GAZAL & BELROS
[2015] FamCAFC 92
•7 May 2015
FAMILY COURT OF AUSTRALIA
| GAZAL & BELROS | [2015] FamCAFC 92 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – Where the appellant father has failed to comply with orders of the court to prepare the matter for hearing – Where the father has failed to pay costs orders made at previous hearings – Where the respondent mother seeks an order that the appeal be dismissed – Where the father says that the failure to comply with orders of the court is the fault of his solicitor – Where there is no affidavit material filed in support of that assertion – Where the father says that in the interests of justice the appeal should be allowed to proceed – Where the prejudice caused to the father in dismissing the appeal must be balanced against the prejudice caused to the mother if the appeal is allowed to proceed – Where this is not the father’s first failure to comply with orders of the court – Where the mother and the children need finality – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the mother seeks an order for costs – Where the amount sought is reasonable – Where there are circumstances which justify an order for costs being made – Where as a result of non-compliance with court orders the father’s appeal has been dismissed – Where the father seeks time to pay any order for costs – Where the father should be given time to pay – Costs ordered in favour of the mother. |
| Family Law Act 1975(Cth) – s 117 Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175 |
| APPELLANT: | Mr Gazal |
| RESPONDENT: | Ms Belros |
| FILE NUMBER: | MLC | 10089 | of | 2010 |
| APPEAL NUMBER: | SOA | 8 | of | 2014 |
| DATE DELIVERED: | 7 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1268 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levine |
| SOLICITOR FOR THE APPELLANT: | Allan McMonnies |
| SOLICITOR FOR THE RESPONDENT: | Mr McLeod |
| SOLICITORS FOR THE RESPONDENT: | Buller McLeod Pty |
Orders
The Amended Notice of Appeal filed on 14 November 2014 be dismissed.
The appellant pay to the respondent costs fixed in the sum of $2,100 such costs to be paid on or before Friday 6 November 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 |
Appellant
And
| Ms Belros |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an Amended Notice of Appeal filed by Mr Gazal (“the father”) which was listed for hearing before the court today pursuant to the orders of the court made on 27 February 2015. Those orders were as follows:
1.The documents to be before the Full Court for the purposes of the appeal are the documents comprised in the draft appeal index filed on 14 November 2014.
2.On or before the close of business on Thursday 2 April 2015 the appellant obtain the transcript of the hearing before the Federal Circuit Court judge and provide copies of such transcript to the Court and to the Respondent.
3.On or before the close of business on Thursday 2 April 2015 the appellant file and serve a written summary of argument and list of authorities, if any.
4.On or before the close of business on Friday 1 May 2015 the respondent file and serve a written summary of argument and list of authorities, if any.
5.The appeal be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Thursday 7 May 2015 with a time estimate of half a day.
6.The question of costs be reserved.
At the commencement of hearing today the solicitor for Ms Belros (“the mother”) made an application that the appeal be dismissed pursuant to Rule 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”), on the basis that there has been a failure to comply with orders of this court, and in particular orders 2, 3 and 4 of the orders made on 27 February 2015. In addition there has been a failure to comply with orders for costs made on 8 May 2014 and 13 October 2014.
That application is opposed by the father.
Background
On 27 October 2010, the father filed an Initiating Application in the Federal Magistrates Court, as it then was, seeking parenting orders in relation to the children of the relationship, namely X, who was born in 1993 and whom I note is therefore now 22 years of age, Y, who was born in 1994 and whom I note is now 21 years of age, and W, who was born in 1999 and who is now 15 years of age.
That Initiating Application, as well as the mother’s Response, was determined finally by Judge Burchardt on 22 August 2013. His Honour found that it was not in the best interests of the children to spend time with the father and made orders accordingly, and, in fact, his Honour summarily dismissed the father’s application.
The father determined to appeal against those orders but failed to file a Notice of Appeal within the time provided in the Rules, and on 10 February 2014 he filed an Application in an Appeal seeking, in effect, an extension of time to file a Notice of Appeal. That application was opposed and it came on for hearing before this court on 8 May 2014.
