Leong & Wu
[2021] FamCAFC 99
•24 June 2021
FAMILY COURT OF AUSTRALIA
Leong & Wu [2021] FamCAFC 99
Appeal from: Leong & Wu (No.2) [2020] FCCA 271 Appeal number(s): EAA 22 of 2020 File number(s): CAC 1783 of 2013 Judgment of: AINSLIE-WALLACE J Date of judgment: 24 June 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure to file digital transcript – Appeal deemed abandoned – Delay explained – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Prejudice – Application allowed – No order as to costs. Legislation: Family Law Rules 2004 (Cth) r 22.21 Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rand & Rand [2009] FamCAFC 88
Division: Appeal Division Number of paragraphs: 29 Date of hearing: 15 June 2021 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Stagg Solicitor for the Respondent: Hijazi Curran Cameron Lawyers ORDERS
EAA 22 of 2020
CAC 1783 of 2013APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR LEONG
Applicant
AND: MS WU
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.Appeal EAA 22 of 2020 be reinstated.
2.The applicant is to file the digital transcript by no later than 4.00 pm on Friday 2 July 2021 or failing that, make an application to dispense with the requirement to provide the transcript.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leong & Wu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 17 February 2020 Mr Leong (“the applicant”) appealed against orders made by a judge of the Federal Circuit Court on 17 January 2020 in proceedings between him and Ms Wu (“the respondent”) in which the primary judge refused his application to reopen final property settlement proceedings as between the applicant and the respondent. Those proceedings had been determined by the primary judge on 18 November 2019.
The November 2019 proceedings were conducted in the absence of the applicant. At the conclusion of the hearing the primary judge made final property settlement orders as between the parties. The primary judge further made a costs order against the applicant in the sum of $41,540. While ex tempore reasons for judgment were delivered at the conclusion of the November 2019 hearing, no settled reasons have ever been delivered.
The applicant did not appeal from this decision.
The final orders contain the following:
5.IT IS NOTED that these Orders are made in the absence of the Respondent and accordingly, the provisions of rule 16.05 of the Federal Circuit Court Rules 2001 apply, such that the Respondent is entitled to make Application to reopen the proceedings and be heard.
6.In the event that the Respondent should wish to make Application to reopen the proceedings and be heard, then the Respondent shall:
a.No later than 4:00pm on 18 December 2019 make a request in writing, by email, direct to my Associate in accordance with Federal Circuit Court protocols regarding communication with Chambers seeking a relisting of the proceedings.
Given that no written reasons were ever provided, that the applicant was not present in court and does it appear that any order was made for service on him of the orders, one wonders how the primary judge imagined that such a relisting would occur.
However, the applicant did apply to the primary judge to reopen the matter to allow him to be heard and on 17 January 2020 the primary judge dismissed the application.
By Notice of Appeal filed on 17 February 2020, the applicant appealed against this decision. The applicant’s Notice of Appeal was filed within the specified time.
Following the filing of the Notice of Appeal, on 18 June 2020 the appeal registrar made the usual procedural orders to prepare the appeal including orders as to the preparation and service of the digital Appeal Book and the digital version of the transcript, both of which were to be filed by 13 August 2020. By letter of 18 June 2020, the appeal registrar advised the applicant that the digital Appeal Book had been prepared by the appeal registry but notified him that he was required to provide the digital transcript. That was not done and on 17 August 2020, the applicant was advised that by reason of his failure to file the digital transcript, his appeal was taken to have been abandoned from 13 August 2020.
On 20 May 2021 the applicant filed an Application in an Appeal for reinstatement and an affidavit in support of that application. The applicant said that on 18 June 2020 the respondent had sent him a text message in which she stated:[1]
… [B]efore the last hearing, I told the lawyer to consent to your appeal, so you don’t need to prepare an appeal book or something. Later, he forwarded the notice of delayed hearing to me. He didn’t contact me until this morning about today’s hearing, but my phone was turned off. I just saw him saying that today the court asked you to prepare an appeal book, and the lawyer added another thing and asked you to prepare it. I know you don’t trust me, but I did tell the lawyer to consent to your appeal, so you don’t have to prepare an appeal book and so on. I told him before hearing last time, and I sent him an email to iterate just now.
[1] Annexure “C” to the applicant’s affidavit filed 20 May 2021.
After receiving the text message, the applicant said that he was concerned about his right to appeal so he contacted the appeal registry and was told that the appeal can be reinstated should his circumstances change.
