Jeffries & Post
[2021] FedCFamC1A 92
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jeffries & Post [2021] FedCFamC1A 92
Appeal from: Post & Jeffries [2021] FCCA 1398 Appeal number(s): NOA 36 of 2021 File number(s): BRC 9216 of 2020 Judgment of: TREE, REES & JARRETT JJ Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the husband seeks leave to appeal from an order permitting the wife to commence property settlement proceedings out of time – Where the applicable test for leave to appeal is the conjunctive test confirmed in Medlow & Medlow (2016) FLC 93-692 – Where the husband’s legal representative misdirected himself as to the correct test – No substantial injustice established – Leave to appeal refused – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 94AA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.15(4)
Cases cited: Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Number of paragraphs: 25 Date of hearing: 8 December 2021 Place: Heard in Brisbane, delivered in Cairns Counsel for the Appellant: Mr Matthews QC Solicitor for the Appellant: Berck Solicitors Counsel for the Respondent: Ms Carmody Solicitor for the Respondent: Waller Family Lawyers ORDERS
NOA 36 of 2021
BRC 9216 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JEFFRIES
Appellant
AND: MS POST
Respondent
ORDER MADE BY:
TREE, REES & JARRETT JJ
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.Leave to appeal be refused.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs in the sum of $9,600.00.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jeffries & Post has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, REES & JARRETT JJ:
INTRODUCTION
By Notice of Appeal filed 16 July 2021, Mr Jeffries (“the husband”) seeks leave to appeal from a decision of the then Federal Circuit Court which, in substance, permitted Ms Post (“the wife”) to commence property settlement proceedings out of time. In the event that leave is granted, then the husband appeals from that decision on several grounds. The wife opposes the grant of leave, and if necessary, the appeal.
For reasons which follow, leave to appeal will be refused and the appeal will be dismissed.
BACKGROUND
The husband is presently 74 years of age and the wife 70. The parties separated in 2013 after a 43 year marriage, to which two now adult children were born. For reasons which are not clear, the parties did not finally divorce until 19 February 2019.
Notwithstanding clear legal advice as to the time limit for commencing property settlement proceedings (which was 19 February 2020), the wife commenced them five months out of time on 16 July 2020.
On 23 June 2021, the primary judge, in substance, extended the time for the bringing of those proceedings, which is the primary order presently sought to be challenged by the husband.
LEAVE TO APPEAL
It was uncontentious before us that the husband requires leave in order to bring the proposed appeal. Although both the question of leave and the appeal were argued jointly before us, as shall be seen, the matter is determined by leave alone.
The relevant test for leave in this Court was established by Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [57], where the Full Court said:
…the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original)
The subsequent repeal of s 94AA of the Family Law Act 1975 (Cth), and its replacement with the substantially similar s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) is no reason to doubt the correctness or continued applicability of Medlow.
Surprisingly therefore, in the husband’s Summary of Argument filed 8 October 2021, not only was no reference made to Medlow, but he advanced the patently incorrect proposition that “leave to appeal will only be granted if it is demonstrated that the primary [j]udge made an error of principle and/or a refusal to grant leave to appeal would cause a substantial injustice to the wife” (emphasis added). More, that misstatement of the law was said to be drawn from a Full Court decision, which plainly said no such thing, whether in the paragraphs relied upon, or anywhere.
Perhaps because the author of the husband’s Summary of Argument was misdirected by the profound error that it was substantial injustice to the wife which was relevant, not one word in that Summary of Argument addressed any substantial injustice to the husband if leave were refused, although indeed no further mention was made of any substantial injustice to the wife either.
Only slightly less perplexingly, whilst the wife’s Summary of Argument filed 1 November 2021 stated the correct test for leave by reference to Medlow, again no submissions were directed to the question of substantial injustice if leave were not granted. Therefore at the start of the hearing there was a complete absence of submissions from both parties as to one of the two issues for consideration in relation to leave to appeal.
Nonetheless we permitted senior counsel for the husband to orally argue why a refusal of leave would occasion the husband substantial injustice, by reference to the matters advanced in the application for leave to appeal itself.
There were four such matters. The first was that “the [a]ppellant will have to bear the costs of defending the [r]espondent’s s 79 [Family Law Act] property settlement claim”. However that would necessarily be the case in every application for leave to appeal from a decision extending the time to commence proceedings, and more, would have been the case if proceedings had been commenced within time. It does not comprise substantial injustice.
The second was, in effect, that if the wife succeeded in the s 79 claim to the maximum extent of what was said to be her “best case”, then the husband would be “some $228,399” worse off, and further, would have legal costs to bear as well.
Axiomatically, an order under s 79 must be just and equitable. Therefore, if the wife succeeded to the extent the husband contemplates, it must follow that the outcome, if leave to commence out of time were refused, would be an unjust one. It cannot be an injustice – much less a substantial injustice – to be deprived of the chance to contend for a manifestly unjust outcome.
Thirdly, the husband contended that a “more realistic” s 79 order “may” see a similar result to that which would prevail if there was no leave to commence out of time. Again, it is impossible to see how that constitutes a substantial injustice. To the extent that the contention advanced is that the husband would incur legal costs in achieving the same outcome, that is simply a repetition of the first contention, and in any event, it is by no means clear to us why this matter would proceed to trial, rather than settle.
Fourthly, it is said that substantial injustice is to be found in the fact that, if leave to appeal were refused “the decision does not bring the dispute between the [p]arties to a close”. Again, that would inevitably be the case in every application for leave to appeal from an extension of time to commence proceedings. In any event, how that could comprise any kind of injustice is unclear.
We are unpersuaded that, unless leave to appeal is granted, the husband will suffer any substantial injustice.
It is therefore unnecessary to traverse the grounds of appeal so as to consider whether the primary judge’s decision is attended by sufficient doubt to warrant leave, as even if it were, leave would still be refused.
CONCLUSION
The application for leave to appeal is dismissed, as is the appeal.
COSTS
In the event the husband’s Notice of Appeal was dismissed, the wife sought that the husband pay her party/party costs, which ultimately were said to be $9,600. Unsurprisingly, the reasonableness of that figure was not challenged by the husband, although he generally opposed any order for costs.
However not only has the husband been wholly unsuccessful, but a proper engagement by the husband with the correct law, and particularly a proper evaluation of the question of substantial injustice, should have resulted in the application for leave and the appeal not being brought. There will therefore be an order that the husband pay the wife’s costs in the agreed sum.
However before we leave the question of costs, we should note that the pool of assets here is a modest one, and given that both parties are retired, it is unlikely to be able to be replenished. Further, all that has thus far occurred is the wife has successfully applied for leave to commence proceedings out of time, and the husband has unsuccessfully appealed from that decision. We were therefore rather troubled that, according to the husband’s schedule, his costs actually incurred to date exceeded $111,000. When our concerns were raised with the husband’s legal representatives, very wisely his solicitor undertook to reduce her fees by $20,000, and senior counsel reduced his fees by 50 per cent. We say wisely because otherwise the Court would have had to consider whether to make an order under r 12.15(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
In several judgments, judges of the then Family Court of Australia have raised serious concerns about the disproportionality of fees charged. That concern is now expressly accommodated in r 12.08 of the Rules. There should be no thought that the rule will not be enforced by the courts, if needs be by order under r 12.15(4) of the Rules.
Finally we should note, to the extent that, even with the concessions made by his representatives, the husband’s legal fees may still be of concern, it will be open to any Court exercising the s 79 discretion to either add legal fees back into the pool, or otherwise take them into account.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Rees & Jarrett. Associate:
Dated: 20 December 2021
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