets and only those courts are able to make pension splitting orders that will be effective in respect of those pensions.
The first problem for the husband is that, although he raised that with the Magistrate, no evidence was presented to the Magistrate in support of that proposition, and the Magistrate dealt with that on the basis that the issue of the parties’ pension rights, would be a matter that could and would be dealt with at the final hearing of the property settlement proceedings in the Australian court. His Honour also correctly referred to s 75(2) of the Act, which provides in paragraph (f), as a matter to be taken into account:
…the eligibility of either party for a pension, allowance or benefit under –
And I come to (ii) –
…any superannuation fund of scheme, whether the fund or scheme was established or operates within or outside Australia.
Thus, again, there is no error by the Magistrate in how he addressed this issue, the issue being whether the Australian court was an inappropriate forum, because the only court which could deal with the pension rights as property, were the United Kingdom courts. His Honour made no error in addressing that.
Ground 1 has no merit.

Ground 10 – These proceedings were commenced in breach of both a direction made by this court and also in breach of the court’s rules. As such, these proceedings should be struck out with prejudice.

First, it is not altogether clear to what the husband is referring as the breach of a direction, and the breach of the court rules.
Doing the best I can, as I understand it, the breach of a direction relates to a direction allegedly made by the court upon proceedings in 2016 being discontinued or dismissed, that prior to the commencement of any further proceedings, notice had to be given to the other party. I am assuming that the breach the husband is referring to is that this direction was not complied with by the wife.
In terms of the court rules, again, doing the best I can, it seems that what that relates to is the question of whether, prior to commencement of the proceedings in 2018, the pre-action protocols set out in the Rules had been complied with.
Now, the insurmountable difficulty that the husband faces in pursuing this ground of appeal, or, indeed, leave to appeal, is that before the Magistrate the husband did not pursue an application to strike out the wife’s application on the basis of there being a breach of the direction previously made, or on the basis that there had been a breach of the court rules. Thus, there was no application for his Honour to deal with, and no order made by his Honour which can be the subject of an appeal. Thus, this is a ground which simply cannot succeed.
I also note that the time to have raised those matters would have been in 2018 when the proceedings were commenced, but I have not been taken to anything by the husband which indicates that it was raised then.

Ground 11 – The Magistrate erred in refusing to admit the Contempt Application first filed on 26 July 2019 and the affidavit of Mr Diglen filed on 26 July 2019 when considering the Application.

The brief history in relation to this ground, is that pursuant to orders made on 5 July 2019, the husband was to file a Response and affidavit by 22 July 2019. However, he failed to do so, and submitted that material on 26 July 2019, when it was not accepted for filing. That Response and affidavit alleged contempt of court by the wife and her solicitor. The application was referred to chambers on 26 August 2019, and was rejected for filing because it was out of time.

The husband then sought a review of that decision to reject the filing of his contempt application and affidavit, and that review was pending at the time of the hearing before the Magistrate on 27 August 2019. Thus, the contempt application was not an application that was before the Magistrate on 27 August 2019, and therefore there can be no error by the Magistrate in refusing to admit the application and the affidavit. This is a ground of appeal which can neither support leave to appeal being granted, nor achieve success as a ground of appeal.
In summary, I find that none of the grounds of appeal contained in the Amended Notice of Appeal have any merit. Thus, there is no basis for leave to appeal to be granted, given that leave to appeal is based on the very grounds of appeal to which I have referred.

The prejudice to either party depending on the outcome

If the application is successful then there would clearly be prejudice to the wife in that she would have to deal with the appeal. There would be resource, time and money issues, and a background where, given the appeal is deemed abandoned, there is in fact no appeal on foot, and the wife is perfectly at liberty to proceed to organise her life on the basis that there is no appeal against the orders of the Magistrate.
On the other hand, if the application is dismissed then prima facie the husband would suffer prejudice in that he would not be able to pursue the appeal. There is no appeal from a refusal to grant an application such as this. There is a possibility, though, of an application for special leave to appeal being made to the High Court of Australia, but the question obviously would be whether that is something which is proportionate to what is at stake here.
Putting that aside for the moment, there is clear prejudice to the husband if the application is dismissed, because he would not be able to pursue the appeal.

Conclusion

As the authorities recognise, consideration of the relevant factors informs the court’s determination of the fundamental issue, namely is it in the interests of justice to allow the appeal to proceed. Here, in my view, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused.
I have found that there is not an adequate explanation for the failure to file the electronic appeal book within time, although I have indicated, and I repeat, that if that was the only factor to be considered I would not be dismissing the application on that basis, and I will not repeat what I have said about that.
What is significant now is that I have found that there is no merit in any of the grounds of appeal, and thus, no basis for leave to appeal to be granted. Therefore, even if the appeal was reinstated, given that circumstance, the appeal would then be dismissed, because there would be no competent ground of appeal before the court. The order that I propose then, is that the Application in an Appeal filed on 6 February 2020 be dismissed.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 2 April 2020.

Associate:

Date: 24 April 2020