Leigh and Child Support Agency & Anor
[2012] FamCAFC 152
•29 August 2012
FAMILY COURT OF AUSTRALIA
| LEIGH & CHILD SUPPORT AGENCY AND ANOR | [2012] FamCAFC 152 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks to extend the time for him to file Notices of Appeal against previous orders made by the Federal Magistrate – where the applicant does not appreciate what the appeal process is about and what he can and cannot do – where the applicant complains that the first respondent has miscalculated what he owes, that they have failed to take into account a number of relevant matters and as a result it has cost him a good deal of money and affected his health and wellbeing – where the applicant has filed voluminous documentation which is of no relevance to the orders sought – where there are only two of the five orders in respect of which the applicant is able to seek an extension of time to file a Notice of Appeal – where there is no adequate explanation for the failure of the applicant to comply with the timeframe for the filing of a Notice of Appeal – where there is no merit in the proposed appeals – where the interests of justice require that the application be refused – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – COSTS – where the first respondent seeks that the applicant pay costs as agreed and in default of agreement as assessed – where the applicant opposes the application – where the applicant says that he is in a difficult financial situation – where the conduct of the applicant in presenting his case is highly relevant – where the applicant has been wholly unsuccessful in the proceedings – where there are circumstances here which justify an order for costs being made – costs ordered as sought by the first respondent. |
| Family Law Act 1975 (Cth) ss 117(1), (2), (2A) Family Law Rules 2004 (Cth) |
| GallovDawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Leigh |
| FIRST RESPONDENT: | Child Support Agency |
| SECOND RESPONDENT: | Ms Watson |
| FILE NUMBER: | SOA | 54 | of | 2012 |
| APPEAL NUMBER: | HBC | 431 | of | 2007 |
| DATE DELIVERED: | 29 August 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 August 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 November 2008 1 February 2010 |
| LOWER COURT MNC: | [2008] FMCAfam 1424 NA – no order made on this date [2011] FMCAfam 238 [2011] FMCAfam 1207 [2012] FMCAfam 693 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wilson |
SOLICITOR FOR THE FIRST RESPONDENT: | Australian Government Solicitor |
COUNSEL FOR THE SECOND RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed on 9 July 2012 be dismissed.
The Applicant pay the costs of the first Respondent of and incidental to that Application such costs to be as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leigh & Child Support Agency and Anor 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 ADELAIDE |
Appeal Number: HBC 431 of 2007
File Number: SOA 54 of 2012
| Mr Leigh |
Applicant
And
| Child Support Agency |
First Respondent
| Ms Watson |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 9 July 2012 by the father in these proceedings. In the application, Mr Leigh seeks a number of orders. The first order reads:
I seek leave of all previous orders of Federal Magistrate Roberts.
I have treated that as an application by Mr Leigh to extend the time for him to file Notices of Appeal against previous orders made by Roberts FM.
At the commencement of the hearing today I confirmed that that was the case with Mr Leigh. Mr Wilson, who appears for the Child Support Registrar, has filed written submissions which I will come to later in these reasons, but it is apparent from those submissions that that is how Mr Wilson has approached this matter as well.
In relation to the other orders sought in the application, I have indicated to
Mr Leigh that they are orders that I am not able to make, and I propose to dismiss them in due course.
It is obvious from all that I have read in this matter, and there has been quite a deal of material filed by Mr Leigh, that Mr Leigh simply does not appreciate or understand what this is all about and what he can and cannot do.
Mr Leigh wants to appeal against a number of orders made by the Federal Magistrate. He is out of time in relation to those orders and he requires extensions of time. However, the material that he has presented in support of his application ranges far and wide and well beyond the issues that are relevant to an extension of time application. He has repeated a particular mantra in the material that is before me today, and recalling the material that was before me for the purposes of the previous hearing that I conducted in 2011, that material contained the same mantra. My summary of that mantra is that he complains bitterly about the actions of the Child Support Agency over many years. His complaint is that they have got their calculations wrong, they have failed to take into account a number of relevant matters and, as a result, it has cost him a good deal of money and affected his health and his wellbeing. Despite unsuccessfully raising these matters in the past he has persisted in seeking orders to remedy those complaints, and that is demonstrated by the further orders that he seeks in the application before me today. For example, in order 5 he seeks damages from the Child Support Agency for undue pain and suffering, depression and stress incurred by him over the last four years.
