Kettle & Baker & Green
[2008] FamCAFC 45
•8 February 2008
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER & GREEN | [2008] FamCAFC 45 |
| FAMILY LAW - APPLICATION IN A CASE – Application to review directions of the Appeals Registrar in relation to the contents of the Appeal Books – Application refused FAMILY LAW - COSTS – Costs reserved |
| APPLICANT: | MR KETTLE |
| RESPONDENT: | MS BAKER |
| RESPONDENT: | MS GREEN |
| APPEAL NUMBER: | NA | 2, 3, 19, 20 & 69 | of | 2007 |
| FILE NUMBER: | BRF | 2360 | of | 2002 |
| FILE NUMBER: | BRF | 1456 | of | 2001 |
| DATE DELIVERED: | 8 February 2008 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 8 February 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kettle appears on his own behalf |
| SOLICITOR FOR THE RESPONDENTS: | Ms R Ellis |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms R Ellis as Town Agent |
Orders
That the appellant be granted leave to file an amended Notice of Appeal within 14 days of today.
That the appellant be granted leave to file an Application in a Case and affidavit sworn on 7 February 2008.
That the Application in a Case filed by the appellant on 16 January 2008 and the Application in a Case filed by leave today are refused.
That the time provided in paragraph (8) of the order made on 26 November 2007 for the filing of the Appeal Books be extended to 4.00pm on 15 February 2008.
That the appellant file and serve a book marked Contentious Documents on Appeal by 4.00pm on 15 February 2008.
That the time provided in paragraph (10) of the order made on 26 November 2007 be extended to 4.00pm on 22 February 2008.
That the time provided in paragraph (11) of the order made on 26 November 2007 be extended to 4.00pm on 28 February 2008.
That the parties’ costs of today be reserved to the hearing of the appeal.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Full Court delivered this day will for all publication and reporting purposes be referred to as Kettle& Baker & Green
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA2, NA3, NA19, NA20 & NA69 of 2007
FILE NUMBER: BRF2360 of 2002; BRF1456 of 2001
| MR KETTLE |
Applicant
And
| MS GREEN |
First Respondent
And
MS BAKER
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This application was filed on 16 January 2008, supported by an affidavit of Mr Kettle filed also on that date. The application, in effect, is to review the directions of the Appeals Registrar in relation to the contents of the Appeal Books.
I gave leave this morning to Mr Kettle to file a further application where he asks that instead of the Registrar's determination being reviewed, that it be remitted to the Registrar and further time be allowed to try to prepare for a hearing. That application is refused for the reasons which will become apparent when I record the history of the matter.
There are numerous Notices of Appeal in this matter. One was filed on 22 December 2006, which was against the order of Bell J, made 24 November 2006. Another appeal was filed on 5 October 2007 against the order of O'Reilly J, made on 7 September 2007. I ordered that the appeals be heard together.
On 26 November I made various orders for directions. On that occasion I also made an order that the appeals, being number 2 of 2007, 3 of 2007, 19 of 2007 and 20 of 2007, be reinstated. The appeals had been deemed abandoned. I also ordered that those appeals, together with an appeal against O'Reilly J's orders be consolidated and heard together.
Directions were made for the hearing of the appeal which included that the appellant file the appeal books. He was ordered to file the appeal books by 25 January this year and also that he file a summary of argument by 1 February 2008. The appellant has not filed the appeal books. In part it seems that this is because he did not have the transcript, he tells me, until 1 February. Mr Kettle applied successfully to the Full Court for orders so that, at least in the first instance, the Court will meet the costs of the transcript.
On 26 November, I directed that the parties attend on the Appeals Registrar with a view to settling the appeal index. For some reason Mr Kettle did not. The Appeals Registrar with the assistance of the solicitor for the respondents prepared a draft appeal index. The Registrar made orders on 30 November in relation to the settling of the appeals index. I have his letter dated 30 November which was sent to Mr Kettle. In that letter that Appeals Registrar explained that he was concerned about the costs of the preparation of the appeal books and set out in detail the number of copies that would have to be made and the very long list of the affidavits. The Registrar invited Mr Kettle and the other parties to make any submissions they would wish to make about the index no later than 4 pm on Monday, 10 December 2007.
