Manolis and Manolis (No 2)
[2010] FamCAFC 230
•16 November 2010
FAMILY COURT OF AUSTRALIA
| MANOLIS & MANOLIS (NO. 2) | [2010] FamCAFC 230 |
| FAMILY LAW - APPEAL – Application for reinstatement of an appeal – Failure to file a draft appeal book index in time – Application opposed by the wife – Where the wife has filed a cross appeal – Explanation of the delay in filing the draft appeal index unsatisfactory – Where the delay was caused by the solicitors error – Large property pool – Where a substantial injustice would be caused to the husband should leave not be granted – Leave granted FAMILY LAW - COSTS – Applicant husband to pay the wife’s costs on an indemnity basis – Costs to be assessed. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2010] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 Salter Rex & Co v Ghosh [1971] 2 All ER 865 |
| APPELLANT/ CROSS RESPONDENT: | Mr Manolis |
| RESPONDENT/ CROSS APPELLANT: | Ms Manolis |
| FILE NUMBER: | BRC | 7940 | of | 2008 |
| APPEAL NUMBER: | NA | 85 | of | 2010 |
| DATE DELIVERED: | 16 November 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 15 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 573 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Family Law Solutions |
| SOLICITOR FOR THE RESPONDENT: | Jones Mitchell Lawyers |
Orders
The appeal number NA85 of 2010 be reinstated.
The applicant have an extension of time to file a Draft Appeal Book index to Friday 19 November 2010.
The applicant pay the respondents costs of the application filed 23 October 2010 on an indemnity basis, such costs to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Manolis & Manolis (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 77 of 2010
File Number: TVC 215 of 2009
| Mr Manolis |
Appellant
And
| Ms Manolis |
Respondent
REASONS FOR JUDGMENT
Introduction
An application was filed by the husband on 23 October 2010 asking that the appeal, which was deemed abandoned on 27 September 2010 for failure to file a draft appeal index, be reinstated.
On 21 September 2010 the wife filed a cross appeal.
The application for reinstatement and the cross appeal, both seek to appeal final property settlement orders made on 17 June 2010 by Federal Magistrate Demack.
In the application filed on behalf of the husband on 23 October 2010 the husband proposes a number of alternative orders. They can be summarised as follows:
· The husband seeks that the draft appeal book index submitted by facsimile on 20 September 2010 be deemed good and sufficient compliance with rule 22.13(2) of the Family Court Rules 2004 (“the Rules”), or;
· That pursuant to rule 22.13(2)(b) of the Rules the time to file the draft appeal book index be extended to 1 October 2010 and the filing and service by facsimile on 30 September 2010 be deemed to accord with the requirements, or;
· If necessary, the husband seeks pursuant to rule 22.44 of the Rules that the appeal filed on 30 August 2010 be reinstated.
· The husband also seeks that all relevant material listed in the husband’s draft appeal book index be included in the wife’s draft appeal book index in respect of the cross appeal filed on 15 December 2010.
· In the alternative, it is sought that the husband’s notice of appeal filed 30 August 2010 be deemed a notice of cross appeal to the wife’s notice of cross appeal.
History
On 23 July 2010 the husband filed an application asking for leave to file an appeal out of time. The solicitors were one day out of time. The application heard on 26 August 2010, was opposed by the wife. The judgment was delivered the following day, being 27 August 2010.
In those reasons for judgment a brief background was provided. For the purpose of this application, it is also useful for part of the judgment to be repeated:
3.The parties were married for twenty-six years and during that time “amassed a sizeable pool” through their dealings in a number of highly profitable businesses. The profits were used to acquire real property in both Australia and in Greece.
4.The Federal Magistrate found that both the husband and wife speak English with a strong Greek accent. It is also relevant to mention that the husband has some hearing loss and is eighteen years older than the wife.
Reference was made to Clivery & Conway [2010] FamCA 1435 and the well known principles referable to such leave applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
On that occasion I found that there was an explanation for the delay, being the solicitor’s error in calculating the due date for filing.
In relation to merit, it was said in the reasons:
18.There may be some merit in the appeal about the findings against the husband. This is difficult to assess without a transcript and full argument.
19.The judgment reveals that there were a number of issues in the trial including the valuation of a number of properties and contributions of the parties. It was also necessary to assess the credibility of the evidence of each party. The property pool is sizable, as found by the Federal Magistrate to be $4,075,563.20.
20.As counsel for the respondent correctly observed it would be difficult to conclude from the notice of appeal as drafted that there is a substantial issue to be raised on appeal. However, the fundamental issue in this case is whether the granting of an extension of time to appeal is necessary to enable the court to do justice to the parties.
Leave was given although it was far from being a clear case:
21.The answer to that question is in the affirmative, although marginally. Balancing the delay of one day (being the mistake of the lawyers not the husband) the fact that there is no prejudice to the respondent other than the prospect of an appeal being heard as against what may prove to be limited prospects of success, the leave should be granted. The mistake being that of the lawyers and filing only one day out of time is of particular significance (see Jess v Scott and Others (1986) 70 ALR 185 a decision of the Federal Court particularly at p.189 to 191 where the solicitor in that matter was also out of time by one day).
The husband’s application
It seems that the husband has the misfortune of his solicitors making another error with the consequence that the appeal is deemed abandoned.
In support of the husband’s application, his solicitor Mr Burke has filed an affidavit.
Mr Burke explains that on or about 27 August 2010 he forwarded to the court for filing the notice of appeal, the required copies and a cheque for the filing fee.
