Elton and Knights and Anor

[2007] FamCA 752

FAMILY COURT OF AUSTRALIA

ELTON & KNIGHTS AND ANOR [2007] FamCA 752

FAMILY LAW - APPEAL - Application to extend time to appeal – Consideration of application having regard to principles enunciated in Gallo v Dawson (1990) 93 ALR 479 – Property orders made by consent – Proposed grounds of appeal do not disclose any proper grounds of appeal - Prospects of success negligible - Application dismissed

Family Law Act 1975 (Cth), ss 94AAA, 117

Family Law Rules 2004, Ch 22

Clifton v Stuart (1991) FLC 92-194
Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT: Elton

RESPONDENT: Knights

SECOND RESPONDENT: Deputy Commissioner of Taxation

FILE NUMBER: SYM 5131 of 2006

APPEAL NUMBER: EA 74 of 2007

DATE DELIVERED: 26 July 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 19 July 2007

REPRESENTATION

ADVOCATE FOR THE APPLICANT: Mr Elton in person

COUNSEL FOR THE FIRST RESPONDENT: Mr Durston

SOLICITOR FOR THE FIRST RESPONDENT: Lawyers Central Pty Ltd

SOLICITOR FOR THE SECOND RESPONDENT: Ms Nash

SOLICITORS FOR THE SECOND RESPONDENT: Australian Taxation Office Legal Services Branch

Orders

1. That the husband’s application for an extension of time to appeal orders made by Federal Magistrate Housego on 5 April 2007 is dismissed.

2. That the husband pay the wife’s costs of the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

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 Elton v Knights.

IN THE APPEAL DIVISION  OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 74  of 2007
File Number: SYM 5131  of 2006

Elton

Applicant

And

Knights

First Respondent

And

Deputy Commissioner of Taxation

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 5 June 2007 the husband seeks an extension of time in which to file an appeal against consent orders made by Federal Magistrate Housego on 5 April 2007.

2. No Response was filed by the wife who was the first respondent in the Federal Magistrates Court. However, counsel appearing on her behalf orally opposed the application and sought that it be dismissed.

3. The husband did not name in his Application in a Case the other party to the proceedings namely the second respondent, the Deputy Commissioner of Taxation (“the Deputy Commissioner”).  However the application had been brought to the attention of the Deputy Commissioner. Ms Nash appeared on behalf of the Deputy Commissioner.  She also orally opposed the application.

Evidence

1. The husband’s application was supported by his affidavit filed on 5 June 2007.  I also granted leave to the husband to file in Court a further affidavit sworn 16 July 2007.  Much of the husband’s affidavit material was inadmissible or irrelevant to the issues to be determined in the application.  The husband asserted that the consent orders were “unjust”.  The husband deposed to receiving the consent orders on 13 April 2007 and that he was

   
   

   unable to read the same as he “had developed a problem with the only good eye in use; hence my friend and well-wishes [sic] informed me about the contents of the orders”.

Background

1. The following background is contained in the Court file and is not controversial:

   (a) The husband was born on 6 November 1945.

   (b) The wife was born on 21 September 1956.

   (c)The parties were married on 12 November 2002 and separated on 18 March 2005.  They were divorced on 22 February 2007.

   (d) On 14 June 2005 the wife filed an application for final orders for property settlement in the Family Court of Australia. She sought orders that the husband transfer to her the whole of his right, title and interest in a business in the ACT (“the ACT business”) and that she transfer to the husband all of her right, title and interest in a business in NSW (“the NSW business”). She sought further orders that the parties be jointly liable for business debts, and that the partnership, which conducted the two hairdressing salons, be dissolved. The ACT business and the NSW business were acquired with funds solely provided by the husband. The wife asserted she provided bookkeeping and other non-financial contributions to the ACT business and the NSW business. Both businesses, which were acquired from a franchisor, were operated by the parties through a partnership.

   (e) By Application in a Case filed on 8 July 2005 the wife sought injunctive relief to restrain the husband entering into either of the business premises in the ACT and NSW.

