Kite & Kite
[2010] FamCAFC 107
•17 June 2010
FAMILY COURT OF AUSTRALIA
| KITE & KITE | [2010] FamCAFC 107 |
| FAMILY LAW - APPEAL – Application for dismissal of appeal – Leave to extend time to file amended notice of appeal – Appeal books filed without amended notice of appeal – Public interest in ensuring that time limits are met – Case guardian appointed for the appellant is a solicitor – Whether indemnity costs should be ordered. |
| Family Law Act 1975 (Cth) s 75(2) Family Law Rules 2004 (Cth) r 22.45(2)(a)(i), r 22.20(2) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Doriemus & Vanderhum [2009] FamCAFC 56 In the marriage of Kohan, L and Kohan, CL (1993) FLC 92-340 |
| APPLICANT: | Mrs Kite |
| RESPONDENT: | Mr Kite (by his case guardian Mr Kite) |
| FILE NUMBER: | PAF | 1073 | of | 2006 |
| APPEAL NUMBER: | EA | 98 | of | 2009 |
| DATE DELIVERED: | 17 June 2010 |
| PLACE DELIVERED: | Melbourne via video link with Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Thackray & Cronin JJ |
| HEARING DATE: | 17 May 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2009 |
| LOWER COURT MNC: | [2009] FamCA 896 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr de Robillard |
| SOLICITOR FOR THE RESPONDENT: | X Attorneys, Lawyers |
Orders
The wife’s application in the appeal filed 30 March 2010 be dismissed.
The husband pay the wife’s costs of and incidental to the application fixed in the sum of $4,000 such costs to be paid to the wife within 28 days of these orders.
The husband file and serve an Amended Notice of Appeal within seven (7) days of the date of these orders.
The husband file and serve his summary of argument and list of authorities with the Appeal Registrar within 21 days of the date of these orders.
The wife file and serve her summary of argument and list of authorities with the Appeals Registrar within 14 days of service upon her of the husband’s summary of argument and list of authorities.
IT IS NOTED that publication of this judgment under the pseudonym Kite & Kite is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 98 of 2009
File Number: PAF 1073 of 2006
| Mrs Kite |
Applicant Wife
And
| Mr Kite (by his case guardian, Mr Kite) |
Respondent Husband
REASONS FOR JUDGMENT
Bryant CJ and Cronin J
The husband appealed a decision of Stevenson J delivered on 31 July 2009. Prior to the hearing of the appeal, the wife filed an application seeking that pursuant to r 22.45(2)(a)(i) of the Family Law Rules 2004 (Cth) (“the Rules”) the Notice of Appeal be dismissed or alternatively:
a.the husband file and serve any Amended Notice of Appeal, Summary of Argument and List of Authorities within seven days of the date of these orders;
b.failing compliance with order (a) the Notice of Appeal be dismissed; and
c.the appellant husband and/or case guardian and/or solicitor pay the costs of the wife in relation to the appeal proceedings together with the costs of this application on an indemnity basis.
The proceedings concern property proceedings between the wife and husband which were filed on 31 August 2006. On 21 July 2008 the trial commenced but due to the husband’s ill health and consequent difficulty giving evidence, it was adjourned and the husband’s brother, who is a solicitor, was appointed as case guardian. The hearing resumed and continued with written submissions over five separate days concluding on 30 March 2009.
The husband has been diagnosed with Multiple Sclerosis and his condition has deteriorated to the extent that, albeit his 53 years of age, he requires full-time nursing care and is residing in a high care nursing home which provides extra services. The need for that standard of care is not likely to change.
The parties were married for 25 years at the time of separation in 2006, with three children aged 16, 18 and 22 at the date of the hearing, all of whom are living with the wife.
There were a number of issues between the parties at trial but the major issues fell into three categories:
a.The husband’s argument that the sum of $376,656 removed by the wife from the joint bank account should be added back to the asset pool and be treated as an asset of the wife.[1]
b.The assessment of the contributions in which the husband contended that there should be a contribution finding in his favour of 55% compared to 45% to the wife regarding:
· in particular, the receipt by the husband of $1.2 million as total and permanent disability benefits following an action against his former employer with the wife asserting that the funds received should properly be viewed as contributions on and behalf of each of the parties because it was effectively income of the husband; and
· the wife’s assertion of a significant contribution once the husband’s illness was diagnosed and his health deteriorated.
c.The husband’s contention that he should receive a further adjustment of 10% because of his future needs, in particular his total permanent disability and reliance on his superannuation and whatever else he received by way of property to support him into the future. The wife contended that she would remain financially responsible for the children and, although child support was then being received for the youngest child, the Court could find it was improbable the husband would voluntarily provide any financial support for the continuing education of the children following their attaining 18 years of age.
