Green & Green and Anor

[2007] FamCA 382

FAMILY COURT OF AUSTRALIA

GREEN & GREEN & ANOR [2007] FamCA 382

FAMILY LAW - APPEAL - Application to extend time to appeal - Appeal previously discontinued due to appellant’s impecuniosity - Application granted

FAMILY LAW - COSTS - Application for costs – Application not granted

Family Law Act 1975 (Cth)  s94; s 94(1A)
Family Law Rules 2004 (Cth) Ch 22

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392
Bennett and Bennett (1990) 14 Fam LR 397
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Pierce v Pierce (1999) FLC 92-844
House v The King (1936) 55 CLR 499
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Green

1ST RESPONDENT: Green

2ND RESPONDENT: LKM

FILE NUMBER: SYF 4257 of 2004

APPEAL NUMBER: EA 72 of 2006

DATE DELIVERED: 24 January 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 24 January 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Browns Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr Lee

SOLICITOR FOR THE 1ST RESPONDENT: K L King & Associates

SOLICITOR FOR THE 2ND RESPONDENT: Senat & Associates (appearance mentioned by consent by applicant)

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Green v Green & Anor.

1. That leave be granted to the applicant to file an Appeal against the orders of her Honour Justice Lawrie of 30 June 2006 and 21 July 2006 in the terms of the draft Notice of Appeal as annexed to the Application in a Case filed 23 January 2007.

2. That the proposed appeal be listed for hearing with appeal EA 72 of 2006.

3. That the appeal books in EA 72 of 2006 be the appeal books for the proposed appeal.

4. That in the event it is asserted by the husband, wife or [LKM] within 14 days of today’s date that any other document should be included in the appeal book for the proposed appeal then the Appeal Registrar shall settle the index for a supplementary appeal book including the date for filing thereof.

5. The husband file and serve his outline of argument and list of authorities by 4.00 pm on 8 February 2007.

6. The wife file and serve her outline of argument and list of authorities by 4.00 pm 22 February 2007.

7. That each party pay their own costs of today’s proceedings.  

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 72  of 2006
File Number: SYF 4257  of 2004

Green

Applicant

And

Green

1^st Respondent

LKM

2^nd Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The application before me is an amended application in a case filed 23 January 2007 by the husband.  The second respondent to the substantive proceedings before Lawrie J was LKM (“the appellant”).  She is the husband’s daughter from a prior marriage.  The first respondent is the wife.  The wife opposes the husband’s application.  The application is not opposed by the appellant.

2. The appellant was originally the cross appellant in an appeal filed by the husband, which appeal was discontinued in August 2006.

The Application

1. The formal application before me as I have already indicated is an amended application filed on behalf of the husband on 23 January 2007. In that application the husband seeks the following order:

   That leave be granted to the applicant herein to file an Appeal against the orders of Her Honour Justice Lawrie on 30 June 2006. and 21 July 2006 in the terms of the draft Notice of Appeal annexed hereto out of time.

2. The application is supported by an affidavit of Mr B sworn 9 November 2006.

3. The wife relies on her Response filed 22 January 2007 and an affidavit of her solicitor filed 22 January 2007.   

Background relevant to this Application

1. This is a somewhat unusual application for an extension of time in which to file an appeal, and some of the matters in the trial Judge’s reasons for judgment and which were referred to by Mr B in his submissions are relevant. 

2. The husband was born in 1920 in Lithuania and the wife was born in 1955 in the Philippines. They began cohabiting in Australia in 1998 and married in the Philippines, according to her Honour, in March 2002.  They separated at the end of May 2004. The trial Judge noted the relationship was of five years and nine months duration. There was one child of the relationship.  She was born in 1999.  Pursuant to the orders of the trial Judge, which are not the subject of an appeal, the child lives primarily with the mother.

3. After her Honour’s reasons for judgment were delivered and within the time provided in the Family Law Rules 2004 (“the rules”), the husband filed a Notice of Appeal in which he sought to appeal against the orders of the trial Judge.

4. In his affidavit in support of this application, Mr B deposes that the appeal was withdrawn by Notice of Discontinuance filed on 24 August 2006.  He further deposes to the appeal being withdrawn because the husband lacked funds to prosecute it, and in particular, that he did not have funds to pay for the cost of a transcript. Before me today Mr B has indicated that the cost of the transcript was to have been approximately $3,300.00.  He also refers to the financial position of the husband as described in his financial statement, which statement has been included in the appeal books currently filed in an appeal between the appellant and the wife.  That financial statement discloses that the sole source of the husband’s income is an aged pension.  These facts are the matters of particular relevance in relation to the background history.

Relevant statute law and rules

1. Section 94 of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D), (2E) and (2F) are also relevant. They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)       for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   (b)  for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

   (c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d)  to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or

   (e)  for an extension of time within which to file an application for leave to appeal; or

   (f)  for security for costs in relation to an appeal; or

   (g) to reinstate an appeal dismissed under a provision of the Rules of Court; or

   (h)  to adjourn the hearing of an appeal; or

   (i)  to vacate the hearing date of an appeal; or

   (j)  to expedite the hearing of an appeal;    

   may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

   (2E) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)     No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

3. Chapter 22 of the rules deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 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. However, today Mr B has advised me that a stay in fact has been sought and obtained by the appellant pending the determination of the appeal between the appellant and the wife.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order. 

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. 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 the leave.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal. 

3. The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 where McHugh J said:

   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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

   “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

4. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Discussion

Will strict compliance with the rules work an injustice on the applicant?

