McMillan & McMillan
[2017] FamCAFC 88
•24 April 2017
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN | [2017] FamCAFC 88 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – extension of time to file Notice of Appeal – where the husband sought to file two Notices of Appeal out of time – where the first Notice of Appeal related to the trial judge’s decision to dismiss an application to strike out an enforcement warrant issued by the wife in relation to a costs order –where the second Notice of Appeal related to the trial judge’s decision not to recuse himself – where there was a substantial delay in the husband filing the Notice of Appeal – where the husband’s explanation did not constitute a reasonable excuse for a delay of this magnitude – applications dismissed – costs ordered. |
Family Law Act 1975 (Cth) ss 94(2D)(e), 94AA(1)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) rr 1.14(1), 1.14(3), 22.03, 117
Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170
Bant & Clayton [2014] FamCAFC 108
Bowcott & Welling (2016) FLC 93-723
Chong & Chong [2016] FamCAFC 211
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gallo v Dawson (1990) 93 ALR 479
Joshua & Joshua (1997) FLC 92-767
Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232
Niemann v Electronic Industries Ltd [1978] VR 431
Rutherford & Rutherford (1991) FLC 92-255
Samsung Electronics Company Ltd v Apple Inc and Anor (2011) 217 FCR 238
Tormsen & Tormsen (1993) FLC 92-392
| APPLICANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| FIRST APPEAL NUMBER: | NA | 11 | of | 2017 |
| SECOND APPEAL NUMBER: | NA | 12 | of | 2017 |
| DATE DELIVERED: | 24 April 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24 April 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 May 2016 25 October 2016 |
| LOWER COURT MNC: | [2016] FamCA 387 [2016] FamCA 894 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Lago appearing via videolink |
Orders
The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA11 of 2017 be dismissed.
The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA12 of 2017 be dismissed.
The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or failing agreement, as assessed.
The costs ordered in (3) be paid within sixty (60) days of the date of any such assessment or agreement.
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 McMillan & McMillan 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 BRISBANE |
Appeal Number: NA 11 of 2017; NA 12 of 2017
File Number: CSC 355 of 2015
| Mr McMillan |
Applicant
And
| Ms McMillan |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This matter involves applications for an extension of time to file the Notices of Appeal in respect of two separate orders made by Tree J, the first order was made on 23 May 2016, the other on 25 October 2016.
The first order relates to an enforcement warrant which the wife obtained in relation to outstanding costs orders made against the husband and is the subject of Notice of Appeal number NA 11 of 2017. The second order is his Honour’s order refusing to recuse himself. That is the subject of Notice of Appeal number NA 12 of 2017.
In answer to the self-represented application’s question this morning, I made it clear that both of those applications were being dealt with today, which is what he requested.
As I have said, the applicant is self-represented in these proceedings. His Notices of Appeal concede that he needs leave to appeal in respect of each prospective appeal. [1]
[1]Section 94AA(1) Family Law Act 1975 (Cth) (“the Act”); reg 15A of the Family Law Regulations 1984 (Cth) (“the Regulations”). As to the need for leave in respect of a refusal of a recusal application see Bowcott & Welling (2016) FLC 93-723, [86].
Pursuant to s 94(2D)(e) of the Family Law Act 1975 (Cth) (“the Act”), an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division. The power to extend time is provided in rr 1.14(1) to (3) of the Family Law Rules 2004 (Cth) (“the Rules”).
The principles governing an application to extend time are well established in many decisions of the Full Court. Recent examples include Bant & Clayton [2014] FamCAFC 108, per May J; Chong & Chong [2016] FamCAFC 211, per Strickland J and Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232, per Thackray J. Those decisions of the Full Court to which I have just made reference rely, in particular, upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479.
