HIGGINS & HIGGINS
[2014] FamCAFC 65
•25 March 2014
FAMILY COURT OF AUSTRALIA
| HIGGINS & HIGGINS | [2014] FamCAFC 65 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL - reinstatement of abandoned appeal. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Clivery & Conway [2010] FamCA 1435 |
| APPELLANT: | Mr Higgins |
| RESPONDENT: | Ms Higgins |
| FILE NUMBER: | SYC | 5083 | of | 2010 |
| APPEAL NUMBER: | EA | 106 | of | 2013 |
| DATE DELIVERED:: | 25 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 25 March 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 June 2013 |
| LOWER COURT MNC: | [2013] FCCA 549 |
REPRESENTATION
| APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Deo |
Orders
The appeal against the order of Judge Scarlett made on 18 June 2013 be reinstated.
The Appellant/Husband file and serve the appeal books in compliance with the procedural orders made on 21 November 2013 on or before 4pm on 23 May 2014.
The Appellant/Husband file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 11 July 2014.
The Respondent/Wife file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 8 August 2014.
Costs of the application to reinstate the appeal are reserved to the hearing of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 106 of 2013
File Number: SYC 5083 of 2010
| Mr Higgins |
Appellant
and
| Ms Higgins |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 18 June 2013 Judge Scarlett made orders and delivered reasons in relation to property settlement proceedings between the parties Mr Higgins (“the husband”) and Ms Higgins (“the wife”).
On 29 July 2013, the husband lodged an appeal against those orders and a conditional stay of his Honour’s orders was granted on 18 March 2014.
Procedural orders for the preparation of the appeal were made on 21 November 2013 and the husband was ordered to file appeal books by 7 February 2014. He did not. By operation of rule 22.21 of the Family Law Rules, failure to file the appeal books by the ordered time resulted in the husband’s appeal being taken to be abandoned on 24 February 2014.
On 13 March 2014, the husband filed an application seeking that his appeal be reinstated and he filed an affidavit in support of that application. The husband was represented by solicitors during the hearing before the judge and those solicitors filed the notice of appeal. Relevant to the present issue, he said:
My then solicitors, Aitken Lawyers, filed an appeal on my behalf in late 2013. The appeal books were to be filed on 7 February 2014. I contacted Aitken Lawyers that day to confirm that the appeal books had been filed with his honourable Court. I was informed by Aitken Lawyers that they no longer acted for me and they had forwarded to me an email to this effect in December 2013. I did not receive this.
The husband submitted that, on about 21 January, he was informed by his previous solicitor that he was leaving the firm. He assumed that the firm of solicitors would continue to act for him. He submits that he made several calls to his lawyer, none of which was returned until 7 February when his previous lawyer rang him and told him to contact the firm. On contacting the firm,
the husband found out that they would not act for him any further and, more importantly, that the appeal books had not been filed in accordance with the orders.
The husband then spent some time trying to secure counsel to act for him because the firm of solicitors were prepared to continue to act if counsel was available. Counsel was not available and the husband now finds himself before the Court with no legal representation.
It seems from the affidavit that the husband was represented during the hearing before the judge and those solicitors filed the notice of appeal. Relevantly to the present issue in his affidavit sworn on 12 March 2014 he said:
3.My then Solicitors, Aitken Lawyers, filed an Appeal on my behalf in late 2013. The Appeal books were to be filed by 7th February, 2014. I contacted Aitken Lawyers on that day to confirm that the appeal books had been filed with this Honourable Court. I was informed by Aitken lawyers that they no longer acted for me and they had forwarded me an email to this effect in December 2013. I did not receive this email.
4.I had received a letter from Aitken Lawyers in late January, 2014 informing me that the partner responsible for my matter,
Mr Brendan Manning was leaving the firm. I assumed that Angelina Torrisi, employed Solicitor, would continue to look after my file.5.During February and early March 2014, I had discussions with Aitkens Lawyers concerning legal costs for the appeal. Agreement was reached with Walter Maccallum, Director of Aitken Lawyers in relation to legal costs, on the basis that if the firm could retain Counsel to act on the appeal, they would also continue to act for me.
6.Unfortunately Mr Maccallum was unable to secure Counsel to act for me and therefore Aitken Layers no longer act for me in this appeal.
The husband’s previous solicitors have provided him with the documents listed in the appeal index so that appeal books may be made up. He says however that he has not obtained a copy of the transcript but says that he will do that in order to complete the appeal books.
The respondent opposes the application saying that the proceedings have been on foot for some time and the matter requires finality. That is a perfectly reasonable attitude to take. The solicitor for the respondent also indicated an understanding of the predicament in which the husband has found himself and suggested that, if the Court was minded to reinstate the appeal, the husband should be ordered to pay the wife’s costs of this application and that any further breach of procedural orders should result in the appeal being abandoned and not reinstated. In my view, neither of those matters is particularly controversial.
Discussion
The principles to be applied when considering an extension of time are drawn from Gallo v Dawson (1990) 93 ALR 479 and in Clivery & Conway [2010] FamCA 1435 and may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Turning then to the relevant matters to be considered, I am satisfied on the material before me that the husband has explained the delay in compliance with the order that brings about the operation of the rule that deems the appeal to have been abandoned. It is unfortunate that he did not become aware of his solicitor’s decision not to act until a time after the time for filing the appeal books has expired. I do not suggest that the solicitors have acted in any dilatory way, just that it seems that a series of circumstances meant that the husband did not receive the letter indicating to him that they would no longer act.
It was not argued by the respondent that the husband’s appeal so lacked merit that to extend time would be futile. I have considered the grounds of appeal and his Honour’s judgment and I could not find that it was so lacking in merit that there would be no point in extending time.
Delay and the expiration of time limits are seen to prejudice to a party who otherwise is entitled to the fruits of a judgment and as Ms Deo for the wife said, the wife wants finality in these proceedings. However, I am of the view that to not exercise the discretion and to extend time in which the husband may file the appeal books and prosecute his appeal would work a significant injustice on him and I, therefore, am of the view that time should be extended and I will make the appropriate procedural orders.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered ex tempore on
25 March 2014.
Associate:
Date: 22 April 2014
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