On that day I made orders and delivered ex tempore reasons for judgment in support of those orders. I found, in effect, that the father’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. Thus, as it stood, the proposed appeal lacked merit. As a result of those findings the father applied for, and was granted, over the objection of the mother, an adjournment to prepare and file amended documents.
That adjournment was granted though on strict conditions, namely that the father would have a specific time period in which to file and serve amended documents, but if he failed to do that, there was a self-executing order providing that the application that was then before the court would be dismissed. If, however, the father did file his amended documents within the time prescribed, then the matter would be listed for further hearing in July 2014. An order for costs was also made as a result of the adjournment which provided for the father to pay to the mother the sum of $2,000 by way of an initial payment of $400 on or before 4 July 2014, and the balance of $1,600 by 7 November 2014.
The father partially complied with that costs order in that he paid, as I understand it, the sum of $400, but he has not paid the $1,600.
The precise date by which the father was to file and serve his amended documents was Friday, 6 June 2014. What happened though is the father failed to comply with that order, and on that very last day, namely 6 June 2014, he filed an application in an appeal seeking an extension of time to file the amended documents.
That application came on for hearing before this court on 8 July 2014 which was the date set for the further hearing of the matter if the father had complied with the order for the filing and serving of the documents. The application for an extension of time was opposed, but in the end result, I determined to grant the father one further indulgence and allow the extension of time sought, namely to file and serve his amended documents by the close of business on Monday, 14 July 2014. I stressed in my reasons for judgment delivered on that day that, subject to any further matter that might arise, this was the last indulgence to be granted to the father.
I did though also make a self-executing order that if the documents were not filed in accordance with the order made then the application in an appeal which commenced the proceedings before this court, namely the application that I have referred to already, filed on 10 February 2014, would stand dismissed.
Given those orders, there was an application for costs made on behalf of the mother and I made an order for costs, namely that the father pay costs thrown away in the sum of $550 with such costs to be paid on or before the close of business on 15 December 2014.
I am told, and I understand, that the father did comply with that order for costs and has paid the sum of $550. However, the father again failed to comply with the order for the filing and serving of amended documents, and thus the self-executing order came into force, with the effect that the application before the court was dismissed. The father though then filed an Application in an Appeal on 29 August 2014 which was, in effect, a fresh application seeking an extension of time to file and serve an Amended Application in an Appeal and supporting documents, seeking an order extending the time to file a Notice of Appeal. In the same Application the father sought an order effectively seeking relief from his failure to comply with the previous orders, and therefore relief from the circumstance of the self-executing order coming into force.
That application was opposed by the mother. It came before me on 10 September 2014 and I reserved judgment. On 13 October 2014 I delivered my reasons for judgment and made orders. I determined that I was able to allow the father to make the further application seeking an extension of time, despite the self-executing order coming into force, and I then determined that he should be able to proceed with that application. As a result of that I extended the time for the father to file and serve a Notice of Appeal to the close of business on 20 October 2014.
I also made an order for costs, namely that the father pay the sum of $1,400 to the mother with such costs to be paid on or before the close of business on 30 January 2015. I am told today, and understand this to be the case, that that order for costs has not been complied with.
In terms of my reasons for the orders I made on 13 October 2014 I do not propose to recite them, but I refer to them generally insofar as they are relevant to the reasons that I am now delivering.
However, to highlight just some of the things that I said in those reasons. In relation to the question of an explanation for the failure to comply with the timeframe for filing a Notice of Appeal, I found that I was satisfied there was an adequate explanation for that failure, and also for the time it then took for the father to file his application seeking an extension of time, namely his application filed on 10 February 2014. In terms of the merits of the proposed appeal I found at [52] as follows:
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 [father] that his Honour was intending to summarily dismiss the matter, and there was no opportunity given to the [father] to file affidavit material or to make submissions addressing that prospect.
I interpolate here though that I found that there were a number of proposed grounds of appeal which simply were not proper grounds and would not succeed in any event, thus in [52] I am referring to the balance of the grounds of appeal.
Then at [53] I said this:
Accordingly, I find that the [father] 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 [father] as any indication that he will be successful on appeal.