In Joshua & Joshua (1997) FLC 92-767, at 84,440, Lindenmayer said, again citing McHugh J’s decision in Gallo v Dawson:
… 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 …
Further, the failure to establish particular factors informing the discretion is not a bar to its exercise; the fettering of the wide discretion given to the court to remedy genuine injustice wreaked by strict adherence to the rules being undesirable and not warranted by any legislative direction (see Tormsen & Tormsen (1993) FLC 92-392).
Context For the Applications For Leave to Appeal
The parties have a long history of litigation in this court. This litigation resulted in a number of costs orders being made in favour of the wife against the husband, spanning a 10 year period concluding in 2008. The wife did not seek to enforce those orders for a number of years. However, on 15 June 2015 the wife obtained an enforcement warrant in respect of seven outstanding costs orders made against the husband totalling $45,850.68. Of that amount $18,798.18 comprised the costs themselves and the balance of $26,463.32 interest.
The husband filed an Application in a Case seeking to have the enforcement warrant “dismissed, struck out or stayed”. The husband also sought other orders, arguing that the costs orders themselves should be set aside due to them being “procured by fraud”. The primary judge determined that the wife’s delay in seeking to enforce the orders did not affect the wife’s recovery of the costs but rejected her claim for interest:
In doing absolutely nothing to enforce her costs orders for many, many years, the wife’s delay should be at her cost, not the husband’s. I therefore decline to allow the enforcement warrant to continue in its present form. There will be orders staying further action upon the Enforcement Warrant issued 15 June 2015. A fresh enforcement warrant for the proper principal sum, and which claims no interest, will need to be filed by the wife.[2]
[2] Reasons 23 May 2016, [76].
The balance of the application, including assertions relating to the alleged conduct of the wife and her legal representatives at previous hearings was dismissed. However, the primary judge stated that should the husband wish to press these assertions:
… he will need to bring a further application to stay enforcement, or bring separate proceedings in a court with the necessary jurisdiction.[3]
[3] Reasons 23 May 2016, [77].
The Act neither prescribes criteria, nor provides guidance as to the matters which should or might inform the exercise of the discretion to grant leave to appeal. Authority of longstanding has identified matters relevant to the exercise of that discretion, while at the same time emphasising the undesirability of “rigid rules” governing the exercise of that discretion.
The identified matters include whether the impugned decision is attended by sufficient doubt, whether substantial injustice would be caused by the refusal of leave, and whether the impugned decision involves an interference with substantive rights or is a matter of practice and procedure.[4]
[4]Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170; Rutherford & Rutherford (1991) FLC 92-255; Niemann v Electronic Industries Ltd [1978] VR 431; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Samsung Electronics Company Ltd v Apple Inc and Anor (2011) 217 FCR 238.
NA 11 of 2017
Despite the husband’s success at the hearing before the primary judge on 23 May 2016 in relation to the wife’s claim for interest, his draft Notice of Appeal, asserts error as follows:
1.The Appellant was Denied Procedural Fairness.
2.The Appellant was Denied Natural Justice.
3.The appellant was Denied a Right to a Fair Trial.
(As per original)
Those proposed grounds are further particularised and I think it appropriate to set out those particulars here:
1.The Judge Erred in not allowing the Appellant his Rights as a Self Represented Litigant to be explained how the proceedings would be conducted and the procedure that was likely to be employed.
2.The Judge Erred in failing to grant an adjournment as Requested by the Appellant at the time of the 8-2-16 Hearing, so that the Appellant, a Self Represented Litigant, could better prepare Himself and prepare Documentation for a Final Hearing.
3.The Judge Erred in not Adjourning to allow the Appellant the opportunity to Subpoena Witnesses and Financial Documents in Preparation for a Final Hearing.
4.Judge erred in being too concerned about wasting the Family Court Resources to allow an adjournment to afford the Appellant a better opportunity to prepare his case for a Final Hearing.
5.Judge erred in failing to adjourn the matter and research the prior history of the Family Law matter of [McMillan], under File number 426/1995 so as to have some Understanding of The Long and Relentless History of the matters in the Case before Him and could properly consider the Orders I sought to Strike the Costs out.