The applicant said that at the time of the November 2019 hearing, he had been admitted as a psychiatric patient where he remained for five weeks. It appears from the primary judge’s reasons for refusing the application to reopen the final hearing, his Honour had received a medical certificate from the applicant seeking an adjournment of the November hearing however he considered it inadequate to explain his non-appearance and to warrant an adjournment. During the application to reopen in January 2020, the applicant provided the primary judge with a medical report which demonstrated that he had been hospitalised at the relevant time.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 and, while that case dealt with an application for the extension of time to appeal, the principles have been taken to apply to an application to reinstate an appeal.[2]
[2] Rand & Rand [2009] FamCAFC 88.
The central principle is that such applications ought to be allowed where to do otherwise may cause a substantial injustice.
To reinstate an appeal is not automatic and involves the exercise of discretion. The discretion is given for the sole purpose of enabling the court to do justice between the parties. In determining whether a strict application of the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. Part of that involves consideration of the delay and the merits of the proposed appeal which, it is accepted can be gleaned by reference to the documents already filed, and the discretion requires that any prejudice to the respondent be taken into account.
In Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”), Brennan CJ and McHugh J were of the view that once an appeal has been commenced, the applicant is entitled to have the appeal determined in the usual way. They said at [7], that where an extension of time for the taking of an interlocutory step is sought “the merits of the appeal are not a relevant consideration… unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time”.
Here the appeal was deemed abandoned by reason of the applicant’s failure to comply with the procedural direction for the filing of the digital transcript. Nevertheless, the discussion in Jackamarra is useful to determine whether, notwithstanding the appeal having been regularly instituted, the appeal should be reinstated.
The delay between the appeal being abandoned for failure to comply with the orders and the bringing of the application to reinstate was significant, a matter nine months. In explanation for the delay the applicant contends that he did not comply with the procedural orders made by the appeal registrar based on the text message sent by the respondent to the applicant noting that she “consent[ed]” to the appeal.
Counsel for the respondent argued that a party cannot “consent” to an appeal and referred to a letter sent to the applicant to that effect by the appeal registrar. It was argued by the respondent that the applicant was obliged, notwithstanding the text message sent by the respondent, to comply with the procedural directions and file a digital transcript on time.
While broadly speaking a party cannot “consent” to an appeal, a party can, for example, file a Submitting Notice agreeing to any outcome of the appeal or, noting the consent of the parties, they can file a Minute of Order seeking orders for the disposition of the appeal. If the parties agree that the appeal should be allowed, the Full Court is still required to determine whether the primary judge made an appealable error.
It is to be recalled too that English is not the first language of either the applicant or the respondent and I am satisfied that the applicant was justified in relying on the respondent’s text. He was also unrepresented at that time.
Further, his ill health is a significant factor in my conclusion that he has satisfactorily explained the delay in bringing the application for reinstatement. The applicant said that after his release from hospital at the end of 2019 he continued to suffer ill health and said that he was again hospitalised from November 2020 to February 2021.
I am satisfied that the applicant has explained his failure to comply with the direction to file the digital transcript and has explained the delay in bringing the application for reinstatement.
Turning to the merits of the appeal, based on the material before me, I am not persuaded that the appeal is so devoid of merit that it ought effectively be dismissed at this stage by refusing to reinstate it.
Despite what was argued by counsel for the respondent that the applicant’s grounds of appeal were difficult to understand, the grounds are not so opaque so as to not understand the thrust of the arguments. In relation to the orders made by the primary judge in January 2020 to reopen the proceedings for his Honour to consider the applicant’s evidence, the applicant argues that in dismissing the application, he has been denied the opportunity to put relevant material before the court to support his case and to make arguments.
I am satisfied that the appeal is not so devoid of merit that it would be futile to reinstate it.
There will of course be prejudice to the respondent in that there will be a further delay in bringing the parties’ property settlement proceedings to an end and, as contended by the respondent, she would incur substantial legal costs to prosecute the appeal, however I take into account what was said in Jackamarra by Gummow and Hayne JJ at [33]:
33.… when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Here the applicant filed his Notice of Appeal against the January 2020 decision on time and the Appeal Book was available to the parties. A strict application of the Rules will work an injustice towards the applicant and the application to reinstate the appeal will be allowed.
What then remains is for the applicant to obtain, file and serve the digital transcript of the hearing before the primary judge. I will order that the appeal be reinstated and the applicant obtain, file and serve it or make an application to dispense with the provision of transcript.
COSTS
The applicant did not seek an order for costs, and no order will be made.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 24 June 2021
0
3
1