   (f) On 18 July 2005 Judicial Registrar Johnston, on the undertaking of the wife, made orders restraining the husband from entering the ACT and NSW business premises until 3 August 2005. On 3 August 2005 the injunction was, by consent, continued until 5 September 2005.

   (g) On 19 August 2005 the husband filed an Application in a Case in which he sought payment of the sum of $680.00 per week from the businesses.

   (h) On 5 September 2005 the husband’s application filed 19 August 2005 was dismissed, and again by consent, the injunction was continued “except as the parties may otherwise agree in writing.”

   (i) On 16 June 2006 the matter was transferred from the Family Court of Australia to the Federal Magistrates Court.

   (j) On 21 March 2007 by consent, the Deputy Commissioner, who had issued a Creditor’s Petition against the wife, became a party to the proceedings as second respondent.

   (k) On 5 April 2007 final orders under s 79 were made in accordance with a Minute of Order signed by the wife and her counsel, the husband and his counsel, and counsel for the Deputy Commissioner.  A further consent order between the wife and the Deputy Commissioner dismissed the Creditor’s Petition.

   (l) On 12 July 2007 machinery orders were made with the consent of the wife and the Deputy Commissioner, but not the husband, to implement the sale of the ACT and NSW businesses.

Proposed grounds of appeal

1. The husband’s proposed Notice of Appeal sets out the following grounds of appeal:

   1.I am appealing against the orders as I never consented to having the orders made.

   2. I specifically advised my Lawyer that I would like the matter to be heard in details [sic] and thereafter a decision made by the court.

   3. All the monies for the purchase of the two [premises] were solely paid by me and I was unfairly prevented by an injunction from going near the businesses, let alone helping to run the businesses. In this regard, can the injunction of the Court be justified?

   4. The respondent has siphoned away monies from the businesses for her own personal purposes and has failed to pay the creditors, including the Taxation Department. Hence she should be solely responsible for all the debts incurred.

   5. Investigations should be carried out to the fullest in order to unearth the truth, which will definitely surface, if tackled. No dust should be allowed under the carpet, but be swept off in order to arrive at the truth in the name of justice (which is every man’s birthright) creating a sense of harmony and peace in this chaotic world, unnecessarily created by people themselves. Therefore accordingly this matter should be re-heard.

Relevant statute law and rules

1. Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals to the Family Court from the Federal Magistrates Court. Section 94AAA(5) provides as follows:

   (5)  An appeal under subsection (1) or (1A) is to be instituted within:

   (a) the time prescribed by the standard Rules of Court; or

   (b)such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94AAA(10), (11) and (12) are also relevant. They provide:

   (10)  Applications of a procedural nature, including applications:

   (a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or

   (b) for leave to amend the grounds of an appeal under subsection (1) or (1A); or

   (c) to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d) to stay an order of the Family Court made in connection with an appeal under subsection (1) or (1A); or

   (e)for an extension of time within which to file an application for leave to appeal; or

   (f)for security for costs in relation to an appeal; or

   (g)to reinstate an appeal dismissed under a provision of the Rules of Court; or

   (h)to adjourn the hearing of an appeal; or

   (i)to vacate the hearing date of an appeal; or

   (j)to expedite the hearing of an appeal;

   may be heard and determined by a single Judge or by a Full Court.

   (11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.

3. Chapter 22 of the Family Law Rules 2004 deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal. 

3. The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 to 481 where McHugh J said:

   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 the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

   The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.

4. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Discussion

1. The submissions made by the husband were read to me by him from a document without apparent difficulty, particularly having regard to the fact that he said he was not fluent in English, and  notwithstanding his assertions about his eyesight.

2. During the course of the hearing the husband confirmed that the original signature appearing on the consent orders was his signature, and that he had signed the Minute of Order.

3. In determining this application I am satisfied it is convenient to consider the matters identified in the authorities as relevant to the granting of leave.  

Will strict compliance with the rules work an injustice on the applicant?

(a)      History of the proceedings

1. I have already set out the brief background of the proceedings leading up to the consent orders, and the further machinery orders made to facilitate implementation of the consent orders.