[1] See appeal book, vol 4, page 681 – Submissions on behalf of the husband at trial.
At the commencement of the trial the husband’s position was that he should receive 65% of the assets compared to the wife’s 35%. The wife contended that she should receive 60% compared to the husband’s 40%. The wife’s claim for a greater share was based upon her contributions to the husband’s care and to the parenting of the children and the maintenance of the parties’ property and finances.
In the judgment the trial Judge noted all of the areas of dispute between the parties, including the major ones which we have set out. With regard to the add-back of the $376,656 sought by the husband, her Honour analysed the monies withdrawn by the wife, the manner of their expenditure and added back $45,400 being expenditure which the wife failed to properly identify as necessary for the day-to-day living expenses, paid legal fees of $152,042 and payments of $75,000 to the parties’ children.
Having dealt with all of the issues regarding the asset pool, her Honour then turned to the contributions of the parties and noted that the two main issues relating the contribution seemed to be:
· whether Mr Kite’s $1.2 million settlement should be regarded as a contribution solely attributable to him; and
· what weight should be given to the wife’s care of the husband as his illness progressed, in the context of her contribution as homemaker and parent and generally.
In summary, her Honour found that the wife’s efforts and commitment were very significant in the functioning of the family unit as the husband’s condition deteriorated and that it was clear she carried out her homemaker, parent and carer role “in arduous circumstances”.
She was also satisfied that the husband made a substantial effort to sustain his employment for as long as possible, despite his illness. Her Honour said:
It seems to me that Mr and Mrs [Kite] bravely faced together his health problems and the consequences for their family. It is my view that each did all that they could to make the best of their very difficult situation.
Her Honour noted in addition that since the separation, the wife had been solely responsible for the care of the children and maintenance of the parties’ real estate assets, and that she had made all of the post-separation homemaker and parent contributions.
Her Honour did not accept the submission that the $1.2 million settlement received by the husband from his former employer should be treated as his sole contribution despite the fact that the money was largely characterised as a total and permanent disability benefit. The trial Judge noted that not only had the wife assisted the husband in obtaining the settlement, but the quantum of the settlement was clearly linked to his final salary and that the nature of its characterisation was done for the best financial advantage for the family. At the conclusion of the trial her Honour found that the parties had contributed equally to the acquisition, conservation and improvement of the property which she had found to comprise the asset pool.
Her Honour then turned to the question of the matters under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) in respect of which both parties claimed an adjustment in their favour. Her Honour considered the relevant matters in s 75(2) and in particular matters concerning the husband’s future support given his total and permanent incapacity. Expert evidence from a Chartered Accountant regarding the husband’s needs was referred to by her Honour. She also took account of the wife’s age and the fact that she had no specialised employment or qualifications. Her Honour concluded, in regard to those matters, that the factors that favoured the wife were her responsibility to care for the child under the age of 18 for a further two years, her limited capacity for gainful employment and her modest superannuation benefits. In comparison, her Honour noted that the husband was in a position of physical dependency and relied solely on his superannuation fund for financial support. Her Honour further accepted that he was entitled to the best quality of life as provided by the current facility he is living in. When her Honour balanced these considerations against each other she concluded that there should be no adjustment in favour of either party on account of s 75(2) factors and thus her Honour found that the assets should be divided equally between the parties.
The orders themselves provided for a transfer to the wife of the husband’s interest in the former matrimonial home. The husband was to receive the bank accounts and the AMP Whole of Life Plan policy. The wife was to indemnify the husband against all liabilities arising pursuant to the mortgage registered over the matrimonial home.
A property in BH was to be sold with an adjusting figure to the husband which would mean that the assets were divided equally between the parties. The husband was to retain his superannuation.
Following the making of the order and within the appropriate time, a Notice of Appeal was filed on behalf of the husband by his case guardian and by the solicitors who had acted for the husband and case guardian at trial.
