Garth and Hope - [2011] FamCAFC 175

FAMILY COURT OF AUSTRALIA

GARTH & HOPE

[2011] FamCAFC 175

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO APPEAL – where there was substantial delay in filing the application – where there was concern as to the prospects of success of the appeal – where there was a long history of litigation between the parties – where there would be prejudice to the respondent if the application was granted – application dismissed.

Family Law Act 1975 (Cth) s 94
Family Law Rules 2004 (Cth) Ch 22

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

APPLICANT:

Mr Garth

RESPONDENT:

Ms Hope

FILE NUMBER:

ADM

3970

2006

APPEAL NUMBER:

2011

DATE DELIVERED:	29 August 2011
PLACE DELIVERED:	Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

18 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1304

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The amended Application in an Appeal filed by the father on 20 July 2011 be dismissed.
The question of costs be adjourned to 8:00am (CST) on Monday 5 September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Garth & Hope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 41 of 2011
File Number: ADM 3970 of 2006

Mr Garth

Applicant

And

Ms Hope

Respondent

REASONS FOR JUDGMENT

Introduction and background

There are two matters before me, namely an amended Notice of Appeal filed by the father on 7 April 2011 against orders made by Federal Magistrate Brown on 25 January 2011, and an amended Application in an Appeal filed by the father on 20 July 2011 seeking an extension of time to appeal against an order made by Federal Magistrate Brown on 9 December 2008.
The Notice of Appeal was before me for the purpose of making directions as to the hearing of the appeal, but I intend to address the Application in an Appeal first given that if an extension of time is granted and a Notice of Appeal is filed it is appropriate that the two appeals be consolidated and heard together. In effect they address the same issue, namely the question of whether the father should be able to pursue that part of his amended Application filed on

28 February 2007 seeking departure orders from child support assessments.
The Application in an Appeal was supported by affidavits filed by the father on 28 June 2011 and 20 July 2011. The father also annexed to the former affidavit a draft Notice of Appeal that he proposed to rely on in the event that an extension of time to file the same is granted.
The mother opposes the application in her response filed on 11 August 2011. She also relied on her affidavit filed that same day.
Despite this affidavit material there was still a paucity of evidence before me on this application, and I have, without objection by either party, read the material in the appeal file (SA 17 of 2011) including his Honour’s reasons for judgment delivered on 25 January 2011 and I have read some of the material from the Federal Magistrates Court file relating to that appeal and the Federal Magistrates Court file relating to this application.
There were a number of orders made by Federal Magistrate Brown on

9 December 2008, but the only order sought to be appealed against is paragraph 14 which provided as follows:
The application and response herein be otherwise dismissed.
The application that was before his Honour was the amended Initiating Application filed by the father on 28 February 2007 in which he sought both parenting orders and orders departing from child support assessments.
It is not apparent from the Federal Magistrates Court file whether the mother filed a response to that application, but it is apparent from her affidavit material that she opposed all of the orders sought by the father including the departure orders.
For reasons which I do not need to record the final hearing before the Federal Magistrate did not take place until 9 October 2008 after which his Honour reserved his judgment.
On 9 December 2008 the Federal Magistrate delivered his reasons for judgment and made the orders referred to above.
Clearly the effect of paragraph 14 of his Honour’s orders was to dismiss the father’s amended application in so far as it sought departure orders, and this is what the father seeks to complain about.
Following the final orders made on 9 December 2008 the mother applied for a child support assessment in respect of the child who returned to live with her pursuant to those orders, and an assessment was made as from 3 January 2009.
The father objected to this assessment unsuccessfully, but subsequently, on the basis of estimates of his income that he provided, the assessment was reduced.
In February 2010 the mother applied for a change of assessment and that application was determined on 29 April 2010. The senior case officer found that the father’s income was higher than his estimates and made a departure order for the periods 7 April 2009 to 8 April 2010 and 9 April 2010 to 30 June 2011. That determination resulted in the creation of an amount of arrears of child support payable by the father to the mother. The father then objected and his objection was allowed in part, but that still left substantial arrears of child support.
The result of the father’s objection then became the subject of an application to the Social Security Appeals Tribunal by the mother seeking a review.
Significantly, on 22 May 2010, the Child Support Agency garnisheed the father’s income tax refund of $10,723.37 to meet the arrears, and that became the subject of the next application filed by the father filed on 23 June 2010.
On 23 June 2010 the father filed an initiating application seeking an injunction restraining the Child Support Agency from “any and all assessment and/or administrative collection of child support” and an order that his initial application “for Departure of Child Support Assessment filed in the Family Court of Australia and transferred to the Federal Magistrates Court on

