Draper & Jessop (Reinstatement Application)
[2007] FamCA 1380
•22 November 2007
FAMILY COURT OF AUSTRALIA
| DRAPER & JESSOP | [2007] FamCA 1380 |
| FAMILY LAW - APPEAL – Application for re-instatement of abandoned appeal – Where applicant failed to file appeal books in time provided – Where appeal deemed abandoned – Principles in Gallo v Dawson (1990) 93 ALR 479 applied – Application for re-instatement granted. FAMILY LAW - APPEAL – COSTS – Where there were circumstances which justified departure from s 117 of the Family Law Act 1975 - Where respondent sought indemnity costs – Indemnity costs not awarded – Costs to be awarded on a lump sum party and party basis to reduce further costs and delays of assessment. |
| Family Law Act 1975 (Cth) s 75(2), s 94(2D), s 94(2F), s117(1) |
| Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 |
| APPLICANT: | Ms Draper |
| RESPONDENT: | Mr Jessop |
| FILE NUMBER: | SYF | 3573 | of | 2005 |
| APPEAL NUMBER: | EA | 33 | of | 2007 |
| DATE DELIVERED: | 22 November 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 21 and 22 November 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 February 2007 |
| LOWER COURT MNC: | [2007] FamCA 205 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPLICANT: | Pearson Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd |
| SOLICITOR FOR THE RESPONDENT: | Paul & Paul Lawyers |
Orders
That appeal (EA 33 of 2007) is reinstated.
The husband’s solicitors provide in writing to Appeal Registrar and to the wife’s solicitors a schedule of costs sought in respect of and incidental to this application on or before 5 December 2007.
The wife’s solicitors provide in writing to the Appeal Registrar on or before 12 December 2007 any submissions in relation to the schedule referred to in Order 2 of these orders.
That the valuation of Jonathan Alford dated 25 January 2007 be inserted into the list of documents to be included in the appeal books for the appeal as set out in Order 1 of the orders made by Registrar Halbert on 6 June 2007.
That the appellant wife be responsible for the preparation of the appeal books.
That the appellant wife file in the Sydney Registry of the Court on or before 21 December 2007 eight (8) copies of the appeal books, together with a certificate pursuant to Chapter 22 r 22.22(2) of the Family Law Rules 2004, and serve two (2) copies of the appeal books on the respondent husband, together with a copy of the certificate.
That the appellant wife file and serve her Summary of Argument and List of Authorities with the Appeal Registrar on or before 31 January 2008.
That the respondent husband file and serve his Summary of Argument and List of Authorities with the Appeal Registrar on or before 14 February 2008.
That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeal Registrar, and regarding any other issue, to the Honourable Justice Boland (or if not reasonably available to another member of the Appeal Division) upon five (5) days notice in writing to the other party and to the Appeal Registrar in the Sydney Registry.
To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
The estimated hearing time of the appeal is half a day.
Mr Richardson SC is briefed to appear as counsel for the appellant.
Mr Lloyd is briefed to appear as counsel for the respondent.
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Draper and Jessop (Reinstatement Application).
| THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 33 of 2007
File Number: SYF 3573 of 2005
| Ms Draper |
Applicant
And
| Mr Jessop |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before me is an Application in a Case filed on 11 October 2007 by the wife in which she seeks orders for the reinstatement of an appeal No EA 33 of 2007.
On 19 November 2007 the husband filed a response to the wife’s application in which he opposes the re-instatement of the appeal. He seeks that the wife pay his costs of this application on an indemnity basis.
Evidence Relied on in this Application
The wife relies on her affidavit sworn 3 October 2007 in support of the application.
The husband relies on his affidavit sworn 16 November 2007 in his opposition to the wife’s application. I will later in these reasons refer to the matters deposed to by the parties in their affidavit material.
Background relevant to this application
The parties’ competing property applications were heard by Moore J over three days in February 2007 and her Honour delivered reasons and made orders on 16 February 2007. Her Honour’s orders included an order for the sale of the parties’ former matrimonial home at Neutral Bay, and after payment out of liabilities and the sum of $7,568.50 to each party, the net proceeds thereafter were to be divided as to one third to the husband and two thirds to the wife.
On 15 March 2007 the wife filed a Notice of Appeal against Orders 2 and 11 of the orders made by Moore J. Order 2 is her Honour’s order in which she provides for the division of the proceeds of sale of the matrimonial home. Order 11 of her Honour’s orders was an order dismissing the wife’s application for spousal maintenance.
On 30 March 2007 I made an order in chambers delegating the conduct of a procedural hearing to settle the appeal book index and make necessary directions for the conduct of the appeal to the Appeal Registrar.
On 6 June 2007 following a procedural hearing the Appeal Registrar made orders which, inter alia, required the wife to file appeal books in the Sydney Registry on or before 7 July 2007.
