Gazal and Belros (No 3)
[2014] FamCAFC 198
•13 October 2014
FAMILY COURT OF AUSTRALIA
| GAZAL & BELROS (NO. 3) | [2014] FamCAFC 198 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant failed to file documents in accordance with orders previously made namely, an amended application, affidavit in support and draft Notice of Appeal – where the result of that non-compliance was that the application in an appeal was dismissed pursuant to a self-executing order – where the fresh application is opposed – where the application dismissed was not dismissed on its merits and thus a fresh application can be pursued again – applicability of Rule 11.03 of the Family Law Rules 2004 (Cth) – where the interests of justice can only be served by allowing the fresh application for an extension of time to proceed – where there is an adequate explanation for the failure to file a Notice of Appeal within time – where there is an arguable case on appeal – where the interests of justice require that the application be granted – time to file a Notice of Appeal extended. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs regardless of the result in the sum of $1,400 – where the applicant conceded that in the circumstances of the application an order for costs could not be opposed – where the applicant asks for six months to pay – where six months to pay is entirely inappropriate in the circumstances – costs ordered as sought by the respondent to be paid by 30 January 2015. |
| |||
| APPLICANT: | Mr Gazal | ||
| RESPONDENT: | Ms Belros |
| FILE NUMBER: | MLC | 10089 | Of | 2010 |
| APPEAL NUMBER: | SOA | 8 | Of | 2014 |
| DATE DELIVERED: | 13 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 22 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1268 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levine |
SOLICITOR FOR THE APPLICANT: | Allan McMonnies |
| COUNSEL FOR THE RESPONDENT: | Mr McConchie |
| SOLICITOR FOR THE RESPONDENT: | Buller McLeod Pty |
Orders
The application in an appeal filed on 29 August 2014 be permitted to be heard and determined by this Court.
The amended Notice of Appeal filed on 14 July 2014 be uplifted and returned to the applicant.
The time for the applicant to file and serve a Notice of Appeal be extended to the close of business on 20 October 2014.
The applicant father pay the costs of the respondent mother of and incidental to the application in an appeal fixed in the sum of $1,400, such costs to be paid on or before the close of business on 30 January 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gazal & Belros 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 8 of 2014
File Number: MLC 10089 of 2010
| Mr Gazal |
Applicant
And
| Ms Belros |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by
Mr Gazal (“the applicant”) on 29 August 2014.
That application is supported by an affidavit of the applicant also filed on
29 August 2014, and what I will treat as a draft Notice of Appeal dated 14 July 2014.
The following orders are sought in the application:
1.I am seeking an extension of the time to file and serve an amended application and supporting documents set out in paragraph 1 of the orders made on 8 May 2014 on the grounds set out in the accompanying affidavit.
2.I am applying for an order for relief from my failure to file the amended application and supporting documents in accordance with the orders made on 8 May 2014 and 8 July 2014 pursuant to
Rule 11.03 of the Family Court Rules.3.I am applying for an order that the appeal be reinstated pursuant to Rule 22.44 of the Family Court Rules
4.I am seeking an extension of time within which to file a Notice of Appeal.
The application is opposed by Ms Belros (“the respondent”).
As is apparent, the orders sought in the application are somewhat confusing, repetitive, even internally inconsistent, and in at least one respect unable to be pursued (paragraph 3). However, it is plain that what the applicant seeks to do is to be able to pursue an appeal against the final parenting orders made by Judge Burchardt on 22 August 2013.
In order to put that application into context, it is necessary to provide a brief history of the proceedings since the orders made by his Honour.
Brief procedural background
Following the making of the final parenting orders, the applicant failed to file a Notice of Appeal within the 28 day time period provided in the Family Law Rules 2004 (Cth) (“the Rules”).
Thus, on 10 February 2014 the applicant filed an application in an appeal, in effect, seeking an extension of time to file a Notice of Appeal, and supported by an affidavit and a draft Notice of Appeal.
