Keble and Keble - [2009] FamCAFC 195

FAMILY COURT OF AUSTRALIA

KEBLE & KEBLE

[2009] FamCAFC 195

FAMILY LAW - APPEAL – Application to extend time to appeal – notice of appeal not filed because of secretarial changes in the office of the solicitor for the applicant/appellant – where interests of justice require the granting of an extension of time to file a notice of appeal.
FAMILY LAW - COSTS – applicant/appellant to pay respondent’s costs of the application to extend time to appeal.

Farmer & Bramley (2000) FLC 93-060
Gallo v Dawson (1990) 93 ALR 479 at [480]-[481]
Mackeyv Mackey [2007] HCATrans 271 (28 May 2007)

APPLICANT/APPELLANT:

Mr Keble

RESPONDENT:

Ms Keble

FILE NUMBER:

CAC

379

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

27 May 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

27 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 March 2009

LOWER COURT MNC:

[2009] FMCAfam 252

REPRESENTATION

SOLICITOR FOR THE APPLICANT/ APPELLANT:

Ms P

COUNSEL FOR THE RESPONDENT:

Ms Haughton

Orders

That the time for filing and serving the Notice of Appeal against the orders of Federal Magistrate Donald made on 25 March 2009 be extended until 4pm on Wednesday 10 June 2009, with such Notice of Appeal to indicate the orders being appealed and the orders sought if the appeal is to be allowed, and with the filing fee also to be paid by that date.
That within 28 days of the date of these orders, the applicant husband pay the costs of the respondent wife of today’s hearing of the application, with such costs assessed at $1100.00 (inclusive of GST).
That once a determination is made by the Chief Justice of the Family Court of Australia as to whether this appeal is to be heard by a single Judge or the Full Court, directions in relation to the hearing of the appeal will be issued in Chambers, but with liberty to either party to apply for variation of such directions.
That the index to the appeal book be in accordance with the draft filed by the applicant husband on 20 May 2009.
That on or before 4pm on Wednesday 3 June 2009 the respondent wife file a Notice of Address for Service (by post to Sydney Appeal Registry, GPO Box 9991 Sydney NSW 2001 or by e-mail to [email protected]).

IT IS NOTED that publication of this judgment under the pseudonym Keble & Keble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 379 of 2008