6.The Judge Erred in not allowing the Appellant reasonable assistance and failed to maintain a “Level Playing Field” where a Self Represented Litigant was appearing opposite a Barrister
7.Judge Erred in relying too heavily on the Advice and Opinions of the Respondent’s Barrister who had influenced The Judge’s thinking, while holding a Conflict of interest toward his Client.
8.The Judge Erred in extending to the Respondent’s Barrister, an exclusive privilege of accessing the Court’s Files, to use in Court against the Appellant to advance the Respondent’s case.
9.The Judge Erred in failing to offer or afford the Appellant, an equal opportunity to access the Court’s Files to use in Court against the Respondent and advance the Appellant’s case.
10.The Judge Erred in not allowing Cross Examination of the Mother’s Barrister … who through his own doing, had become a Witness in these matters.
11.The Judge Erred in not Dealing with all of the matters before him and not completely disposing of the Costs matter but leaving the matter “Open” for further litigation.
12.Judge erred in failing to adjourn the matter so that the Judge himself could properly consider and ascertain what powers he had under what jurisdiction to Hear the Matters before Him.
13.Judge erred in distilling down the appellant’s Orders Sought, to just 4 Main issues that the Judge wished to Hear or that he thought that he had Power to Hear.
14.Judge failed to make ruling on whether there was evidence of Fraud and failed to make a referral to relevant authorities for investigation, in light of the documented evidence before him regarding the Respondent’s misconduct.
15.Judge failed to make ruling on whether there was evidence of Fraud and failed to make a referral to relevant authorities for investigation, in light of the documented evidence before him regarding the Respondent’s Lawyer’s misconduct.
16.Judge erred in not granting the appellant a requested publication order so that he could lobby for change to the Rules of collecting Costs etc and have a Sunset Clause reflecting other similar Limitations that may spare others the trouble that the Appellant has had with these matters.
17.Judge erred in making a finding regarding the Appellant’s property settlement with his 2nd wife, in the absence of any evidence and in contrast to the Appellant’s Sworn and Unchallenged, Documented Evidence before him regarding the Respondent’s Lawyer’s Lies to the Court, at a Prior Costs Hearing.
18.Judge failed to make Cost Order in favour of the Appellant, when Dismissing the Respondent’s Enforcement Warrant.
(As per original)
It is difficult to see, from the proposed grounds, and the material before the court, how the primary judge’s orders would cause a substantial injustice to the husband.
In that respect, it should be noted that his application with regards to the stay of the enforcement warrant was granted, albeit that his arguments regarding the extinguishment of his obligations under the initial costs orders were not accepted. The husband’s arguments as to the latter were referenced to equity, and allegations of “fraud” perpetrated by the wife and her legal representative, with respect to their conduct prior to the costs orders being made. Notably, the husband did not appeal those orders.
His Honour’s rejection of those arguments was based on:
38. Firstly, it is only facts or circumstances arising since the date of the orders sought to be enforced that will inform the discretion under s 105.
39.Secondly, the question for the court’s consideration is whether in all the circumstances it is inequitable to enforce the order …[5]
(Bold in original; Footnotes omitted)
[5]Reasons 23 May 2016, Tree J citing In the Marriage of Spry and Roet (1977) 29 FLR 425 at 428, 430 and Watson & Watson [2006] FMCAfam 293 at [32].
Neither reference to any material before this court nor any oral or written argument raised by the husband reveals any failure to accord the husband any procedural fairness, including any procedural unfairness emanating from the husband representing himself. Nothing is advanced by the husband indicative of any other error by the primary judge. Nothing advanced by the husband is persuasive that he has suffered any injustice nor can I see any matter of principle involved in the prospective appeal.
I am unable to see how the husband’s application for leave to appeal enjoys any realistic prospects of success.