2. Although not strictly relevant to this application, I note the husband’s complaint in his affidavit about the injunction restraining him from entering the business premises. It is apparent from the Court file that after the initial injunction (which was limited in time) was granted, the injunction was thereafter maintained by consent orders (my emphasis).

(b)     The conduct of the parties

1. In dealing with this issue, I have already noted the procedural history.  Significantly the final order which the husband seeks to appeal was made by consent when he was legally represented and in accordance with a Minute of Order signed by him.  It is not submitted that the learned Federal Magistrate erred in the exercise of her discretion in making the order under s 79 on the basis that the orders were not just and equitable.  Further it is not submitted that there was any material put before the Federal Magistrate, or withheld from her, which vitiated the exercise of her discretion. 

(c)      The nature of the litigation

1. I take into account that the order the subject of the proposed appeal is a final order under s 79 which cannot be set aside or varied except by consent under s 79A(1A), or by the Court on application by one of the parties  under s 79A, or by successful appeal.   The husband’s present assertion that his lawyers acted contrary to his instructions is not of itself a proper ground of appeal. His remedy may be under s 79A (see Clifton v Stuart (1991) FLC 92-194 at 78,338) or elsewhere.

(d)     Consequence for the parties of the grant or refusal of the application for extension of time

1. Refusal of an extension of time leaves the parties with final property orders which can only be challenged as referred to above.

(e)     The prospects of success of the appeal

1. I have placed most weight on this factor when considering the husband’s application.  None of the five matters particularised by the husband disclose a proper ground of appeal.  There is nothing to suggest that if leave is granted the husband has any prospects of success in respect of the proposed appeal.

(f)        Can hardship or injustice to the respondent be compensated by an order for costs

1. There is no evidence before me of the value of the ACT and NSW businesses or the debt due to the Deputy Commissioner, or otherwise. The husband has a home unit in Israel. There is no admissible evidence before me of its value. The husband is presently living in public housing and in receipt of social security payments. Prima facie, whilst the husband’s financial circumstances in Australia are poor, he does have an asset in Israel which may be available to provide funds for costs in the event his appeal is unsuccessful, but enforcement would be problematic and costly. This fact also militates against granting leave.

(g)       Delay by the applicant and explanation for the delay

1. I do not consider the question of delay to be of significance.  Whilst the husband asserted he could not read the orders at the time they were sent to him, he offered no medical evidence in support of his claim.  He was able to readily identify his signature before me and to read his written submissions notwithstanding I allowed his nephew to sit at the bar table to assist him if he required.  He did not call on his nephew’s assistance.  However the period from the making of the orders and the filing of the application was not a lengthy period, and I have not placed significant weight on this factor.

Conclusions

1. The husband and wife appear to have limited property and financial resources.  They entered into final consent orders whilst they were both legally represented and asked the Court to make those orders.  The proposed grounds of appeal disclose no proper grounds of appeal and if leave was granted the prospects of success of any appeal are negligible.  There are other potential remedies available to the husband.  I am not satisfied in these circumstances that I should exercise my discretion in favour of the husband, and accordingly his application will be dismissed.

Costs

1. At the conclusion of the proceedings I sought submissions from the husband, the wife and the Deputy Commissioner on costs. The Deputy Commissioner did not seek costs. The husband sought no order as to costs and the wife’s counsel sought that the husband pay the wife’s costs as agreed and failing agreement as assessed on the basis that the husband did have an asset in Israel.

2. I have already discussed the husband’s financial position. There is no admissible evidence before me of the wife’s current financial position, although I am aware the Creditor’s Petition brought against her by the Deputy Commissioner was dismissed as a result of the consent orders. I am therefore not in a position to make a realistic assessment of the husband and wife’s comparable financial circumstances. I was not informed whether the wife was in receipt of legal aid. I accept that the husband has been wholly unsuccessful in this application and this is a relevant factor for me to take into account in determining whether there should be departure from s 117(1) of the Act.

3. In all of the circumstances it appears to me the most significant matter is that the husband sought an indulgence from the Court, and that he was unsuccessful in his application.  I find this warrants an order for costs in the wife’s favour.   

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate:

Date:  26 July 2007