HAYKAL & KRAWIEC
[2016] FamCAFC 60
•21 April 2016
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC | [2016] FamCAFC 60 |
| FAMILY LAW –APPLICATION IN AN APPEAL –Review of the decision of a Registrar –Where the appellant made several applications for an extension of time in which to file appeal books – Where the Registrar dismissed these applications – Where the appeal was deemed abandoned – Review of Registrar’s decision is hearing de novo – Whether the appellant adequately explained the delay in filing the appeal books – Whether the appeal should be allowed in the light of case management principles – Where the appeal has merit – Where there is little prospect the appellant will file the appeal books on time – Where the public interest and the private interest of the respondent outweigh this merit – Application in an appeal dismissed. |
| Family Law Act 1975 (Cth) ss 44, 102QB, 117 Family Law Rules 2004 (Cth) r 22.40 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Gallo v Dawson (1990) 93 ALR 479 Harris v Caladine (1991) 172 CLR 84 Jackamarra v Krakouer & Anor (1998) 195 CLR 516 |
| APPELLANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| APPEAL NUMBER: | EA | 65 | of | 2015 |
| DATE DELIVERED: | 21 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 31 March 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDERS MADE: | 1 March 2016 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Camilleri |
Orders
The Application in an Appeal filed on 11 March 2016 by Mr Haykal is dismissed.
Mr Haykal is to pay the costs of Ms Krawiec of the Application in an Appeal, fixed in the sum of $1400.00, within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec has been approved by the Chief Justice 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 65 of 2015
File Number: SYC 731 of 2009
| Mr Haykal |
Appellant
And
| Ms Krawiec |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Haykal (“the appellant”) seeks to review a decision of the Appeals Registrar made on 1 March 2016 in which the appellant’s Applications in an Appeal filed on 2 September 2015, 14 October 2015 and 30 November 2015, each of which sought an extension of time to file the appeal books, were dismissed. The effect of that order is that the appellant’s appeal stands abandoned from the close of business on 3 September 2015.
In order to understand the application it is necessary to give some history of the matter.
On 16 April 2015 Watts J gave judgment in proceedings between the appellant and Ms Krawiec (the respondent”). There were two matters before his Honour. The first was whether or not the court should make an order staying an order made on 17 February 2015. That order refused the appellant leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) to institute spousal maintenance proceedings against the respondent. The second matter before the primary judge was whether or not a vexatious proceedings order under s 102QB of the Act should be made.
The stay was refused. In addition the following two orders were made:
2.Pursuant to s 102QB(2)(e) of the Family Law Act 1975 (Cth), the husband be prohibited from instituting proceedings of a type referred to in paragraph (c) (maintenance of one of the parties) and (ca) proceedings between the parties with respect to property of the parties) and other proceedings in relation to completed proceedings of a kind referred to in (c) and (ca) of the definition of “matrimonial cause” in ss 4(1) [sic] of the Act.
3.It is noted that the effect of making Order 2 is to require the husband to seek leave to institute any further proceedings in relation to financial matters between himself and his former wife (see s 102QD(1)(a) and s 102QE(2) of the Act) and the husband must not serve a copy of any application for leave and the supporting affidavit on the wife unless the court so orders (s 102QE(4) and s 102QG(1) of the Act).
On 12 May 2015 the appellant filed a Notice of Appeal against all of the orders made on 16 April 2015.
On 14 July 2015 the appellant filed an Amended Notice of Appeal. Also on that day procedural orders for the preparation of the appeal were made including an order that the appellant file the appeal books by 3 September 2015.
On 2 September 2015 the appellant filed an Application in an Appeal seeking an extension of time in which to file the appeal books to 15 October 2015. In his affidavit in support the appellant referred to his financial hardship and the fact that he lived on government benefits. He said that he was unable to work due to a lower back problem. Copies of a medical report annexed to his affidavit confirmed that the appellant had an L4-L5 broad base disc bulge and a smaller L5-S1 broad based disc bulge.
The appellant said in that affidavit that his reason for seeking the extension of time was that he was applying to his superannuation fund for a release of funds to enable him to prepare the appeal books.
Before that Application in an Appeal could be listed before a Registrar of the court the appellant filed a further Application in an Appeal on 14 October 2015 seeking an extension of time in which to file the appeal books until 30 November 2015. In the affidavit of support of this application he said that he had difficulties seeking the release of funds from his superannuation fund because he had been sent the wrong application and then the promised correct application did not arrive, requiring it to be re-sent.
Again before that application could be listed for hearing the appellant filed yet another Application in an Appeal on 30 November 2015 seeking the extension of time in which to file the appeal books to 30 June 2016. In his affidavit of support the appellant said that:
[A] few days after that application in an appeal of 14/10/2015 was filed into the appeal registry, I started to feel my lower back spine giving me great deal of pain into my spinal disc lower back once more, which totally restricted my movements, forced me to stay in bed, unable to walk out and leave my home most days of each week pass by ,I only could manage the pain using medication as result I could not get my application to my superannuation fund filed for the release of lump sum under financial hardship to enable me to prepare and file the appeal books as per my application to extend the time till 30/11/205.