(a)      history of the proceedings

1. I have already set out the background and I do not repeat those matters.

(b)     the conduct of the parties

1. I do not find anything of particular relevance in relation to the conduct of the parties in this matter which requires my consideration.

(c)      the nature of the litigation

1. This was litigation for adjustment of property under s 79 of the Act and the appeal relates to the trial Judge’s orders as to the division of the property between the husband and wife. I accept that unless leave is granted the husband has no opportunity to otherwise challenge the determination of the trial Judge as to the division of that property.

(d)     consequence for the parties of the grant or refusal of the application for extension of time

1. I have already briefly referred to those factors, that is the husband would be precluded from otherwise challenging, absent any grounds under s 79A, the orders of the trial Judge.

(e)      the prospects of success of the appeal

1. It would be entirely inappropriate for me to examine in close detail each of the proposed grounds of appeal. However, I do note that those grounds fall essentially into three substantial categories. The first ground relates to the adequacy or asserted lack of reasons by the trial Judge. The need to give reasons to discern the path by which a Judge has come to a decision are well known and referred to by the Full Court of this Court in Bennett and Bennett (1991) FLC 92-191, where their Honours refer to decisions in other courts, including the decision in Sun Alliance Insurance Ltd v Massoud (1989) VR 8. Prima facie, I am satisfied that there are arguable grounds of appeal related to the adequacy of reasons.

2. The next asserted error by the trial Judge refers to the manner in which the trial Judge dealt with the parties’ initial contributions, and the asserted failure by the trial Judge to assess and give weight to those initial contributions in accordance with the authority of the Full Court in Pierce v Pierce (1999) FLC 92-844. Again, without making any findings as to the merits or otherwise of the ground it does appear to me that that is an arguable ground of appeal.

3. The third and final area is in relation to the trial Judge’s overall assessment of contribution and relevant factors under s 75(2).  I accept that the latter matters are matters within the discretion of the trial Judge and there are difficulties to an appellant in establishing on appeal that such discretion has miscarried, and the order is either manifestly excessive or outside the reasonable ambit of discretion as described in House v The King (1936) 55 CLR 499, but again I would have to say that those grounds are reasonably arguable.

4. In summary, it appears to me that there are a number of reasonably arguable grounds in relation to the proposed grounds of appeal.

(f)       delay by the husband and explanation for the delay

1. Firstly, the husband did file an appeal in time. I accept the evidence of Mr B to that effect. I have regard to the husband’s financial statement that he is in, to use Mr B’s words, a “parlous financial position” and that he would be unable to afford the costs involved in the binding, photocopying and preparation of appeal books and in particular the obtaining of transcript. 

2. I find no criticism should be levelled at the husband for his decision to withdraw the appeal in those circumstances on 24 August 2006.  I accept that there was not a substantial period of time after the period it became clear that the appellant intended to proceed with what was then a cross appeal to then file the original application in this case as amended by the application which is before me today.

(g)      can hardship or injustice to the respondent be compensated by an order for costs

1. This has been the principal basis on which the wife’s opposition to this application has been mounted, although I accept her counsel has put submissions to me about the adequacy of explanation of the delay which I have not accepted. 

2. The wife asserts there would be prejudice as there may be delay because the appellant’s appeal would have to be determined, and then her appeal heard and that this would be prejudicial to her.

3. I am not satisfied that the prejudice is such that it could not be remedied by an order for costs at the end of the appeal process, or by the granting of certificates if it is found that the appeal should be allowed by reason of error of law by the trial Judge. 

Conclusions

1. In Gallo v Dawson (supra) McHugh J noted:

   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 …

2. Having regard to my findings in relation to the proposed grounds of appeal and other relevant matters, I am satisfied it would create an injustice to the husband which outweighs any prejudice to the wife if leave was not granted. I therefore make orders in accordance with paragraph 1 of the Application in a Case filed on 23 January 2007.  I would add to that that the appeal is to be filed within seven days of today’s date.

Costs

1. Mr B has made an application that the wife pay the husband’s costs of and incidental to this application for an extension of time in which to file an appeal.  Mr L, who appears on behalf of the wife, is without instructions and is unable to either consent to or oppose that application. 

2. The normal rule under the Act is that each party should pay their own costs. Relevantly, under s 117(1) the Court may, if there are circumstances, depart from that situation and make an order for costs. The ability to make an order for costs is well known, and I refer to the authority of Penfold v Penfold (1980) 144 CLR 311.

3. In this case I have regard, firstly, to the financial circumstances of each of the parties.  It is clear that at the present time at least neither party appears to have any substantial capital assets, and as before the trial Judge, both parties are in constrained circumstances. 

4. The next matter to which I must have regard is whether or not either party is in receipt of legal aid.  I am aware that the husband is not in receipt of a grant of legal aid.  I do not know what the position of the wife is. 

5. I then have regard to the conduct of the parties and I do not find anything that is relevant in respect of that subsection. 

6. I then deal with whether the proceedings were necessitated by failure of a party to comply with previous orders of the Court, and again I find that it is not relevant. 

7. I then turn to whether any party to the proceedings has been wholly unsuccessful.  In this application the husband has been, prima facie, successful in that leave has been granted. 

8. Subparagraph (f) which deals with offers is irrelevant. 

9. Subparagraph (g) deals with other circumstances as the Court considers relevant.  In this particular case, an indulgence has been granted by the Court to the husband.  I find that is a significant matter.  It is a matter which may tip the balance in favour of making an order for costs.  However, in all of the circumstances of this finely balanced case, I find the appropriate order is that each party pay their own costs of and incidental to this application. 

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  24 January 2007