KAI & GANT - [2018] FamCAFC 16

FAMILY COURT OF AUSTRALIA

KAI & GANT

[2018] FamCAFC 16

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file a draft appeal book index – Where the applicant seeks to appeal a costs order against her in proceedings she ultimately discontinued – Found there is an adequate explanation for the delay but no substantial issue to be raised on appeal – Relatively small amount of costs in dispute considered – Application dismissed – Respondent’s application for costs dismissed.

Family Law Rules 2004 (Cth)

Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31

APPLICANT:

Ms Kai

RESPONDENT:

Mr Gant

FILE NUMBER:

PTW

5925

2006

APPEAL NUMBER:

2017

DATE DELIVERED:

30 January 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

30 January 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

6 September 2017

LOWER COURT MNC:

[2017] FCWAM 213

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Klimek

SOLICITOR FOR THE RESPONDENT:

Klimek & Wijay Family Lawyers

Orders

The application in an appeal filed 28 December 2017 be dismissed.
The respondent’s application for costs be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kai & Gant has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 34 of 2017
File Number: PTW 5925 of 2006

Ms Kai

Applicant

And

Mr Gant

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before me is the application in an appeal filed on 28 December 2017 by Ms Kai. The respondent to the application is Mr Gant. The applicant seeks an extension of time in which to file a draft appeal book index.
The background is not without complication. The application arises in the context of an appeal filed in October 2017 challenging a costs order made by Acting Magistrate De Maio on 6 September 2017. The Acting Magistrate dismissed an application of the respondent for costs on an indemnity basis but had instead ordered the applicant to contribute to the respondent’s costs of a portion of the proceedings fixed in the sum of $2,500.
The proceedings before her Honour involved two elements.
First, there was a parenting matter which has been ongoing for a long period of time and, apparently, is still ongoing.
Secondly, there was an application for property settlement. The history of that application is set out in her Honour’s reasons delivered on 6 September 2017. In a nutshell, the parties, having been married for a few years, separated and had a trial at which issues between them, including property settlement issues, were resolved. There was then a reconciliation between the parties, following which the applicant sought to apply for a further property settlement. She did so at a time when she had legal representation. In the course of the proceedings, the respondent argued there was an insurmountable jurisdictional hurdle to the applicant proceeding with the renewed property application.
The applicant was advised by her Honour to obtain legal advice. Ultimately, the applicant decided not to proceed with her property settlement application. The applicant, therefore, having been “wholly unsuccessful” in her application, then faced an application for costs made by the respondent.
As I have stated earlier, although the respondent sought that the applicant pay all of his costs of the property claim, which exceeded $16,000, the Acting Magistrate determined that there was not an adequate basis for costs to be ordered on an indemnity basis and, instead, elected to fix an award of costs of a relatively small proportion of that sought by the respondent.
The applicant was aggrieved by the decision and appealed. As was explained to the applicant by the Appeals Registrar in correspondence dated 11 October 2017, in order to prosecute her appeal it was necessary for her to provide a draft appeal book index which was due by 30 October 2017, and that a failure to do so would result in the appeal being deemed abandoned.
The applicant understood this advice because, on 31 October 2017, she sent an email to the court in which she explained the difficulty she had had in filing the index and sought an extension of time. Having sought advice from the Appeals Registrar about what she could now do, the Appeals Registrar wrote to her promptly on 1 November 2017, correctly explaining that it was not possible for him to extend the time because the rules provide that the appeal is deemed to be abandoned if the draft index is not filed within the prescribed period of time. The Appeals Registrar further explained the process the applicant needed to follow in order to reinstate her appeal.
The applicant followed the process and filed an application in an appeal on 28 December 2017, which is the application that I am considering today. The applicant appears today without legal representation and required the assistance of an interpreter. The respondent appears today represented by his solicitor.
The Family Law Rules 2004 (Cth) (“the Rules”) provide that the Court can extend the time in which any act is to be done under the Rules. The relevant principles are set out in a number of decisions of the Full Court. In Joshua v Joshua (1997) FLC 92-767 Lindenmayer J, after citing the well‑known decision of McHugh J in Gallo v Dawson (1990) 93 ALR 479 said at 84,440:
the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be a finality to litigation.
Ultimately, however, as the Full Court said in Bemert & Swallow (2010) FLC 93-441 at [154], “the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account”.
In this case, there seems to me to be two matters of primary importance to guide the exercise of the discretion that is conferred upon me by the Rules.
The first is to consider the explanation for the delay in the filing of the draft index and, to a lesser extent, the delay in then making the application for an extension of time. The applicant has, in my view, provided a more than adequate explanation for her delay. English is not her first language and she does not have the benefit of legal representation, other than that which she can scrounge together by going to community legal centres and the like and obtaining one-off advice.
The applicant sought an extension of time informally, immediately after the time period had expired. Further, she explained that, at the relevant time, she had a number of other matters to attend to which prevented her from preparing an appeal book index which, in itself, would be a difficult document for a self‑represented litigant to prepare, let alone one who does not have English as their first language. As I say, therefore, I am satisfied that there was an adequate explanation for the delay. I am also, for similar reasons, satisfied that there was no untoward delay in the applicant then bringing this application before the Court. No attempt has been made to show that the delay, in itself, has created any prejudice for the respondent.