(as per original)
The affidavit did not refer further to the application for release of funds from the superannuation fund. Specifically the appellant did not inform the court whether that application had been determined or was still in progress.
In addition the appellant deposed to his financial hardship, his physical health, his emotional and mental health as well as his being involved in a parenting application that ran over a period of two years from March 2013 until August 2015, the decision in which was reserved.
The applications were listed before a Registrar of the court on 1 March 2016 and all three applications were dismissed. The Registrar noted that the appeal stands abandoned from close of business on 3 September 2015.
On 11 March 2016 the appellant filed an Application in an Appeal seeking to review the Registrar’s decision.
Rule 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
A party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in an Appeal in the Regional Appeal Registry, within 14 days after the order is made.
The review of a registrar’s decision under that rule is a hearing de novo: Harris v Caladine (1991) 172 CLR 84 at 95 and at 125-126. See also Bele & Vaughan (No.2) (2012) FamCA 125 at [44] and Wellington & The Child Support Registrar [2012] FamCAFC 34 at [25].
In conducting the review the court will have regard to the evidence that was before the Registrar as well as any further evidence adduced by the person seeking the review. In his affidavit in support of the Application in an Appeal seeking the review the appellant in fact did not give any further evidence in support of his application but rather made some brief submissions.
It is necessary to consider whether the appellant has explained the delay of nearly eight months in filing the appeal books.
The respondent did not accept that the appellant’s ill health and impecuniosity affected his ability to lodge the appeal books.
The parties have been engaged in parenting proceedings in this Court which have proceeded from 2011 to August 2015. During that period the appellant had prepared and relied upon literally dozens of documents, including applications in a case, affidavits and subpoenas.
That period, of course, only partially overlaps with the period within which the appellant was obliged to file his appeal books.
Overall, the appellant’s explanation for the delay is not particularly convincing. He describes his attempts to raise money from his superannuation fund only in the most general terms and does not annex any correspondence. His last affidavit is entirely silent as to the issue.
The appellant’s health problems do not seem to be an explanation for the failure to comply with the Rules as they did not appear to restrict him from pursuing his parenting case with rigour. This is particularly so, as the appellant informed me, he is assisted by friends in the preparation of court documents.
All this highlights another issue which is whether any further extension of time would be futile.
As to this issue, two things may be said. First, the appellant has not said how he will pay for the preparation of the appeal books. Although he has approached a firm that prepares appeal books on behalf of litigants, he did not give any evidence as to what the cost might be. The appellant’s financial position is not sound. His sole source of income is a government benefit. A financial statement prepared by the appellant in February 2015 shows his only assets as $4,500 in cash and superannuation of $37,000. The appellant informed the Court, without objection, that $10,000 has since been released to him from that fund.
The appellant is a bankrupt. A sequestration order was made against him on the application of the respondent. The evidence before the Court does not disclose when this order was made.
The appellant said in submissions that friends would lend him any necessary money. He did not say who they were, when they might do so or why they had not already provided the necessary funds.
Secondly, the parenting proceedings have recently concluded. The appellant is unhappy with the orders and has appealed. Thus, he is faced with the double burden of having to prepare and prosecute two appeals.
I am not satisfied that, given any further extension of time, the appellant has the capacity to or will file the appeal books within that time.
This gives rise to further considerations. There is a public interest in appeals being dealt with promptly by litigants. In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at 213:
98.... Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
This consideration justifies the refusal of the application.
Also in AON Risk Services at 192, French CJ said:
30.It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
(emphasis added)
This consideration also favours dismissal of the application.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480 - 481. 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
In Jackamarra v Krakouer and Anor (1998) 195 CLR 516, Brennan CJ and McHugh J said at 519-521:
4.These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question – should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
…
7.Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
(Footnotes omitted)
In that case, Gummow and Hayne JJ said:
33.... So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
34.We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”…
It is therefore necessary to have some regard to the prospects of the appellant’s appeal succeeding, although such a determination is confined by the limited documents available.
The trial judge said:
79.In her affidavit of 23 March 2015, the wife provides a table of the various proceedings which is more detailed than that set out above and calculates that the husband has filed:
79.1.Three applications pursuant to s 79A of the Family Law Act;
79.2.Thirty-seven applications in a case (including nine applications for review);
79.3.Five notices of appeal (including one amended notice of appeal);
79.4.Thirty-three subpoenas;
79.5.Forty-six affidavits (not including an additional twelve affidavits relating to service of documents);
79.6.Two applications for special leave to the High Court.
…
81.The wife complains that throughout the proceedings, the husband has failed to comply with orders requiring him to file documents by a particular date and the documents I have reviewed amply support that contention.
…
85.In addition, the wife says, and I accept, that she experiences the litigation brought by the husband as “relentless”. She has found some of what the husband has filed as “highly offensive” and “scandalous”. She gives examples of the husband gratuitously referring to sexual activity between herself and Mr [R], suggesting that she may “prostitute” herself and that she and Mr [R] are “morally corrupted people”. The wife says that she has experienced the communication from the husband as threatening and harassing. I note at [5] of my reasons of 17 February 2015 that in [15] of the husband’s affidavit of 30 July 2014 he wrote that the wife “has got blood on her hands”. There is other objectionable material in [24] to [27] of that affidavit.
