Kursat & Ors and Kursat
[2012] FamCAFC 9
•2 February 2012
FAMILY COURT OF AUSTRALIAWE CAN
| KURSAT AND ORS & KURSAT | [2012] FamCAFC 9 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the applicants have not satisfactorily explained their failure to comply with the Family Law Rules 2004 (Cth) – where there is an arguable case on appeal – where the most significant factor is that if the application is not granted the applicants will not be able to pursue their arguable case on appeal – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent sought an order for costs in the sum of $2,000 regardless of the result of the application – where the applicants opposed any order for costs on the basis that the respondent could have agreed to the reinstatement - applicants to pay the respondent’s costs in the sum sought. |
| Family Law Act 1975 (Cth) – s 94AAA(10), (12) and (13), s 117(2) Family Law Rules 2004 (Cth) – r 22.13(2) and (3), r 22.44 |
| Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 Kennon v Spry (2008) 238 CLR 366 Rand & Rand [2009] FamCAFC 88 |
| APPLICANTS: | Mr A Kursat and Mr K Kursat and Mrs Kursat |
| RESPONDENT: | Ms Kursat |
| FILE NUMBER: | MLC | 985 | of | 2010 |
| APPEAL NUMBER: | SA | 62 | of | 2011 |
| DATE DELIVERED: | 2 February 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 January 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 608 |
REPRESENTATION
| COUNSEL FOR THE APPLLICANTS: | Mr Hines |
| SOLICITOR FOR THE APPELLANT: | Atlas Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Williams |
| SOLICITOR FOR THE RESPONDENT: | Pearsons Solicitors |
Orders
The Notice of Appeal filed on 25 August 2011 be reinstated.
The applicants have leave to file an Amended Notice of Appeal within 14 days of the date hereof.
The applicants file and serve a draft appeal index within 21 days of the date hereof.
Within 28 days of the date hereof the applicants pay the respondent’s costs thrown away fixed in the sum of $2,000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kursat and Ors & Kursat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 62 of 2011
File Number: MLC 985 of 2010
| Mr A Kursat and Mr K Kursat and Mrs Kursat |
Applicants
And
| Ms Kursat |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 7 October 2011 in which an order is sought that the appeal which was filed on 25 August 2011 be reinstated. In addition the application seeks leave to file an amended Notice of Appeal and leave to file a draft index of appeal out of time. Neither of these two orders will strictly be necessary if the appeal is reinstated but I will make orders to that effect if the appeal is reinstated to ensure the matter proceeds expeditiously.
The appeal was against orders made by Federal Magistrate Riley on
28 July 2011.
The appeal was taken to be abandoned on 22 September 2011 pursuant to Rule 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). The applicants failed to file a draft appeal index as required by Rule 22.13(2) within 28 days after the filing of the Notice of Appeal.
The application for reinstatement is opposed by the respondent.
Relevant statute law and rules
Rule 22.13 provides:
(2) The appellant must file a draft index to the appeal book within:
(a) 28 days after:
(i) filing the Notice of Appeal; or
(ii) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or
(b) if the court extends the period mentioned in paragraph (a) -- the period ordered by the court.
(3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned. (Emphasis added)
Rule 22.44 provides:
A party may apply to have an appeal taken to be abandoned under this Chapter reinstated.
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(10) provides:
(10) Applications of a procedural nature, including applications:
…
(c) to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or
…
(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or
…
may be heard and determined by a single Judge or by a Full Court.
Section 94AAA(12) and (13) provide:
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
(13) The single Judge referred to in subsection (3), (8) or (10) need not be a member of the Appeal Division.
Applicable principles
In the case of Bemert & Swallow (2010) FLC 93-441 the Full Court considered in some detail the relevant principles to be applied where there is an application to reinstate an appeal. Significantly the Full Court concluded at paragraph 154:
…, [i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
It was identified in Bemert & Swallow though that the principles applicable to the determination of an application for an extension of time, as set out, for example in the oft-cited judgment of McHugh J in Gallo v Dawson (1990)
93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson, McHugh J said 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.
See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
Thus, the fundamental issue is whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.
