MADDYSON & MADDYSON
[2020] FamCAFC 87
•21 April 2020
FAMILY COURT OF AUSTRALIA
| MADDYSON & MADDYSON | [2020] FamCAFC 87 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where there is an adequate explanation for the failure to file the draft appeal index within time – Where the failings of a party’s legal representative should not be visited on the party – Where an application to reinstate was filed expeditiously – Where the applicant has an arguable case on appeal – Where there is prejudice to both parties whether the application is granted or refused – Where the interests of justice demand that the application be granted – Appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.44 and 22.57 |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 |
| APPLICANT: | Mr Maddyson |
| RESPONDENT: | Ms Maddyson |
| FILE NUMBER: | PTW | 7114 | of | 2015 |
| APPEAL NUMBERS: | WEA | 23 | of | 2019 |
| DATE DELIVERED: | 21 April 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 January 2020 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 23 May 2019 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hanly |
| SOLICITORS FOR THE APPLICANT: | Hotchkin Hanly Lawyers |
| THE RESPONDENT: | In Person |
Order made 29 January 2020
The Notice of Appeal filed on 19 June 2019 be reinstated.
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 Maddyson & Maddyson 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 23 of 2019
File Number: PTW 7114 of 2015
| Mr Maddyson |
Applicant
And
| Ms Maddyson |
Respondent
REASONS FOR JUDGMENT
Introduction
On 29 January 2020 this Court heard an Application in an Appeal filed by Mr Maddyson (“the husband”) on 6 August 2019, seeking an order reinstating the Notice of Appeal filed on 19 June 2019 from orders for property settlement made by Magistrate Osborn on 23 May 2019, and which Notice of Appeal was deemed abandoned on 18 July 2019. It was deemed abandoned as a result of the failure by the husband to file his draft appeal index by 17 July 2019.
The application was supported by affidavits of the husband’s solicitor filed on 6 August 2019, 1 October 2019, and 5 December 2019. In addition, on 15 November 2019 the husband’s solicitor filed an affidavit annexing proposed amended grounds of appeal, and on 5 December 2019, he filed written submissions in relation to those proposed amended grounds of appeal.
On 14 August 2019, Ms Maddyson (“the wife”) filed a Response, in effect seeking dismissal of the application, and on 13 January 2020 she filed written submissions in response to those filed by the husband. On 21 January 2020 the husband filed written submissions in reply.
On 29 January 2020, this Court made an order reinstating the appeal with reasons to follow. These are those reasons.
The Principles of Law
Rule 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor, r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert and Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175].
As to that latter case and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than just refer to that.
In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert and Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…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. 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. 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. 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. 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…
(Citations omitted)
In summary then, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to be taken into account. In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the relevant timeframe, secondly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed. It could be said that the history of the proceedings is also relevant here, as well as the conduct of the parties and the nature of the litigation, but I propose to confine my remarks to what I see as the three most relevant significant factors.
The reasons for the failure to file the draft appeal index within time
The husband’s solicitor in his affidavits of 6 August 2019, and 1 October 2019, explained that it was entirely the fault of his office that the draft appeal index was not filed within time, and no blame can be placed on the husband.
In summary, the solicitor was on leave overseas from 24 June 2019 to 19 July 2019, returning to work on Monday 22 July 2019.
On 27 June 2019, the solicitor’s office received back from the court the Notice of Appeal for service on the wife, and that document was forwarded to the solicitor overseas. The solicitor instructed his secretary to arrange service of the Notice of Appeal, apply for a copy of the transcript, and prepare and send to him the draft appeal index as per the sample document that the court provided. The Notice was served and the transcript ordered, but the draft appeal index was not prepared prior to the solicitor returning from overseas. Accordingly, on 23 July 2019, the solicitor prepared the draft appeal index, and on 24 July 2019 sent it to the Appeal Registrar. On 26 July 2019, the Appeal Registrar returned the document and advised that the appeal was deemed abandoned.
It is concerning that a solicitor would depart for overseas, without making arrangements beforehand, for the draft appeal index that he would have known would have to be filed within 28 days of the filing of the Notice of Appeal on 19 June 2019, to be prepared and filed within time. Despite this, I am satisfied that an adequate explanation has been provided for the failure to file the draft appeal index within time, and the failings of a party’s legal representative should not be visited on the party (Jess v Scott (1986) 12 FCR 187). Further, an application to reinstate was filed expeditiously.
The merits of the appeal
At this stage of the matter it is not possible to be definitive as to the prospects of success or otherwise of the appeal. And that is the case despite the written submissions of the parties as to the proposed amended grounds of appeal.
