Maine and Preston
[2014] FamCAFC 7
•17 January 2014
FAMILY COURT OF AUSTRALIA
| MAINE & PRESTON | [2014] FamCAFC 7 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to extend the time to file a Notice of Appeal – where the respondent opposes the application – where there is an adequate explanation for the timeframe for the filing of a Notice of Appeal not being complied with – where it is not apparent that the appeal is hopeless or doomed to fail – where there are consequences for both parties in the granting or refusing of the application – extension of time granted. |
| ||||
| APPLICANT: | Ms Maine | |||
| RESPONDENT: | Mr Preston |
| FILE NUMBER: | MLC | 9572 | of | 2012 |
| APPEAL NUMBER: | SOA | 47 | of | 2013 |
| DATE DELIVERED:: | 17 January 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 17 January 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 July 2013 |
| LOWER COURT MNC: | [2013] FamCA 524 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Swart |
| SOLICITORS FOR THE APPLICANT: | Macgregor Barristers & Solicitors |
| THE RESPONDENT: | In person |
Orders
The time for the applicant to file and serve a Notice of Appeal is extended to the close of business on Friday 24 January 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maine & Preston has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 47 of 2013
File Number: MLC 9572 of 2012
| Ms Maine |
Applicant
And
| Mr Preston |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an application in an appeal filed by Ms Maine (“the applicant”) on 21 August 2013. The effect of the orders sought is an extension of time to file a Notice of Appeal against orders made by Justice Cronin on
15 July 2013.
That application is supported by an affidavit of the solicitor for the applicant filed on the same day. In addition there is a draft Notice of Appeal also filed on 28 August 2013 in support of the application.
The application is opposed by Mr Preston (“the respondent”).
Relevant statute law and rules of Court
Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
Section 94(1) of the Act provides as follows:
Subject to section 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law; or
…
Section 94(1A) provides:
An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Section 94(2D) provides:
Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2E) provides that the rules of Court “may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.”
Section 94(2F) provides:
No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Applicable principles
The law in relation to applications for extension of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J said this at 480:
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.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time 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 take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, and the length of time beyond the 28 day period that is involved. By that I mean, and relating that to this case, the Notice of Appeal was presented for filing 30 days after the orders were made, in other words two days later than the time period permitted. Other factors to be considered are whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.
Discussion
Adequate explanation
In this case, to repeat, the 28 day time period was not complied with and the Notice of Appeal was presented for filing two days after the orders were made.
The explanation for that which appears in the affidavit in support of the application is, that following the reasons for judgment being delivered by the trial judge, counsel who appeared at the trial was briefed to advise on first, if the orders were appealable and second, to draw a Notice of Appeal if they were appealable. Counsel though operated under the mistaken belief that there was a one month period in which an appeal could be lodged, rather than a
28 day period.
Thus, it is put that the late preparation and presentation for filing of the Notice of Appeal was not the fault of the applicant. The applicant at all times had given instructions to pursue an appeal. The fault therefore lies primarily with counsel, but of course the solicitor who has instructed counsel cannot avoid responsibility in these circumstances. They act for the client and they, as much as counsel, should be aware of what the Rules say in terms of the prescribed timeframe.
Of course it can be said that if the application fails there may be an action in negligence available to the applicant against her legal representatives, but that should not be determinative of this application; it could only be one of many factors to be taken into account.
In any event, I do not consider this to be an acceptable reason for failing to comply with the prescribed timeframe, but it is highly relevant that the Notice of Appeal was presented for filing only two days late.
The merits of the appeal
Turning to the next relevant factor, namely the merits of the appeal.
I have a draft Notice of Appeal which was filed in support of the application. I have perused that draft Notice of Appeal and the reasons for judgment delivered by the trial judge. Of course it is not possible for this court to be definitive in assessing the merits of the appeal. For example, I do not have the full range of documentation that would be before the Full Court on the hearing of the appeal if it proceeded. The Full Court for example would have the transcript of the hearing before the trial judge, as well as all of the documents that were before the trial judge, and summaries of argument from the parties. Thus I am simply not able to assess in any depth the merits of the appeal, and my analysis must necessarily be limited to the documentation that I do have, together with the oral submission of the applicant’s counsel today.
In these circumstances the question for me is not whether the appeal will be successful, but whether there is an arguable case on appeal. Indeed, as I mentioned during oral submissions, where it appears that there is even the remotest chance of success, then that is enough. In this regard the exercise is somewhat similar to the exercise required in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies as a result of the consideration of all the other relevant factors, the appeal should be allowed to proceed.
I do not propose to go through the reasons for judgment of the trial judge, nor the grounds of appeal, chapter and verse, but what I will say is that the orders made by his Honour were orders for costs. His Honour was faced with an application for indemnity costs, with those costs to cover the entire period of the proceedings that had earlier taken place before him. His Honour determined that he was not satisfied that there were the exceptional circumstances present that the authorities require for a judge to make an order that costs be assessed on an indemnity basis, and nor was his Honour satisfied that costs should be ordered in relation to the entirety of the proceedings.
His Honour in the end result ordered that costs be paid only from a specific date part-way through the proceedings, and his Honour was not prepared to make an order for indemnity costs.