There were two grounds of appeal:
1. As to her Honour’s findings as to the future needs of the parties:-
(a) There are a lack of Reasons; and
(b) Her Honour erred in not making an adjustment in favour of the husband;
2. Her Honour erred in finding (at paragraph 157 et sec [sic]) that the wife would require a cash adjustment of $164,864 from the proceeds of the sale of the [BH] Property to bring up her entitlement.
What can be seen from the grounds of appeal are the following:
·There is no complaint about fact finding.
·There is no complaint about findings on contribution.
·The complaint seems to be solely directed to the exercise of her Honour’s discretion in relation to the adjustment (or lack thereof) in favour of the husband as a result of the matters arising under s 75(2) of the Act.
We observe that despite the fact that the grounds of appeal do not include any complaint about the findings of contribution, the orders sought are those sought at first instance which were predicated on the basis that contributions would be assessed differently from the way in which they were assessed by her Honour. In other words, the orders sought are in conflict with the grounds in the original Notice of Appeal.
Procedural Orders in relation to the appeal
On 15 October 2009 a procedural hearing in the matter was conducted in chambers before a Registrar of the Court. In summary the orders provided, inter alia:
1.That the appeal books for the appeal comprise a list of documents including an Amended Notice of Appeal to be filed by 10 November 2009.
2.That the appellant husband be responsible for the preparation of the appeal books.
3.A provision for copies of the appeal books.
4.That pursuant to r 22.21 the appeal be taken to be abandoned if the appellant fails to file the appeal books by the due date.
5.The appellant file and serve his summary of argument and list of authorities with the Appeals Registrar on or before 24 December 2009.
6.The respondent wife file and serve her summary of argument and list of authorities with the Appeals Registrar on or before 12 February 2009.
7.That each party be at liberty to apply for any further directions.
8.That the costs be reserved.
No Amended Notice of Appeal was filed by 10 November 2009, or subsequently.
On 8 December 2009, two days before the appeal books were due to be filed, the solicitors for the husband sought an extension of time for the filing of the appeal books and an extension of time for the filing of the summary of argument and list of authorities. One of the reasons given for not filing the material on time was that they could not locate the Amended Notice of Appeal on the Court file. The wife’s solicitors pointed out that, to their knowledge no Amended Notice of Appeal existed and having received no response to their letter, they did not consent to an extension of time for the filing of the appeal books. They did not object or consent to the variation of the timetable for filing of the written submissions. The wife’s solicitors then wrote to the Court indicating that they did not consent to an extension of time for filing the appeal books but they neither consented nor objected to an extension of time in relation to the filing of written submissions.
No application and thus no order were made varying the timetable for either appeal books or each party’s summary of argument and list of authorities.
The first set of appeal books were ultimately filed on behalf of the husband on 10 December 2009. A certificate of correctness pursuant to r 22.20(2) of the Rules was included and signed by the husband’s solicitor.
Despite the certificate of correctness the documents comprising the appeal books were incomplete and in other respects not in accordance with the settled appeal book index. In addition to the annexures to the affidavit of the single expert, the most significant omission is that the first four pages of volume one comprised four blank pages despite the appeal book index suggesting the document was an Amended Notice of Appeal. No Amended Notice of Appeal was included and there is no evidence that one has ever been drafted, save for the suggestion that the husband's former solicitor believed one had been filed.
After the appeal books were filed, the wife’s solicitors wrote to the husband’s solicitors pointing out that there was no Amended Notice of Appeal and noting that the time for filing such notice had expired and there would be an objection to any Amended Notice of Appeal being relied upon by the husband.
On 4 February 2010 the Appeal Registrar wrote to both solicitors confirming that the Registrar had telephoned the appellant’s solicitor on 27 December 2009 advising that the appeal book should be uplifted, corrected and refiled by 29 January 2010. The Registrar noted that that had not occurred and advised that if the appeal books were not amended forthwith the appeal may lose priority with regard to hearing dates. The Registrar directed the appellant to uplift, correct, refile and reserve the appeal books within 14 days.
On 2 March 2010 (being a date almost two weeks after the date directed by the Appeals Registrar) an additional appeal book was filed on behalf of the husband with a further certificate of correctness. Relevantly, the first four pages remain blank and no Amended Notice of Appeal had been filed. The summary of argument and list of authorities were not provided.
