Kappas and Kappas (No 2) - [2017] FamCAFC 241

FAMILY COURT OF AUSTRALIA

KAPPAS & KAPPAS (NO. 2)

[2017] FamCAFC 241

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where although there are difficulties with the Draft Notice of Appeal recognisable grounds of appeal can be discerned – Where the extension of time as sought should be granted – Time to file extended.

FAMILY LAW – APPEAL – REVIEW REGISTRAR’S DECISION – Where the Appeal Registrar was correct in refusing to receive for filing documents presented by the appellant one of which was prima facie out of time and two others which were inadequate – Where there is no utility in further considering the complaints the appellant makes given that the time to file an appeal has been extended – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Mr Kappas

RESPONDENT:

Ms Kappas

FILE NUMBER:

MLC

7430

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

10 November 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

10 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 March 2017

LOWER COURT MNC:

[2017] FCCA 577

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

Kennedy Guy

Orders

The time for the appellant husband to file and serve a Notice of Appeal be extended to the close of business on Friday 24 November 2017.
The Notice of Appeal, accepted as an application in an appeal to review decisions made by the Appeal Registrar, and filed on 31 May 2017, be dismissed.
On or before the close of business on Friday 24 November 2017 the appellant husband file and serve a draft appeal index containing a list of the documents to be before the Court for the purposes of the appeal and comprising the documents which were before the trial judge.
On or before the close of business on Friday 1 December 2017 the respondent wife file and serve an amended draft appeal index in the event that there are further documents the respondent wife suggests should be before the Court for the purposes of the appeal.
On or before the close of business on Monday 18 December 2017 the appellant husband obtain the transcript of the hearing before the trial judge and provide copies of that transcript to the Court and to the respondent wife.
On or before the close of business on Monday 18 December 2017 the appellant husband file and serve a written summary of argument and list of authorities, if any.
On or before the close of business on Monday 18 December 2017 the appellant husband file and serve an application in an appeal seeking to lead further evidence and an affidavit containing that evidence.
On or before the close of business on Monday 22 January 2018 the respondent wife file and serve a written summary of argument and list of authorities, if any.
On or before the close of business on Monday 22 January 2018 the respondent wife file and serve any response to the application to lead further evidence together with any affidavit in support thereof.
The appeal be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Wednesday 31 January 2018 with a time estimate of half a day.
The costs of today be reserved.

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 Kappas & Kappas (No. 2) 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 ADELAIDE