Here, I was referring to the fact that I was making these comments only on the basis of the limited documentation that was then before me.
Subsequent to the orders made on 13 October 2014 a Notice of Appeal was filed by the father on 20 October 2014 in compliance with those orders, although I note that on 14 November 2014 an Amended Notice of Appeal was filed. It was of course the prerogative of the father to do that, and that is the Notice of Appeal that has then been proceeded with. The matter then came before this court on 27 February 2015 on a directions hearing when I made the orders that I have earlier recited, listing the hearing of the appeal today, and making orders for the preparation of that appeal.
In terms of what has happened since 27 February 2015, and this is highly relevant to the application that is before me today, as is clear from the orders the father was to obtain the transcripts of the hearings before the Federal Circuit Court judge, and provide copies to the court and to the respondent by 2 April 2015, and he was to file a written summary of argument and list of authorities on or before that same date. However, those orders have not been complied with and, importantly, no application has been made in the lead-up to today, for example, to seek extensions of time to file those documents.
According to the court file there was email correspondence received from the father’s solicitor specifically on 2 April 2015, namely the last day of the period of time that the father had to provide copies of the transcripts to the court and to the respondent, and to file his written summary of argument. That email was sent to the Appeal Registrar and to the mother’s solicitor, and it reads as follows (emphasis in original):
Dear Colleagues,
RE: Gazal v Belros SOA8 of 2014
I refer to the Orders of His Honour, Justice Strickland of 27 February 2015.
I note that the orders require that the Transcript of the Proceedings be filed with the court and served on the other parties by today.
On 30 March 2015, we received a transcript for Final Hearing date, but not for the earlier Hearing date of 15 August 2013. We inadvertently failed to apply for the transcripts of this date. This has now been rectified. It is expected that copies of the transcript for 15 August 2013 will be received next week. In these circumstances we request that the court grant an extension until 10 April 2015 to allow us to provide copies to the parties and to the court.
We apologise for the inconvenience.
As is clear from the email it is requested that the court grant an extension of time. I do not know what the solicitor understands about court processes, but to expect to obtain an extension of time by sending an email to an Appeal Registrar is simply beyond belief. What has to happen is an application is made to the court seeking an extension of time and that, indeed, was the tenor of the ultimate response sent by the Appeal Registrar by email of 9 April 2015 to the father’s solicitors. That email reads as follows:
Dear Sir,
As noted in my letter of 2 March 2015, the orders made 27 February 2015 require, inter alia, that the appellant file:
· transcript,
· a summary of argument and list of authorities to be relied on;
· and any application to adduce further evidence
by 2 April 2015. Accepting that there may have been an oversight in ordering part of the transcript, the appellant has not provided any explanation as to the failure to file the other documents as ordered.
The appellant's attention is now drawn to Rule 11.02(1) of the Rules which provides, inter alia, that "if a step is taken after the time specified . . . by these Rules, . . . . the step is of no effect." He may wish to consider the provisions of Rule 11.03 and in the absence of consent to late filing by the respondent, make formal application to be relieved from the effect of sub-rule 11.02(1) and/or seek any necessary extension of time to file.
(Emphasis in original)
Importantly, what that email points out is that not only was the transcript to be provided by 2 April 2015, but the summary of argument was also to be provided by that date. Yet there is nothing said in the email from the father’s solicitor explaining why the summary of argument had not been filed. As can also be seen from the email the Appeal Registrar refers the solicitor to the relevant Rules and to the need for a formal application to be made seeking an extension of time.
Following that email there has been no application whatsoever filed by or on behalf of the father seeking an extension of time, nor any attempt made to remedy the defects that have arisen. Indeed, no further email correspondence was received, or letter or telephone communication. The next communication with the court was an email from the father’s solicitor to the Appeal Registrar received at 5.17 pm on 6 May 2015 (yesterday), after the Registry had closed. That email reads as follows:
Dear Sir/Madam,
We act for the [father]. You will note that we do not have funding in this matter. We paid for the transcript of the proceeding.
We have realised today that we have failed to file the materials in this matter. They are now attached for filing.
The delay is entirely the fault of this office for which we apologise.