No appeal books were filed in accordance with the Appeal Registrar’s orders.
On 9 August 2007 the Appeal Registrar caused a letter to be forwarded to both parties’ solicitors advising that, pursuant to r 22.56 of the Family Law Rules 2004 (“the Rules”), the appeal was taken to be abandoned on 1 August 2007. The letter also drew the parties’ attention to r 22.57 which rule provides for re-instatement of an appeal.
Relevant statute law and rules
Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals. It is in the follow terms:
Section 94
(2D) Applications of a procedural nature, including applications:
…
(g)to reinstate an appeal dismissed under a provision of the Rules of Court; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2F) provides:
(2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
The effect of s 94(2D) is that, other than an application being accepted by the High Court for special leave, any determination I make in this matter is not subject to an appeal to the Full Court.
Rule 22.56 of the rules is in the following terms:
RULE 22.56 Abandoning an appeal
(1)If, by the date for compliance (as fixed in accordance with these Rules or extended by an order), an appellant does not file:
(a) a pre‑argument statement; or
(b) the appeal books;
an appeal is taken to be abandoned at the end of the 28th day after the date for compliance.
(2)If the draft index to the appeal books is not filed within 3 months after the date of cancellation of the first court date under paragraph 22.15 (a), the appeal is taken to be abandoned.
(3)If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of the other parties to the appeal.
Also relevant is Rule 22.57 of the rules. It is in the following terms:
RULE 22.57 Application for reinstatement of appeal
(1)A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.
(2)In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non-compliance was intentional;
(e)whether there is a good reason for the non-compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non-compliance was caused by the party or the party’s lawyer;
(h)the effect of non-compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
Evidence
In her affidavit the wife, after setting out a brief procedural history, says:
The conclusion of the hearing before Justice Moore and the handing down of the Orders made by her was a very stressful and emotional time for me. I felt depressed and I found it difficult to sleep at night, I could not concentrate during the day and I was often teary. (paragraph 5)
The wife thereafter set out evidence in respect of preparing the matrimonial home for sale. The wife does not depose to the date of the contract of sale of the matrimonial home or when settlement of the sale occurred. However she does depose to purchasing a new home for herself at Balgowlah and moving into this property on 26 July 2007. I was informed during the hearing that settlement of the sale of the matrimonial home also occurred on 26 July 2007.
At paragraph 21 of her Affidavit the wife says “During this period I also overlooked payment of my lawyers’ account and they had no funds to apply towards the preparation of Appeal books”.
Finally the wife deposes to instructing her lawyers to write to the husband’s lawyers on 30 August 2007 requesting the husband to consent to re-instatement of the appeal, but by letter dated 4 September 2007 the husband’s lawyers advised their client would not so consent.
The husband deposes that his lawyers sent a letter to the wife’s solicitors on 24 July 2007 about the appeal. No copy of the letter is annexed to the husband’s affidavit but the contents of the letter as set out in the Affidavit are not disputed. The husband’s solicitors queried whether, in light of the Appeal Registrar’s order, the wife had abandoned the appeal. Much of the husband’s affidavit contains inadmissible hearsay material of purported conversations between the husband and wife’s solicitors.
At paragraph 3 of his affidavit the husband says:
I have made plans and arrangements based upon the Orders of the Trial Judge. I wish to purchase a home and move on with my life and, believing that the Appeal had been abandoned, I was in the process of inspecting properties when I was advised by my solicitor about this application. I am concerned at the possible delay in any hearing and of the possible length of time during which I may be uncertain as to the possible outcome.
Discussion
In commencing my discussion of relevant issues, I wish to record that I was much assisted in this controversial matter by the very helpful and thorough submissions of each party’s counsel.
In her reasons for judgment the trial Judge noted that, at the conclusion of the case, the wife’s then senior counsel conceded that the parties’ contributions to the date of the hearing should be regarded as equal, and that the matters in issue were the net value of the parties’ assets, the adjustment to be made under s 75(2) and disagreement in respect of a child support departure application. Her Honour also noted that the husband sought the wife’s spousal maintenance claim should be dismissed.
Her Honour was asked by the husband’s counsel to make an adjustment in the wife’s favour of 10 per cent and senior counsel then appearing for the wife sought an adjustment of 20 per cent for relevant s 75(2) factors. Ultimately her Honour determined, in the exercise of her discretion, the appropriate adjustment was 16.66 per cent of the pool. The effect of this adjustment was that the wife retained assets (based on the then value of the matrimonial home) of $3,595,130.00. Her Honour concluded in paragraph 62 of her reasons
…Subject to that, the effect of the apportionment means that [the wife] would receive cash of around $2,437,749 [$3,595,130 less $1,157,381]. In addition, she would be free of debt [save for any additional legal costs no doubt] and, with additional cash at bank of almost $237,000, this would bring her available cash to almost $2.675 million. Her other assets would include two income producing properties, both unencumbered, a motor vehicle, household contents, some shares and other minor chattels. She would also receive 2/3 of the Intech share payment in the future…
Her Honour proposed in her reasons to continue spousal maintenance payments in the quantum of $2,000 in addition to child support, until the sale of the matrimonial home, but otherwise dismissed the wife’s spousal maintenance application.
