EASTON & EASTON - [2018] FamCAFC 13

FAMILY COURT OF AUSTRALIA

EASTON & EASTON

[2018] FamCAFC 13

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where the proposed appeal has no merit, is hopeless and doomed to fail – Where there is prejudice to each of the parties depending upon whether the application is allowed or dismissed – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the court has a discretion in relation to costs – Where the applicant’s age, financial circumstances and lack of understanding or appreciation of the legal niceties of this matter are relevant – Where the costs sought by solicitor and counsel are unreasonable – Application dismissed.

Family Law Act 1975 (Cth) s 79A
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Easton

RESPONDENT:

Ms Easton

FILE NUMBER:

MLC

3768

2014

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

30 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

30 January 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 August 2017

LOWER COURT MNC:

[2017] FCCA 2126
[2017] FCCA 2131

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Hannan

SOLICITOR FOR THE RESPONDENT:

Rockman & Rockman

Orders

The application in an appeal filed on 27 October 2017 be dismissed.
The oral application for costs made on behalf of the respondent be dismissed.

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 Easton & Easton 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 MELBOURNE

Appeal Number: SOA 81 of 2017
File Number: MLC 3768 of 2014

Mr Easton

Applicant

And

Ms Easton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is an application in an appeal filed by Mr Easton (“the husband”) on 27 October 2017. In that application, the husband seeks an extension of time to file an appeal against orders made by Judge Small on 31 August 2017.
There were two sets of orders made by the primary judge on that day. The first set being in relation to the application that was before her Honour, and I will come to that application in a moment, and in that set of orders her Honour, amongst other orders, dismissed the application summarily.
In the second set of orders, consequent upon the application being summarily dismissed, her Honour made orders for costs against the applicant. These orders were made separately to the first set of orders, but on the same day, although conveniently, I note that in the formal order issued by the court, all of the orders on that day are set out in that one document.
That explanation of the position in relation to the orders was required because, frankly, initially it was a little unclear to this Court whether the husband was seeking an extension of time to appeal against all of the orders made on that day, or just the orders which, in effect, dismissed his application. In any event, I am treating the husband’s position as him wanting to appeal all of the orders, including the costs orders.
In support of his application the husband has filed an affidavit also on 27 October 2017, and as he is obliged to do, he has provided the court with a Draft Notice of Appeal, being the Notice of Appeal which he would want to proceed upon in the event that time was extended.
The application that is before the court today was necessary because the husband failed to file a Notice of Appeal against the orders of 31 August 2017 within time. The Family Law Rules 2004 (Cth) (“the Rules”) provide for any Notice of Appeal to be filed within 28 days following the making of orders, or within 28 days of any reasons for judgment being delivered, if they are delivered on a day subsequent to the date the orders are made.
In this instance, the reasons for judgment were delivered ex tempore, and thus the relevant date for the commencement of the 28 day period is 31 August 2017.
The application for an extension of time is opposed by Ms Easton (“the wife”).

The legal principles

The law in relation to applications for extensions of time is well settled and the principles applicable to the determination of such an application are helpfully set out in the oft-quoted High Court judgment of Gallo v Dawson (1990) 93 ALR 479, and particularly in the judgment of McHugh J at 480:
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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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.
As can be seen, the overarching principle is to prevent injustice and in considering that, there are a number of factors that can be taken into account. In this case, it seems to me that the relevant factors are, first, whether there is a reasonable explanation for the failure to file the Notice of Appeal within time, secondly, the prospects of success of the appeal and, thirdly, the question of prejudice depending upon the result of the application.

The reasons for the failure to file the Notice of Appeal within time

This is addressed in the affidavit of the husband filed on 27 October 2017, and what he says is that he prepared a Notice of Appeal and attempted to file it. Indeed, he sent it to the court on 28 September 2017, and that, of course, was a date just within the 28 day period. In fact it is the last day of that period.
Unfortunately, the Notice of Appeal was not able to be received because it suffered from a number of defects, and it was returned to the husband by the Appeal Registrar. The problem for the husband was then that the time period expired, and for the husband to pursue the appeal, he had to seek an extension of time, and that is what he has done. In my view, that is an adequate explanation for the failure to file the Notice of Appeal within time.