…
91.I find that, arising from my discussion of the history of the litigation in various courts, the husband has both instituted and conducted proceedings in a way to harass or annoy or cause detriment to the wife. Such a finding attracts the definition of vexatious proceedings contained in s 102Q(1)(b) and (d) of the Act.
92.I find that the husband has frequently instituted or conducted vexatious proceedings in Australian courts.
The respondent complains that throughout the proceedings, the appellant has failed to comply with orders requiring him to file documents by a particular date and the documents I have reviewed amply support that contention.
The grounds of appeal as set out in the appellant’s Amended Notice of Appeal are in handwriting and not easy to read. The Amended Notice of Appeal, however, makes it clear that the appellant is only appealing against orders 2 and 3 as set out above. The amended grounds of appeal are:
1.His Honour erred in the findings that led to the making of orders 2 and 3 of 14/04/2015
2.His Honour erred in not taking into account the respondent history of misleadig appllant and the family court by way of swearing false financial statments and holdig critical taxtion documents from the father of the children
3.Swearing false affidavits that she was and is the prime carer for the children in contrrary
4.In the eviednce preduced in the subpoenas to the LARM compny “the office securty compny” and to Department of Imgration also to mob phone records and the landline of the home phone records all indicates strongly the chang of circumstnces that was enough to set aside the orders of Justice Peter Murphy in 17/05/2012 which lead to the cost order made against me.
Justice Watts earred at law for conceding that I’m a father to the children and do have duty of care to my children and that I’m under the Family Law Act 1975 and its relavat sections have my rights as father to institate and filed application for parenting chang of circumstances is established
5.For my applicatons an s 79A, His Houner earred in taking in consedration that due to the bankrubptcy proceedings I did not file or object to the trustee desion to discontinue my 79A application for the duration of 3 years only. My staing that I will reopen my property rile after 3 years is lawfull and within the law.
6.His Honour earred in not taking into account that the fedral ciruit court and the federal court of Australia in the proceedings in the bankrubpcy to allow the extetion of time Reasons of Judgment the respected judges did strongly note that the respondent [Ms Krawiec] has sworn fals financial statment, have misled the father and the family court about her true financial possion at 12/08/2010 and stoped short from granting the extetion as the blame was placed over the lawyers of May 2012 when adviced me to withdraw my s 79A nonon discloser in light of all the evidence that was avalable on the day.
7.That in a property matter based on fresh evedince and new evidence that was not avalble on May 2012 in the famly court which I did obtain via subpona in the bankrubcy proceedings, allow me to reopen my property matter after the period by the law is stoping me from doing so as per th trustee dirctions which I did not object to.
(as per the original)
It is difficult to understand the appellant’s grounds and thus to determine whether there is a ground of appeal that has merit. I am not prepared to find that the appeal is devoid of merit.
I accept that the orders against which the appellant appeals are orders of significance and importance and the court should not readily shut out an appellant who seeks to pursue an appeal against orders of that kind.
The appeal books were due over seven months ago. I have found that the appellant has not satisfactorily explained the delay in filing the appeal books. Despite in effect having three extensions of time, the appellant has not yet filed the appeal books and there is no prospect that he will do so in the near future. I am not satisfied that if an extension of time were now to be given to the appellant, the appeal books would be filed within time. Indeed it is much more likely than not that they would not be. The delay is now a gross delay which requires both the private interest of the respondent and the public interest to be considered.
However, taking all these matters into account I am not satisfied that there should be an extension of time until June of this year for the appellant to file the appeal books. The Application in an Appeal for review of the Registrar’s decision will be dismissed.
Costs
The respondent sought an order for costs in the event that the Application was dismissed and that those costs be assessed in the sum of $1400.00.
Costs are governed by s 117. Unless there are circumstances justifying another order, each party is to bear his or her own costs. In considering whether to make such an order the Court is to have regard to s 117(2A).
The evidence demonstrates that the appellant’s financial position is poor. Impecuniosity is, however, not determinative, otherwise an impecunious litigant could pursue litigation with impunity: Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
There is no evidence as to the respondent’s financial position.
The appellant was wholly unsuccessful. Although he acted promptly in bringing his applications for an extension of time, by doing so he effectively gained extensions of time with which he did not comply.
Whilst taking all these matters into account I consider that the last two carry significant weight. There will be an order that the appellant pay the respondent’s costs.
The next issue is whether I should fix the costs. The sum of $1400 is calculated in accordance with the Costs Agreement between the respondent and her lawyers. Up to and including the appearance before the Registrar the costs totalled $567.60. Thus the costs in the appearance in the Application and the preparation of written submissions was of the order of $932.00. The lawyer who appeared had, according to the costs disclosure, charged $430 per hour.
The sum of $1400 is therefore reasonable.
I consider that I should fix the costs because of the reasonableness of the fees, the small sum involved and because the cost and inconvenience of taxation would be out of all proportion to the fees involved. There will be an order to that effect.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 April 2016.
Associate:
Date: 21 April 2016
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