Discussion
As to the relevant factors in this case, those that have been identified and in respect of which submissions were made by both counsel are, firstly, whether there are adequate reasons provided by the applicants to explain their failure to comply with the relevant timeframe, secondly whether there is a substantial issue to be raised on appeal, and thirdly the consequences for the parties of the grant or refusal of the application.
Adequate explanation
In order to appreciate the issues here, I need to initially set out the sequence of events as follows:
a)Federal Magistrate Riley delivered her reasons for judgment and made the orders sought to be appealed against on 28 July 2011.
b)The applicants, who are the husband and his parents, filed their Notice of Appeal within time on 25 August 2011.
c)On that day a letter was sent by the Regional Appeals Registrar to the solicitors for the applicants returning a stamped copy of the Notice of Appeal for service and setting out in detail what the applicants then needed to do in order to progress the appeal, including filing a draft index to the appeal books within 28 days of the filing of a Notice of Appeal. Significantly the letter indicated that the 28 day period expired on 22 September 2011 and that failure to file the draft index by close of business on that day would result in the appeal being deemed abandoned.
d)The applicants failed to file a draft appeal index by 22 September 2011.
e)On 26 September 2011 the solicitor for the applicants sent a letter to the Regional Appeals Registrar enclosing an Amended Notice of Appeal and a draft appeal index.
f)By letter dated 27 September 2011 the Regional Appeals Registrar informed the solicitor for the applicants that as a draft index had not been filed the appeal was taken to be abandoned.
g)On 29 September 2011 the solicitor for the applicants sent a facsimile to the solicitors for the respondent enquiring as to whether they would consent to the late filing of the draft appeal index.
h)On 30 September 2011 the solicitors for the respondent sent a facsimile to the solicitor for the applicants in effect refusing to consent to the late filing of the draft appeal index.
i)On 7 October 2011 the applicants filed their application in an appeal seeking an order that the appeal be reinstated.
The solicitor for the applicants filed an affidavit on 7 October 2011 in support of the application, and that affidavit and the annexures thereto comprise the evidence of the applicants that is before me. Paragraph 2 of that affidavit sets out the explanation for the failure to file the draft appeal index in time and says as follows:
From the 25 August 2011 onwards I was awaiting Counsel’s advice in relation to what he would require in order to conduct the Appeal in an effective manner. During this time I was also undertaking other work and dealing with the pending move of my office from the Roxburgh Park area to the Craigieburn area. Which is yet to be finalised I am still having issues with communications and in particular Telstra Corporation. I was of the belief that we had plenty of time to obtain Counsel’s advice and file the appropriate documents in due course. On the 22nd of September 2022 [sic], still believing that we had time to file the draft index within time I contacted Counsel Mr Hines via email requesting advice in relation to what he would require in the draft appeal index. On Friday the 23 September 2011 I received the requisite advice with which to complete the draft index. I subsequently tried filing the draft index on Monday the 26 September 2011 still of the belief we were within time.
I consider this to be an unacceptable explanation for the failure to file a draft appeal index within the time required by the Rules. Not only is the solicitor for the applicants taken to know what the Rules require, but this was also set out in the letter from the Regional Appeals Registrar together with the specific date by which the index needed to be filed.
It is a lame excuse and not one which I accept to suggest that counsel’s advice was needed as to the content of the index. In any event, to repeat, the solicitor was well aware of the timeframe and he should have ensured that he had whatever advice he needed to enable him to comply with that timeframe on behalf of his clients.
The merits of the appeal
To have regard to the prospects of the appeal succeeding is necessarily a difficult exercise for this Court to undertake. That is because the full range of documentation that would be before the Full Court hearing the appeal is not available to this Court. All I have are the reasons for judgment of the Federal Magistrate and the Notice of Appeal. I do not have the transcript or the documents that were before the Federal Magistrate, and I do not have the benefit of extensive written summaries of argument. Thus, I am not able to assess the merits of the appeal in any depth and I certainly cannot be definitive as to the prospects of success.
In these circumstances, the only question for me is whether there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success then that is enough. In that regard this exercise is somewhat similar to the exercise required in determining an application for summary dismissal, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail then subject to where the justice of the case lies, the appeal should be allowed to proceed.
