Maxwell and Miltiadis
[2014] FamCAFC 180
•10 September 2014
FAMILY COURT OF AUSTRALIA
| MAXWELL & MILTIADIS | [2014] FamCAFC 180 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is a satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended. |
| ||||
| APPLICANT: | Ms Maxwell | |||
| RESPONDENT: | Mr Miltiadis |
| FILE NUMBER: | MLC | 10137 | of | 2013 |
| APPEAL NUMBER: | SOA | 39 | of | 2014 |
| DATE DELIVERED: | 10 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | Consent Orders made 29 January 2014 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr De Vries |
SOLICITORS FOR THE APPLICANT: | David Stagg Tonkin & Company |
| COUNSEL FOR THE RESPONDENT: | Mr Kiernan |
| SOLICITORS FOR THE RESPONDENT: | James Harris Lawyers |
Orders
The time for a Notice of Appeal to be filed against the orders made by Judge Riley on 29 January 2014 be extended to the close of business on Friday
19 September 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxwell & Miltiadis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 39 of 2014
File Number: MLC 10137 of 2013
| Ms Maxwell |
Applicant
And
| Mr Miltiadis |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an application in an appeal filed by Ms Maxwell (“the applicant”) on 24 June 2014 in which she seeks an extension of time to file a Notice of Appeal against orders made by Judge Riley on 29 January 2014. I note that the orders made on that day by her Honour were consent orders.
The application is supported by an affidavit of the applicant and a draft Notice of Appeal both filed on 24 June August 2014.
The application is opposed by Mr Miltiadis (“the respondent”) and a Response by him has been tendered today, as well as a supporting affidavit. In that Response he seeks that the application be dismissed and he also seeks an order for costs. I note that the affidavit is in response, as it necessarily would be, to the affidavit in support of the application.
As has been raised with both counsel, there are parts of the affidavit relied upon by the applicant which, in my view, are not relevant to the application that I am to hear and determine today, and thus that also makes some of the responding affidavit irrelevant.
Separate to that, the applicant sought to tender a further affidavit today. I challenged counsel for the applicant as to the relevance of that affidavit. It seems that as with the other affidavits, some of that affidavit is relevant, but other parts are not, and in the end result I received the affidavit de benne esse, and will refer to its contents where I need to.
The Response and the affidavit of the respondent, I will receive for the purposes of filing, and I will also refer to that affidavit where necessary.
By way of background, the matter came before her Honour on 29 January 2014, it seems, on the first return date of the initiating application filed by the applicant. However, the parties, together with their then solicitors, negotiated a settlement during the course of the day of the hearing, and at the end of the day the matter was called on before her Honour and the orders sought by both parties were made by consent.
As will be seen, that history is highly relevant to the success or otherwise of this application.
Relevant statute law and rules of court
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
In this case, as I have identified, the orders were made on 29 January 2014, and thus either party had 28 days thereafter to file a Notice of Appeal in compliance with the Rules. That was not done, and thus if either party wished to appeal thereafter they needed to make an application for an extension of time, and that is what the applicant has done and, to repeat, that is the application before me today.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J said this at 480:
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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what Gallo & Dawson and the subsequent Full Court cases tell me, is that there are a number of relevant factors which need to be addressed such as whether there is an adequate explanation for the failure to comply with the relevant timeframe for the filing of the Notice of Appeal, whether there is a substantial issue to be raised on appeal, or put another way, whether there is at least an arguable case on appeal, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. To repeat, and I cannot stress enough, the overarching principle is to ensure that injustice is not visited, primarily on the applicant, but also the respondent.
In this case, the factors that have been identified by both counsel and in respect of which submissions have been made are first, whether there is an adequate explanation for the failure to comply with the timeframe under the Rules for the filing of a Notice of Appeal, secondly, whether there is an arguable case on appeal and thirdly, the consequences of either granting or refusing the application.
Discussion
Adequate Explanation
The applicant sets out her explanation for failing to meet the timeframe in paragraphs 20 to 32 inclusive of her affidavit filed on 24 June 2014.
There are of course two relevant time periods to consider. First, the 28 day time period immediately following the making of the orders, and secondly, the time period beyond that 28 day period to the point of the application seeking an extension of time. In this case, there was some four months beyond the initial 28 day time period before the application was filed, and as I say, that was filed on 24 June 2014.
In summary, the explanation for the failure to comply first with the 28 day time period and secondly, for the period at least up until 30 April 2014, was that the applicant was unaware of her right, as she describes it in her affidavit, of appeal. It was only on 30 April 2014 when she engaged her present solicitors that she was made aware of her right of appeal, and that there may be a basis for her exercising that right.