That application was opposed and it came before this court for hearing on
8 May 2014. I made orders and delivered ex tempore reasons for judgment in support of those orders. I found in effect that the applicant’s documents were completely inadequate, in that they did not establish a basis for extending the time to file a Notice of Appeal, and in any event, there were no proper grounds of appeal in the draft Notice of Appeal.
As a result, the applicant applied for, and was granted, an adjournment to prepare and file amended documents. A self-executing order was put in place though, providing that if the applicant failed to file amended documents by
6 June 2014, the application in an appeal filed on 10 February 2014 would be dismissed.
The applicant failed to comply with this order, and instead filed an application in an appeal on 6 June 2014, supported by an affidavit, seeking an extension of time to file and serve his amended documents.
That application came before me on 8 July 2014 and I granted an extension of time until 14 July 2014. I made a further self-executing order that in the event of the applicant failing to file his amended documents within the time period permitted, the application in an appeal filed on 10 February 2014 would be dismissed.
On 14 July 2014 the applicant “filed” an amended Notice of Appeal, but no other documents. Thus, the self-executing order came into effect and the application in an appeal filed on 10 February 2014 was dismissed.
The application in an appeal filed on 29 August 2014
Although the application of 10 February 2014 stands formally dismissed, as correctly submitted by counsel for the applicant, that was not a dismissal on the merits, and thus it is possible for the same application to be pursued again. This is also the position under r 11.03 of the Rules. In other words, where a case is dismissed for failure to comply with a procedural order, the court can provide relief from the effect of that dismissal. The factors that may be considered by the court in exercising its discretion to provide relief are set out in r 11.03(3). Of relevance here is whether there is a good reason for the non-compliance ((a)); the extent to which the party has complied with orders ((b)); whether the non-compliance was caused by the party or by his lawyer ((c)); the impact of the non-compliance on the management of the case ((d)); and the effect of non-compliance on the other party ((e)).
The reason given by the applicant for his failure to comply with the orders of
6 June 2014, is that he misunderstood those orders and “mistakenly believed that the only document that had to be filed was an amended notice of appeal”, (paragraph 9, affidavit of applicant filed 29 August 2014). Indeed, on 14 July 2014 the applicant filed an amended Notice of Appeal, and his solicitor served an unsealed copy of that amended Notice by facsimile. It seems that the applicant was assisted by his previous solicitor in preparing that document, and from correspondence annexed to his affidavit filed on 29 August 2014, it also appears that the applicant only told his solicitor that an amended Notice of Appeal was required to be filed.
That said, I do not accept that the applicant misunderstood the order of 8 July 2014. That order was made as a result of, and in the terms sought by the applicant himself in his application in an appeal filed on 6 June 2014. In that application he sought an extension of time to file and serve an amended application and supporting documents. That was the proposed order that was the subject of specific discussion at the hearing on 8 July 2014, and there can be no doubt that the order made that day was as sought by the applicant.
I also observe that although the applicant says in his affidavit that he did not have any “written decision” to take to his solicitor following the hearing on
8 July 2014, according to the court file, a sealed copy of the orders made on that day were forwarded to the applicant at his residential address, under cover of letter dated 10 July 2014. I also note that in that letter the Southern Appeal Registrar emphasised that the applicant “should ensure that an amended application and supporting documents are filed and served by no later than 4:30pm on Monday, 14 July 2014”.
Further, although this has not been suggested to the court, but given that the solicitor for the applicant had prepared, or assisted the applicant to prepare the application filed on 6 June 2014, then I would find it difficult to accept that the solicitor would have thought that the only order made on 8 July 2014, would be for the filing of an amended Notice of Appeal.
I also mention this because as can be seen, one of the factors to be considered is whether the non-compliance has been caused by the party or by his lawyer.
As to the other factors, there has of course been partial compliance by the filing of an amended Notice of Appeal, but of some significance is the impact of the non-compliance on the management of the case, and even more importantly, the effect of the non-compliance on the other party. With the former, the case of course came to an end as a result of the non-compliance, but if the fresh application is allowed to be made, then subject to the result of the same, clearly the need for management of the case will again become relevant.
