Marino & Bello
[2021] FedCFamC1A 72
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marino & Bello [2021] FedCFamC1A 72
Appeal from: Bello & Marino (No. 4) [2021] FCCA 1554 Appeal number(s): EAA 82 of 2021 File number(s): PAC 437 of 2020 Judgment of: AUSTIN J Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the appeal was deemed abandoned due to failure to file a Draft Appeal Index within 28 days of filing the Notice of Appeal – Where the applicant filed an Application in an Appeal seeking the re-instatement of the appeal – Where the Appeal Registrar dismissed the application and the applicant seeks review of that decision – Where the applicant’s explanation for the delay lacks substance – Where the proposed grounds of appeal are relatively weak – Where the applicant is not liable to suffer substantial injustice if the original orders stand – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 22.13
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.44
Cases cited: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Markwell & Ranwick & Anor [2020] FamCAFC 232
Murray & Murray (2020) FLC 94-000; [2020] FamCAFC 293
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Tabb & Tabb [2017] FamCAFC 169
Number of paragraphs: 35 Date of hearing: 7 December 2021 Place: Newcastle (via video link) The Applicant: Litigant in person The First Respondent: No appearance The Second Respondent: No appearance ORDERS
EAA 82 of 2021
PAC 437 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MARINO
Applicant
AND: MR BELLO
First Respondent
MS BELLO
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 November 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marino & Bello has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 9 July 2021, a judge of the Federal Circuit Court of Australia (as the Court was then known) made an order compelling the applicant to pay the respondent’s costs of parenting proceedings, commenced by the applicant in January 2020 but discontinued by him in November 2020.
The respondents are the parents of three children who were the subject of the proceedings and the applicant is their estranged maternal uncle. The respondents jointly resisted the applicant’s application for orders in respect of the children. In December 2020, after the proceedings were discontinued, the respondents made an application against the applicant for their costs of and incidental to the proceedings, which was determined by the primary judge after receiving both written and oral submissions from the parties. The applicant was ordered to pay the respondents’ party/party scale costs, fixed in the sum of $7,782 within 30 days.
The applicant appealed from the orders by way of a Notice of Appeal filed on 23 July 2021.
Pursuant to r 22.13 of the Family Law Rules 2004 (Cth), which then applied, the applicant was obliged to file a draft appeal index within 28 days of the appeal being filed, in default of which the appeal was deemed abandoned. The applicant failed to file the draft appeal index by the due date so the appeal was deemed abandoned on 20 August 2021.
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which now apply, permit a party to apply for re-instatement of an appeal deemed abandoned (r 13.44).
On 19 October 2021, the applicant filed an Application in an Appeal seeking the re-instatement of the appeal. The appeal registrar promptly heard the application on 28 October 2021, but dismissed it on 5 November 2021, for which reasons were published.
Then, on 8 November 2021, the applicant filed an Application in an Appeal seeking the review of the Appeal Registrar’s decision and an order re-instating the abandoned appeal. That is the application listed for determination before me today (7 December 2021). As is required, the underlying re-instatement application is determined afresh by hearing de novo.
Legal principles
In effect, the applicant’s re-instatement application is akin to an application to extend time, but there is a distinction to be drawn between applications to extend the time within which to file an appeal and, on the other hand, an application to extend the time for taking some procedural step within an appeal already competently lodged (Jackamarra v Krakouer (1998) 195 CLR 516). The principles governing the grant or refusal of an application to extend time have been authoritatively established (Gallo v Dawson (1990) 93 ALR 479).
In Tabb & Tabb [2017] FamCAFC 169 at [9]–[14], Kent J reviewed the authorities dealing with applications to re-instate an abandoned appeal and considered they have much in common with applications to extend the time for filing an appeal, as discussed in Gallo v Dawson. His Honour observed the following factors are liable to influence the exercise of discretion as to whether or not to extend time and, given it was not contended such observations were incorrect, I respectfully adopt them:
(a)the extent of delay, whether there is an adequate explanation for it, and any relevant consequences of the delay;
(b)the nature of the litigation and the consequences for the parties of the grant, or refusal, of the application;
(c)the prospects of the applicant succeeding in the appeal; and
(d)whether the applicant demonstrates that to refuse the application would constitute an injustice.
