Madin and Palis - [2014] FamCAFC 216

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

2013

APPEAL NUMBER:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Madin and Palis

Details

AGLC: Madin and Palis [2014] FamCAFC 216
Case: [2014] FamCAFC 216
Decision Date: 11 November 2014

CaseChat Overview and Summary

The case of Madin and Palis involved an application for an extension of time to appeal against certain orders. The applicant sought to extend the time limit to file a notice of appeal against decisions made by Judge Howard on 28 January 2014 and 23 May 2014. The respondent opposed the application on the basis that it was made without reasonable excuse, and that it was an abuse of process. The matter was heard in the Supreme Court of Victoria.

The central legal issue in the case was whether the applicant had a reasonable excuse for the delay in filing the notice of appeal, and whether granting an extension of time would be in the interests of justice. The court needed to consider the relevant statutory provisions, the applicable case law, and the circumstances of the case in determining whether the applicant had a reasonable excuse. The court also needed to weigh the respondent's interest in finality against the applicant's interest in having their appeal heard.

In determining the application, the court found that the applicant had a reasonable excuse for the delay in filing the notice of appeal. The court noted that the applicant had experienced difficulties in obtaining legal representation, which had contributed to the delay. The court also found that granting an extension of time would be in the interests of justice, as the appeal had merit and there was no significant prejudice to the respondent. The court rejected the respondent's argument that the application was an abuse of process, finding that the applicant had acted in good faith. The court therefore granted the application, and ordered that the applicant be given until 4.00pm on 21 November 2014 to file a notice of appeal. The court also ordered that the applicant pay the respondent’s costs of the application for an extension of time, such costs to be assessed if not agreed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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