The solicitors for the wife wrote on 1 March 2010 to the husband’s solicitors noting that they were not prepared to see the matter unnecessarily delayed or prolonged and that unless the summary of argument and list of authorities were filed and served by close of business on 5 March 2010 they had instructions to file an application seeking that the Notice of Appeal be struck out. They assert that no response was received and it is common ground that no summary of argument and list of authorities have yet been filed. Accordingly, on 30 March 2010 the wife’s solicitors filed an application primarily seeking that the Notice of Appeal filed 29 August 2009 be dismissed.
The present application
The wife filed an affidavit on 30 March 2010 in support of her application.
On 19 April 2010 a Notice of Ceasing to Act was filed by the husband’s solicitors who had acted for him at the trial and subsequently.
The matter was listed before the Full Court on 17 May 2010. No material was filed on behalf of the husband until an affidavit was (without objection) handed up at the commencement of the matter. The affidavit purported to have been sworn on 14 May 2010 by the husband’s case guardian. On 14 May 2010 a Notice of Address for Service was filed on behalf of the husband by the case guardian’s law firm.
Despite a lengthy affidavit which had been filed and served by the wife, the case guardian did not join issue or refer to many matters in the wife’s affidavit. Relevant to the application he deposed to the following:
a.In relation to the appeal the husband was until the last few weeks represented by Champion Legal.
b.The last conversation with the solicitor handling the matter was on 31 March 2010 at which time preparation of the outstanding submissions by counsel in relation to the appeal was discussed.
c.About three weeks ago he was served with a Notice of Ceasing to Act.
He then deposed to the fact that he had been giving consideration to:
a.how to do the best by [his] brother, given his serious medical condition;
b.the issue of instructing independent solicitors;
c.the engagement of new counsel;
d.the seeking of a second opinion in relation to various aspects of the original judgment of the Family Court; and
e.the costs involved.
He said that, as a result of those matters, he had now taken steps to brief new counsel and had attended a conference with counsel. He said that he was instructed by new counsel that the documents could not be immediately prepared but could be prepared over the next four to five weeks and sought an order from the Court to extend the time for filing by a period of six weeks, namely on or before 28 June 2010.
During argument it was pointed out to counsel for the husband that one of the matters that would need to be considered was the prospects of success and that as no Amended Notice of Appeal had been filed, it was only the original notice that could be considered for this purpose. Counsel submitted that he understood that the Amended Notice of Appeal would assert:
a.That the trial Judge had given insufficient weight in the exercise of her discretion under s 75(2) to the matters raised by the husband, in particular his future needs and means.
b.That there was an error in the exercise of the trial Judge’s discretion in not adding back the totality of the $376,656 for which the husband had contended.
c.There would be a contention that the orders were defective in that it was not clear who should be responsible for the BH mortgage.
In respect of the latter, counsel for the wife in submissions indicated to the Court that a question about the interpretation of her Honour’s orders had been raised but that his client conceded that the liability for the BH mortgage was to be the wife’s liability and that she would be applying part of her share of the property to discharge the mortgage. As counsel for the husband had indicated that this was the first occasion on which he had been made aware of such concession, counsel for the wife tendered a letter dated 27 August 2009 in which the wife’s solicitors noted that the only liability on the properties was on BH and that the wife accepted she was responsible for that liability. We were informed that the BH property has not yet been sold and that the wife has made an application to the Court for various orders for the sale of the property which has been listed for 28 May 2010. Counsel for the wife indicated, and it seemed correct to us, that the issue concerning the mortgage (and any issue as to who was to receive the income from the property pending its sale) could be resolved at that hearing.
After hearing the submissions on 17 May 2010 and reserving our decision to 20 May 2010, the husband filed an application on 19 May 2010 seeking that the husband’s case guardian be granted leave to file an affidavit, an opportunity be given to the wife to reply and the decision of the Court not be handed down until the affidavit and reply had been received.
The wife through her solicitor opposed the filing of the affidavit but did not wish to make any further submissions and submitted that if it were admitted she did not wish to put on any further evidence. We indicated that we would reserve our decision in relation to the admission of this affidavit and deliver our reasons on that matter at the same time as we delivered our reasons in relation to the substantive application.
