Karbines and Karbines & Anor
[2009] FamCAFC 246
•15 October 2009
FAMILY COURT OF AUSTRALIA
| KARBINES & KARBINES AND ANOR | [2009] FamCAFC 246 |
| FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the husband failed to file a draft appeal index – where the husband’s appeal was deemed abandoned pursuant to rule 22.13(3) – where the husband has not pursed an application for reinstatement expeditiously – whether the husband received relevant correspondence – whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties – application dismissed. |
| Family Law Act 1975 (Cth) ss 94(2D) & 94(2F) Family Law Rules 2004 (Cth) rr 22.13 & 22.44 |
| Bane and Hacker [2009] FamCAFC 110 Gallo v Dawson (1990) 93 ALR 479 Rand and Rand [2009] FamCAFC 88 Batey-Elton and Elton [2009] FamCAFC 101 |
| APPLICANT: | MR KARBINES |
| 1ST RESPONDENT: | MS KARBINES |
| 2ND RESPONDENT: | C PTY LTD (IN LIQUIDATION) |
| 3RD RESPONDENT: | MR AND MRS WILLA |
| FILE NUMBER: | MLF | 2479 | of | 2005 |
| APPEAL NUMBER | SA | 111 | of | 2008 |
| DATE DELIVERED: | 15 October 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 October 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 December 2008 |
| LOWER COURT MNC: | [2008] FamCA 1115 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Berman |
| SOLICITOR FOR APPLICANT: | Patrick Cash & Associates |
| COUNSEL FOR 1ST RESPONDENT: | Mr Jordan |
| SOLICITOR FOR 1ST RESPONDENT: | Maddens Lawyers |
| COUNSEL FOR 2ND RESPONDENT: | Mr Thomas |
| SOLICITOR FOR 2ND RESPONDENT: | Norman Waterhouse |
| COUNSEL FOR 3RD RESPONDENT: | Mr Bersee |
| SOLICITOR FOR 3RD RESPONDENT: | Herman Bersee Solicitors |
Orders
That the Application in an Appeal filed by the husband on 26 August 2009 be dismissed and removed from the active pending cases list.
That the question of the liquidator’s, the wife’s and Mr and Mrs Willa’s costs be adjourned to a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Karbines & Karbines & Ors 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 ADELAIDE |
Appeal Number: SA 111 OF 2008
File Number: MLF 2479 of 2005
MR KARBINES
Applicant
And
| MS KARBINES |
1st Respondent
C PTY LTD (IN LIQUIDATION)
2nd Respondent
| MR AND MRS WILLA |
3rd Respondent
REASONS FOR JUDGMENT
Introduction
The application before me is an Application in an Appeal filed by the husband on 26 August 2009, in which he seeks an order that the Notice of Appeal filed on 31 December 2008 be reinstated.
That application is opposed. There are three respondents who have responded, and each of those respondents has filed a Response. The wife filed a Response on 30 September 2009 in which she sought the following orders:
1. That the application be dismissed.
2. That the applicant pay the respondent wife’s costs thrown away.
3. That if the applicant is given leave to reinstate his appeal, as a condition precedent to reinstatement he pay the wife’s costs thrown away on an indemnity basis and fixed in the sum of $100,434.88.
The liquidator of C Pty Ltd filed a Response on 8 October 2009 seeking the following orders:
1. That the application be dismissed.
2. If the application is granted, it be granted on the following conditions:
2.1The husband pay the costs thrown away.
2.2The husband provide security for the costs of and relating to the appeal in the total amount of $20,000.00.
2.3The husband provide security for the sum of $65,301.00 plus interest from 2 May 2008 up until satisfaction of the order made by Dawe J on that date pursuant to the Family Court Rules.
Mr and Mrs Willa filed a response on 8 October 2009 in which they sought the following orders:
1. That the application be dismissed.
2. That the applicant pay the costs thrown away.
3. That if leave is given to reinstate the appeal, as a condition precedent to the reinstatement the husband pay costs thrown away on an indemnity basis and fixed in the sum of $35,004.78 and in the alternative provide security for costs in that amount.
