KIPLING & NETIS
[2020] FamCAFC 269
•28 October 2020
FAMILY COURT OF AUSTRALIA
| KIPLING & NETIS | [2020] FamCAFC 269 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no satisfactory explanation for the failure to file the Notice of Appeal within time – Where there is an adequate explanation for the delay in filing the application for an extension of time, noting that that delay was minimal – Where it cannot be said that the appeal has no chance of success – Where there is prejudice either way depending upon the result – Where the justice of the case requires that the application be allowed – Extension of time to file a Notice of Appeal granted. |
| Family Law Act 1975 (Cth) Family Law Rules (2004) (Cth) r 1.14 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Kipling |
| RESPONDENT: | Ms Netis |
| FILE NUMBER: | TVC | 809 | of | 2015 |
| APPEAL NUMBER: | NOA | 56 | of | 2020 |
| DATE DELIVERED: | 28 October 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide via telephone link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 28 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 July 2020 |
| LOWER COURT MNC: | [2020] FCCA 2852 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The oral application made by the applicant father to adjourn the hearing today be dismissed.
The time for the applicant father to file and serve a Notice of Appeal against the Order made by a Judge of the Federal Circuit Court of Australia on 20 July 2020 be extended to the close of business on Wednesday 4 November 2020.
On or before the close of business on Monday 23 November 2020 the respondent mother file and serve an affidavit in support of her application for an order for security for costs, together with a financial statement.
On or before the close of business on Monday 30 November 2020 the applicant father file and serve an affidavit in response to the respondent mother’s application for an order for security for costs, together with a financial statement.
The application for an order for security for costs be listed for hearing before the Honourable Justice Strickland on Wednesday 2 December 2020 commencing at 10:00am (Queensland time) with a time estimate of two hours.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kipling & Netis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: NOA 56 of 2020
File Number: TVC 809 of 2015
| Mr Kipling |
Applicant
And
| Ms Netis |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an Application in an Appeal filed by Mr Kipling (“the father”) on 1 September 2020, seeking an extension of time to file a Notice of Appeal against an order made by a Judge of the Federal Circuit Court of Australia on 20 July 2020.
In support of the application, the father filed an affidavit, also on 1 September 2020, and annexed to that affidavit is a Draft Notice of Appeal, being the Notice of Appeal that the applicant would wish to proceed upon, in the event that time is extended.
The application is opposed by Ms Netis (“the mother”), and she filed a Response on 6 October 2020. In support of that Response, on the same date, the mother filed an affidavit, and in addition, she filed written submissions on 20 October 2020.
In relation to the issue of written submissions, I note that on 2 October 2020, orders were made by the Regional Appeals Registrar to prepare this matter for hearing today, and the Registrar made orders providing for each party to file and serve written submissions. The father was to file and serve his written submissions by 13 October 2020. That did not occur. But what the father did was, in the early hours of this morning, he says that he forwarded written submissions to the court, and to the mother.
I confirm a ruling that I made earlier during this hearing, namely, I have refused to receive the father’s written submissions. However, in lieu of that, I permitted the father to make oral submissions in support of his application today. Similarly, I permitted the mother to make any further oral submissions that she wished to in addition to her written submissions.
Procedural background
The order made on 20 July 2020 provided for the father to pay the mother’s costs of and incidental to the contravention application filed by the father on 16 August 2019, and which application was dismissed.
Following that dismissal, his Honour heard the mother’s application for costs and, as a result, made the order that is, to repeat, the subject of the proposed appeal.
The order provided for costs to be paid on an indemnity basis in the sum of $10,686.24, and that amount was to be paid within two months of the date of the orders. I note that that time period has now expired, and I further note that there is no stay of that order, and thus, it is able to be enforced by the mother; the filing of a Notice of Appeal does not act as a stay.
Plainly, regardless of what happens in relation to the appeal, as from 2 September 2020, the mother has been able to seek enforcement of the order made by his Honour.
The applicable principles
The discretionary power to extend time for the filing of a Notice of Appeal pursuant to r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) has typically been referenced to the well-known statement by McHugh J in Gallo v Dawson (1990) 93 ALR 479 in respect of an analogous power. His Honour said this at 480:
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…
As can be seen from his Honour’s statement, the issue is whether the strict application of the Rules result in a miscarriage of justice, and in addressing that issue, the relevant factors that have been recognised in the authorities, and as also referred to by his Honour in Gallo v Dawson are first, the explanation for the failure to file, in this instance, a Notice of Appeal within time, as well as the explanation for any delay in filing an application seeking an extension of time, secondly, the merits of the appeal or, put another way, whether the appeal is arguable or not, and thirdly, the prejudice to the parties depending upon the result of the application.
The explanation for the default and the delay in filing the Application in an Appeal
His Honour’s order, as referred to above, was made on 20 July 2020, and the 28 day period in which a Notice of Appeal was required to be filed, expired on Tuesday 18 August 2020.