As to the latter issue, the effect on the respondent is highly relevant. As her counsel has pointed out, these proceedings commenced approximately four years ago, and although final orders were made on 22 August 2013, and there was no appeal against those orders, the respondent has been brought to court now on four occasions since then to respond to attempts by the applicant to pursue an appeal, and she has had to cope with the uncertainty of those attempts whilst in poor health.
A consideration of all of these relevant factors points to a refusal to allow the applicant to pursue his application filed on 29 August 2014. However, despite that, I find that in the interests of justice, the application should be permitted to be heard and determined.
Although the applicant has had a number of opportunities to pursue an appeal, and although he has failed at every attempt to take up those opportunities, it is readily apparent that he has been consistent, and persistent, in his wish to appeal the orders made by the trial judge. It must not be forgotten that he has for the most part been without legal representation, and where he has been assisted by his previous solicitor that has turned out to be of little assistance, and in fact has caused unnecessary complications (for example, the filing of only an amended Notice of Appeal and not an application and affidavit). Whether that is the fault of the applicant, or his solicitor, or both, I am not able to be definitive.
Importantly though, by the time of the hearing on 10 September 2014 the applicant was able to have before the court an application seeking an extension of time, an affidavit in support of that application, and a draft Notice of Appeal. He was also represented by counsel who provided a written summary of argument, as well as oral submissions, both in support of allowing the application to be heard, and in support of the orders sought.
Thus, despite the matters that I have raised, and the doubts and concerns that I have highlighted, and the impact on the respondent, I consider that the interests of justice can only be served by allowing the fresh application for an extension of time to proceed. I now turn to that application insofar as it seeks an extension of time to file a Notice of Appeal.
discussion
Relevant statute law and rules of court
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Circuit 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 Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
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 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 22 August 2013, and thus a Notice of Appeal in compliance with the Rules would have needed to have been filed within 28 days after that date, namely by 21 September 2013. That was not done, and thus in order to pursue an appeal thereafter, an application for an extension of time was required, and that of course is the application now before the court.
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.
In summary, what Gallo & Dawson and the subsequent Full Court cases tell me, is that there are a number of relevant factors which need to be addressed such as, whether there are adequate reasons to explain the failure to comply with the relevant timeframe for the filing of the Notice of Appeal, whether there is a substantial issue to be raised on appeal, and I indicate that that factor has been described in many different ways in a number of cases, but for my part what is crucial is whether there is at least an arguable case on appeal, whether 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. The overarching principle though is to ensure that injustice is not visited, primarily on the applicant, but also the respondent.
In this case, the factors that have been identified by both counsel and in respect of which submissions have been made are first, whether there is an adequate explanation for the failure to comply with the timeframe under the Rules for the filing of a Notice of Appeal, secondly, whether there is an arguable case on appeal, thirdly, the nature of the litigation, and fourthly, the consequences of either granting or refusing the application.
Adequate Explanation
In paragraphs 4 to 7 inclusive of his affidavit filed on 29 August 2014 the applicant sets out his reasons for failing to meet the timeframe for the filing of a Notice of Appeal, and the steps he took to remedy that. For convenience I set out those paragraphs as follows:
4.I was present in court when the orders were made. I did not understand the orders except that I would be denied the ability to spend time with the children. I had a brief conversation with my solicitor who informed me that we could do nothing until we received a copy of the orders and reasons for judgment.
5.I did not receive a copy of the order or the reasons for judgment until October 2013, when I went to the Family Court.
6.I have as a result of the decision made by Strickland J on 8 May 2014 become aware that the orders were sent to my solicitor at that time. I have had discussions with his office who inform me that there is no record of them sending or communicating the orders or the reasons for judgment to me, during this time. I had called his office, during this time frame, fortnightly and then weekly in order to make enquiries of my solicitor. I was not able to speak directly to him, but I did speak to his clerk. I was not informed that the orders or reasons for judgment had been received. I became concerned and decided to attend the Court in October 2013.
