Jabara & Gaber
[2021] FamCAFC 63
•4 May 2021
FAMILY COURT OF AUSTRALIA
Jabara & Gaber [2021] FamCAFC 63
Appeal from: Gaber & Jabara [2021] FCCA 210 Appeal number(s): EAA 22 of 2021 File number(s): PAC 106 of 2019 Judgment of: AINSLIE-WALLACE J Date of judgment: 4 May 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure to file the Draft Appeal Index – Appeal deemed abandoned – Delay explained – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Prejudice – Application allowed – Costs ordered. Legislation: Family Law Rules 2004 (Cth) r 22.13 Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rand & Rand [2009] FamCAFC 88
Division: Appeal Division Number of paragraphs: 17 Date of hearing: 4 May 2021 Place: Sydney Counsel for the Applicant: Mr Grew Solicitor for the Applicant: Coleman Greig Lawyers Counsel for the Respondent: Mr Dunn Solicitor for the Respondent: Watts Mccray (NSW) Pty Ltd ORDERS
EAA 22 of 2021
PAC 106 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS JABARA
Applicant
AND: MR GABER
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.Appeal EAA 22 of 2021 filed on 9 March 2021 be reinstated.
2.The applicant is to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 14 May 2021.
The applicant is to pay the respondent’s costs of meeting this application in a sum to be agreed
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabara & Gaber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 9 March 2021 Ms Jabara (“the applicant”) appealed against interim spousal maintenance and property settlement orders made by a judge of the Federal Circuit Court on 9 February 2021 in proceedings between her and Mr Gaber (“the respondent”).
Following the filing of the Notice of Appeal, on 7 April 2021, the applicant’s lawyer was notified by the Eastern Appeal Registry that pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the Draft Index to the Appeal Books was to have been filed by 4.30 pm on 6 April 2021 and that the failure to comply with this rule had caused the appeal to be taken to be abandoned.
On 23 April 2021 an Application in an Appeal for reinstatement was filed and supported by affidavits by both the applicant and her solicitor.
The solicitor said in her affidavit that the failure to comply with the Rules was entirely her fault and not that of the applicant. The solicitor said that she had become quite unwell for a period of two days and was away from her office and as a result, she missed the deadline for the filing of the Draft Appeal Index. The applicant’s solicitor said that when she realised she had overlooked the filing of the Draft Appeal Index, she immediately wrote to the solicitors for the respondent seeking their consent to file the Draft Appeal Index notwithstanding that it was late, and when this consent was not forthcoming she filed the application for reinstatement of the appeal without further delay.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 which, while that case dealt with an application for the extension of time to appeal, the principles have been taken to apply to an application to reinstate an appeal (see Rand & Rand [2009] FamCAFC 88).
The central principle is that such applications ought to be allowed where to do otherwise may cause a substantial injustice.
To reinstate an appeal is not automatic and involves the exercise of discretion. The discretion is given for the sole purpose of enabling the court to do justice between the parties. In determining whether a strict application of the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the leave. Part of that involves consideration of the delay and the merits of the proposed appeal which, it is accepted can be gleaned by reference to the documents already filed, and the discretion requires that any prejudice to the respondent be taken into account.
In Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”), Brennan CJ and McHugh J were of the view that once an appeal has been commenced, the applicant is entitled to have the appeal determined in the usual way. They said at [7], that where an extension of time for the taking of an interlocutory step is sought “the merits of the appeal are not a relevant consideration... unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time”.
Here the appeal has been deemed abandoned by reason of the applicant’s failure to comply with the procedural direction. Nevertheless, the discussion in Jackamarra is useful to determine whether, notwithstanding the appeal having been regularly instituted, the appeal should be reinstated.
The delay between the failure to comply with the orders and the bringing of the application to reinstate was insignificant, a matter of a few days, and I am satisfied that the applicant’s solicitor has provided a perfectly adequate explanation for the delay which occasioned the breach.
This is an interlocutory decision, therefore leave is required before any appeal can be instituted. Once again, having regard to the material filed and the submissions, I have to decide whether sufficient doubt attends the decision and that substantial injustice will accrue if leave is not given.
On the material before me, I am satisfied that leave should be granted.
I then move to the merits of the appeal and once again, based on the material before me, I am not persuaded that the appeal is so devoid of merit that it ought effectively be dismissed at this stage by refusing to reinstate it.
I am therefore satisfied that there is sufficient merit in the appeal.
There will of course be prejudice to the respondent being that there will be a further delay in bringing the parties’ financial proceedings to an end, however I take into account what was said in Jackamarra by Gummow and Hayne JJ at [33]:
33.... when 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…
The solicitor for the respondent submitted that the prejudice was expressed in terms of expense and time taken to attend to this matter and I am informed that the applicant’s solicitor concedes costs of the application.
In all of the circumstances I am satisfied that a strict application of the Rules would work an injustice on the applicant in circumstances where the appeal was regularly filed and I will thus order the appeal be reinstated and for the applicant to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 14 May 2020.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 5 May 2021
0
3
1