Legal Research
Cases
JEEVES & JEEVES

JEEVES & JEEVES

Case [2010] FamCAFC 243 8 October 2010

Type to search within this case.

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES

[2010] FamCAFC 243

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where an application by the wife seeking to consolidate two appeals filed by her was not accepted for filing – where the first appeal was subsequently deemed abandoned after the wife failed to file the appeal books – where the wife has been represented at all times during the proceedings – where aspects of the first appeal, if successful, flow into the second appeal – where there is a significant prejudice to the wife in dismissing the reinstatement application – where the respondent is already required to prepare for and respond to the second appeal – where there are real issues to be raised on appeal – appeal reinstated.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – appeals consolidated.

FAMILY LAW - APPEAL – COSTS – application by the respondent for costs – where there are circumstances justifying an order for costs due to the wife’s failure to comply with orders.

Family Law Act 1975 (Cth) s 94(2D)(c)
Family Law Rules 2004 (Cth) rr 22.21, 22.44 & former r 22.57

Bane & Hacker [2009] FamCAFC 110
Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow [2010] FamCAFC 100
Chranley & Smart [2010] FamCAFC 139
Gallo v Dawson (1990) 93 ALR 479
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Jeeves

RESPONDENT:

Mr Jeeves

FILE NUMBER:

MLF

10167

2000

APPEAL NUMBER:	SA	25	of	2010
SA	47	of	2010

DATE DELIVERED:

8 October 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 October 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 April 2010

LOWER COURT MNC:

[2010] FamCA 258

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Molyneux SC with
Mr Combes

SOLICITOR FOR THE APPLICANT:

Mr Middlemis

COUNSEL FOR THE RESPONDENT:

Mr Sweeney with Ms Rea

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

Appeal number SA 25 of 2010 be reinstated.
Appeal number SA 25 of 2010 be heard at the same time as the Application for Leave to Appeal in the event that leave is granted.
Appeal number SA 25 of 2010 be consolidated with Appeal number SA 47 of 2010 and that the appeals be heard together.
The time for the appellant to file and serve the appeal books in Appeal number SA 25 of 2010 be extended to close of business on 11 October 2010.
The wife pay the husband’s costs of and incidental to the Application in an Appeal filed on 3 September 2010 as agreed and in default of agreement as assessed.
That the Application in an Appeal filed on 3 September 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved 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: SA 25 of 2010
SA 47…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JEEVES & JEEVES

Details

AGLC: JEEVES & JEEVES [2010] FamCAFC 243
Case: [2010] FamCAFC 243
Decision Date: 8 October 2010

CaseChat Overview and Summary

The case before the court involved a wife who had filed two appeals in family law matters. The first appeal was subsequently deemed abandoned after she failed to file the necessary appeal books. The wife sought to consolidate these two appeals and reinstate the first appeal. The husband opposed these applications. The court considered the wife's failure to comply with procedural requirements and the potential prejudice to her if the reinstatement application was dismissed. It also took into account that the husband was already preparing to respond to the second appeal and that there were substantive issues to be addressed on appeal.

The court identified several legal issues it needed to resolve, including whether the application for reinstatement of the first appeal should be accepted, whether the two appeals should be consolidated, and whether costs should be awarded to the husband due to the wife's procedural failures. The court examined the principles of procedural fairness, the potential for prejudice to the wife, and the merits of the appeals themselves. It also considered the implications of its decision on the efficiency of the judicial process and the rights of both parties.

In its reasoning, the court found that the wife's failure to comply with procedural requirements did not absolve her of the right to have her appeals heard if there was a significant prejudice to her in dismissing the reinstatement application. The court noted that aspects of the first appeal, if successful, would flow into the second appeal, and that the husband was already required to prepare for and respond to the second appeal. The court also concluded that there were real issues to be raised on appeal that warranted a hearing. Consequently, the court granted the wife's application to reinstate the first appeal, consolidated the two appeals, and extended the time for the wife to file and serve the appeal books. The court further ordered that the wife pay the husband's costs of and incidental to the application for costs due to her failure to comply with orders.

