Grantham and Maid
[2011] FamCAFC 218
•15 November 2011
FAMILY COURT OF AUSTRALIA
| GRANTHAM & MAID | [2011] FamCAFC 218 |
| FAMILY LAW ─ APPEAL ─ Application for Notice of Appeal to be reinstated ─ Where the appellant failed to file a draft index in the appeal in time ─ Where pursuant to the rules, the notice of appeal was deemed to be abandoned ─ Discussion of High Court authorities on the exercise of discretion to reinstate an appeal ─ Court satisfied that to refuse to reinstate appeal would not be just ─ Appeal reinstated |
| Family Law Act 1975 (Cth) ss 93A, 117(2) Family Law Rules 2004 (Cth) r 22.22(2) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 Cropper v Smith (1884) 26 Ch D 700 De Winter v De Winter (1979) 23 ALR 211 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 541 Lovell v Lovell (1950) 81 CLR 513 Norbis & Norbis (1986) 161 CLR 513 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| APPELLANT: | MR GRANTHAM |
| RESPONDENT: | MS MAID |
| FILE NUMBER: | MLC | 11345 | of | 2008 |
| APPEAL NUMBER: | EA | 94 | of | 2011 |
| DATE DELIVERED: | 15 November 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 15 November 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 860 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
That the appeal be reinstated.
That the Appeals Registrar list the appeal for hearing before the Full Court at the first available Sydney sittings in 2012 PROVIDED THAT the appellant complies with these directions.
That in the event of the appellant failing to comply with these directions, the Appeals Registrar list the Notice of Appeal for dismissal in the first available sittings of the Full Court after the expiration of 42 days from this date.
That the appellant pay 75% of the respondent’s costs of the application of the appellant filed on 30 September 2011 as agreed or assessed on a party and party basis.
That the appellant pay the respondent’s disbursements of the appellant's application filed 30 September 2011 as agreed or assessed.
Note that the respondent has agreed to accept $2,000 in full satisfaction of orders 4 and 5 hereof.
That the appellant be responsible for the preparation of the appeal books.
That the appeal books for the appeal are to comprise each of the following documents arranged in the following order:
·Any Amended Notice of Appeal;
·Orders of the trial Judge;
·Reasons for judgment of the trial Judge;
·Transcript of the proceedings relevant to the appeal;
·Application and response and any relevant affidavit material;
·Exhibits tendered before the trial Judge;
·A list of dates and times referred to in order 2 of the orders made this day,
·Summary of Argument.
That the solicitors for the appellant file in the Sydney Registry of the Court within 42 days of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent, together with a copy of the certificate.
That leave be granted to the respondent to make an oral application for security for costs.
That pending determination of the Notice of Appeal the husband not reduce his equity in the properties referred to in Order 2 of the Orders of the Federal Magistrates Court of 22 July 2011 below the sum of $10,000.
That the appellant be granted liberty to apply within 7 days to vary or set aside the order for security for costs.
Direct that the respondent file her outline of argument in opposition to the appeal not later than 14 days prior to the date fixed for hearing.
That within 42 days the appellant file a notice stating either that no member of the Full Court, if scheduled to do so, be a member of the bench that hears his appeal or indicating the name or names of any judges of the Appeal Division who he submits ought not sit on the bench hearing his appeal.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
That each party have liberty to apply for any further directions by telephone to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon 72 hours notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
IT IS NOTED that publication of this judgment under the pseudonym Grantham & Maid is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 94 of 2011
File Number: MLC 11345 of 2008
| Mr Grantham |
Appellant
And
| Ms Maid |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 17 August 2011, Mr Grantham, (“the appellant”), filed a notice of appeal against orders made by Federal Magistrate Harman on 22 July 2011 in financial proceedings between the appellant and Ms Maid, (“the respondent”). Pursuant to the Rules, the appellant was to have filed a draft index in the appeal by close of business on 14 September 2011, that is to say, 28 days after the date for filing the notice of appeal. The appellant did not do so. Pursuant to the rules, his notice of appeal was accordingly deemed to be abandoned. On 30 September 2011 the appellant filed an application seeking the reinstatement of his abandoned notice of appeal.
