Geer and Bilson

[2016] FamCAFC 246

FAMILY COURT OF AUSTRALIA

GEER & BILSON [2016] FamCAFC 246

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the appeal books on time and the appeal was thereby deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of his appeal – Where there is no satisfactory explanation for the delay in filing the appeal books – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 22.21, 22.44

Gallo v Dawson

(1990) 93 ALR 479
(1979) 144 CLR 513

Gronow v Gronow

APPLICANT: Mr Geer

RESPONDENT: Ms Bilson

FILE NUMBER: SYC 6220 of 2013

APPEAL NUMBER: EA 172 of 2015

DATE DELIVERED: 17 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 November 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 17 September 2015

LOWER COURT MNC: [2015] FCCA 2511

REPRESENTATION

FOR THE APPLICANT: The Applicant in Person

FOR THE RESPONDENT: The Respondent in Person

Orders

1. The Application in an Appeal filed 20 October 2016 is dismissed.

2. The hearing on 1 December 2016 is vacated.

3. This matter is fixed for hearing before me at 11.30 am on Tuesday 20 December 2016 to deal with the wife’s costs application.

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

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

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 172 of 2015
File Number: SYC 6220 of 2013

Mr Geer

Applicant

And

Ms Bilson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 20 October 2016 Mr Geer (“the applicant”) seeks to reinstate his appeal against orders made by Judge Brewster on 17 September 2015.  On that day in proceedings between the applicant and Ms Bilson (“the respondent”), Judge Brewster ordered the respondent to pay the applicant the sum of $90 000. Contemporaneously with that payment, the applicant was to give the respondent a withdrawal of caveat in registrable form in respect of a caveat lodged by him against the property in which the respondent resides. 

2. Despite the apparent simplicity of that order, it has not yet been put into effect.  As I understand what the applicant tells me, he is not prepared to give a withdrawal of caveat unconditionally and requires a number of other conditions to be met including a payment of further funds.  It is not apparent how he can seek those things under the orders as they presently stand. 

3. On 9 March 2016, Registrar McNamara made a number of procedural orders to ready the appeal for hearing. Amongst those orders was an order that the applicant file copies of the appeal books on or before 20 May 2016. That order was not complied with. However, the applicant filed an Application in an Appeal on 14 April 2016 seeking an extension of time in which to file the appeal books. That was listed before a registrar of the court on 5 July 2016. The applicant did not appear and the application was dismissed. It follows that the appeal books due on 20 May 2016 were not filed and the appeal was deemed to be abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”).

4. Pursuant to r 22.44 of the Rules, a person may apply for a reinstatement of the appeal. In considering such an application the court is to do justice between the parties to ensure that mere non-compliance with a procedural rule does not cause injustice. In considering such applications, the court will have regard to a number of matters as discussed by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480.

5. I bear in mind that this was an appeal that was regularly brought and therefore not likely to be frustrated by a failure to comply with procedural orders.  The affidavit in support of the application is brief and consists of no more than the annexation of a medical certificate dated 27 June 2016 which is as follows:

   I can confirm that [Mr Geer] suffers from anxiety with depression.  Currently he is not coping well with his stress levels and finding himself unable to deal with several ongoing issues.  I would like to agree with his request that he needs a break from his legal matters.  In my opinion it will help him recover from mental stress and prevent it from further worsening if his legal cases can be considered for adjournment for 6 months’ period. 

6. In the applicant’s affidavit there is a reference to a “breakdown” in 2016, in those terms only. That is not, in my opinion, a sufficient explanation for not filing the appeal books by 20 May 2016 or turning up at the hearing before Registrar McNamara.  It is implicit of course that the breakdown did not prevent the applicant from filing an application for an extension of time in which to file his appeal books.  Similarly, there is no explanation as to what has happened since then in relation to the conduct of the matter.  I note, however, that the applicant has been able to file an application to vacate a hearing date, which I will deal with shortly, and also apparently enforcement proceedings in relation to the orders of Judge Brewster.  When asked by me when he would be in a position to file the appeal books, he said that he would not be able to do so until he gets the $90 000 ordered by Judge Brewster.  However, as I have indicated, the parties seem to be at a stalemate in relation to that payment.  I do not consider that is an adequate explanation of delay.

7. The amended grounds of appeal filed by the applicant on 9 November 2016 do not directly point to error. They consist of a litany of statements about the conduct of the respondent and how the trial should have proceeded.  One would draw ultimately from that that the applicant complains about the exercise of the primary judge’s discretion, whether or not the conduct of the respondent in selling her house should be borne solely by her, and whether the court did not take into account the applicant’s special building skills.  I am not prepared to say that those grounds are devoid of merit but I would not consider them to be strong.  Appeals against the exercise of discretion face a high bar: see Gronow v Gronow (1979) 144 CLR 513 at 519.

8. Taking all of these matters into account, I am not satisfied that it would be appropriate to make the orders as sought.  There is no explanation for delay in particular and there is no indication that if an extension of time were granted the appeal books would be filed in any reasonable time.  I find those two matters persuasive and the Application in an Appeal filed on 20 October 2016 is dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 17 November 2016.

Associate: 

Date:  30 November 2016