Edmonson and Edmonson - [2012] FamCAFC 141

FAMILY COURT OF AUSTRALIA

EDMONSON & EDMONSON

[2012] FamCAFC 141

FAMILY LAW – APPEAL – Application in an appeal seeking reinstatement of the appeal and extension of time in which to file appeal books – Where the appellant failed to file appeal books in time in circumstances where the content of the appeal books was still the subject of correspondence – The appeal should not be dismissed due to a technical irregularity – Appeal reinstated and extension of time granted.

APPLICANT:

Ms Edmonson

RESPONDENT:

Mr Edmonson

FILE NUMBER:

PTW

6992

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

8 March 2012

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

25 February 2011

LOWER COURT MNC:

PTW 6992 of 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

No appearance

Orders

The appeal be reinstated.
The time within which the Appellant had to file and serve the appeal books be extended by 21 days from today.
If practicable, and subject to the approval of the Senior Judge of the Appeal Division, the appeal be included for hearing in the Perth sittings of the Full Court in the week commencing 11 June 2012 with an estimated hearing time of half a day.
Paragraphs 10 and 11 of the orders made on 21 November 2011 remain in full force and effect.
The Form 21 Application is otherwise dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 9L of 2011
File Number: PTW 6992 of 2010

Ms Edmonson

Appellant

And

Mr Edmonson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The application before the Court this morning is the Form 21 Application in an appeal, filed on 14 February 2012, by the applicant wife, Ms Edmonson, who is also the appellant in the substantive appeal proceedings. The wife seeks a large number of orders, but in fact the relief that she is seeking, as she has just confirmed, is an order for the reinstatement of the appeal and for an extension of time within which to file the appeal books.
The respondent, Mr Edmonson, was not in attendance at the hearing. It is common ground that he received, or at least he asserts that he received, the application on 27 February 2012. As I have said, the application was filed on 14 February 2012. The applicant has indicated to me, and I accept, that the documents were not sent to her by the Court on that day, which is unfortunate, and in fact were sent to her quite some time afterwards and she received them on 21 February. She in turn then sent them to the respondent on 23 February.
Whilst the applicant is confident that the documents would have been available to the respondent on the following day, I am not entirely convinced of that, but in any event, he has had them since the 27^th. That means that he had all of last week and the working days of this week in which to do something about the application, noting, of course, that Monday of this week was a public holiday in Western Australia.
The respondent certainly had enough time in which to prepare quite a comprehensive letter setting out his position in relation to this matter. Given that he is not here, I have taken into account the content of that letter, notwithstanding that it is not in the appropriate form in which the Court would normally receive evidence and submissions.
What I consider is telling in relation to the matter is that the respondent in the past has been represented and has been represented by counsel at hearings before the Court in relation to the appeal. Whilst I accept that he has not had a great deal of notice of today’s proceedings, and whilst I accept that his work takes him to remote parts of the State, I consider that he has had sufficient time in which to arrange legal representation at this hearing.
I would not necessarily have taken the same approach had the subject matter of the application been such that there was likely to be some doubt in relation to the outcome of the application.
In my view, the merit of the application is close to overwhelming. It would not have been in any way likely, had the respondent been represented, or had he turned up in person today, that there is anything that he would have been able to say which would have convinced me that the applicant should not be permitted to have the appeal reinstated.
So in taking what might seem to be a somewhat bold approach in having the matter heard today in the absence of the respondent in circumstances where he has not had a great deal of notice of today’s hearing, I have, as I say, taken into account the merits of the matter.
As to the merits, the matter has had a rather unfortunate history, but it is accurately enough set out, in my view, in the chronology helpfully provided by the applicant in her affidavit.
In my view, that chronology provides support for the proposition that the applicant puts, and that is that by and large she has dealt with this appeal in a prompt and timely manner. In saying this, I note that, of course, there has already previously been an application to reinstate the appeal. In my view, that application had merit for the reasons that I gave on the last occasion when the matter was before me.
It needs to be taken into account that the applicant is a self-represented litigant and that the rules associated with appeals are complex and not readily understood even by lawyers, let alone self-represented litigants.
It is important to note that this application today essentially arises out of the orders made by the Regional Appeal Registrar on 21 November last year, in which she made an order for the appellant to file and serve a re-amended notice of appeal, which the appellant did. The Registrar made directions in generic form in relation to the content of the appeal books. She then directed that the appellant provide an amended index within 21 days, and that was a crucial order as far as today’s proceedings are concerned, and otherwise she ordered that the appellant file the appeal books on or before 31 January 2012.
Significantly, these orders were accompanied by other orders providing for the matter, if practicable, to be included in the March sittings of the Full Court, which commence on 26 March 2012.
What occurred after that was that on 9 December 2011 the appellant sent to the Court, as instructed, an amended appeal book index and concluded her correspondence by saying “Please do not hesitate to contact me if you have any comments or any further queries”.
On 12 December 2011, the Regional Appeal Registrar wrote to the appellant noting what the Registrar called deficiencies in the draft amended appeal book index and indicated that she required a further amended index within 14 days. The letter from the Regional Appeal Registrar concluded with an invitation to the respondent’s solicitor to make submissions as to whether any other documents were to be included or excluded from the appeal books.
On 23 December 2011, the appellant wrote to the Appeal Registrar acknowledging the last correspondence and forwarding, as requested, an amended index. On 4 January 2012, noting, of course, that the Christmas period had intervened, the Regional Appeal Registrar wrote to the appellant enclosing stamped copies of the amended appeal book index, together with a request that a copy of the amended index be provided to the respondent as soon as possible and again inviting submissions from the respondent’s solicitor as to whether any other documents were to be included or excluded from the appeal book.