In support of his application, the appellant filed an affidavit purporting to explain why he had failed to file his draft index, and asserting that he had been one day late in doing so. The respondent as she accurately submitted, “valiantly” attempted to resist the appellant’s application. As the course of debate earlier this morning would reveal, the respondent, who is herself a qualified and experienced legal practitioner, agitated numerous matters, almost all of which were undoubtedly relevant to the exercise of discretion in relation to the present application.
Before addressing the substance of those submissions it is hopefully instructive to record that an appeal being deemed abandoned, it seems fairly clear, creates a kind of lacuna in terms of the status of such an appeal. On the one hand, in the absence of an order reinstating an abandoned appeal, it will not be listed for hearing in the way in which appeals usually are. On the other hand it is not dismissed in the sense that dismissal after a hearing on the merits involves. It is regrettably somewhat unsatisfactory, but the Court has to work with the rules as they are.
The point of the foregoing observations is for present purposes that, whilst the respondent quite properly urges upon the Court the prospect of finality to litigation between the parties, if the appeal is not reinstated, the necessity for a further listing for the purpose of the abandoned appeal being dismissed means that there would not necessarily be finality if this application were refused. As suggested to the respondent, it could not be safely assumed that the listing for dismissal of this appeal, if it continues to be abandoned, would automatically result in the Full Court dismissing the appellant’s appeal. The Full Court would have to engage with the merits of the judgment, at least to the extent of determining that no challenge sought to be agitated by the appellant could succeed, in order to dismiss it.
The respondent has referred, with respect to her, correctly, to the authorities which are relevant to the appellant’s application. The first of those is the decision of McHugh J of the High Court in Gallo v Dawson (1990) 93 ALR 479 and following. His Honour there said, and it has historically been accepted, by this and other Federal Courts particularly, at page 479 that:
The grant of an extension of time… is not automatic. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties.
That this is, in effect, what a reinstatement application in circumstances such as the present involves. His Honour also recorded at page 480 that:
…to determine whether the rules will work an injustice,
McHugh J said that in deciding whether refusing to reinstate would 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[.]
As the transcript would confirm, the Court has indicated to the respondent that it is the history of proceedings and conduct of the parties subsequent to the judgment of the lower court in July this year which is of relevance for present purposes. The history of proceedings, and conduct of the parties to the date of judgment in the Federal Magistrates Court are matters which may have had significance in terms of the substantive determination of the proceedings in that Court, and may have continuing significance in terms of cost issues, which the Court has been informed have yet to be determined by the Federal Magistrates Court.
The nature of the litigation assumes no particular significance for present purposes, but when regard is had to later decisions of the High Court, particularly in what can for convenience be referred to as the Aon case, the nature of the litigation, and the identity of the parties potentially has different significance in a case such as the present compared, for example, and Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon”) is such an example, with what may be described as corporate litigation involving corporations, government instrumentalities, insurers and other entities of that kind. The nature of the litigation in this case is probably neutral, given that every matrimonial cause will involve parties to a marriage, or former marriage, and as such it is difficult to see how that could assume significance.
The consequences for the parties of the grant or refusal of the application to grant an indulgence of the kind sought in this case, superficially suggest that it is more likely that allowing the application would have adverse consequences for the respondent than would its refusal for the appellant. That, however, does not, on closer analysis, prove to be the case, and the question of consequences for the parties the granting or refusing this application is rather more complicated. Part of the reason for that has already been alluded to, and that is that to refuse this application would not necessarily be an end to the matter, as the respondent is entitled to, and does hope that it would be.
The appellant may seek to challenge the refusal of reinstatement in the High Court. He may seek to resist dismissal of the appeal when the appeal is listed for that purpose before the Full Court. Whatever the outcome, it cannot be concluded that the dismissal of this application would be the end of the litigation for the respondent. As suggested to the respondent, the likelihood is that if the application is granted, the appeal will be heard and determined on its merits in a way which would be unlikely to excite appellate intervention on the part of the High Court, well before either of the alternate scenarios, to which reference has been made, would have been acted out.
McHugh J referred in Gallo v Dawson (supra) to the necessity in an application of this kind to consider the prospects of the present appellant succeeding in the appeal, and to bear in mind that upon the expiry of time for appealing the respondent has a vested right to retain the judgment unless the application is granted. There is, it is readily apparent, a distinction between a case of the kind with which McHugh J was confronted in Gallo v Dawson (supra) and the present. In Gallo v Dawson (supra) the applicant did not have an appeal. In this case the appellant has an appeal, which he filed within time. It is deemed abandoned because of his failure within time to file a document.