I should mention that there was a fourth respondent, namely, Westpac Banking Corporation. And just to briefly touch on that, the order which is the subject of the Notice of Appeal sought to be reinstated was an order in proceedings to which the wife was the applicant, the husband was the respondent and there were four intervenors: C Pty Ltd (In liquidation), Mr and Mrs Willa, B Pty Ltd (In liquidation) and Westpac Banking Corporation.
Unfortunately, the husband omitted to include as respondents to his application, the third and fourth intervenors that I have just referred to. On the last occasion this matter was before me, it was generally agreed that B Pty Ltd (In liquidation) would have no interest in this application. However, it was considered that Westpac Banking Corporation would have such an interest and I made orders on that occasion, which was 9 October 2009 joining the Westpac Banking Corporation as a respondent and ordering the applicant, that is, the husband in this application, to serve the relevant documents upon that Corporation.
That has been done and there are affidavits of service on file indicating that. I note though that that Corporation is not represented today and there is no document filed by or on its behalf.
I am told by Mr Berman who appears for the husband that Westpac Bank is well aware of this application, and, indeed, that Bank has been kept informed of this matter generally. I take from that that given that knowledge, the Bank has made a decision not to appear and that is the basis on which I proceed. As I indicated on the last occasion, subject to any extraordinary circumstances, I was not prepared to further adjourn the matter and I requested that that be made clear to the Bank, and I assume that has been.
Thus in terms of this application, there are three respondents who have actively responded and that is C Pty Ltd (In liquidation), Mr and Mrs Willa and the wife.
The evidence
The husband now has two affidavits before me. They are his affidavit filed on 26 August 2009 and an affidavit filed yesterday being 14 October 2009. Each of the respondents have filed affidavits as follows:
1. The wife
1.1Affidavit of Justin James Serong, solicitor, sworn on 17 September 2009.
1.2Affidavit of Justin James Serong, solicitor, sworn on 29 September 2009.
2.The Liquidator of C Pty Ltd
2.1Affidavit of Nicholas David Cooper, liquidator, sworn on 16 September 2009.
2.2Affidavit of Nicholas David Cooper, liquidator, sworn on 7 October 2009.
3.Mr and Mrs Willa
3.1Affidavit of Herman Bersee, solicitor, sworn on 16 September 2009.
3.2Affidavit of Herman Bersee, solicitor, sworn on 7 October 2009.
3.3Affidavit of Herman Bersee, solicitor, sworn on 15 October 2009.
I should note though that there were two further affidavits filed on behalf of the Liquidator of C Pty Ltd, about which there were concerns, and I will just refer to those briefly. There was an affidavit filed on 8 October 2009 by Damien Gerard McGrath who is the solicitor for the liquidator. That annexed certain correspondence from a firm of solicitors, Gall Stanfield & Smith. They represent Mrs J Karbines, who was initially named as a respondent to this application, but on 9 October 2009 I ordered that she be removed as a respondent given that she was not a respondent to the proceedings which resulted in the order of 19 December 2009. In any event, there was a letter annexed to this affidavit, and objection was taken to it being before me on the ground that it was privileged. It contained an offer of settlement.
I dealt with that issue on 9 October 2009, and in the end result I determined not to receive that annexure and Mr Harvey, the solicitor who appeared for Mrs Karbines, read his instructions onto the transcript which satisfied the requirement of the liquidator in terms of certain factual material as to the condition of a property at E in Queensland, which is very much central to these proceedings and in respect of which enforcement proceedings are ongoing.
The second affidavit to comment on is an affidavit filed on 8 October 2009 as well, by Vasilios Savvas Marinos who is a solicitor with the firm of solicitors who represent the liquidator. On 9 October 2009 I queried whether I should receive that affidavit, but in the end result I did receive it. There was a question about the admissibility of at least one paragraph of that affidavit in terms of how it refers to an inquiry that is made of an officer of the Family Court, and there has been further discussion about that today, but I need not say anything more about that. That affidavit is before me and is relied upon by the liquidator to the extent that I am prepared to attach any weight to it.