NA 12 of 2017
The proposed grounds are the same as those for the proposed appeal in NA11 of 2017, however the “Particulars” differ:
1.The Judge Erred in not Properly Considering the Appellant’s application that The Judge Disqualifying Himself from further Hearing the matters.
2.The Judge Erred in not Disqualifying Himself from further Hearing the matters.
3.The Judge Erred by continuing to Hear the matters and as a result, The Appellant will be Denied Procedural Fairness, a Fair Trial, and Natural Justice.
On 25 October 2016 Tree J made an order dismissing the father’s application for his recusal.
The application was foreshadowed in the husband’s application for a stay of the enforcement warrant obtained by the wife on 16 June 2016. The application came before his Honour on 21 September 2016 and his Honour reserved his decision, allowing for the parties to file material or submissions with respect to the application.
In an affidavit filed by the husband on 29 September 2016 he outlined his arguments in support of his application for the primary judge’s recusal. In sum, the husband claimed that the primary judge did not allow the husband to properly litigate his claim in respect of “the alleged dishonesty of the wife and her lawyer in obtaining the several costs orders, and perhaps their dishonesty more generally”[6] in addition to claims that the primary judge “did not properly assist the husband as a self-represented litigant”. The husband also claimed relief based on the primary judge’s “fail[ure] to deal with the husband’s application for a publication order”.
[6] Reasons 25 October 2016, [9].
His Honour concluded at [10] of the Reasons that “there is nothing in [the husband’s claims] which would enable a reasonable observer to conclude that I had pre-judged the husband’s case as mounted by his application filed 14 September 2016”. His Honour went on to say “there is nothing in his assertions which is indicative that I would not bring an impartial mind to the resolution of the questions which I am required to decide”. There, his Honour can be seen to be referring to well-settled principles seen, for example, in Ebner v Official Trustee in Bankruptcy.[7]
[7](2000) 205 CLR 337 at 348. The primary judge referred in particular to what was said by Gleeson CJ, McHugh, Gummow and Hayne JJ at [19].
The husband points to no persuasive or substantial argument that suggests that finding by his Honour is attended by error. I can see no basis upon which pre‑judgment could be established reasonably. Indeed, in his Honour’s Reasons of 25 October 2016 he makes it clear that despite his earlier determination he recognised that factors affecting “the period under consideration in this current litigation is not identical to that which I considered in the first reasons”[8] and makes it plain that he was properly open to the receipt of persuasive evidence and argument. Pre-judgment is not established by reason only of a judge coming to a conclusion different to that which was contended for by a party. That contention appears to me to be at the heart of the husband’s claims.
[8]Reasons 25 October 2016, [14].
Nothing to which the husband has referred is persuasive of any pre-judgment on his Honour’s part. Nothing to which the husband has referred this court is persuasive of any error on the primary judge’s part.
Nothing advanced by the husband is persuasive of him having suffered any injustice. Nor can I see any matter of principle involved in the prospective appeal.
I am unable to see how the husband’s appeal enjoys any realistic prospects of success if leave was granted.
Explanation of Delay Relevant to Both Appeals
On 23 February 2017 the husband filed an affidavit with respect to the applications to extend time to file a Notice of Appeal with respect to each of the appeals under consideration.
In his affidavit the husband deposes to the history of the litigation between the parties, and that his long involvement in these proceedings has caused him great stress and that “as a result” he has been diagnosed with “Major Depression, Anxiety and Stress, of ‘Post Traumatic Stress’ type symptoms”.[9]
[9]Affidavit of the husband filed 23 February 2017 filed with the Application in an Appeal for NA 11 of 2017, paragraph 13, as per original.
He states that after the 23 May 2016 orders were handed down he was in communication with the Appeals Registry, but his “attention was Stolen Away from the progress of his Appeal … when the Respondent immediately threw the “First Stone” in a New Round of Litigation”: the respondent obtained a new enforcement warrant on 16 June 2016.[10]
[10]Affidavit of the husband filed 23 February 2017 filed with the Application in an Appeal for NA 11 of 2017, paragraphs 27-28.
