HEATH & HEATH
[2018] FamCAFC 28
•12 February 2018
FAMILY COURT OF AUSTRALIA
| HEATH & HEATH | [2018] FamCAFC 28 |
| FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the husband filed an application to extend the time to file a Notice of Appeal – where the delay was due to a mistake by the husband’s solicitor – where the fact that the delay was not the fault of the husband was a factor that supported the granting of leave – where nevertheless the question is what determination will do justice between the parties – where the appeal had no prospects of success – where the parties were aged 71 and 78 years at the time of trial and married for 45 years – where the primary judge made significant findings of family violence perpetrated by the husband – where an appeal would involve the wife in significant delay and expense – application dismissed – parties ordered to bear their own costs. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 Nada & Nettle (Costs) (2014) FLC 93-612 |
| APPLICANT: | Mr Heath |
| RESPONDENT: | Ms Heath |
| FILE NUMBER: | BRC | 7757 | of | 2015 |
| APPEAL NUMBER: | NOA | 67 | of | 2017 |
| DATE DELIVERED: | 12 February 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 12 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 2007 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr G Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Jones Mitchell Lawyers |
Orders
The Application in an Appeal filed 21 November 2017 is dismissed.
Each party bear their own costs of and in relation to this Application.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heath & Heath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 67 of 2017
File Number: BRC 7757 of 2015
| Mr Heath |
Applicant
And
| Ms Heath |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT[1]
[1]As was stated would occur when this judgment was delivered orally, citations quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons. Headings have also been added to the settled reasons for ease of reference.
On 23 August 2017 Judge Middleton made final orders for settlement of property. The husband seeks leave to appeal those orders. Leave is necessary by reason of the late filing of his Notice of Appeal.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) prescribes a time limit of 28 days after the date of the orders for the filing of a Notice of Appeal. The Notice of Appeal in this case was to be filed by 20 September 2017. His application for leave was filed on 21 November 2017 but in circumstances to which reference will be made.
The husband was self-represented at trial and at the hearing before me. He initially sought the assistance of an interpreter in his native European language. Unfortunately, a serious family emergency for the court appointed interpreter meant that he could not attend for the proceedings this morning.
The Court nevertheless made arrangements for an interpreter (whose first language is similar to the husband’s native language) to be available so as to interpret for the husband.
At the outset of the proceedings I ensured that the husband would understand everything that I said in English. He assured me that he would, provided that I spoke slowly.
It should be recorded that my observations of the husband in the courtroom, noting that he has been in this country for more than 50 years, were that we had no language difficulties in communicating with each other. He indicated no difficulty in understanding me nor did he appear at any stage to not understand me. I had no difficulty understanding him and he spoke in English the whole time.
Applicable Principles
The principles to be considered in relation to an extension of time are broadly similar to those which apply to the reinstatement of an appeal, and are generally considered to follow what McHugh J said in Gallo v Dawson:
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. 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.[2]
[2] (1990) 93 ALR 479 at 480.
In Joshua v Joshua, a decision of Lindenmayer J of this Court, his Honour referred to those principles:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…[3]
[3] (1997) FLC 92-767 at 84,440.
Lindenmayer J’s statement should not be taken as laying down principles in the nature of “legislative directions”. The search in applications of this type is always for the justice of the case. McHugh J in Gallo said “[t]he discretion to extend time is given for the sole purpose of enabling the court … to do justice between the parties”.[4]
[4](1990) 93 ALR 479 at 480.
The Grounds Of Appeal And Issues Sought To Be Agitated
The grounds of appeal appearing in the draft Notice of Appeal were, it seems clear, drawn by the solicitor previously representing the husband. They are, with respect, poorly drawn and lacking in particularity.
The grounds are, in fact, more in the nature of submissions with 22 paragraphs presenting what would appear to be arguments supporting otherwise un‑particularised headings. The headings, apparently constituting the grounds are as follows. My comments in respect of them also follow each:
·“The learned judge erred on the facts.”
This appears to be related to assertions about findings made by the primary judge in respect of a central issue in the proceedings, namely whether the husband owed amounts to his brother and others in specified amounts. His Honour’s findings were to the effect that no such loans were established on the evidence before him.
·“The learned trial judge’s decision is plainly wrong.”
The husband argues that he is unable to meet obligations under the orders, and that the findings in relation to money he has at his disposal are erroneous. This, too, seems to be a challenge to his Honour’s findings in respect of the alleged loans, but expressed in a different form.