Background
In terms of the relevant background I will be brief. These proceedings commenced in 2002 and culminated with orders being made by Dawe J on 19 December 2008 in relation to property settlement issues. The husband then filed a Notice of Appeal on 31 December 2008. In that document he sought leave to appeal but, of course, that was not necessary given that the order that he was looking to appeal against was the final order made by Dawe J on 19 December 2009.
In any event, it is quite apparent from the document that the husband was wanting to appeal against all orders made by her Honour on 19 December 2008. I will come back to the grounds of appeal set out in that notice and other issues relating to it later in these reasons. Thus, he filed that on 31 December 2008 and as I understand it, he served an unsealed copy of that Notice of Appeal, at least, on the wife, and I know that from an affidavit of Mr Serong, the solicitor for the wife. Importantly, in that Notice of Appeal the husband’s contact address and address for service was specified as PO Box …, South Australia. Now, that was not a new contact address or address for service for the husband. That had been his contact address and address for service for some time in the proceedings. I do not know whether that was his notice of address from the commencement of the proceedings but, importantly, it certainly was his address for a significant period of time prior to 19 December 2008, and obviously as at 31 December 2008.
It is apparent that after the husband filed that Notice of Appeal, the Regional Appeals Registrar, Ms Marrone, sent a letter dated 7 January 2009 to him at his address for service, namely his post office box. The letter advised him of certain amendments that had come into force on 1 January 2009 to the Family Law Rules 2004, the effect of which was that his appeal would be taken to be abandoned if he did not file a draft index by 28 January 2009.
What the Registrar was referring to there was rule 22.13 of the Family Law Rules 2004, which required that an appellant must file a draft index to the appeal book within 28 days after (a) filing the Notice of Appeal or (b) the date when the reasons for judgment that relate to the order, the subject of the appeal, are issued. And then relevantly, sub-rule (3) says:
If the appellant fails to comply with subrule (2) the appeal is taken to be abandoned.
The husband did not file a draft appeal index and, thus, as of 28 January 2009, his appeal was taken to be abandoned pursuant to rule 22.13(3). Perhaps to go back a step, the husband, on 6 January 2009, filed an Application in a Case in the Adelaide Registry of the Family Court seeking that there be a stay. That is not precisely how he phrased it in the application but the effect of the application was that he was seeking a stay of the orders made by Dawe J pending the hearing of the appeal. He also filed an affidavit in support of that application. Now, I will come back to how these issues tie in in a moment, but I emphasise at this stage that the application was filed on 6 January 2009, as was the affidavit. The application was signed by the husband on 5 January 2009, but the affidavit was sworn by the husband on 6 January 2009, namely, the same day it was filed, and it was sworn before a police officer at the S Police Office, … , Victoria.
That application was duly served, at least upon the liquidator, and I assume as no one said otherwise, that it was also served on the wife, for example, and presumably Mr and Mrs Willa, or rather upon their solicitor, Mr Bersee. That application had a return date of 13 February 2009.
Now, just picking up again with what the Regional Appeals Registrar has done in this matter. It seems the next thing to happen of importance is set out in paragraph 6 of the husband’s affidavit filed on 26 August 2009 as follows:
“Following my filing of the Notice of Appeal on the 31st December 2008, I heard nothing more, and on or about 13th February 2009, I contacted the court to find out what was happening with my appeal. I was informed that I should have filed and indexed the appeal book, and was now out of time to do so.”
Pausing there, the husband does not in that paragraph, nor has he in his subsequent affidavit filed on 14 October 2009 identified who he spoke to in the Court, for example, whether it was Ms Marrone in Melbourne or someone in the Adelaide Registry. In any event, what he then says he did, and this is paragraph 7 of his affidavit, is on 16 February 2009 he “filed” an Application in a Case seeking an extension of time to file the index.
Again, he “filed” this in person, and the wording is not quite as it should be, but the effect of it is he sought an extension of time to 20 March 2009.
He sent that application to the Appeals Registrar. There was a supporting affidavit which was brief, and which did not set out any reasons for his failure to comply with the Rules, and nor, importantly, does it say, for example, that he understands that correspondence was forwarded from the Court, but he has not received any of that correspondence through his post office box. Indeed, significantly in my view, he again uses the same post office box number, namely, PO Box …, in this application. I say significantly, because, of course, the husband’s position in this case is that he has not received relevant documents, letters, correspondence, Court documents through his post office box, and that is the primary reason why he says now he should be able to have his appeal reinstated. I will come back to that though.
