Haemmerle v Proctor
[2007] NSWCA 260
•17 September 2007
New South Wales
Court of Appeal
CITATION: Haemmerle v Proctor [2007] NSWCA 260 HEARING DATE(S): 17 September 2007 JUDGMENT OF: Giles JA EX TEMPORE JUDGMENT DATE: 17 September 2007 DECISION: Notice of motion filed on 27 June 2007 dismissed. The notice of appeal with appointment which was filed dismissed. The appellant to pay the respondent's costs. CATCHWORDS: APPEAL - extension of time to file notice of appeal - adjustment of interests under Property (Relationships) Act - real property transferred to respondent with provision for relatively small payment to appellant - respondent sold it and spent money on buying home - respondent unwell - extension of time would work injustice on respondent - necessity to consider prospects of success in appeal in order to see what injustice to appellant in declining extension of time - prospects assessed as remote - evaluation made despite inability to examine all the evidence - extension of time refused. LEGISLATION CITED: Property (Relationships) Act 1984 CASES CITED: Gallo v Dawson (1990) 93 ALR 479;
Jackamarra v Krakouer (1998) 195 CLR 516.PARTIES: Maria Haemmerle - Appellant
Edward James Proctor - RespondentFILE NUMBER(S): CA 40498/07 COUNSEL: Appellant in person
M Sidwell - RespondentSOLICITORS: In person
Carlo Bianchino, Coffs Harbour - RespondentLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): Coffs Harbour 75/04 LOWER COURT JUDICIAL OFFICER: Sidis DCJ LOWER COURT DATE OF DECISION: 9 November 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Proctor v Haemmerle [2006] NSWDC 108
CA 40498/07
DC Coffs Harbour 75/04Monday 17 September 2007GILES JA
1 HIS HONOUR: On 27 July 2007 the appellant filed a notice of appeal with appointment appealing from a decision of Sidis DCJ given on 9 November 2006. Together with the notice of appeal she filed a notice of motion applying for leave to file it out of time. These reasons are concerned with the application for an extension of time within which to file the notice of appeal.
2 Under the Rules a holding appeal could have been filed within twenty-eight days, giving a further three months within which a notice of appeal with appointment could be filed. In the circumstances which I will shortly describe, neither a holding appeal nor an immediate notice of appeal with appointment was filed. Hence the notice of appeal with appointment filed on 27 July 2007 was well out of time.
3 The proceedings in the District Court were brought by the respondent. They were an application for adjustment of property interests pursuant to s 20 of the Property (Relationships) Act 1984. The principal item of property involved was a property at Whiskey Creek Road, Dorrigo, which had been purchased in 2002 for $240,000. It was purchased in the appellant’s name with the money of the respondent, who also paid the expenses of the purchase. At the end of 2002 the title to the property was transferred into the joint names of the appellant and the respondent, and the joint tenancy was subsequently severed so that at the time of the hearing in the District Court the parties held the property as tenants in common in equal shares.
4 The judge found that the evidence established a de facto relationship “at least between early 2002 and January 2003”. Under the Property (Relationships) Act it was necessary that the parties live together in a domestic relationship for not less than two years, but with an exception where there were substantial contributions made by one party for which that party would not otherwise be adequately compensated. The judge was satisfied that, if there were a de facto relationship, the exception should be applied.
5 Her Honour determined that the appropriate adjustment would be by transfer of the appellant’s interest in the property to the respondent and payment by the respondent to the appellant, in the light of time and effort spent on some improvements, of $40,000. She made an order for the transfer of the appellant’s interest in the property and payment of the $40,000, with an alternative order providing for listing of the property for sale and division of the proceeds of sale whereby $40,000 went to the appellant and the balance to the respondent.
6 What happened after the judge made her orders on 9 November 2006 was relevantly as follows.
7 On 6 December 2006 the appellant filed a holding summons for leave to appeal.
8 A twenty-eight day stay was obtained in the District Court, and on 9 January 2007 the appellant filed an application in the Court of Appeal seeking a stay of execution. It came before Bryson JA on 5 February 2007, who granted a stay subject to conditions of which the ones of present significance were concerned with expeditious prosecution of the application for leave to appeal. His Honour reserved liberty to apply if certain things were not done by a particular date.
