Katic and Katic
[2015] FamCAFC 240
•17 December 2015
FAMILY COURT OF AUSTRALIA
| KATIC & KATIC | [2015] FamCAFC 240 |
| FAMILY LAW – APPEAL – REINSTATEMENT – Where the appellant seeks to reinstate his appeal deemed abandoned pursuant to r 22.13(3) of the Family Law Rules 2004 (Cth) as a result of his failure to file appeal books in accordance with orders made by the Appeal Registrar – Where the application is opposed – Where there was no adequate explanation for the failure to file the appeal books as ordered – Where it cannot be said that the grounds of appeal lack merit and the appeal is hopeless and doomed to fail – Where there are consequences for both parties if the application is granted or refused – Appeal reinstated. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs – Where there are circumstances that justify an order for costs being made – Where this application seeks an indulgence from the court – Where the application was necessary as a result of the conduct of the applicant – Costs ordered as sought by the respondent. |
| Family Law Act 1975 (Cth) – s 117(2) Family Law Rules 2004 (Cth) – r 22.13(3) |
| Bemert & Swallow (2010) FLC 93-441 |
| APPLICANT: | Mr Katic |
| RESPONDENT: | Ms Katic |
|
| DATE DELIVERED: | 17 December 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 September 2014 |
| LOWER COURT MNC: | [2014] FamCA 750 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levine |
| SOLICITOR FOR THE APPLICANT: | Allan McMonnies |
| COUNSEL FOR THE RESPONDENT: | Mr Laidlaw |
| SOLICITOR FOR THE RESPONDENT: | Boon Legal |
Orders:
The Notice of Appeal filed on 8 October 2014 be reinstated.
The appeal be listed for hearing in the first sittings of the Full Court in Melbourne in 2016.
The applicant husband pay the costs of the respondent wife of and incidental to the application in an appeal on a party/party basis, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Katic & Katic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 71 of 2014
File Number: MLC 7934 of 2010
| Mr Katic |
Applicant
And
| Ms Katic |
First Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 20 February 2015 by Mr Katic (“the husband”) seeking three orders, but only one of which has any relevance or basis, and that is an order that the Notice of Appeal filed on 8 October 2014 by the husband, be reinstated. That application is opposed by Ms Katic (“the wife”).
The Notice of Appeal appealed against orders made by Cronin J on 10 September 2014, but was taken to be abandoned pursuant to r 22.13(3) of the Family Law Rules (2004) (Cth) (“the Rules”) when the husband failed to file his appeal books on or before 29 January 2015. The order for the husband to file the appeal books by that date was made by the Appeal Registrar at a directions hearing on 27 November 2014, at which hearing all of the parties were represented, including the husband by his solicitor Allan McMonnies.
The applicable principles
In Bemert & Swallow (2010) FLC 93-441 the Full Court considered in some detail the relevant principles to be applied where there is an application to reinstate an appeal. Significantly, the Full Court concluded at [154]:
…in our view, 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.
However, that is not to say that there are not matters which, dependent upon their relevance to the case at hand, are matters that a court will have regard to in exercising its discretion. Indeed, it was recognised in Bemert & Swallow that factors such as those set out in the oft-cited judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 are matters that can be taken into account in an application to reinstate an appeal. In Gallo v Dawson, which was a case involving an application to extend time, McHugh J said this at 480 – 481:
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 & Agency Co of Australasia Ltd [1978] VR 257 at 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 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 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 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. …
In this case, the relevant factors that have been identified in argument are the reasons for the failure to file the appeal books within time, the merits of the appeal, and the prejudice to the parties depending upon whether the application is granted or refused.
Discussion
The reasons for the failure to file the appeal books in time
In support of the application the husband filed an affidavit purporting to explain why he had failed to comply with the order of the Appeal Registrar. To understand those reasons it is necessary to detail the sequence of events as follows:
a)On 27 November 2014 a directions hearing was conducted by the Appeal Registrar and orders were made to prepare the appeal for hearing, including providing for the filing of the appeal books by the husband on or before 29 January 2015.
b)According to the husband, on 22 December 2014 he received a letter from his solicitor which read as follows:
It is necessary to complete appeal books and file them by 29.1.2015
The transcript is required. I have obtained a quotation for this which is enclosed.
Accordingly please let me have a payment to my trust account of $20,000.00 being to cover the transcript $12,000.00, fees owing to Mr Levine of $$1,000.00 [sic] and the costs of printing and collating the Appeal Books. Until I receive payment I am unable to order the transcript and they require ten days to prepare it.