During the hearing counsel for the applicants not only took me through the grounds of appeal in the original Notice of Appeal, but also the further grounds of appeal in the proposed Amended Notice of Appeal. I observe that two of those further grounds are nothing more than statements of an intention to seek leave to adduce further evidence to then provide a basis for a ground of appeal. Thus, I can safely ignore these so called grounds. As to the balance I am not persuaded on the limited information that I have that any of the grounds of appeal or the further proposed grounds of appeal have much if any prospects of success, save and except for Ground 1.
The principal complaint on appeal centres around her Honour’s treatment of a property owned by a company which is the trustee of a Family Trust. The husband is the sole director and shareholder of the trustee company, and her Honour determined that the property should be part of the asset pool to be distributed between the husband and the wife.
Ground 1 of both the Notice of Appeal and the proposed Amended Notice of Appeal reads as follows:
1.The trust property of the [K] Family Trust and in particular the property at [C] was not property in relation to the parties to the marriage or either of them or property of the parties to the marriage or either of them within the meaning of s 4 or Part VIII of the Family Law Act 1975 and in consequence the Court below had no power to make orders affecting that property or any proceeds of sale thereof.
It is said that her Honour failed to properly apply the principles emanating from the High Court case of Kennon v Spry (2008) 238 CLR 366, and/or that her Honour failed to explain adequately or at all the basis on which she found that this property could be treated as the property of the husband. For example, there was no apparent claim nor any finding by her Honour that the trustee company and therefore the Family Trust was the alter-ego of the husband.
On a plain reading of her Honour’s reasons for judgment I consider that this ground does raise an arguable case on appeal, and that is all that is required at this stage. It may well be that if the appeal is reinstated and agitated fully on its merits, that this ground proves to be without merit, but that is not a call which this Court can make on the evidence before it at the moment.
The consequences of the granting or refusal of the application
If the application is granted, the appeal will be reinstated and the respondent will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the respondent given that currently the appeal is deemed abandoned and the respondent has therefore been able to ignore the same. Although it has not been formally dismissed, it will not be listed for hearing in the way that appeals usually are.
If the application is refused, then the applicants will not be able to pursue their appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case. In any event though this is a serious consequence for the applicants if their application is refused.
Conclusion
As the authorities recognise, the Court’s consideration of the relevant factors here informs the Court in determining the fundamental issue, namely where the justice of the case lies. Despite there being an unacceptable explanation for the failure to comply with the Rules and file a draft appeal index within time, it is apparent that there is an arguable case on appeal, and there would be serious consequences for the applicants if the appeal is not reinstated. It also has to be remembered that there is a material distinction between a party who totally fails to appeal within time, and a party, who having appealed within time, fails by a very short time to comply with a provision of the Rules with respect to the filing of a document. There is also another factor to take into account here which I have not mentioned yet but which was the subject of comment during the hearing of this application, namely, in the absence of a stay, there has been a complete failure by the applicants to comply with the orders made by the Federal Magistrate as to the sale of the properties.
In any event, weighing up all of these factors it seems to me that the interests of justice require that the application be granted, and that is what I propose to do. The most significant factor in my view is that if the application is refused the applicants in reality will not be able to pursue what appears to be an arguable case on appeal.
Costs
At the conclusion of the hearing I sought submissions as to costs.
The counsel for the respondent sought an order for costs regardless of the result with such costs being fixed in the sum of $2,000. It was submitted that the sole reason for the hearing was the failure by the applicants to comply with the timeframe required by the Rules and even if successful in the application to reinstate the appeal the applicants should have to bear the costs of that application.
Counsel for the applicants opposed any order for costs on the basis that the respondent could have agreed to the reinstatement.
In the words of s 117(2) of the Act, I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the applicants to comply with the Rules, and of course I have found that they have provided an unacceptable explanation for that failure. In the circumstances, the respondent was entirely justified in opposing the application and she should have her costs. Applications such as these necessarily seek an indulgence from the Court in circumstances where the need for the application results from the conduct of the applicant.
In terms of the amount sought by the respondent, I consider the same to be reasonable in the circumstances, and indeed Mr Hines did not seek to challenge that amount.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
2 February 2012.
Associate:
Date: 2 February 2012
0
8
2