Mr Leigh is appearing for himself and he has done so, at least upon my reading of the material before me, in the hearings that he has conducted before the Federal Magistrate. However, what concerns me is that he has had, it seems, the assistance of a legal practitioner. Mr Pearce appeared before me in the matter that I dealt with last year, and today Mr Pearce is sitting next to
Mr Leigh and he announced his presence at the start of this case and indicated that he was there to assist him. Yet despite this assistance Mr Leigh has continued to file the material that he has. Not only did he file a lengthy affidavit in support of his application of 9 July 2012, which is the application before me, but on 3 August 2012 he filed a further lengthy affidavit which is literally two inches thick, and much of that voluminous material is irrelevant for the purposes of determining an application for an extension of time.
That said I turn to the application for extensions of time.
The application is supported by two affidavits and a draft Notice of Appeal filed on 9 July 2012. The application is opposed by the Child Support Registrar. The mother, who is in effect a respondent to this application as well as a respondent to the appeals that Mr Leigh wishes to pursue, has not appeared today and nor has she made any submissions in relation to this application.
Mr Wilson has provided the court with extensive written submissions. They were only received yesterday, however, they have proven to be very helpful. They have focussed Mr Leigh’s comments, in the sense that Mr Leigh, as part of his submissions today, has taken me through those submissions of
Mr Wilson and provided his response.
The orders that Mr Leigh is seeking to appeal against are set out in his draft Notice of Appeal and they are orders made by Roberts FM on 21 May 2012,
15 November 2011, 1 February 2010, 10 February 2011 and 14 November 2008.
Addressing each of those orders in turn.
In relation to the order of 14 November 2008, Mr Leigh in fact filed a Notice of Appeal against those orders and that appeal was ultimately dismissed by consent on 3 April 2009. Clearly, in those circumstances, there can be no further appeal to the Full Court of the Family Court against those orders. Thus, any application for an extension of time to now file a further Notice of Appeal against those orders is utterly misconceived and ill-founded, and for that reason alone I propose to dismiss the application in relation to that order.
The next order chronologically in respect of which Mr Leigh seeks an extension of time to appeal is the order of 1 February 2010. The immediate problem with that is that it is apparent that there was no such order made. I have had my associate check the court’s computer system and to repeat, no order appears to have been made. Mr Wilson has also been unable to locate any order of that date.
I observe that Mr Leigh, although he set out and provided copies of all of the other orders as part of his affidavit material, has not included any order of that date and he is not able to tell me anything further about that. Thus, I proceed on the basis that there is no order of 1 February 2010 and, for that reason alone, I propose to dismiss that application. However, out of abundant caution, I will make some further remarks about this later in these reasons.
The next order, again taking them chronologically, is the order of 10 February 2011. The problem with that order for Mr Leigh is that Mr Leigh filed a Notice of Appeal against it, and that Notice of Appeal came before me and is the matter that I referred to earlier that I heard in 2011. On 13 May 2011 I dealt with that Notice of Appeal and I dismissed it. I dismissed it because I found that an appeal was inappropriate in the circumstances, and given the complaints that Mr Leigh had about the order, the appropriate course was for him to make an application to the Federal Magistrate to set it aside.
Thus again, for Mr Leigh to now seek an extension of time to appeal against the order of 10 February 2011 is totally misconceived. It is impossible for him to now seek to appeal against that order by way of lodging a further Notice of Appeal. Accordingly, I propose to also dismiss his application for an extension of time to file a Notice of Appeal against that order.
Next is the order of 15 November 2011. As I have said, in relation to the order of 10 February 2011, I found that the appropriate course for Mr Leigh was to make an application to the Federal Magistrate to set aside that order. Mr Leigh in fact did that, and the orders of 15 November 2011 are the orders of the Federal Magistrate where his Honour again dealt with the application that was before him and which he had dismissed on 10 February 2011. What
his Honour did on 15 November 2011 was to set aside his earlier order and proceed to hear and determine the application of Mr Leigh, and he then made certain orders which, although not providing Mr Leigh with all that he wanted, went some way towards that result.
