Madin and Palis
[2014] FamCAFC 216
•11 November 2014
FAMILY COURT OF AUSTRALIA
| MADIN & PALIS | [2014] FamCAFC 216 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where an initiating application for de facto property settlement was dismissed for want of jurisdiction after the judge found that the application was not filed within the time limit established by s 44(5) of the Family Law Act 1975 (Cth) – Where the application submitted that the judge had erred in the calculation of the day on which the time limit expired – Where the proposed appeal was of merit – Where the delay was adequately explained – Where the prejudice to the respondent could be ameliorated by an order for costs – Application granted. |
| Acts Interpretation Act 1901 (Cth) Family Law Act 1975 (Cth) |
Family Law Rules 2004
Federal Circuit Court Rules 2001
Chancellor & McCoy [2013] FCCA 740
Earl of Morton’s Trustees; Douglas v Macdougall [1944] SC 410
Gallo v Dawson (1990) 93 ALR 479
Hedley & Hedley [2009] FamCAFC 179
Minet Australia Ltd v Gemrule Pty Ltd (unreported, Supreme Court of New South Wales, 11 December 1997)
Reynolds v Reynolds [1941] VLR. 249
Truman & Truman (2008) FLC 93-360
| APPLICANT: | Mr Madin |
| RESPONDENT: | Ms Palis |
| FILE NUMBER: | BRC | 130 | of | 2013 |
| APPEAL NUMBER: | NA | 52 | of | 2014 |
| DATE DELIVERED: | 11 November 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 7 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 January 2014 |
| LOWER COURT MNC: | [2014] FCCA 118 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bertone |
| SOLICITOR FOR THE APPLICANT: | Leishman Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway with Ms McLennan |
| SOLICITOR FOR THE RESPONDENT: | Allan R de Brenni & Co Solicitors |
Orders
The applicant is granted an extension of time until 4.00pm on 21 November 2014 to file a notice of appeal against the orders of Judge Howard made on 28 January 2014 and 23 May 2014.
The applicant pay the respondent’s costs of the application for an extension of time, such costs to be assessed if not agreed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Madin & Palis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 52 of 2014
File Number: BRC 130 of 2013
| Mr Madin |
Applicant
And
| Ms Palis |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Madin (“the applicant”) for an extension of time to file a notice of appeal in respect of orders made by Judge Howard on 28 January 2014 dismissing the applicant’s initiating application to commence de facto property settlement proceedings. The applicant further seeks to file a notice of appeal out of time in respect of a costs order made by the judge on 23 May 2014 arising from the dismissal of the substantive application. Ms Palis (“the respondent”) opposes the application.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed within 28 days after the order sought to be appealed is made. The applicant filed this application on 26 September 2014, approximately seven months out of time in respect of the substantive orders and approximately three months out of time in respect the costs order.
The application seeks to invoke the discretion contained in r 1.14 to extend a time that is fixed under the Rules.
The initiating application filed by the applicant sought an alteration of property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Subsection 44(5) of the Act provides that a party to a de facto relationship may apply for an order pursuant to s 90SM “only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period)”.
The applicant’s case is that a de facto relationship existed between the parties between March 2002 and 9 January 2011. The initiating application was filed on 9 January 2013. The judge found that the time limit established by s 44(5) to make application for an order pursuant to s 90SM expired on 8 January 2013. Judge Howard determined that the court had no jurisdiction to hear the application and consequently dismissed it. It should be mentioned that the respondent denies that there was a de facto relationship.
The applicant seeks to appeal the order dismissing the initiating application on the basis that the judge was in error in calculating the time limit within which an initiating application for de facto property settlement could be made. The costs order of 23 May 2014 is sought to be appealed on grounds including that the judge erred in the exercise of his discretion to make a costs orders generally and weight arguments regarding the disparity of the parties’ financial circumstances, the respondent’s conduct and the dispute regarding whether a de facto relationship existed.
