Imaikop and Francis - [2012] FamCAFC 17

FAMILY COURT OF AUSTRALIA

IMAIKOP & FRANCIS

[2012] FamCAFC 17

FAMILY LAW ─ APPEAL ─ Application to extend time to appeal ─ Where there was no appearance by the appellant ─ Where the combination of the complete absence of anything to indicate the likelihood of merit if the Application was allowed, combined with the prejudice to the respondent of allowing it, led the Court to exercise its discretion to dismiss the Application

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the Application was not prosecuted, much less successfully and has been wholly unsuccessful ─ Where the circumstances justify a costs order in favour of the respondent

Family Law Act 1975 (Cth) s 117

Gallo v Dawson (1990) 93 ALR 479
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 541

APPELLANT:

Mr Imaikop

RESPONDENT:

Ms Francis

FILE NUMBER:

SYC

512

2011

APPEAL NUMBER:

EAA

2012

DATE DELIVERED:

6 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

6 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

14 November 2011

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

No appearance by on behalf of the appellant

SOLICITOR FOR THE APPELLANT:

No appearance by or on behalf of the appellant

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon Lawyers

Orders

That the application for an extension of time to appeal against orders of the Federal Magistrates Court of 14 November 2011 filed on 6 January 2012 is dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imaikop & Francis 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: EAA 1 of 2012

File Number: SYC 512 of 2011

MR IMAIKOP

Appellant

And

MS FRANCIS

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an Application filed by Mr Imaikop (“the applicant”) seeking an order for extension of time in which to file an appeal against orders made by Federal Magistrate Scarlett.
The Application does not appear to identify the date on which the orders asserted to have been made by Federal Magistrate Scarlett and sought to be appealed against were made, nor does the Affidavit in support. Counsel for the respondent, who opposes the extension of time, has made available to the Court orders of 14 November 2011 made by Federal Magistrate Coates.
The orders of Federal Magistrate Coates appear to relate to proceedings the nature of which appears to be not dissimilar to what the orders sought by the applicant suggest that he may be seeking to challenge. The applicant has not filed a draft index to the appeal books, nor has the applicant put forward the Reasons for Judgment of the Federal Magistrate.
Perhaps unsurprisingly if, as seems to be the case, the applicant mistook the identity of the Federal Magistrate who dealt with his case, beyond asserting his belief, he not appearing to be a legally qualified person, that his appeal “have [sic] reasonable grounds for success”, and that he was self-represented in the proceedings before the Federal Magistrate and “have since received legal advice that my appeal will succeed on the grounds of procedural fairness”, the applicant says nothing about the possible merit of the appeal he seeks to institute.
The Application was filed on 6 January 2012, some three weeks out of time. The delay itself is not inordinate. The prejudice to the respondent, assuming that the orders of Federal Magistrate Coates are those of relevance, assumes to be not insignificant in that Federal Magistrate Coates found that the present respondent had no case to answer, and two Contravention Applications, and an Application in a Case in relation to some other issue(s) were dismissed. The respondent was entitled to assume after 14 December 2011 that her enjoyment of the fruits of success before the Federal Magistrate was not to be challenged.
The applicant’s explanation for his failure to challenge the Federal Magistrate’s decision within time is less than compelling. There are clearly, from other orders made by Federal Magistrate Coates on 14 November 2011, ongoing proceedings in relation to the parenting of a child or children of the relationship between the parties, and the directions made by Federal Magistrate Coates seem to be aimed at progressing the determination of those proceedings.
The applicant has not appeared at 10:46am. His name was called three times outside the Court by the court officer. The case was listed in the Sydney Morning Herald this morning for hearing at 10am.
By letter dated 25 January 2012 the Appeals Registrar advised the applicant that his Application was listed before the Court this morning. The address of the Court as well as the identity of the Judge who would hear the Application were indicated on the letter.
The address to which the letter was sent, and it appears to have been sent by email as well, is the same address as the applicant put on his Initiating Application to the Court. The email address is the same save that, as in this Court’s minute understanding of such matters usually happens, the email address is in lowercase whereas on his Initiating Application the applicant put his email address all in uppercase. Whether that makes a difference to the fate of the Appeal Registrar’s email to the applicant or not, this Court has absolutely no idea. Moreover, a copy of the Court’s letter was sent to the applicant at his address for service, which is the same as the address he provided.
The Court has been requested to dismiss the Application. The effect of so doing is that the only avenue of redress the applicant would have would be by way of Application to the High Court for Special Leave to Appeal.
The applicant is now almost an hour late in attending, if he proposes to. The Court has had no indication of any communication from the applicant that he has been inadvertently delayed or prevented from being at the Court.
The applicant has not even begun to suggest in his material in what way he was denied procedural fairness before the learned Federal Magistrate, nor to suggest in any other way why the decision of the learned Federal Magistrate was erroneous.
The Court is assuming, which may be an incorrect assumption that the applicant still desires to prosecute his Application. He may not. His absence may be because he has decided not to press this Application. Whatever the reasons, and particularly given the unexplained absence of the applicant, the respondent is entitled to have her Application for dismissal of the present Application considered and determined, and the Court does so.
As the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 and Kirby J’s judgment in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 541 make clear, in applications for what are in effect summary dismissal, the matter of greatest significance is the appearance or otherwise of possible merit in the cause of action which is sought to be pursued.
There is absolutely nothing before this Court to indicate the likelihood that, if this Application is allowed and, the applicant prosecutes his appeal, appellate intervention would be enlivened. Much more than his assertion that he believes, or has been told, that he has reasonable prospects of success is required. As noted earlier, the explanation for the failure to appeal within time is less than compelling, but that is not conclusive of the matter.
The prejudice to the respondent is not insignificant in the circumstances where the respondent has the benefit of the dismissal of two Contravention Applications brought against her by the applicant, and another Application, the nature of which is unclear, and a costs order with respect of those proceedings.
In the circumstances, the combination of the complete absence of anything to indicate the likelihood of merit if this Application is allowed, combined with the prejudice to the respondent of allowing it, lead the Court to exercise its discretion to dismiss the Application. The Application is accordingly dismissed.
The respondent, quite properly, has sought the costs of this Application. The Application has not even been prosecuted, much less successfully, so it has been wholly unsuccessful. The respondent is entitled to costs because the Court is of the opinion, having regard to the matters indicated, which aren’t relevant factors within section 117 of the Family Law Act 1975 (Cth), that the circumstances justify a costs order.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 6 February 2012.

Associate:

Date: 09.02.2012