Manotis and Manotis and Ors
[2016] FamCAFC 200
•9 August 2016
FAMILY COURT OF AUSTRALIA
| MANOTIS & MANOTIS AND ORS | [2016] FamCAFC 200 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application for review of the Appeal Registrar’s decision not to accept the Notice of Appeal for filing – The Registrar was wrong in his initial view that the Notice of Appeal was filed out of time – A registrar does not have authority to reject a Notice of Appeal on the on the basis that it does not disclose a proper complaint or that the relief sought is incompetent – Decision set aside – Order for the Notice of Appeal to be accepted for filing. |
| Family Law Act 1975 (Cth) – s 37A(10) Family Law Rules 2004 (Cth) |
| APPLICANT: | Mr Manotis |
| 1ST RESPONDENT: | Ms Manotis |
| 2ND RESPONDENT: | Mr Matthews |
| 3RD RESPONDENT: | Mr Blanco |
| 4TH RESPONDENT: | X Lawyers |
| FILE NUMBER: | PTW | 2347 | of | 2004 |
| APPEAL NUMBER: | WA | 13 | of | 2016 |
| DATE DELIVERED: | 9 August 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 9 August 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE 1ST RESPONDENT | In person |
| THE 2ND RESPONDENT | In person |
| COUNSEL FOR THE 3RD RESPONDENT: | Mr Guerrini |
| SOLICITOR FOR THE 3RD RESPONDENT: | Lawley Legal |
| COUNSEL FOR THE 4TH RESPONDENT: | Dr Dickey QC |
| SOLICITOR FOR THE 4TH RESPONDENT: | X Lawyers |
Orders
On review, the decision of the Appeal Registrar not to accept the applicant’s Notice of Appeal received on 29 March 2016 for filing be set aside.
The Appeal Registrar is directed to receive the Notice of Appeal for filing, on the basis that the Notice is to be treated as if it were filed on 29 March 2016.
The filing fee for the Notice of Appeal be remitted.
The appellant file and serve an amended Notice of Appeal setting out concise and comprehensible grounds of appeal and orders sought within 35 days.
Any party thereafter be at liberty to seek to list the matter before the Appeal Registrar for a directions hearing.
No orders as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manotis & Manotis and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 13 of 2016
File Number: PTW 2347 of 2004
| Mr Manotis |
Applicant
And
| Ms Manotis |
1st Respondent
And
| Mr Matthews |
2nd Respondent
And
| Mr Blanco |
3rd Respondent
And
| X Lawyers |
4th Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the court this morning is the Application in an Appeal filed by Mr Manotis, which although noted as being received by the court on 13 May 2016, was formally filed on 21 June 2016. The application seeks:
1.… a review of my PROPOSED APPEAL and APPLICATION for a STAY of Justice Crisford’s orders of the 26/02/2016; due to the procedural difficulties that I have encountered.
2.This review now may entail the seeking of an extension of time (even though I have been on time with my filed documents). If that is so, then I do seek an extension of time.
…
Paragraph 3 seeks a stay, which is not an order that I can make on such an application. Paragraph 4 seeks that all future hearings be heard in Bunbury, but the applicant appears to accept that is not practicable. Therefore, my attention today will be directed to paragraphs 1 and 2 of the application.
The background of the matter is known to all here and is far too complex to summarise. It is sufficient to say that following a successful appeal by the applicant to the Full Court of the Family Court of Australia some years ago, the orders made by Moncrieff J were set aside and the matter was remitted for hearing before another judge. That hearing took place over an inordinate period of time, given the complexities of the matter and the nature of the parties. On 26 February 2016, Crisford J delivered her judgment and made orders disposing of the matter. Mr Manotis is aggrieved by her Honour’s decision and has attempted to appeal against it.
On Good Friday, 25 March 2016, Mr Manotis travelled to Perth to lodge his Notice of Appeal at the Family Court registry, which was unsurprisingly closed. Having found the registry closed and no drop box available for delivering the documents, he returned to his home in the country. When the registry re-opened after Easter on 29 March 2016, Mr Manotis lodged his proposed Notice of Appeal, which was referred to the Appeal Registrar.
On 4 April 2016, the Appeal Registrar wrote to Mr Manotis, returning the appeal documents unfiled. In the letter, the Appeal Registrar said:
In relation to appeals under the Family Law Act 1975 from orders of a Judge of the Family Court of Western Australia, such appeals must be instituted within 28 days of the orders appealed from. You are therefore out of time to lodge an appeal.
It is possible to seek an extension of time in which to appeal.
…
As to your proposed Form 20 Notice of Appeal, I am unable to give you legal advice but it is appropriate that I give you the following procedural and other advice based on the documents submitted by you on this occasion
...
(e)The grounds of appeal should not be a rambling collection of thoughts, general criticisms or comments, but should be limited to numbered paragraphs which are a succinct statement of the errors of law and/or fact sought to be relied upon as a basis for the Appeal. Profanities and insulting language should not be used.
I trust the above is of assistance.
I return your documents to you, unfiled.
…
Mr Manotis took issue with the Registrar’s decision and wrote to the court on 18 April 2016. The Registrar responded by letter dated 27 April 2016, saying:
…I do note the comments in your documents to the effect that your Notice of Appeal was originally submitted on the first day on which the Registry was open following the expiration of the appeal period of 28 days. In this regard you are right in thinking that the Notice of Appeal was filed within time.
Notwithstanding this, however, as I pointed out to you in my letter dated 4 April 2016 your Notice of Appeal was not drafted in a manner which was acceptable for filing then, appears to be unaltered, either significantly or at all, and remains in a form not acceptable to me for filing.
In my letter to you dated 4 April 2016 I went into some detail as to what needs to be addressed as to the form in which the Notice of Appeal is to be drafted to render the document appropriate for filing.