All this Court can do is consider the material before it, and make an assessment as best it can of whether the husband has an arguable case or not. The bar is set quite low though, given that even the slightest chance of success is enough. That is because it is only if it can be demonstrated that there is no chance of success, that it would be futile to order reinstatement.
As was said by Kirby J in the High Court decision of Jackamarra v Krakouer [1998] 195 CLR 516 at [66]:
66. …
4.The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile. …
(Citation omitted)
Indeed, as to the extent to which the merits of the appeal are to be considered, Brennan CJ and McHugh J said this in that same case:
7 …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.
(Citations omitted)
With that background, the court turns to the proposed amended grounds of appeal.
First, it must be explained that the husband, who was self-represented, as was the wife, had not filed his trial documents by the time of the trial, and he made an oral application on the first day for the trial to be adjourned. That application was refused, and the trial proceeded. Thus, the husband did not have evidence before the court for the purposes of the trial, but the Magistrate had regard to his initial affidavit and financial statement, and he was permitted to cross-examine the wife and make submissions.
There are 21 proposed amended grounds of appeal relied on by the husband. For the purposes of this hearing it is unnecessary to address each and every one of those grounds of appeal, because, to repeat, the task is to determine whether the husband has an arguable case, and that can be established in as few as one or two of the grounds of appeal.
It seems that the primary complaint raised by the husband is the failure by his Honour to take into account an alleged liability of the husband, namely an amount of $390,000 that he said he owed to a builder of one of the properties that were in the asset pool.
His Honour dealt with this alleged liability as follows:
43.In his Form 13 the husband deposes to owing [Mr D] (which the wife takes to be the husband’s friend, [Mr D] of [R Constructions]) the sum of $390,000.00 for the costs of construction of the unit on property A. In his Affidavit filed 31 July 2017 the husband deposes to the loan being an “informal, verbal, handshake agreement” and “in the construction industry these types of agreements are common as most people do not bother going to the trouble or expense of having the loan formally drawn up.”
44.The wife submitted that the husband’s evidence with respect to the amount owing for the construction of the unit should not be accepted. In her view, the husband was attempting to mislead the Court with respect to the alleged liability. The husband did not challenge the wife’s affidavit evidence that at the time of construction of the units he held $456,385.00 in [a bank] account.
45.It was incumbent upon the husband to put independent evidence before the Court about the loan, and he failed to do so. For example, the husband had only provided a tax invoice with respect to the loan, but had not put evidence before the Court about the terms of the loan, consequences of default of those terms, nor was there evidence from [Mr D] to verify the amount owing. In the circumstances, the alleged loan will not be taken into account in the assessment of the parties’ assets.
However, it must be remembered that the husband had failed to file his trial documents, and an adjournment was refused. Thus, although it could be said that it was his problem, the husband was not in a position to “put independent evidence before the court”. Indeed, he was not able to present any evidence, documentary or oral, and importantly it seems that he was not cross-examined about the loan, and nor did his Honour raise the issue of the loan with the husband.
However, one would have thought that in determining the asset pool, and given that the husband had deposed to this loan in his financial statement and in his affidavit, and he had produced a tax invoice, it was incumbent upon the Magistrate, where the husband was without legal representation, to explore the same during the hearing.
This then feeds into other grounds of appeal related to the fact that the husband was self-represented and whether he was afforded procedural fairness even though he had not filed his trial documents.
It seems to this Court that the husband has at least an arguable case in relation to these matters, and to repeat, that is all that is needed at this stage.
I also note that there are grounds of appeal relating to the admissibility of a valuation of the property just referred to, which prima facie, at least, raise an arguable case.
The prejudice to either party depending on the outcome
If the application is dismissed, then the husband would be prejudiced in that he would not be able to pursue his appeal. There is no appeal from a refusal to grant an application such as this. There is the possibility though of an application for special leave to appeal being made to the High Court of Australia, but the question obviously would be whether that is something which is proportionate to what is at stake here. Thus, the husband would not be entirely without a remedy, although in reality he would be.
On the other hand, if the application succeeds, there would clearly be prejudice to the wife in that she would have to deal with the appeal. There would be resource, time and money issues, whereas given there is in fact no appeal on foot, she would otherwise have been able to go about her business on that basis.
Conclusion
As the authorities recognise, consideration of the relevant factors informs the court’s determination of the fundamental issue, namely is it in the interests of justice to allow the appeal to proceed? Here, there is an adequate explanation for the failure to file the draft appeal index within time, and the husband has an arguable case on the appeal. Thus, although there will be prejudice to the wife if the application is granted, the court is persuaded that the interests of justice demand that outcome.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 21 April 2020.
Associate:
Date: 21 April 2020