LEDARN & LEDARN
[2015] FamCAFC 220
•18 November 2015
FAMILY COURT OF AUSTRALIA
| LEDARN & LEDARN | [2015] FamCAFC 220 |
| FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Where notice was given to the appellant – Where the appellant filed the appeal books late and has since failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 – Where the appellant sought an extension of time to file the summary of argument – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth) r 22.45
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
| APPELLANT: | Ms Ledarn |
| RESPONDENT: | Mr Ledarn |
| FILE NUMBER: | MLC | 6423 | of | 2010 |
| APPEAL NUMBER: | SOA | 77 | of | 2013 |
| DATE DELIVERED: | 18 November 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Bennett JJ |
| HEARING DATE: | 13 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 November 2013 |
| LOWER COURT MNC: | [2013] FamCA 858 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Matta |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Mawson QC with Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | Aughtersons Solicitors |
Orders
The appeal be dismissed for want of prosecution pursuant to the provisions of r 22.45 of the Family Law Rules 2004 (Cth).
Any application for costs by the Appellant or evidence and submissions to be relied upon in support of that application or an opposition to the Respondent’s application for costs are to be filed and served within 28 days of the date of this judgment.
Any response to that material is to be filed and served within 28 days thereafter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ledarn & Ledarn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 77 of 2013
File Number: MLC 6423 of 2010
| Ms Ledarn |
Appellant
And
| Mr Ledarn |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed before the court on 13 October 2015 for consideration of whether the appeal should be dismissed for want of prosecution. Ms Ledarn (“the appellant”) was ordered by the Appeals Registrar to file a summary of argument by 26 September 2014. No summary has yet been filed. Counsel appeared for the appellant on 13 October 2015 and sought an extension of time of four weeks from that date to file the summary.
The issue before the court therefore, is whether the appeal should be dismissed for want of prosecution or whether the proposed extension of time should be granted.
The appeal is from property proceedings between the appellant and Mr Ledarn (“the respondent”).
On 1 November 2013 Cronin J made the following orders:
1.That the wife retain to the exclusion of the husband, the business known as the [Ledarn] Group.
2.That the husband and wife sign all necessary documents to give effect to these orders.
3.That the assets of the parties as defined in paragraph 115 of the reasons for judgment this day be divided as to the husband 57.4 percentage and as to the wife, 42.6 percentage.
4.That the parties draw the minutes necessary to give effect to these orders.
As is obvious, the parties needed to prepare further orders to implement those made on 1 November 2013.
On 29 November 2013 the appellant filed her Notice of Appeal. A procedural hearing was held by the Appeals Registrar on 26 February 2014 and the appellant was required to file her appeal books by 24 April 2014 and her summary of argument by 9 May 2014.
The order for the filing of the appeal books was not complied with until 14 May 2014.
On 13 August 2014, the Appeals Registrar wrote to the parties about an anticipated listing before the Full Court. In order to be listed in the proposed sittings the appellant was required to file a summary of argument and a list of authorities by 26 September 2014. The letter also informed the appellant that, in the event she did not file those documents by the due date, the appeal may be listed in the November 2014 sittings of the Full Court for the court to consider dismissal of the appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
The appellant filed neither the summary of argument nor the list of authorities.
On 11 September 2014, however, the solicitors for the appellant wrote to the Appeals Registrar. In order to understand the content of that letter it is necessary to record that, at that time, the parties were still arguing over the appropriate form of the implementation orders envisaged by the orders of the trial judge of 1 November 2013.
The letter included the following:
…In all the circumstances we have advised our client that it is premature to proceed with a Summary of Argument or the appeal generally unless and until Justice Cronin has dealt with all outstanding issues and made final orders in accordance with his Judgment.
We advise that Justice Cronin’s Associate will be provided with the Minute of Common Orders and the parties’ respective submissions by early next week. We do not know how long His Honour will need to make findings and a determination in respect of extant issues.
Our client still wishes to pursue the appeal but in all of the circumstances cannot realistically do so until His Honour makes a final determination on all issues.
We acknowledge that the matter is unlikely to be listed in the November sittings of the Full Court but request that having regard to the above the case is not listed for consideration of dismissal pursuant Rule 22.45 of the Family Law Rules.