I look forward to receiving payment urgently.
c)The first thing to note is that it took almost four weeks for the solicitor to inform the husband of the need to complete and file appeal books by 29 January 2015. The second thing to note is that there is nothing in that letter about the consequences of failing to comply with the order.
d)The husband then says that in “mid-January 2015” he had a conference with the solicitor. Pausing there, I note that it is readily apparent that the husband did nothing in response to the letter of the solicitor of 22 December 2014. In any event, at that conference the husband’s son acted as a translator, and the husband says he was told the appeal books had to be prepared by 29 January 2015 and that the solicitor needed $20,000 for that purpose. However, the husband then said this at paragraph 4 of his affidavit filed on 20 February 2015:
…
I asked the solicitor via [my son] that I need to wait for a little more money in order to pay for the appeal books and I was told that the solicitor would be able to seek an extension of time within which to file them.
Thus, the husband says that he came away from the conference “believing” that his solicitor would obtain an extension of time to file the appeal books, and he still had no understanding that the appeal would be abandoned if the appeal books were not filed.
e)Significantly, in that same affidavit at paragraph 8, the husband deposes to having funds in his bank account which he intended to use “to pay [his] taxation bill”. However, he claims that despite the orders under appeal providing for that taxation bill to be paid out of the proceeds of sale of a property, he considered it “too risky to withdraw the sum of $20,000 from the funds that [he] had saved for the taxation bill.” He further says that he believed that he could eventually pay the $20,000 out of monies due to him (paragraph 9 of the husband’s affidavit).
f)Importantly, the husband says at paragraph 10 of his affidavit that he “did not receive any further communications from [his] solicitor … that warned [him] that the appeal would be abandoned if the appeal books were not filed on 29 January 2015.”
g)The husband says that he learnt of the abandonment of the appeal from his son on 7 February 2015, that he then initially sought to change solicitors but he changed his mind, and on 12 February 2015 he paid $21,000 into the solicitor’s trust account. Then, as referred to above, the application before the court was filed on 20 February 2015.
h)I observe that despite this payment by the husband the appeal books still have not been presented for filing, and I am unaware if they have even been prepared.
I do not accept that there are adequate reasons for the failure to comply with the order of the Appeal Registrar. First, it seems the husband did nothing between 22 December 2014 and mid-January 2015 in response to the letter from his solicitor. Secondly, the husband had the funds available to enable the solicitor to obtain the transcript and prepare and file the appeal books within time. It is no excuse that he had a taxation bill to pay, given the orders of the trial judge. Thirdly, I would have expected an affidavit from the husband’s solicitor confirming what the husband says he was told at the conference in mid-January, namely that an extension of time would be obtained, and that there was no advice from the solicitor that the appeal would be abandoned if the appeal books were not filed in time. Thus, I draw an inference that if the solicitor had filed an affidavit it would not have assisted the husband’s case (Jones v Dunkel (1959) 101 CLR 298). Fourthly, in an email sent by the husband’s solicitor to the wife’s solicitor on 3 February 2015, the solicitor indicated that despite requests, he had not been provided with the funds to obtain the transcript and enable the completion of the appeal books, and the reason for the lack of funds was the husband “[had] been out of work since prior to Christmas and [had] not received payment for work completed prior to the Christmas break.” That is plainly inconsistent in important respects with the explanation given by the husband in his affidavit.
Although it does not provide an excuse for the husband’s failure to comply with the order of the Appeal Registrar, I am also concerned at the conduct of his solicitor. First, he did not inform the husband of the order made on 27 November 2014 until 22 December 2014. Secondly, he did not file an affidavit when one was clearly required. Thirdly, he failed to send any reminder to the husband in the immediate lead-up to the date for the filing of the appeal books, and plainly there was no application to extend the time.
The merits of the appeal
Although it is necessary to have regard to the merits of the appeal, that is plainly a difficult exercise for this court to undertake. I only have before me the reasons for judgment of the trial judge and the Notice of Appeal. I clearly do not have the full range of documentation that would be before the Full Court hearing the appeal. For example, I do not have the transcript of the hearing before the trial judge, or the documents that were before the trial judge, or the benefit of summaries of argument from both parties. I do have a written submission on behalf of the wife but that only relates to the application before me.
In the circumstances, the only question for me is whether, on the documentation that I do have, there is an arguable case on appeal. Even then, there necessarily must be a low threshold, and where there is the remotest chance of success, then that is enough. In this regard this exercise is akin to determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies, after taking account of all relevant factors, the appeal should be allowed to proceed.