APPEAL NUMBER: EA 54 of 2009

Mr Keble

Applicant/Appellant

And

Ms Keble

Respondent

REASONS FOR JUDGMENT

I have before me today an application filed on behalf of the husband on 7 May this year for an extension of time to appeal orders for property settlement made by Donald FM on 25 March 2009 in proceedings between the husband and wife. The extension of time sought by the husband is opposed by the wife.
It appears common ground that the appeal should have been filed by 22 April 2009.
The principles which govern an application such as the present are contained in the following passage from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at [480]-[481]:
The discretion to extend time is given for the sole purpose of enabling the court or [sic] 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. 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
The principles thus enunciated can be conveniently summarised by saying that a decision to extend time that is required because of the failure to comply with time under rules of court is ultimately to be determined according to what the interests of justice demand. However, it emerges from his Honour's discussion, and it is well accepted within the jurisdiction, that there are a number of practical matters to which the Court must look in deciding whether the interests of justice require the grant of the extension of time.
Principally those matters are, and indeed were addressed today by the legal representatives of both parties:
·    the need for an explanation for the delay;
·    the likely merits or prospects of success of the appeal if it was permitted to proceed; and
·    the prejudice to the parties, especially to the respondent, if the appeal was permitted to proceed.
In the present case, an explanation for the delay of about 14 days in filing the necessary documents (which contained a draft notice of appeal) is provided in an affidavit from the husband's solicitor which was affirmed on 6 May and filed on 7 May together with the application seeking the extension of time.
Essentially, in her affidavit, the husband’s solicitor says that due to changes in the secretarial arrangements in her office, she overlooked the filing date for the notice of appeal.
In response, the wife has filed an affidavit (which was sworn on 26 May), in which she says that she communicated with the husband’s solicitor by email on 2 April about the chattel distribution which was supposed to follow his Honour's orders of property settlement. It is submitted on behalf of the wife that this email to the husband’s solicitor should have prompted the husband’s solicitor to do something about lodging the appeal or at least to notify the wife that an appeal was intended.
The wife also relies on the fact that in the affidavit of the solicitor for the husband and also in a draft affidavit from the husband (which is exhibit one today) there is a lack of evidence as to when the instructions to appeal were received by the husband’s solicitor from the husband.
I would have to say it is unfortunate that the husband’s solicitor did not respond - and she admits she did not respond - to the wife's email of 2 April. A failure to respond to communications can be a particular problem when a solicitor is dealing with a self-represented litigant (as the wife was at that stage). No more need be said about that matter except that it is probably prudent to respond to self-represented litigants.
Overall, I do not consider that the wife's communication to the husband’s solicitor and the failure of the solicitor for the husband to respond, sufficiently counter-balance, so to speak, the explanation provided by the solicitor for the husband for her delay in filing the notice of appeal. As I have said, that explanation is essentially that due to secretarial changes in her office, the filing date was overlooked. There is probably little advantage or benefit in engaging in speculation, but it may be that even if something had been done about that email of 2 April, the notice of appeal might still not have been filed due to the problem of the secretarial arrangements. Therefore, on balance, and while it is unfortunate that the wife was not responded to and not given some notice of the intended appeal, I do not think that those matters counter-balance the explanation given for the delay. Importantly, they do not render irrelevant to my determination of this case, the guidance which Heydon J gave in the transcript of an application for an extension of time in relation to the special leave application in Mackeyv Mackey [2007] HCATrans 271 (28 May 2007) and which was as follows:
The husband … filed an application for special leave to appeal to this Court. That application has been deemed under rule 41.13.1 of the High Court Rules to have been abandoned because the husband’s solicitor failed to file the application books within six months of the filing of the special leave application. The husband’s summary of argument and draft notice of appeal have been filed. On 2 May the husband filed a summons seeking reinstatement of his application for special leave to appeal.
The solicitors for the wife had advised earlier that they would oppose any application for reinstatement. The solicitor for the husband has filed an affidavit explaining that the relevant failure lay at her door. She mistakenly entered the date for compliance in her diary as 18 May 2007. In fact, it should have been 18 March 2007. She had not completed a file review of this matter by the time the application was deemed abandoned on 18 April 2007, the reason being that she had moved her practice from one firm of solicitors to another after the first had merged with another firm and ceased to practice family law.
While these events are regrettable, they are the kinds of events which can easily happen in professional practice. They are not events for which the husband was personally responsible…
…
In these circumstances, the order for reinstatement should be made and the applicant will have four weeks to file and serve the application books. Now, costs. Ordinarily, Mr Bell, this is the sort of matter in which your client would have to pay the costs but I must ask Mr Kearney whether there should not be, in effect, no order as to costs because of the fact that it has been opposed. It is the solicitors for the respondent.
…
While ordinarily the applicant would have to pay the costs of the summons, in view of the necessity for this having arisen from his solicitor’s conduct, it seems to me that the refusal of the respondent wife to consent to reinstatement may be described as unreasonable. It is true that the affidavit explaining the circumstances was not to hand at the time when the attitude of opposition was first indicated. If it were, there might be an argument for the respondent having to pay the costs, but in all the circumstances, an appropriate order seems to be that there should be no order as to the costs of the summons.
There, put simply, his Honour recognised that oversights unfortunately happen in professional offices for which the clients should not have to bear the consequences, even if other remedies are available to them against their professional advisers, as indeed would be so, it seems, in this case and as is acknowledged by the husband’s solicitor. Accordingly, I do rely for some guidance on these observations by Heydon J.
As to the merits of the appeal: the draft notice of appeal (filed with the application of 7 May) indicates that the essential challenge to his Honour's orders is based upon a lack of reasons for the 60/40 per cent contribution assessment which was made in favour of the wife. In his reasons for judgment, his Honour certainly undertook an extensive view of the evidence concerning the parties' contributions. But he then arrived - it seems without any summary of his reasons for so doing - at a 60/40 per cent split.
As I said in the course of the proceedings this morning, ultimately it is almost impossible to give totally adequate reasons for any percentage split in a property settlement. In this regard I refer to my own observations in Farmer & Bramley (2000) FLC 93-060.
Nevertheless, it does seem to me, in this case - and while it must be recognised, and it is important the husband recognise - that when an Appeal Court comes to look at his Honour's judgment and is taken through it by counsel appearing on the appeal, there may well be found to be enough reasoning to support the 60/40 per cent split. But on the preliminary type of perusal which a Court hearing an extension of time application such as I am hearing, can undertake, it cannot certainly be said that this proposed appeal would be hopeless, or absolutely doomed to fail. It does have some prospects of success.
The final matter is the prejudice to the parties. The prejudice to the husband if he cannot pursue his appeal is perhaps self-evident. As I have indicated, he would have remedies against his solicitor. But that would be more trouble and expense, no doubt, for him. The greater issue of course, so far as prejudice is concerned, arises in relation to the wife. She was entitled to accept, once 22 April came, and indeed in this case perhaps when she did not receive a reply to her earlier email, that the matter had been finalised, and she was entitled to what we call “the benefit of the judgment”.
Nevertheless, this is a case where we are concerned with a property settlement. There may have been some delay in its determination at first instance, but it is difficult to see overall that a further delay, which an appeal would involve, would impose such a prejudice on the wife that it would outweigh the other considerations I have earlier canvassed which support the appeal being permitted to proceed. There is of course the issue of the costs of this application on which I have yet to be addressed and then will decide. But, on balance, I am not persuaded that the prejudice to the wife, which of course I recognise exists, should outweigh the possible prospects of success of the appeal and the reasons for this delay of only approximately 14 days, which, it is important to remember, was not the husband's fault.
Overall, I consider that the interests of justice require me to grant the extension time sought.
RECORDED : NOT TRANSCRIBED
Notwithstanding Heydon J’s approach to the issue of costs in Mackey (supra), it is the general practice of this Court where we grant an extension of time, which is very much an indulgence, to make a costs order against the person who is seeking such an indulgence from the Court.
In the present case, the significant prejudice to the wife (caused by the grant to the husband of the extension of time to appeal) must be recognised. She is not receiving her money nor having her affairs settled. In McHugh J’s judgment in Gallo & Dawson (supra), the discussion canvasses prejudice which cannot be compensated by an order for costs (in other words, there is an assumption that in a decision to extend time, there should be an attempt to compensate any prejudice with a costs order). Given my concerns about the prejudice to the wife in this case, I am minded to and will make an order for costs in her favour, which (as I have indicated) is not an unusual course.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn

Associate:

Date: 29 October 2009