Hillier and Wooton
[2017] FamCAFC 148
•26 July 2017
FAMILY COURT OF AUSTRALIA
| HILLIER & WOOTON | [2017] FamCAFC 148 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant husband failed to file and serve the appeal books – Where the respondent opposes reinstatement – Where the failure to file the appeal books within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where there is little prejudice to the respondent – Application allowed |
| Family Law Rules 2004 (Cth) r 22.21 |
Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88
| APPLICANT: | Mr Hillier |
| RESPONDENT: | Ms Wooton |
| FILE NUMBER: | CAC | 2423 | of | 2007 |
| APPEAL NUMBER: | EA | 198 | of | 2016 |
| DATE DELIVERED: | 26 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 November 2016 |
| LOWER COURT MNC: | [2016] FamCA 965 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
Orders
That appeal EA 198 of 2016 be reinstated.
The applicant file and serve the appeal books by 4:00pm on 28 July 2017.
That the respondent’s application for costs in relation to the Application in an Appeal filed 6 July 2017 be dismissed.
It is noted
That the solicitor for the applicant will not bill him in relation to the application referred to above.
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 Hillier & Wooton 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 198 of 2016
File Number: CAC 2423 of 2007
| Mr Hillier |
Applicant
And
| Ms Wooton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 6 July 2017, Mr Hillier (“the husband”) seeks to reinstate his Notice of Appeal filed 9 December 2016 as subsequently amended. The appeal, which is against costs orders made by Watts J on 11 November 2016, was deemed abandoned because the husband failed to file and serve the appeal books by 27 June 2017. By operation of r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was taken to be abandoned. Hence the application for reinstatement.
Ms Wooton (“the wife”) is the respondent to the appeal and the application for reinstatement. It is her position that the application should be dismissed.
Relevant background
On 7 October 2011 the wife filed an Application for Final Orders, seeking that a financial agreement entered into between herself and the husband on 21 May 2007 be set aside. An Amended Application was filed on 8 February 2012. Since filing, the issues between the parties had expanded considerably.
The husband’s response, filed 22 March 2012, sought to maintain the validity and binding nature of the financial agreement as a complete bar to any application by the wife for a property settlement order.
The hearing of the application commenced in the Federal Magistrates Court on 17 September 2012. The husband made an application for the Federal Magistrate to recuse himself. The recusal application failed and the husband appealed the dismissal of his application. The proceedings were then adjourned, pending determination of the appeal. On 15 February 2013, the Full Court allowed the husband’s appeal and the proceedings were to continue, albeit before a different judge. On 4 March 2013, the proceedings were transferred to the Family Court.
By application of the husband, directions were made on 9 August 2013 providing for the wife to be examined by a forensic psychiatrist to obtain an opinion about her state of mind when she entered into the financial agreement at issue. The parties appointed Dr C on 5 December 2013 to undertake that assessment. It would seem that there was then some delay in the parties complying with directions to provide instructions to Dr C, as well as the time he took to complete his investigations. The report was not made available until August 2015.
The hearing commenced before Watts J on 9 May 2016 and continued until 17 May 2016 when, at the request of the parties, his Honour made a series of consent orders and a notation which finalised that tranche of the proceedings.
An application was made by senior counsel who appeared for the wife, on 17 May 2016, for the husband to pay the wife’s costs. An order for costs in favour of the wife was made on 11 November 2016 and it is that order which is the subject of the appeal sought to be reinstated.
I note that the husband filed an application for the stay of the orders on 7 March 2017. This application is listed before Watts J on 17 August 2017.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). At page 480 the High Court 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.
The decision of the High Court in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”), in particular, Gummow and Hayne JJ at [33] is also relevant:
…[W]hen 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…
Although Gummow and Hayne JJ refer to a time period fixed by the rules, their remarks are equally applicable to time fixed by an order. As will shortly be explained, responsibility for the delay sits solely with the solicitors who appear for the husband. In my view, the husband should not be penalised for the mistakes of his solicitors.
Delay
Turning to the question of delay, consideration is to be given to whether the husband has provided an adequate explanation for his failure to comply with the timeframe for filing the appeal books. The explanation is initially provided in the affidavit of the solicitor for the husband filed on 6 July 2017. As I will shortly explain, it has been added to and clarified this morning.
According to the affidavit sworn by the solicitor for the husband, the firm was subject to a number of unanticipated delays in obtaining the transcript and compiling the appeal books. It was said that as the result of the long history of litigation between the parties, the appeal books will be voluminous, consisting of some nine volumes, containing 83 documents.
It was submitted that since the proceedings commenced, the husband has retained three different legal firms, the effect of which was that the current firm had incomplete access to documents previously filed.
Finally, the transcripts required for the appeal book are voluminous and it was said that due to an error on the part of the husband’s accountant, the funds for the payment to the transcription provider were not provided until 29 June 2017.