·“The learned trial judge provided inadequate reasons.”
Lack of adequacy in the reasons is, of course, a recognised form of appealable error but as “particularised” the argument appears to be that the reasons are inadequate because the primary judge rejected the husband’s evidence and arguments. Again, this is a subset, as it seems to me, of the husband’s case in respect of the alleged loans.
·“The learned trial judge failed to afford procedural fairness.”
The husband argues that the primary judge didn’t take into account his difficulty with English during the proceedings, and did not take into consideration his lack of procedural and legal knowledge. My comments earlier made in respect of the husband’s appearance before me this morning and his use of the English language and his comprehension of it pertain. Moreover, the argument appears to be a claim, undoubtedly true as it seems on the evidence, that the husband is unfamiliar with the law and with legal principles. So much might be true, but it is not a ground of appeal unless it otherwise results in procedural unfairness and I can see no such particularity of any such procedural unfairness in this case. A reading of the material before me suggests that to be the case.
·“The learned trial judge was biased.”
The husband seeks to argue that the primary judge’s comments about the husband’s manner or presentation and honesty in the court show bias against the husband. That is, it appears that the husband seeks to agitate a case of actual bias. I will deal with that further shortly.
The Context For The Husband’s Application
Delay
Although the husband was self-represented before me and before the primary judge, he received advice from solicitors in respect of the appeal who were instructed to file a Notice of Appeal on his behalf. They did so late, on 21 September 2017.
The solicitor, in an affidavit filed in support of this application, admits with appropriate candour that the late filing was entirely his mistake and was unrelated to any action or lack of action by the husband.
The solicitor swears that he was approached in mid-September for advice regarding the appeal, and obtained transcripts for the husband in relation to it. The solicitor states that on the afternoon of 20 September he obtained instructions from the husband to file the Notice of Appeal. He mistakenly believed that he could do so within time on 21 September. The application to extend time was filed two months later, on 21 November. The husband’s solicitor swears that this delay, that is the delay between 21 September and 21 November, was due to his ill health and his other workload.
The effect of the solicitor’s evidence is that the failure to file the Notice of Appeal and the subsequent delay in filing this application is not attributable to any act or omission on the part of the husband himself. The solicitor subsequently ceased acting for the husband.
In written submissions, counsel for the wife seeks to draw attention to the fact that the husband didn’t seek advice until the time for filing had almost expired, and that there was “no explanation offered for the failure of the [husband] to notify the [wife] of his intention to file an Application until 16 October”.[5] In addition to this, counsel for the wife submits that “[t]he explanation for the subsequent further delay of nearly 5 weeks, namely that the legal practitioner was busy, is no real explanation at all”.
[5]Wife’s Summary of Argument filed 2 February 2018, paragraph 24.
Be all that as it may, the fact is that no issue of leave would arise but for the solicitor’s error which was not attributable to the husband. The time when the solicitor was consulted is, in my view, irrelevant to that error.
Conduct, Merits and Consequences for the Parties
The actions and inaction of the solicitor precluded the husband otherwise appealing as of right. On the solicitor’s (appropriately frank) evidence, no actions or inactions of the husband contributed to the failure to file or the delay in applying for leave and thus did not contribute to the husband losing a right he would otherwise have. That is a very powerful factor in favour of granting leave.
However, the search is solely for a determination that does justice between the parties. Other factors must also inform the exercise of that discretion.
Axiomatically, an appeal will involve the wife in further time, trouble and, significantly, expense. I can make no finding as to whether the wife is correct in asserting that the husband’s appeal is a conscious act designed to delay her in receiving the fruits of her judgment. That submission is made, it might be noted, in the context of findings made by the primary judge of family violence perpetrated by the husband upon the wife.
It is beyond dispute, however, that the appeal will have the consequences of delay and expense for the wife. (Although no stay has been applied for or granted, the husband has not complied with the terms of the order pending this application and, if leave is granted, he would appear to have a reasonable case for the granting of a stay).
The refusal of leave will deny the husband the opportunity to pursue a right that would otherwise be available to him, as I have earlier said. However that right is not unfettered in circumstances where it is necessary to seek the instant indulgence from the court; the reasonable prospects of the success of the proposed appeal will always be relevant.
