Kettle and Baker;; Kettle and Green
[2010] FamCAFC 73
•24 March 2010
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER; KETTLE & GREEN | [2010] FamCAFC 73 |
| FAMILY LAW - APPEAL – Application for extension of time to file appeals – Father attempted to file one notice of appeal in time, but two notices were required because there are two respondents – Where the father waited until the last moment to file his appeals – Where the merits of the appeals are marginal – Where the father has filed appeals within time against further orders of the Federal Magistrate – Appropriate that leave be granted – Where the hearing of the appeals should be expedited. Family law - COSTS – Whether the father should pay the respondents’ costs – Where the application was necessary because of the father’s delay – Where the merits of the appeal seem marginal – Costs ordered. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Kettle |
RESPONDENT: RESPONDENT: | Ms Baker Ms Green |
| FILE NUMBER: | BRC | 6527 | of | 2009 |
| BRC | 6532 | of | 2009 |
| APPEAL NUMBER: | NA | 22 | of | 2010 |
| NA | 23 | of | 2010 |
| DATE DELIVERED: | 24 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 24 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1488 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENTS: | Ms Ellis Burchill & Horsey Lawyers |
Orders
The time within which the father may file Notices of Appeal against the orders of Federal Magistrate Jarrett made on 25 November 2009 be extended to 4:00pm on Wednesday 24 March 2010.
The appeals NA22 of 2010 and NA23 of 2010 be consolidated, together with the appeals NA39 of 2010 and NA40 of 2010.
The appeals NA22 of 2010, NA23 of 2010, NA39 of 2010 and NA40 of 2010 be heard together on 12 April 2010, not before 2:15pm.
The appellant pay the respondents’ costs as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Kettle & Baker & Green 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 BRISBANE |
Appeal Number: NA 22 of 2010
NA 23 of 2010
File Number: BRC 6527 of 2009
BRC 6532 of 2009
| Mr Kettle |
Appellant
And
| Ms Baker |
Respondent
And
| Ms Green |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed 22 February 2010 by Mr Kettle. There are actually two applications because they relate to appeals against two respondents.
It is asked that leave be given out of time although Mr Kettle, according to the chronology he has provided me, first attempted to file an appeal on 23 December 2009. It was rejected. The difficulty was that two separate notices of appeal are required for the two respondents. As Ms Ellis, who appears for the two respondents, correctly points out, Mr Kettle’s action left the filing of the notice of appeal to the last possible moment, the order having been made by the Federal Magistrate on 25 November 2009.
Apparently another document was filed by Mr Kettle on 24 December 2009 which was again rejected.
Ultimately, Mr Kettle filed further documents and he has now filed this application and proposed notices of appeal.
Discussion
There are three matters that I must consider in relation to the application for leave out of time. The principles are well known. The first is the need for an explanation for the delay. The second is the likely merits or prospects of success of the appeal, and, finally, the prejudice to the parties.
This is an appeal from the dismissal by the Federal Magistrate of Mr Kettle’s application that the mothers’ applications be dismissed summarily. It seems that the submission being made by Mr Kettle is that the provisions of s 66E of the Family Law Act 1975 (Cth) would preclude this Court from having jurisdiction in such a matter. As correctly pointed out by Ms Ellis, this is a matter that has already been dealt with by the Full Court in a previous appeal by Mr Kettle.
I would have to say in relation to the merits of the appeal that they are marginal. It is difficult to immediately see that this appeal can be successful. However, it is also wrong to suggest that there is no possibility that it could be successful. One of the difficulties in my saying this is that I do not have the judgment of the Federal Magistrate.
Mr Kettle has also filed an appeal within time from the Federal Magistrate refusing a stay application made by him, apparently, so that the trial would not continue on 16 April 2010. Again Ms Ellis correctly points out that stay application could never have been successful because at that time the appeal was not filed. It is very difficult to imagine how that appeal could possibly be successful.
In relation to the explanation for the delay, what Ms Ellis says again has much merit. That is, as an experienced litigant, Mr Kettle should not have left it until the last possible moment, although one would have to accept that these documents are somewhat difficult for litigants in person.
Finally, I am also concerned about the question of prejudice to the two respondents. I have been handed a certificate relating to each of the mothers, if I may describe them that way. In relation to Ms Baker, the child support debt is $11,117.40 and in relation to Ms Green it is $18,179.94. It is a matter of considerable concern that these children are receiving no financial support from their father.
For that reason, if leave is granted, the appeals must be expedited and heard as a matter of urgency.
Conclusion
I have determined, although the merits of the appeals are marginal, to allow Mr Kettle leave to file the two notices of appeal.
I would like to make it entirely clear that should the appeals be unsuccessful, the hearing before the Federal Magistrate will take place on 16 April 2010. This is not to be seen by Mr Kettle as an excuse for coming before the Federal Magistrate and indicating that he is then not ready.
RECORDED : NOT TRANSCRIBED
Costs
At the end of these proceedings an application for costs was made on behalf of the two respondents. In essence, the basis for the application for costs was rather similar, understandably, to the basis of resisting leave out of time. That is, first, that Mr Kettle, as an experienced litigant, should have known that he needed to file two notices of appeal. If not, he should have not waited until the last possible moment to file the appeals and, as revealed in the chronology provided by him to me, it seems that considerable time then elapsed before he was able to file further documents.
Secondly, as I have said several times, the success of this appeal is somewhat doubtful. The merits of the appeal, at least for the moment, appear limited as they are very much the same matters that have already been agitated in the past by Mr Kettle and he has failed in that respect before the Full Court. There is and has been considerable cost to the public purse.
Mr Kettle would resist an order for costs on the basis that he thought he was doing what he was required to do.
In many cases where an order is made for an extension of time costs are reserved. The reason for that is that it is impossible to tell at the time an extension of time is granted whether the appeal will be successful or not.
In this case, and I would repeat myself, the possibility of success of the appeals is much less than most. The solicitor, Ms Ellis, has been brought here on the application of Mr Kettle asking for an extension of time.
The provisions of s 117 provide that there must be circumstances that would justify an order for costs. It is certainly not correct that costs orders are automatic. However, in this case, in my discretion, it is quite clear that the appellant should pay the respondents’ costs.
I will make an order that the appellant pay the respondents’ costs, to be assessed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 8 April 2010
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