Appeal Number: SOA 36 of 2017
File Number: MLC 7430 of 2015

Mr Kappas

Appellant

And

Ms Kappas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The applications before the court today are first, an application in an appeal filed by Mr Kappas (“the husband”) on 31 May 2017 seeking an extension of time to file an appeal against orders made by Judge Harland on 24 March 2017. Secondly, a Notice of Appeal, also filed by the husband on 31 May 2017, but received on the basis that it is treated as an application in an appeal seeking to review decisions made by the Appeal Registrar.
The applications are opposed by Ms Kappas (“the wife”).
This matter first came before this Court on 13 September 2017, and the husband’s applications were adjourned to today, namely 10 November 2017.
The reason for that adjournment was that the Draft Notice of Appeal provided by the husband in support of his application for an extension of time was incompetent, in that it did not set out competent grounds of appeal. As a result, the husband sought an adjournment of the proceedings to enable him to file an Amended Draft Notice of Appeal setting out competent grounds of appeal. That application was opposed by the wife, but in the end result I determined to adjourn the matter, and I made an order for costs against the husband.
Since the hearing on 13 September 2017, the husband has filed a Further Draft Notice of Appeal. It is not in the form of an Amended Notice of Appeal, because what the husband has done is to prepare an entirely new Draft Notice of Appeal. There is no difficulty with that, but there are other difficulties which I will come to in a moment. Together with that Draft Notice of Appeal, the husband has presented an affidavit which annexes two documents, and I will also return to them shortly.
Separate again there are two further documents presented, one which is in fact the husband’s updated outline of case which was filed in the court below, and the other document is headed “Further Particulars”.
Unfortunately, none of those documents were provided to the other side, but the reason for that was that the husband was waiting for service copies to be returned to him so that he could serve the other side. However, what happened was that the Appeal Registrar determined that it was inappropriate to receive those documents for filing. In my view, that decision by the Appeal Registrar was quite correct, but unfortunately, as I indicated, it meant that Mr Marchetti, counsel for the wife, did not have those documents available to him today.
In any event, Mr Marchetti has agreed that the hearing proceed today, albeit, he does not physically have those documents before him. I have outlined their contents to him.
In terms of the application for an extension of time, as I indicated in my ex tempore reasons for judgment delivered on 13 September 2017, the husband argued that he was not out of time when he presented for filing his initial Notice of Appeal. However, as I explained in my reasons, it was unnecessary for the purposes of the proceedings to determine that issue one way or the other, because, as is apparent from the timing, when the husband presented his Notice of Appeal to the court on 27 April 2017, he was only three days out of time if it was necessary for him to file that Notice of Appeal by 24 April 2017. I note of course, that if the husband’s argument was correct as to when he needed to file that Notice of Appeal, then he was within time.
In any event, to repeat, it was unnecessary to make a decision about that, because whether the operative orders are 12 April 2017, or 24 March 2017, the husband has provided an adequate explanation for his failure to file a Notice of Appeal within the 28 day time period from 24 March 2017, which would have been the earliest date that the orders would have operated from.
Having closely read the Draft Notice of Appeal that the husband now relies on, as I have indicated to him during the course of the hearing today, there are many aspects of that Notice which are still inappropriate. For example, he has persisted with setting out a narrative of several pages under the heading “Grounds of Appeal”. What I have been able to do though, is to discern from that narrative, three or four recognisable grounds of appeal.
Now, that is not to say that they are grounds of appeal which will succeed; the exercise at this point is simply to ascertain whether there are prima facie appealable errors by the trial judge. The husband is not required at this stage to satisfy this Court that he will succeed, he only needs to satisfy this Court that there is a prospect of success, no matter how slim or remote that might be, and his Amended Notice of Appeal falls into that category.
Thus, in my view, the interests of justice require that the husband be able to pursue his appeal, and I propose to grant him an extension of time.
I appreciate that there is prejudice to the wife in permitting the appeal to proceed, in that, at the moment, there is in fact no appeal on foot, but once the husband is able to proceed with his appeal there will be, and the wife will need to deal with it. However, that prejudice has to be balanced against the prejudice that would be suffered by the husband if he was not able to proceed with his appeal in the circumstances that I have outlined.
The husband will need to file a new Notice of Appeal, and I have indicated to him parts of his Draft Notice of Appeal which are unnecessary, such as him having sought leave to appeal, and also parts of the document where he will need to excise at least one paragraph which contains quite abusive language.
It would be ideal if the husband could redraft his grounds of appeal to simply identify those grounds which I have been able to discern from his narrative, and of which I have informed him, but I am not going to require him to do that. What the husband needs to know about that though, is that much of what he has put in that narrative is irrelevant, and will not be taken into account when the appeal is heard.
In terms then of the other documents that the husband has sought to present. In relation to the affidavit, it is quite apparent that what he is attempting to do is to seek to lead further evidence for the purposes of the appeal. As I have explained to the husband, there is a process for doing that, namely filing an application in an appeal seeking leave to adduce that evidence, and then filing the affidavit of that evidence together with that application. I propose to make an order providing for such an application to filed and served.
With the two other documents that I have referred to, the updated outline of case does not need to be filed because, as I have explained to the husband, that document will be before the court in any event.
With the document headed “Further Particulars”, it is completely inappropriate for that document to be before the court. It contains serious allegations against the trial judge and further abusive language. Thus, for that reason alone, it would not be allowed to be before the court, but the fact of the matter is it is not a document which is appropriate to be before the Appeal Court in any event.
As I have explained to the husband, he will have the opportunity to file a written summary of argument where he will set out his argument in support of his appeal, and that is where he will have the opportunity to explain his complaints.
I propose therefore to make the order I have foreshadowed extending the time for the husband to file a Notice of Appeal, and to make orders preparing the appeal for hearing and listing the appeal for hearing.
Turning to the application for a review of the Registrar’s decisions. There the husband complains about the Appeal Registrar refusing to accept his initial Notice of Appeal for filing, and refusing to accept the two subsequent applications that he sought to file wherein he was seeking an extension of time. As I have explained to the husband, the Appeal Registrar was correct in refusing to receive for filing those documents; the first was prima facie out of time, and the other two were inadequate. In any event, given that I am now extending the time and allowing the appeal to proceed, there is no utility in further considering the complaints that the husband makes. Thus, I will dismiss that application.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 November 2017.

Associate:

Date: 23 November 2017