Importantly, the letter concluded by saying “It is noted that the appeal books are to be filed on or before 31 January 2012”. That letter was copied to Mr Mather, who has been the counsel representing the respondent in earlier proceedings in this appeal.
Nothing further was received until 27 January 2012, when the respondent wrote to the Regional Appeal Registrar, copying in the appellant, and setting out certain views in relation to the content of the appeal book index. It is unnecessary to refer to the matters that he suggested required correction.
The Regional Appeal Registrar promptly responded on 30 January 2012, being the day prior to the books actually being required to be filed, and in that letter the Appeal Registrar indicated the portions of the comments made by the respondent with which she agreed and those with which she disagreed and indicated, although the letter itself was sent to the respondent, that the appellant should amend the appeal book index, especially in relation to two particular items. The Appeal Registrar also made comment in relation to the date on which the matter could be heard by the Full Court.
It seems to me possible, given the absence of any reference in the letter to the required date of filing of the appeal books, that the Appeal Registrar may have overlooked the fact that the appeal books were actually due the following day. I say that with great respect to the Appeal Registrar, who is exceedingly efficient, but has a very heavy workload in dealing not only with all of the matters relating to the appeals to the Full Court, but a separate workload in matters that she is required to undertake in the Family Court of Western Australia.
In any event, on 3 February 2012 the Appeal Registrar wrote to the parties noting that orders had been made on 21 November 2011 for the filing of appeal books, but as these had not been filed the appeal was taken to be abandoned. In giving that advice, the Appeal Registrar was entirely correct, notwithstanding the items of correspondence that had passed. The time for filing of the appeal books had passed, and the rules themselves provide that in those circumstances the appeal is deemed abandoned. The Appeal Registrar had no discretion in the matter.
In the meantime, however, by letter dated 30 January 2012, the appellant had written back to the Regional Appeal Registrar dealing with the correspondence from the respondent dated 26 January 2012. Significantly, the appellant indicated her agreement with the request by the respondent for the adjournment or rescheduling of the hearing of the appeal itself, due to the respondent’s work commitments.
It would appear from the content of that correspondence, supported by what the appellant had to say today, that she understood, reasonably, that in the event the time of hearing of the appeal was being put off, that the time within which other matters might need to be done could reasonably be expected to be extended.
However, on 9 February 2012 the Regional Appeal Registrar wrote to the appellant advising her that the correspondence she had just sent to the Registrar had crossed with her letter of 3 February and again noting that the appeal was deemed abandoned. It was in response to that correspondence of 9 February 2012 that the appellant then very promptly and appropriately filed the application on 14 February 2012 seeking the reinstatement of the appeal.
I accept the submission made by the appellant that it was not reasonable to anticipate that she could have filed the appeal books within the time prescribed by the order of 21 November 2011 in circumstances where the content of the appeal books themselves was still the subject of correspondence, particularly where there had been fairly significant delay on the part of the respondent in making his submissions in relation to the amended appeal book index.
I repeat that the letter to the appellant and to the respondent’s counsel was dated 4 January 2012 and yet no response to that was received until 27 January 2012, which was the death knell as far as the filing of the appeal books was concerned.
All that can be said is that this is an unfortunate turn of events, but completely understandable. It would not be appropriate for the appellant’s appeal, which she has otherwise diligently prosecuted since she took over the matter from her solicitors, to be dismissed due to nothing more than technical irregularities.
I think it significant that when the Appeal Registrar wrote to the appellant, with a copy to the respondent, dated 15 February 2012, that she said this:
In light of the series of communications with respect to the draft appeal book index, I inquire whether the respondent consents to the appeal being reinstated. If so, upon written consent from the respondent, orders could be made in chambers without the need for hearing on this issue.
The respondent says that he did not receive the copy of that letter which the Court should have sent to him. I do not know whether that is the case or not, but I have no reason to doubt it. However, he did, in fact, have a copy of the letter from the appellant when he sent his letter of 5 March 2012. Whilst, as I have indicated, the Appeal Registrar did not have any discretion in relation to the matter, she was effectively flagging to the respondent that given the series of communications relating to the draft appeal book index it would have been appropriate for the respondent to consent to the appeal being reinstated.
The only matter that the respondent has raised in his latest correspondence that would be of significance in determining whether I should exercise my discretion to reinstate the appeal is his comment in relation to the status of the substantive property settlement proceedings in the Family Court of Western Australia.
His question essentially is that what is the point with proceeding with an appeal which will not be heard until the middle of the year, in circumstances where the substantive proceedings are coming near to the top of the queue of matters awaiting a final hearing and it could reasonably be anticipated that a trial would take place in around September or October 2012.
The information that has been given to the respondent about the likely timing of the trial is probably close to accurate, if not entirely accurate, but it can never be easily predicted when a matter will, in fact, proceed to trial. Matters do not necessarily proceed at the time they should if the parties are not ready or, for example, there is some investigation by a forensic accountant being undertaken, which is something that the appellant has foreshadowed here.
Even if the matter were to be heard in September or October 2012, that would be after the hearing of this appeal, and if the matter did proceed in September or October 2012 the decision is likely to be reserved.
The subject matter of this appeal is the home in which the appellant and children are living. The matter is significant and it should not be the case that the appellant cannot have her grievance heard in relation to that important issue merely because of what I have described as technical irregularities in the conduct of the appeal.
Nothing else that the respondent sets out in his correspondence persuades me that the appellant should be denied the opportunity to have this significant issue determined by the Full Court, and accordingly I intend to grant relief along the lines sought by the appellant

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 March 2012.

Associate:

Date: 3 September 2012