McHugh J in Gallo v Dawson (1990) 93 ALR 479 identified a number of factors relevant to applications for an extension of time:
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.
In this case it is necessary to have particular regard to certain factors including the prospects of success of the proposed appeal, whether an adequate explanation for the delay has been proffered, and whether any prejudice to the respondent may be alleviated by an order for costs.
Merit
In this matter the most significant factor is whether the proposed appeal has merit, namely, whether an appeal court is likely to consider that the initiating application was filed within time. The applicant’s case is that the time limit expired on 9 January 2013 (the day the application was filed) whilst the respondent contends a date of 8 January 2013 as found by the judge.
The applicant relies primarily on item 6 of the table contained within s 36(1) of the Acts Interpretation Act 1901 (Cth), which provides that if a period of time is expressed to begin after a specified day, the period of time does not include that day. The accompanying examples provides that “[i]f a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28 day period begins on 3 August”. Both the Federal Circuit Court Rules 2001 and the Family Law Rules 2004 expressly adopt this interpretation of time.
The judge relied upon two decisions in reaching his conclusion: Chancellor & McCoy [2013] FCCA 740, being the decision of a judge of the Federal Circuit Court, and Hedley & Hedley [2009] FamCAFC 179, a Full Court decision. The judge notes that in both decisions “[t]he time limits expired at the end of the day prior to the “anniversary” of the event specified in the legislation”. It is apparent that in the authorities referred to by the judge, the day on which the time limit expired was immaterial to the determination of the matter and little reasoning is provided in the decisions as to how the date identified for the expiration of the time limit was reached.
The judge also rejected submissions in relation to the Acts Interpretation Act 1901 (Cth) as providing support for the applicant’s submissions.
Counsel for the respondent placed emphasis on the use of the word “within” in s 44(5). The written submissions filed on behalf of the respondent resisting this application contend:
29.… If, as the applicant says, the relationship ended on the 9th January 2011, then the period “after” the end of the relationship, begins on 10th January 2011.
30.Two years later is 9th January 2013 (not 10th January 2013, which is two years and one day after the end of the relationship).
31.The period “within” two years after the end of the relationship must end on 8th January 2013.
Reliance is placed upon the reasons for judgment in Truman & Truman (2008) FLC 93-360 where the Full Court considered the appropriate interpretation of the word “within”. Reference was made to the Scottish decision of Earl of Morton’s Trustees; Douglas v Macdougall [1944] SC 410, where “within” was defined as “before the end of” when applied to a period of time, and Minet Australia Ltd v Gemrule Pty Ltd (unreported, Supreme Court of New South Wales, 11 December 1997), where Young J stated that:
The literal meaning of “within” is a period beyond which it is impossible or impermissible for the act to take place, that is, it defines the outer limit of a period in which an act can take place.
Further, in Reynolds v Reynolds [1941] VLR. 249, O’Bryan J stated at p 252:
The word ‘within’ in relation to a period of time does not usually mean ‘during’ or ‘throughout the whole of’: it is more frequently used to delimit a period ‘inside which’ certain events may happen.
It is apparent, however, that any of these authorities could also support an interpretation of “within” in s 44(5) that includes the day two years after the end of the de facto relationship. To interpret the term “within” in the phrase “within the period of 2 years after the end of the de facto relationship” as requiring the time limit to expire one day prior to the 2 year anniversary of the end of the de facto relationship seems unnecessary and outside the natural and ordinary meaning of the word as required by statutory interpretation. The filing of the application on 9 January 2013 is likely to have been within time.
It would follow that if the judge wrongly decided the time limitation point and made the costs orders consequent on that decision then that order could also be dismissed on appeal.
The appeal has merit. I will now consider whether an adequate explanation for delay has been proffered as it was argued on behalf of the respondent that this is an essential component for an extension of time being granted.