I reiterate that I am unable to give you legal advice, but I can elaborate further on at least some of the matters that require attention…
There was then further correspondence relating to the application that is now before the court, with objections being taken by the Registrar to the form in which that application was being pursued by Mr Manotis. Ultimately, the application was accepted for filing on 21 June 2016.
The first difficulty in dealing with Mr Manotis’ application today is to properly conceptualise the relief that the applicant is seeking. The document refers to seeking a review, and that would be one appropriate means of attempting to achieve the objective that the applicant wishes to achieve, namely to have a properly constituted Notice of Appeal on foot.
In legal terms, the applicant might be seen as seeking a review by me of the decision of the Registrar. That application would have been out of time when it was filed on 21 June 2016, but paragraph 2 seeks an extension of time. However, a review of a registrar can be undertaken by a judge of the court of his or her own motion under s 37A(10) of the Family Law Act 1975 (Cth), without regard to the time limits in the Family Law Rules 2004 (Cth).
If the application is properly conceptualised as seeking a review, the first question is whether the decision of the Registrar was wrong. It is conceded on all sides that the Registrar was wrong in his initial view that the Notice of Appeal was filed out of time. The remaining question is whether the decision of the Registrar was otherwise supportable as a result of the deficiencies in the content of the proposed Notice of Appeal.
Dr Dickey QC submits that the deficiencies in the Notice were a secondary basis for the decision made by the Registrar. In advancing that proposition, he refers to the letter from the Registrar dated 27 April 2016, in which the Registrar said, after the event, that the document was not in a form acceptable for filing because of the deficiencies in its content. In asserting that the Registrar has authority to make decisions of that nature, senior counsel then draws attention to the content of the document itself. In that regard, I have the benefit of the succinct written submissions of senior counsel, in which he properly draws attention to what have to be perceived as major deficiencies in the drafting of the grounds of appeal and the relief sought.
I do not necessarily agree with all of the submissions that have been made by senior counsel, because I have not taken the time to study which paragraphs of the proposed grounds might be offensive, scandalous, vague or incomprehensible. However, my own reading of the lengthy and convoluted grounds satisfies me that this document was presented in an entirely unhelpful and inappropriate form. Similarly, senior counsel is correct in drawing attention to the incompetence of many of the orders sought by the applicant.
I am not persuaded, however, that the Notice of Appeal was originally rejected on the basis of the deficiencies in form. In my view, the better reading of the letter from the Registrar of 4 April 2016 is that the document was rejected because it was out of time, but the Registrar properly and helpfully drew attention to the deficiencies in the Notice so that the applicant could endeavour to remedy those deficiencies before seeking to appeal out of time. In my view, it does not advance the respondents’ case to say that when the Registrar’s error was drawn to his attention, he then stated that the Notice of Appeal was not in a form suitable for filing. I proceed on the basis that the original rejection was not for two reasons, but for one only.
Lest I be wrong in that regard, the question that then arises is whether a registrar has authority to reject a Notice of Appeal on the basis that the registrar if of the opinion that the grounds do not disclose a proper complaint against the decision of the trial judge, and on the basis that the registrar considers the relief sought in the proposed appeal is incompetent. In my view, this raises issues as to whether these are matters of procedure or substantive law, since the Registrar was entirely right to differentiate in his correspondence between his capacity to give procedural advice and his capacity to give legal advice.
In my view, the determination of whether a Notice of Appeal contains grounds of appeal that could be sustained when heard by a Full Court is clearly a matter of law, and therefore a matter for the exercise of judgment by the court properly constituted and not by one of its registrars, no matter how experienced and skilful he or she might be. Similarly, the question of whether the relief sought is competent is a matter of law, not a matter of procedure.
In my view, when presented with what on its face appears to be a properly completed Notice of Appeal, or one that is capable of rectification at a later stage, a registrar ought receive it, direct it be filed and leave it to those opposing the appeal to agitate their concerns in relation to any deficiencies. Of course, there are remedies available to respondents who claim to be embarrassed or prejudiced by the form in which the document is drafted.
In arriving at my decision, I note that Mr Manotis has indicated that he accepts that the document is not in a suitable form for presentation to a Full Court. He tells me that he is seeking legal advice, first, in relation to a substantive matter which will say a great deal about the possible merit of his appeal; but, secondly, in relation to the way his Notice of Appeal can be recast. Speaking for myself, it would be most helpful if the recast Notice is not prepared by Mr Manotis after having a chat with a lawyer, but rather is a Notice on which a lawyer is prepared to sign his or her name as representing proper grounds of appeal and appropriate relief.
In arriving at my decision, I have not overlooked what Dr Dickey QC has had to say in relation to the tragedy associated with this litigation, the prospects of it being prolonged further and the costs associated with it being prolonged further. I have also drawn to Mr Manotis’ attention the likelihood that unless he ‘gets his act together’, there will be further applications to have the Notice of Appeal struck out and/or an application for security for costs if the recast Notice does not contain any indication that there is any merit in this appeal.
I also proceed on the basis that my preliminary perusal of this Notice of Appeal would indicate that it is largely constructed on an entirely false premise about the options that were available to Crisford J and an entirely false premise that her Honour somehow sought to overturn the decision of the Full Court, because manifestly she did not. However, I cannot exclude the possibility that there might be some merit hidden away in the rambling grounds, even in relation to one of the more peripheral matters about which Mr Manotis complains.
On that basis, I intend to treat this application as being an application for a review of the Registrar’s decision rather than an application for an extension of time in which to appeal. In those circumstances, it is not appropriate for me to further enter into the question of the merits of the substantive matter.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 9 August 2016, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 17 October 2016
3
0
2