23 November 2006 be listed for trial directions”.
It became apparent during those proceedings and necessarily so that the application which the father sought to be listed was his amended application filed on 28 February 2007 in so far as it sought departure orders.
In his application the father also sought orders in relation to the amount of $10,723.37 collected by the Child Support Agency from the Australian Taxation Office.
The father’s application filed on 23 June 2010 was heard by Federal Magistrate Brown on 26 November 2010 and his Honour delivered his reasons for judgment on 25 January 2011. Inter alia, his Honour dismissed the father’s application, and that order is the subject of the amended Notice of Appeal filed on 7 April 2011.

Relevant statute law and rules

Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
(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
Sections 94AAA(10), (11) and (12) 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
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
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.
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.

Relevant legal principles

The law in relation to applications for extension of time is well settled. In these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479 and in particular, I refer to what McHugh J said 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 such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo & Dawson, is that the granting of an extension of time 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, where relevant, there are a number of factors which may need to be addressed, such as whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.

Discussion

The delay and the reasons for it

The delay is quite substantial. The final orders were made on 9 December 2008 and the appeal period expired 28 days after that. Yet it was not until 28 June 2011 that the father filed an Application in an Appeal seeking to challenge paragraph 14 of the orders. I note of course that the father first flagged that he was wanting to appeal against paragraph 14 of the orders when he filed a Notice of Appeal on 21 February 2011. That Notice of Appeal was defective in that it not only sought to appeal against the orders made on 25 January 2011, but also paragraph 14 of the orders made on 9 December 2008, and indeed other orders made even earlier than that. That defect has now been corrected with the amended documentation.
I also note that because the application filed on 28 June 2011 did not in fact seek an extension of time the father was obliged to file an amended application, which he did on 20 July 2011, and the Amended Application in an Appeal that is now before the Court is that application.
However, even allowing for this there is still a significant delay involved.
The father’s reason for the delay deposed to in his affidavit filed on 28 June 2011 was as follows:
7. I say that I did not bring this action earlier, as I had sought by way of an application in the case before Brown FM an action to have the Child Support Departure matter heard under the ‘slip rule’.
However, that explanation only covers the period of time between the filing of the application on 23 June 2010 and the attempts to seek an extension of time to file an appeal between February 2011 and July 2011. It provides no explanation for the delay between the expiration of the appeal period and

