Kettle & Baker & Green (No. 2)
[2007] FamCA 1651
•26 November 2007
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER & GREEN (NO. 2) | [2007] FamCA 1651 |
| FAMILY LAW - REINSTATEMENT OF APPEALS – Appeals deemed abandoned – Failure to file pre-argument statement – Appeals reinstated and consolidated FAMILY LAW - STAY APPLICATION – Order to sell part of land FAMILY LAW - COSTS – Considerable expense to the respondents – Costs in relation to directions reserved – Appellant to pay the respondents costs in relation to the reinstatement of the appeal fixed at $1,100 |
| APPELLANT: | MR KETTLE |
| FIRST RESPONDENT: SECOND RESPONDENT: | MS BAKER MS GREEN |
| TRUSTEE | PETER SHEEHY |
| APPEAL NUMBER: | NA | 2,3,19,20&69 | of | 2007 |
| FILE NUMBER: | BRF | 2360 | of | 2002 |
| FILE NUMBER: | BRF | 1456 | of | 2001 |
| DATE DELIVERED: | 26 November 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 26 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kettle appeared for and on his own behalf |
| SOLICITOR FOR THE RESPONDENT: | Ms R Ellis |
| COUNSEL FOR THE TRUSTEE | Ms P Kingswell |
| INDEPENDENT CHILDREN’S LAWYER: | Mr D Carter |
Orders
That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be reinstated.
That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be consolidated and heard together.
That the appellant be granted leave to file an Application in a Case, sworn on 6 November 2007 and an affidavit sworn 7 November 2007 which contains an application asking for a stay of the orders made by The Honourable Justice O’Reilly on 31 October 2007.
That the appellant file and serve in the Regional Appeal Registry at Brisbane, a list of documents in relation to the stay application and the transcript issue by 4.00pm on 28 November 2007.
That the Application in a Case filed by leave seeking a stay be listed on a date to be advised in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.
That the application contained in paragraph 2 of the Application in a Case filed on 23 October 2007 in relation to transcripts be listed on a date to be advised in the Full Court sittings in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.
That the appellant be responsible for the preparation of the appeal books to comprise each of the documents listed in and arranged in the order of the appeal index as settled by the Regional Appeals Registrar.
That the appellant file four (4) copies of the appeal books in the Brisbane Appeal Registry by 4.00pm on 25 January 2008.
That the appellant file and serve one (1) copy of the appeal book on the Trustee, Mr Peter Sheehy and two (2) copies of the appeal book on the solicitors for the respondents.
That the appellant file and serve a Summary of Argument and a List of Authorities to be relied upon by 4.00pm on 1 February 2008.
That the respondents and the Trustee file and serve on the appellant and the other respondents, a Summary of Argument and List of Authorities to be relied upon by 15 February 2008.
That each party have liberty to apply for any further directions to the Honourable Justice May upon the giving of four days notice in writing to the other party and to the Regional Appeals Registrar in the Brisbane Registry.
That the costs of and incidental to the making of directions in this matter today be reserved to the Full Court.
That the appellant pay the respondents costs in relation to the reinstatement of the appeals fixed in the sum of $1,100 within 28 days of today’s date.
That the appeal be listed before the Full Court in the March sittings at Brisbane in the week commencing 3 March 2008.
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)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
APPEAL NUMBER: NA 2, 3, 19, 20 & 69 of 2007;
FILE NUMBER; BRF 2360 of 2002 and BRF 1456 of 2001
| MR KETTLE |
Appellant
And
| MS BAKER MS GREEN |
Second Respondent
REASONS FOR JUDGMENT
Reinstatement Of Appeals
In an application filed on 23 October 2007 the appellant asks that four appeals be reinstated. Those appeals were deemed abandoned due to the appellants failure to file a pre-argument statement. He also asked that other orders be made in relation to transcripts with which I will later deal.
Mr Kettle, in his affidavit, explains that despite filing numerous affidavits in this Court and despite there being enforcement proceedings he is not able, he says, to file the pre-argument statement because he did not have access to the transcript or even an opportunity to listen to the transcript.
The four appeals, being 2, 3, 19 & 20 of 2007 were deemed abandoned under the rules because of his failure to file a pre-argument statement.
As the solicitor for the respondents submitted, in many respects quite convincingly, that to file a pre-argument statement is relatively not difficult. It is really quite difficult to understand why, despite numerous Court hearings about other matters, the appellant has been unable to file such a document and also, the solicitor said convincingly, the need for a transcript is quite different from this argument. It is, on the other hand, a very serious matter that a litigants’ opportunity to have his appeal heard, may be denied in this Court.
The Court is guided by r 22.57. A number of matters there listed should be considered in determining this application for reinstatement. Correctly, as the solicitor for the respondents submitted, I must take into account r 1.04 being the Main Purpose of these Rules including whether the application has been made promptly. It is correct that apart from the appellant saying that he could not file the pre-argument statement because he did not have access to the transcript, there is no other explanation provided for the delay.