What happened about that application is that it was not accepted by the Court for filing. This is the subject of a letter dated 13 March 2009 from the Regional Appeals Registrar, Ms Marrone, to the husband sent to his post office box number which was still his address for service and about which no problems had been identified. The letter reminded him of what was in the letter of 7 January 2009, namely that his appeal would be taken to be abandoned if he did not file a draft index by 28 January, and then saying:
“In the absence of written consent to late filing from the other parties, you should make application to reinstate the appeal. An application in an appeal and affidavit are now enclosed for your assistance. When completed, the original and sufficient copies of each document should be returned to me for filing and listing.”
As I understand it, the husband says that he did not receive that letter. In paragraph 9 of his affidavit filed on 26 August 2009, he says that he has recently engaged a solicitor who perused the Court file on 14 August 2009 and obtained a copy of the Notice of Appeal, also a copy of a letter apparently forwarded to him by the Court dated 13 March 2009 and which referred to a previous letter from the Court on 7 January 2009. Then in paragraph 10, he says:
“I did not receive either of those two letters and I believe the reason I did not was because they had been addressed to the post office box in [M].”
From there I go to the hearing on 13 February 2009, namely, the return date of the husband’s application seeking a stay. On that day the hearing was before Dawe J. The husband appeared in person by way of telephone link, and her Honour refused to grant the stay, dismissed the Application in a Case and ordered that the husband pay certain costs. I should say that on that day her Honour was also considering costs applications made by the wife and the second intervenors, namely, Mr and Mrs Willa, flowing from the orders made on 19 December 2008 and her Honour made orders about the filing of written submissions and setting dates for the further hearing of those costs applications.
There is one other matter to note about that hearing. In paragraph 5 of the affidavit of Mr Serong filed on 30 September 2009, Mr Serong deposes to what Mr Jordan - who was counsel for the wife on instructions from Mr Serong - relayed to him, Mr Serong, as to what had been said on the day, namely:
“He (Mr Jordan) informed me that there was a discussion at Court on that day regarding the deemed abandonment of the Applicant Husband’s Appeal. Although the husband appeared at Court on that day, I was informed by Mr Jordan that the husband made no application for reinstatement of the Appeal, despite discussion of the deemed abandonment.”
In the husband’s affidavit filed yesterday, he referred to this paragraph. He says in paragraph 2:
“I agree I failed to make an application for reinstatement on 13 February.”
Then he goes on to say he believed that Dawe J had, in fact, struck out his appeal. He says:
“I did wonder how it was that she could do so, but it must not be forgotten that I was self - represented on that occasion.”
I read into that that the husband is saying that he was self-represented and he did not really understand what was going on. He did not pursue an application for reinstatement because he thought that Dawe J had struck out the appeal and he could not do anything about it. That is my interpretation of what he is saying, but whether I accept it or not, or what weight I attach to it is another issue. In any event, it seems the husband has, importantly, conceded that there was discussion on that day as to the abandonment of his appeal and the need to make an application for reinstatement.
Now, thereafter, nothing happened in relation to any appeal for some time, save and except of course there was the letter that I have already referred to from the Registrar of 13 March 2009, which the husband says he did not receive. There were hearings before Dawe J in relation to issues of costs, but in terms of this application before me today, the next relevant date is 5 June 2009, when the husband filed an Application in an Appeal.
In that application he sought, amongst a number of orders, an extension of time to appeal the final orders delivered on 19 December 2008. There was a supporting affidavit filed by the husband in support of that application and I note that there was nothing in that affidavit relating to the fact, if it was the case, that the husband had not received relevant correspondence, had not received relevant documents, and that he was under a misapprehension as to the status of the appeal. His only reason why there should be an extension of time was set out in paragraph 1 of this affidavit where he says:
“The beginning of this year I suffered some health issues as a result of the final orders made 19th December 2008. I also suffered financial ruination due to these orders. For these reasons, it has made it extremely difficult to file an appeal. I have been left without any properties or assets, which were acquired jointly during the marriage. I will suffer hardship as a result of the court’s decision if I do not get the appeal time extended.”
