Dobey & Shey
[2019] FamCAFC 68
•24 April 2019
FAMILY COURT OF AUSTRALIA
| DOBEY & SHEY | [2019] FamCAFC 68 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where procedural irregularities – Where appeal concerns recusal – Where appeal raises matters which go to the administration of justice – Where the applicant should not be disadvantaged by mistakes made by his representative – Extension of time granted. FAMILY LAW – APPLICATION IN AN APPEAL – CONSOLIDATION – Where in the event that an extension of time is granted to file a Notice of Appeal the applicant seeks an order that this appeal be heard concurrently with all other appeals in this matter – Appeals consolidated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.02, 22.03 |
| Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116 |
| APPLICANT: | Mr Dobey |
| RESPONDENT: | Ms Shey |
| FILE NUMBER: | SYC | 2915 | of | 2018 |
| APPEAL NUMBER: | EA | 17 | of | 2019 |
| DATE DELIVERED: | 24 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 March 2019 and written submissions |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3900 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridger |
| SOLICITOR FOR THE APPLICANT: | Jo-Anna F S Moy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms Christie SC |
| SOLICITOR FOR THE RESPONDENT: | Doolan Callaghan Family Lawyers |
Orders
That the time to file a Notice of Appeal against orders of Judge Henderson made on 16 November 2018 be extended to 4.00 pm 26 April 2019.
That appeals EA 159 of 2018 and EA 17 of 2019 be consolidated.
That the applicant pay the respondent’s costs of and incidental to his Application in an Appeal filed on 25 February 2019 in the amount of $7,500 within twenty- eight (28) days.
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 Dobey & Shey 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 SYDNEY |
Appeal Number: EA 17 of 2019
File Number: SYC 2915 of 2018
| Mr Dobey |
Applicant
And
| Ms Shey |
Respondent
REASONS FOR JUDGMENT
introduction
By an Application in an Appeal filed 25 February 2019, Mr Dobey (“the applicant”) seeks an extension of time to file a Notice of Appeal (EA 17 of 2019) from the dismissal of his application by Judge Henderson (as she then was) that she recuse herself from the proceedings. The proposed appeal arises in the context of the hearing of an application for interim financial orders brought by Ms Shey (“the respondent”) against the applicant.
At the hearing, counsel for the applicant made an oral application that her Honour recuse herself. By Order 1 of the orders dated 16 November 2018, that application was dismissed.
The applicant also seeks to consolidate the hearing of his proposed appeal (EA 17 of 2019) with his substantive appeal (EA 159 of 2018) concerning the interim orders made by her Honour on 19 November 2018. These orders require the applicant to pay the respondent interim spousal maintenance in the amount of $1,255 each week (Order 2), as well as his 2018 bonus (Order 4) by way of interim property division on the basis that the respondent takes responsibility for all outgoings for Property A (where she and the children live) including for the mortgage (Order 3).
Relevant background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from her Honour’s reasons and the documents filed in support of this application, including those mentioned in the further written submissions which were filed after the hearing on behalf of the respondent.
The parties commenced their relationship in 1997 and separated in approximately 2015. The parties have two, now adult children together.
On 9 July 2018, the respondent commenced property settlement proceedings.
It seems to be undisputed that the applicant had been the primary income earner and that up until June 2018, the applicant had paid for all the expenses of the family, including: mortgage, food, education, medical, insurances, outgoings and maintenance of motor vehicles. The respondent had been the primary carer of the children and homemaker. She had earned some income from December 2015, but essentially had not worked in any paid employment since 2003.
At the time of the interim hearing, the applicant was living and working abroad. He was not present at the trial but was represented by counsel. It was the applicant’s contention at the hearing that the respondent was ineligible for spousal maintenance, having regard to the matters in ss 72 and 75(2) of the Family Law Act 1975 (Cth) (“the Act”). This was not accepted by the primary judge, and ultimately, orders were made in favour of the respondent.
On the basis of remarks made at the commencement of the hearing, counsel for the applicant made an oral application that the primary judge recuse herself, which, as has been mentioned, the judge declined to do.
Her Honour’s settled reasons for judgment in relation to the recusal application were published on 9 January 2019, and her settled reasons for judgment in relation to the interim financial orders were published on 19 December 2018.
On 17 December 2018, the applicant filed his Notice of Appeal (EA 159 of 2018); in time for the interim financial orders but one (working day) out of time in relation to the recusal order. An amended Notice of Appeal was filed on 18 January 2019. It was only when the matter came before an Appeal Registrar that the fact that the recusal appeal was out of time was raised for the first time.
The Appeal Registrar correctly advised the applicant that a separate Notice of Appeal would have to be filed in relation to the order made on 16 November 2018. In addition, that to pursue an appeal against dismissal of the recusal application, an application for leave to extend the time for filing the notice of Appeal was required. Thus, the Registrar made directions in relation to appeal EA 159 of 2018.
