MULHOLLAND & MULHOLLAND
[2018] FamCAFC 35
•23 February 2018
FAMILY COURT OF AUSTRALIA
| MULHOLLAND & MULHOLLAND | [2018] FamCAFC 35 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the applicant’s solicitors failed to file the draft appeal index within the prescribed time – Default of solicitors should not readily be borne by their client – Where the appeal is not devoid of merit – Application allowed – Order for the applicant to pay the respondent’s costs of the application. |
| Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Jess v Scott (1986) 12 FCR 187 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Mulholland |
| RESPONDENT: | Mr Mulholland |
| FILE NUMBER: | SYC | 7677 | of | 2014 |
| APPEAL NUMBER: | EA | 126 | of | 2017 |
| DATE DELIVERED: | 23 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 15 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 2979 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Tockar |
| SOLICITOR FOR THE APPLICANT: | Uther Webster & Evans |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley |
Orders
Appeal EA126 of 2017 is reinstated.
The time for the filing of a draft appeal index is extended up to and including 2 March 2018.
The applicant is to pay the respondent’s costs of this application.
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 Mulholland & Mulholland 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 126 of 2017
File Number: SYC 7677 of 2014
| Ms Mulholland |
Applicant
And
| Mr Mulholland |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 25 January 2018, Ms Mulholland (“the applicant”) seeks reinstatement of her appeal against orders made by Judge Henderson on 6 December 2017. Those orders resolved property proceedings between the applicant and Mr Mulholland (“the respondent”).
A Notice of Appeal was filed on 21 December 2017. Pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the applicant was required to file and serve a draft appeal index by 18 January 2018. She did not do so and her appeal was deemed to be abandoned (r 22.13(3) of the Rules).
Pursuant to r 22.44 of the Rules the Court can reinstate an appeal and pursuant to r 22.13(2)(b) extend the period for filing a draft appeal index.
The applicable principles
The principles to be applied in this case are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 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.
It is important to observe that the above remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless, they are relevant to this matter (Rand & Rand [2009] FamCAFC 88 at [16]).
The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequence for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.
Discussion
The explanation for the failure to file the draft appeal index within time is that it was simply overlooked by those persons within the applicant’s firm of solicitors whose obligation it was to ensure that it was prepared and filed.
The solicitor for the respondent was critical of this explanation because it neither identified who was at fault nor in what way they failed to prepare the index within time. I do not think that matters very much. The solicitors have accepted that it is entirely their fault. I bear in mind too that the effects of a solicitor’s default should not readily be borne by their client (see Jess v Scott (1986) 12 FCR 187 at 194–195).
The merits of an appeal are also a relevant factor but, as pointed out by the High Court in Jackamarra v Krakouer (1998) 195 CLR 516, where an appeal has been regularly filed it should ordinarily not be barred from proceeding due to some procedural oversight on the part of the appellant. In that case Brennan CJ and McHugh J opined that the merits of the appeal were relevant to the consideration of whether the relevant breach should be excused but that the extent of the enquiry was only whether or not the appeal was so devoid of merit as to make any extension of time futile.
Counsel for the applicant highlighted two grounds of appeal as examples in support of his submission that the appeal clearly had substance.
The first was a challenge to the primary judge’s finding that her orders effected the intended 60/40 division of the property in the favour of the applicant.
The parties had superannuation interests of $87,694 for the applicant and $194,289 for the respondent. The primary judge ordered that each party retain their own superannuation. The applicant submits that if the superannuation is included in the property to be divided, then the effect of the orders is to give the applicant less than the 60/40 division found by the primary judge to be the appropriate division.
The primary judge’s orders postulated two possibilities. The first was the former matrimonial home being transferred to the applicant, requiring a payment by her to the respondent, and the second was the property being sold and the proceeds divided. The submission proceeds that if the superannuation is included in the property to be divided, on the first alternative the applicant receives 56.3 per cent of the asset pool or 52.8 per cent of the asset pool on the second.
On the other hand, the respondent submits that it is quite clear, in particular from [176] of the primary judge’s reasons, that her Honour intended to exclude the superannuation from the assets to be divided and to deal with it as a separate group of assets. He submits that the correct interpretation of the reasons is that the primary judge intended to divide only the non-superannuation assets as to 60/40 and that the orders give effect to that intention.
The second ground highlighted by the applicant is one that deals with an account described in her Honour’s reasons as the “Country Y account”. It was held by the applicant and included in the property to be divided in the sum of $44,900. The applicant asserts that it was agreed between the parties that this account was not to be included as property to be divided between them but would be treated as a financial resource in the hands of the applicant. In response, the submission is that that was originally the position but after the applicant was cross-examined about this account the respondent changed his mind and submitted that it ought to be included as an asset to be divided.
If that is so, the primary judge neither recorded those submissions nor determined the issue in the reasons.
It is evident from what I have said that there is sufficient substance in these two grounds of appeal so that it cannot be said that they must fail. I need go no further for the purposes of this application.
The respondent asserted that he would be prejudiced in three ways if the application was granted.
The first is that the appeal would be delayed for about one month given the time that will have elapsed since the due date for the draft appeal index and any reinstatement. That may be so, but I do not consider such a delay to be a substantial prejudice.
The second factor pointed to by the respondent is that any appeal will delay resolution of the matter and see him being out of funds until the appeal is determined. Again that may be so, but that is the effect of the applicant exercising her right to appeal and the nature of the procedural irregularity that saw the appeal being deemed to have been abandoned.
Finally, the respondent submitted that he continues to be put to excessive legal fees by having to deal with the appeal, particularly in the light of the unnecessary expense to which he was put in running the hearing. That has some factual basis. The primary judge recorded that the applicant relied on over 2,000 pages of material which were ultimately not read by her but which the respondent says his lawyers were obliged to read. However, any prejudice that flows from that is a matter to be dealt with, if it is to be dealt with at all, by an application to the primary judge for an order for payment of the costs incurred in dealing with this material. I am informed that the respondent has in fact made such an application.
I am not satisfied that the respondent would suffer any material prejudice if the application was granted.
Taking all these matters into account, I am satisfied that the appeal should be reinstated.
Costs
Quite properly, the solicitors for the applicant indicated that they would be liable for her costs of this application.
Again, quite properly, no submissions were put in opposition to the respondent’s application for costs. The respondent has had to deal with this application through no fault of his own. Notwithstanding that his opposition to the application was unsuccessful it is appropriate to make an order that the applicant pay the respondent’s costs of this application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 23 February 2018.
Legal associate:
Date: 23 February 2018
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