GENNER & ROOKS

[2018] FamCAFC 202

FAMILY COURT OF AUSTRALIA

GENNER & ROOKS [2018] FamCAFC 202

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where the Notice of Appeal was filed on time but rejected as defective – Where a further Notice of Appeal was filed within the specified time – Where payment details for the filing fee were defective causing the Notice of Appeal to be filed out of time – Where the wife provides an adequate explanation for her delay in filing the Notice of Appeal – Where the merits of the appeal were considered – Where it is found that to not allow an extension of time would cause an injustice to the applicant – Extension of time granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPELLANT: Ms Genner

RESPONDENT: Mr Rooks

FILE NUMBER: SYC 3779 of 2014

APPEAL NUMBER: EA 116 of 2018

DATE DELIVERED: 24 October  2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 23 October 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 1 August 2018

LOWER COURT MNC: [2018] FCCA 2054

REPRESENTATION

THE APPELLANT In person

COUNSEL FOR THE RESPONDENT: Ms Kennedy

SOLICITOR FOR THE RESPONDENT: Biddulph & Salenger

Orders

1. The time in which to file a Notice of Appeal against the orders of Judge Harper made on 1 August 2018 be extended to 4.00pm on Tuesday 30 October 2018.

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 Genner & Rooks 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 116 of 2018
File Number: SYC 3779 of 2014

Ms Genner

Appellant

and

Mr Rooks

Respondent

REASONS FOR JUDGMENT

1. Ms Genner (“the wife”) wishes to appeal against an order made by Judge Harper on 1 August 2018 in which he summarily dismissed an application brought by her in which she sought to set aside property orders made by consent on

   
   

   7 February 2018 as between her and Mr Rooks (“the husband”).

2. The Notice of Appeal was not lodged within the time prescribed by Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”).

3. By Application in an Appeal filed on 31 August 2018 the applicant seeks an extension of time in which to appeal.

4. The principles governing an extension of time in which to appeal are well known. The granting of leave 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 it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of leave to extend time (see in Gallo v Dawson (1990) 93 ALR 479, McHugh J at 480). The exercise of discretion also involves an assessment of prospects of a successful appeal.

5. In her affidavit in support of the application, the wife explains the delay in bringing on the appeal within time.  She said that she filed a Notice of Appeal on 13 August 2018.  By email some seven days later, on 20 August 2018, she was informed that her appeal was not accepted for filing because the grounds of appeal were “incomprehensible” and that “Part F is defective”.  Part F is that portion of the Notice of Appeal form which sets out the orders sought in the appeal by the appellant in the event that the appeal is successful.  The email informed the wife that her credit card payment details had been destroyed and that her documents will be returned to her by post presumably because her appeal had been rejected for filing.

6. On 28 August 2018 the wife sent by email a further Notice of Appeal and various documents as appendices.  She requested information as to the means to pay the requisite fee by credit card.

7. The wife checked her emails on the morning of 30 August 2018 before going to work.  However it was not until 31 August 2018 that she saw that in the afternoon of 30 August 2018 she had received an email from the appeals registry in which she was advised of the amount of the filing fee and in which she was asked to complete and return a credit card payment form.  I observe that on 30 August 2018 the time in which to file the Notice of Appeal had elapsed.  The wife complied with the request to complete the credit card payment form however, on 31 August 2018 she was advised that her Notice of Appeal was rejected for filing because the appeal was out of time as the credit card payment form and accompanying filling fee was not provided.

8. The wife then, on the same day made an Application in an Appeal for an extension of time in which to bring the appeal, being two days after the time in which to file a Notice of Appeal had elapsed.

9. I am satisfied that the wife has provided an adequate explanation for the delay in bringing the appeal.

10. As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed.  This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”.  If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.

11. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.

12. The respondent contended that the wife’s appeal against the primary judge’s orders was incompetent because her grounds do not challenge the order made.  It seems clear from the wife’s draft Notice of Appeal that she asserts the primary judge made errors in his assessment of the evidence and in the weight he attached to it in ordering that her application be summarily dismissed.  I do not accept the respondent’s contention.

13. Turning then to the merits of the proposed appeal. I am not satisfied that the merits of the appeal are such that it would, all other things being equal, be futile to extend time to bring the appeal.

14. I am persuaded that if leave to extend time in which to appeal is not granted, the application of the Rules would work an injustice against the wife and thus the application will be granted.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 24 October 2018.

Associate:     

Date:  24 October 2018