Ryan J held similarly in Markwell & Ranwick & Anor [2020] FamCAFC 232 at [23]–[36].
The evidence
In support of his application to re-instate the appeal, the applicant relied upon his affidavit filed on 19 October 2021 and, in support of his review application, the further affidavit he filed on 8 November 2021.
In effect, the applicant contended that he was:
…incapable of filing the draft index as required within 28 days due to further exacerbation of a medical condition.
To verify his ailment, the applicant annexed to his first affidavit two documents prepared by his treating doctors.
The first was an affidavit sworn in December 2020 by his immunologist, filed in unrelated proceedings before the Supreme Court of NSW, confirming the applicant’s condition had not been diagnosed, but requesting that he be permitted to attend “his court trial by video-link”.
The second was a letter prepared by the applicant’s general practitioner in May 2021, confirming his condition had still not yet been diagnosed, but certifying he was “unfit to continue court or work” and “currently unfit to travel interstate”.
As can be seen, taken at its highest, such medical evidence only confirms the applicant’s unfitness for certain forms of activity (being travel, attending court or work) up until May 2021.
Significantly, the applicant filed his appeal in July 2021, two months after the latest medical certificate was prepared.
In his second affidavit, he deposed:
The appeal was deemed abandoned by my failure to provide a tiny draft index document due to exacerbation of a medical condition which left me entirely incapacitated and bed-ridden for months.
No further medical evidence was then adduced to corroborate his medical condition in the period of three months between 23 July 2021 (when he filed his Notice of Appeal without any legal assistance) and 19 October 2021 (when he filed his re-instatement application).
In relation to such lack of corroboration, the applicant explained:
There is no medical documents which covers the months I was bed-ridden as I could not go outside given the severity however my GP will gladly provide same as she is well aware of the condition and severity as many appointments were by telephone as sometimes I was too ill (sic).
But, on the hearing of this review application, the applicant tendered two further documents.
The first was a letter dated 30 November 2021 prepared by the applicant’s immunologist (Exhibit A). It confirmed his admission to hospital on four occasions between March and June 2021, during which period the doctor said the applicant “was not able to work” and was “quite ill”.
The second was an historical medical certificate dated 25 September 2020 (Exhibit B) but, given its antiquity, it was of no assistance. In any event, it only attested to the applicant’s need to wear sunglasses while participating in “court video call conferencing”.
The applicant confirmed his two affidavits and the two exhibits comprised the totality of the evidence upon which he wished to rely. Consequently, there is still no corroborative medical evidence to verify the applicant’s incapacity between July and October 2021.
Disposition
As can be seen from the extracted evidence, the applicant’s re-instatement application is chiefly predicated upon the asserted adequacy of his explanation for the delay of several months in preparing the draft appeal index and then seeking re-instatement of the appeal. The only other consideration he sought to emphasise was the ostensible merit of his pleaded grounds of appeal. It is therefore convenient to deal with those considerations first.
While the applicant was unchallenged about the accuracy of his evidence of being bed-ridden and incapacitated for months, at face value, it is difficult to accept such evidence as being literally correct. The Court is not obliged to accept evidence merely because it is unchallenged and may reject it if it is inherently improbable (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561, 586–589; Scott & Scott (1994) FLC 92-457 at 80,729–80,732). It is inherently improbable the applicant was bed-ridden without respite for about three continuous months. The medical evidence adduced by the applicant does not support his contention of such extensive incapacity for so long.
The immunologist said in December 2020 that the applicant’s condition only warranted his attendance at an unrelated court event by video-link, but did not say his condition precluded even his electronic participation in that litigation. More recently, the immunologist confirmed the applicant was unable to work up until June 2021. The general practitioner said in May 2021 the applicant was unfit to travel interstate and was unfit to “continue court and work”. Neither doctor offered any opinion at all about the applicant’s capacity to use a computer to electronically file documents in litigious proceedings from the comfort of his home. If the applicant was so unfit to accomplish even that in May 2021, he ably proved his subsequent recovery of the capacity to do so because he filed his Notice of Appeal that way in July 2021.