Ultimately the distinction is not crucial, but there is, the Court perceives, a material distinction between a party who totally fails to appeal within time, and a party, who having appealed within time, fails by a very short time to comply with a provision of the rules with respect to the filing of a document. McHugh J suggested correctly, with respect, that the Court must have regard to the prospects of the appeal succeeding. As suggested to the respondent, that is necessarily a difficult exercise for a Court to conduct. The whole point of the present application is to determine whether or not there will be, or continue to be an appeal. If there is, then the issues which arise on the appellant’s notice of appeal, and the issues which arise in resisting it, as they emerge from the affidavits and submissions of the respondent, would be likely to engage the Court for some time, requires careful and close consideration before the judgment of the Appeal Court is reached. It is of necessity a difficult task to address the prospects of the appeal succeeding, simply in reliance upon the reasons for judgment of the learned Federal Magistrate which give rise to the appeal, and the seemingly somewhat hastily drawn notice of appeal, which leaves in doubt exactly the basis in law upon which the decision of the subordinate Court is sought to be impugned. (See De Winter v De Winter (1979) 23 ALR 211 and Norbis & Norbis (1986) 161 CLR 513).
As suggested to the respondent during the course of debate, historically this Court has approached the question of the prospect of success on appeal from a low threshold, which is often expressed as whether it is demonstrably apparent that the appeal is hopeless, or doomed to fail. Applying that low threshold to the present case, and accepting that the grounds of appeal appearing in the current notice of appeal have very considerable shortcomings, it cannot, in the Court’s view, be said that the appeal is demonstrably hopeless or doomed to fail.
That is said against the background that the law recognises, as the High Court’s decisions for at least 60 years have acknowledged, that there is a presumption that the decision of the trial Judge is correct (Lovell v Lovell (1950) 81 CLR 513 and Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621) As decisions of the High Court, particularly in Norbis & Norbis (1986) 161 CLR 513 make clear, an appellant against the exercise of discretion, such as that involved in the present case, bears a substantial onus in making out a ground of appeal of the kind identified by the High Court in House v The King (1936) 55 CLR 499. There will be cases where the Court is able to find that the appeal was doomed to fail, and thus to extend time to allow it to be conducted, or to reinstate it would be tantamount to an abuse of process, but that is not this case. It may well be, if the appeal is reinstated and agitated on its merits, that it proves to be a hopeless appeal, but that is not a call which this Court could make on the evidence before it at the moment.
The decision of Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 541, to which reference will shortly be made, reinforces the Court’s conclusion in relation to that topic. Interestingly, perhaps, although it is not directly relevant, the facts of Gallo v Dawson (supra) were that the application for an extension in which to appeal was some 16 months out of date in seeking to appeal. Not surprisingly in those circumstances, McHugh J observed that a case would need to be exceptional before a Court would enlarge by many months the time for lodging an appeal simply because an appellant has refrained from appealing until he or she has researched the issues involved.
There is a difference between failing to file a notice of appeal within time, or within a reasonable time, of time expiring on the one hand, and, having filed a notice of appeal within time, failing to comply with a procedural rule on the other. In the former the respondent is deliberately or otherwise lulled into a false sense of security. Unless and until he or she is served with a notice of appeal there is no reason to think that the judgment of the lower court will be challenged. In the present circumstances the appellant, having filed his notice of appeal within time, the respondent has not been thus lulled. That is not a major matter, but part of the matrix of circumstances which inform the exercise of the Court’s discretion.
The respondent referred the Court to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon”). In Aon a dispute arose when, well into the trial of proceedings at first instance the part, in fact on the third day of the four week trial of a proceeding that had been on foot for two years, the plaintiff applied for an adjournment, and for leave to amend its statement of claim to add a new substantial claim against the defendant.
As is apparent from the judgment of the High Court in relation to the facts of Aon, the parties to a commercial dispute were corporations and/or insurers, and, not surprisingly, the High Court adopted a rather stricter approach than might perhaps have been adopted had the proceedings been different in nature, and the parties been individuals. The Court cannot speculate about that, and does not need to. What emerges from Aon in this Court’s understanding of the judgment is that the overarching issue remains the interests of justice. As their Honours said, relevant matters included the nature of the amendment sought, the stage the litigation had reached when the amendment was sought, and the explanation for any delay.