Importantly, Mr McMonnies, who is the father’s solicitor and the author of this email, says:
You will note that we do not have funding in this matter. …
I highlight that because of an exchange I had with the father’s counsel earlier today in relation to what might be the reason for the failure to comply with orders of this court. It was put to me that there was nothing to indicate that there was any difficulty with funding as being a reason for this matter being in the state it was. It seems to me that a clear reading of that email indicates otherwise.
I also highlight this sentence:
We have realised today that we have failed to file the materials in this matter. …
I am, to use the vernacular, gob-smacked by such a statement. This is a solicitor who has been acting for some time for the father, a solicitor from whose office the email of 2 April 2015 was sent, and a solicitor whose office received the email of the Appeal Registrar of 9 April 2015.
Attached to that email was a summary of argument, and a copy of the transcript.
It is beyond belief that a solicitor who practices in this jurisdiction, or indeed who practices in any jurisdiction, should expect a court to act on an email received after the Registry is closed, on the day before the hearing is to take place. Absolutely extraordinary.
That is the extent of communication between the father’s solicitor and the court since the orders of 27 February 2015.
However, the mother’s solicitor has tendered a letter sent to the father’s solicitor on 23 April 2015 and which I have marked Exhibit 1. I highlight these matters from that letter. The letter refers to the orders made on 27 February 2015 requiring the provision of transcript and the filing of written summary of argument by 2 April 2015. It refers to the email of 2 April 2015 to which I have earlier referred, as to an alleged error in failing to obtaining the transcript of the hearing on 15 August 2013. It also refers to the email of the Appeal Registrar of 9 April 2015 advising of the court’s position in relation to this matter and noting, as I have noted already in these reasons, that no application was filed following that email of 9 April 2015.
The letter goes on and notes that the mother’s solicitors have heard nothing from the father’s solicitors either, and ultimately puts the father’s solicitors on notice that if the father seeks to proceed with the appeal and seeks an adjournment that will be opposed, and an application will be made to the court pursuant to Rule 22.45 for an order that the appeal be dismissed.
I record that the mother’s solicitor has today informed me that there has not been a response to that letter and, as I understand it, the next thing that the respondent’s solicitors knew was that they received yesterday evening a similar email to that received by the court, attaching the summary of argument and transcript.
The submissions
In terms of the submissions that have been made, Mr Levine, counsel for the father, says that the failure to comply with the orders has been entirely the fault of the father’s solicitor. However, that simply cannot be correct because there are orders for costs which have not been paid. Further, there has been no affidavit filed in relation to the non-compliance with orders by the father which would explain and allow me to find that the failure to comply with the orders has been the fault of the solicitor. Therefore, I am not in a position to proceed on that basis, and indeed, as I say, and I highlight again, there is reference in the email from the father’s solicitor to the court of yesterday noting that they do not have funding in this matter, and that smacks of the fault lying with the father rather than the solicitor.
The other matter put on behalf of the father in opposition to the application is that in the interests of justice the appeal should be allowed to proceed.
I accept that I should take into account the interests of justice, and I accept that the father wants to pursue an appeal against the orders made by Judge Burchardt. But that cannot be the one and only consideration that I take into account in exercising the discretion that I have in determining this application. There are two parties here, and as much as I have to take into account any prejudice that would be caused to the father by dismissing the appeal, I also have to take into account and balance any prejudice that would be caused to the mother by allowing the appeal to proceed.
There are also children who are affected by these proceedings. When I say children, of course, two of the children are now adults and there can no longer be any issue in this court or, indeed, at first instance in relation to those adult children. Thus any appeal which might ultimately have been permitted to proceed could not, of course, have any effect or impact upon those adult children. They will decide what they want to do and therefore any appeal could only be in relation to the youngest child who, I also stress, is now 15 years of age. In any event, I do not by that mean to downplay the fact that the father, pursuant to the orders, does not have the ability to spend time with that child, but these proceedings need to be put in context.