In any event, Mr Leigh did not file a Notice of Appeal against that order within the time period provided in the Rules namely, 28 days. Thus, legitimately, at least at first blush, Mr Leigh is able to pursue an application seeking an extension of time to file an appeal against those orders.
Next and finally is the order of 21 May 2012. Now, Mr Leigh, as is apparent, and as he has conceded, failed to file a Notice of Appeal against those orders of Roberts FM within the 28 day time period allowed, and again, at least at first blush, he is able to seek an extension of time to now file a Notice of Appeal.
In summary then, the only orders in respect of which Mr Leigh is able to seek an extension of time to file a Notice of Appeal are the orders of
15 November 2011 and 21 May 2012.
Relevant statute law and rules
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Applicable principles
The law in relation to applications for extension of time is well settled. In these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what 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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, 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, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Discussion
I turn now to the discussion of the factors that are relevant in this case in determining where the justice of the case might lie.
Adequate explanation
In his affidavit filed on 9 July 2012 Mr Leigh addresses the issue of delay in respect of his failure to file a Notice of Appeal against the orders made by Roberts FM on 21 May 2012. In paragraph 2 he said this:
I previously lodged a Notice of Appeal to the Southern Regional Appeal Registry on 20 June 2012, I mistakenly believed the date for this Application to be submitted by was 21 June 2012 when in fact the date was 18 June 2012. I apologize sincerely for this error. I ask the Court to please assess the merits of my proposed appeal by this affidavit.
This is clearly an inadequate explanation. For example he fails to explain why he could not file his Notice of Appeal within say seven days or within 14 days or within 21 days of the making of the order which he seeks to appeal. A time limit is just that, it gives the outer limit within which you are able to file your Notice of Appeal.
Further, there is no explanation why it took Mr Leigh until 9 July 2012 to file his application for an extension of time.
I move then to Mr Leigh’s application for an extension of time to appeal against the orders of 15 November 2011. However, Mr Leigh says absolutely nothing in his affidavit material which would explain his failure to file a Notice of Appeal within the 28 day period allowed under the Rules. Thus there is no basis on which to allow the application.
I refer also to the alleged order of 1 February 2010. Again, Mr Leigh, despite promoting that there was an order made on that day, has said absolutely nothing in his affidavit about why he failed to file a Notice of Appeal within the period of time allowed under the Rules in relation to that order. Thus, similarly there is no basis on which to allow the application.
The merits of the appeal
Mr Leigh tells me that the grounds of appeal set out in his draft Notice of Appeal filed on 9 July 2012, and of which there are four, relate to all of the orders that he seeks to appeal against. Thus they relate to the two orders in respect of which I have found he can pursue an extension of time to appeal. The grounds are as follows:
1.I claim a serious miscarriage of justice will occur to me if I am unable to have submissions and applications heard.
2.CSA have provided purgerous (sic) information to the FLC which I believe they are in contempt of court they have provided incorrect financial statements of my debt and not included one of my children in their calculations.
3.Magistrate Roberts has accepted information and figures from CSA even though I have presented evidence to show the discrepancies in CSA applications to which he dismisses my cases and applications.
4.My health and financial position has suffered greatly in my defence to try and prove mistake by CSA.
First then, there is the order of 15 November 2011. That order, to repeat, was made on the application of Mr Leigh that was before his Honour initially on
10 February 2011, but which his Honour dismissed on that date. His Honour set aside the order dismissing that application and he then heard and determined it on 15 November 2011. What his Honour did was in fact to make a departure order in favour of Mr Leigh, and that is order 2 of the orders made on that day. Mr Leigh still complains though, that the Federal Magistrate dismissed his application for other orders.
The Federal Magistrate delivered reasons for judgment on 15 November 2011 and I have read those reasons for judgment. Usually it is not possible for me to be definitive in assessing the merits of an appeal when hearing applications like this. The only documentation I have are the reasons for judgment of the trial judge, and the Notice of Appeal, or in this case, the draft Notice of Appeal sought to be filed by Mr Leigh. I do not have the full range of documentation that would be before a Full Court if a Full Court was hearing the appeal. For example, I do not have the benefit of the transcript of the hearing before the trial judge, or all of the documents that were before the trial judge and any summaries of arguments from the parties.
