JUNE & ROMANO
[2011] FamCAFC 31
•19 January 2010
FAMILY COURT OF AUSTRALIA
| JUNE & ROMANO | [2011] FamCAFC 31 |
| FAMILY LAW - APPEAL – Application to extend time to appeal – Where the delay in filing the notice of appeal and leave to appeal was explained – Where the respondent wife was concerned that the appeal was a delay tactic of the applicant husband – Where counsel for the husband allayed the delay tactic fears – Where there was no considerable prejudice to the wife – Leave granted. FAMILY LAW - COSTS – Where the expended costs were only necessary due to the applicant husband’s delay – Where there was a reasonable explanation for the delay – Where the substance of the appeal is yet to be determined – The wife’s application for costs of and incidental to the application for leave reserved to the Full Court. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr June |
| RESPONDENT: | Ms Romano |
| FILE NUMBER: | BRC | 3679 | of | 2010 |
| APPEAL NUMBER: | NA | 128 | of | 2010 |
| DATE DELIVERED: | 19 January 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 19 January 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 October 2010 |
| LOWER COURT MNC: | [2010] FamCA 1027 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr North SC |
| SOLICITOR FOR THE APPELLANT: | Bowen Buchbinder Vilensky |
| SOLICITOR FOR THE RESPONDENT: | Hirst & Co |
Orders
That the applicant husband have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on Monday 24 January 2011.
That the wife’s costs of and incidental to the leave application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Romano & June is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 128 of 2010
File Number: BRC 3679 of 2010
| Mr June |
Appellant
And
| Ms Romano |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
On 7 December 2010 the husband filed an application in an appeal seeking an extension of time in which to file an appeal from the orders of Justice O’Reilly made 29 October 2010. The proceedings before O’Reilly J concerned miscellaneous interlocutory and interim property applications.
In support of the husband’s application an affidavit was filed on same date by the husband’s solicitor. A further affidavit was filed by leave on the husband’s behalf.
The application is resisted by the wife, who seeks that the application be dismissed and that the husband pay the wife costs on an indemnity basis. In the event that the husband is granted leave, the wife asks that the husband be ordered to pay the wife’s costs on a party-party basis as assessed.
Relevant Law
The principles referable to leave applications are well known and were discussed in Clivery & Conway [2007] FamCA 1435:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Merits of the appeal
These reasons will not be as extensive as may otherwise have been required, because most properly the solicitor for the wife, after hearing various matters submitted by Mr North SC on behalf of the husband, indicated that his client would not consent to the application, but would not put forward further submissions arguing against it.
In relation to the merits of the appeal, the affidavit of the husband’s solicitor explains that the issues in this matter concern the ongoing payment of loans secured against the properties of both the husband and the wife.
Should leave to appeal out of time be granted, the husband seeks to appeal orders 1, 2 and 7. Those orders are in the following terms:
(1)Until the trial of this matter or earlier order the husband pay to National Australia Bank the amounts due in respect of “the mortgages” as defined in the wife’s amended initiating application filed 21 May 2010 in respect of “the properties” as defined in the wife’s amended initiating application filed 21 May 2010 as and when those amounts fall due.
(2)The amounts so paid by the husband be taken into account at the trial of this matter as to whether they be characterised as contributions by the husband to those properties or otherwise.
…
(7)The husband’s application for sale of the properties at:
a.[1 C], Western Australia
b.[S], South Australia and
c.[2 C], Western Australia
and consequential orders is dismissed.
The grounds of appeal will assert that the trial judge erred or failed to act in accordance with correct principles in a number of instances. It is said that this occasioned substantial injustice to the husband.
The injustice as complained of is that the husband is compelled to pay various amounts to the National Australia Bank and that the husband’s application for the sale of properties was dismissed.
Reason for the delay in filing
In the husband’s solicitor’s affidavit, the solicitor explains that although O’Reilly J gave ex tempore reasons for judgment when the orders were made on 29 October 2010, her Honour did not provide published reasons until 17 November 2010. The orders were not received by the solicitors until 5 November 2010.
