Fegley and Salway - [2017] FamCAFC 81

FAMILY COURT OF AUSTRALIA

FEGLEY & SALWAY

[2017] FamCAFC 81

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time in which to file an application for costs in respect of a discontinued appeal – Where the delay in filing the application was minimal – Where the application for costs is sufficiently arguable – Application allowed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.42

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Fegley

RESPONDENT:

Ms Salway

FILE NUMBER:

SYC

6044

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

16 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

16 March 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 April 2016

LOWER COURT MNC:

[2016] FamCA 341

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Charles solicitor

SOLICITOR FOR THE APPLICANT:

H A Miedzinski Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Crawford solicitor

SOLICITOR FOR THE RESPONDENT:

Crawford Ryan Lawyers Pty Ltd

Orders

The time in which the applicant may file an application for costs in respect of the discontinued Appeal EA80/2016 is extended up to and including 23 March 2017.
That the respondent will pay the applicant’s costs of and incidental to today’s appearance but otherwise there are no costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 80 of 2016
File Number: SYC 6044 of 2013

Mr Fegley

Applicant

And

Ms Salway

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 24 February 2017, Mr Fegley (“the applicant”) seeks an extension of time in which to seek the costs of a discontinued appeal. On 15 April 2016, Le Poer Trench J determined parenting proceedings between the applicant and Ms Salway (“the respondent”). Interim orders were made that their son live with the applicant.
The respondent was not satisfied with these orders and on 12 May 2016 filed a Notice of Appeal. Appeal books were filed by her in August 2016. The appeal was listed for hearing on 7 February 2017.
On 2 February 2017, the solicitors acting for the applicant received a letter from the respondent’s solicitor attaching an unsealed copy of a Notice of Discontinuance. No indication was given that the Notice had already been filed. The Notice of Discontinuance was, in fact, filed on 25 January 2017. The applicant’s solicitors became aware of that on 6 February 2017.
An application for costs of a discontinued appeal must be filed within 28 days of the filing of the Notice of Discontinuance (see r 22.42(3) of the Family Law Rules 2004 (Cth)). As the Notice of Discontinuance was filed on 25 January 2017, any application for costs had to be made by 22 February 2017.
Thus, the application for costs was filed two days late. Nonetheless, the respondent opposes the application. In doing so, she asserts that a sealed copy of the Notice of Discontinuance has not yet been received from the Court. The court records show that a sealed copy of the Notice of Discontinuance was emailed to the respondent’s solicitor’s firm. I accept, of course, the respondent’s solicitor’s assurance that he did not see that email.
The respondent also relies on the following passage in the letter from the applicant’s solicitor of 19 January 2017, where it was said:
We note in any case that your client has not complied with paragraph 9 of the Orders made 29 June 2016. We presume non-compliance is connected to the discontinuance of the appeal that was foreshadowed when each of the parties consented to the matter being listed for hearing in the Family Court Rolling Lists commencing 27 February 2017. In view of non-compliance, we are instructed to place you on notice that if the appeal remains on foot, we shall cause the matter to be listed before the Appeal Division and seek the costs of and incidental to such Application.
That passage indicates that the applicant suspected a discontinuance was in the offing but of course does not give any assistance as to any knowledge of when the Notice of Discontinuance might be filed.
In considering whether to reinstate an appeal, the Court will have regard to what was said by McHugh J in Gallo v Dawson (1990) 93 ALR 479 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. 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, and the consequences for the parties of the grant or refusal of leave, and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice on the applicant.
The first issue is whether there is a reasonable explanation for the delay. The applicant did not become aware that a Notice of Discontinuance had been filed on 25 January until his solicitors informed him on 6 February 2017.
As I have already observed, it is not sufficient to submit that as the applicant may have suspected as early as 19 January 2017 that the appeal would be discontinued, this in some way overcomes the absence of notice of the actual discontinuance of the appeal. The respondent could have, but did not, inform the applicant of the date when the Notice of Discontinuance was filed. The present application was filed 18 days after the applicant actually became aware on 6 March 2017 of the discontinuance. The delay of two days is minor and in my opinion has been satisfactorily explained.
The applicant submits that as the appeal was only discontinued shortly before it was due to be heard, it was entirely unsuccessful and that he incurred legal costs unnecessarily. That is enough to indicate that the application for costs has sufficient merit to justify an extension of time. A finding that the application is arguable does not, of course, mean that any application for costs in due course will be successful; that will depend upon a full consideration of the matters raised in s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
The respondent opposes the application and submits that an issue arises “as to whether the father has actually incurred costs in the conduct of the proceedings and, by way of inference, the conduct of the appeal proceedings”. The submission is that the maternal grandmother has assisted the applicant with his legal fees and that in response the applicant has introduced the children of the marriage to her without the respondent’s knowledge. Apparently, this led to the primary judge who heard the final property and parenting matters in March 2017 to require submissions on champerty. Judgment has yet to be given.
It is not at all obvious to me that these matters are relevant. The crimes and tort of champerty and maintenance were abolished in New South Wales by the Maintenance and Champerty Abolition Act 1993 (NSW). This Act was replaced by the Maintenance, Champerty and Barratry Abolition Act 1993 (NSW), which was repealed with effect from 8 July 2011. Whilst there is a view that such conduct, even if not a tort or a crime, remains illegal (see section 6 of the first mentioned Act), that is by no means settled – see, as an obvious example, the abundance of commercial litigation funding and litigation lending. I am not satisfied that even if there is some merit in these submissions, that would render the application for costs to be of so little merit that the application for an extension of time should be refused.
The respondent also relied upon without prejudice letters that were sent to the applicant’s lawyers on 21 December 2016 and 16 January 2017. Notwithstanding they were without prejudice letters that ought not to have been annexed to the affidavit, no objection was taken to them, and indeed, the applicant was prepared to have them taken into account. In those letters, an offer was made by the respondent that she would discontinue the appeal if no order was made as to costs. On 19 January 2017, those offers were rejected by the applicant.
Nonetheless, the respondent submits that the effect of these letters is that there is very little merit in the applicant’s application for costs. This is because those letters indicate that a reasonable offer was made to settle the proceedings and that as it was unreasonably refused, the prospects of success on any application for costs is low. I am, of course, not hearing the costs application itself; however, even taking those submissions into account, I remain of the view that the application for costs is sufficiently arguable so as to justify the extension of the time in which to bring it.
I am therefore accordingly satisfied that the application should be granted.

Oral application for costs of this application

The applicant seeks an order for costs, the costs of this application to be paid by the respondent on the basis that the applicant was wholly successful.
Costs are governed by s 117 of the Act and in the ordinary course each party is to bear their own costs. The Court may make a different costs order when the circumstances justify doing so and, if considering to make such an order, must take into account the matters raised by s 117(2A).
The only matters raised by the parties were the conduct of these proceedings and the lack or otherwise of success. Notwithstanding that, the reasons for the delay, the applicant did need to come to court, in any event, to seek an order from the Court and, to that extent, sought an indulgence from the Court.
In the ordinary case, no order for costs would be made for those very reasons; however, there is an additional fact here, which is there was a significant contribution to the delay, in that the respondent did not inform the applicant of the date she filed her notice of discontinuance. Secondly, the respondent could have but did not consent to this application, which in my opinion was one that, in the ordinary course, would have been consented to.
Taking these matters into account, the order as to costs will be that the respondent pay the applicant’s costs of and incidental to today’s application, but otherwise there be no order as to costs.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 March 2017.

Legal Associate:

Date: 4 May 2017