We are otherwise in your hands as to how the matter ought to proceed on a procedural basis.
We pause to observe that there are at least two difficulties with this letter. First, if the appeal could not proceed until the final implementation orders were made, then it may be that the appeal was premature. On the other hand, if the intention was to appeal against the percentage distribution of the property (which seems to be the focus of the Notice of Appeal) then it would be useful for the appeal to be heard and determined prior to the implementation orders being made. This is because it is likely that if a different percentage division of the property was the ultimate outcome of any appeal or re-hearing, then presumably, different implementation orders would be needed.
The second difficulty is that the letter entirely ignores the fact that the appellant was then in breach of two directions of the Registrar. The appellant did not seek an extension of time in which to file her summary. It was for the appellant, and not the Registrar, either to seek a variation to her obligations or to comply with them.
On 14 October 2014 Cronin J delivered his reasons in relation to the implementation of his Honour’s earlier judgment.
On 17 October 2014 his Honour made orders to give effect to that judgment. Significant parts of those orders were by consent.
On 2 February 2015 the appellant’s lawyers wrote to the Appeals Registrar seeking an extension of time in which to file an appeal against Order 2 of Cronin J’s Orders made on 14 October 2014 and Orders 14, 16 and 30 of the Orders made on 17 October 2014. An Amended Notice of Appeal was enclosed with the letter. On the following day, 3 February 2015, the Registrar replied, returning the Amended Notice of Appeal to the appellant and informing her that if she wished to appeal against those orders, she was obliged to file an Application in an Appeal seeking an extension of time in which to file the Notice of Appeal and an affidavit in support.
The appellant made no such application.
Between 4 March 2015 and 8 October 2015 there were six hearings before Cronin J which were largely directed to the respondent, seeking enforcement of his Honour’s earlier orders. In addition, the appellant brought an application under s 79A seeking to vary the orders made by Cronin J on 17 October 2014. That application was filed on 29 July 2015. It was abandoned on 8 October 2015.
On 28 September 2015 the Appeals Registrar wrote to the parties informing them that the matter was listed before the Full Court in Melbourne on 13 October 2015 for the court to consider whether it should make an order for dismissal of the appeal pursuant to r 22.45 of the Rules.
On 9 October 2015 the appellant swore an affidavit which included the following:
17.Since the Trial Reasons for Judgment were delivered, the parties have been engaged in on going and protracted litigation on a myriad of issues. As a result, I have been required to attend countless conferences and meetings whilst also instructing my lawyers to prepare and attend hearings on:
(a) 16 January 2014;
(b) 6 February 2014;
(c) 9 July 2014;
(d) 22 September 2014;
(e) 13 January 2015;
(f) 4 March 2015;
(g) 18 March 2015;
(h) 31 July 2015;
(i) 14 August 2015;
(j) 25 September 2015;
(k) 7 October 2015; and
(l) 8 October 2015.
18.As a result of the various interim applications, I have had no option but to channel any funds available to me to pay for legal and accounting fees associated with the interim hearings. At the same time, I have been attending to the day-to-day running of my business which has suffered a downturn in production and decreased profits since one of its key … suppliers was placed into liquidation earlier this year.
19.I estimate that I have expended approximately $2,000,000.00 to date in professional fees in this matter including legal and accounting fees. The business which I have retained as part of the Final Orders is my main source of income. The cost of all of the interim applications has been significant and I estimate that I have spent half of the total $2,000,000.00 on legal and accounting fees since the Final Orders were made. The cost of litigating the interim applications, implementing the Final Orders and the stresses of keeping my business afloat had made it difficult to place my solicitors in funds to proceed with the preparation of my summary of argument and list of authorities.
(Original emphasis)
We observe that the affidavit does not state why the appellant was not in a position to divert a relatively small part of the $1 million spent on legal fees since the time of judgment towards the preparation of the summary of argument.
Rule 22.45 permits the court, on the giving of a required notice, to dismiss an appeal for want of prosecution. The rule provides:
22.45 Dismissal of appeal and applications for non‑compliance or delay
(1)This rule applies if:
(a)the appeal is not taken to have been abandoned; and
(b)a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
i) dismiss the appeal or application; or
ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
It can be seen that the procedural steps required by r 22.45(2) and (3) have been met by the Registrar.