As Mr Kiernan for the respondent has correctly pointed out, but using my phraseology, that can be considered a two-edged sword. In other words, up until 30 April 2014, it seems on its face, that the applicant was quite satisfied with the orders that were made in January 2014, and she was satisfied to pursue enforcement of those orders where necessary. Mr Kiernan argues that that as a result, that cannot be a satisfactory explanation for the failure to file the Notice of Appeal initially, and also the failure thereafter to file an application seeking an extension of time.
On the other hand, and to this extent I agree with Mr De Vries, that has to be viewed in the unusual circumstances of this case. By that I mean, in a situation where there has been, for example, a contested hearing with solicitors representing both parties and counsel perhaps, after a decision is handed down one would expect that both parties would be advised by their respective solicitors of their right to appeal. In this case though, there was a consent order made, and there would seem to be no apparent basis for the solicitors who were then acting for the applicant to advise or inform her that she had a right of appeal. It is understandable in those circumstances that up until the applicant consulted her present solicitors, she was not aware of her right of appeal, and thus she did not even contemplate exercising such a right of appeal.
I consider that that provides an adequate explanation for the applicant’s failure to comply with the initial timeframe of 28 days, and also for no application for an extension of time being filed in the period up to 30 April 2014. Thereafter what is put by the applicant is that her solicitors investigated whether an appeal was open to her. For that purpose there was a need to obtain the previous solicitor’s file, to take instructions, to seek the advice of counsel, which was done and counsel’s advice was obtained. One thing counsel requested was a copy of the transcript of the hearing on 29 January 2014, and once that transcript was obtained then further advice was provided. All that took until
13 June 2014. Given that the advice was to pursue an application for an extension of time to appeal, that application was then prepared and filed on
24 June 2014.
It seems to me, and I find, that that is a satisfactory explanation of the delay from 30 April 2014 to 24 June 2014 in filing an application seeking an extension of time.
Thus I am satisfied that there is an adequate explanation as to first, the initial 28 day time period, and secondly, the period thereafter before the application for an extension of time was filed.
The merits of the appeal
It is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation namely, the transcript of the hearing before the trial judge, which of course is necessarily brief because a consent order was made, the draft Notice of Appeal which the applicant would want to proceed on if an extension of time was granted. I also have the affidavit material that I have referred to but what I do not have is the benefit of the full range of material that would be before the Full Court if the Full Court was now hearing the appeal. For example, the Full Court would have the benefit of summaries of argument from both parties. Thus, I am simply not able to assess the merits of the appeal in depth, and my analysis must necessarily be limited to the material that I do have, together with the oral submissions made by counsel today.
The issue is whether it is apparent that there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success, then that is enough. In my view the exercise is somewhat similar to the exercise required in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies, the appeal should be allowed to proceed.
In that context I now turn to the grounds of appeal contained in the draft Notice of Appeal.
There are 11 grounds of appeal. It seems to me, and Mr De Vries did not disagree when I put this to him, that the major complaint, or the principal thrust of the appeal, is that her Honour erred in finding that the orders sought by the parties were just and equitable. The basis for that is the exchange that took place between bench and bar on 29 January 2014. That exchange relevantly was as follows:
…
MS CLARK: Your Honour, the parties have reached an agreement today on a final basis. The issues are both parenting and property. In relation to the parenting issues, there’s one child of the relationship, [A], she will be turning eight [in] February. The orders provide time for the child to live with the mother and spend time with the father each alternate weekend, school holiday periods, Greek Easter, Christmas holidays, telephone time and other times as agreed between the parties.
HER HONOUR: Yes.
MS CLARK: In relation to property the parties have agreed to the sale of the matrimonial home in [H]. They’ve agreed to a settlement of the mother receiving $575,000 as a lump sum payment and for the father to maintain the expenses of the child from now and until the future. The mother has agreed to removing caveats from the property, each party retaining their motor vehicle and superannuation. And there has been a division also of the chattels as well.
HER HONOUR: Yes. So why do you say those proposed orders are just and equitable?
MS CLARK: Your Honour, they provide the mother the ability to live in suitable accommodation. The child, [A], has a disability, so the father providing for the expenses of the child are just and equitable in that it allows the mother to be able to care for the child, should the need arise. And certainly, in terms of time spent, the child is able to have a substantial relationship with the father, as there is substantial time provided for the father to spend time with the child.
HER HONOUR: And what’s the value of the assets?