An examination of her Honour’s orders reveals that no order continuing spousal maintenance was made. This inadvertent error was one in my view clearly amenable under the “slip rule” (r 17.02 of the rules). It appears no such application was made to her Honour, and the wife now relies on this asserted error as a ground of appeal (Ground 4 Amended Notice of Appeal)
I now turn to the matters referred to specifically in r 22.57. In doing so I have regard to the fact that the rules are “Judge made” rules, and that there is a general power for a judicial officer in any case where it is appropriate to do so to dispense with the rules.
I also take into account the well established common law principles relevant to granting an extension of time as these principles are particularly apposite to an application of this type. Both parties’ counsel referred me to a number of such authorities. A number of the relevant authorities are comprehensively referred to by Ellis J in the unreported decision of W & W (unreported, Family Court of Australia, Ellis J, 4 July 1997) and in particular at page 5 of his Honour’s reasons. As his Honour noted the fundamental issue in extension of time applications is to ensure justice between the parties. This is well expressed by McHugh J in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480 referring to the then relevant High Court rule dealing with an extension of time “The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice”. If the fault is not that of the litigant, it is more likely that the discretion to extend time will be exercised in favour the litigant (See Mackey v Mackey [2007] HCA Trans 271 per Heydon J).
I have regard to r 1.04 of the rules which provides that cases should be determined in a timely manner. There is no issue raised that the wife’s Notice of Appeal was not filed in accordance with the rules. An Amended Notice of Appeal was filed without leave in the time and manner prescribed in the rules.
I accept that if there was compliance with the orders made at the procedural hearing the appeal may have been able to be accommodated in sittings later this year or early next year. I accept as a consequence of the wife’s failure to prosecute the appeal that the proceedings have been delayed, and if the appeal is re-instated it will not be heard for some months. I accept such delay is prejudicial to the husband “getting on” with his life, particularly committing to purchase of a new home for himself. Although not particularly argued before me, I have no doubt that ongoing litigation would be not only expensive, but emotionally draining to both parties.
I accept that absent an order re-instating the appeal, the trial Judge’s orders will be final and binding on both parties. I take into account that the husband is entitled to the fruits of the litigation, and finality of the proceedings.
The wife’s application was filed on 11 October 2007, that is approximately two months after the Appeal Registrar wrote to the wife’s solicitors advising of the abandonment of the appeal, and the procedure available under r 22.57. I accept the solicitors very properly sought the consent of the husband’s solicitors to re-instate the appeal to avoid the expense of an application, but the wife’s affidavit does not otherwise explain the delay of two months from receiving the Appeal Registrar’s letter and the filing of this application.
I am satisfied that the non compliance with the Appeal Registrar’s orders was not by reason of mistake or lack of understanding of the orders. I note that Order 6 of the Appeal Registrar’s orders provided a facility to list the matter before me, or if I was not reasonably available, another member of the appeal division “regarding any other issue” other than the appeal book index. Accordingly, application could have been made to me at any time prior to 7 July 2007 to extend time for filing of the appeal books and summary of argument.
The wife’s reasons for non compliance focus on her assertions of distress following the completion of the proceedings, and stresses involved in selling the matrimonial home. These matters, whilst understandable, are not compelling. Settlement of sale of the matrimonial home and purchase of the wife’s new home occurred late in July 2007. There is simply no evidence, other than the wife’s concession she had overlooked payment to her solicitors, to explain why the solicitors did not, or it appears have not, obtained transcript, prepared the appeal books, or applied under Order 6 of the Registrar’s orders to extend time to do so.
All the factors discussed above do not suggest discretion should be exercised in the wife’s favour, whether subject to conditions or not.
I turn then to what appears to me the most significant matters for me to take into account in the exercise of my discretion:
·Will the wife suffer injustice if her appeal is not re-instated; and
·Will any injustice suffered by the wife if her appeal is not re-instated be outweighed by prejudice to the husband.
Counsel for the husband cogently argued matters relating to delay by the wife, and non compliance with orders. He also pointed out that the husband’s solicitor had raised the issue of the time for filing appeal books in an appropriate and timely manner. He stressed the difficulties for the husband caused by the uncertainty of whether an appeal would or would not proceed, and then the impact any possible rehearing on him being able to appropriately organise his financial affairs. I accept those submissions and give them considerable weight. I also take into account his submission that the delay and uncertainty cannot really be remedied by an order for costs.