The orders sought to be appealed against are property settlement orders as between the husband and the wife. The husband does challenge the order dismissing the application by his son for equitable relief, but there is no appeal against that order by the son.
In any event, there are 46 grounds of appeal spanning almost four pages of the Notice of Appeal. Many of the grounds are repetitive and many are not proper grounds of appeal at all. However, those that are, range from asserting errors of fact, to weight challenges, to a failure to take into account relevant considerations, to taking into account irrelevant considerations, and to a failure to accord natural justice. It is readily apparent though from a reading of the reasons for judgment, that many of these grounds have limited, or no chance of success, given that most of his Honour’s findings that are challenged were based on his Honour’s assessment of the credit of the parties both generally and in relation to specific topics and issues. For example, his Honour said this at [10]:
The evidence in this case was confusing and controversial and none of the parties was a satisfactory witness upon whom I could safely rely. …
And further at [45]:
The absence of confidence in the evidence of all of the three parties leaves me in a position where unless a statement about a particular fact is corroborated by documentary proof, I would not accept the evidence of that person alone.
As with weight challenges, it is notoriously difficult to overturn findings based on a trial judge’s assessment of the credit of the parties, given that the trial judge has the advantage that the Appeal Court does not have of seeing and hearing the parties and their witnesses giving evidence.
It also needs to be understood that this case was primarily about undisclosed income, tax evasion, hidden funds, and what money there was and who had it. Indeed, in attempting to compile a schedule of the assets and liabilities his Honour said this at [171]:
The evidence of both parties was entirely unsatisfactory as to their current financial position and having regard to my findings about credit, [sic] would not believe any of them on what exactly they now have. It is impossible to try and add back such things as legal fees. I do not confidently know where the money came from on either side.
Thus, this was a difficult case for his Honour to determine. However, that does not mean that his Honour may not have erred in making the orders that he did, and on that note, despite the concerns that I have about the considerable shortcomings of many of the grounds of appeal, on the limited documentation that I have, and applying the low threshold that I must, it cannot be said that the appeal is demonstrably hopeless or doomed to fail. I hasten to add though that the husband should not take that finding as indicating that the appeal will succeed. It is quite conceivable that if reinstated and agitated on its merits, the appeal does prove to be hopeless, but that is not a call which this court can make on the limited documentation before it at the moment.
The consequences of the granting or refusal of the application
If the application is granted, the appeal will be reinstated and the wife will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the wife given that currently the appeal is deemed abandoned, and the wife has therefore been able to ignore the same. Although it has not been formally dismissed, it will not be listed for hearing in the way that appeals usually are.
If the application is refused, then the husband will not be able to pursue his appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not, of course, be warranted in this case. In any event though, this is a serious consequence for the husband if his application is refused.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors here informs the court in determining the fundamental issue, namely where the justice of the case lies. In this case, despite there being an inadequate explanation for the failure to comply with the order of the Appeal Registrar, and the appeal books still not having been filed, the appeal cannot be described at this stage as hopeless or doomed to fail, and there would be serious prejudice to the husband if the appeal is not reinstated. Thus, the interests of justice require that the application be granted.
I also observe, as Coleman J said in Grantham & Maid [2011] FamCAFC 218, that there is a difference between failing to file a Notice of Appeal within time, and having filed a Notice of Appeal in time, but failing to comply with a procedural order as here. In the former case there is no reason for the respondent to think that the judgment of the lower court will be challenged, and thus he or she would be lulled into a false sense of security. However, in this case, there having been a Notice of Appeal filed, the respondent cannot be said to have been thus lulled. That also bears on the question of where the justice of the case lies, and in this instance supports the grant of the application.
Costs
At the conclusion of the hearing the wife sought an order for costs against the husband, initially on an indemnity basis, but after discussion, on a party/party basis, with such costs to be assessed in default of agreement.
In the words of s 117(2) of the Family Law Act 1975 (Cth) (“the Act”), I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the husband to comply with the order of the Appeal Registrar, and of course I have found that he has provided an inadequate explanation for that failure. In the circumstances the wife was entirely justified in opposing the application and she should have her costs. Applications such as these necessarily seek an indulgence from the court in circumstances where the need for the application results from the conduct of the applicant.
Accordingly, I propose to make the order sought by the wife.
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 17 December 2015.
Associate:
Date: 17 December 2015
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