Leong and Ming
[2017] FamCAFC 272
•9 August 2017
FAMILY COURT OF AUSTRALIA
| LEONG & MING | [2017] FamCAFC 272 |
| FAMILY LAW – APPLICATION IN AN APPEAL – extension of time – where the primary judge failed to include certain liabilities of the parties – where this amounted to a substantial issue to be raised on appeal – where there is potential for substantial injustice if the errors are substantiated – where an extension of time to file a Notice of Appeal was granted – no order for costs. |
| Family Law Act 1975 (Cth) ss 94(2D)(e), 117(1) Family Law Rules 2004 (Cth) rr 1.14 |
| Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131 Bant & Clayton [2014] FamCAFC 108 Gallo v Dawson (1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 |
| APPLICANT: | Mr Leong |
| RESPONDENT: | Ms Ming |
| FILE NUMBER: | CSC | 81 | of | 2014 |
| APPEAL NUMBER: | NA | 23 | of | 2017 |
| DATE DELIVERED: | 9 August 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 26 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 January 2017 |
| LOWER COURT MNC: | [2017] FCCA 65 |
REPRESENTATION
| THE APPLICANT: | In person (by telephone) |
| THE RESPONDENT: | In person (by telephone) |
Orders
That the Application in an Appeal filed on 20 June 2017 for an extension of time to file a Notice of Appeal against the orders of Judge Coker made on 19 January 2017 be granted.
That the time in which the husband may file a Notice of Appeal against the orders of Judge Coker made on 19 January 2017 be extended to 4:00pm on Friday 25 August 2017.
That the husband shall file and serve any Notice of Appeal upon which he seeks to rely on or before 4:00pm on Friday 25 August 2017.
That upon the filing of the Notice of Appeal pursuant to Order (3), the Appeals Registrar is requested to appoint a time for the settling of an appeal index and to make all such further directions as might be required.
That each party bear his or her own costs of and incidental to the hearing of the Application in an 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 Leong & Ming 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 23 of 2017
File Number: CSC 81 of 2014
| Mr Leong |
Applicant
And
| Ms Ming |
Respondent
REASONS FOR JUDGMENT
On 20 June 2017 Mr Leong filed an Application in an Appeal seeking an extension of time within which to file a Notice of Appeal. The intended appeal was against final property orders made by Judge Coker on 19 January 2017. The application foreshadows the bringing of an application to adduce further evidence in the appeal, although the basis is unclear.
The mooted Notice of Appeal is filed some four months out of time. Ms Ming opposes the extension of time.
Pursuant to s 94(2D)(e) of the Family Law Act 1975 (Cth) (“the Act”), an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division. The power to extend time is provided for in rr 1.14(1) to (3) of the Family Law Rules 2004 (Cth) (“the Rules”).
Both parties are self-represented and English is their second language.
Application for Extension of Time
Legal Principles
It is well settled that the principles governing an application for an extension of time to file a Notice of Appeal emanate from what was said by McHugh J in Gallo v Dawson[1]. In Joshua v Joshua[2] Lindenmayer J stated that, when considering such an application:
… the first and most important question to be determined … is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. …
[1](1990) 93 ALR 479, 480.
[2](1997) FLC 92-767 at 84,440; See also, Bant & Clayton [2014] FamCAFC 108, [10] – [11].
Notably however, “the fundamental issue in this application is whether [granting the application will enable the court] to do justice between the parties”. Such considerations, as outlined by Lindenmayer J, are “not to be treated as legislative directions” and ultimately it is a matter for judicial discretion.[3]
[3]Bant & Clayton, above, [10] – [11]; See also, Tormsen and Tormsen (1993) FLC 92-392, 80,017-8.
Is there a Substantial Issue to be raised on Appeal?
Again observing that the husband represents himself and prepared his own material the proposed Notice of Appeal (attached to the husband’s application) is pleaded in two parts. The first pertains to the heading “Leave to Appeal” and the second to “Grounds of appeal”. Leave to appeal is not required for an appeal against a final order for settlement of property made by the Federal Circuit Court of Australia. It is appropriate to take what is pleaded in each of those two parts as grounds upon which the husband would rely if he was granted an extension of time.
In broad summary, the husband contends that his Honour failed to take account of $80,000 in liabilities which exist on properties the subject of the orders made by his Honour. In particular, two of three properties subject to his Honour’s orders are to be transferred by the wife to the husband.