23 June 2011.
Then, in his affidavit filed on 20 July 2011 the father presented an entirely different reason, namely that he did not “genuinely believe that [the application] had been dismissed”.
Then finally, in his oral submissions during the hearing the father maintained that reason set out in his affidavit filed on 20 July 2011, but he added that his reason for not returning to court to pursue the application which he believed had not been dismissed was because he had to deal with a “series of applications” in relation to child support brought by the mother.
For my part I am not satisfied with the father’s explanations for the delay, at least between the date of the order and his application filed on 23 June 2010.
He gives the following reasons for his “belief” that the application for departure orders had been dismissed:
a)The Federal Magistrate did not mention or refer to the issue of the departure orders in his reasons for judgment published on 9 December 2008 or in the orders made on that day.
b)There had not been any evidence or argument presented on the topic of the departure orders.
c)His understanding was that the Federal Magistrate, with the agreement of the parties, had in effect put aside the issue of departure orders to be dealt with later or at another time in order to concentrate on the parenting issues. Indeed, the father relied on the following part of a paragraph from the reasons for judgment of the Federal Magistrate delivered on 25 January 2011 when his Honour was referring to the case that he finalised with his orders of 9 December 2008, as supporting this understanding:
67.Given the way the case proceeded, particularly in the light of Dr Savage’s recommendations, it was not possible for the court to deal with both a change of the children’s living arrangements, either permanently or on a trial basis, as [Mr Garth] primarily wished and with his departure application, which was predicated on the basis that both children would be continuing to live in Adelaide…
It is not correct to say that there was no evidence put before the Court in relation to the issue of child support. There was the father’s affidavit filed on 28 February 2007 in support of the amended application filed on that day and there was the mother’s responding affidavit filed on 20 March 2007 and her affidavit filed on 23 August 2007, which all addressed this issue and the parties’ financial circumstances generally. Further, as the mother has pointed out in her affidavit, in earlier hearings the father gave oral evidence in relation to this issue and as to his financial position.
It is correct though that no part of the hearing on 9 October 2008 was devoted to the presentation of any argument by either counsel on this topic.
It is also correct that there is no mention of the application for departure orders in his Honour’s reasons for judgment.
However, the reasons for that and why it was still appropriate to dismiss the amended application is explained in his Honour’s reasons for judgment delivered on 25 January 2011 when determining the application filed by the father on 23 June 2010.
Given that the father relies on statements of his Honour contained in a paragraph from those reasons in support of his application to extend time I consider it appropriate and necessary to have regard to those reasons, not only to put into context that part of the paragraph specifically referred to by the father, but to better understand what happened.
As is apparent from the amended application filed on 28 February 2009 the child support departure application related to the high costs incurred by the father in taking contact with the children whilst both lived in Adelaide. However, in the course of the proceedings during 2007 and 2008 his Honour ordered that the children live with the father in Brisbane for a trial period. That trial clearly had financial implications for both parties which his Honour recognised, and it was in that context that his Honour said what he did in paragraph 67, although it is necessary to set out the entire paragraph as follows:
67. Given the way the case proceeded, particularly in the light of
Dr Savage’s recommendations, it was not possible for the court to deal with both a change of the children’s living arrangements, either permanently or on a trial basis, as [Mr Garth] primarily wished and with his departure application, which was predicated on the basis that both children would be continuing to live in Adelaide, with their mother and [Mr Garth] would continue to have high costs relating to spending time with them regularly. In this situation, [Mr Garth] also preferred to pay the children’s school expenses, rather than making direct child support payments to [Ms Hope].
His Honour then continued in paragraph 68:
68. As I recall, neither party took exception to this approach, which was essentially dictated by considerations of practicality. For obvious reasons, [Mr Garth] was heartened by Dr Savage’s recommendations and anxious to give effect to the trial, no matter what its financial implications might be. In the reasons for judgment, I said as follows:
“[Mr Garth] has indicated his willingness not to seek child support from [Ms Hope], if the court embarks upon on (sic) the proposed trial. He has also indicated his willingness to pay all the costs involved in it, including flying [Ms Hope] between Adelaide and Brisbane to spend two weekends with the children. [Ms Hope] is not without family support in South East Queensland, where she has close family members living.”
Subsequently, the trial was extended and his Honour made orders about the costs of travel requiring the father to pay the major proportion thereof.
Then his Honour said this in paragraph 74:
74. Accordingly, the case had moved on considerably from a situation where the children were living in Adelaide and tending (sic) a private school there, an arrangement which had precipitated controversy between the parties so far as the assessment of child support was concerned. In essence, [Mr Garth’s] departure application had become otiose, at least as far as the trial period was concerned.

Following the trial period the hearing resumed and his Honour made his final orders on 9 December 2008 which put in place different arrangements for the children, namely one remained living with the father in Brisbane and the other returned to live with the mother in Adelaide.
Next, appreciating the financial consequences of such an outcome his Honour made, as part of the orders made on 9 December 2008, an order for the father to pay the majority of the costs of travel for the children between Adelaide and Brisbane.
It is quite apparent from how the hearing progressed before the Federal Magistrate in 2007 and 2008 and from the change in the children’s circumstances brought about by both the interim and final orders that the application of 28 February 2007 seeking departure orders was rendered “otiose” and required dismissal. To repeat, it was premised on the high costs incurred by the father in taking contact with the children whilst they both resided in Adelaide, and those circumstances no longer prevailed.
The father and his experienced counsel would have understood this and I do not accept the husband’s claim that he believed that the application in so far as it sought departure orders was still on foot.
Paragraph 14 of the orders is also quite specific and does not allow for any ambiguity. Again, the father had been involved in litigation initially in the Family Court of Australia and then in the Federal Magistrates Court since 1999, and at the relevant time he was represented by experienced counsel.
It is also telling that, if the father thought that the application for departure orders was still on foot, he still did nothing about it until at least 23 June 2010 when he filed his application which included seeking an order for the relisting of that application for departure orders. There was no appeal prior to that time, there was no request to apply the slip rule, and not even a request of the mother to agree to a variation of the order. The father was aware of his ability to request the application of the slip rule because the order was in fact changed in one respect by agreement pursuant to that rule.
The father does not tell the court when he realised that his alleged belief about the order was wrong, but what he does say is that he did not do anything because he was busy dealing with other child support applications brought by the mother. Again though I do not accept that. In the history of the litigation the father has not been one to delay pursuing what he perceives are his rights.
I find that the real reason for the father raising this issue was the fact that the Child Support Agency garnisheed his income tax refund in May 2010. Until then he was quite content to proceed on the basis that his application for departure orders had been dismissed as part of the orders made on 9 December 2008.