Explanation for delay
The applicant says in his affidavit filed 26 September 2014 that on 5 November 2013 his solicitor sought leave to withdraw from the proceedings (the day of the hearing) as he could no longer afford to pay legal fees. It seems that the issue regarding time limits was first raised by the respondent’s counsel on that day. Of course, counsel was obliged to raise the issue.
After the judge dismissed the initiating application on 28 January 2014, the respondent’s application for costs was listed on 16 April 2014. The applicant deposes that he was unable to attend court due to a back injury. On 29 April 2014, the applicant says that he sought an extension of time to respond to the respondent’s submissions on costs, and on the same day filed an initiating application seeking leave to proceed with a de facto property settlement out of time. The judge had referred to the option of seeking leave to apply to commence an application in his reasons for judgment:
16. It is possible for an Applicant to seek the leave of the Court to apply – even after the end of the standard application period has expired. The relevant section is s.44(6) of the Act. That section states:-
“44(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.”
17. In his written submission filed in the Court on 13 November 2013 the Applicant has maintained that the Initiating Application was filed within the statutory time limit. In the alternative, he has sought the Courts leave to apply out of time – and he has done so from paragraph 13 onwards of his written submission. I do not consider that to be a proper Application for leave to apply out of time and I will return shortly to that issue.
…
19. In the event that the Applicant wishes to proceed with an Application for leave pursuant to s.44(6) of the Act – such Application will need to be filed separately and accompanied by the Affidavit detailing the relevant evidence…
As previously noted, on 23 May 2014 the judge made the costs order.
The applicant asserts that he “did not know about the process of an appeal and… felt that [he] would not be given a fair hearing unless [he] had legal representation for an Appeal” (at [89] of the applicant’s affidavit). Counsel for the respondent drew attention to the contradiction contained within those two propositions and that the applicant had experience with appeals in other jurisdictions.
On 22 May 2014, the applicant accessed funds held in a superannuation account and subsequently retained solicitors. He learnt on 18 August 2014 that the first available hearing date for his application for leave to proceed with a de facto property settlement out of time was 20 March 2015. The applicant then instructed his solicitors to make the present application, which was not filed until 26 September 2014. The delay is explained, at least in part.
It is unsurprising that the applicant, being then self-represented, sought to bring an application pursuant to s 44(6) of the Act as suggested by the judge instead of an appeal. Of course, such an application is quite different in its nature and requirements from an appeal. The applicant could not assume that his application to file the property settlement application out of time would succeed.
The applicant does not identify when he became aware of the time limit to appeal the decision, or precisely when he provided instructions to his solicitors to commence this application. Despite these deficiencies, the explanation for delay is adequate, which I distinguish from being complete.
Prejudice to the respondent
There is obvious prejudice to the respondent in an extension of time being granted. Apart from the matter having been completed in her favour, whether or not the appeal succeeds the respondent has incurred substantial legal expense resisting the application before Judge Howard. For reasons I will explain later at greater length the respondent should have her costs of this application even though the applicant will succeed in an extension of time.
The costs appeal
As previously discussed, if leave is to be granted for the applicant to commence an appeal against the orders dismissing his initiating application, leave to appeal the costs decision will naturally follow. This is not to suggest that this appeal will automatically succeed.
Costs of this application
Counsel for the respondent asked that costs be ordered on an indemnity basis. The applicant should in this case pay the respondent’s costs. Considerable costs have been incurred by her by reason of the need to seek an extension of time caused by the delay in the applicant filing an appeal within the time required by the Rules. The outcome of the appeal is not relevant, even if the applicant succeeds, the costs to the respondent have been incurred. An extension of time is an indulgence. However, the circumstances of this case could not fall into the category of extraordinary circumstances that justify an indemnity order.
The resources expended in perusing the argument regarding time limits could have been better applied to determining the ultimate issue, namely, whether a de facto relationship in fact existed. However, that consideration does not favour either party. The applicant should pay the respondent’s costs of this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 11 November 2014.
Associate:
Date: 11 November 2014
0
5
2