Senior counsel for the wife very appropriately acknowledged the non compliance with the Court orders, but focussed his submissions on the question of the matters of principle which the wife sought to agitate on appeal. He submitted that, unless the appeal was re-instated, the wife would be unable to challenge the trial Judge’s assessment of s 75(2) factors, and in particular the assertion that insufficient weight was given by the trial Judge in the exercise of her discretion to relevant factors under s 75(2)(j) at the end of the parties’ marriage which was of 25 year’s duration. He principally submitted that the wife should not be denied the opportunity to argue error by the trial Judge in not making an ongoing spousal maintenance order.
It would not be appropriate for me on this application to conduct an exhaustive analysis of the likely prospects of success of the wife’s grounds of appeal if the appeal is re-instated. Counsel for the husband noted that the challenge to the
s 75(2) adjustment involved a small percentage adjustment of approximately 3.3%. I accept having regard to the relevant authorities on the limits on appellate interference with discretionary judgments, there appears to be weight to this submission. He also argues that the wife’s financial position is such that she would be unlikely to establish the threshold criteria of being unable to support herself adequately to receive an ongoing award of spousal maintenance.
Whilst the husband’s counsel’s submissions in respect of spousal maintenance prima facie appear cogent, I am not in a position to say that the wife’s spousal maintenance challenge is entirely without merit. I accept absent re-instatement of the appeal the opportunity for the wife to obtain ongoing spousal maintenance will be lost.
I take into account that if the wife is entirely unsuccessful in her appeal, given her capital position, if appears to me likely that the Full Court would order that she pay the husband’s costs of the appeal. Whilst this is not an overwhelming factor, it is another factor to be considered, as is any order for costs which may be made by me if the appeal is re-instated.
Factors in this application are finely balanced. I have however determined that a strict application of the rules would work a greater injustice on the wife than it would on the husband and that the appeal should be re-instated. Absent the re-instatement of the appeal, the wife’s right to challenge the trial Judge’s orders would be lost. Prima facie, her grounds of appeal, whilst not compelling, are not completely without merit, and if unsuccessful she has capacity to meet a costs order in the husband’s favour.
In reaching this determination, I have taken into account that the husband has been on notice of the wife’s appeal since the month after the judgment and orders of the trial Judge. I also have regard to the fact that fortunately the matrimonial home has been sold, and the proceeds disbursed allowing both parties a degree of financial independence. The husband’s professional income does enable him to live at a reasonable standard, albeit that may have to be in rental accommodation pending determination of the appeal.
Costs of this application and/or conditions of re-instatement
Senior counsel for the wife submitted that I should stand over costs of this application to the Full Court on the basis that the costs could be considered in the light of a successful or unsuccessful appeal. I do not accept that submission.
The application to the Court was necessary because of the wife’s failure to comply with orders of the Court and in re-instating the appeal the wife has been granted an indulgence by the Court. I am satisfied there are circumstances which require departure from s 117(1) of the Act. Having regard to the trial Judge’s determination of the wife’s entitlements I am satisfied she has the capacity to met an order for costs.
I was not provided an assessment of costs from the husband’s counsel and I propose to allow him the opportunity to provide such assessment. This is because I propose, if possible and appropriate, to make a defined costs order to avoid the additional costs and delay of an assessment under Chapter 19 of the rules.
I have had careful regard to the authorities on indemnity costs. The power to make an indemnity costs order in an appropriate case is recognised (see Yunghanns & Ors & Yunghanns (2000) FLC 93-029 at paragraph 29). The principles which apply to the making of an indemnity costs order are not limited to cases where fraud or collateral purpose is established against one party. What is required is that some “particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”: per Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 234. Generally the departure from the ordinary rules relating to costs will require exceptional circumstances (see Munday & Bowman (1997) FLC 92-784; (1997-1998) 22 Fam LR 321).
I am not satisfied that this matter falls into the category of cases where an indemnity costs order is appropriate, however any costs order will be for a lump sum on a party and party basis to be paid within one month of my costs order which order I will make in chambers after receipt of a schedule of costs from the husband’s solicitors and submissions if any from the wife’s solicitors in respect of such schedule.
Further orders to enable the appeal to proceed
Senior counsel for the wife at the completion of the hearing provided me by way of an aide memoir a proposed Minute of Direction for the preparation of the appeal books and the prosecution of the appeal. I was advised a copy of the document had been provided to the husband’s counsel. I propose to make Orders 1 to 6 and 8 of that document and to note the Notations contained in that document.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 22 November 2007
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Procedural Fairness
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Jurisdiction
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