However, the affidavit of the solicitor for the husband invited more questions than it answered. The Court record revealed that the current solicitors filed a notice of address for service in November 2016, some seven months before the appeal books were due to be filed. In answer to inquiries from me this morning, the solicitors advised that the transcript was only ordered on 23 June 2017, some four days before the appeal books were due. That delay was occasioned by a misunderstanding by the solicitors as to the extent of transcript that had previously been obtained by the husband. They thought the transcript obtained was more extensive than it was and it was only in the final stages of preparation of the appeal book that it became apparent to the solicitors that they did not have the complete suite of transcript required in order to comply with the directions for the appeal books.
The situation that unfolded is plainly the responsibility of the solicitors and the attempt to mask that fact by deposing that the transcript service provider might have been responsible or that seven months was not sufficient to put together a complete set of documents is most regrettable.
On 14 June 2017, the solicitors for the husband sought the consent of the wife to an extension of time to file the appeal books. Consent was not given and a further letter was sent on 29 June 2017. Of course, by then, it was too late because the appeal had been abandoned. Nothing the solicitors for the respondent could do would solve that problem, although reinstatement may have been easier to achieve.
The affidavit of the solicitors for the wife contends that the delays by the husband in prosecuting his appeal have prejudiced her. In her affidavit, she deposes to having borrowed an extraordinary $480,000 from her mother to pay her legal costs, which she says she has been unable to repay because the costs proceedings remain unresolved. It is difficult to be sympathetic to the wife if she is willing to incur costs of that magnitude. I cannot see that this should weigh heavily in her favour as prejudice.
In any event, the solicitors for the wife adduced evidence that the husband had failed to comply with orders in a number of important respects, in particular procedural orders of 1 February 2017 which, it was said, required him to file and serve the appeal books by 15 March 2017. As senior counsel for the wife acknowledged at the outset this morning, that evidence was wrong. There were no procedural orders of 1 February 2017 to that effect. What seems to have transpired, as is the usual course, is that the Appeals Registrar provided a set of draft orders that were to be considered at the procedural hearing on 1 February 2017. However, the husband was unwell and that hearing was adjourned without the draft orders being made.
In a case with some history, it behoves a solicitor, before going on affidavit as to important events which are relied on in support of the position adopted by the client, to ensure that the information they depose to is correct. I do not suggest that there was an attempt to mislead, but the fact of the matter is that the affidavit did mislead and it is most unfortunate that I and senior counsel who appeared for the wife today needed to deal with that issue.
The appeal books were received by the Appeals Registry on 6 July 2017, but they were rejected as they did not comply with the procedural orders of 2 May 2017 and the appeal had been abandoned. I note that contrary to order 5 of the procedural orders, the transcripts were contained in the appeal books instead of having been provided electronically. The appeal books were uplifted and I am advised today that the appeal books could be filed and served contemporaneously with an order for reinstatement.
Merits of the appeal
Turning, then, to the merits of the appeal, given the statements in Jackamarra to which I will shortly make reference, and as senior counsel for the wife acknowledged this morning, the merits in a case such as this are of little relevance, unless it is patent that the appeal is doomed to fail. At paragraph 7 of Jackamarra, Brennan CJ and McHugh J said:
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.
(Footnotes omitted)
On this basis, the appeal should be reinstated.
Prejudice
Prejudice is an issue, as the decision in Jackamarra makes plain. But the prejudice here would be primarily to the husband in denying him the opportunity to pursue an appeal that was filed within time.
It is accepted that if the appeal is reinstated, the wife will incur further legal expenses and need to deal with the stress associated with litigation. But as I understand it, the litigation proceeds at trial level in any event, and the quest for the containment of legal expenses to reasonable costs seems to be a horse that bolted a long time ago.
On balance, the factors which weigh in favour of reinstatement overwhelmingly favour an order for reinstatement, and I make an order to that effect.
Conclusion and costs
The respondent seeks her costs of resisting this successful application for reinstatement. Ordinarily, in proceedings under the Act, parties meet their own costs, unless there are circumstances which justify an order for costs.
Here, the circumstances said to justify an order for costs are the failure of the husband, through his solicitors, to fully disclose the fact that the fault in filing the appeal books in time was the responsibility of the solicitors. In my view, reading between the lines of the affidavit sworn in support of the application for reinstatement, it is reasonably clear that the responsibility for the delay sat with the solicitors and not with the client. The delay itself was a matter of days.
Importantly, the opposition to the reinstatement was originally maintained on the basis of a misinterpretation of orders of 1 February 2017. It seems to me that the position adopted by the wife may well have been heavily influenced by that fact whereas, had she proceeded on the basis of the orders actually made. That may have influenced her position in a different direction.
I am not satisfied an order for costs is appropriate and it will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 July 2017.
Associate:
Date: 1 August 2017
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