Manotis & Manotis (No 2) - [2016] FamCAFC 232

FAMILY COURT OF AUSTRALIA

MANOTIS & MANOTIS AND ORS (NO 2)

[2016] FamCAFC 232

FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a Notice of Appeal against orders made in 2012 – There is no substantial issue to be raised on the proposed appeal – The explanation for the delay is not adequate and the respondents would be prejudiced – Order for the applicant to pay costs in fixed sums.

Family Law Act 1975 (Cth) – s 94AAA, s 117(2A)
Family Law Rules 2004 (Cth) – r 1.14

Joshua v Joshua (1997) FLC 92-767

APPLICANT:

Mr Manotis

1^ST RESPONDENT:

Ms Manotis

2^ND RESPONDENT:

Mr Matthews

3^RD RESPONDENT:

Mr Blanco

4^TH RESPONDENT:

X Lawyers

FILE NUMBER:

PTW

2347

2004

APPEAL NUMBER:

2016

DATE DELIVERED:

17 November 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

17 November 2016

REPRESENTATION

THE APPLICANT:

In person

THE 1^ST RESPONDENT

In person

THE 2^ND RESPONDENT

In person

COUNSEL FOR THE 3^RD RESPONDENT:

Mr Guerrini

SOLICITOR FOR THE 3^RD RESPONDENT:

Lawley Legal

COUNSEL FOR THE 4^TH RESPONDENT:

Mr Heathershaw

SOLICITOR FOR THE 4^TH RESPONDENT:

X Lawyers

Orders

The application for an extension of time in which to appeal against the order made by Magistrate Andrews on 2 May 2012 be dismissed.
The applicant contribute to the costs of the third respondent in the sum of $3,000 and to the costs of the fourth respondent in the sum of $750.

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 (No 2) 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 19 of 2016
File Number: PTW 2347 of 2004

Mr Manotis

Applicant

And

Ms Manotis

1^st Respondent

And

Mr Matthews

2^nd Respondent

And

Mr Blanco

3^rd Respondent

And

X Lawyers

4^th Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the court this afternoon is an Application in an Appeal by Mr Manotis (“the applicant”) seeking an extension of time to appeal the orders made by Magistrate Andrews on 2 May 2012.
The background to the application is well known to most of those who are participating in the proceedings and it will not be helpful for me to attempt to trace it. All I need say is that the order made by the Magistrate on 2 May 2012 was an interlocutory order made in the course of complicated property proceedings between the applicant and his former wife, who is the first respondent to today’s application. The wife was represented by X Lawyers, which is also a respondent to today’s application.
A significant part of the property that was the subject of the dispute was a piece of land in Town M. Orders were in place for the wife to obtain her settlement through the sale of the property in Town M, but attempts to sell that property had proved unsuccessful. It transpired that an impediment to the completion of a contract for the sale of the property was a lease over the land by Mr Matthews, who is also a respondent in today’s proceedings.
On the basis of evidence from a member of the firm of X Lawyers, and having taken into account submissions that were made on the day, including those made by counsel for the applicant, Magistrate Andrews made the orders which are the subject of the proposed appeal by the applicant. Her Honour’s orders joined Mr Matthews as a second respondent; directed the applicant to give notice to Mr Matthews to terminate any lease that he had on the property; and went on to provide that, in the event that Mr Matthews sought any expenses, damages or compensation arising from the termination of his lease, then he had to give particulars, and then, unless otherwise agreed between the applicant and Mr Matthews, any damages incurred by Mr Matthews were to be paid by the applicant from his share of the proceeds of sale.
Since May 2012, the matter has been the subject of ongoing litigation, which has involved a successful appeal to the Full Court of the Family Court of Australia, a protracted rehearing before Crisford J, and now an appeal against the decision of Crisford J. It was only after the filing of the appeal against Crisford J’s order that this application was made to extend the time in which to appeal against the decision of Magistrate Andrews.
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals from the Magistrates Court of Western Australia to the Full Court of the Family Court of Australia. Such an appeal is to be instituted within the time laid down in the Family Law Rules 2004 (Cth), being 28 days after the order is made. Rule 1.14 provides that a time period can be extended by the court, and the principles governing the extension of time are well known. They were usefully summarised by Lindenmayer J in Joshua v Joshua (1997) FLC 92-767 at 84,440:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant's delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. …
In the course of argument, I have attempted to have the applicant explain how the Magistrate made a legal error on 2 May 2012. Essentially, his argument concedes that she was not in error on the basis of the information she had available to her, because the applicant’s current complaints concern matters that were simply unknown to her Honour.
To the extent that the applicant complains about other matters related to the conduct of the hearing on 2 May 2012, for example her Honour’s failure to disregard the affidavit of the member of X Lawyers, these stand to be considered in light of the fact that the applicant was represented at the hearing and that none of these complaints were made to the Magistrate at the time.
In my view, there is no substantial issue to be raised on the proposed appeal. However, for the sake of completeness, I will consider the delay and the reason for it. The delay is extraordinary, being four and a half years. The explanation provided is that the applicant was unaware that he could appeal against a decision of the Magistrate, even though he was legally represented at the hearing and has been represented intermittently from time to time thereafter, and even though he subsequently appealed against a decision of a judge.
The applicant accepts that a couple of years ago he became aware of the fact that there was a right of appeal against a Magistrate, yet he still did not institute an appeal. He claims that it was only as a result of reading the decision of the Full Court that he appreciated the importance of the order that had been made by the Magistrate. Even then, there was further delay in instituting the appeal. Accordingly, I am not satisfied that there is adequate explanation for the delay.
Another issue to consider is prejudice to the other parties. There is clearly prejudice in an appeal being instituted so long after the event, particularly where the matter has moved on, and where there has been another trial in the matter, as well as the trip to the Full Court. In my view, extending the time in which to appeal would create significant prejudice. In considering that prejudice, it must be said that the applicant effectively is seeking to unscramble an egg which, in my view, is simply not possible.
For these reasons there is no merit in the application to extend time and the application will therefore be dismissed.

RECORDED: NOT TRANSCRIBED

The application now before the court is the application on behalf Mr Blanco for costs fixed in an amount of $3,000, and an application on behalf of X Lawyers for costs of $750.
The Act provides that parties to proceedings will pay their own costs unless the court is satisfied that it is appropriate that an order for costs be made. Subsection 117(2A) of the Act lays down a number of matters to be taken into account in determining whether or not a costs order should be made.
Chief among those for present purposes is the fact that this application has been wholly unsuccessful. Properly advised, Mr Manotis would not have made this application. He disclosed today that his lawyer, who he consulted about the matter, warned him that the delay would be a very significant matter in the court’s consideration. In my view, there is a basis for a costs order.
In relation to financial circumstances, I have not been provided with current information concerning Mr Manotis’ position, other than he says he cannot afford to pay costs. The authorities are clear that impecuniosity is not an adequate defence to an application for costs, particularly in circumstances such as this, where the application had so little merit.
The two respondents should not be out of pocket any more than they already will be as a result of this application. The parties should not be put to the time and expense of having the costs assessed. In my view, the amounts sought by both parties are appropriate and there will be orders accordingly.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 17 November 2016, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 24 November 2016