Jacobs and Sitch
[2014] FamCAFC 177
•9 September 2014
FAMILY COURT OF AUSTRALIA
| JACOBS & SITCH | [2014] FamCAFC 177 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended. |
| ||||
| APPLICANT: | Mr Jacobs | |||
| RESPONDENT: | Ms Sitch |
| FILE NUMBER: | MLC | 10230 | of | 2009 |
| APPEAL NUMBER: | SOA | 56 | of | 2014 |
| DATE DELIVERED: | 9 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1537 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Weerappah |
| SOLICITOR FOR THE RESPONDENT: | Bayside Solicitors |
Orders
The time for the father to file and serve a Notice of Appeal be extended to the close of business on Thursday 9 October 2014.
The oral application for costs made by the mother be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Sitch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 56 of 2014
File Number: MLC 10230 of 2009
| Mr Jacobs |
Applicant
And
| Ms Sitch |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an application in an appeal filed by Mr Jacobs (“the father”) on 22 August 2014 in which he seeks an extension of time to file a Notice of Appeal against orders made by Judge Lucev on 21 July 2014.
The application is supported by an affidavit of the father and a draft Notice of Appeal both filed on 22 August 2014.
The application is opposed by Ms Sitch (“the mother”).
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
In this case, as I have said, the orders were made on 21 July 2014, and thus a Notice of Appeal in compliance with the Rules would have needed to have been filed within 28 days after that date, namely by 18 August 2014.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J said this at 480:
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. In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what Gallo & Dawson and the subsequent Full Court cases tell me, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons to explain the failure to comply with the relevant timeframe for the filing of the Notice of Appeal, whether there is a substantial issue to be raised on appeal, and I indicate that that factor has been described in many different ways in a number of cases, but for my part what is crucial is whether there is at least an arguable case on appeal, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. The overarching principle though is to ensure that injustice is not visited, primarily on the applicant, but also the respondent.
In this case, apart from the consequences of the grant or refusal of the application, I have identified two relevant factors to be taken into account. First, the reasons for the failure to comply with the timeframe provided in the Rules for the filing of a Notice of Appeal, and secondly, the merits of the appeal in the context of whether there is an arguable case on appeal. None of the other factors that are sometimes referred to have been identified as relevant in this application by either the father or the mother’s solicitor, and I cannot see that there are any other factors that need to be considered.
Discussion
Adequate Explanation
This is the topic of the father’s affidavit filed in support of the application. In summary what he puts is that he had insufficient time to prepare and file a Notice of Appeal within the 28 day time period because of other matters, such as his work commitments, and his need to address other proceedings which were going on at or about the same time. In his affidavit he refers to, for example, contravention proceedings which were filed on 8 July 2014 and heard on 21 and 24 July 2014, and to put that into context, I observe that the orders in this case were made on 21 July 2014.
The father also emphasises an application that he took seeking a recovery order as a result, he says, of the mother withholding the child the subject of earlier proceedings, contrary to previous orders. That application was filed on
14 August 2014, with the hearing to take place on 22 September 2014, and it can be seen that 14 August 2014 was a date within the 28 day time period following the making of the orders in this case. The father says he needed to spend time in preparing and filing that application.
The father also refers in his affidavit to the mother taking out interim personal safety intervention orders against his current partner, but he was unable to provide me with a timeframe for that, and as is plain, those proceedings relate to his partner and not to him.
In relation to his work commitments, as I understand it the father does not work on Tuesday of any given week, and he does not work on weekends.
Because the father did not comply with the relevant timeframe which I have identified expired on 18 August 2014, on 22 August 2014 he filed the application that is before me today, accompanied by a draft Notice of Appeal. The father tells me that the Notice of Appeal took him seven or eight hours to prepare.
They are the circumstances the father claims are the reasons why he could not comply with the 28 day timeframe.
In my view the father has not satisfactorily explained his failure to comply with the relevant timeframe. I consider that he could have found the time to prepare and file a Notice of Appeal within 28 days. However, I do take into account that he did have other proceedings on foot and that they were commenced in that relevant time period. I also take into account that he was without legal representation at this time, and obviously I note his work commitments.
Significantly, I also take into account the fact that there was a relatively short delay between the expiry of the 28 day time period, and the filing of the application in an appeal with the supporting documents, including a draft Notice of Appeal.
