NASHA & BELINCHON
[2018] FamCAFC 38
•5 March 2018
FAMILY COURT OF AUSTRALIA
| NASHA & BELINCHON | [2018] FamCAFC 38 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE APPEAL – Where the applicant has not provided an adequate explanation for the failure to file a Notice of Appeal within time – Where there appears to be a substantial issue to be raised on appeal – Where there is prejudice to each of the parties depending on the outcome – Where the interests of justice require that an extension of time be allowed – Application granted. FAMILY LAW – COSTS – Where the applicant is being granted an indulgence because of his failure to file a Notice of Appeal within time – Costs ordered in favour of the respondent. FAMILY LAW – COSTS CERTIFICATES – Where both parties apply for costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) to cover the costs associated with a previous hearing – Where the parties submit that the previous proceedings were “discontinued” and “a new hearing” ordered which was not caused by the “neglect, default or improper act” of either of the parties – Where the granting of a costs certificate is entirely discretionary – Where the time available at the previous hearing was used to clarify issues and shorten the time required to hear the application for an extension of time – Where the discretion should not be exercised in favour of the parties – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) reg 21M(2) and (5) |
| Coulton v Holcombe (1986) 162 CLR 1 Cundy v ACT Cross Country Club Inc [2009] FCA 1461 Gallo v Dawson (1990) 93 ALR 479 Lindner and Lindner (1985) FLC 91-638 Maxwell Coulson and Gosford Meats Pty Ltd [1985] 7 FCR 109 Re Morris; Morris v Maroudas (1986) 66 ALR 699 Redshaw and Redshaw (1989) FLC 92-053 Suttor v Gundowda (1950) 81 CLR 418 Water Board v Moustakas (1988) 180 CLR 491 Wilkes and Wilkes (1981) FLC 91-060 |
| APPLICANT: | Mr Nasha |
| RESPONDENT: | Ms Belinchon |
| FILE NUMBER: | MLC | 1906 | of | 2016 | |
| APPEAL NUMBER: | SOA | 49 | of | 2017 |
| DATE DELIVERED: | 5 March 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 7 November 2016 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bacon |
| SOLICITOR FOR THE APPLICANT: | Manby and Scott Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Tynan |
| SOLICITOR FOR THE RESPONDENT | Taussig Cherrie Fildes Lawyers |
Orders
The time for the applicant to file a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against the order of Judge Curtain made on 7 November 2016 be extended to the close of business on Monday 26 March 2018.
The applicant pay the costs of the respondent of and incidental to the application in an appeal filed on 13 July 2017, such costs to be assessed in default of agreement.
The joint oral application made by the parties for costs certificates in relation to the hearing on 14 September 2017 be dismissed.
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 Nasha & Belinchon 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).
|
Appeal Number: SOA 49 of 2017
File Number: MLC 1906 of 2016
| Mr Nasha |
Applicant
And
| Ms Belinchon |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed by Mr Nasha (“the applicant”) on 13 July 2017 seeking, in effect, an extension of time to apply for leave to appeal, and if leave is granted, to appeal the orders made by Judge Curtain on 7 November 2016.
The orders sought to be complained of relevantly provided for the applicant, having been established to be the father of the child as a result of parentage testing, to forthwith pay all arrears of child support due to the respondent.
The application is supported by an affidavit of the applicant also filed on 13 July 2017. Further, as is required, on that same day the applicant lodged with the court a Draft Notice of Appeal, being the Notice of Appeal that he would proceed on if an extension of time is granted.
There is also before the court a joint oral application of the parties for the grant of costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth). That application is supported by written submissions filed on 20 November 2017. I will return to this application later in these reasons.
Ms Belinchon (“the respondent”) opposes the application seeking an extension of time.
The relevant principles
The principles in relation to applications to extend time are well known, and are set out in the oft-quoted judgment of McHugh J in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, at 480, as follows:
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.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in determining that, there are a number of factors that need to be addressed, subject to relevance.
Here, the relevant factors would appear to be the adequacy of the explanation for the failure to file a Notice of Appeal within the 28 day period allowed under the Family Law Rules 2004 (Cth) (“the Rules”), as well as for the failure to file the application now before the court in a timely fashion, the merits of the proposed application and appeal, and any prejudice to the parties depending on whether an extension of time is granted or refused.
Discussion
The adequacy of the explanation for the failure to file a Notice of Appeal within time
Following the making of the orders, a forensic decision was made by the applicant, on the advice of the new lawyers that he engaged, to make an application to the primary judge pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), to set aside the orders and reopen the hearing, rather than to file a Notice of Appeal.
Rule 16.05(2)(a) provides as follows:
The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:
(a)It was made in the absence of a party; or
…
This paragraph applied, at least prima facie, because the applicant was not present on the day of the hearing. The applicant had a solicitor at the time, and he attended the hearing, but it seems that he withdrew saying he did not have instructions or funding.
The applicant says that his solicitor telephoned him on 3 November 2016, namely four days before the hearing, and told him that he need not attend court because the parentage test result was not available, and he would adjourn the hearing. He then says that at 9:00am on the day of the hearing he was telephoned by the solicitor, who said that he had to be at court by 9:45am. However, the applicant did not attend, he says, because he was relying on the solicitor having the case adjourned, as was discussed on 3 November 2016, and in any event, he could not get there in time.
