Ibbott & Ibbott and Anor
[2008] FamCAFC 104
•24 April 2008
FAMILY COURT OF AUSTRALIA
| IBBOTT & IBBOTT AND ANOR | [2008] FamCAFC 104 |
|
| Family Law Act 1975 (Cth) s 117 |
McMahon & McMahon (1976) FLC 90-128
Tormsen & Tormsend (1993) FLC 92-392
Gallo & Dawson (1990) 93 ALR 479
| APPLICANT: | Ms IBBOTT |
| FIRST RESPONDENT: | Mr IBBOTT |
| SECOND RESPONDENT | S PTY LTD (IN LIQUIDATION) |
| FILE NUMBER: | ADC | 1372 | of | 2007 |
| APPEAL NUMBER: | SA | 17 | of | 2008 |
| DATE DELIVERED: | 24 April 2008 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 24 April 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 February 2008 |
| LOWER COURT MNC: | [2007] FMCAfam 38 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cameron |
| SOLICITOR FOR THE APPLICANT: | Townsends |
| FIRST RESPONDENT: | No Appearance |
COUNSEL FOR THE SECOND RESPONDENT: | Mr Thomas |
| SOLICITOR FOR THE SECOND RESPONDENT | Piper Alderman |
Orders
That the time for the applicant to file a Notice of Appeal against the orders made by Federal Magistrate Brown on 11 February 2008 be extended to 4:00pm on 8 May 2008.
That within fourteen [14] days of the date hereof the applicant pay to the respondent’s solicitors on behalf of the respondent S Pty Ltd (in liquidation) the sum of FIVE HUNDRED DOLLARS [$500.00] by way of costs.
That the Application in a Case filed by the wife on 27 March 2008 be dismissed and removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Ibbott & Ibbott and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1372 of 2007
APPEAL NUMBER: SA 17 of 2008
| Ms IBBOTT |
Applicant
And
| Mr IBBOTT |
1st Respondent
And
S PTY LTD (IN LIQUIDATION)
2nd Respondent
EX TEMPORE REASONS
I have before me an Application in a Case filed by the wife on 27 March 2008 seeking an extension of time in which to file an appeal against the decision of Federal Magistrate Brown made on 11 February 2008. That application is supported by an affidavit from the wife's solicitors.
I need to dwell for a moment on the history of this matter.
The substantive proceedings came before Federal Magistrate Brown and were heard on 30 November and 4 December 2007, and his Honour delivered his reasons for judgment on 11 February 2008 and made orders at that time.
The parties to these proceedings were the husband and the wife and a company by the name of S Pty Ltd (in liquidation). The applicant was the wife, the first respondent was the husband and the company was the second respondent. However, the husband did not take any part in the hearing before the Federal Magistrate and his solicitors filed a Notice of Ceasing to Act prior to the commencement of that hearing. He has not taken any further part in the proceedings and he has not taken any part in the application that is before me today.
In the end result, the Federal Magistrate ordered that out of approximately $245,000.00, being the proceeds of sale of the former matrimonial home, $191,033.00 was to be paid to the liquidator of the second respondent S Pty Ltd in satisfaction, as I understand it, of a loan account. The balance of the moneys were to be then available to the wife, namely, approximately $55,000.00.
Instructions were then given to file a Notice of Appeal. In paragraph 5 of her affidavit in support of this application, Ms McLeod said this, "Counsel for the applicant was requested to draw grounds of appeal." Thus I can imply from that that appropriate instructions were given. Grounds of appeal were drawn by counsel and I have been provided with a copy of them.
It seems from dates that I have been provided by the Appeals Registrar, that a document containing those grounds of appeal was received in the Regional Appeals Registry in Melbourne on 7 March 2008. Unfortunately that document was not in the appropriate form and it also seems that the wife was making an application to be exempted from the payment of the filing fee. I have sighted a letter from the Regional Appeals Registrar dated 11 March 2008 to the wife's solicitors, advising that she was unable to accept the document for filing because of the deficiencies in the form and also there were problems in relation to the application for exemption. There was insufficient information to enable a decision to be made about that.
Perhaps I can at this point mention that the time in which to lodge an appeal is 28 days and, given that the orders were made on 11 February 2008, it would seem that the 28‑day period expired on 10 March 2008. Thus from that it can be seen that the document which contained the grounds of appeal was received in the Appeals Registry within time. However, by the time the letter went back to the solicitors for the wife, the time for filing the Notice of Appeal had expired.
Separate to that, on 28 February 2008, again obviously within time in terms of the period to appeal, there was an application filed by the wife seeking a stay. It does not bear directly upon what I have to decide today, but the point I make about that is that it is quite apparent, that the wife wanted to appeal. She presumably gave her instructions to her solicitor but it has been a problem with the solicitor not understanding the procedures that are required or, with pressure of work, not being able to attend to it adequately. However, that is mere speculation.