On 18 November 2010 the husband’s solicitor sought an opinion from senior counsel as to the prosects of success of an appeal. Counsel was provided with the transcript of the proceedings, upon receipt of that document on 24 November 2010.
It is explained that the material required to be considered by counsel was substantial. The transcript and the reasons for decision were lengthy. I have been provided with a copy which is now marked exhibit 1. The 19 affidavits that were filed in respect of the interim hearing were voluminous. It is said that this contributed to the delay in obtaining the advice, which was ultimately received on 1 December 2010.
Success of an appeal
Success is difficult to measure on such an application, but it is necessary to be cautious. It was vigorously submitted by Mr Hirst, the solicitor for the wife, that the grounds of appeal do not demonstrate any prospects of success. However it is submitted on behalf of the husband that there are some unusual features of these orders. In paragraphs 18 to 24 of the affidavit of the solicitor for the husband, the following assertions were made:
18.I am unaware of any prior decision in the Family Court which has made an “asset preservation” order of a mandatory nature on an interlocutory basis.
19.The sole basis put forward by [the wife] for applying for order was “asset preservation”. By increasing his debt level to meet the mortgage repayments, the net effect is a diminution of the asset pool available for distribution, which fact is contrary to the claims made by Mr Hackett, Counsel for [the wife] that the retention of the properties and payment of debt in respect thereof is to enable asset preservation.
20.It would appear from Her Honour’s reasons that one of the matters influencing her exercise of discretion was an assertion from Mr Hackett from the bar table where in he stated that the [the wife’s] representation had “been proceedings on the presumption that the bank, because they are in communication with each of the parties, will take interest on those expired facilities, and have not yet pressed…” [Emphasis added].
21.At paragraph 21 of the reasons for decision, Her Honour states “[d]uring argument, Mr Hackett explained that whilst two of the facilities marked on ex 1 have expired – see the second page of ex 1 – his understanding is that provided that interest in those two facilities is paid (as well as on the other facilities) the NAB may be likely not to proceed to exercise any rights of power of sale in respect of the five properties.” [Emphasis added].
22.There was no evidence before Her Honour that the National Australia Bank was likely not to proceed to exercise any of it’s rights rather, the clear evidence was from page 1 of exhibit 1 that the National Australia Bank expressly reserved all of it’s rights and that at the time of her honours order, principal repayment was due on two of the facilities which had expired and demand had been made on a number of facilities for amounts totalling in excess of $3,000,000 with neither party expressing a willingness or showing a capacity to meet any such principal repayments without the sale of assets.
23.Her Honour assumed the matters suggested to her by Mr Hackett in arriving at the conclusion that the order requiring [the husband] to make repayments was “convenient,” but Her Honour does not specifically address in her reasons the fact that the demand has already been made for repayment of over $3,000,000 in principle by the National Australia Bank.
24.I believe it is arguable that, as the evidence currently stands as to the pool of assets available, the prospects of [the wife] obtaining the orders she seeks in her application for final property settlement are at best remote.
The proposed notice of appeal attached to the affidavit of the solicitor, recognises that it will be necessary to obtain leave to appeal. The proposed grounds, at least as far as can be understood at this point, do appear to contain some substantial matters to be argued.
Possible prejudice
The notice of appeal should have been filed on 26 November 2010. The husband is therefore approximately one week late in the time he filed his application in an appeal. Consequently it is said that any possible hardship or injustice occasioned to the wife is minimal. Obviously, should leave not be granted the husband will be unable to appeal or seek leave to appeal.
It is explained that the husband has been able to comply with the orders to date, through borrowing monies from friends on an unsecured basis, as the husband is unable, he says, to meet the required payments from his own earnings. It is said that the husband is in default on loans relating to his property in London. The affidavit received on behalf of the husband this morning and filed by leave reveals that he is currently residing in Europe. He says that he is not a resident of Australia, and has not lived in Australia for approximately 19 years.
This affidavit, while dealing with some matters contained in the wife’s affidavit, seems to be mostly directed to assuring the court that he will comply with the orders of this court, which include complying with the orders made by O’Reilly J.
The solicitor for the husband states that she is unaware of any hardship suffered by the wife as a result of the husband’s delay in filing the notice of appeal. It is said that any prejudice that could be seen to be suffered by the wife could be remedied by a costs order.