9 Pursuant to that liberty to apply, the respondent applied to revoke the stay of execution. The application came before myself on 14 May 2007. By that date the three months within which an application for leave to appeal had to be filed following the filing of the holding summons for leave to appeal had expired, but no application for leave to appeal had been filed. For reasons I gave on 14 May 2007, I revoked the stay.
10 Thus as at the close of 14 May 2006 there were no appellate proceedings on foot, and the stay preventing dealing with the property in accordance with the orders of Sidis DCJ was no longer in place.
11 On 30 May 2007 the respondent caused the property to be sold for $400,000. The appellant was told by a letter dated 7 June 2007 that the $40,000 would be retained with a view to it being set off against costs ordered to be paid by the judge.
12 The sale of the property appears to have brought the next step, which was the filing by the appellant on 6 July 2007 of a summons in the Equity Division in which the principal relief sought was, in the language used in the summons, an order compelling the Department of Lands to deregister the transfers of title of the property. The appellant’s application came before the Chief Judge in Equity on 13 July 2007 and was dismissed.
13 Also on 6 July 2007 the respondent contracted to purchase a property at Bellingen where he thereafter resided. The purchase price was $295,000. It appears from a chronology annexed by the appellant to one of her affidavits that the summons in the equity division was served by post on 7 July and so far as the evidence shows the respondent contracted to purchase the property without notice of it.
14 Then on 27 July came the notice of appeal with appointment to which I have earlier referred.
15 No affidavit showing an appeal as of right has been filed. In the notice of appeal with appointment the appellant claims that the judgment in favour of the respondent in the District Court be set aside and replaced by a judgment in her favour, and that the respondent pay to her 50% of the proceeds of sale of the property. I doubt that the latter order could be made on appeal otherwise than by consent, and it would not necessarily follow from dismissal of the respondent’s application under the Property (Relationships) Act that the proceeds of sale of the property would be shared equally. However, prima facie that would be the entitlements in that event, and the respondent accepted for the purposes of this application that there was an appeal as of right if brought within time, notwithstanding the absence of the necessary affidavit.
16 The rules as to times for bringing appeals are there in the interests of justice, so that there can be finality in the resolution of disputes. The provision for extension of time is another aspect of the interests of justice. An extension of time can be granted so that the rules as to times for appeals do not become instruments of injustice. As was said by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:
“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 2000 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 Ratnamv 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’."
17 I have referred to the history earlier. The appellant was unrepresented in the District Court and in the appellate endeavours which I have described. As McHugh J said in Gallo v Dawson at 481, lack of legal knowledge is a misfortune not a privilege. Although not a privilege entitling the appellant to more favourable treatment than otherwise, her lack of representation makes understandable the false start in the application for leave to appeal and the failure to progress that in a timely manner, so that by force of the rules it was deemed to be discontinued.
18 From the history to which I have referred, I think it would have been evident to the respondent that the appellant was concerned to do all that she could to rectify what she regarded as a miscarriage of justice worked upon her in the District Court. Nonetheless, after 14 May 2007, it seems to me that the respondent was entitled to do as he did, that is sell the property and use the money to purchase a home for himself. At the time he did that there had been over a month and a half without further steps taken by the appellant, and he was entitled to give effect to the judgment in his favour.
19 The particular point of this is that on the evidence the respondent has no significant assets other than the proceeds of sale of the property at Whiskey Creek Road, now considerably devoted to the purchase of his home, so that if an appeal were to proceed and to succeed it would be necessary for the home to be sold, or for money to be raised on the security of the home, in order that there be the outcome for which the appellant contends (whether or not one available on appeal) that she be paid 50% of the proceeds of sale. It is relevant in that respect also that the respondent is not young, being presently aged 78 and in receipt of an aged pension. As I have said, he has no assets of significance other than what came from the sale of the property, and from the fact of receipt of the pension I would take it that he does not have income of significance beyond the pension.