The final orders of the court were that the appeal number SA 25 of 2010 be reinstated and consolidated with appeal number SA 47 of 2010, with both appeals to be heard together. The time for the wife to file and serve the appeal books in appeal number SA 25 of 2010 was extended to close of business on 11 October 2010. Additionally, the wife was ordered to pay the husband's costs of and incidental to the application filed on 3 September 2010, as agreed or, in default of agreement, as assessed. The application for costs filed on 3 September 2010 was dismissed.

Orders

Orders of the court

Appeal number SA 25 of 2010 be reinstated.

Appeal number SA 25 of 2010 be heard at the same time as the Application for Leave to Appeal in the event that leave is granted.

Appeal number SA 25 of 2010 be consolidated with Appeal number SA 47 of 2010 and that the appeals be heard together.

The time for the appellant to file and serve the appeal books in Appeal number SA 25 of 2010 be extended to close of business on 11 October 2010.

The wife pay the husband’s costs of and incidental to the Application in an Appeal filed on 3 September 2010 as agreed and in default of agreement as assessed.

That the Application in an Appeal filed on 3 September 2010 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

JEEVES & JEEVES [2010] FamCAFC 243

Most Recent Citation

Haykal & Krawiec & Anor [2014] FamCAFC 110

Cases Citing This Decision

Haykal & Krawiec & Anor [2014] FamCAFC 110
Citation 1 (Para 1)

…governing a reinstatement of an appeal or an extension of time to appeal are broadly similar. (See Rand & Rand [2009] FamCAFC 88; Jeeves & Jeeves [2010] FamCAFC 243; Bemert & Swallow (2010) FLC 93-441; and Bele & Vaughan (No 2) [2012] FamCAFC 125.)…

See all citing cases →

Cases Cited

Chranley and Smart [2010] FamCAFC 139
Citation 1 (Para 3)

…Mr Sweeney has also referred me to an earlier decision of mine, namely Chranley & Smart [2010] FamCAFC 139, and it is useful to quote from paragraph 26 of my reasons for judgment delivered in that case, in reference to what McHugh J said in Gallo v Dawson . I said this: Now what McHugh J highlighted was that this is,…
Bemert & Swallow [2010] FamCAFC 100
Citation 2 (Para 2)

…cation to reinstate an appeal and I refer to Rand & Rand [2009] FamCAFC 88, Batey-Elton & Elton [2009] FamCAFC 101 and most recently Bemert & Swallow [2010] FamCAFC 100.…
Jeeves and Jeeves [2010] FamCA 258
Citation 3

…[2010] FamCA 258…
Batey-Elton & Elton [2009] FamCAFC 101
Citation 4 (Para 2)

…the principles there set out equally apply to an application to reinstate an appeal and I refer to Rand & Rand [2009] FamCAFC 88, Batey-Elton & Elton [2009] FamCAFC 101 and most recently Bemert & Swallow [2010] FamCAFC 100.…
Rand & Rand [2009] FamCAFC 88
Citation 5 (Para 2)

…is Court on a number of occasions that the principles there set out equally apply to an application to reinstate an appeal and I refer to Rand & Rand [2009] FamCAFC 88, Batey-Elton & Elton [2009] FamCAFC 101 and most recently Bemert & Swallow [2010] FamCAFC 100.…
Gallo v Dawson [1990] HCA 30
Citation 6

…Bane & Hacker [2009] FamCAFC 110 Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow [2010] FamCAFC 100 Chranley & Smart [2010] FamCAFC 139 Gallo v Dawson (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88…
Jess v Scott [1986] FCA 473
Citation 7 (Para 1)

…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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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…
Mitchelson v Mitchelson [1979] FCA 48
Citation 8 (Para 1)

…the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 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…
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2
Citation 9 (Para 1)

…pose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 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…
Bane & Hacker [2009] FAMCAFC 110
Citation 10 (Para 6)

…dealing with any reinstatement application. Ultimately though, it is still a matter of discretion, and I refer to what Boland J said in Bane & Hacker [2009] FamCAFC 110 at paragraph 25.…
(1973) 2 NZLR 86 (1973) 2 NZLR 86
Citation 11 (Para 1)

…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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always n…
Vilenius v Heinegar (1962) 36 ALJR 200
Citation 12 (Para 1)

…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 p 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…

Legislation Cited

Family Law Rules 2004 (Cth) 22.21, 22.44
3 mentions (from Para 2)
Family Law Act 1975 (Cth) 94(2D)(c)
2 mentions (from Para 1)