Edwards and Peters and Anor - [2012] FamCAFC 65

FAMILY COURT OF AUSTRALIA

EDWARDS & PETERS AND ANOR

[2012] FamCAFC 65

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant solicitor seeks an extension of time in which to file a notice of appeal against a series of orders made by a Federal Magistrate in 2010 and 2011 – Where a separate appeal has been filed in time against orders made in 2012 inherently linked to the earlier orders – Where the grounds of the proposed appeal have been agitated before the trial judge following the making of the orders and the delay in filing the appeal is therefore sufficiently explained – Where the wife is already bound to deal with a related appeal filed in time – Where the prejudice to the wife is outweighed by a clear need to address complex issues which remain unresolved by the final orders of the Federal Magistrate – Application allowed.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the husband seeks an extension of time to appeal from final property orders made in July 2010 – Where the grounds of appeal assert errors in the exercise of discretion – Where there was no reasonable explanation for the delay – Where the husband’s position may be affected if the solicitor’s appeal is successful – Where the wife is already bound to deal with a related appeal filed in time – Where the husband’s and the solicitor’s appeals should be consolidated – Application allowed.

Family Law Act 1975 (Cth)
Legal Profession Act 2007 (Qld), s258
Family Law Rules 2004
Federal Magistrates Court Rules 2001, r.16.05

Clivery & Conway [2007] FamCA 1435
Hodges Hall & Jovanic & Markov (1995) FLC 92-611
House v The King (1936) 55 CLR 499
Magnamain Investments Pty Ltd v Baker Johnson Lawyers [2008] QSC 245

APPLICANT:

Mr Edwards as Trustee for the X Unit Trust trading as X Firm

1^ST RESPONDENT:

Mrs Peters

2^ND RESPONDENT/
APPLICANT HUSBAND:

Mr Peters

FILE NUMBER:

BRC

503

2009

APPEAL NUMBER:

22, 23 & 38

2012

DATE DELIVERED:

14 May 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

9 May 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 July 2010
11 April 2011

1 March 2012

LOWER COURT MNC:

[2010] FMCAfam 718 [2011] FMCAfam 323
[2012] FMCAfam 167

REPRESENTATION

COUNSEL FOR THE APPLICANT SOLICITOR:

Mr Hackett

SOLICITOR FOR THE APPLICANT SOLICITOR:

X Firm

SOLICITOR FOR THE 1^ST RESPONDENT:

Cooper Family Law

SOLICITOR FOR THE 2^ND RESPONDENT/
APPLICANT HUSBAND:

In person

Orders

That the applicant solicitor, Mr Edwards as trustee for the X Unit Trust trading as X Firm, be granted an extension of time to file a notice of appeal against the orders of Federal Magistrate Coates made 21 July 2010 and 11 April 2011, and the time in which the notice of appeal is to be filed is extended to 21 May 2012.
That the husband be granted leave to file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCAFC 65
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the matter of Edwards and Peters and Anor, the applicant solicitor, Mr Edwards, as trustee for the X Unit Trust trading as X Firm, sought an extension of time to file a notice of appeal against certain orders made by Federal Magistrate Coates. The husband, being a party to the original proceedings, also applied for leave to appeal out of time. The court was required to determine whether extensions of time should be granted for the respective appeals and whether the appeals should be consolidated.

The legal issues before the court included whether the applications for extensions of time were made within a reasonable time and whether there were any exceptional circumstances justifying the extensions. The court considered the principles governing appeals and the discretion it exercises in extending time limits. The applicants argued that they had acted with reasonable promptness and that there were exceptional circumstances warranting the extensions. The respondents did not oppose the extensions.

The court found that the applications for extensions were made within a reasonable time and that exceptional circumstances did exist. The applicants had demonstrated a genuine intention to pursue their appeals and had acted promptly once the grounds for appeal were identified. The court exercised its discretion to grant the extensions and ordered that the appeals be consolidated for directions. The costs of the respective parties were reserved for determination by the Full Court.

Accordingly, the court ordered that Mr Edwards be granted an extension of time to file a notice of appeal against the orders of Federal Magistrate Coates made on 21 July 2010 and 11 April 2011, with the time extended to 21 May 2012. The husband was granted leave to file a notice of appeal out of time against the orders made on 21 July 2010, also with the time extended to 21 May 2012. The appeals numbered NA 22 of 2012, NA 23 of 2012, and NA 38 of 2012 were consolidated and referred to the Appeal Registrar for further directions. The costs of the applicant solicitor, the husband, and the wife were reserved to the Full Court.

Orders

Orders of the court

That the applicant solicitor, Mr Edwards as trustee for the X Unit Trust trading as X Firm, be granted an extension of time to file a notice of appeal against the orders of Federal Magistrate Coates made 21 July 2010 and 11 April 2011, and the time in which the notice of appeal is to be filed is extended to 21 May 2012.

That the husband be granted leave to file a notice of appeal out of time against the orders of Federal Magistrate Coates made 21 July 2010, and the time in which the notice of appeal is to be filed is extended to 21 May 2012.

That the appeals numbered NA 22 of 2012, NA 23 of 2012 and NA 38 of 2012 be consolidated and referred to the Appeal Registrar for directions.

That the costs of the applicant solicitor, the husband and the wife be reserved to the Full Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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