MERYMAN & EASTLAND
[2016] FamCAFC 73
•10 May 2016
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) Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 |
| APPLICANT: | Mr Meryman |
| RESPONDENT: | Ms Eastland |
| FILE NUMBER: | BRC | 5218 | of | 2015 |
| APPEAL NUMBER: | NA | 69 | of | 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 twenty one (21) days of the date of these Orders.
2.That prior to 12 October 2015 the [Mr Meryman] file and serve a further affidavit detailing:
a.all funds received from any claim arising from his motor vehicle accident;
b.the disposition of all funds so received, including particularity in relation to:
i.where funds have been withdrawn by way of cash withdrawals, the amount and explanation as to each withdrawal; and
ii.where funds have been transferred, the amount, purpose of transfer and the account to where funds were transferred.
3.That each party make full and frank disclosure as provided for in Federal Circuit Court Rules 2001.
THE COURT ORDERS UNTIL FURTHER ORDER:
4.That [Mr Meryman’s] solicitor provide written advice to the [Mr Meryman] in relation to Rule 15.29 of Part 15 of the Federal Circuit Court Rules 2001.
5.That leave be granted for the parties and their legal representatives to view the subpoena documents currently produced to the Court by St George Bank.
Paternity testing
6.That after the child is born and prior to 12 October 2015, pursuant to s.69W of the Family Law Act 1975 the Applicant, the Respondent and the child shall undergo paternity testing through DNA Queensland (…) in relation to the child in accordance with the procedures prescribed in the Family Law Regulations.
…
9.That this matter be adjourned for Interim Hearing at 10.00am on 12 October 2015 in the Federal Circuit Court of Australia at Brisbane.
It was not clear from Mr Meryman’s draft Notice of Appeal, nor his proposed grounds, whether he intended to appeal all or only some of the orders.
In the hearing of the Application, counsel for Mr Meryman indicated that should leave be granted, the Notice of Appeal will be substantially amended and that the appeal will be only from Orders 2 and 3. Unfortunately, this document was not prepared at the time of the hearing of the Application so it could not be considered.
The Application to Extend time to Appeal
Background
The proceedings for financial relief were commenced by way of initiating application on 11 June 2015 by Ms Eastland. The application was also for costs in the sum of $50,000 to be paid by Mr Meryman prior to the hearing (a Hogan order).
The parties have two children together, the eldest born in 2013. The second child was born in 2015. Paternity testing, ordered by the court, confirmed the second child was also the biological child of the Mr Meryman.
The lawyers for the parties appeared before Judge Purdon-Sully on 20 July 2015; when Mr Meryman was ordered to file a response, and give notice to his former partner of the proceedings. The matter was adjourned to 13 August 2015, as Mr Meryman objected to the court’s jurisdiction to hear the matter – on the basis there was no de facto relationship.
On 13 August 2015 each party was represented by counsel. Mr Meryman was not present, it was said he was unwell and a medical certificate was provided. There are no reasons for judgment, I will refer to the transcript of the hearing.
The orders, by consent, required a response to objections to evidence within 21 days, and Mr Meryman also to file an affidavit detailing the funds received emanating from a motor vehicle accident, and how those funds have since been distributed. Formal standard orders were made for disclosure.
The matter was further adjourned until 12 October 2015, and again to 17 February 2016. According to the submissions of counsel, this hearing was further adjourned.
Ms Eastland, the respondent, opposes the Application, on the basis that substantial injustice has not been demonstrated.
It is not without significance that there was no submission made on behalf of Mr Meryman before her Honour that the orders should not be made and it appears from the transcript (the relevant parts produced below) that his solicitor agreed:
HER HONOUR: Can I just indicate to you, having thought about this – and subject, obviously, to any submissions I hear from anybody, but my thought is that [Mr Meryman] really needs to file an affidavit explaining the whereabouts of that money or, if it has been disbursed, when it was disbursed. That’s the first thing. The second thing is…
…
HER HONOUR: …Ms [X] and her involvement. So, you know, if she wants to engage, then she’s entitled to do that, and it seems to me that’s relevant to the second limb, which is the Hogan application. And, thirdly, for the reasons that I indicated, I am troubled to think that you wouldn’t be able to have a look at the subpoenaed material, but anyway, those are my thoughts at this stage. The matter, really, probably needs to be adjourned. I’m away from 27 August, and I appreciate that there’s some urgency associated with this, so I’m just – my associate will have to have a look at some dates if it does go off. Okay?
MR SHOEBRIDGE: Thank you.