In response to those submissions, Mr McLeod who appears for the mother on a pro bono basis today, has put to me that it is all very well to suggest that it is the solicitor’s fault that orders have not been complied with, but as he rightly points out, it is the father’s responsibility to pursue the appeal; it is not his solicitor’s appeal, it is the father’s appeal, and, again as Mr McLeod has correctly put to me, if the solicitor has not carried out the instructions of the client and has not brought it to the attention of his client that there are time limits that need to be complied with, then the remedy for the father is to change solicitors.
And to repeat something that I have already said, it is not the solicitor’s responsibility to pay an order for costs. It is the father’s responsibility, and he has failed to comply with two orders for costs. Indeed, it is apparent that he has simply ignored those orders
Finally, in terms of the prejudice to the mother if the appeal is allowed to proceed, there would need to be an adjournment and a further hearing set up, but I am told today that as a result of all of the hearings to date that have been necessary to allow the father to pursue his appeal the mother’s legal aid has been exhausted and that is why her solicitor appears pro bono for her today. In my view that is a highly relevant circumstance to be taken into account.
Conclusion
In all the circumstances the appeal should be dismissed.
There has been a complete failure to comply with orders of this court and no attempt by or on behalf of the father to remedy that by, for example, bringing an application for an extension of time. To repeat, it is said that it is the fault of the solicitor, but there is no evidence before me that demonstrates that; no affidavit has been filed by the solicitor or by the father.
This, of course, is not the first failure by the father to comply with orders in this matter, and I refer generally to the history of these proceedings that I have outlined earlier in these reasons. Meanwhile, the mother who has had the benefit of orders of the trial judge has had these proceedings hanging over her head for some time now and her legal aid has been exhausted.
Clearly, the father will be prejudiced if I dismiss the appeal as I propose to do. However, in my view, he has only himself to blame, and in any event I have to balance that prejudice with the obvious prejudice to the mother if I allow the appeal to proceed.
What the High Court said in Aon Risk Services Australia Limited & Australian National University (2009) 239 CLR 175 is also apposite to these proceedings, namely, it is relevant to take into account the negative effects of delay and adjournments, and the failure to comply with orders providing for case management in exercising the discretion that the court has. At [30] French CJ said this:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
The father has had enough chances to properly conduct this case, he has failed to do so, and these proceedings should be brought to an end.
Costs
I now have an application for costs made on behalf of the mother. The amount sought initially was $3,000, and it was put to me that that was calculated on the party/party scale and covers the costs incurred since and including the appearance on 27 February 2015.
It includes though the costs involved in preparing a summary of argument which was filed by the mother on 1 May 2015. In my view, given the fact that there had been a failure up to that point by the father to comply with the orders made on 27 February 2015, it was unnecessary for the mother to go to the expense and trouble of preparing a summary of argument. I understand what Mr McLeod has put to me about that, but in looking at the question of costs overall, and what might be reasonable and necessary, I do not consider in the circumstances that the costs of that summary of argument should be allowed.
Mr McLeod says that if the costs of the summary of argument are excluded the costs he seeks are $2,100. Mr Levine has indicated that there is nothing he can put in opposition to that, and in my view, if I am prepared to make an order for costs, it appears to me to be a reasonable amount to order.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”), is the section that addresses the question of costs and it relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
The primary position under that section is that each party is to bear their own costs, but if there are circumstances that justify an order for costs then the court is able to make such an order. In my view there are clearly circumstances here that justify an order for costs namely, as a result of the failure by the father to comply with orders of this court, his appeal has been dismissed. It was necessary for the mother to retain her solicitor and for that solicitor to undertake work in preparing the matter, and to repeat, the costs sought of $2,100 are more than reasonable in relation to the work that would have been necessary in this case.
In relation to payment of that amount, it is put to me that the father is able to afford a payment of $50 per fortnight. I in fact raised that issue because in respect of some of the previous orders for costs, the father has sought time to pay, and indeed I allowed him time to pay. I am concerned though in regard to that application, that the father has simply now ignored orders for costs that I have referred to earlier in my reasons for judgment. That said, I am prepared to allow a period of time for the father to pay the sum of $2,100, and I propose to allow six months.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court delivered on 7 May 2015.
Associate:
Date: 21 May 2015
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