On or around 3 September 2010, it is said that the solicitor received in his office the sealed copies of the notice of appeal which bore the filing date of 30 August 2010.
Mr Burke said that on 21 October 2010 in what he characterises as a “reorganisation” of the file he found a letter from the court dated 31 August 2010. It was said that this was the first time he saw the letter from the court. It was this letter which accompanied the copies of the notice of appeal.
The important parts of the letter are as follows:
…Please find enclosed service copies of Notice of Appeal filed 30 August 2010 and a copy of this letter.
…
Pursuant to Rule 22.13 of the Rules, the appellant is required to file and serve a draft index to the appeal books (and 2 copies) with me in the Regional Appeals Registry within 28 days of the date of filing the Notice of Appeal or within 28 days of the date when the reasons for judgment that relate to the order the subject of the appeal are issued. The draft index to the appeal books must comply with Rules 22.19 and 22.20 in relation to the documents to be included in the draft index. You must serve a sealed copy of that draft index on each other party to the appeal. There is no prescribed form for this document…(emphasis in original)
Mr Burke sent a sealed copy of the notice of appeal to the wife’s solicitors, as well as a copy via facsimile.
Mr Burke states that he was aware of the necessity to draft an appeal index in the matter at the time the sealed notice of appeal was returned to his office and served on the wife. However, he states that he believed he had alerted the wife solicitors to the difficulty he was experiencing in drafting the required document.
The husband’s solicitor deposes that it was his belief, which is said to be formed through experience in appeals, that the court advises the appellant of the requirement to file the draft appeal book index and time limits when returning the sealed notice of appeal. To some extent the solicitor is correct. The letter of 31 August 2010 did exactly what he expected.
It was assumed by the solicitor in this instance that his had not been done “as the Appeal Registrar was familiar with the matter and appreciated the probable difficulty”.
On 16 September 2010 Mr Burke received the husband’s file from the husband’s former solicitors. He states that at the time of filing the notice of appeal he had a copy of the transcript of the proceedings only. The husband’s solicitor contends that at the time of receipt of the sealed notice of appeal he was not in a position to compile a draft appeal index.
It was said that the husband’s solicitor was of the view that he would “progressively” draft a draft appeal book index as he “gathered together the information”. In doing so, it is said that it became evident that the court file would have to be examined, as the file from the previous solicitors was “scarce” and “unorganised”.
On 30 September 2010 the husband’s solicitor was said to be informed by the solicitors acting for the wife that “the [a]ppeal was struck out” for failing to file the appeal books. This was said, by Mr Burke to have been unexpected as there had not been an appointment to settle the index.
Subsequently, the husband’s solicitor transmitted by facsimile the draft appeal book index that he had composed thus far.
On 1 October 2010, the husband’s solicitor received a letter from the court informing him that the appeal has been abandoned.
Legal Principles
The solicitor for the wife referred at length to Gallo v Dawson (1990) 93 ALR 479. It is appropriate to refer to that decision in addition to the reference to Clivery & Conway. It was said by McHugh J in Gallo v Dawson, in circumstances where the application for an extension of time in which to file a notice of appeal was 16 months out of time, that:
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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
…
Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal.
…
When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of O 70, r 3 if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.
Conclusion
As was said by Lord Denning in Salter Rex & Co v Ghosh [1971] 2 All ER 865 “we never like a litigant to suffer by the mistake of his lawyers” and although there was considerable force in many of the arguments put by Mr Jones, the fact remains that the appeal has become abandoned due to the error of the solicitor. The effect is that the husband is unable to prosecute his appeal. This difficulty is compounded by the wife’s cross appeal. It may be a considerable unfairness to the husband to be limited to defending the wife’s cross appeal.
There are three primary matters to consider:
1) The explanation for the delay
Apart from the observation that it was entirely the husband’s solicitor’s error, it should be observed that this occurred due to poor conduct and management of the file. It is impossible to understand how the need to order an audio tape could have restrained a simple list being provided. The other explanations provided by the solicitor are unsatisfactory.
2) Prejudice to the wife
Apart from the delay in having the appeal heard the husband’s solicitor’s omission has caused substantial costs to the wife. While a costs order will not entirely deal with this difficulty an order for indemnity costs will go some way to providing a remedy.
3) The effect on the husband should leave not be granted
It was submitted that taking into account:
·The history of the proceedings;
·The conduct of the parties; and,
·The nature of the litigation, to grant leave would work an injustice to the wife, but to refuse the application not the husband. It is this aspect that creates the greatest difficulty.
A draft appeal book index has been filed on behalf of the cross-appellant. An attempt was made on behalf of the husband. There should be no further delay. I understand that there is to be a procedural hearing on 16 December 2010.
It can thus be seen that the husband’s failure to comply with the rules, while causing considerable inconvenience and expense to the wife is not a matter that will affect the hearing of the appeal should leave be granted. To so insist at this stage of the rules working to deem the husband’s appeal abandoned would cause injustice to him.
Mr Jones explained that some of the parties’ assets are frozen and that these circumstances are placing the wife in difficulty. In view of the history of the matter it may be appropriate to give the hearing of the appeal priority.
Costs
It is not usual for the court to make an order for costs on an indemnity basis. In this case an order for costs should be made, by reason of the conduct of the proceedings.
These circumstances fall into the exceptional category. The wife is entitled to costs on an indemnity basis.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 16 November 2010.
Associate:
Date: 16 November 2010
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