The husband cites his focus on a stay application with regard to this new enforcement warrant as an explanation for his delay in filing a Notice of Appeal. He says he:
… has always intended to Appeal, and has been working on the Appeals, since the Orders was made, but with having to wrestle time in between the aforementioned extended litigation that ensued, as well as dealing with the Stress and Anxiety that has accompanied the Renewed Litigation, and particularly as a Self Represented Litigant, the Appellant’s ability to Finalise the documentation has been severely limited, but the Appellant has now been attending to this on a virtually “Sleepless” daily basis and now has the Appeals ready to the Stage of Filing.[11]
(As per original)
[11]Affidavit of the husband filed 23 February 2017 filed with the Application in an Appeal for NA 11 of 2017, paragraph 37.
Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) a party has 28 days in which to file a Notice of Appeal. With respect to the orders of 23 May 2016, the husband had until 20 June 2016 to file a Notice of Appeal. With respect to the orders of 25 October 2016, the husband had until 22 November 2016.
The applications for an extension of time to file a Notice of Appeal in each of NA11 of 2017 and NA12 of 2017 were filed on 23 February 2017, nine months from the 23 May 2016 orders, and four months from the October orders.
No evidence before me would challenge the husband’s assertion that he is suffering from stress and anxiety with respect to the litigation; common experience suggests that so much is highly likely to be correct. However, I do not accept that the stressors of being a self-represented litigant in the circumstances of this case constitutes a reasonable excuse for a delay of this magnitude.
It cannot be ignored that the husband did not appeal the original costs orders and that the wife’s enforcement actions are in respect of outstanding orders for costs and that those costs orders were made against the husband in relation to litigation being conducted 20 years ago.
These parties have been in some form of litigation for over 20 years. Despite there being a 10 year or so period where there was no active litigation, the husband was still bound by orders with which he did not comply and in respect of which he offers no evidence of any attempt to comply. Rather, he makes assertions in respect of the orders which might, at best, have been relevant to an appeal which he never prosecuted.
I consider that the applications for leave to appeal relate to appeals which enjoy negligible prospects of success. I cannot ignore that failure would again raise the prospect of costs orders being sought and, in the absence of any fairly arguable grounds for the application, those orders being made. History suggests that there is the real prospect of yet further litigation emanating from any such orders.
The application for extension of time in respect of both appeals will be dismissed.
Costs
At the conclusion of delivery of oral reasons in this matter, Mr Lago, on behalf of the respondent wife makes an application for the costs of and incidental to the applications in each of the appeals to which I have earlier referred, having heard my reasons and determination that the applications would be dismissed.
The application for costs is, of course, governed by the provisions of s 117(1) of the Act which provides that in the normal course of events there would be no order as to costs. However, Mr Lago makes reference to each of the factors enumerated in s 117(2A) of the Act, and submits centrally that the husband has been wholly unsuccessful in respect of the applications.
It is important to consider that the applications have been made in respect of orders that have been made for some considerable period of time. The applications for leave to appeal, in my view, enjoyed little prospects of success from the outset. I repeat, again, that much of the substance of the arguments made in respect of the applications pertains to orders to which the husband never appealed. There have been no offers in writing made in respect of the appeal, and it is submitted, and the husband does not submit to the contrary, that he has the financial wherewithal to meet any order for costs.
I consider it appropriate in the circumstances of this case that an order be made that the applicant husband pay the respondent wife’s costs of and incidental to both applications in an appeal in an amount to be agreed between the parties in writing or, failing agreement, as assessed.
I order that any such order for costs be paid within sixty days of the date of any such assessment or agreement as the case may be.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 24 April 2017.
Associate:
Date: 4 May 2017
7
10
0