The affidavit does not contain any material that was not known to the husband’s case guardian prior to the application being argued. The affidavit deals with the following matters:
a.An attempt to refute a submission that the Court should draw the inference that whilst not attending to the requirements in relation to the appeal, the case guardian ran proceedings in the Social Security Appeals Tribunal.
b.The failure of the case guardian after 31 March 2010 to personally search the Court’s registry (presumably looking for the Amended Notice of Appeal) and his state of knowledge in relation to the Amended Notice of Appeal was due to him being unaware “of the fact that the solicitors for [his] brother had ceased to act until [he] received [the solicitor’s] Notice of Ceasing to Act on 21 April 2010”. He further deposed that at all times he was sure that an Amended Notice of Appeal had been filed with the Court but he could not locate it and the submission that he could have personally searched the Court’s file after 31 March 2010 was “unfairly damaging to the Husband’s interest”.
c.The attendance by the case guardian at a conference with counsel on 13 May 2010, when counsel advised that a s 75(2) issue had reasonable prospects of success on appeal and there were a number of other matters which could be argued in an appeal. He deposed to the fact that he did not write them down as he was waiting for the written advice from counsel. He further says that he has no expertise in the area of family law and that at all times when he received the Notice of Ceasing to Act he relied on the advice and actions of the husband’s original solicitors.
d.The first time he became aware of the Application to strike out the appeal was on the same date he received the Notice of Ceasing to Act.
e.He recently endeavoured to make enquires to the Court Registry in relation to accessing the file and obtain all of the orders.
f.The Registry advised that as he was not a party to the proceedings he would not be provided with access to the Court file. It was then that he arranged for his partner to file a Notice of Address for Service and became the solicitor on record.
As indicated, none of these matters arose after the hearing and all of them could have been set out in the original affidavit by the case guardian.
The matters regarding the Social Security Appeals Tribunal (“the SSAT”) were an attempt to make further submissions to the Court which could have been made at the initial hearing, and in any event in our view are not relevant.
Similarly, the other matters were all canvassed at the first hearing. In any event, the case guardian still does not deal with the reason for not filing the summary of argument and list of authorities within the time allowed. If he intends the Court to infer that he did not know that these documents had not been filed, then he has not deposed to that fact. It is not part of his case, as we perceive it from the material filed including this affidavit, that his solicitors did not advise him of communications from the Court and letters from the other solicitors. Had that been the case we would have expected him to have clearly addressed that issue. In neither affidavit does he do so.
For those reasons we do not intend to allow the further affidavit and would dismiss the Application filed 19 May 2010 to admit further evidence by the husband through his case guardian.
Principles relevant to applications for extension of time
Counsel for the husband accepted that as the husband had now sought an extension of time the case fell to be decided on the principles in relation to the extension of time.
The law applicable to an application to extend time was conveniently set out by O’Ryan J in Doriemus & Vanderhum [2009] FamCAFC 56 (6 April 2009). O’Ryan J there said:
36.Rule 1.14 of the Rules deals with the shortening or extension of time. Rule 1.14(1) provides that “[a] party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order”. Rule 1.14(2) provides that “[a] party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed”. However, there are “no preconditions to the exercise of power” to extend time: see Strudwick v Baker Johnson (1996) FLC 92-683 per Lindenmayer J at 83,098. The Rules do not set out what matters are to be considered in relation to an application for leave to do something out of time.
37.However the discretion to extend time although unfettered will not be exercised automatically. In Gallo v Dawson (1990) 93 ALR 479 McHugh J said at 480 “[t]he grant of an extension of time… is not automatic…” and citing the decision of McInerney J in Hughes v National Trustee Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262 said “[t]he discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”. The discretion to extend time is given for the purpose of enabling the court to avoid an injustice and the court must determine whether justice as between the parties is best served by granting or refusing the extension sought. In The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron and McHugh JJ said at 154: “…case management is not an end in itself. It is important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim”.
38.In OP v HM [2002] FamCA 454 the Full Court (per Kay, Coleman and Rose JJ) at 19 said that whilst there is a broad discretion the fundamental issue is whether an extension of time will enable the Court to do justice between the parties. Their Honours explained that this is “normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise”: see also McMahon and McMahon (1976) FLC 90-038 at 75,144, and Tormsen and Tormsen (1993) FLC 92-392 at 80,017.
