Kostas and Kostas
[2017] FamCAFC 227
•13 September 2017
FAMILY COURT OF AUSTRALIA
| KOSTAS & KOSTAS | [2017] FamCAFC 227 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.09(1), 22.13 |
| Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 |
| APPLICANT: | Mr Kostas |
| RESPONDENT: | Ms Kostas |
| FILE NUMBER: | PAC | 971 | of | 2015 |
| APPEAL NUMBER: | EA | 75 | of | 2017 |
| DATE DELIVERED: | 13 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 13 September 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 479 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Murphy |
| SOLICITOR FOR THE APPELLANT: | KR Lawyers & Consultants |
| SOLICITOR FOR THE RESPONDENT: | Michael Vassili Barristers and Solicitors |
Orders
That the Notice of Appeal in EA75 of 2017 be reinstated.
That the appellant file and serve a draft appeal index by 4:00pm 15 September 2017.
That the appeal be expedited.
Costs of the application to be costs of the appeal.
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 Kostas & Kostas 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY | THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 75 of 2017
File Number: PAC 971 of 2015
| Mr Kostas |
Applicant
And
| Ms Kostas |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Amended Application in an Appeal filed on 12 September 2017, Mr Kostas (“the husband”) seeks to reinstate his Notice of Appeal filed on 6 July 2017. By operation of rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal, which is against interim property orders (relevantly the sale of the family home) made by Foster J on 16 June 2017, was deemed abandoned because the husband failed to file and serve the draft appeal index by the due date. Hence the application for reinstatement.
Ms Kostas (“the wife”) is the respondent to the appeal and the application for reinstatement. It is her position that the application should be refused.
The orders under appeal rise from property settlement proceedings undertaken pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”). The primary judge determined that the husband is in possession or control of the vast majority of the matrimonial assets which are identified at paragraph 31 of the trial reasons. That finding is not the subject of challenge in the putative appeal. The husband had initially been content for the family home at B Street, Suburb C, to be sold or transferred to the wife. However, by the time the interim applications were heard by the primary judge, the husband had changed his position and sought to retain the property. The primary judge was of the view that the husband failed to adduce any evidence as to any prospect of him being able to purchase the wife’s interest.
The husband acknowledged that the wife has a 40 per cent interest in the home which, on the values ascribed to the property in the trial reasons, amounts to some $212,000. In the circumstances, the primary judge found it appropriate to make an order for the sale of the home and was satisfied that the husband and the parties’ two adult children, who reside in the property, had the capacity to rehouse themselves.
As I said at the outset, the orders under appeal provide for the sale of the home and, on the sale, for the wife to receive an amount of $150,000 and for the balance of the proceeds of sale to be secured, pending final determination of the property proceedings.
By the Amended Application in an Appeal, the husband also seeks permission to file an amended notice of appeal. However, if the notice of appeal is reinstated, by operation of r 22.09(1), leave is not required.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”). In particular, Gummow and Hayne JJ, at [33]:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Delay
Pursuant to r 22.13, the husband was required to file his draft appeal index within 28 days of filing his Notice of Appeal. The Rules provide that if an appellant fails to file the draft appeal index, the appeal is taken to be abandoned. Accordingly, the applicant had until 3 August 2017 to file his draft appeal index. This was confirmed through correspondence to the husband’s solicitors from the Appeal Registry, dated 6 July 2017. The husband did not do so and by operation of the rules his appeal was deemed abandoned.
The first question to be determined is whether the husband has provided an adequate explanation for his failure to comply with the timeframe for filing the draft appeal index. The explanation is provided in the affidavit of a paralegal employed by the solicitors for the husband, which was filed on 11 August 2017. In short, due to an “oversight in the office”, the due date for the draft appeal book was recorded as being 13 August 2017, and not 3 August 2017. As a direct consequence, the draft index was not filed in the timeframe prescribed. The affidavit attaches the draft index intended to be filed.