I am unable to determine on the relatively sparse evidence before me whether if the appeal proceeds and fails, the wife might be compensated by an order for costs. However, the gravamen of his Honour’s orders is to the effect that the husband would retain a property in exchange for a payment to the wife of a cash sum. His Honour ordered that in the event that the cash sum was not paid, as ordered, the property which vests in the husband pursuant to the orders would be sold so as to satisfy that cash sum. Mr Shoebridge, who appears for the wife in the application before me, effectively concedes that it is likely that the property would, as it were, provide a default means of satisfying an order for costs in the event that the mooted appeal is unsuccessful and the costs of the appeal were ordered against the husband.
In his written submissions, counsel submits on behalf of the wife that dismissing the husband’s application will not cause injustice to him. Further it is submitted that the Application in an Appeal and the appeal itself is an attempt by the husband to prevent the wife from accessing the fruits of a judgment to which she is entitled. My earlier comments in each of those respects pertain.
The husband sought to adduce evidence on this application before me. I sought to explain that it was his obligation to adduce all such evidence in support of the application as he might when it was filed. The evidence which he sought to adduce was not otherwise contained in the material filed by him in support of the application. One document was admitted by consent. It did no more than provide a copy of what appears to be an extract from the website “realestate.com”. I suspect that the document is said to be relevant to what I will call the valuation issue, but otherwise it has no relevance that I can see to the instant application.
The receipt of other documents into evidence by the husband was opposed. The nature of those documents indicates to me that they are not relevant to any of the proposed grounds of appeal nor, more particularly, to the application before me. There is, I think, force in what Mr Shoebridge submits, that the documents simply amount to an attempt to re-agitate issues that were agitated in the proceedings before his Honour.
What I have already said about the grounds of appeal, and the issue of the asserted loans at the centre of many of them, reveals that there might be considerable doubts as to the merits of the appeal. Reference to his Honour’s reasons exacerbates strongly those doubts.
The husband was 71 at trial, and the wife 78. The parties were together for 45 years, living together from 1970, marrying in February 1974 and separating in February 2015. The 45 year history of the relationship includes findings made by the primary judge in relation to family violence by the husband against the wife.
In the proceedings below, the husband asserted that he owed an amount of $46,085.76, to his brother. That was said to be the remainder of a larger loan, in an amount of $232,439.55. The husband appears to have asserted before his Honour that the balance had been paid back. The facts and circumstances surrounding the alleged loan were unusual and the evidence supporting the same virtually non-existent, as far as I can tell, save for assertions by the husband which his Honour did not accept.
On 6 July 2015, the husband drew a bank cheque on his account in an amount of $186,353.79. The cheque was drawn in favour of himself. Some seven months later, the cheque had not been presented for payment. The bank wrote to the husband enquiring why a bank cheque in such a large amount had not been presented. The husband wrote to the bank saying that the cheque had been given to his brother and that “the cheque will be presented when the exchange rate is more favourable than current exchange rate” (at [53]).
When the trial took place more than a year later:
·No evidence was called to the effect that the cheque had been presented;
·No documentary evidence of the existence of the alleged loan was adduced much less its asserted terms; and
·The brother to whom in the region of $200,000.00 was owed was not called as a witness.
The primary judge was “not satisfied that there was a loan established totalling $232,439.55” (at [70]).
Yet other loans were alleged to be owing by the husband to other people; I gather, primarily friends. Each of the three characteristics just outlined also pertained to those alleged loans. The primary judge was not satisfied of the existence of any of them.
Notwithstanding the necessity to “consider the prospects of the applicant succeeding in the appeal”,[6] in my view care should be taken to ensure that the instant proceedings are not used for the forming of conclusions more properly left to an appeal hearing. Yet, such a conclusion might be drawn when the evidence on such an application does not reveal arguments reasonably supportive of appellate success. That can be seen to be all the more so where a discretionary decision is the subject of prospective challenge.
[6]Gallo v Dawson (1990) 93 ALR 479 at 480.
In the instant case, nothing within the husband’s material nor anything to which the husband has taken me this morning suggests any appealable error in respect of the husband’s challenges centred on the alleged loan/s. Nor are his Honour’s reasons inadequate. No arguments have been foreshadowed (whether in respect of the “grounds” as currently pleaded or as might be amended) which, in my view, have any reasonable prospects of success.
As to the asserted lack of procedural fairness and, it seems, actual bias, the primary judge’s reasons reveal an entirely conventional approach to the evidence before him, and findings as to the veracity and credit of the parties.