It seems certainly that attempts were made to progress this matter appropriately as an appeal and, to summarise, grounds of appeal were forwarded to the relevant Registry within time, an application for a stay was made within time, but it all came to nothing in terms of the appeal because of the deficiencies in the form and because of the lack of information in support of the application for an exemption.
Unfortunately the problems have not ended with the inadequate form being filed, in that the affidavit in support of this application before me today is confusing, and it does not necessarily go to the issues that I have to determine. It seems, as Mr Thomas has rightly pointed out, that the only issue being raised in support of the application is an alleged impecunious financial situation of the wife which can really only bear upon the issue of the payment of the filing fee and the application for an exemption from that. In that regard, Mr Thomas has correctly pointed out that the wife cannot be impecunious when she has available to her, on the face of it, $55,000.00 in a bank account.
It is all rather strange but I still have to try and make some sense of if all and deal appropriately with the application for an extension of time.
In turning to that, there are well recognised principles which apply to such an application, for example, referring to cases such as McMAHON and McMAHON (1976) FLC 90‑128, TORMSEN and TORMSEN (1993) FLC 92‑392, and even the High Court decision in GALLO and DAWSON (1990) 93 ALR 479. The principles that can be gleaned from those cases and others are these:
·There should be adequate reasons present explaining the delay.
·There should be a substantial issue to be raised on the appeal.
·There be present neither hardship nor injustice to the respondent which cannot be compensated by orders as to costs or otherwise.
However the overarching principle is whether the granting of an extension of time for leave to appeal out of time is necessary to enable the Court to do justice between the parties. Obviously the other principles that I have referred to above also impact upon that.
Turning then to address those principles. Firstly, the reasons for the delay. The reasons that appear in the affidavit of Ms McLeod can only be found perhaps in paragraph 5, where Ms McLeod says:
“Counsel for the applicant was requested to draw the grounds of appeal as quickly as possible. Unfortunately we did not receive the grounds of appeal until very close to the date on which the time for lodging that appeal was allowed.”
However, this is an unusual case, and that was the purpose of me dwelling on the history of it, in that grounds of appeal were drafted and the document setting out those grounds were sent off to be lodged. Thus it is not a question of delay in attending to that, the problem is in relation to the deficient document. Accordingly I do not consider that the fact that there may not be adequate reasons set out in the affidavit material is fatal to this case in the circumstances.
Secondly, is there a substantial issue to be raised on the appeal? I have had the opportunity now to look at the grounds of appeal and I have been able to look albeit briefly at the reasons for judgment of the Federal Magistrate, and it seems to me that at the level that I am addressing this question namely at the level of a preliminary and cursory assessment, I consider that there is a substantial issue to be raised on the appeal, namely the applicability of the third party provisions of the Act.
Thirdly, the question of hardship or injustice. Mr Thomas did not specifically address this, but I understood his submissions about what has happened since and what has happened with the money in effect really addresses that topic because his client is now restricted by the stay order. In other words the money that his client is entitled to pursuant to the order of the Federal Magistrate is being held pending the determination of any appeal. Thus, to that extent, his client is prejudiced, whereas the wife has available to her the balance of the monies from the proceeds of the sale and they seem to be about $55,000.00. That is clearly a hardship to the respondent but the question is whether it can be compensated by an order for costs, for example.
It is always an issue, indeed, even at the point of whether a stay is granted as to whether a party who would normally be entitled to the fruits of the litigation should be prevented from enjoying those fruits. That is the case here, but in my view the hardship can be compensated by an order as to costs, if such order is applied for, and in any event I consider that the overarching principal requires time to be extended.
Coming then, to the fundamental issue, which is whether an extension of time is necessary to enable the Court to do justice between the parties. In my view it is and for the following reasons. It is apparent that there is a substantial issue to be raised on the appeal. Efforts were made, and they were thought to be appropriate efforts, to pursue an appeal. The problem was not in any delay in preparing the grounds of appeal or filing those at the appropriate registry; the problem was a deficiency in the form.
It seems to me that I should not allow a deficiency in a form to stand in the way of justice being done between the parties, and even though there is no question - and Mr Cameron has not sought to shy away from this - that criticism can be made of his solicitor in terms of how this matter has been conducted from the time of the judgment of the Federal Magistrate.
I now have an application for costs by the respondent, and I consider there is justification for an order for costs. The amount of $500.00 is sought. In making the order for costs, I have to have regard to any relevant factor under Section 117(2A) of the Family Law Act 1975, which includes the financial circumstances of the parties and, in making an order for costs, I am reminded of course of the amount of $55,000.00 which has been referred to earlier that should realistically be available to the wife. Thus in my view not only is an order justified but the amount sought is reasonable in the circumstances.
I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 24 April 2008.
Associate
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