The affidavit of the wife contains some 10 pages and annexures of 102 pages. It might be thought that little of it is directly relevant to this application, although it does provide background material in relation to the history of the proceedings and the conduct of the parties.
The primary point, it seems to be gleaned, is that the wife is concerned that the appeal is not genuine, but a mere delay tactic, and that even if that can not be demonstrated, that the effect of the appeal would be to delay the proceedings. As I have mentioned earlier there was considerable discussion about this question. Mr North, who appears instructed today for the husband, said, it seems to me at least, as much as he could to allay that fear.
The wife also complains that the first indication she received that an appeal may be filed was on 8 December 2010, by letter from the husband’s solicitors. There have also been substantial difficulties in arranging a mediation. I am told this morning that a mediation has been arranged for tomorrow. One can only hope that that may be successful.
Under the heading prejudice the wife said the following in her affidavit:
74. I have endured very considerable stress since my commenced proceedings in the Federal Magistrates Court on 21 April 2010 and have lived with uncertainty and stress about my financial arrangements since my separation from the Husband (which I assert to be April 2007).
75. I suffered stress arising from the delay in the Federal Magistrates Court determining my Application for interim orders and I was very pleased when my application for interim orders was determined by Her Honour Justice O’Reilly in October 2010. I was also pleased that Her Honour’s orders (if complied with) would mean that the matter would come on for an urgent hearing for trial very expeditiously.
76. Despite this the Husband, whilst purporting to comply with the orders of Justice O’Reilly has allowed the time in which to appeal those orders to lapse. Once the period for an appeal had expired, I was even more confident that the matter would be proceeding to an expeditious hearing.
77. The Husband first notified my Solicitors of any intention on his part to seek to appeal was on 8 December 2010 and in the same letter he withdrew from the mediation that he had previously agreed to attend on 21 December 2010. This was a step required by Justice Murphy before the matter could be listed as set out in the guidelines he published.
78. The Husband’s conduct by not disclosing his intention to take advice regarding an appeal, by allowing the time period for any appeal to lapse and by withdrawing from the process required to permit the matter to be made ready for the Fast Track as ordered has caused me great stress and continues to do so.
79. Whilst he does not seek to appeal the orders of Justice O’Reilly regrading venue or the orders made that the parties do all things necessary to ensure that the matter is included in the Financial Fast Track Pilot Project published by the Honourable Justice Murphy so as to ensure a trial at Brisbane as soon as possible, his conduct prevents the matter from being ready to be placed on that list and I believe that it is the Husband’s strategy to take whatever steps are open to him and prevent this matter proceeding to a hearing as ordered by Justice O’Reilly.
80. This has all caused me a great deal of additional stress and further considerable legal expense.
81. If the Husband is permitted to proceed with his appeal, I have no doubt that the Husband will use this as an excuse to prevent the matter proceeding as ordered by Justice O’Reilly even though he has not applied for or foreshadowed applying for a stay of the orders of Justice O’Reilly. I refer to the guidelines that Justice Murphy has published in that regard.
82. I will also have further legal costs and this Court will be required to allocate resources to hear and determine the Appeal.
Conclusion
In these circumstances where the delay in filing the notice of appeal was primarily due to the delay in receiving the published reasons for judgment and the proper need, in this case, to obtain counsel’s advice prior to filing, leave should be given.
Although I have already made some remarks in this respect, during submissions, I would wish to emphasise that there is no need for the substantive proceedings in this matter to be delayed in any way. As mentioned, I do not know that Mr North could have said anything more on that topic, but there is of course the transcript of this mornings hearing and the various submissions by Mr North should there be any future difficulty.
Costs
It is certainly correct that this application was only necessary due to the delay in filing the appeal and the application for leave to appeal. However, as I have found there is a very good explanation for the delay in this matter, the real question ultimately is whether or not there is any substance in this appeal.
It seems to me therefore, that the proper order to make is that the Full Court determine the question of the wife’s application for costs of and incidental to this leave application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 January 2011.
Associate:
Date: 24 February 2011
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