On 10 December the respondents' solicitors provided written submissions in relation to the appeals index which, I imagine, was also received by Mr Kettle. Mr Kettle, on that date, asked to have until 17 December to make his submissions, and a letter accordingly was sent to the parties where the Appeals Registrar gave him an extension of time until 4 pm on 17 December to make any submissions he would wish to make in relation to the draft index.
On 18 December, Mr Kettle again asked for an extension of time to make his submissions in relation to the appeals index. I have been provided with a copy of that letter. Mr Kettle said that he had been doing his best but that it was impossible and needed longer. He explained in that letter that there was “a large part of the history of my personal saga in your Court” that he wanted to refer to. There was then various complaints about how his case had been handled in the Court and ultimately Mr Kettle in that letter said:
"I trust the foregoing makes clear that it is only fair that I be allowed until the Registry resumes in 2008 to file my submissions and ask for your agreement to my request".
On 21 December 2007 the Appeals Registrar wrote to him and said that he would allow Mr Kettle until 9 am on 2 January to make any submissions he wished to make in relation to the draft appeal index. It was explained that after that time:
"I will settle the index without reverting further to the parties. I draw your attention that her Honour Justice May, has ordered that you file and serve the appeal books by 4 pm on 25 January 2008. I am not able to extend the compliance with her Honour's directions. I also draw to your attention Rule 22.56(1)(b) should you fail to comply with her Honour's orders."
Some written submissions were provided by Mr Kettle on 2 January 2008 where he says, among other things:
"Following are four lists of documents headed, respectively:
Orders
Applications (of mine, each with its supporting affidavit)
Affidavits (others, of mine)
Subpoenas (as issued, delayed and refused)”
Based on what Mr Kettle said this afternoon, it seems that he is concerned that there were some subpoenas that he asked to be issued which were not.
On page 2 of his letter, Mr Kettle said:
"There is an overarching claim of Procedural Fairness denied. The only way to show this is to show the whole sorry history of that denial and its repeated recurrence. Many things were before Justice Bell (or should have been) at trial and were either ignored or discounted without even an airing. This includes critical applications and evidence. Many things were denied to me from dealings predating the trial, not merely during the trial. The complete absence of Reasons from his Honour is in itself, successfully appellable [sic] error".
I do not wish to give the impression that this was all Mr Kettle said, however it is fair to say that much of Mr Kettle's letter and what he said to me this afternoon demonstrates that he is asking that documents be included that were not, either before Bell J or before O'Reilly J. He did attach some various lists to his letter to the Appeals Registrar. It seems, overall, the better way to deal with his concern now, rather than dealing with it as a review from a Registrar, is simply to allow Mr Kettle, at his expense, to provide, as another appeal book, all those documents that he contends are relevant to his appeal, in a separate appeal book. And then he can argue about those on the occasion the matter comes before the Appeal Court when it can be seen if they have some connection with his grounds of appeal.
Mr Kettle also told me this afternoon that he has always suggested that he might wish to amend his notice of appeal. In his notice of appeal filed 22 December 2006, he said in par 15 under:
15. As the Court to date has refused me a reasonable or viable opportunity to review the record of hearing, I reserve my rights in respect of this appeal and seek leave to amend this appeal within a reasonable time after I do obtain access on a reasonable and affordable basis to the Court record."
I will give Mr Kettle leave to file an amended notice of appeal, in any of his appeals, within 14 days of today.
For the reasons that I have expressed, it is necessary to make some further orders and further directions in relation to the hearing of the appeal which, unfortunately, means extending the timetable provided on 26 November, so that the matter can proceed. I think it is set down for hearing on 3 March.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.
Associate:
Date: 22.02.08
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