The merits of the appeal

On the basis that this is a child support matter it is thought necessary to first seek leave to appeal. Section 102A of the Child Support (Assessment) Act 1989 (Cth) provides that no appeal can be brought against an order made by a Federal Magistrate under that Act without leave.
I must say though that I am not necessarily convinced that an order dismissing an application which included seeking departure orders is in that category, thus, subject to some brief comments about the basis on which the father seeks leave to appeal, I will concentrate on the grounds of appeal.
As to leave the father says as follows:
1. I seek leave to appeal the Orders of BROWN, FM of 09 December 2008 to set aside the final Order which states “The application and response herein be otherwise dismissed”, based on the fundamental principle that the matters relating to Child Support were never heard, and were never set down for trial. To dismiss an application without legal basis, herraing (sic) or reason, is a fundamental injustice that can only be remedied by a successful upholding at Appeal.
2. The failure of the Court to hear my application has established extreme prejudice to me for a variety of reasons, including sever (sic) financial hardship, an inability to have the matters heard by any other route as such time for administrative relief has expired, and that such injustice cannot be rectified in any other way than by hearing tof (sic) the duly filed Child Support Departure Application in this Court.
In the event that leave is granted the grounds of appeal promoted by the father are as follows:
1.      The Federal Magistrate erre (sic) in law in dismissing the application of the applicant without hearing any matters relating to the Applicants (sic) request for Child Support Departure Orders, and by the failure to indicate in his judgement any reason for dismissing such application, such application was not properly dismissed.
2.      The Federal Magistrate erred in law by not further seeking to set out directions for hearing the Child Support Departure matters, as this became necessary due to the protracted nature of the “childrens (sic) matters” trial being conducted in 3 parts over 18 months, as further detailed in Federal Magistrate’s (sic) Brown’s Reasons for Judgement delivered on the 25^th January 2011 at paragraph 67.
3.      The ostensible dismissal of the Child Support eparture (sic) Application, without hearing or reason, exposes the applicant to extreme prejudice in both significant financial terms, and in a legal ability for the applicatn (sic) to have those matters heard in any other forum, because the application, being on foot, meant no other child support departure administrative processes were entered into by the Applicant from 2005 to 2009, and are now out of time for such administrative action.
It is impossible, and would be improper for me to express a concluded view about the prospects of success of the application for leave or the appeal. I can say though that ground 3 is not a ground of appeal that can be maintained. It does not allege any error by the Federal Magistrate in making the order that he did. The issue of prejudice though is highly relevant to the leave application given that the father needs to establish an error of principle or a substantial injustice, and it may be that leave would be granted on the basis of the prejudice alleged by the father. Beyond that, though, and given what I have found already in relation to the circumstances of the dismissal of the application I have difficulty in accepting that his Honour erred in making that order.
Thus, my initial view is that although leave may be granted, if it is required, I am not necessarily persuaded that the appeal has reasonable prospects of success.

Can hardship or injustice to the mother be compensated by an order for costs

I will address this factor when I come to deal with the consequences of granting or refusing the application.

The history of the proceedings

The parties have been in almost constant litigation since 1999. That litigation has been complex and has been concerned with property settlement, child support and children’s issues. As the Federal Magistrate observed, “[it] has consumed them, both financially and emotionally.” Yet it is still ongoing, and sadly the children have been exposed to it now for in excess of ten years.
As to the particular proceedings which are the subject of the application before me, they can be traced back to 2004 or 2005.
Surely then, the comment can be made that enough is enough, and that should bear upon whether the application before the court should be granted or refused. However, although that sentiment has substance, I do not consider that that alone can or should determine where the justice of the case lies. Further, it is not as though this is the last proceeding on foot. There is of course the appeal against the orders of 25 January 2011.