7.I received a copy of the orders and reasons for judgment from the Curt (sic), and I promptly made an appointment with my solicitor. He was not able to assist me, because I had to first make an application for funding with legal aid (which was refused). I had spent what little money I had on the proceeding. I am a student and I did not have money to pay for an appeal. I have subsequently been able to save some money, and I have received some assistance from other people.
Although I am aware from the court file that the reasons for judgment and the orders were sent to all of the parties, including the Independent Children’s Lawyer (ICL) and the applicant’s then solicitors, under cover of a letter dated
11 September 2013, when considering an application such as this the court is to treat the applicant’s evidence at its highest; in this instance that requires an acceptance of his evidence that he did not receive the documentation until he obtained copies of the same from the court in October 2013.It is also relevant to consider any delay by the applicant in seeking an extension of time to file a Notice of Appeal, and any reasons for that delay. Here, the applicant did not file his initial application for an extension of time until
10 February 2014, and he says that that was because he did not understand what he had to do, English is his second language and he struggles with legal documents generally, and he sought assistance from his previous solicitors who initially were not prepared to assist but ultimately did.I am satisfied that there is an adequate explanation not only for the applicant’s failure to file a Notice of Appeal within 28 days of the orders being made, but also for the time it took to file the application in an appeal on 10 February 2014.
There is of course the sorry history of the applicant’s attempts to pursue that application thereafter and which I have set out above. The detail of those attempts and the orders made are addressed in my ex tempore reasons for judgment delivered respectively on 8 May 2014 and 8 July 2014, but nothing arises from those reasons for judgment which directly affects the issue under consideration; those matters are more relevant to why there was a self-executing order made on 8 July 2014 and thus why the applicant is now able to pursue a fresh application for an extension of time.
The merits of the proposed appeal
It is first necessary for me to repeat what I am generally obliged to say in applications such as these, namely it is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation, usually just the reasons for judgment of the trial judge and the draft Notice of Appeal relied on by the applicant. I do not have the full range of material that would be before the Full Court if the Full Court was now 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 all of the documents that were before the trial judge, and the summaries of argument of the parties. Thus, I am simply not able to assess the merits of the appeal in depth, and my analysis must necessarily be limited by the documentation that I do have, together with the oral submissions of counsel. I do though have the benefit of a written summary of argument prepared by counsel for the applicant, but he has readily conceded that it is not a complete summary addressing all of the grounds of appeal.
The 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, in my view, 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.
In that context I now turn to the grounds of appeal contained in the draft Notice of Appeal. At this point I should also explain that during the course of the hearing I caused to be uplifted from the file the amended Notice of Appeal filed by the applicant on 14 July 2014. I did that because that amended Notice of Appeal should not have in fact been accepted by the Registry for filing. As at 14 July 2014 the applicant was not able to file an amended Notice of Appeal, because of course, he was out of time. Indeed, all that should have happened is that a draft Notice of Appeal, being the Notice that the applicant sought to rely on in the event that he was granted an extension of time to file a Notice of Appeal, should have been lodged with the Registrar. Accordingly, to overcome this difficulty, following the uplifting of the amended Notice of Appeal and returning the same to counsel for the applicant, counsel tendered that same document to the court as being the draft Notice of Appeal relied upon by the applicant.
Although it is unnecessary to find merit in all of the proposed grounds of appeal it is helpful to set them out in full as follows:
1.The Federal Magistrate was functus officio and lacked the power to discharge paragraphs 4, 5 and 6 of the orders made on 9 December 2011, as amended.
2.The Federal Magistrate erred in holding that paragraphs 4, 5 and 6 of the orders made on 9 December 20911, as amended, could be discharged pursuant to the slip rule.
Particulars
Paragraphs 4, 5 and 6 of the orders made on 9 December 2011 as amended were the result of a deliberate decision made by the Federal Magistrate on that date.