20 The respondent is not in good health, and in his affidavit says that as a result of the appellant’s actions he has not been able to make plans for his future and feels that there is too much uncertainy for that. He will of course incur costs if the appeal proceeds. If an extension of time were granted, the respondent would therefore be exposed not just to loss of the result in his favour, but to the necessity to sell his home and to the expense and worry which would accompany the prosecution of an appeal even if the appeal were unsuccessful.
21 That makes it in my view particularly important to consider the prospects of success in the appeal. Declining an extension of time if there be reasonable prospects of success will work an injustice on the appellant, to be weighed in the balance. Conversely, if the prospects of success are slight, the weight in the balance against the matters to which I have last referred will be the less.
22 Ordinarily an appellate court does not go greatly into the merits on an application for extension of the time within which to bring an appeal, for the practical reasons that the materials before it and the extent of argument are limited, but the prospects of success are nonetheless relevant. In this case it seems to me that there is a necessity to come to a view as to the prospects of success, because of the matters to which I have last referred whereby the grant of an extension of time would (expense and worry) and could (sale of home) work an injustice on the respondent.
23 The judge stated the issues to be determined, of which the first two were which of the respondent or the appellant she should accept as to the nature of their relationship and whether the nature of the relationship was such that it was a de facto or a close personal relationship. (The reference to a close personal relationship was because that was an alternative relationship which under the Property (Relationships) Act could lead to adjustment of property interests.)
24 On the first of the issues, the judge recounted the respective evidence in brief terms and expressed a clear preference for the evidence of the respondent. She gave a list of reasons for difficulty in accepting the evidence of the appellant, concluding with the statement, “The overall evidence of Ms Haemmerle in both her affidavits and her responses to questions in cross-examination left me with the impression that she would say anything to protect her current position as tenant in common as to a one-half share in the property.”
25 In the course of her reasons as to the first issue, the judge observed that the evidence of two witnesses in the appellant’s case was of little assistance because they dealt with a period many months after the relationship, whatever it was, had concluded. So far as two other witnesses called in the appellant’s case were concerned, the judge preferred the evidence of a Mr Aiken for reasons which she gave in relation to the design of the house for the Whiskey Creek Road property.
26 The difficulties for an appellant seeking to overturn credit based findings of fact are well known. It is not an impossible task, but it is necessary to point to incontrovertable contrary evidence or a clear inconsistency with the probabilities. There is nothing in the judge’s reasons which casts any doubt upon her preference for the evidence of the respondent to that of the appellant, in which the judge included as do I in my reference to it consideration of the evidence of other witnesses. Indeed, the reasons given for the judge’s difficulty in accepting the evidence of the appellant are to my mind very strong.
27 When it came to the second issue the judge went through a number of elements set out in s 4(2) of the Property (Relationships) Act, in the course of which she accepted where it arose the evidence of the respondent in preference to that of the appellant. The evidence was not that of a wholesale long term de facto relationship. The contest was between the sharing of life as companions at the Whiskey Creek Road property, as the respondent contended, and living in the same abode and leading separate lives, as the appellant contended. The judge was particularly impressed by what she called the investment by the respondent of the proceeds of sale of his sole significant asset, being the sale of his home the money from which went to the purchase of the Whiskey Creek Road property, which the judge regarded as “a substantial commitment to a shared life with Ms Haemmerle”. She said that the evidence of witnesses called by the respondent, which she accepted, was that the parties presented as a couple with demonstrations of affection and shared interests.
28 Taking these and other matters which the judge recounted into consideration, she concluded in para 34:
- “The result is that I find that there was sufficient evidence in the elements of common residence, financial dependence, acquisition of property, mutual commiment, performance of household duties and the public aspect of the relationship to establish a de facto relationship at least between early 2002 and January 2003. This was a relationship of relatively short duration in which there was no sexual element. I have already noted that I accept that this is a situation in which the exception provided in s 17 of the Act should be applied.”