The conduct of the parties in the proceedings

I have very little evidence before me as to the conduct of the parties in the proceedings.
Of course, I have made findings against the father in relation to his “belief” that the application for departure orders remained on foot, and as to his attempts to explain the delay between the date of the order and at least the filing of his application on 23 June 2010. However, to take that into account under the heading of “conduct” would be to double dip, given that I have taken this into account already under the heading of “delay”.

The nature of the litigation

There is nothing here of any relevance that I have been referred to by either party or that I need to comment on of my own motion.

The consequences for the parties of granting or refusing the application

The father says that if he cannot appeal against paragraph 14 of the orders made on 9 December 2008 he will suffer prejudice because he has been assessed to pay more child support than he otherwise would have had to pay and he is now out of time to pursue “administrative processes” to claim “relief” from earlier administrative assessments.
There is no doubt that as a result of recent legislative reform the Child Support Agency cannot now deal with the prior assessments administratively, but the father is not entirely prevented from bringing applications to depart from them. They would need to be determined though under a very different legislative regime including the requirement to obtain leave, and there would be the prospect of a multiplicity of applications to the Federal Magistrates Court, and perhaps to the Social Security Appeals Tribunal.
However, two things must not be forgotten which either eliminate the prejudice entirely or at least reduce it substantially. Firstly, to grant an extension of time says nothing about whether the father will be successful on appeal and indeed I have serious concerns about the prospects of success. Secondly, the father still has on foot his appeal against the orders made by Federal Magistrate Brown on 25 January 2011, and if successful the order that he seeks is “that the child support departure application filed by the applicant on 23 February 2007 be set down for trial directions.” In other words, the same result as he seeks if this application is granted and the appeal is successful.
The other obvious consequence for the father if this application is refused is that there is no appeal from such an order. There is though the ability to make an application for special leave to appeal to the High Court of Australia, but that in itself is a difficult application to make, and the question is whether it would be warranted or indeed even successful in a case like this.
On the other hand, if I grant the application the mother says that she will be prejudiced beyond any injustice or hardship that can be compensated for by costs.
The mother raises the following matters:
a)She had a “legitimate expectation” that the order of 9 December 2008 finalised the father’s application for departure orders.
b)She will be put to “expense and inconvenience” to “defend the action”.
c)“The further protraction of these proceedings is contrary to the principles of justice.”
d)The father could have brought his application earlier.
The first issue must carry great weight. It is quite clear that both the application and the response were dismissed and the parties were then able to move forward not having to be concerned about prior issues relating to child support. Indeed, it is relevant to note that the child support proceedings brought by the mother after that final order were not related to the amended application of the father filed on 28 February 2007.
With the second issue, the answer must be that if the application is unsuccessful then the mother could have confidence that she would be awarded costs.
In relation to the third issue, that is clearly a consideration given the extensive history of litigation between these parties, but of course, there is still a further notice of appeal to be determined. Thus, refusing this application will not see an end to litigation.
As to the fourth issue, it is an obvious comment to make but if the father attended to this earlier he may have had a better chance of success.

Conclusion

Given my adverse findings as to the father’s attempts to explain his delay, the concerns that I have expressed as to the prospects of success of the proposed appeal, the doubt that there is any substantial prejudice to the father, and the prejudice to the mother if the application is granted, the justice of the case clearly requires that the application be dismissed.

Costs

I will leave any application for costs to be determined at the same time as the directions hearing that I propose to confirm for 8:00am on 5 September 2011 in relation to the amended Notice of Appeal filed by the father on 7 April 2011. However, I note that the mother did not have legal representation and costs may not be an issue.

The amended notice of appeal

To repeat, although this Notice of Appeal was before the court for directions and to list for hearing, I deferred addressing those matters until the outcome of the application seeking an extension of time was determined.
Given that I propose to dismiss that application the amended Notice of Appeal can be progressed.
At the hearing of 18 August 2011 I foreshadowed that I would relist the directions hearing for that amended Notice of Appeal at 8:00am on

5 September 2011. I will confirm that listing with the parties.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

29 August 2011.

Associate:

Date: 29 August 2011