Ferreday and Layh (No 2)

[2019] FamCAFC 112

FAMILY COURT OF AUSTRALIA

FERREDAY & LAYH (NO. 2) [2019] FamCAFC 112

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory reason for the failure to file a Notice of Appeal within time – Where there is no merit in the appeal – Where the prejudice falls heavily on the respondent – Where the application should not have been accepted for filing – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify an order for costs – Costs ordered in favour of the respondent in the sum of $1,000 plus GST.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT: Mr Ferreday

RESPONDENT: Ms Layh

FILE NUMBER: ADC 122 of 2015

APPEAL NUMBER: SOA 29 of 2019

DATE DELIVERED: 1 July 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 1 July 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDER DATE: 11 April 2019

LOWER COURT MNC: [2019] FamCA 349

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Robinson

SOLICITOR FOR THE RESPONDENT: Southern Community Justice Centre

Orders

1. The Application in an Appeal filed on 27 May 2019 be dismissed.

2. The applicant father pay the respondent mother’s costs of and incidental to the Application in an Appeal filed on 27 May 2019 fixed in the sum of ONE THOUSAND DOLLARS [$1,000] plus GST.

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 Ferreday & Layh (No. 2) 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
 ADELAIDE

Appeal Number:  SOA 29 of 2019
File Number:  ADC 122 of 2015

Mr Ferreday

Applicant

And

Ms Layh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before the court is an Application an Appeal filed by Mr Ferreday (“the father”) on 27 May 2019, seeking an extension of time to file an appeal against orders made by Berman J on 11 April 2019. Those orders were orders for costs which provided for the father to pay the costs of Ms Layh (“the mother”) and the Independent Children’s Lawyer (“ICL”), with those costs to be paid on settlement of the sale of a property at C Town.

2. The orders were made on the application of the mother, and the ICL, in relation to an application made by the father seeking a stay of final parenting and property settlement orders made on 24 August 2018. The context of that application for a stay was that the father had filed a Notice of Appeal against those final orders, and that appeal was heard by the Full Court on 25 March 2019. Judgment was reserved, and was ultimately delivered on 13 June 2019, when the appeal was dismissed, and orders were made for the father to pay the costs of the mother and the ICL. At the time of the application seeking a stay though, that appeal obviously had not been heard, and on 11 April 2019, when his Honour heard and dealt with the application for a stay, and dismissed it, the appeal had been heard, but judgment had not yet been delivered.

3. The application seeking an extension of time is opposed.

4. The application, to repeat, was filed on 27 May 2019, and it is supported by an affidavit filed on that same date, and as is required, a Draft Notice of Appeal, being the Notice of Appeal that the father would want to pursue if he was granted an extension of time.

5. The Family Law Rules 2004 (Cth) provide for a Notice of Appeal to be filed within 28 days of orders being made. No Notice of Appeal was filed in this matter within that timeframe, although the father tells me that he made at least two and possibly three attempts to file a Notice of Appeal, but they were not accepted for filing. In any event, he found himself out of time and that then led him to file the application before the court today.

6. The principles that are applied in relation to such applications are well known, and I need do no more than refer to the oft-quoted High Court decision in Gallo v Dawson (1990) 93 ALR 479 where 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.

7. There are a number of factors to be looked at, but there are three factors which are commonly addressed in such circumstances. First, the reasons, if there are any, for the failure to file a Notice of Appeal within time, secondly, the merits of any proposed appeal, and thirdly, any prejudice to either party depending on the result of the application for an extension of time.

8. In this matter, in relation to the first factor, namely the reason for failing to file a Notice of Appeal within time, it is virtually impossible to discern from the lengthy affidavit filed by the father in support of the application, and by lengthy, the affidavit extends for some 23 pages, any reason for failing to file a Notice of Appeal within time. The most that can be said, and it has been referred to in oral submissions today, is that the father has some difficulty in being brief in the documents that he files, and that was a difficulty that confronted him in filing a Notice of Appeal within time. For my part that does not provide a satisfactory reason for the failure to file a Notice of Appeal within time.

9. Turning to the second factor, namely the merits of the appeal. I can say categorically that having read the affidavit I have just referred to, and having read the Draft Notice of Appeal to which I have also referred, there is no merit whatsoever in the proposed appeal. The 23 pages of the affidavit, and the 18 pages of narrative in the Draft Notice of Appeal under the heading “Grounds of Appeal”, do not reveal any appealable error by the primary judge in making the orders for costs. Indeed, there is barely a reference to the issue of costs in any of those extensive pages of the affidavit and the Draft Notice of Appeal. What one finds in those documents is a rehash of the long held complaints that the father has, and particularly in relation to the reasons for judgment of the primary judge, when his Honour made orders determining the parenting and property settlement issues. I might say, those complaints were also the subject of the appeal the father took against those orders.

10. This is not a forum for the father to revisit those matters. His Honour determined them and the Full Court has upheld his Honour’s decision and dismissed the appeal. It is not open to the father to revisit those matters and include his complaints in relation to them, and his views and his thoughts as to those issues, in the application that is before the court.

11. Indeed, this application should not have been received for filing. It has now had to come before a Judge of the Appeal Division, and a hearing has had to be convened which has been an absolute waste of time, a waste of taxpayer’s money, a waste of the mother’s time and her legal representative’s time.

12. Turning to the third factor, namely prejudice. The prejudice suffered here falls heavily on the mother. She has had to address this irrelevant and unnecessary application, and brief legal representatives to appear today.

13. In summary then, all of the factors point to this application being dismissed, and the justice of the case requires that.

14. I now have an application for costs made on behalf of the mother.

15. The amount sought is for counsel fees in the sum of $1,000 plus GST.

16. The father has not specifically consented nor opposed that application. What he has put to me is he has no basis for submitting otherwise, but I am not going to take that as a consent to the application.

17. In my view, there are circumstances which justify an order for costs being made, and those circumstances appear, I suggest, pointedly, in my reasons for judgment just delivered in relation to the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 1 July 2019.

Associate: 

Date:  11 July 2019