The merits of the proposed appeal

In relation to the prospects of success of the appeal, the question for the court is whether it is demonstrated that there is an arguable case on appeal, and, frankly, even the remotest chance of success is enough. In this regard the exercise is somewhat similar to the exercise required in determining an application for summary judgment, and it is sometimes expressed in another way, namely that unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies as a result of the consideration of all of the relevant factors, the appeal should be allowed to proceed. However, this is a case where it can safely be said that the appeal is hopeless and doomed to fail.
In his Draft Notice of Appeal filed on 27 October 2017, the husband has set out what I will describe as purported grounds of appeal as follows:
1.The law in relation to setting orders aside is found in section 79A of the Family Law Act.
1)There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information) the giving of false evidence or any other circumstance.
2)Person has defaulted a carring [sic] out an obligation imposed on person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or set the order aside and make another oder [sic] in substution [sic] for order.
3)That there was a de facto relationship at law between the parties after 1998 that had lasted more than two years.
As can be seen, none of those grounds are component grounds of appeal, and particularly, none of those grounds identify any appealable error by the primary judge. And that is the onus that is placed on an appellant, namely to demonstrate appealable error by the trial judge, and to repeat, there is no such ground of appeal in the Draft Notice of Appeal.
I appreciate that the husband appears without legal representation and has prepared his documents without the assistance of legal advice, although I note in his submission today he says that he sought the advice of three lawyers. I took that to mean however that that was advice in the lead-up to the hearing before the primary judge, rather than in relation to his application before the court today. I also appreciate that English is not the husband’s first language.
However, as has been said on a number of occasions, including by the High Court, lack of legal knowledge is a misfortune, not a privilege, and the onus still remains upon the husband to satisfy this Court that the appeal he seeks to pursue has merit. To repeat, in my view, that has not been demonstrated in the husband’s Draft Notice of Appeal.
Given that the husband is without legal representation though, I have very carefully read and considered her Honour’s reasons for judgment, and I cannot find anywhere in that judgment where her Honour has erred, either committing an error of fact, or law, or principle. Indeed, it seems to me that her Honour went further than she needed to in dealing with the application that was before her. It might just be a matter of interpretation, but the application before her Honour sought three orders, first, that the court set aside consent orders for property settlement made between the parties on 8 May 1998, secondly, that the court make such further and other orders as to the adjustment of property as it deemed appropriate and, thirdly, such further and other orders as the court deemed appropriate.
In relation to the first order sought, her Honour treated that as being an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”), and in that regard, I consider her Honour was correct. Equally, her Honour was correct in dismissing that application given that, as her Honour said at [7] of her reasons for judgment:
Nowhere in the husband’s material does he address that issue. There is nothing in his material which causes the Court to be satisfied of any of the matters set out in section 79A. …
Her Honour therefore found that the application to set aside the orders was misconceived, and she summarily dismissed it.
With the second order sought, her Honour has treated that as being an application for property settlement pursuant to the Act on the basis of there having been a de facto relationship. Frankly, I read the application differently. I read the second order sought as being nothing other than a consequential order, in the event that the consent orders were set aside pursuant to s 79A.
To repeat though, her Honour treated it differently, but that is not a criticism of her Honour. Indeed, in my view, it was quite generous to the husband for her Honour to treat that application in that way. Her Honour then proceeded to address that application on that basis, and concluded on the evidence before her that she was not prepared to find that there was a de facto relationship, and thus her Honour was not thereby able to make an order for property settlement.
In summary, and to repeat, having considered her Honour’s reasons for judgment, in my view, there is no appealable error made by her Honour, and importantly, and again to repeat, there is no appealable error identified by the husband in his Draft Notice of Appeal.
What I have said to date in relation to the prospects of success of the proposed appeal relate to the orders whereby her Honour effectively dismissed the application. As I indicated at the commencement of these reasons, I am proceeding on the basis that the husband is also seeking to be able to appeal against the costs order, and in that regard, there is absolutely nothing in the Draft Notice of Appeal directed to that issue. Certainly there is no ground of appeal identifying any appealable error by the trial judge in making the order for costs. Thus, that has to be in the same category as the proposed appeal against the orders whereby the application before the primary judge was dismissed, namely there is no merit in any proposed appeal against the costs order.
Indeed, as I did with the reasons in relation to the dismissal application, I have carefully considered her Honour’s reasons in relation to the question of costs, and I cannot see any appealable error made by her Honour in relation to that matter.

The prejudice to each of the parties

In relation to the issue of prejudice, as is common in applications such as these, there is prejudice to the husband in the event that the application is dismissed, but equally, there is prejudice to the wife in the event that the application is allowed.
The prejudice to the husband is that if his application is refused, he will not be able to pursue his appeal. The prejudice to the wife is that, if the application is allowed then she will have to deal with the appeal, whereas, as matters currently stand, there is no appeal on foot against the orders made on 31 August 2017. In dealing with the appeal she would have to instruct legal representatives, and expend money and time and effort in responding to the appeal.
The overarching issue to be considered is where the justice of the case lies, and in assessing that, I have identified the relevant factors. I am satisfied that there is an adequate explanation for the failure to file the Notice of Appeal within time, significantly, the proposed appeal has no merit and, there would be prejudice to each of the parties depending upon whether the application is allowed or dismissed.
The most significant factor is that the appeal has no merit, and it would be pointless to allow the appeal to proceed, even though I have found that there is an adequate explanation for the failure to file the Notice of Appeal within time. Thus, the application will be dismissed.
If it is any comfort to the husband, even if he had filed this Notice of Appeal within time, the first time that Notice of Appeal came before the court, it would have been dismissed for the very reason I am not permitting this proposed appeal to proceed, namely there is no merit.

Costs

I now have an application before me for costs on behalf of the wife.
The costs sought are $5,500 for solicitor’s costs and $3,500 for counsel fees, and I assume that those costs are calculated on an indemnity basis and are not on scale.
Counsel submits that there are circumstances here that justify an order for costs, namely and in particular, that the husband has been wholly unsuccessful and, more specifically, that the application was doomed to fail from the outset. As a result the wife has been put to costs in instructing legal representatives and being represented today by counsel.
Although, of course, the application has been wholly unsuccessful, this Court has a discretion in relation to costs.
Given the circumstances of the husband, particularly his financial circumstances, his age, and, in my view, his lack of understanding or appreciation of the legal niceties of this matter, I propose to dismiss the application for costs.
I also note that there has been no basis whatsoever put to me as to why I should order indemnity costs and, indeed, in a matter like this where there was no requirement to file anything in response, to suggest that costs can be incurred to the order of $5,500 by a solicitor is outrageous, and to suggest that counsel would come here and submit that his fees are $3,500 is equally outrageous.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 30 January 2018.

Associate:

Date: 12 February 2018