Paragraphs 4, 5 and 6 of the orders made on 9 December 2011 as amended did not arise from a mistake or from the inadvertence of the Federal Magistrate on that date.
Paragraphs 4, 5 and 6 of the orders made on 9 December 2011 as amended were discharged as the result of a decision made by the Federal Magistrate on 22 August 2013
3.The Federal Magistrate erred in failing to provide reasons for his decision to discharge the order that permitted the applicant to have telephone contact with the children at all reasonable times pursuant to paragraph 6 of the orders made on 9 December 2011 as amended.
4.The Federal Magistrate erred in failing to make a determination as whether it would be in the best interests of the children to spend time with the applicant on 22 August 2013.
Particulars
The Federal Magistrate substantially relied upon his determination of the best interests of the children on 9 December 2011.
5.The Federal Magistrate erred in holding that the determination of the amount of time that the applicant should spend with the children, could be determined on a summary basis.
6.The Federal Magistrate erred in deciding that there was no reasonable prospect of the court deciding that the applicant should be able to spend time with the children.
7.The Federal Magistrate erred in failing to consider that paragraphs 4, 5 and 6 of the orders made on 9 December 2011 as amended, provided support for the applicant’s case that he should be able to spend time with the children.
8.The Federal Magistrate failed to consider whether the applicant should be able to communicate with the children via phone or email.
9.The Federal Magistrate erred in taking into account in the determination of whether the husband should be able to spend time with the children that the parties were on legal aid, and that there was a prospect that the parties would be unrepresented in a further hearing or that further public funds in legal aid would be wasted if the matter proceeded (paragraphs 27 and 34 of the decision made on 22 August 2013).
10.The Federal Magistrate erred in taking into account in the determination of whether the husband should be able to spend time with the children, the submissions made on his behalf, on the nature and effect of the orders made on 9 December 2011 (paragraphs 32 and 33 of the decision made on 22 August 2013).
11.The Federal Magistrate erred in failing to draw all reasonable inferences in favour of the applicant, and that the evidence of the applicant be taken at its highest.
12.The Federal Magistrate erred in deciding that the applicant should not be able to spend time with the children on the basis of materials that were before the court on 9 December 2011, and which were not updated.
13.The Federal Magistrate erred in denying the applicant natural justice, by accepting the report of Dr. [D] without affording the applicant with an opportunity to cross examine him, or adduce evidence to contradict or explain the report.
14.The Federal Magistrate unduly interfered in the conduct of the case by initiating an application to summarily dismiss the applicant’s case.
15.The Federal Magistrate erred in denying the applicant natural justice by failing to provide the applicant with notice of the application to summarily dismiss his case.
16.The Federal Magistrate erred in denying the applicant natural justice by failing to provide the applicant with an adequate opportunity to file affidavit material or an outline of evidence or proper submissions in the application to summarily dismiss his case.
17.The Federal Magistrate erred in summarily dismissing the applicant’s case, when there was insufficient material before him.
Particulars
There was no updated affidavit material or an outline of evidence or outline of submissions before him.
As can be seen, Ground 1 suggests that his Honour was “functus officio” and “lacked the power to discharge paragraphs 4, 5, and 6 of the orders made on
9 December 2011, as amended”.
However, I am not persuaded that there is any merit in this ground. Orders 4, 5 and 6 were interim orders made on 9 December 2011 and they were clearly the subject of ongoing proceedings between the parties, culminating in the hearing on 22 August 2013. Thus as far as I can see, it was open to his Honour to discharge those orders if it was appropriate for his Honour to do so.
As to the second ground of appeal, there seems to be a misunderstanding by the author of this ground as to what occurred when the relevant orders were discharged. It was not the case that his Honour applied the slip rule in discharging those orders. The orders were certainly amended by his Honour applying the slip rule, but it is apparent that that occurred before his Honour discharged them. That is also apparent from the terms of his Honour’s orders made on 22 August 2013, namely order (1) provides, “Order 4, 5 and 6 of the orders made on 9 December 2011, as amended pursuant to the slip rule, be discharged”. Thus this ground has no merit either.