The grounds of appeal as sought in the draft Notice of Appeal filed by the applicant on 21 August 2013 were as follows:
1. That the appellant was denied procedural fairness in that she was not provided with a copy of the decision of the Full Court in Prantage and Prantage (2013) Family Court of Australia at Melbourne CAFC 104
(4th July, 2013); (made after her written submissions were filed on 7/5/13) nor given the opportunity to make submissions either oral or in writing following on from that decision relied upon by His Honour in his Judgment delivered 15 July, 2013.2. That His Honour exercised his discretion in relation to the application for costs without regard to the applicable principles in relation to costs both on an indemnity and or party party basis or alternatively did not apply those principles to the particular circumstances of this case.
3. That His Honour did not provide a clear and transparent exercise of his discretion and adequate reasons as to why he did not consider it appropriate to order indemnity costs on the particular circumstances of this case.
4. That His Honour did not provide a clear and transparent exercise of his discretion and adequate reasons as to why he did not consider it appropriate to order costs on either an indemnity costs basis or on a party party basis as and from the date the respondent to the appeal issued his original application and one cannot ascertain how the discretion was exercised upon the facts in accordance with applicable principles in relation to costs orders.
5. In the alternative to 3 and or 4 above; that His Honour ignored the facts of the case; unassailable and from the respondent to the appeal’s own material and thus did not apply the applicable law to the facts leading to mistake and error. Further His Honour gave no consideration whatsoever to the costs of the appellant and a comparison of those costs; in essence close to and approximating scale costs when determining the issue of indemnity versus party party costs, or at all. Nor did His Honour give adequate consideration to the matters set out in section 117(2A) of the Family Law Act (1975) (Cth).
6. That His Honour incorrectly applied the settled law to the facts of this case leading to manifest error and injustice to the appellant.
7. That His Honour was mistaken in fact as to the date the respondent to the appeal knew or ought to have known that his case was issued in wilful disregard of the known facts and clearly established law and with groundless contentions; alternatively His Honour ignored the evidence of same.
As can be seen, the grounds of appeal range from a complaint that the applicant was denied procedural fairness to his Honour allegedly not applying the principles that govern whether costs should be paid on an indemnity basis in the particular circumstances of the case that his Honour had before him. It is also put that his Honour failed to provide adequate reasons as to why he did not consider it appropriate to order indemnity costs, and finally it is put that his Honour in the alternative ignored the facts of the case that was before him, and failed to apply the applicable law to those facts, leading to error in his final decision.
To repeat, it is a difficult task for this court to determine the merits of an appeal such as this, but doing the best I can on the material that I have, and addressing the question that I posed earlier in these reasons for judgment, I find that there is an arguable case on appeal, or to put it another way as I did in framing the question earlier in these reasons, it is not apparent to me that the appeal is hopeless or doomed to fail. That is not necessarily to be taken by the applicant as any comfort that the appeal will succeed. That is certainly not what I am saying, but what I am saying is that on the documents before the court there appears to be an arguable case.
The consequences of granting or refusing the application
If the application is granted then, as I said during submissions and I repeat, there will be clear prejudice to the respondent. As the matter presently stands the orders made by the trial judge are in place, there is no appeal that has been properly filed in relation to those orders, the respondent is able to proceed on the basis that he has the benefit of those orders and the benefits of his Honour’s judgment, and he, as the matter stands, would not need to do anything further in relation to that.
However if the application is granted then the appeal will be able to proceed and the respondent will have to deal with that appeal, and as he himself has said in his oral submissions today, his financial circumstances are strained, he spent a good deal of money in running the case that ultimately was determined by Justice Cronin in the Family Court, and he would be, he says, seriously financially prejudiced if he was obliged to respond to an appeal now. I accept and understand that is an obvious and important prejudice that the respondent would suffer if the application was granted.
On the other hand there would be prejudice to the applicant if I refused the application. There is no appeal from a refusal of the application save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in certain cases, and thus for that to be the only remaining avenue for the applicant to pursue in the event of this application being refused (apart from the prospect of an action in negligence), is a serious prejudice to her in the circumstances.
Finally, I do not consider there is anything that I need to have regard to in relation to, for example, the history of the proceedings, or the nature of the litigation, or the conduct of the parties. Nothing has been specifically put to me about those factors, and having read, as I say, the reasons for judgment of his Honour and the draft Notice of Appeal, it seems to me that none of those factors are necessarily relevant here.
Conclusion
As the authorities recognise the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies. Here, the explanation for the failure to comply with the Rules and file a Notice of Appeal within the prescribed timeframe is not acceptable, but it is important that the reason for that is it is not the fault of the applicant, but rather the fault of her legal representatives.
As I explored with counsel for the applicant, if this application was not granted then it may very well be that the applicant would have a cause of action in negligence against her legal advisers. Thus, that bears upon the question of prejudice or hardship because of course it may very well be that if the application was not allowed, then the applicant would still have that course open to her. However, I am not in a position to make any definitive statement as to whether there is a cause of action, or whether the applicant would be successful in any proceedings she took against her legal representatives.
In any event, the important issue for me is not necessarily the reasons why, but the fact that the presentation of the Notice of Appeal was only two days late. In the overall scheme of things that is not a significant delay.
Equally importantly, in terms of the merits of the appeal I consider that there is an arguable case, and I am not in a position to find that the appeal if allowed to proceed is doomed to fail.
There is then the hardship or the prejudice caused to the parties depending on the result of this matter, and I have identified that earlier in these reasons, and I will not repeat that here.
In summary, although I am concerned about the explanation for the failure to comply with the Rules, the factor of the Notice of Appeal being presented only two days late, and significantly, there being an arguable case on appeal, and that there is prejudice to both sides whichever way this application is determined, I find that the interests of justice require that the application be granted, and I propose to make that order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
17 January 2014.
Associate:
Date: 30 January 2014
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