Esperanza and Gimenez
[2014] FamCAFC 117
FAMILY COURT OF AUSTRALIA
| ESPERANZA & GIMENEZ | [2014] FamCAFC 117 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time or for failing to file the application expeditiously – where the appeal has no merit and is doomed to fail – where there is prejudice to both parties depending on the result – where the justice of the case requires the refusal of the application – application dismissed. |
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| APPLICANT: | Ms Esperanza | |||
| RESPONDENT: | Mr Gimenez |
| FILE NUMBER: | MLC | 9229 | of | 2012 |
| APPEAL NUMBER: | SOA | 37 | of | 2014 |
| DATE DELIVERED: | 4 July 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 July 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1102 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In person |
Orders
The application in an appeal filed on 28 May 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esperanza & Gimenez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 37 of 2014
File Number: MLC 9229 of 2012
| Ms Esperanza |
Applicant
And
| Mr Gimenez |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an application in an appeal filed by Ms Esperanza (“the applicant”) on 28 May 2014 seeking in effect an extension of time to file a Notice of Appeal against orders made by Justice Cronin on 20 December 2012.
I note that in the application, apart from the extension of time, what is also sought is, in effect, leave to present further evidence to the court. That is not an application that I can deal with. It is an application which would be heard by the Full Court if an extension of time is granted to allow the appeal to proceed.
In support of the application the applicant has filed two affidavits, one on
28 May 2014 and the other on 1 July 2014. Further, as she is required to do, the applicant has filed a draft Notice of Appeal being the Notice that she will proceed on if granted an extension of time.
Both parties have appeared without legal representation today, and I note that neither party was legally represented before Justice Cronin during the hearing which led to the orders that his Honour made on 20 December 2012.
I further note that the respondent, although he has not filed any documents, tells me today that he opposes the application.
Relevant statute law and rules of court
Section 94 of Family Law Act 1975(Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court of Australia.
Section 94(1) of the Act provides as follows:
(1)Subject to sections 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i)under this Act; or
(ii)under any other law; or
…
Section 94(1A) provides:
(1A)An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of court or within such further time as is allowed in accordance with the standard Rules of Court.
Section 94(2D) provides:
(2D)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2E) provides that the Rules of Court “may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.”
Section 94(2F) provides:
(2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 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.
In this case, as I have said, the orders were made on 20 December 2012, and thus a Notice of Appeal in compliance with the Rules would have needed to have been filed within 28 days after that date. That was not done and that of course is the reason why this application has been made. Significantly though, this application was filed on 28 May 2014 which is approximately 16 months after the expiry of the 28 day time period.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J said this 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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the proposed appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the case, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
In this case it seems to me that the relevant factors that I need to consider are first, any explanation for the failure to comply with the timeframe provided in the Rules, secondly, the merits of the appeal and thirdly, any prejudice that may be caused to any party depending upon the result of the application.
Neither the applicant, nor indeed the respondent, has addressed me on issues such as the history of the proceedings, the conduct of the parties in the proceedings, or the nature of the litigation. There is also no evidence before the court in relation to those matters which can inform the decision I make today.
Discussion
Adequate Explanation
There is a period of 28 days provided in the Rules in which to file a Notice of Appeal. That was not done, and then, to repeat, nothing was done until May 2014, some 16 months after the expiry of the 28 day time period.
I have read the affidavits filed by the applicant in support of this application, and it is difficult to discern from those affidavits any reasons, or explanation, for the failure to comply with the timeframe provided in the Rules for the filing of a Notice of Appeal, or for the failure to file the application before me today within a reasonable time of the expiry of the 28 day period. I consider that latter circumstance as important a consideration as the failure to file a Notice of Appeal within the 28 day time period.
To highlight that, a perusal of the first affidavit filed by the applicant on
28 May 2014, reveals no explanation, and no reasons, for the failure to comply with the timeframe, or for the delay in filing the application before me today. With the second affidavit filed by the applicant, to put it at its highest, what can be gleaned from that affidavit is that, and I am referring to paragraph 8, English is her second language, and it has been impossible for her to get a solicitor, either through Legal Aid or privately, who would take her case. She also says in paragraph 9 that she has concerns for her safety, she has had frequent panic attacks, and she had an intervention order some time ago against the respondent. Beyond that there is nothing.
Given that, I gave the applicant the opportunity today to tell me what the reasons were. Unfortunately, the applicant was not responsive to that question but eventually she said that it had been a difficult job to bring this application herself, she has attempted to obtain legal assistance but no-one would take her case, she has had as she describes it, a bad time with solicitors, there have been too many solicitors, and she has been told it is too complicated.
In relation to those comments, in my view, they do not in any way explain or provide an adequate reason for the failure to comply with the timeframe under the Rules for filing a Notice of Appeal. Although the applicant says it has been a difficult task, she has nevertheless managed to file an application, two affidavits in support, and a draft Notice of Appeal.