There are then a series of grounds of appeal which complain of a lack of reasons, a failure to take relevant considerations into account, taking into account irrelevant considerations, and generally that the trial judge erred in making the orders that he did, including that it was not open to his Honour to discharge a parenting application summarily (Grounds 3 to 12). The merits or likelihood of success of these grounds of appeal are not readily apparent, but I am not able to say on the material that I have, and the submissions that I have heard and read, that there is not an arguable case amongst those grounds of appeal. As I have said, even the remotest chance of success is enough.
Finally, there are grounds of appeal that complain of a failure to afford procedural fairness to the applicant (for example, Grounds 13, 15 and 16).
Again, although I have serious doubts as to the prospects of success of those grounds, I am not in a position to say that there is no chance of success. For example, there was certainly no notice given to the applicant that his Honour was intending to summarily dismiss the matter, and there was no opportunity given to the applicant to file affidavit material or to make submissions addressing that prospect.
Accordingly, I find that the applicant may have an arguable case on appeal, or to put it in the way that I did earlier, it is not apparent that the appeal is hopeless or doomed to fail. I hasten to add though that, given the limitations that I have highlighted, that is not to be taken by the applicant as any indication that he will be successful on appeal.
The nature of the litigation
Counsel for the applicant suggested that in this case the nature of the litigation is a relevant factor to consider. The litigation is in relation to parenting issues, and as a result of the orders made by the trial judge, the applicant is not able to spend time or communicate with any of his children. That of course is a significant issue for the applicant and provides the impetus for him seeking to pursue an appeal. Accordingly, I accept that the nature of the litigation here is a relevant factor and indeed lends support to the applicant’s application to extend time to file a Notice of Appeal.
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 appeal will be able to be pursued, and the respondent will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the respondent given that at the present time there is no appeal on foot against the orders made on 22 August 2013, and the respondent has been, and is today entitled to proceed on the basis that she has the benefit of those orders, unchallenged.
If the application is refused then the applicant will not be able to pursue his appeal, and significantly, there is no appeal to the Full Court from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia. However, that is usually a difficult exercise and may not be warranted in this case. In any event, this is a serious consequence for the applicant if his application is refused.
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 there is an adequate explanation for the failure to comply with the timeframe provided in the Rules, and that there is an adequate explanation for the delay in filing the application seeking an extension of time. I have also found that there is an arguable case on appeal, and that the nature of the litigation would tend to support the application being successful. There is then the prejudice that the parties might suffer depending on the result, and although there will be significant prejudice suffered by the respondent if the application is granted, in my view, taking into account all of the factors that I have mentioned, the interests of justice require that the application be granted.
In these circumstances the order that I propose is that the time for the applicant to file a Notice of Appeal be extended to the close of business on 20 October 2014.
Costs
At the conclusion of the hearing I sought submissions from both counsel as to the question of costs.
Counsel for the respondent sought an order for costs regardless of the result. Ultimately he sought a total of $1,400, $300 for solicitor’s fees and $1,100 for counsel fees.
Counsel for the applicant appropriately conceded that given the circumstances of the application, and that it was his client who was seeking an indulgence from the court, he could not oppose an order for costs being made.
As to time to pay the amount of the costs sought, the applicant asked for six months. That was opposed by the respondent, and it falls to me to determine that issue.
I made orders for costs against the applicant on 8 May 2014 and 8 July 2014, and because of his financial circumstances, allowed him time to pay those costs. On 8 May 2014 he was required to pay $400 by 4 July 2014 (which he has paid), and $1,600 by 7 November 2014. On 8 July 2014 he was required to pay $550 by 15 December 2014.
In this instance I am not prepared to allow the applicant six months to pay the amount of $1,400. That would be entirely inappropriate in the circumstances, and I propose to order that he pay that amount by 30 January 2015.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 October 2014.
Associate:
Date: 13 October 2014
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