MANOLIS & MANOLIS
[2010] FamCAFC 161
•27 August 2010
FAMILY COURT OF AUSTRALIA
| MANOLIS & MANOLIS | [2010] FamCAFC 161 |
| FAMILY LAW - APPEAL – Application for leave to appeal out of time – Application opposed by the wife on the basis of lack of merit – Dispute over calculation of property – Large property pool – Explanation of the delay in filing the notice of appeal one day out of time entirely explained – Error of the solicitor in the calculation of days – Prospect of substantial injustice should leave not be granted– Leave granted FAMILY LAW - COSTS – Applicant husband to the costs of the respondent wife – Costs to be assessed |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2010] FamCA 1435 |
| APPELLANT: | Mr Manolis |
| RESPONDENT: | Mrs Manolis |
| FILE NUMBER: | BRC | 7940 | of | 2008 |
| APPEAL NUMBER: | NA | 85 | of | 2010 |
| DATE DELIVERED: | 27 August 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 26 August 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 573 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Family Law Solutions |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Jones Mitchell Lawyers |
Orders
That the applicant husband have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on 3 September 2010.
The applicant pay the respondent’s costs of the application to be assessed.
It is certified that it was reasonable for counsel to appear for the respondent in these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Manolis & Manolis 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
| Mrs Manolis |
Respondent
REASONS FOR JUDGMENT
Introduction
An application was filed on behalf of the husband on 23 July 2010 asking that he be granted leave to file an appeal out of time. The husband is only one day out of time. The application for leave is opposed by the wife.
The orders the husband seeks to appeal are those made on 17 June 2010 by Federal Magistrate Demack. The orders were final property settlement orders.
History
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.
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.
Leave out of time application
In Clivery & Conway [2010] FamCA 1435 the well known principles referable to such leave applications was 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.
Explanation for the delay
On 7 July 2010 the husband and his daughter, attended the solicitor’s office seeking advice in relation to a prospective appeal. The husband had other solicitors for the proceedings before the Federal Magistrate. The solicitor in his affidavit explained that it became apparent at this meeting that the husband was not fluent in English and that his daughter had to act as a translator to facilitate the discussion. At the conclusion of the meeting it was decided that the oral advice given would be reduced to writing and that the daughter had authority to correspond with the solicitor.
The daughter rang the solicitor on either 13 or 14 July 2010. It was communicated to her during this conversation that in order for advice to be provided about the prospect of success in an appeal, it was necessary to obtain a transcript of the proceedings and review the file of the solicitors who previously had the carriage of the matter. The solicitor also said to the daughter that time was running out to file an appeal. It was suggested that an appeal be filed reserving the husband’s right to appeal. Information was also provided about liaising with the wife’s solicitors and minimising costs. At the conclusion of the phone call the daughter stated that she would be putting a cheque in the mail and that the solicitor should “go ahead as discussed”. On 14 July 2010 the notice of appeal was drafted.
On 16 July 2010 the solicitor’s employer authorised the filing fee for the notice of appeal to be paid from the firm’s office account, after the cheque was received, but before it had cleared, so that the time for filing an appeal did not lapse in the interim.
On the same day, the solicitor was informed that an appeal could not normally be filed at the local registry of the Family Court. However, they would accept a notice of appeal and fax a copy to the Appeal Registry in Brisbane. The solicitor then drove from [B] to the local registry to file the notice of appeal.
The notice of appeal was not accepted for filing as it was one day out of time. It became apparent that the husband’s solicitor erred in his calculation of the time limit.
Counsel for the respondent properly conceded that there was an explanation for the delay and that this was not the basis for resisting the application. I consider the explanation for the delay in filing the notice of appeal is entirely explained.
Prejudice
In addition, reliance was not placed by counsel for the respondent on any possible prejudice.
The merits of the appeal
In the event that leave is not granted the husband will be unable to appeal.
If on the contrary, an extension of time is given, the husband seeks to appeal orders 1, 4, 7 and 10 of the orders made by Federal Magistrate Demack on 17 June 2010. The orders relevant to the proposed appeal are as follows;
(1)That the husband do all things and sign all documents necessary to transfer the vacant blocks of land in [A], Greece, identified as:
(a) [3…/1988]
(b) [5…/1991]
(c) [4…/190]
(d) [5…/1991]
(e) [6…/1992]
(f) [6…/1992]; and
(g) [4…/1989]
to the wife as her property absolutely and the husband shall thereafter relinquish any claim or interest in those properties.
…
(4)That the wife do all things and sign all documents required to transfer the 1999 [vehicle] to the husband as his property absolutely and the wife shall thereafter relinquish any claim or interest in that car.
…
(7) That the husband retain for his sole use and possession the chose-in-action in the form of a loan to Mr [K].
…
(10)That save and except for any liability dealt with pursuant to the terms of these Orders, each party shall be solely responsible for and meet payment of his/her liabilities and shall keep indemnified the other party from any liability howsoever arising thereunder.
There are two grounds of appeal contained within the husband’s proposed notice of appeal. First, that her Honour erred in making a finding that the husband’s “inability to answer clear questions reflected less on his deteriorating hearing and more on his contempt for his former wife” did not take into account important issues; namely, the fact that English is not the first language for the husband, that no interpreter was present, and the husband’s age and his hearing difficulties. It is submitted that in failing to consider these factors the Federal Magistrate misdirected herself and was biased against the husband’s case. Secondly, it is submitted that her Honour erred in the calculation of the property pool by attributing wrong values to the real property located in Greece and that other orders could have been made.
In response, it is submitted by counsel for the wife that there are no proper grounds of appeal.
As to the valuation of the property in Greece, although the husband had an opportunity to provide a valuation he did not do so. Nor did the husband’s daughter who it was said might purchase the property for a greater figure than the wife’s valuation. This was unexplained at the trial, on this application and is unlikely to be repaired by an application for further evidence on appeal (see Kovacs & Kovacs [2010] FamCAFC 140).
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.
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.
Conclusion
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.
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).
Without considering the merits of the appeal any more than is necessary for this application, it can be seen that to deprive the husband of an opportunity to appeal, where the filing was one day out of time may work an injustice against the husband.
Leave should be granted.
Costs
In these circumstances the appropriate order is that the costs of and incidental to the application be assessed and that the applicant pay the costs of the respondent.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 27 August 2010.
Associate:
Date: 27 August 2010
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