It may be readily accepted that the applicant unfortunately experienced some ill health during 2021 but, in the absence of corroborative medical evidence, I do not accept he was so acutely incapacitated that he could not electronically file his draft appeal index in August 2021 and was then unable by reason of his medical condition to file his re-instatement application until October 2021. The explanation for delay proffered by the applicant is not persuasive.
In relation to the supposed merit of his appeal, the applicant asserted this:
I respectfully seek review of the decision and re-instatement of my appeal which is an appeal as of right and is prima-facie strongly arguable and likely to succeed.
(Emphasis added)
However, the applicant’s asserted belief in the strength of the appeal and its prospects of success is not borne out by cursory evaluation of the grounds of appeal, pleaded in the Notice of Appeal in these terms:
1.Error of law – The Court did not have jurisdiction or in the alternative acted beyond its power in awarding cost 9 July 2021. The Courts order contravenes the High Court authority for reopening judgments.
2.The Court failed to take into account or given any weight to the fact that the respondents and their lawyers:
A. failed to comply with 2 duly executed Notice to Produce;
B 3 subpoenas;
C A formal written request according to 13.01FCR;
with regards to settlement offers made by the appellant not produced to the clients by the law firm.
3.Error of law – The items referred to in the judgment fall within the scope of FCC order which was set aside by the full court on 6 November 2020.
4.The court failed to take into account or give any weight to the significant disentitling conduct by the respondents and the law firm.
5.The appellant was denied procedural fairness given he was wholly successful in the matter and forced to withdraw due to the extreme bias and other considerations beyond the appellant’s control which resulted in 2 judges to be disqualified in the matter.
6.The court failed to take into account or given any weight to the circumstances involved in the appellant’s withdraw of the matter.
(As per the original)
Contrary to the applicant’s contentions, the primary judge certainly had jurisdiction to entertain the respondents’ costs application under s 117 of the Family Law Act 1975 (Cth), certainly did not exceed power in making the costs order in their favour, and no question of re-opening the proceedings ever arose, so there was no error of law on those premises (Ground 1).
Nor could the applicant maintain his dual complaints of denial of procedural fairness and bias, since his allegations of being “wholly successful” and being “forced” to discontinue his substantive parenting application (Ground 5) are demonstrably incorrect. He voluntarily discontinued his application, so it was not determined on its merits, and the respondents’ application for costs succeeded because they were put to the expense of defending a parenting application which the applicant ultimately withdrew.
The remaining grounds (Grounds 2, 3, 4 and 6) complain of errors in the failure to take account, or sufficient account, of other factors said to be relevant. It cannot be said such grounds are entirely without merit but, since they tend to hinge on assessments of weight given to certain aspects of the evidence, the barrier to their success is substantial (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 519–520).
Although not addressed by the applicant, there is another factor which is liable to influence the exercise of discretion. The appeal, should it be re-instated, seeks only to challenge the validity of a costs order in the sum of $7,782. It is well established that, other than for strong reasons, an appellate court will not interfere with the discretion belonging to the court below to make costs orders (Murray & Murray (2020) FLC 94-000 at [85]). In this instance, the strong reasons needed to interfere with the costs order are not evident from the grounds of appeal. It is not unjust for the applicant to be denied the chance he has already forsaken to appeal from an order of such modest proportion on grounds which lack ostensible merit.
In the exercise of discretion, the application to re-instate the abandoned appeal is refused because the applicant’s explanation for his delay is unconvincing, his proposed grounds of appeal appear relatively weak, he is not liable to suffer real injustice if the original orders stand, and to resist what appears to be an unmeritorious appeal the respondents would be put to undue expense and unnecessarily delayed in executing their judgment.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 December 2021
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