29 The grounds of appeal were prepared by the appellant with legal assistance.
30 Ground one was that the judge erred in holding that there had been a de facto relationship between the parties between early 2002 and early 2003 or at all. This did not say anything about where error lay.
31 Ground two was apparently intended to show where error lay, because it was that the judge erred in taking into account “the following facts and factors” in determining whether there was a de facto relationship. There was then set out in a subparagraph with four sub subparagraphs what apparently were intended to be the facts and factors.
32 The subparagraph was, “that the parties met in 1999 and ‘separated’ in 2003 (judgment para 22) in circumstances where: … “. It is not easy to see what error there might have been in this, but it seems to me that the intention was that there was error in referring to separation as if the separation had been that of de facto partners, and that the real asserted errors were intended to be in the sub-subparagraphs.
33 The first sub-subparagraph was that “the relationship was not a alleged by the respondent to have begun until January 2002”, with a reference to the judgment paragraph. The reference does not appear to relate to the sub-subparagraph. The judgment paragraph referred to is para 24 in which the judge records that she accepts the evidence of the respondent as to their sexual intimacy from October 1999 to February or March 2001 when sexual contact ceased. It is quite plain that when the judge found the de facto relationship from at least early 2002, sexual contact at the time took no part in the finding.
34 The second sub-subparagraph was that the sexual relations had ceased in March 2001 at the latest which seems to be the same point.
35 The third sub-subparagraph referred to the parties sharing accommodation on trips away from Sydney, “but in circumstances where they were otherwise living apart”, with a reference to a paragraph in the judgment. From the paragraph it appears that the circumstances where they were otherwise living apart were as recorded by the judge, that they had separate bedrooms in a flat in Dorrigo for the period they were occupying the flat.
36 The fourth sub-subparagraph appears to assert error by the judge in attributing payments and gifts to the period from early 2002 onwards, which implicily in the sub-subparagraph were made at a prior time. The paragraph in the judgment to which reference is made does not attribute the payments to the early 2002 period.
37 Doing the best I can with these grounds, they do not seem to justify any more than that, in coming to the finding of a de facto relationship, there was error in not giving sufficient weight to the cessation of a sexual relationship by March 2001, to having separate bedrooms in the flat in Dorrigo, and to some at least of the payments and gifts preceding early 2002. There is no reason to think that the judge was unaware of any of these matters, or failed to take them into account. I have great difficulty in seeing on the face of the notice of appeal with appointment what error is alleged which could lead to upsetting the judge’s decision.
38 The third and fourth grounds in the notice of appeal of appointment were, in the case of the third, assertions of what the judge should have held and, in the fourth, that the judge was wrong in finding that the requirements of the Property (Relationships) Act were met. Neither of these provided any more substance to the grounds of appeal.
39 In the hearing of this application I sought to obtain an explanation from the appellant of what errors would be sought to be made out. I did not gain enlightenment. Some of what she said was well outside the grounds of appeal, such as assertions of denial of natural justice or the admission of inadmissible evidence. The appellant contended that the “the basic requirements of the Act weren’t met” but when I asked, in the face of assertions of error in the judge’s reasons, for explanation of the error, at no time did the explanation really point to any error.
40 The evaluation which I have come to is that the prospects of success in the appeal cannot be described as slight, and that a better adjective is remote.
41 I am conscious that in Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J, who together with Kirby J formed the majority, said at [9] that although there is apparent strength in the judgment under appeal and the Court feels that arguments supporting the appeal will fail, it is necessary to remember that ‘one story is good until another is told’, and that the Court should remind itself that the parties do not expect to argue the merits as elaborately as if they were arguing the appeal itself. Their Honours held that the Full Court of the Federal Court, from whom the appeal before them was brought, could not come to the conclusion that the appeal had no prospects of success unless it examined all the evidence, particularly the medical evidence, and that there was error in the Full Court deciding that the appeal was without merit.