Now, of course, I note that when compared with his affidavit filed in support of this application, there is no suggestion in the latter that he was suffering any health issues as a reason why he was not able to comply with the Rules of the Family Court. And as I say, to repeat, there is nothing in this affidavit in relation to any difficulties with his post office box, and no suggestion that he has not received any relevant correspondence through that post office box.
The husband does not, in either of his affidavits in support of the application for reinstatement explain why it has taken him until 26 August 2009 to file such an application. Impliedly, by virtue of paragraphs 9 and 10 of his affidavit of 26 August 2009, wherein he refers to his solicitors on 14 August 2009 ascertaining from the file that correspondence had been sent to him which he never received the husband seems to be saying that he did not know what the status of his appeal was, and he did not know what he had to do.
In these circumstances, I pose the rhetorical question of on what basis then did he pursue an application on 5 June 2009 seeking an extension of time to appeal. I have not been taken to any correspondence or hearing or activity involving the husband between 13 February 2009 and 5 June 2009, which would explain the delay to that point.
The law
I now turn to the relevant statute law and rules. Section 94(2D) of the Family Law Act1975 (Cth) deals with applications of a procedural nature in respect of appeals and relevantly s 94(2D)(g) says:
(2D)Applications of a procedural nature, including applications:
…
(g) to reinstate an appeal dismissed under a provision of the Rules of Court;
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Now, that is the subsection under which the husband is making his application. Also, relevantly, s 94(2F) provides that:
No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
The effect of that is that, other than an application being accepted by the High Court for special leave, any determination that I make on the husband’s application is not subject to an appeal to the Full Court.
Now, I have referred in my earlier remarks to the relevant rule under which the appeal is deemed to be abandoned, namely rule 22.13, and I will not repeat that.
The next relevant rule is rule 22.44, which provides simply that a party may apply to have an appeal taken to be abandoned under Chapter 22 of the Rules reinstated. Now, it has to be noted that that rule is the current rule in place of the former rule 22.57 which dealt with reinstatement of appeals, and that rule provided a number of factors that the Court may consider in determining an application for reinstatement as follows:
22.57 Application for reinstatement of appeal
(1) A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.
(2) In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non‑compliance was intentional;
(e)whether there is a good reason for the non‑compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non‑compliance was caused by the party or the party’s lawyer;
(h)the effect of non‑compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
With the current rule there are no factors set out to provide guidance in considering such an application but logically, and the authorities support this, the sorts of matters identified in the former rule 22.57 are the sorts of matters which are relevant to this application and would and should be considered by the Court in dealing with any reinstatement application but, ultimately, it is a matter of discretion (Bane and Hacker [2009] FamCAFC 110 at paragraph 25).
Discussion
Now, can I come back to, perhaps in more detail, the matters that I have touched upon in identifying the relevant background and history to these proceedings and in particular deal in more detail with the affidavits filed.
Paragraph 10 of the husband’s affidavit of 26 August 2009 in effect says that he did not receive the relevant correspondence, and he continues:
“It is only recently through discussions with my solicitor that I have learned that, contrary to my former belief, there was a quantity of important mail which I should have received which the liquidator failed to forward to me.”
Now, that follows on from paragraph 5 where he says as follows:
“On the company going into liquidation in February or March 2008, the liquidator took control of that post office box. However, I believe that mail personal to myself was being duly forwarded to me and hence I was lulled into a false sense of security in believing it was an appropriate correspondence address.”
He does not identify who has lulled him into that false sense of security but he says that that is a post office box that he has used for some time, and it was the postal address of the company C Pty Ltd.
Thus, an important issue in this case is whether the husband has received relevant documents through his post office box at M. Now, there has been a good deal of the affidavit material filed on behalf of the respondents directed to that issue, and there have been submissions as well. For example, in relation to the issue of the post office box and the liquidator taking control of it, as described by Mr Karbines in his affidavit, the liquidator says in his affidavit filed on 25 September 2009, that firstly the liquidation occurred in February 2007, not 2008 as the husband suggests, and secondly that he placed a mail redirection on the post office box address from 27 February 2007 to 26 May 2007 and that redirection was extended until 26 August 2007 but was not extended thereafter. Thus it is not a case of the liquidator taking control of the post office box. He put a redirection on it for a total period of six months concluding in August 2007. Mr Karbines would have me accept that, as far as he was concerned, the liquidator had control of the post office box and extending, it seems, into at least 2009. However, that is simply not factually correct.