HER HONOUR: Yes. Mr Hardwick.
MR HARDWICK: Yes, your Honour. We had some discussions, and in relation to the solicitor’s affidavit in support of our adjournment, I can hand that up now. Your Honour, that’s the basis of the adjournment that we seek. We also agree that, yes, an affidavit should be filed by [Mr Meryman] in relation to the funds and that the more suitable course for this matter would be for the adjournment to be granted.
(Transcript, page 22, l 18 – 47) (emphasis added)
Principles for an Extension of Time
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) requires a Notice of Appeal to be filed within 28 days of the date of the order being appealed. Mr Meryman was required to file a Notice of Appeal by 10 September 2015. He was therefore 22 days out of time when he filed the application on 2 October 2015.
Reference is often made to the general principles for granting an extension of time as contained in Gallo v Dawson (1990) 93 ALR 479 at 480 – 481 per McHugh J, particularly in relation to the following factors:
a)Whether there is an adequate explanation for the delay;
b)The proposed grounds of appeal having some merit; and
c)That any prejudice to the respondent to the application can be compensated by an order for costs.
These factors are not decisive or exhaustive. The central consideration is whether to grant an extension of time is necessary to do justice between the parties.
The orders are interlocutory in nature and the appeal would require leave. The test for leave being granted in the Family Court was recently redefined in Medlow & Medlow (2016) FLC 93-692:
57.We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(original emphasis)
In this case, even without applying such a strict test, it can be seen that leave to appeal would not be granted. Thus for reasons which will further be explained, the application should fail.
The Application
In an affidavit filed by Mr Meryman’s solicitor on 2 October 2015, he blames technical issues for the delay. It seems clear that, the solicitor attempted to file the Notice of Appeal on 14 September 2015, although he was aware at this time it was some four days out of time.
The solicitor then explains that a letter sent by the Family Court Registry, dated 15 September 2015, was not received by him until 29 September 2015. This letter rejected the filing of the Notice of Appeal and explains it must be filed together with an Application in an Appeal seeking an extension of time in which to lodge the Appeal. The Application in an Appeal and accompanying affidavit were then filed 2 October 2015.
In addition, the solicitor explains the reasons for the proposed appeal being filed late include:
(a)late receipt of funds to pursue the appeal; and
(b)computer issues leading to the non-receipt of e-mails and documents from 9 to 11 September 2015.
It is clear from the solicitor’s own affidavit that he was aware of the time limitation and knew that he was out of time when he attempted to file the Notice of Appeal on 14 September 2015.
An Application in an Appeal could have been filed earlier. As counsel for Ms Eastland correctly identifies in written submissions, Mr Meryman’s documents were sent from the solicitor to counsel after the last day for filing within time.
The delay has been explained but it is an unsatisfactory situation which could have been remedied earlier.
In considering granting an extension of time it is also necessary to have regard to the merits of the appeal. The draft grounds contained in the document attached to the Application are as follows:
1.That Her Honour erred at law in making interlocutory orders when the threshold issue regarding jurisdiction had yet to be determined.
2.That Her Honour exercised her discretion incorrectly in predetermining the respondent’s application in the Federal Circuit Court matter before determining the threshold issue.
3.That Her Honour denied procedural fairness to the Appellant.
4.That the orders made by the Federal Circuit Court on 13 August 2015 be stayed pending determination of the appeal.
Registrar Kane wrote to the solicitors for Mr Meryman on 27 October 2015, advising that the proposed Ground 4 of the appeal seeks to stay orders of Judge Purdon-Sully, which can only be achieved by way of an Application for a stay of orders in the court of first instance. Further, the solicitors were advised that it was not clear whether all, or only some, of the orders made on 13 August 2015 were to be appealed. Despite this, there was no attempt to provide an amended Notice of Appeal.
Leave to Appeal
Counsel for Mr Meryman indicated that the appeal (when drafted) would seek leave to appeal on the following basis:
1.That Mr [Meryman] had not consented to the orders.
2. That Her Honour erred at law in making interlocutory orders when the threshold issue regarding jurisdiction had yet to be determined.
As counsel for Ms Eastland correctly contends, leave to appeal has not been properly requested in the proposed Notice of Appeal. Leave to appeal is required from a prescribed decree (per s 94AA(1) of the Family Law Act 1975 (Cth)), which is defined in reg 15A of the Family Law Regulations 1984 (Cth) as, among other things, is an interlocutory decree. Correctly, counsel for Ms Eastland submitted by reference to Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177 that a court would normally be reluctant to review an interlocutory decree concerning practice or procedure unless this results in a substantial injustice to a party and that in such case an error of principle may also need to be demonstrated. It is unnecessary to say anything further, especially in view of the more recent authority Medlow¸ discussed above.