Related to that issue is an assertion by the husband that the trial judge failed to take account of the fact that one of the properties to be transferred to him is the subject of a caveat; that caveat in turn having been lodged by solicitors who assert they are owed legal fees by the wife. The legal fees subject to the caveat are included within the liabilities which the husband asserts the trial judge failed to take into account.
The amount said by the husband to have been “missed” by the trial judge is detailed as:
… the following liabilities on the three properties.
a.[the R] property: liability of A$7,516 legal fees (interest and capital could accrued to A$20,000 since it was issued) that the wife owned to her legal agent , which caused a caveat has been put on the [R] property, is missed.
b.[The C] property: liability of A$30,000 legal fees owned to [Queensland] Council caused by [the C] property balconey structure issue is missed. Liability of A$9,485 Council fee and liability of A$10,153 Body Corperate levy fee are also missed.
c.[The E] property: liability of A$12,236 Council fee is missed.
(Errors in original)
With reference to recognised forms of discretionary error, the husband’s three contentions are that the trial judge failed to take account of relevant considerations. It is said that the consequence is that his Honour’s assessment of a just and equitable settlement of property was based on a premise not sustained by reference to the evidence, namely property with a net value of $80,000 greater than it’s true net value. That is material in circumstances where his Honour found the property of the parties or either of them had a net value of $560,000.
Secondly, and to similar effect, the husband alleges that at least one of the orders made by his Honour cannot be carried into effect because of a caveat on the relevant property required to be transferred pursuant to the orders.
If other orders made by his Honour and his Honour’s reasons are such that an order requiring a party to remove a caveat was otherwise available and intended, that issue could be cured by “the slip rule”. However, the caveat is held by a third party and, in any event, the interest which it is said to protect pertains to a broader issue of a debt alleged to be owed by the wife. (It should be recorded that the wife asserts in argument before me that the sum the subject of the debt was paid to the husband for him to pay to the lawyers).
If each of those assumptions is made out, there is a strong prima facie foundation for discretionary error, and injustice resulting from that error. That, in turn, is strongly persuasive in the exercise of discretion.
A further question which arises in the context of this case, however, is whether and in what form evidence of what the husband now asserts was before the trial judge.
In that respect it is important to point out that the trial judge faced considerable difficulties by reason of the nature and volume of the evidence presented to him by each of the parties and its lack of coherence. His Honour, seeks to make clear in the reasons for judgment that this was not caused, or not predominantly caused, by the parties not having English as their first language (although that factor certainly exacerbated the confusion otherwise created).
Those problems were exacerbated by the fact that the material before his Honour was complicated by “preliminary skirmishes between the parties, including allegations by both that the other [had] failed to provide appropriate or accurate financial disclosure, in relation to the assets of the parties”.
His Honour observed that this of itself “led to deterioration in the relations between the parties and has even significantly affected issues with regard to possible negotiation of a property settlement”. The parties had, it seems, reached an agreement when the matter came before the court in North Queensland on 11 November 2016. At that time, what his Honour calls “follow-up material” had been filed. (I take that to mean material filed in contemplation of the trial as distinct from earlier material filed, in the “preliminary skirmishes” including before Judge Willis).
The husband “indicated that the reason for [the failure to file trial material] was that to his understanding, the matter had been settled and the parties were in agreement as to the way forward”. However the wife indicated that “in recent times, new evidence had arisen and that she was therefore not satisfied that she was fully apprised of circumstances relating to the financial situation of both of the parties” thereby effecting a breakdown of the proposed settlement.
The situation was complicated yet further before his Honour by what his Honour found to be the “escalating dispute and distrust between the husband and the wife” and his Honour’s conclusion that “both of the parties had acted less than appropriately when any disclosure was required and, quite frankly, there was little reliance that could be placed upon the evidence of either of the parties”.
As his Honour was at pains to point out, each and all of those matters placed him in the position of simply doing the best that he could by reference to evidence that was in many respects entirely irrelevant, confusing and incoherent. There can be little doubt that his Honour was, with respect, entirely correct when he said that “the determination of this matter remains enormously difficult” by reason of the factors just referred to.
With that qualification his Honour went on to find, relevant to the issues in this application:
49.The first step in the four-step process then with regard to any determination of what is an appropriate settlement is to assess, as best one can, the assets of the parties. There are enormous difficulties in that regard, but as best I can calculate, there are the interests in the properties at:
o[The E property] with a value of $250,000;
o[The R property], $155,000;
o[The C property], $65,000.