Next, Mr Serong in his affidavit sworn on 17 September 2009 deposes to having sent documents and correspondence to Mr Karbines through the post office box, and it seems none of that correspondence was returned, marked for example, “not at this address” or “addressee cannot be found.” Mr Serong also makes the point that the husband has consistently used this address throughout the proceedings, up to and including June 2009. And importantly I refer to Exhibit “JJ54” to his affidavit which is an email from the husband on 24 June 2009 to Mr Serong’s assistant, Ms L saying:
“Thank you for your email. We have received the court sealed papers yesterday and have posted to you.”
That indicates to me that the husband received those papers through the post, which is the method by which this Court sends out documents. Indeed that is the purpose of a Notice of Address for Service, and the only Notice of Address for Service that the husband has had on file is PO Box …. Now, of course, the time frame is different in the sense that it is not January 2009 or February 2009 but it indicates to me that in June 2009 the husband received sealed documents from the Court through his post office box.
Next, I refer generally to the affidavit of Mr Bersee sworn on 18 September 2009 wherein Mr Bersee identifies and refers to email correspondence and to correspondence being sent through that post office box, and Mr Bersee deposes to the husband not raising at any stage the fact of not receiving correspondence through the post office box number. And the point of this – and it comes out in Mr Serong’s affidavit as well – is that not only was correspondence being sent to the post office box number but it was also being emailed.
There is no question, as I understand it, that the husband was receiving emails. There was a period of time when he says his computer was down but that was only a relatively short period of time. It is quite apparent from the affidavits and the annexures to those affidavits that are before me that there was active email correspondence passing between the husband and the other parties and solicitors, and at no stage was there any suggestion by the husband of correspondence not being received through the post office box.
As an aside, I do not understand the husband to be making this point, but I note from a quick perusal of some of the hearings on costs before Dawe J that the husband did not appear. Now, it may be thought that he did not appear because he did not know of those hearing dates. But when I look at the email correspondence passing between the husband and the solicitors, it is quite apparent that the husband was fully aware of hearing dates. He just did not attend.
Mr Bersee in his affidavit deposed to one piece of correspondence being returned. In paragraph 3.6 he says this:
“On 13 August 2009, the letter to Mr [Karbines] dated 20 July 2009, enclosing the itemised cost account was returned to me through the ordinary course of the post.”
From Mr Bersee’s point of view that is the first time that any correspondence has been returned. Mr Serong has not experienced any correspondence being returned, nor has the liquidator’s solicitors. There is no explanation anywhere as to why it happened on 13 August 2009. Thus it is difficult to even try and fit that in with the husband’s case. Indeed why is it only on 13 August 2009 and not earlier that correspondence has been returned?
Next, I turn again to the husband’s application and affidavit filed on 6 January 2009. A return date was given of 13 February 2009 but there is no indication specifically on the Court file as to the medium through which the documents was filed, or the medium through which sealed copies of the documents were returned to Mr Karbines. However, the fact of the matter is that Mr Karbines must have received sealed service copies of the application and the affidavit because he served sealed copies of those documents upon the respondents, and I have been provided, by Mr Thomas, who appears for the liquidator, with the liquidator’s service copy. As I say, the return date was 13 February 2009, and the only way that Mr Karbines could have known that the return date was 13 February 2009 is from what appears on the documents sent back by the Court. On the Application in a Case there is provision for Court staff to set out the date of the return and that was done in this instance. I can see that from the service copy of the application.
Mr Karbines clearly knew of the return date because he attended on that date. Not only did he attend but he requested to attend by electronic communications. That request was filed on 10 February 2009 and I note, again, in that request Mr Karbines uses his post office box as the contact address. Thus it seems open for me to find that Mr Karbines filed the application and the affidavit, that he received from the Court through the post the necessary service copies, and that he then served those copies upon the respondents.