In written submissions, solicitors for Mr Meryman contend there is merit in the appeal and leave would be granted. They argue that the primary judge was required to determine the existence of a de facto relationship before making any other orders. Relying on the judgment of Harman J in Benedict & Peake [2014] FCCA 642, the solicitors argue that until such declaration is made the court would have no jurisdiction.
Apart from the issue related to jurisdiction, Mr Meryman has not demonstrated a substantial injustice. The orders from which he apparently wishes to appeal merely required him to file affidavit material to prepare for the hearing. This hearing included the application for a Hogan order. Of course, the other difficulty for Mr Meryman is that his lawyers consented to the orders.
The essence of the proposed appeal is whether the judge could make these orders in the preparation for the trial prior to the hearing of the substantive issue, that is whether the parties had been in a de facto relationship within the meaning of the Act.
There is a dispute between the parties as to whether or not Mr Meryman and Ms Eastland lived in a de facto relationship. There is no dispute that the parties had two children and were from time to time living together.
Counsel for Mr Meryman relied on Norton & Locke (2013) FLC 93-567 to contend that the judge had no power to make Orders 2 and 3. In Norton the primary judge made orders of an interim injunctive nature and required the provision of a financial statement pursuant to Part 24 of the Federal Circuit Court Rules (2001) prior to the hearing of the issue as to whether the parties had been living in a de facto relationship.
In Norton & Locke, the Full Court determined that leave to appeal should be granted and the appeal allowed. In my view, paragraph 43 of that decision which I will shortly set out in full demonstrates that Judge Purdon-Sully was able to make Order 2. Order 3 is probably meaningless as it does not add anything to the obligation already imposed on parties by the legislation:
43.This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect[…] its function as a court”.
The Full Court also specifically considered whether the Federal Circuit Court, not being a “superior court of record” could make orders ancillary to a determination about jurisdiction. The court decided that “the Federal Circuit Court has jurisdiction to ascertain whether it can make orders pursuant to Part VIII AB of the Act” [56].
In [59] it was decided:
59.For the preceding reasons, we are of the view that the Federal Circuit Court has the jurisdiction to determine whether “…it has the jurisdiction which has been purportedly invoked” and, within that jurisdiction, has the power to “control its own process” and prevent an abuse of same which extends, in “compelling circumstances”, to an order maintaining the status quo pending a determination regarding jurisdiction.
As to that part of the appeal in Norton & Locke challenging the order that the appellant file and serve a financial statement and provide documents referred to in r 24.04 the court decided:
79.In our view, perforce of the reasons earlier outlined, until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information pursuant to Part 24 of the Rules.
80.However, as has been said, the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. For example, the intermingling relationship or lack of intermingling of the parties’ respective financial affairs, may be directly relevant to the establishment of whether a de facto relationship exists (see, s 4AA(2)(d) of the Act).
In this matter, it can be seen that the information required to be filed in an affidavit from Mr Meryman “could be required for the narrow purpose to which directions might be fashioned by the court for the limited ‘jurisdictional purpose’…” [82].
In some cases it will be necessary for a judge to determine the jurisdiction issue before making any further orders (per Norton & Locke). However, in this case where such an order was procedural in nature, it could not be just to allow Mr Meryman to appeal such an order and thereby delay the determination of the issue even further. Ms Eastland, who now has full time care of both children and is self-funded, would suffer such an injustice that it would substantially outweigh any possible merit in the proposed appeal.
It is difficult to see any utility in the proposed appeal and it is most unlikely that should such an appeal be heard that leave would be given as Mr Meryman could not demonstrate a substantial injustice.
In addition there would be significant prejudice to Ms Eastland. The affidavit of her solicitor filed in these proceedings on 12 November 2015 describes her very difficult circumstances. On balance, it cannot be seen that granting leave to file an appeal would serve the interests of justice.
Costs
Counsel for Ms Eastland asked for indemnity costs. There are circumstances which justify an order for costs, the application being wholly unsuccessful, but this case does not fall within the category of “exceptional” to justify an order on an indemnity basis. Mr Shoebridge of counsel informed the court that the costs, on the scale, would be in the sum of $4,713.86. An itemised list was tendered. To avoid further costs of assessment, an order will be made in that sum payable by Mr Meryman within 28 days.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 10 May 2016.
Associate:
Date: 10 May 2016
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