I find that there is no adequate explanation, and no adequate reason, for the failure to file the Notice of Appeal within time and as I say, equally as significantly, no adequate reason and no satisfactory explanation as to why it has taken some 16 months to file this application before me today.
The merits of the appeal
As I have indicated the applicant filed a draft Notice of Appeal on 28 May 2014 and the grounds of appeal that she set out in that draft Notice are these:
1.His Honour made an error counting with only verbal evidence which was false.
2. My evidence was not being see it.
3.In 2010 the ex-husband should transferred $20,000-thouthans [sic] plus interest by Telstra.
4.To sell 2 lot of Telstra share and paid to the ex-wife the full amount they were sold but never the wife was paid.
5.The ex-husband denie [sic] to have access to his superannuation but the defendant had access 2010 (2 years before the hearing 2012).
I am not particularly concerned about the awkwardness of those grounds of appeal, or the grammar, or the words used; I obviously accept and understand that English is the second language of the applicant and that is why the grounds of appeal are framed in that way. However, the difficulty for this court is that the Appeal Court nevertheless needs to understand and appreciate what the challenges are to the orders made by the trial judge. It is difficult in the extreme to discern from the five grounds of appeal what I will describe as proper, and recognisable, grounds of appeal, alleging appealable errors by the trial judge.
Today the applicant has elaborated on her complaints, and although these matters are not specifically set out as grounds of appeal in the draft Notice of Appeal, and were put to me in the context of submissions in support of her application, nevertheless it seems to me I should repeat them. In summary what the applicant says is that it was an “unfair trial”, the trial judge did not “check the documents”, he believed the respondent, and he did not want to see any of the applicant’s documents. Thus, as can be seen, the applicant’s complaints are very much around the evidence that was put before the trial judge, both written and oral, and how his Honour dealt with that evidence.
In many cases that come before me of this nature namely, applications to extend time, it is usually not possible for me to be definitive in assessing the merits of the appeal. There is limited documentation, namely, the reasons for judgment of the trial judge and the draft Notice of Appeal filed by the applicant. The court does not have the full range of documentation that would be before a Full Court hearing the appeal. For example, the Full Court would have the benefit of the transcript of the hearing before the trial judge, as well as the documents before the trial judge and the summaries of argument of the parties.
In those circumstances the only question for me is whether it is apparent that there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success, then that is enough. In that regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies, the appeal should be allowed to proceed.
Applying those principles here, I have expressed the difficulties that I have with the grounds of appeal, and to repeat, it is extremely difficult to discern from them any challenge which could be treated as raising, or identifying appealable errors by the trial judge. Nor has the task been assisted by what the applicant has said to the court today. To simply assert that the trial was unfair, or that the trial judge believed one party as opposed to the other, or that the trial judge did not look at all the documents, does not provide a basis for appellate interference. Thus, the appeal as drawn can be described as hopeless and doomed to fail. It has not been demonstrated that there is an arguable case on appeal.
Given that, and given that the applicant appears without legal representation, I have closely perused the reasons for judgment delivered by the trial judge on 20 December 2012, to try and ascertain whether there may be any basis for a successful appeal. Having done that, I conclude that there is no appealable error that emerges from those reasons for judgment.
The consequences of granting or refusing the application
Turning now to the prejudice to the applicant if I refuse the application, and the prejudice to the respondent if I grant the application.
If the application is granted the applicant would be able to proceed with her appeal. That creates an obvious prejudice to the respondent. As the matter presently stands, there is no appeal on foot and the respondent is able to proceed on the basis that the orders of the trial judge are in place and there is no issue about them. However, if the appeal is able to proceed, the respondent will have to deal with it both in terms of time, and maybe expense. There is also the extra prejudice that the respondent would suffer given the significant period of time that has elapsed between the judgment and now.
On the other hand, if the application is refused the applicant would not be able to pursue her appeal. Clearly that would be prejudicial to her. Although there is no appeal to the Full Court from a decision refusing the application, the applicant of course would have the ability to apply for special leave to appeal to the High Court of Australia. However, that would be a difficult exercise and may not be warranted in this case. Given that that would be the only course open to the applicant, to repeat, refusal of the application would cause prejudice to her.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors here informs the court in determining the fundamental issue, namely, where the justice of the case lies.
I have found that the applicant has not demonstrated any adequate reasons or adequate explanation for her failure to file a Notice of Appeal within the prescribed time, and also there is no explanation or reason for the failure to file the application that is before the court today before May 2014.
I have also found that there is no arguable case on appeal.
The only factor then in favour of granting the application is the prejudice that I have found that the applicant would suffer if I dismissed it. However, I cannot, and do not, ignore the prejudice that the respondent would suffer if the application was granted.
In these circumstances, the interests of justice require that the application be refused.
I certify that the preceding forty-one (41) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 4 July 2014.
Associate:
Date: 8 July 2014
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