In the course of their judgment the majority Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the judgment of Lord Justice Bowen in Cropper & Smith (1884) 26 Ch D 700, an English case decided in 1884, to which the High Court referred with approval in its earlier judgment of Queensland & JL Holdings Pty Limited (1997) 189 CLR 146 at 154. In Aon at paragraph 73, the majority quoted the passage from Lord Justice Bowen in which his Lordship said:
The object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…
His Lordship went on to say:
…I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.
The authorities make clear that delay is relevant, or the explanation of delay is relevant to an application such as the present. With respect to the appellant, his explanation for his failure to file a simple document, or what should have been simple for a member of the bar, is inadequate. He has not adequately explained his failure to comply with the rules, either in terms of his asserted personal commitments, or his obligations to care for the parties’ 15 year old child. The question is whether, in the exercise of discretion the inadequacy of the appellant’s explanation for his failure to file the pleading required of him in accordance with the rules should disentitle him to the exercise of discretion in his favour.
The exercise of the Court’s discretion involves a consideration of a multiplicity of factors to which the respondent has accurately referred. Before proceeding to deal with the respondent’s submissions, the Court considers it, relevant to have regard to what Kirby J said in Lindon & The Commonwealth (supra), commencing at page 251 on 6 May 1996. That was a case which had interesting facts, which bear reading for interest perhaps, but are not central to this case, and involved the plaintiff issuing a statement of claim seeking declarations that the threat or use of nuclear weapons in any circumstances was not permitted under municipal international or trans-national law.
Perhaps not surprisingly, the Commonwealth, the defendant to such statement of claim, issued a summons seeking summary dismissal of the statement of claim, on the basis, inter alia, that it was doomed to fail. In reality the principles which govern applications for summary dismissal have perhaps greater relevance to the present application than does what the High Court said in Aon, and perhaps to a lesser extent what McHugh J said in Gallo v Dawson (supra). If this Court refuses to reinstate this appeal that will, for all practical purposes, be tantamount to summary dismissal of the notice of appeal without a hearing of it on the merits. Kirby J recorded in six paragraphs, not all of which have application, the principles governing summary dismissal applications. Kirby J observed at page 256 that:
It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld…
His Honour also recorded that the power to summarily dismiss is “rarely and
sparingly provided”, and said at page 256 that:
To secure such relief, the party seeking it much show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
Lest it be thought that by referring to what his Honour there said, this Court is, to use the colloquial, putting the cart before the horse, because it is after all the appellant who must persuade the Court that his appeal should be reinstated, what Kirby J there said highlights the practical effect of refusing to reinstate this appeal. It would be in reality to summary dismiss it, or at least, insofar as the Court can, as a matter of jurisdictional competence at present, summarily dismiss the appeal. Kirby J said in the third of the six numbered paragraphs:
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
That is relevant to the point to which reference will again shortly be made, and to which McHugh J referred, namely the absence of apparent strength of an appeal. It is unnecessary for this Court to venture into areas of comparative weakness strength or anything of that kind, and sufficient to say, as it safely can, that the appeal is not demonstrably hopeless. In time after concentration of attention, elaborated evidence and argument, and extended time for reflection, the Court may reach that conclusion, but it could not fairly do so at present.
The fourth point raised by Kirby J has no particular relevance, nor does the fifth. The sixth does, and that is, as his Honour recorded at page 256 that:
The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
The respondent submitted, by reference to Gallo v Dawson (supra), that to grant the present application would be to visit an injustice upon the respondent. The Court is not persuaded that such is the case. There are a number of reasons why that it is so. Some have been alluded to. They relate principally to the effect of refusing to reinstate the appeal, and the absence of certainty and finality which the respondent justifiably seeks, which refusal to reinstate cannot guarantee.
In reliance upon Aon, the respondent submitted that to allow this application would not inspire, or promote confidence in the administration of justice. The Court does not accept that that would necessarily be the case. The power to reinstate recognises that the Court has the duty of ensuring on the one hand that its processes are not abused, but on the other that the failure to comply with its rules does not, if other factors indicate that it should do so, result in a litigant being deprived of the opportunity to test a decision which it is within the jurisdictional competence of the Court to allow to be tested.