However, in this case I consider that I have sufficient information to be definitive about assessing the merits of the appeal, and particularly because of my involvement in determining the appeal against his Honour’s dismissal of the application on 10 February 2011.
The first point to emphasise is that I can make no sense of any of the grounds of appeal insofar as those grounds of appeal suggest any error by the Federal Magistrate in making the orders that he did on 15 November 2011. There is simply no correlation between the grounds of appeal and what his Honour did on that day. Having read his Honour’s reasons for judgment, considered the grounds of appeal, and drawn upon my knowledge of this particular application, in my view there is no merit in any of the grounds of appeal insofar as they attempt to challenge the orders made by Roberts FM on 15 November 2011.
Secondly, there is absolutely nothing deposed to in the affidavit material relied upon by Mr Leigh which would alter my view about the merits of the proposed appeal against the orders of 15 November 2011.
Next there are the most recent orders, namely, the orders of 21 May 2012.
Again, as Mr Leigh has indicated, the same grounds of appeal also relate to these orders. Again, I observe that although usually I would have some difficulty in being definitive in assessing the merits of an appeal because of the lack of complete documentation before me, I consider that I have sufficient information to undertake that task.
I have read his Honour’s reasons for judgment in support of the orders that he made, and in summary there were two applications before him; an application filed on 23 January 2012 in which Mr Leigh sought departure orders and leave for the Registrar to vary assessments, and an application filed on 26 April 2012 in relation to various costs orders made in the past against Mr Leigh and seeking costs against the Agency.
His Honour, in relation to the application seeking departure orders and leave, dismissed the application because he found that Mr Leigh was estopped from bringing that application. His Honour also dismissed the other application.
When I look at the grounds of appeal relied on to challenge the orders made, I can find nothing that addresses the reasons given by his Honour for dismissing the application and making the orders that he did on 21 May 2012. Equally, there is absolutely nothing in the affidavit material filed by Mr Leigh which addresses, identifies, or demonstrates any error by the Federal Magistrate in the orders that he made, by reference to the reasons that his Honour delivered in support of those orders.
Once again, there is absolutely no correlation between the grounds of appeal and the orders made on 21 May 2012, including by reference to the reasons given on that day.
Thus, in my view, there is no merit to be found in the proposed appeal by
Mr Leigh against the orders of Roberts FM on 21 May 2012.
Pausing there, and out of abundant caution, I refer again to the alleged order of
1 February 2010.
As I have said, there is no evidence of any order being made on that date.
Mr Leigh tells me that his recollection of it was that it was an order dismissing an application of his. Be that as it may, the problem Mr Leigh has is the same as with the other orders that he seeks to appeal against, and that is that nowhere in his affidavit does he address that alleged order in the context of his grounds of appeal. Thus, although I am obviously under some difficulty in relation to that alleged order because, for my part, no order was made, the difficulty in allowing an extension of time is that there is no basis for finding any merit in the grounds of appeal.
The consequences of granting or refusing the application
If the application is refused then Mr Leigh will not be able to pursue his proposed appeals. 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, but that is a difficult exercise and may not, of course, be warranted in this case. In any event though, the fact that
Mr Leigh will not be able to pursue his appeals if the application is refused is a serious consequence which I need to take into account.
On the other hand, if the application is granted then the appeals will proceed and not only the Child Support Registrar, but also the mother, would need to deal with those appeals. They would need to spend time in responding appropriately to the appeals, and there would of course be cost consequences. Thus, this is an obvious prejudice to the respondents given that currently there is no appeal on foot and they have been able to proceed on that basis.
Other factors that are mentioned in the authorities such as, for example, the history of the proceedings, the conduct the parties and the nature of the litigation, do not loom large in this case and, indeed, Mr Leigh did not address me on any of those factors, and nor did Mr Wilson.