In his affidavit in support of the application, the father deposed that he attempted to file his Notice of Appeal on 18 August 2020, but it was sent after the Appeal Registry had closed. Indeed, he tells me today that it was sent some eight hours after the Registry had closed. As a result, the Notice of Appeal was deemed to be late and, in accordance with the relevant Rules, was deemed to be filed the following day. Thus, in order to pursue an appeal, the father needed to file an application seeking an extension of time, and he did that on 1 September 2020.
In his affidavit in support of the application, the father concentrated on providing an explanation for the delay in filing the application for an extension of time, namely, what occurred between 18 August 2020, and 1 September 2020. However, what the father failed to do, was to provide in his affidavit any explanation for the failure to file the Notice of Appeal prior to 18 August 2020. It seems that the father left the filing of the Notice of Appeal until the last moment, and then he found that he was out of time.
In oral submissions today, the father has indicated that the only matter he can put forward by way of explanation for the failure to file within time is, in fact, the same reason that he provides for not filing his application until 1 September, namely, there were a number of other applications that he had to deal with, and he candidly admitted that the need to file the Notice of Appeal, because of the pressure of those other matters, slipped his mind.
Prima facie, that is an unsatisfactory explanation for the failure to comply with the Rules, but the fact that the father attempted to file the Notice of Appeal on 18 August 2020, albeit late, in my view, is highly relevant.
Accepting, as is plain, from what both parties have put to me, that there are a number of other applications on foot which both parties, not only the father, need to deal with, I am not prepared to dismiss the application because of the failure to provide an entirely satisfactory explanation for the failure to file the Notice of Appeal within time.
I am also satisfied that there is an adequate explanation for the delay in filing the application for an extension of time, and, of course, I note that that delay is minimal, the 28 days expiring on 18 August 2020 and the application being filed on 1 September 2020.
The merits of the appeal
The father’s proposed Notice of Appeal contains two grounds of appeal as follows:
1.The Honourable Trial Judge made an error of law in failing to take proper account of the factors in s117 of the Family Law Act 1975.
2.The Honourable Trial Judge made an error of law in failing to correctly apply the settled law in such cases as Colgate Palmolive and Anor v Cussons Propriety limited.
(As per original)
The mother points out that the grounds are not particularised. That is true, but that highlights the difficulty that this Court has at this stage of the matter in determining an application such as this, namely, it is not possible to be definitive in assessing the merits of the appeal, for the very reason that the mother raises, namely, all that this Court has is the Notice of Appeal with two grounds of appeal.
I do not have the benefit of the transcript of the hearing, and I do not have the benefit of the summaries of argument which would be prepared and be put before the Full Court, if the Full Court was today hearing this appeal. Thus, to repeat, that creates a difficulty for this Court in determining the application.
What I have to do is do the best I can on the documentation that I have, and make some assessment of the merits of the appeal or, more particularly, whether there is an arguable case on appeal. And the position is, that unless I can find that there is absolutely no chance of success, then the appeal should be allowed to proceed, or, put another way, even where there is the remotest chance of success, that is enough.
Having read his Honour’s reasons for judgment, which, of course, are before me, and then considering the two grounds of appeal, I indicate that I have serious doubts as to the merits of either of those two grounds of appeal. However, I am not in a position to find that there is absolutely no chance of success of either of those grounds of appeal, and that is the test.
I hasten to add that in saying that, I am not saying that the appeal will succeed. What I am saying, is that where I cannot find that the appeal has no chance of success, then it should be allowed to proceed. In the fullness of time, when the matter gets before the Full Court, and with that Full Court having the full range of documentation before it, a fully informed decision can then be made as to the success or otherwise of the appeal.
The prejudice to the parties
A successful application for an extension of time denies the mother the benefit of a judgment which, in the ordinary course of events, is unimpeachable upon the expiration of the time limit for filing an appeal. Thus, a successful application for an extension of time results, plainly, in injustice for the mother. The mother would then have to commit time, money and resources in opposing the appeal, and, clearly, that is a prejudice to her.
On the other hand, the rejection of an application for an extension of time denies the father a fundamental right within the modern judicial system, namely, the right to correct error found in the orders as made. There is no appeal to the Full Court of this Court from the refusal of an application for an extension of time, and the only option for an unsuccessful applicant is to seek special leave to appeal to the High Court of Australia. That in itself is a difficult proposition, and is generally not warranted in circumstances such as this. There is therefore prejudice to the father if the application is refused.
Thus, as can be seen, there is prejudice either way.
If, of course, it can be found that there is no merit in the appeal, then in terms of prejudice, the prejudice would clearly weigh heavily in favour of the mother because, of course, to allow an appeal to proceed where there is no merit, would be futile. However, to repeat, in this case, I am not able to make that finding, and in terms of the prejudice, it is finely balanced.
Conclusion
Having considered the extent of the default, and the delay in filing the application, I confirm that I am not prepared to dismiss the application on the basis of absence of a satisfactory explanation for the failure to file the Notice of Appeal within the time allowed.
With the merits of the appeal, I have not been able to find that there is no chance of success. And finally, to repeat, there is prejudice either way depending upon the result.
In those circumstances, the justice of the case requires that I grant the application, and I so order.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 28 October 2020.
Associate:
Date: 4 November 2020
2
2