Reference has previously been made to the merits of the appeal and the respondent’s submissions in that regard. The respondent has correctly pointed to her entitlement to retain the benefits of the judgment. As noted earlier, the appellant has a statutory right to appeal that judgment. There is a presumption that the decision of the learned Federal Magistrate is correct, and, subject to what may occur with a stay application which is to be agitated in the Federal Magistrates Court within the week, to the extent that there is any uncertainty about the respondent’s right to retain the benefits of the judgment, and/or any costs awarded against the appellant in defending it. The evidence does not establish on the balance of probabilities that reinstating this appeal would in any way compromise the rights of the respondent to retain the benefits of the judgment of the Federal Magistrates Court if, as she expects, the appellant’s challenge to that judgment is held to be unmeritorious.
The “extraordinary” conduct of the appellant was sought to be relied upon by the respondent. The Court indicated to the respondent that it was only the conduct of the appellant within the appellate context which was relevant for present purposes, for reasons which were alluded to earlier in these reasons. There is nothing which is relevantly “extraordinary” on the part of the appellant. He was a few days out of time in filing a document which the rules required him to file. In the time since, the appellant acted promptly, filing his application to reinstate his appeal on 30 September 2011, it has been prosecuted on the first day allocated for that to occur, and his learned Counsel has been in attendance, and willing to agitate the issue.
It was submitted that the appellant’s status as a member of the bar, and his duty to comply with Court orders should militate against the exercise of discretion. That is a factor to take into account. If all other things were equal then it may be determinative, but the Court does not consider all other things to be equal. That said, the appellant’s failure to comply with such a simple directive as the rules created in this case reflects no credit on him and would be relevant to the question of costs if the appeal is remitted. His explanation does not either, involving, as it does, either, in ways that are not specified at all, reliance upon his having the care of the parties’ child, or, less forgivably, his asserted professional commitments. The Court cannot accept that, had he been minded to do so, the appellant could not have found the half hour or so that it would have been likely to have taken him to comply with the Court’s rules.
It was submitted further by the respondent that a costs order was not sufficient to recompense her in relation to the “emotional vendetta”, which she asserted that the appellant has conducted and continues to conduct against her. Whether or not there is an emotional or other vendetta, the Court’s focus is on the more conventional notions of prejudice to the respondent to the appeal in the event of her resistance to the appeal being successful.
To the extent that, and there is no evidence before this Court establishing, and with respect to the respondent, it would be difficult to imagine how she could have produced such evidence, that the appellant is consciously reducing the equity in the property awarded to him by the learned Federal Magistrate in ways which would leave the respondent in a position where any costs awarded to her in the event of the appeal being reinstated and dismissed could not be recovered. To the extent that that risk may exist as suggested to the respondent during the course of debate that would be a matter appropriate to be raised in the context of a stay application before the learned Federal Magistrate who made the substantive orders. It is inconceivable that the learned Federal Magistrate would countenance conduct on the part of the appellant which had the potential to erode the equity in the assets receivable by him under his Honour’s judgment, to the point where such costs as the respondent may be awarded could not be recovered.
In support of her submissions that the appeal was “devoid of merit”, the respondent referred to four particular matters, to which the Court will now refer. The first of those was that there was no credible evidence of the appellant to support the appeal. As suggested to the respondent during the course of discussion, as there is no challenge to the credibility findings made by the learned Federal Magistrate, which in some instances were adverse to the appellant, that really cannot assume significance for present purposes. Had there been a challenge to the credibility finding, it may be that having regard to the authorities which govern such challenges, that point would have had some significance.
The second submission was that it was obvious that the respondent’s contributions greatly exceeded those of the appellant. Indeed, the learned Federal Magistrate found precisely that, by percentages of 65 to 35 in favour of the respondent. However, the focus for present purposes, is whether the appellant’s assertion that such a disparity exceeded the generous ambit of the learned Federal Magistrate’s discretion is demonstrably hopeless. It can clearly be said that such challenge has very substantial, long established and well recognised obstacles to success, but the Court is unable to make the call that such challenge is demonstrably hopeless.