There are also, as best I can assess, liabilities attaching to the [R] property in Tasmania of approximately $34,500 and liabilities attaching to the [C] Street property of approximately $45,000.
50.Accordingly, the best available evidence would suggest that the totality of property has a net value of $390,500. There is little, if any, evidence which can be relied upon in relation to superannuation entitlements of the parties, however, it is clear that the husband has, at the very least, a financial resource available to him, which he suggests is in the vicinity of $170,000, though whether that was, an asset acquired post separation or in some way it came in to the control of the husband at separation but reflects property acquired during the relationship is unclear.
51.But, it does need to be considered, in relation to any assessment to be made and in the circumstances, as best I can assess on the limited information available, the assets of the parties, less liabilities that are able to be identified, therefore totals $560,000. There are no doubt chattels and personal items but no clear evidence is available and in the circumstances IU [sic] choose to disregard it in any calculation and will simply note that each party is to retain such property in their possession.
It can be seen that his Honour’s assessment of the net value of the three pieces of real property outlined by his Honour was $390,500. That sum took account of liabilities specified in respect of the Tasmanian property and the C property totalling $79,500. Thus, when arriving, at [51], at a value of the net assets of the parties of $560,000 the amount of liabilities taken up was $79,500.
The husband was unable to identify any material placed before his Honour by him for the purposes of the trial which would seek to challenge that finding. He says in that respect that the possible negotiation of property settlement and what his Honour identified as the husband having filed “no follow-up material” was the reason for that. He says that he assumed that material earlier filed by him before Judge Willis (presumably in respect of the “preliminary skirmishes” that his Honour referred to) would be before his Honour.
It is not necessary to resolve that issue because, perhaps ironically, there was evidence before his Honour of the additional liabilities to which the husband refers in the affidavit material filed by the wife.
In the proceedings before me, the wife, through an interpreter, confirmed that the table which appears as an annexure to her affidavit filed 27 October 2016 (part of the financial statement she had earlier filed in May of that year) contained a table wherein she set out her assertion as to all of the property the parties or either of them and their liabilities. That table records liabilities totalling $178,698.
The liabilities (by reference to five headings in the table: “bank loans”, “council rates”, “body copy [sic] corporate”; “legal fee”; and “water”) contain references to the very debts said by the husband to have been ignored by his Honour:
a)The husband asserts $7,516 in legal fees connected with the R property, noting that “interest and capital could accrued to A$20,000 since it was issued” (as per original); the table shows debt of legal fees in respect of the R property of $20,000.
b)The mooted grounds of appeal refer to $30,000 owing in respect of legal fees connected with the C property (pertaining to a balcony said to have be built without a permit); the table shows legal fees $40,000.
c)In respect of the same property, the mooted grounds of appeal refer to $9,485 in respect of “council fee”; the table refers to $8,084 in respect of “council rate”.
d)Similarly in respect of that property the mooted grounds of appeal refer to “$10,153 Body Corperate levy fee” (as per original); the table refers to $9,120 in respect of body corporate fees.
Who should be liable for those debts, the manner in which they were accrued and assertions and counter assertions made in respect of them (for example, the suggestion by the wife that she had paid to the husband the amount owing to lawyers) were the subject of argument and counter argument before me. That argument reflected precisely his Honour’s comments in respect of the parties at trial that:
They were determined, despite my best efforts, to argue with each other, though I must say that my impression was that the wife was more determined in her view, to demean the husband, to minimise his contributions during 16 years of marriage, and to suggest that the husband had acted in a manner which would be suggestive of deceitful or deceptive conduct, particularly when it came to moneys.
… Each threw allegations at the other with regard to hiding money, sending money overseas to family, concocting evidence with regard to the state of their health or the behaviours of one or the other, the wife particularly suggesting that the husband had perpetrated horrendous domestic violence against her, and the husband responding that if any domestic violence occurred, it was perpetrated by the wife upon him.
Amidst that, however, I was finally able to have the wife confirm that she had in fact relied upon the table as being indicative of the liabilities owing by the parties before his Honour and that the caveat in respect of the property in Tasmania subject to an order transferring it to the husband remained in place and that it pertained to a debt claimed by lawyers engaged by her.
In short, amidst the various allegations, counter allegations; assertions and counter assertions about each other's veracity and conspiratorial conduct, there seems to have been reliable prima facie evidence before his Honour that the liabilities of the parties were in the region $178,698 rather than approximately $79,500 as found by his Honour. The difference is substantial given that his Honour determined that the net property of the parties had a value of $560,000.