The other matters that the solicitor for the respondents asked me to consider were that action and now appeal involves child support, and it has been going on for a considerable period of time. I think she said that the proceedings first commenced in August 2004. The offer, as one might describe it, contained in an Application in a Case by Mr Kettle to pay child support as assessed is really no offer at all in the sense that the amount due under those administrative assessments are so slight that it could hardly be said that it would make any difference to a child's needs.
The other matters are the very considerable expense to the respondents in the appeal, although some orders have been made for costs. I am told that neither respondent is legally aided and this must be an enormous strain on their already very limited finances.
Finally, I was asked to consider the prospects of success of the appeal. It seems Mr Kettle has an argument about the provisions of section 66E, and helpfully the solicitor for the respondents gave me a copy of an unreported decision on which Mr Kettle wishes to rely.
Having said that all of these arguments of the solicitor for the respondents are substantial ones, the real difficulty in this matter is that to shut a party out of bringing an appeal to this Court where the order made is the sale of a substantial part of his land may well appear to be a denial of justice, however, in saying that I intend to make directions that will ensure, I hope, that the appeal will be heard in March next year, so that if that appeal is unsuccessful, the trustee for sale, who is represented here today, can continue as quickly as possible to ensure that the respondents obtain the sums to which they are entitled under the judgment.
Stay Application
The next questions, are the application for a stay and the transcript. O'Reilly J, if I may say so, correctly observed that it was not possible for her to hear the stay application because the appeals had not at that time been reinstated. While being very conscious of the cost and trouble to the respondents, the better course is to have the Full Court hear the stay applications as soon as possible. I have spoken to Finn J about that this morning and we can hear it in Sydney next week. I want to inconvenience the trustee for sale as little as possible.
It will have to be done by video link here and you will have to appear here as will the trustee for sale. I am sure that the trustee for sale will take no action until that is heard. So that, it seems to me, is the best way to hear the stay application perhaps the simplest way of doing that is if I give Mr Kettle leave to file the application in a case which was signed by him on 6 November which contained the application asking for a stay, then there is no need for more pieces of paper to be filed. I will give him leave to file that together with his affidavit sworn by him on 7 November.
Transcript
Now, that then brings us to the third question that is the question of the transcript. The question of transcripts is one that the Full Court has dealt with on many occasions. We understand that it is a difficult problem. Some appellants simply cannot afford the transcript. Sometimes we hear appeals without transcript if they cannot afford it. Can I explain that the Attorney-General does not provide this Court with a separate fund so that we could pay for transcripts. In the State Courts transcripts are provided but they are not in this Court.
The second question that arises is that Mr Kettle suggests that, "the Court should listen to the tapes of the transcript," and there are reasons for that, probably the ground of appeal in relation to bias. It is a difficult problem and it seems to me it is not one that I should make an order about myself. The Full Court will also deal with the transcript issue. If you would provide please, to the Appeal Registrar, a list of all the documents that you want the Appeal Court to read that relate to your stay application and the transcript issue, the transcripts and tapes issue and serve it on the solicitors for the other side and perhaps if you, Ms Ellis, and you, Ms Kingswell, could do the same, so we can just assemble all these documents. If all of you could do that by 4 pm on Wednesday of this week, 28 November, and provide that to the Appeals Registrar.
I will in addition to reinstating the appeals make some directions so this appeal can be heard in March next year, in the week commencing 3 March, Mr Kettle, so that everybody knows where they are leading to and where they are going in the future.
Now, perhaps Ms Kingswell and Ms Ellis, if you could think about what I am saying and then the final orders I will make today are about costs of course. If the appeal is to be heard in the week of 3 March, the appeal books will have to be filed by 25 January. So, Mr Kettle, that may or may not include your transcripts but I am going to make these orders.
Costs
At the end of these proceedings, the solicitor for the respondents applied for costs. Her reasons for asking for costs are somewhat the same as those that she spoke of in relation to opposing, quite understandably and reasonably, the application of the appellant for reinstatement. These included the significant costs incurred by her clients and now the further costs because of the failure of the appellant to comply with rules and the necessity for her to appear today.
I am required to consider the provisions of section 117 which provide that there must be some circumstances that justify an order for costs. The financial circumstances of each of the parties is obviously entirely relevant. What I know of this case includes that the appellant has paid little or no child support for these children which must provide some degree of hardship for their mothers. Mr Kettle, however, is a man who may be the owner of property of substantial worth but he says he has very little income such that he is on the pension. I take that into account. However, the orders that have been made today are a considerable indulgence to Mr Kettle because he did not comply with orders of the Court especially bearing in mind the very long history of this matter. The appellant has now been given an opportunity to pursue his appeal. It is clear to me that an order for costs should be made.
The position of the trustee for sale, Mr Sheehy is that the solicitor who represents him, appropriately I am sure, made no application for costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 21.02.08
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