The principles which apply to an application for an extension of time are well known. In Gallo v Dawson (1990) 93 ALR 479 at 480 – 481, McHugh J said:
…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 the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
It is important to observe that those remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless they are pertinent to this matter.
In Jackamarra v Krakouer and Anor (1998) 195 CLR 516, Brennan CJ and McHugh J said:
4.These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question — should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
…
7.Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. 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. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
(Footnotes omitted)
Two things may be drawn from the above. The first is that, generally speaking, an appeal lodged within time should proceed to a hearing. However, if there is gross delay in prosecuting the appeal, as here, it may be dismissed for want of prosecution.
The appellant has been in breach of an order to file a summary of argument since 9 May 2014. We do not accept that the appellant “had no option but to channel any funds available to me to pay for legal and accounting fees associated with the interim hearings” for two reasons. The interim hearings referred to by the appellant were concerned with the implementation, enforcement and setting aside of the orders of 1 November 2013. If the 1 November 2013 orders became subject to review or re-hearing following a successful appeal, then the interim steps just described would have been unnecessary. In those circumstances one would have thought that the priority would have been the prompt prosecution of the appeal rather than the reverse. Significantly, the appellant did not seek a stay of the proceedings before Cronin J to enable her to prosecute the appeal or expedition of the appeal itself.
Secondly, as we have already observed, the marginal cost of the preparation of the summary of argument would be but a small part of the $1 million spent on the interim hearings. No explanation was proffered as to why those interim applications needed to be made or had priority over the appeal.
We are not satisfied that the appellant has explained her failure to comply with the orders of the Registrar to file a summary of argument. There has been a complete failure to comply with the Registrar’s orders and a complete lack of any attempt by the appellant, other than a desultory letter written to the Registrar, to remedy her breach by seeking, for example, an extension of time.
It is apparent from the above that the appellant has been given many opportunities and an extraordinary amount of time to file her Summary of Argument.
We accept that there will be a prejudice to the appellant if her appeal is dismissed because she will lose the benefit of what we assume will be an appeal that is not devoid of merit.
This prejudice, however, must be weighed against the prejudice to the respondent. The respondent has been engaged in the same number of hearings as the appellant since judgment was delivered. All of those hearings relate to the implementation, enforcement and setting aside of the orders of 1 November 2013. If those orders were to be to be set aside, then a large part, if not almost all of those expenses, and importantly time, would have been wasted. Those wasted proceedings have, however substantially contributed to the delay of the hearing of the appeal which the respondent is as entitled to have heard as soon as it can be in the ordinary course of events. That is, of itself a significant prejudice.
Finally we refer to the public interest in appeals being dealt with promptly by litigants. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [98]:
…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.
These considerations justify bringing this appeal to an end at this stage.
There is another aspect to the public interest. It appears to us that the appellant has taken the stance that she would prefer, for whatever reason, to pursue the interim applications before the trial judge rather than pursue the appeal. Now that she has run that course she deigns to pursue the appeal. That is not a course that should be condoned by the court. In Aon Risk Services at [30], French CJ said:
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, JL Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
(Emphasis added)
We have already indicated that we are satisfied that the procedural steps required under r 22.45 have been taken. We are not satisfied that it is appropriate to grant an extension of time to the appellant to file her summary of argument. On the contrary we are satisfied it is appropriate that the appeal be dismissed for want of prosecution pursuant to the provisions of r 22.45.
Costs
The respondent sought an order that, in the event the appeal was dismissed, that the appellant pay the respondent’s costs of and incidental to the appeal. There seems to us to be force in the position of the respondent. However, we have not heard the appellant on that issue. If she wishes to oppose that order any submissions and evidence in support should be filed within 28 days of the date of judgment with the other party having 28 days to respond in like manner.
The costs will be determined on the basis of those submissions.
If no such application is received, the costs order will be as foreshadowed and will be made at the end of 28 days if no application is received.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Bennett JJ) delivered on 18 November 2015.
Associate:
Date: 18 November 2015
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