Conclusion
As the authorities recognise, and as I have referred to, 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. Here, there is an inadequate explanation by Mr Leigh for the failure to comply with the Rules in relation to his proposed appeal against the orders made on 21 May 2012. There is no explanation whatsoever for his failure to comply with the Rules in relation to his proposed appeal against the orders made on 15 November 2011 nor, if I need to say it, is there any explanation of his failure to comply with the Rules to file a Notice of Appeal within time against the alleged order made on
1 February 2010.
Next, I have determined that there are no merits in the proposed appeals against the orders of 21 May 2012 or 15 November 2011 or, again, if I need to say it, any order that might have been made on 1 February 2010. Thus, the only factor which falls in favour of granting the application is the consequences of a refusal of the application. In my view though, that cannot outweigh the significance of the other factors, and this is a case where the interests of justice demand that the application be refused, and that is the order that I propose to make.
Costs
I now have before me an application for costs by the Child Support Registrar. Unfortunately, Mr Wilson is unable to provide an amount of costs that his client seeks. Thus, the order that he seeks is that the applicant pay the respondent’s costs as agreed and in default of agreement, as assessed.
That application is opposed by the applicant.
As with any application for costs, this application is governed by s 117 of the Act and in particular ss (1), (2) and (2A):
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
What is apparent from s 117(1) is that the primary position is that each party should bear their own costs. However, if there are circumstances that justify an order for costs then an order can be made, and in considering that issue and the amount to be ordered, the factors in s 117(2A) are to be addressed.
The first relevant factor is the financial circumstances of the parties. Mr Leigh has indicated that he relies very much on that in opposing the application. He says that he is in a difficult position. His income is only about $250 per week. He concedes that he has assets namely, real estate, but he says that he uses those assets to meet his ongoing expenses and his commitments to his children particularly by way of child support.
Plainly I do not need to concern myself with the financial circumstances of the Child Support Registrar and the focus, in this regard is on the financial circumstances of the applicant.
Next I observe that paragraph (b) of s 117(2A) is not relevant; neither party is on legal aid.
In relation to paragraph (c) of s 117(2A), the conduct of Mr Leigh in how he has presented his case is highly relevant. The filing by Mr Leigh of a substantial amount of documentation, much of which is irrelevant and unnecessary, inevitably has increased the costs of these proceedings. Once filed, any document has to be considered and addressed by the other party and that has been the case here. The Child Support Registrar cannot simply ignore the documentation filed by Mr Leigh. The Child Support Registrar has had to consider it and address what is relevant, albeit, that turned out to be limited.
With paragraph (d) of s 117(2A) there is nothing of relevance that needs to be referred to.
As to the next factor, namely paragraph (e) of s 117(2A), the Child Support Registrar relies heavily on this factor given that Mr Leigh has been wholly unsuccessful in the proceedings.
Paragraph (f) of s 117(2A) is not relevant, and is not relied on by either party.
With the final paragraph, there are a number of matters that Mr Wilson has referred to and with which I am in agreement in terms of their relevance.
This was an application which was totally misconceived and ill-founded. As I have pointed out in my reasons for judgment, there was no basis for seeking an extension of time to appeal against the orders of 14 November 2008 and the order of 10 February 2011, given that there had already been appeals lodged against those orders. There was then the alleged order of 1 February 2010, in respect of which it has not been demonstrated to me that there was any order made that day.
As I have also expressed, the grounds of appeal in the draft Notice of Appeal filed by Mr Leigh are not only unclear but do not demonstrate any appealable error on the part of the Federal Magistrate when they are lined up against the orders made by the Federal Magistrate and the reasons for judgment delivered by him in support of those particular orders.
Then there were the other orders sought in the application which could not be made.
I find that there are clearly circumstances in this case which justify an order for costs.
In terms of the financial circumstances of Mr Leigh, this court has often held that impecuniosity is not a bar to the making of an order for costs. In this case, though, Mr Leigh is not impecunious. He has real estate and it has been pointed out there is a charge over that real estate but only in relation to a particular matter. I find that Mr Leigh’s financial circumstances certainly do not require me to find that an order for costs should not be made. There should be and must be an order for costs in this case.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 29 August 2012.
Associate:
Date: 18 September 2012
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