The merits of the appeal
It is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation namely, the reasons for judgment of the trial judge and the draft Notice of Appeal filed by the father. I do not have the full range of material that would be before the Full Court if the Full Court was now hearing the appeal. For example, the Full Court would have the benefit of the transcript of the hearing before the trial judge, as well as the documents that were before the trial judge and the summaries of argument of the parties. Thus, I am simply not able to assess the merits of the appeal in depth, and my analysis must necessarily be limited to the documentation that I do have, together with the oral submissions of the father and the mother’s counsel.
The question for me is whether it is apparent that there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success, then, in my view, that is enough. In that regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies, the appeal should be allowed to proceed.
I have taken the father through his four grounds of appeal set out in his draft Notice of Appeal. I have challenged him about the likely success of Grounds 1 and 2, and he has conceded that there is indeed no chance of success in relation to those two grounds. Thus I do not need to refer to them any further. However, there are Grounds 3 and 4.
In Ground 3 the father complains that the trial judge admitted the written costs submissions of the mother, albeit they were four days overdue when considering the timeframe for their filing pursuant to earlier orders. The father also complains that he was then only given until 22 May 2014 to file written submissions in response to those submissions filed by or on behalf of the mother, and he was limited to responding specifically to those submissions. He points out that he filed his responding submissions within the timeframe allowed, and he says that those submissions raised matters which he considered spoke against the mother being awarded costs. That is a matter for the father, and I cannot assess that necessarily in a hearing like this, but importantly what the father then goes on and says in this ground is that those matters he raised in his written submissions were not in the reasons for judgment of the trial judge.
I mention at this point that the order sought to be appealed against is an order that the father pay the mother’s costs thrown away of 29 August 2013, in the sum of $1,384, by 21 October 2014.
Turning to Ground 4. In summary the father complains that there had been a previous adjournment of the hearing, namely on 11 July 2013, which adjournment was sought by the mother and granted by Judge Burchardt, who heard that particular application. Significantly, what his Honour also did, was reserve the question of the father’s costs of that day. The father tells me that as a result of that adjournment he was left to meet costs thrown away of $6,000, but it appears that in fact it was $5,500. He was represented by both solicitor and counsel, and he tells me that he and his legal representatives were ready to proceed on that day.
Despite the father raising that matter in his written submissions filed on
21 May 2014, there is no reference to that issue in the reasons for judgment delivered by Judge Lucev, and nor is it apparent that his Honour dealt in any way with the father’s application for costs which was reserved by order of
11 July 2013.
In my view there is an arguable case on appeal here arising from Grounds 3 and 4. That however is not to be taken by the father as any indication that he will be successful on appeal. I have explained the limitations on the court today in making such an assessment, and that is not the assessment I have made.
The consequences of granting or refusing the application
Turning now to the prejudice to the applicant if I refuse the application, and the prejudice to the respondent if I grant the application.
If the application is granted the appeal will be able to be pursued, and the mother will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus there is an obvious prejudice to the mother given that as things currently stand there is no appeal before this court against the orders made on 21 July 2014, and the mother has been, and is today entitled to proceed on the basis that she has the benefit of that judgment, unchallenged.
If the application is refused then the father will not be able to pursue his appeal, and significantly, there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia. However, that is usually a difficult exercise and may not be warranted in this case. In any event this is a serious consequence for the father if his application is refused.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors here, informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here, despite there being an inadequate explanation for the failure to comply with the Rules and file a Notice of Appeal within the timeframe provided, to repeat, there are circumstances I have identified that go some way to explain why the Notice of Appeal was not filed within time. More significantly, as I have found, there is an arguable case on appeal. Accordingly there would be serious consequences for the father if the appeal was not allowed to proceed in those circumstances.
Thus, the interests of justice require that the application be granted.
Costs
Given that result the mother makes an application for costs. However, I do not consider that there are circumstances here that justify an order for costs. Certainly the mother has been brought to court because of the failure by the father to comply with the relevant timeframe for filing a Notice of Appeal, but given the fact that the father promptly made his application for an extension of time, and the obvious circumstance that there is an arguable case on appeal, for the mother to oppose the application was unreasonable. Thus I propose to dismiss the application for costs.
Finally, I note that counsel for the mother also sought that the mother’s costs at least be reserved, arguing that if the father is ultimately successful in his appeal that would found an application for a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). However, that is a non-sequester. The mother would only be entitled to a certificate if there is no order for costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 September 2014.
Associate:
Date: 16 September 2014
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