His Honour noted the discomfort for the wife when being cross-examined by the husband, who his Honour found to have committed violent acts against in the course of their relationship. His Honour found that where the evidence of the husband and wife conflicted, the evidence of the wife was to be preferred. Reasons were given for that conclusion. By reason of the manner in which the husband chose to conduct his case and the evidence he chose not to call, a finding as to the reliability and veracity of the respective parties’ evidence was central to the findings that needed to be made.
In the material adduced before me, the husband does not refer to any passages in the reasons or transcript indicative of his assertions or from which his assertions of bias or lack of procedural fairness could be discerned or inferred. In my view a reading of the reasons and the other material before me indicates that the evidence before his Honour falls into the categories which I have just described.
Nothing to which I have been taken by the husband this morning or anything on the record which I have read for myself suggests that there are any realistic prospects of establishing either a lack of procedural fairness or actual bias on the part of the primary judge.
I conclude that the appeal has no real prospects of success.
Conclusion
The husband’s inability to appeal as of right arises from circumstances not of his doing. No undue delay in prosecuting his claim could be attributed reasonably to him. That is a powerful pointer to leave being granted as I have earlier said.
Other factors must be considered in assessing the justice of the case.
The 78-year-old wife seeks the fruits of a judgment that, by definition, seeks to bring to an end the financial relationship of parties who were together for 45 years. The appeal will involve her in the stress and expense of litigation, the latter of which, it seems to me on the whole of the evidence, she can hardly afford. Whilst there is some prospects of costs if awarded being met, they would not, in my view, cover the entirety of the costs incurred by her in defending the appeal, and that is all the more so by reasons of the difficulties created by the husband’s self-representation and the discursive nature of the arguments he advances accordingly.
On the material presented by the husband in this application, it is not demonstrated that the appeal has reasonable prospects of success. All of the material presented and the husband’s oral arguments indicate strongly to the contrary. As has been made clear in the earlier authorities, lack of success, if firmly established, is a very powerful factor against the granting of leave.
In all of the circumstances, I consider the overall justice of the case requires leave to be refused.
Costs
At the conclusion of my oral reasons this morning I sought submissions in relation to costs. Mr Shoebridge on behalf of the wife seeks her costs. In the written outline of argument filed on her behalf, Mr Shoebridge sets out the relevant costs which are claimed by reference to the scale.
The principles governing costs in respect of an application of this type are no different to the principles which govern the awarding of costs in any other proceedings pursuant to the Family Law Act 1975 (Cth) (“the Act”); that is to say s 117(1) of the Act provides what might be called the default position which is that each of the parties to the proceedings shall bear his or her own costs.
Mr Shoebridge points to the fact that the husband comes to the Court seeking an indulgence and that he has been wholly unsuccessful in seeking that indulgence. Mr Shoebridge also argues, inferentially in that respect, that the merits of the application should be judged by the grounds and arguments advanced by the husband, comments about which I have already made in my reasons.
The husband says that he has come to the Court pursuing a remedy only because of the actions, or more accurately the inactions of his former solicitors. He says he should not be punished for the fact that this application has not succeeded and in that respect he seeks to emphasise that he is pursuing a right which he would otherwise have had. It is important that I say for his benefit, as Mr Shoebridge correctly submits, that costs are not awarded as a punishment and if I were to award costs they would not be as a punishment against him, but rather a decision made by reference to s 117(2) and (2A) of the Act.
The husband says, without reference to any evidence before me, that the property which vested in the wife pursuant to his Honour’s orders is being tenanted by the wife and she is receiving $450 a week. He says that, by way of contrast, he is significantly financially impecunious. It has been said on many occasions that impecuniosity is not of itself a determinative factor in the issue of costs because if it were people could litigate with both impunity and immunity.[7]
[7]Nada & Nettle (Costs) (2014) FLC 93-612 at 79,589; See also, Lenova & Lenova (Costs) [2011] FamCAFC 141.
In the circumstances of this case the husband has effectively been forced to pursue this remedy by reason of the inactions of his solicitor, or more accurately the mistaken actions taken on his behalf by his solicitor. It can be said, of course, that if that is the case, he may well have a remedy that lies elsewhere. Whilst that may or may not be correct, the reality of what is involved for him in pursuing any alternative remedy that he may or may not have is also a factor I take into account.
In all of the circumstances of this case I propose to order that each party bear their own costs of and incidental to the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Murphy delivered on 12 February 2018.
Associate:
Date: 23 February 2018
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