MS CLARK: The total asset pool, your Honour, really hasn’t been determined at this early stage. But it is really the sale of the matrimonial home. There are the father’s interests in properties associated with his business, which – the properties in itself haven’t been valued. The mother has around $40,000 in superannuation; the father hasn’t disclosed his but he deposes on affidavit that he has no superannuation. So the division itself is – we are unable to put a percentage on it, but it allows for the mother to set up a home and have suitable accommodation for herself and the child.
HER HONOUR: Yes. Did you want to add anything, Mr Yianoulatos?
MR YIANOULATOS: No, your Honour.
HER HONOUR: No. All right. I’m satisfied the proposed orders are just and equitable. So there will be orders by consent in terms of the minute. The applicant’s solicitor to file a clean certified electronic copy within seven days and the copy to be attached to those orders. And I congratulate the parties on reaching a settlement.,
MR YIANOULATOS: If your Honour pleases.
HER HONOUR: Thank you.
MS CLARK: If the court pleases.
(Transcript 29.1.14, page 2, lines 11 – 46, page 3, lines 1 – 15)
As is apparent from that exchange her Honour asked the necessary questions but neither counsel was able to answer those questions. Despite this, her Honour then said “I am satisfied the proposed orders are just and equitable” and made orders in terms of the minutes of order by consent.
The complaint is that her Honour has erred in that she could not have been satisfied on the information provided to her by the solicitors on that day, that the proposed orders were just and equitable.
In response to that Mr Kiernan submits that it is not just a matter of looking at what her Honour was told on that day, because at that time there were affidavits and financial statements on file from both parties, and her Honour can be taken to have read those documents and to be aware of the contents of them. On that basis her Honour would have had a working, or passing knowledge, of what each party was saying as to the relevant facts and the extent of the various assets of the parties, including their assertions as to the value of at least some of those assets.
For my part, I challenged Mr De Vries as to why it could not be the case that her Honour was relying on the fact that she had qualified practitioners before her, the parties had negotiated for almost the entirety of the day with their solicitors, consent minutes had been agreed upon, and both parties were seeking orders be made in terms of those consent minutes.
Now, that may very well be an answer to, or an argument against the ultimate success of the appeal, but of course, as I have said and I stress again, I am not in a position, and it is not my task today to determine the appeal. What I have to be satisfied of is that there is an arguable case on appeal, and it seems to me that there is.
To address the submission made by Mr Kiernan. He of course is right as to what was on file, but what may be determinative is what was actually said on the day. Her Honour was not for example directed to those documents by either solicitor as a response to her questions. What was put to her Honour was, and again using my phraseology, “we cannot tell your Honour what the value of the assets are, or what the settlement represents in terms of a percentage division, and we cannot answer the question why the settlement was just and equitable beyond saying that it provides a home for the applicant and the child”.
In my view there are many questions that arise out of the grounds of appeal and particularly the major ground of appeal that I have identified, and to my mind that circumstance demonstrates that there is an arguable case on appeal. That is not to say, and the applicant should not leave this courtroom thinking that this court is indicating that the appeal will be successful. That is not what is being said; it is nothing more than there is an arguable case on appeal, or to put it in the way that I did earlier, it is not apparent that the appeal is hopeless or doomed to fail.
The consequences of granting or refusing the application
Turning to the prejudice to the applicant if I refuse the application, and the prejudice to the respondent if I grant the application.
If the application is granted the appeal will be able to proceed, and the respondent will need to deal with it. He will need to spend time and presumably money in responding appropriately to the appeal. Thus there is an obvious prejudice to the respondent given that at the present time there is no appeal on foot against those orders, and he has been, and is today entitled to proceed on the basis that there is no appeal on foot and the orders stand.
If the application is refused then the applicant will not be able to pursue her appeal, and significantly there is no appeal to the Full Court from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia. However, that is usually a difficult exercise and may not be warranted in this case. In any event this is a serious consequence for the applicant if her application is refused.
Thus, there is prejudice either way and it is a matter of balancing that prejudice in looking at where the justice of the case might lie.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors here, informs the court in determining the fundamental issue, namely, where the justice of the case lies.
I have found that there is an adequate explanation for the failure to comply with the timeframe provided in the Rules, and that there is an adequate explanation for the delay in filing the application seeking an extension of time. I have also found that there is an arguable case on appeal. There is then the prejudice that the parties might suffer depending upon the result, and although there will be significant prejudice suffered by the respondent if the application is granted, in my view, taking into account all of those factors, the interests of justice require that the application be granted.
I certify that the preceding forty-five (45) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 September 2014.
Associate:
Date: 17 September 2014
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