To my mind that puts the lie to Mr Karbines saying to this Court that he did not receive relevant material through his post office box number in January 2009, or subsequently.
That position is confirmed by the following. The affidavit was sworn on 6 January 2009 in Victoria, and as Mr Thomas put to me that document could not have been filed the same day in person. It could also not have been filed by post. To be filed the same day it could have only been faxed or scanned and then emailed. Looking at the service copies there is no indication that those documents are copies of facsimiles. Thus it seems that the only method, logically, that could have been used is scanning and emailing. Then, as I say, it is quite apparent to me that the service documents have been sent out to the husband through his contact address which is the only address the Court has and the only address that the Court uses, logically and necessarily so, and that was done in January 2009.
Thus that circumstance coupled with the affidavit material which tells me that at no stage, until 13 August 2009, was any correspondence that was sent through the post office box returned, coupled with the husband’s continued use of the post office box number as his service address, coupled with my rejection of his affidavits insofar as they suggest that, for example, the liquidator had control of the post office box and that was the reason why he was not receiving documents, and generally his, what I would call, “lame excuses” as to why he says he did not receive documents and why that post office box has been problematic and that is the reason why he did not pursue this matter, leads me to find that the husband is lying to this Court.
I add to that the circumstance that even if I accepted the husband did not receive the letters from the Registrar, he was still alerted to the difficulty and how he needed to overcome it, on 13 February 2009. I do not accept that Mr Karbines, who has been involved in this litigation since 2002, and appeared variously represented and unrepresented could have misinterpreted or misunderstood what was said in relation to that issue on that day. It might be said that his application of 5 June 2009 indicates that he was under some misapprehension, but there are two comments I want to make about that. Firstly, if Mr Karbines proceeded on the basis that his appeal had been struck out, and that was the end of his appeal, on what basis did he think that he could extend the time for filing a Notice of Appeal? Second, and more importantly, it is instructive to look at the timing of that application and the fact that nothing happened about the order of 19 December 2008 and any appeal against it from February until 5 June 2009, or perhaps the days leading to that when Mr Karbines prepared the application himself. I repeat, there is nothing in the husband’s affidavit in support of the application of 5 June 2009 which raises any difficulty with post office box numbers, failure to receive documents, or any misunderstanding about how things were proceeding. In the affidavit the husband raises health issues which have not been referred to in the affidavits in support of the application before me today.
The liquidator filed an application for enforcement of the orders of 19 December 2008 on 20 May 2009, and that was then served upon the husband. In my view it is more than coincidence that the application filed on 5 June 2009 is virtually immediately after the husband would have received his copy of the application for enforcement. What that tells me is the husband did nothing about pursuing any appeal until the enforcement application, and then he thought, “Well, I had better do something about this. What can I do? I can appeal”, and he filed an application for extension of time.
I reject the husband’s purported excuses for not doing what he had to do, namely, either, in time, file a draft appeal index or, having not done that and his appeal deemed abandoned, file an application for reinstatement of the appeal in a reasonable time.
I now turn briefly to the relevant authorities. First I refer to a High Court decision of Gallo v Dawson (1990) 93 ALR 479, and I particularly refer to the judgment of McHugh J at page 480. His Honour there said, referring to the discretion to extend time:
“The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose 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 an injustice upon the applicant. In order to determine 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: 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 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 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 the application would constitute an injustice.”
Now, although that case was dealing with an extension of time to appeal, it has been held in this Court on a number of occasions that the principles there set out equally apply to an application to reinstate an appeal (Rand and Rand [2009] FamCAFC 88; and Batey-Elton and Elton [2009] FamCAFC 101).
Thus, the fundamental issue is whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties.
In looking at the justice of a case, there are a number of factors that have to be taken into account. As McHugh J said, for example, the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties, the question of delay and the question of prejudice all come into the mix in terms of how this Court is to decide where the justice of the case might lie.
In that regard, each of the respondents has set out what they say would be the prejudice to them if the appeal is reinstated.