The respondent’s counsel, who was present at the hearing, says that the solicitor attended, told the primary judge that the applicant knew the date, that he had spoken to the applicant that day, that he knew about the test result, but the solicitor had no funds, he could not get proper instructions, and he asked to be excused.
Unfortunately, the transcript of that hearing has not been provided to the court, and there is no affidavit from the applicant’s former solicitor. I do have though the transcript of the hearing on 22 February 2017, when the applicant’s application to set aside the order was initially dealt with by the primary judge, and this issue was played out, including with the applicant giving oral evidence. However, that evidence was less than helpful in explaining why it was that he did not attend the hearing, and whether he was represented or not. Indeed, that initial hearing on 22 February 2017 was adjourned to 30 March 2017 to enable the applicant to either obtain an affidavit from his former solicitor, or issue a subpoena for him to give evidence, as well as produce his file.
However, that never happened, because the applicant discontinued the application, he says, because he was poorly treated by the primary judge, and he was unable to face him again. He then instructed his solicitor to make an application for an extension of time to appeal, but that did not happen then because he says he did not have the requisite funds. He made an application for legal aid but, unsurprisingly, that was unsuccessful. He then had a bout of ill-health, and eventually on 30 June 2017 he instructed his solicitor to file the application that is now before the court.
Pausing there, and putting aside that it was a forensic decision, in normal circumstances the applicant’s attempt to have the order set aside pursuant to r 16.05(2)(a), rather than appeal, would be the correct decision (Wilkes and Wilkes (1981) FLC 91-060).
However, I am not persuaded that it was open to the applicant to utilise that paragraph given the unsatisfactory evidence of why he did not attend the hearing, and the unresolved question of whether he was represented or not. Further, and in any event, he did not see that process through, and I am not satisfied as to his explanation for not doing so.
Then, there was a further delay while he apparently made a fruitless application for legal aid; a course which was doomed from the outset. Indeed, I note that nothing was put before this Court to confirm that an application for legal aid was even made.
Thus, I am not satisfied that the applicant has provided an adequate explanation for his failure to file a Notice of Appeal within time, and there is no satisfactory explanation of why it took so long to file an application in an appeal seeking an extension of time. That delay has clearly prejudiced the other party.
The merits of the proposed appeal
In the Draft Notice of Appeal, the only matter the applicant puts forward in support of his application for leave to appeal, is that the matter concerns “questions of law”. In that regard, it would seem that his application for leave would stand or fall on the success or otherwise of the sole ground of appeal that he agitates in the event that leave is granted.
The sole ground of appeal is as follows:
His Honour erred in accepting as valid the parentage testing report dated 31 October 2016. That report was not in the mandatory format requied [sic] by the relevant statute [Regulation 21M(5) Family Law Regulations 1984]. The report was thus of no legal force or effect and should not have been the basis upon which the trial judge made the orders he did.
As can be seen, the complaint is that his Honour erred in accepting the report as valid. However, it is common ground that the validity of the report was not raised by the applicant, or the solicitor who attended the hearing. Thus, the initial question becomes whether this complaint can be agitated on appeal.
Plainly, the issue would have come to light if the applicant had pursued his application to reopen the matter before the primary judge, but that of course did not happen, and the applicant is now looking to pursue an appeal.
The law in this area is well settled by the High Court, and the principle is that if the argument raised for the first time on appeal is purely a question of construction, or of law, then an appellate court can entertain the argument despite it not being raised in the court below. In Water Board v Moustakas (1988) 180 CLR 491, the High Court said this (at 497):
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
(Also see Suttor v Gundowda (1950) 81 CLR 418, at 438 and Coulton v Holcombe (1986) 162 CLR 1, at 7).
Here the issue is plainly one of construction and/or the law, and thus it can be agitated on appeal.
Sub-regulations 21M(2) and (5) of the Family Law Regulations 1984 (Cth) provide as follows:
REGULATION 21M REPORTS – FORM 5
21M(2) The report must be in accordance with Form 5 in Schedule 1.
…
21M(5)A report completed otherwise than in accordance with this regulation is taken to be of no effect.
The report differs from Form 5 in three respects, namely:
a)Paragraph 7 of the form provides as follows:
I further report that the probability that (insert name of putative parent) is the genetic *father/*mother of (insert name of child whose parentage is in issue) has been calculated as follows:
Putative *father/*mother is (insert figure) times more likely to produce a child with the required alleles than a *man/*woman drawn randomly from the general population. This equates to a Relative Chance of *Paternity/*Maternity of (insert figure).
…
However, paragraph 7 of the report reads as follows:
I further report that the probability that Mr NASHA is the genetic father of [the child] has been calculated as follows:
Mr NASHA is 197,282,227,555 times more likely to produce a child with the required alleles than a man drawn randomly from the Australian Caucasian population. This equates to a Relative Chance of Paternity of 99.9999999995%.
As can be seen, instead of the words “from the general population”, the words in the report are “from the Australian Caucasian population”.