39.Various authorities have established that in order to determine whether compliance with the Rules would 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 to the parties of the grant or the refusal of the extension of time: see Gallo v Dawson (supra) per McHugh J at 480-1; Lawecki & Marcel Kalfus & Co (1985) FLC 91-644; Prowse v Prowse (1995) FLC 92-557 at 81,568-81,573 but in particular at 81,572-3; Morrison v Morrison (1995) FLC 92-573 at 81, 674; and more recently OP v HM (supra).
40.However, the Full Court (Lindenmayer, Baker and Rowlands JJ) observed in Prowse v Prowse (supra) at 81,572: “[h]owever, whilst it is no doubt correct to identify those matters as ‘factors’ to be considered, and even as ‘the usual considerations’, we believe that it would be an error to elevate those ‘factors’ or ‘considerations’ into an exclusive code within the confines of which the court’s discretion to extend time must be exercised”. In other words, it is important to recognise that although the factors set out in various cases are “normally shown” by a successful applicant for an extension of time they should not confine the broad discretion: Hill v Hill [2007] FamCA 1657 (Unreported, O’Reilly J, 1 November 2007) at 13.
It remains only to refer to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 which overruled State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 to the extent that case stood for the proposition that case management principles should only be applied “in extreme circumstances” to refuse an amendment. The majority in Aon (Gummow, Hayne, Kiefel and Bell JJ) said that such a proposition “implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others”. Their Honours held at [95] that a “fundamental premise of case management” is that “[w]hat may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question”.
At paragraph 98 it was further said:
[o]f course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule’s reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
We propose to discuss briefly each of the matters the authorities indicate may be of relevance in determining whether or not strict application of the Rules and the procedural orders would work an injustice against the husband.
History of the proceedings
Counsel for the wife submitted that it was relevant that the proceedings had commenced in 2006 and had now been ongoing for a lengthy period. He also submitted that it was relevant to consider the nature of the proceedings and this was an appellate intervention that was sought and that the primary proceedings had been conducted and determined.
Conduct
Counsel for the wife contended that there was essentially no explanation for the delay for such a lengthy period. He asserted that the case guardian could not rely upon on the fact of a new solicitor being appointed because the new solicitor is the case guardian’s firm and there is in fact, no new solicitor. He submitted that the case guardian had not said anything in his affidavit about why the requirements of the Appeal Registrar had not been complied with nor the Amended Notice of Appeal or summary of argument filed within the relevant time. This, he contended, was made more egregious by the fact that the case guardian was a solicitor.
He also submitted that the Court could draw the inference that the husband, through his case guardian, had prosecuted the proceedings in the SSAT to have child support for the youngest child terminated at the same time as the delays were occurring in the prosecution of this appeal. While there is no direct evidence of this, he submitted that the Court should draw the inference that at the time of the orders there was an assessment and that that assessment is no longer in place.
Hardship to the wife
Counsel for the wife contended that there was a lack of finality and the wife’s particular financial circumstances were such that it would be unjust if the litigation was not brought to an end. He also submitted that there was a public interest in ensuring that time limits were met unless there was good reason for not doing so (Aon Risk Services Australia Ltd v Australian National University (supra)).
Prospects of success
Counsel for the wife contended that, leaving aside the issues relating to the mortgage, the complaints were largely in relation to a discretionary judgment in respect of which the well known principles regarding appellate interference apply. As we have clearly indicated, the affidavit by the case guardian said very little about the reason for delay and certainly did not join issue or address many of the issues raised by the wife.
Counsel for the husband argued that the appeal had been prosecuted, but conceded it had not been prosecuted properly. Essentially, he conceded that there was a failure to file the Amended Notice of Appeal but that that failure was now being addressed by the briefing of new counsel. Although the affidavit did not make these assertions, counsel for the husband asked us to infer that there had been a failure on the part of the previous solicitors to do what they were instructed to and that the explanation for the delay should repose with the previous solicitors and not the husband or the case guardian.
We find it difficult to accept that we can draw the inferences sought by the husband’s counsel. The stark fact remains, that although the affidavit sworn by him could have given detail about why there was such a delay, no such detail was provided. Indeed, paragraph 6 of the affidavit suggests that since the hearing, the case guardian has been considering the issue of new solicitors, new counsel and a second opinion. Why that was not done in a timely manner and why the extension was not properly sought months ago has not been explained. The highest that one can put the evidence of the case guardian is that he has recently taken steps to brief new counsel. That does not provide a satisfactory explanation for the delay of approximately five months in the filing of an Amended Notice of Appeal or summary of argument and list of authorities. Indeed, although we accept that counsel for the husband was at some disadvantage, the matters raised by him as forming the basis for the amended notice, if correct, could reasonably and easily have been addressed and an Amended Notice of Appeal filed. It is relevant, in our view, that we are considering this matter (including its prospects of success) without an Amended Notice of Appeal yet having been filed.