In my view, it is the second issue that is more difficult for the applicant to overcome; namely whether there is a substantial issue to be determined on appeal. That issue requires some consideration of the merits of the matter. It must also take into account the fact that whilst $2,500 is a substantial sum for a person who does not have any money, it is a very modest amount of money in terms of the time and resources that would be required to deal with this appeal.
In looking at the merits of the matter, I have had regard to the grounds of appeal, which have been largely repeated in the applicant’s affidavit and in the summary of argument handed up to me today. However, with respect to her, understandably, the applicant does not have a good appreciation of what exactly has gone on in the property proceedings, and I accept that she has felt quite overwhelmed by not quite knowing what is going on.
Nevertheless, the court below was dealing with the proceedings that the applicant herself had brought before it. Further, as I have pointed out today, the court, in making the order for costs, was not dealing with the parenting issue, which appears to be the most significant issue from the applicant’s point of view, but rather with the property aspect of the matter which the applicant seems to regard as being of not great importance.
The problem, however, is that following the applicant’s initiating what appeared to be a fresh application for property settlement, it was necessary for the respondent to respond to that application. In the course of the proceedings, the respondent’s representatives then properly drew attention to the fact that there was a major, arguably, insurmountable jurisdictional issue.
The applicant was advised by her Honour to take legal advice and she says, and I accept, she did so. Consequently, she decided not to pursue her application, which then gave rise to the application for costs. The Acting Magistrate, in dealing with that costs application, carefully went through each of the factors that the court is required to take into account. Significance was placed upon the fact that the applicant had been wholly unsuccessful in the property proceedings and that the respondent had, therefore, been put to unnecessary expense.
There is nothing at all in the grounds of appeal, or in any of the arguments that has been put, to indicate – save for one issue – that there was any appealable error. In reaching this conclusion I am not commenting on the applicant’s concerns regarding the demeanour of the Acting Magistrate or of the fairness of the way in which part of the hearing was conducted. I have had no opportunity to consider whether there is any merit in that part of her argument because I do not have a transcript. However, those aspects of the submissions are, with one exception, irrelevant to the question of whether there is any merit in the discrete decision that I am dealing with today, relating to the question of costs.
There was a strong case for costs being ordered and the only part of the submissions that causes me concern is the apparent mistake made by the Acting Magistrate in proceeding on the belief that the applicant had not taken up the opportunity to obtain legal advice as she had been advised to do.
The applicant says that the Acting Magistrate did not know that she had, in fact, taken legal advice as recommended because her Honour did not allow her an opportunity to explain that she had. But the applicant was given an opportunity to provide written submissions and, although, she failed to do so, she had earlier provided an affidavit which the Acting Magistrate was prepared to read in considering the costs argument (see [15] of the reasons). I am satisfied, on the basis of that affidavit, that she did, in fact, take some legal advice.
The question then becomes what significance, if any, that fact would have assumed on the costs argument in circumstances where the respondent had advised there was an insurmountable difficulty with the application. In my view, it would have made no difference since the respondent had unnecessarily incurred costs in circumstances where the applicant had legal advice at the time she commenced her property application. It seems to me that the Acting Magistrate’s misunderstanding about whether the applicant had obtained further legal advice as recommended was an error with no consequence.
Even if I am wrong, the fact that the amount in dispute is as small as $2,500 is an important factor in the exercise of the discretion. It is also not without significance, as I have explained to the applicant, that if I gave her permission to proceed today and the appeal was heard and she lost, she would then be facing a claim for costs greatly in excess of the amount in issue today.
The application in an appeal filed 28 December 2017 will therefore be dismissed.

RECORDED: NOT TRANSCRIBED

The application now is that of the respondent seeking the costs fixed in an amount of $2,750. In support of the application, the respondent relies on the fact that the applicant has been wholly unsuccessful today. In opposing the application, the applicant primarily relies upon her poor financial circumstances. With prompting from the Court, the applicant also refers to the bona fides that she had in pursuing today’s application.
This is a most unfortunate piece of litigation. It is apparent that the applicant does not have a good understanding of the way in which the process works. It is also apparent that she was genuine in seeking to appeal the decision and that the appeal was not able to proceed due only to a technicality laid down by the Rules. In making my decision, I take these factors into account.
I also take into account the fact that whilst the applicant has some income, she has significant expenses and no assets of substance. I accept, also, that the respondent is not in a strong financial position and that he has obligations in relation to the parties’ child. But I also take into account the issue of proportionality to which his counsel referred. I do not see it as proportionate to engage legal representation at a cost of $2,750 in order to meet a claim of $2,500.
In the exercise of my discretion, I dismiss the application for costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 30 January 2018.

Associate:

Date: 27 April 2018