For the liquidator, the alleged prejudice is in relation to perhaps two issues. Firstly, the amount of costs that the liquidator has incurred to date in pursuing the enforcement of the orders of 19 December 2008 and that that would be thrown away if the appeal was reinstated and was successful. Secondly, the liquidator is looking to sell a property at E, which is currently occupied by Mrs Karbines, the mother of the husband in this case, and it is apparent from concessions made by the mother’s counsel that that house is in poor condition, and the liquidator is concerned that if there is further delay in finalising this matter, as there would be if I reinstated the appeal, there will be further deterioration in the condition of that house. The liquidator has not had access to the house to determine the extent of the deterioration, and the liquidator is naturally concerned about what might happen in any period before finalisation of this matter, bearing in mind that they have a particular money interest in the matter. Their interest is to the extent of an amount of $65,000, and therefore their interest in ensuring that the property is maintained is obvious.
For the wife’s part, it relates to the costs incurred and the delay as a result of the husband not filing an application for reinstatement expeditiously.
For Mr and Mrs Willa’s part, whom Mr Bersee represents similarly, the prejudice is in the issue of delay and the costs incurred.
The clear prejudice to the husband is that, if his appeal is not reinstated, then he will not have the opportunity to challenge the orders made by Dawe J on 19 December 2008. In that context, obviously a relevant issue is the merits of the grounds of appeal that the husband puts forward. In the Notice of Appeal that the husband filed on 31 December 2008, there was one ground of appeal and one ground of appeal only, namely:
The appeal seeks fair treatment of all creditors to the family business and a more equitable outcome for the husband and third parties.
Fortuitously, the husband thought he had to seek leave to appeal and, in that section of the Notice of Appeal, he set out other matters which could easily be interpreted as being grounds of appeal and, perhaps, which expands somewhat that lone ground of appeal. However looking at it as generously as I could, it would have to be said that, if that Notice of Appeal was reinstated and it proceeded without amendment the appeal would appear to be lacking in merit.
However, Mr Berman for the husband has today provided to me a document headed “Grounds of Appeal” and he tells me that, if the appeal is reinstated, there will be an application for leave to amend the grounds of appeal to include the grounds set out in this document. I note that there is a difficulty with this document, which I do not need to canvass in any detail, and that relates to what seems to be or what will be the husband’s attempt to also appeal against orders made on 2 May 2008. There was discussion between bench and bar about that earlier today, but at the end of the day, it seems to me that all I can have regard to are the proposed grounds of appeal in relation to the orders made on 19 December 2008. In that regard, obviously, I am not in any position to assess in any in‑depth way, or analyse in any in‑depth way the likely prospects of success or the merits of that appeal. I was not the trial Judge, but the grounds of appeal at least make sense, and there seems to be issues which are properly raised. Whether they are ultimately successful or not, I obviously cannot comment.
Thus given the limited position that I have to take in that regard, I proceed on the basis that it is now not a case where it can be said that there is lack of merit in the proposed appeal. Accordingly that highlights the prejudice that the husband will suffer if his application is not granted.
I do not necessarily accept the issue raised by the liquidator in relation to any problems with the deterioration of the condition of the house. As Mr Berman has put to me, it would be unlikely, given the valuations that have been obtained by the liquidator of the property, and which have been filed not in these proceedings, but in the enforcement proceedings that the condition of the house would deteriorate to the extent that the amount that the liquidator is looking to achieve upon, say, a sale, could not be achieved.
However there is an element of speculation about that and that is why I am not dismissing entirely that submission of the liquidator, but it has less weight in that context. To my mind the prejudice that the respondents have suffered relates more to the delay that they have had to endure to date, the costs incurred for the liquidator seeking to enforce the orders and, the costs incurred by the other parties which have all flowed from the orders of 19 December 2008, and which will be lost if the application to reinstate the appeal is granted and the appeal is successful.
However, it is not only the prejudice to the parties that I need to consider. In this case the history of the proceedings and the conduct of the husband in particular loom large. I have found that the husband has lied to this Court in his reasons for not filing a draft appeal index and not pursuing an application for reinstatement expeditiously. He has clearly abused the processes of this Court and that highlights the prejudice that the respondents would suffer and that tips the balance in favour of dismissing his application.
I certify that the preceding 71 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 15 October 2009.
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