In relation to the conduct of the appeal, we take into account the fact that the case guardian is a solicitor and whether nor not he is conversant with family law, he would have been well aware of the need to comply with timetables and seek appropriate extensions where necessary. We do not draw any inference from the application to the SSAT in relation to child support during the period since the orders were made as it is unclear what steps were being taken to prosecute that matter.
We accept that there is hardship to the wife in this matter continuing without resolution and again note that no Amended Notice of Appeal, even at this stage, has been filed.
As to the prospects of success we must give weight to the fact that there is, as yet, no Amended Notice of Appeal and consider the matters in the original Notice of Appeal. However, even allowing for what counsel for the husband informed us, namely that there would be a complaint regarding the manner in which her Honour had treated the add-back contended for by the husband, we note that the matters raised are all discretionary matters and that her Honour appears to have given careful consideration to all of the issues raised by the parties. We further note that in relation to the add-backs a substantial amount was added back by her Honour.
Finally, as we have already indicated, the issue of the mortgage, which is still not entirely clear to us, has either been the subject of a concession or if anything remains to be dealt with by the Court at first instance on 28 May 2010 or when the wife’s application is heard.
Conclusion
If there was no case guardian in this matter then we would have no hesitation in dismissing the appeal for the reasons we have outlined. The manner in which the appeal has been prosecuted has been most unsatisfactory and as we have explained, no satisfactory reason for the delay has been advanced. However, there is one other factor in this case which mitigates against the exercise of our discretion to dismiss the appeal. That is that the fault lies with the case guardian and not with the husband, and in our view it would be unduly harsh to visit upon him the deficiencies of the case guardian. Whilst we have concluded on the material before us the prospects of success in the appeal do not appear strong, we are mindful of the fact that part of the problem in this case is that no Amended Notice of Appeal has been filed and that no summary of argument or list of authorities has been provided. New counsel has now apparently been briefed and given advice and having regard to the interests of justice in this particular case we have concluded that the husband should not be prevented from prosecuting his appeal.
However, we intend to make orders for the filing of material and the husband and his advisors should be on notice that further failures to comply with directions of the Court are not likely to result in any further indulgences.
Costs
Counsel for the husband conceded, sensibly in our view, that even if he was successful in the application the husband would appropriately be responsible for payment of the wife’s costs. The issue between the parties was that the wife sought indemnity costs which were opposed by the husband.
Costs ordered on an indemnity basis is the exception rather than the rule (Kohan and Kohan (1993) FLC 92-340; Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225). In Yunghanns v Yunghanns (2000) FLC 93-029, the Full Court said that the categories of circumstances that might give rise to an indemnity order are not closed. The court said, at 87-471:
…it is not a condition precedent to the exercise of the discretion that some collateral purpose or species of fraud be established against the party against whom such an order is sought. All that is required is that the Court asked to exercise the discretion be satisfied that some “particular facts and circumstances of the case in question warrant the making of an order for the payment of costs other than on a party and party basis…
The matter raised by counsel for the wife as constituting the particular facts and circumstances of this case was the serious dereliction in compliance with the orders having regard to the fact that the case guardian is a solicitor.
We do not consider that this matter justifies an order for indemnity costs.
Whilst we are mindful of the expense to the wife by the husband’s failures we observe that this application was brought by the wife who could have consented to the extensions of time sought by the husband without incurring further expense to herself. That, in our view, mitigates against an order for indemnity costs.
The wife’s solicitors handed up to us an itemised schedule of costs in relation to the application to dismiss the appeal on a party/party basis. We propose to order a lump sum with respect to the application of $3,500. We propose also to order a further $500 in relation to the application filed on 19 May 2010. Such costs are to be paid within 28 days.
Thackray J
I have had the benefit of reading in draft the judgment of the Chief Justice and Cronin J. For the reasons they have expressed I would make the orders they have proposed.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 17 June 2010
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