42 Kirby J expressed himself in similar terms at [71], saying -
- “ … on the face of the reasons of the Commissioner, appears to have substantial difficulties in the way of succeeding in the appeal. But no final conclusion could be reached on such a matter without the transcript and a more detailed review of the issues and argument than was possible in the Full Court's consideration of the two motions before it.”
43 Gummow and Hayne JJ, on the other hand, said at [42] that the appeal was based on grounds of a kind which presented an appellant with particular difficulties, and that they had to be addressed if the appellant was to show that the appeal was arguable; and in particular, that it was not enough for the appellant to say that it would be argued on appeal that the findings of fact were flawed because that said nothing about whether the argument could be maintained. In their Honours’ view the transcript was available to the appellant’s advisers and it was necessary for the appellant to demonstrate that the appeal was arguable, particularly when the Full Court pointed to the importance of the issue.
44 It is for that reason, I interpolate, that I sought to draw to the attention of the appellant the importance of an evaluation of the prospects of success of the appeal.
45 The views of the majority in Jackamarra v Krakouer were expressed in relation to an application for an extension of time to enter an appeal which had been brought within time, although I doubt that the aspects of the judgments to which I have referred were intended to be limited to that situation. Brennan CJ and McHugh J distinguished that situation, being a situation in which an appeal had been lodged within time, from where the right of appeal had gone so that the courts should insist that the time for appealing would not be extended unless the proposed appeal had some prospects of success. But their Honours were also dealing with a case in which the first instance decision, was as Kirby J put it at [72], “a decision not on the basis of credibility but by the application of logic and reason”. It was essentially a question of acceptance of medical evidence.
46 The present case is very different. As I have indicated, it was of great importance in the judge’s decision that she accepted, on grounds involving logic and reason but also her impression of the appellant, the evidence of the respondent and his witnesses. Acknowledging that the evaluation which I have earlier expressed is less than the evaluation which would be made in an appeal, it is nonetheless necessary (for the reasons I have indicated) that it be made, and it seems to me that notwithstanding what is said in Jackamarra v Krakouer, it is one which I must make in order to come to a decision of this application. Bearing in mind what is said in Jackamarra v Krakouer, I consider that it is a sound evaluation.
47 It is then necessary to balance the considerations to which I have referred, and it seems to me that the balance is in favour of the respondent: that is, that in doing justice between the parties the correct exercise of discretion is to decline the extension of time.
48 The orders that follow from that are that the notice of motion filed on 27 July 2007 is dismissed. The notice of appeal with appointment which was filed must accordingly be dismissed, and at least at first sight, although I will hear the parties on it, the appellant must pay the respondent’s costs.
49 Ms Haemmerle, is there anything you can say about that?
APPELLANT: In relation to the costs?
HIS HONOUR: Costs, yes.
APPELLANT: Well, I think that doing justices don’t make it a justice of the matter. I really have nothing to say about costs at this time. I do have alternative remedies and alternative jurisdictions which I am now forced to pursue if the appellate court has dismissed my case and that’s all I can say.
HIS HONOUR: That’s all right but whatever you may think of the decision I have come to, it seems to me to follow from the dismissal of the application for the extension of time that you must pay the costs. But if there is something you feel you can say against it, now is the time.
APPELLANT: No, I’m not in a position to pay the costs at all.
HIS HONOUR: Pardon?
APPELLANT: I’m not in a position to pay the costs as put so what that entails is another matter. I have not had the funds to pay the costs of counsel where the respondent has been aware of this and has taken full advantage of it so that’s fine. If that’s going to continue, then it’s a matter for another jurisdiction. I really have nothing to add because I just--
HIS HONOUR: Very well. Do you seek costs, Mr Stidwill?
APPELLANT: --and you know, there are problems with this judgment so you can do what you like basically.
STIDWILL: Yes, I’m instructed to seek costs, your Honour.
HIS HONOUR: I order the appellant to pay the costs of the proceedings.Ms Haemmerle, I’m sorry, that took a lot longer than I was expecting. I don’t know how that leaves with your train.
APPELLANT: That’s all right, never mind. A minor detail, not a problem.
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