Further, there is no doubt that the applicant is not “Caucasian”, but it is unknown how important or unimportant that fact is.
b)In Part II the form provides for separate paragraphs 1 and 2, but in the report those paragraphs are combined.
c)In paragraph 4 of Part II of the form there is provision for the date of the testing to be inserted. However, the report sets out that testing was carried out “from 19 October 2016”; i.e., there is no specific date.
I do not consider that either the second or third “difference” is of any great moment, but that can only be a preliminary view. However, the first difference would seem to be significant.
In any event, the combination of sub-regulations 21M(2) and (5) is quite clear, namely a report not in accordance with the regulation is “taken to be of no effect”.
Although at this stage of the proceedings, and bearing in mind the minimal documentation that this Court has, I cannot be definitive, I can say there would appear to be a substantial issue to be raised on appeal, not forgetting that the ground of appeal in effect provides the basis for the application for leave to appeal.
The consequences of granting or refusing the application
If the application is granted there would be clear prejudice to the respondent. As the matter stands, there is no appeal on foot, and the respondent can proceed on the basis that she has the benefit of the orders made by the primary judge. However, that changes if there is to be an appeal. The respondent will then have to respond to the same with all the attendant costs and delays.
If the application is refused, it is the applicant who will suffer the prejudice. There is no appeal from a refusal of such an application save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise, and is often not warranted, and that highlights the prejudice to the applicant.
Conclusion
As identified above, the court’s consideration of the relevant factors informs whether the granting of an extension of time is necessary to enable the court to do justice between the parties.
Here I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within time, or to file an application seeking an extension of time more expeditiously, but I consider that he has an arguable case on appeal, and the interests of justice require that the application be granted.
There is prejudice to each of the parties depending on the outcome, but in this case that cannot change where the interests of justice lie.
Costs
Although the applicant has been successful in his application, as conceded by his counsel, he should pay the costs of the respondent. He is being granted an indulgence because of his failure to file his Notice of Appeal within time. Thus, there will be an order for costs in favour of the respondent.
Joint application for costs certificates
Both parties apply for costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) to cover the costs associated with the hearing which took place on 14 September 2017.
That subsection provides as follows:
10(3) Subject to this Act, where:
(a)the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b)the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
Here, the application in an appeal was filed on 13 July 2017. The Appeal Registrar then advised the parties on 31 July 2017 that “this appeal is listed for directions before the Honourable Justice Strickland in Melbourne on Thursday 14 September 2017 at 2:15pm”. However, on 11 September 2017 the Appeal Registrar advised the parties that “the application of the father filed 13 July 2017 seeking an extension of time is listed before the Honourable Justice Strickland in Melbourne on Thursday 14 September 2017 not before 11:00am”.
Both parties say they were confused as to whether the matter was listed for a directions hearing or for the hearing of the application. However, at the hearing the applicant’s counsel said that he could proceed but he had not had time to marshal the authorities, and the respondent’s counsel said that she was ready to proceed but she had not yet filed the respondent’s response and affidavit. After taking further instructions from the applicant, his counsel indicated that he sought that the matter be put off to another day. I agreed that that was an appropriate course in the circumstances, but then set about utilising the time that was available to discuss the issue with counsel, in order to save time on the next occasion. Indeed, that exercise did prove extremely useful, both in preparation for the subsequent hearing, and to shorten that hearing. I will return to what effect that has on the application for costs certificates shortly.
It is argued by both parties that what occurred in this case comes within s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth). Specifically, it can be said that the proceedings were “discontinued” and “a new hearing” ordered, and that was not caused by the “neglect, default or improper act” of either of the parties.
It has been held that where a hearing is unable to proceed through no fault of any party, and is adjourned, that satisfies the requirement of the subsection (Maxwell Coulson and Gosford Meats Pty Ltd [1985] 7 FCR 109) as long as it can be said that the hearing has commenced (Lindner and Lindner (1985) FLC 91-638). However, there are authorities that hold otherwise (Re Morris; Morris v Maroudas (1986) 66 ALR 699, and Redshaw and Redshaw (1989) FLC 92-053), and in particular that where a matter is adjourned, the hearing cannot be described as being “discontinued”, and a new hearing ordered.
In Cundy v ACT Cross Country Club Inc [2009] FCA 1461, Perram J introduced the notion that the subsection can be read as including the aborting of a proceedings, but plainly those words do not appear in the subsection. However, I do agree with his Honour’s comment that, “[t]he authorities which deal with the circumstances and the manner in which the discretion under s10 is to be exercised are various, but compendiously, may be summarised by saying that the power is to be exercised judicially and is of a broad nature” (at [3]).
I am not necessarily persuaded that the circumstances here can be brought within the subsection, but it must not be forgotten that the granting of a costs certificate is entirely discretionary, and I am not disposed to exercise that discretion in favour of the parties.
To repeat, I was able to use the time that was available on 14 September 2017 to not only clarify the issues, but to shorten the time needed on the subsequent occasion.
In these circumstances, the joint oral application for costs certificates in relation to the hearing on 14 September 2017 should be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 5 March 2018.
Associate:
Date: 5 March 2018
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