It was further submitted that the appellant wants to “re-agitate the evidence” which was before the learned Federal Magistrate and/or “reopen the facts on appeal.” As suggested to the respondent, subject to the limited scope for issues of fact gaining new life pursuant to section 93A of the Family Law Act 1975 (Cth) (“the Act”), the appeal will involve no such exercise and any attempt to engage the court in those ways on the part of the appellant will fail.
It was submitted that even if any of the grounds of appeal was upheld, the Court would nevertheless not allow the appeal. As suggested to the respondent during the course of discussion, the Court cannot accept that that would necessarily be the case. The law is clear, that if a ground of appeal is made out, unless no other outcome could result from ordering a new trial, a new trial will generally be ordered (see Stead v State Government Insurance Commission (1986) 161 CLR 141 and De Winter v De Winter (1979) 23 ALR 211). The currently framed challenges to the orders of the learned Federal Magistrate appear, at least superficially, to be in the nature of “weight” challenges. If those challenges or any of them was successful, it is highly likely that there would be a different outcome of the proceedings. That is the nature of a challenge to the exercise of discretion in reliance upon weight grounds. The Court does not need to speculate about these matters and need only record that it cannot find that if a ground or grounds of appeal was/ were established, that no new trial could result.
The respondent referred to the absence of finality in granting this application. As suggested earlier in these reasons that absence is rather more apparent than real for reasons that the Court has earlier suggested. Issues of public interest were urged upon the Court by the respondent. In the circumstances of this case it is the private interest of the parties to the proceedings which should prevail over any asserted public interest, to the extent that there really is any.
This Court is not a court which entertains, other than in limited circumstances, corporate or commercial proceeding involving, in many instances, multi-national corporations, large governments or the like. It is a Court which exists to determine disputes between citizens who have had the misfortune of being married to each other.
On balance, and notwithstanding the force of the respondent’s arguments in opposition to it, the Court is persuaded that to refuse to reinstate this appeal would be, in the words of McHugh J in Gallow v Dawson (supra) to allow the rules to perpetuate an injustice. The appeal will accordingly be reinstated, but matters do not end there, there is the question of costs of this application and the procedural implications of reinstatement.
The respondent has sought an order for costs of the current application. That application is, in the Court’s view, irresistible. The hearing before the Court this day arose solely because of the failure of the appellant to comply with the rules. To the extent that Counsel for the appellant has submitted that what might be described as the more usual order, should be made, that is that the respondent’s costs of this application should be reserved to the appeal, the Court is not persuaded that that would be the appropriate course. This has been an earnest, separate and discrete argument. It is quite apparent that, although ultimately unsuccessful, the respondent has agitated numerous issues of substance, and with respect to her, has argued the application with a thoroughness and skill which is not commonly exhibited in such applications.
In the circumstances the respondent ought not be largely or entirely dependent upon the outcome of the appeal in relation to the costs of this application. The Court is of the opinion within section 117(2) of the Act, that the circumstances justify a costs order of this application. There are a variety of reasons why that is so, relating to the substance of the grounds raised by the respondent, and perhaps, more significantly, the reality that reserved costs tend to be lost costs, for reasons of which legal practitioners are well aware. There is no guarantee that the Court, as currently constituted, will be the Court which hears the appeal. The transcript of the reasons for judgement would not necessarily fairly reflect the nature and force of the submissions the respondent has made. The application, as noted earlier, was necessitated by the appellant. He should pay the costs, save for one matter, and that is, as his learned Counsel pointed out, part of the costs today relate to directions for the ongoing, reinstated appeal.
Although it is arbitrary to discount by 25 per cent such costs as are properly payable to the respondent, as opposed to such disbursements as are properly payable would, in the circumstances, be an appropriate order, it is thus ordered that the appellant pay 75 per cent of the respondent’s costs as agreed or assessed of the application of the appellant, filed 30 September 2011. It is further ordered that the appellant pay the respondent’s disbursements of the appellant’s application filed 30 September 2011, as agreed or assessed. Note that the respondent has agreed to accept $2000 in full satisfaction of the Court’s orders for costs and disbursements.
The Court grants the respondent leave to make an oral application for security for costs, and orders that, pending determination of the notice of appeal, the appellant not reduce his equity in the properties referred to in order 2 of the orders of the Federal Magistrates Court of 22 July 2011 below the sum of $10,000.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 15 November 2011.
Associate:
Date: 18.11.2011