I hasten to emphasise that I am not, of course, making or suggesting any finding in respect of those liabilities or who was or should be responsible for them. Rather, the evidence and findings are highlighted so as to answer the two questions posed earlier: Was there evidence before his Honour as asserted by the husband and, if so, is there a prima facie basis for the husband making the assertions of discretionary error which he seeks to make if the extension of time is granted? In my view the answer to each of those questions is in the affirmative.
Having regard to the alleged amount involved and its proportion to the value of the interests in property available to be distributed between the parties if discretionary error is established, there is significant potential for injustice.
I conclude, therefore, that there is a substantial issue to be raised in the appeal, and, if substantiated, there is the potential for significant injustice to have been caused.
As a consequence, I consider there are strong reasons why the discretion should be exercised in favour of extending time.
Other Considerations
The explanation given by the husband for the substantial delay in the filing of the Notice of Appeal is contained in his affidavit filed 20 June 2017. Broadly, the husband contends that he does “not know the procedure” and therefore required “a lot of time to contact … court offices to make sure it is done in the right way”.
Further the husband states that he believed the issue could be appealed at the mention on 14 March 2017 but “on [sic] court [the husband] was told by the Judge than an appeal has to be made to the Family Court”. That mention appears to have related to a Contravention applicant filed by the wife. The March order indicates on its face that neither party was present at that mention. It is difficult to understand then, how the husband could have been told by the judge that he could not appeal the January orders at the mention.
Nevertheless, I think there is merit in his contention that he has experienced significant difficulties in negotiating the steps necessary to institute his appeal.
In contrast to the husband’s contentions, the wife in her Response filed 13 July 2017 states that there is evidence to suggest Mr Leong is of sufficient intelligence and financial capacity to initiate the appeal within the required time. The wife’s ultimate contention is that “Mr [Leong] is treating the prospect of an appeal as a rehearing of the original case”.
The wife is, of course, prima facie entitled to receive the fruits of the judgment intended to bring an end to the parties financial relationship and all the more so in light of the extended conflict to which his Honour refers. I have taken that factor into account.
Concomitantly, the wife can properly allege hardship to her consequent upon the necessity to meet an appeal with consequent delays and possible costs in the finalisation of her financial affairs that a final judgment effectively assumes. In traditional civil claims, prejudice or hardship is said to have a counterpoint in whether a respondent can be compensated by an order for costs. In proceedings in this court, consideration must be given to s 117(1) of the Act. However as it was pointed out recently in Atkins & Hunt and Ors (Costs)[4]:
… this court has very frequently referred to the importance of [lack of success in an appeal]. That arises because appeals, by their nature, seek to deny a party the fruits of their judgment and are brought, or resisted, in the light of what is, or should be, consideration of the starting presumption – that the judgment under attack is correct – the appeal being a careful analysis of the proper legal basis for challenging its correctness or resisting a challenge to its correctness.
[4][2017] FamCAFC 131, [51].
I have also taken account of that factor.
Each of the parties represented themselves before me and prepared their own material. They also represented themselves before his Honour and, it seems, prepared their own material before his Honour as well. Their respective legal costs of prosecuting an appeal do not have the same moment that they may have if both parties are legally represented.
Taking all of the considerations I consider relevant into account I am persuaded that the ostensible case for injustice is such that the discretion should be exercised in favour of granting the extension.
An order will be made extending the time within which the husband can appeal. Steps should be taken to do so forthwith.
Costs
Each of the parties represented themselves in the application before me and prepared their own material in respect of it.
Each of the parties confirmed that neither had incurred any legal costs of or incidental to the application to extend time. I will formally make an order that each of the parties bear their own costs.
For those reasons, I order:
1.That the Application in an Appeal filed on 20 June 2017 for an extension of time to file a Notice of Appeal against the orders of Judge Coker made on 19 January 2017 be granted.
2.That the time in which the husband may file a Notice of Appeal against the orders of Judge Coker made on 19 January 2017 be extended to 4:00pm on Friday 25 August 2017.
3.That the husband shall file and serve any Notice of Appeal upon which he seeks to rely on or before 4:00pm on Friday 25 August 2017.
4.That upon the filing of the Notice of Appeal pursuant to Order (3), the Appeals Registrar is requested to appoint a time for the settling of an appeal index and to make all such further directions as might be required.
5.That each party bear his or her own costs of and incidental to the hearing of the Application in an Appeal.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 August 2017.
Associate:
Date: 9 August 2017
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