The explanation provided is brief but makes clear that the fault in not filing the index in time was solely the responsibility of the husband’s solicitors. It is the type of mistake that happens from time to time and the consequence of the oversight ought not to be visited on the client.
Merits of the appeal
It is not necessary to consider the merits of the appeal in any detail, but, nonetheless, that exercise has been undertaken today. As Brennan CJ and McHugh J said at [7] of Jackamarra:
It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, "must be investigated and decided in the manner appointed". If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Footnotes omitted)
The analysis of the grounds of appeal that has been undertaken today was a little unedifying and, in some instances, frankly embarrassing. Ground 3, for example, asserts:
His Honour erred in failing to give the Husband the opportunity to buy out the Wife that is that the Husband pay a sum of money to the Wife in default of which the former matrimonial home would then have to be sold.
On a number of occasions counsel for the husband was asked to quantify the sum of money mentioned in ground 3 which the husband claims he was denied the opportunity to pay the wife. I did not, at any time, receive a satisfactory response or even a ballpark figure. The ground has all the hallmarks of a reconstruction which bears no relationship to the facts of the case. If the appeal goes forward, attention needs to be given to whether ground 3 is pursued.
Having received such an unsatisfactory response to ground 3, counsel for the husband was invited to indicate the strongest ground. The answer was ground 2 which I quote:
His Honour erred in finding as a fact that the Husband had no capacity to buy out the Wife.
Along with 6:
His Honour erred in the finding that the Husband had the capacity to re house himself as this was not reasonably open on the evidence.
The propositions inherent in both of these grounds are difficult to reconcile with ground 2. The answer seems to be “the husband has a capacity to buy out the wife provided he retains control of the house” but cannot rehouse himself if he does not have access to the house as security for some borrowings. Again, the submissions by counsel for the appellant were quite confused and did not appear to come to grips with his Honour’s findings at [31] of the trial reasons which, I observe, are not the subject of challenge.
The question for me is; is the appeal presented on such a thin basis that the court could properly, with paragraph 7 of Jackamarra in mind, refuse to reinstate it? The answer should be “no”. As their Honours said, if the appeal is frivolous, it can be disposed of summarily.
In my view, the principles that emerge from Jackamarra are to the effect that a procedural misstep ought not to stand in the way of the prosecution of even a weak appeal. Of course, I make these observations without having had access to the transcript of the proceedings before the primary judge or the evidence that was placed before him. That fact provides further caution about why the court should not come to a strong view about the merits of an appeal when, plainly, that assessment would be taken without regard to the entirety of the material presented in the court below.
Notwithstanding my disquiet about the apparent merits of the appeal as it appears at this stage, I am not satisfied that I could, on that basis, refuse to reinstate the appeal.
Prejudice
Prejudice is an issue, as the decision in Jackamarra makes plain. But prejudice sits both ways. Here, the prejudice to the husband would be in denying him the opportunity to pursue an appeal that was filed within time, particularly in circumstances where the procedural misstep was not his fault. To visit that default on the husband would, necessarily, be of real prejudice to him.
It is accepted that if the appeal is reinstated, the wife will incur further legal expenses and need to deal with the stress associated with the litigation. However, I observe that sadly for these parties the litigation proceeds at trial level, and repeat my dismay that not having yet reached trial they have almost spent, between them, one-third of the total value of their property. An appeal, of course, does not operate as a stay and the question of whether the order for the sale of the property ought to nonetheless proceed, notwithstanding there may be an active appeal, will ultimately be something to be considered by the primary judge. The point being even if the wife secured a conditional stay, conditioned upon the payment of a sum of money, the prejudice to the wife could be moderated as she would have access to, presumably, a sizeable sum of money.
Conclusion
On balance, the factors which weigh in favour of reinstatement outweigh those which weigh against reinstatement and I will make an order to that effect.
It is also my intention to make an order that the appeal be listed for hearing expeditiously. This is because I am concerned about the wife’s financial situation and that the evidence, at this stage, points to the husband having almost total possession and control of the assets of this long marriage.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 September 2017.
Associate:
Date: 3 November 2017
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