MERYMAN & EASTLAND - [2016] FamCAFC 73

FAMILY COURT OF AUSTRALIA

MERYMAN & EASTLAND

[2016] FamCAFC 73

FAMILY LAW – APPLICATION IN AN APPEAL – Application seeking an extension of time to file a Notice of Appeal – Where orders made by consent requiring further evidence – Where procedural orders were made for disclosure – Where the applicant’s solicitor knowingly attempted to file the appeal out of time – Where no attempt was made by the applicant to remedy the situation after notice from the Appeal Registry – Where significant prejudice is caused to the respondent – Where there is little merit in the proposed appeal and no substantial injustice – Where the orders are interlocutory in nature and leave to appeal would not be granted – Where the orders made directions and orders in preparation for trial (per Norton & Locke (2013) FLC 93-567) – Application dismissed.

FAMILY LAW – COSTS – Where the circumstances do not justify an order for indemnity costs – Where the applicant should pay the costs of the respondent in a fixed sum – Where it is appropriate to make an order for costs.

Family Law Act 1975 (Cth) s 94AA(1)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) r 22.03

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Benedict & Peake [2014] FCCA 642
Gallo v Dawson (1990) 93 ALR 479
Norton & Locke (2013) FLC 93-567

APPLICANT:

Mr Meryman

RESPONDENT:

Ms Eastland

FILE NUMBER:

BRC

5218

2015

APPEAL NUMBER:

2015

DATE DELIVERED:

10 May 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

1 December 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:	Richard Gray & Associates
COUNSEL FOR THE RESPONDENT:	Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Jones Mitchell Lawyers

Orders

The application filed on 2 October 2015 be dismissed.
The applicant pay the respondent’s costs within 28 days of today, fixed in the sum of $4,700.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meryman & Eastland 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 BRISBANE

Appeal Number: NA 69 of 2015
File Number: BRC 5218 of 2015

Mr Meryman

Applicant

And

Ms Eastland

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Meryman filed an Application in an Appeal (together with an affidavit) on 2 October 2015 seeking an extension of time to file a Notice of Appeal. The proposed appeal is from the orders of Judge Purdon-Sully made on 13 August 2015. The orders made by the judge were as follows:
THE COURT ORDERS BY CONSENT UNTIL FURTHER ODER:
1.That the objections to evidence raised by [Ms Eastland’s] Counsel be responded to by [Mr Meryman] in writing to the [Ms Eastland’s] solicitor within…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MERYMAN & EASTLAND

Details

AGLC: MERYMAN & EASTLAND [2016] FamCAFC 73
Case: [2016] FamCAFC 73
Decision Date: 10 May 2016

CaseChat Overview and Summary

The case involved an application seeking an extension of time to file a Notice of Appeal from a decision in a family law matter. The application was brought before the Family Court of Australia by the appellant, who sought an extension due to orders made by consent that required further evidence. The respondent opposed the application, arguing that the appellant's solicitor had knowingly attempted to file the appeal out of time and that no steps were taken to remedy the situation after notice from the Appeal Registry. The appeal was further complicated by the fact that significant prejudice was caused to the respondent, and the proposed appeal had little merit, with no substantial injustice to the appellant. Additionally, the orders in question were interlocutory in nature and, in accordance with the decision in Norton & Locke, leave to appeal would not be granted. The court was required to decide whether to grant the extension of time and, if not, to determine the appropriate costs order.

The court considered the principles outlined in the Family Law Act 1975, Family Law Regulations 1984, and Family Law Rules 2004, as well as relevant case law such as Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc, Benedict & Peake, Gallo v Dawson, and Norton & Locke. The court noted that interlocutory orders, such as those in this case, generally do not warrant leave to appeal, and therefore, the application for an extension of time was unlikely to succeed. Furthermore, the court found that the appellant's solicitor had knowingly attempted to file the appeal out of time, and no steps were taken to remedy the situation after notice from the Appeal Registry. The court also noted the significant prejudice caused to the respondent and the lack of merit in the proposed appeal. Given these factors, the court determined that the application for an extension of time should be dismissed.

The court concluded that the application filed on 2 October 2015 be dismissed, as it found no grounds for granting an extension of time to file the Notice of Appeal. The court also made an order that the appellant pay the respondent's costs within 28 days of the judgment, fixed in the sum of $4,700. The court found that the circumstances did not justify an order for indemnity costs but that it was appropriate to make an order for costs given the circumstances of the case.

In summary, the application for an extension of time to file a Notice of Appeal was dismissed, and the appellant was ordered to pay the respondent's costs in a fixed sum of $4,700. The court found that the application was unlikely to succeed, and the factors considered, including the nature of the orders, the lack of merit in the proposed appeal, and the significant prejudice caused to the respondent, supported the dismissal of the application and the costs order.

Orders

Orders of the court

The application filed on 2 October 2015 be dismissed.

The applicant pay the respondent’s costs within 28 days of today, fixed in the sum of $4,700.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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