On 25 February 2019, five days after the procedural hearing, the applicant filed this application seeking an extension of time to file the Notice of Appeal, along with his draft Notice of Appeal. Upon receipt of the transcript of the hearing, for the first time the applicant became aware of remarks made by the primary judge, before counsel for the appellant arrived, to senior counsel for the respondent as to the merits (or lack thereof) of the appellant’s position and the outcome of the proceedings. These remarks are said to establish an “ineradicable apprehension of prejudgment” of what the outcome of the proceedings would be. The grounds of appeal were amended accordingly.
It is the respondent’s submission that although her Honour’s remarks “were unfortunate and intemperate”, they did not cross the line sufficient to establish apprehension of bias in the fictional bystander.
Discussion
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 within the timeframe stipulated by r 22.03. In this case, the last day for filing an appeal in respect of EA 17 of 2019 was 14 December 2018.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. As already mentioned, this tranche of litigation concerns apprehended bias by the primary judge in relation to interim financial orders.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
The effect of the affidavit filed on behalf of the applicant in support of this application suggests there was some delay in filing the initial Notice of Appeal due to the time taken for publication of the written reasons and that some amount time was required to obtain advice (given the time of year and because the applicant lives abroad) as to her Honour’s reasons. These submissions should not be accepted as a review of the various Notices of Appeal filed on behalf of the applicant demonstrates that his solicitor failed to appreciate that an appeal against the dismissal of the recusal application had to be filed by 14 December 2018 and could not be included in the Notice of Appeal filed on 17 December 2018 (which it was). It follows that in this instance the fact that the written reasons were not published until after the appeal period had expired had nothing to do with the approach to the time requirements taken by the solicitor for the applicant.
However, it seems that the applicant did all that he could do to have his legal representatives lodge a competent appeal against the dismissal of his application for recusal. It is not his fault that the solicitor made the mistakes mentioned earlier. It is appropriate at this juncture to point out that the applicant’s legal representatives are not charging him to rectify these mistakes.
Thus, although the explanation for delay is unsatisfactory, consideration should also be given to the nature and merits of the proposed appeal. It is not necessary to set out in full the remarks made by the primary judge as the flavour can be gleaned from the following “So guess what? His wife and children are to be supported as they always have been” and “yes, lay down misere” (Transcript 16 November 2018, p.3 lines 11-16).
A degree of circumspection is appropriate in an application such as this, and it is sufficient to observe at this stage that the proposed appeal appears to have at least some prospects of success and raises a matter which goes to the heart of the administration of justice (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). Thus, contrary to the submission made by senior counsel for the respondent, it does not matter that the application for interim financial orders was presented on arguably strong grounds (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577).
On balance, I am persuaded that the applicant should be granted an extension of time to appeal.
The respondent argues that any extension should be conditioned upon the applicant being required to prosecute the appeal efficiently and his compliance with his financial obligations imposed by the orders under appeal. In this respect there is evidence that the respondent is in default.
I do not propose to make orders to that effect. First, an order consolidating this appeal with the appeal against the interim financial orders will see both appeals come on for hearing in the near future. As they arise from the same set of proceedings and the other appeal is ready to be listed for hearing there is very little more that needs to be done for this matter to also be ready for hearing. Simply put, the proposed order is unnecessary. As to the other condition, the applicant has established there is a serious issue raised in the appeal and I am not persuaded it is appropriate that these conditions should be attached to it. If there are issues as to non-compliance it is preferable those matters are dealt with by way of enforcement at first instance.
It is also contended by the applicant that the most efficient use of resources, for the parties and by implication, the courts, would be to see this appeal consolidated with the substantive appeal. This is the most sensible way to proceed and an order will be made to this effect.
Costs
The respondent seeks an order for costs calculated it would seem on an indemnity basis, failing which she seeks costs on a party/party basis. The application is opposed by the respondent, who contends that the appropriate order is that the costs of the application be costs in the appeal. In making this submission the respondent fails to acknowledge that irrespective of the outcome of the appeal the respondent has been put to unnecessary expense. It is irrelevant that the problem qua time was identified by the Appeal Registrar because it was inevitable that the problems created by the conduct of the putative appeal had to be addressed at some stage.
Little weight should be attached to the fact that the applicant has been granted an extension of time and thus been wholly successful. With respect to the case presented by the applicant, the evidence adduced in the case was largely irrelevant and appears to have been adduced in an attempt to mask the mistakes made on behalf of the applicant. It was entirely reasonable that the respondent direct attention to the salient facts so that the application could be determined on its merits.
These later matters amount to circumstances which justify an order for costs and weigh heavily in favour of such an order. Otherwise, the evidence adduced before the primary judge shows that the applicant is in a financially more advantageous position to that of the respondent, which also weighs in favour of an order for costs.
As to quantum, the deficiencies in the applicant’s case were not sufficient to justify indemnity costs (Kohan and Kohan (1993) FLC 92-340) and an order for party/party costs (including for counsel’s fees) is appropriate in the amount of $7,500. This provides substantial reimbursement for the costs identified in the respondents costs schedule dated 15 March 2019 ($11,936.55, which includes GST) but also recognises that many of the items claimed are irrelevant to party/party costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 April 2019.
Associate:
Date: 24 April 2019
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