Elgin & Elgin

[2014] FamCAFC 93

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN [2014] FamCAFC 93

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal against an order refusing an adjournment of trial – Where an appeal against the substantive property orders has been filed – Where the proposed ground of appeal is contained in the notice of appeal against the property orders – Where although a separate appeal against the order refusing an adjournment may not be necessary, to give leave may avoid procedural difficulties -  Where the respondent neither consents nor opposes the application – Where there is no prejudice to the respondent in allowing the extension of time – Application granted.

Family Law Act 1975 (Cth)

Gallo & Dawson (1990) 93 ALR 479

APPLICANT: Mr Elgin

RESPONDENT: Ms Elgin

FILE NUMBER: BRC 2909 of 2010

APPEAL NUMBER: NA 24 of 2014

DATE DELIVERED:: 2 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 2 June 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 July 2012

LOWER COURT MNC: [2014] FamCA 10

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Hartley Healy Family Law Specialists

SOLICITOR FOR THE RESPONDENT: Glezer Lanteri & Associates

Orders

1. The applicant be granted an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Forrest dated 18 July 2012, such Notice of Appeal be filed on or before 4.00 pm on 6 June 2014.

2. Appeal NA 24 of 2014 be heard concurrently with NA 6 of 2014.

3. A directions hearing regarding the appeals be listed for hearing during the week commencing 9 June 2014 at a date to be advised by the Regional Appeals Registrar with a view to all appeals being heard in the August Full Court sittings.

4. Costs of today to be reserved to the Full Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elgin & Elgin 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 BRISBANE

Appeal Number: NA 24 of 2014
File Number: BRC 2909 of 2010

Mr Elgin

Applicant

And

Ms Elgin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In an application in an appeal filed on 9 May 2014, the husband seeks an extension of time pursuant to s 94(2D)(a) of the Family Law Act 1975 (Cth) (“the Act”) to appeal from two decisions made by Forrest J during a trial.

2. The trial concerning property issues between the parties took place on 18, 19 and 20 July 2012. The judge received written submission on or about 10 October 2012 and made final orders together with the reasons on 17 January 2014.

3. A Notice of Appeal was filed on 14 February 2014 from those orders which is appeal NA 6 of 2014.

4. This application, at first, concerned two decisions of his Honour. The only one now relied upon was that on 18 July 2012 when an application by counsel for the husband for an adjournment of the trial was refused. The second, which I now understand is not to be pursued, was made by the judge on 19 July 2012 when he refused an application to have a single expert provide a further valuation to include some real property.

5. The Notice of Appeal filed 14 February 2014 complains in Ground 1 that the judge was in error in refusing to grant the adjournment, the particulars being:

   1.That His Honour erred in refusing to grant the Husband an adjournment of the trial in circumstances where:

   (a)the Husband received a single expert report of 374 pages the day prior to the commencement of the trial;

   (b)the Husband was prejudiced by the late receipt of such report aforesaid in that inter alia the report “overstates the value of the assets by some $12 million”;

   (c)the Husband was denied procedural fairness in the determination of property pool issues;

   (d)the course adopted by His Honour was manifestly unjust to the Husband in his position;

   (e)the course adopted by His Honour precluded the Husband and the Court having available to it the tax consequences which in para 2.11 of the single expert report she said “must be considered prior to the finalisation of any orders”;

   (f)the refusal to grant the Husband’s application for an adjournment was such that His Honour was unable to properly assess the relevant matters affecting the parties pursuant to section 79(4) of the Family Law Act 1975 (Cth).

6. Ground 2 as I have already mentioned is apparently not to be pursued.

7. In the proposed Notice of Appeal about which this application is concerned, it is contended that the refusal to grant the application was a substantial injustice. It is of some importance to note that the ground now proposed to be relied upon is the same as that to which is found in the Notice of Appeal filed on 14 February 2014 to which I have just referred.

8. Thus, these grounds can hardly be regarded as a surprise to the respondent in the appeal. Comprehensive submissions in appeal NA 6 of 2014 were filed on 23 May 2014 and in this application on 29 May 2014.

9. Mr Leembruggen, who appears on behalf of the respondent, has indicated appropriately that his instructions were neither to consent nor oppose this application.

conclusion

1. It can readily be seen that the application should be allowed. It is contended that the expert report over valued the Elgin Group by about $12,000,000, that there were errors in the report and that it was necessary to adduce further evidence. In particular, as recorded in the report, there was no consideration of the taxation consequences on the realisation of assets.

2. The report in its final form was only received the day before the trial. It is 374 pages in length.

3. Reference to well-known principles including Gallo & Dawson (1990) 93 ALR 479 reveal that in this case, there is a proper explanation for the delay and to refuse the extension of time to file the Notice of Appeal may well work a serious injustice to the husband. An important part of the husband’s appeal is the failure of the trial judge to allow the husband an opportunity to respond to the expert report. Whilst counsel has properly referred to a Queensland decision demonstrating that an appeal against a refusal to grant an adjournment may not be necessary, it certainly avoids any difficulties which may arise at the hearing of the appeal.

4. The discretion to grant an extension of time should be exercised in this case and as counsel has mentioned, there is no apparent prejudice to the wife.

costs

1. The costs of today will be reserved to the Full Court.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 2 June 2014.

Associate:

Date: 2 June 2014