Nettler and Nettler
[2008] FamCAFC 141
•31 July 2008
FAMILY COURT OF AUSTRALIA
| NETTLER & NETTLER | [2008] FamCAFC 141 |
| FAMILY LAW - APPLICATION FOR REINSTATEMENT OF APPEAL – Where appeal deemed abandoned – Where mistake as to filing date made by solicitor – Appeal reinstated. |
| Family Law Act 1975 (Cth) – s 75(2), s 94(2D), s 94(2F), s 117 Family Law Rules 2004 (Cth) – r 1.04, r 22.56, r 22.57, ch 19 |
| Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Mackey and Mackey [2007] HCATrans 271 (28 May 2007) |
| APPLICANT: | Ms Nettler |
| RESPONDENT: | Mr Nettler |
| FILE NUMBER: | PAF | 1206 | of | 2005 |
| APPEAL NUMBER: | EA | 151 | of | 2007 |
DATE DELIVERED: | 31 July 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 31 July 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 November 2007 |
| LOWER COURT MNC: | [2007] FamCA 1374 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Aitken Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | Goldrick Farrell Mullan |
Orders
That the Notice of Appeal filed 18 December 2007 is reinstated.
That the orders made by Registrar Halbert on 28 February 2008 be varied as follows:
(a)That Order 3 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.
(b)That Order 4 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.
(c)That Order 5 be varied by deleting where appearing therein the date “22 May 2008” and substituting in lieu “2 October 2008”.
That the wife pay the husband’s costs of and incidental to this application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
The Court notes the undertaking of the wife’s solicitor not to charge the wife professional costs associated with the filing and hearing of the application for reinstatement.
IT IS NOTED that publication of this judgment under the pseudonym Nettler & Nettler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 151 of 2007
File Number: PAF 1206 of 2005
| Ms Nettler |
Applicant
And
| Mr Nettler |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
On 18 December 2007 Ms Nettler (“the wife”) filed a Notice of Appeal against orders made by Coleman J on 23 November 2007. The orders were made at the conclusion of defended property proceedings between the wife and Mr Nettler (“the husband”).
On 28 February 2008 the Appeal Registrar, Registrar Halbert, made procedural orders for the conduct of the appeal. The orders made included an order that the appeal books be filed on or before 24 April 2008. There was no compliance with this order and on 27 May 2008 the Appeal Registrar wrote to the parties’ lawyers advising, as a result of non compliance with the orders to file the appeal books by 24 April 2008, the appeal was deemed abandoned.
As a consequence on 4 June 2008 an application was filed on behalf of the wife seeking reinstatement of the appeal. The wife’s application for reinstatement is supported by an affidavit of her solicitor, Mr R, sworn 30 May 2008.
By response filed 19 June 2008 the husband opposes the reinstatement of the appeal and seeks orders that the wife pay his costs of and incidental to the reinstatement application and the costs of the appeal abandoned on 22 May 2008 “as agreed or assessed”.
As I have noted today, I am not in a position to dismiss an appeal and deal with an order for costs of an appeal. In the event that the appeal is dismissed that is an order which can only be made by the Full Court. Only a Full Court could make the consequent costs order.
The husband’s response is supported by an affidavit sworn by his solicitor, Mr J, sworn 18 June 2008 and a further affidavit filed in Court today by leave, that being an affidavit sworn on 30 July 2008. It has been agreed that the annexure to Mr J’s affidavit, being a letter dated 10 April 2008 addressed to the wife’s solicitors, that is, Annexure “C” to Mr J’s affidavit, would not be read in this application save and except for the last paragraph of that letter.
Background relevant to this application
Some background material is found in the wife’s pre-argument statement. At the date of trial the husband was aged 47 years and the wife 44 years. The parties had cohabited for approximately 12 years. There are two children of the marriage aged respectively 14 and 9 years. At the date of the hearing the children’s care was shared between the parents.
Following separation the wife gave birth to a child who is asserted to suffer from serious and ongoing health problems.
It is asserted on behalf of the wife that at commencement of cohabitation she had assets in excess of those of the husband.
During cohabitation the parties jointly conducted a mortgage broking business through a corporate entity, YG Pty Ltd. After separation the wife solely conducted the mortgage broking business.
In issue at the trial was the value of YG Pty Ltd.
In her Notice of Appeal the wife sought to challenge the trial Judge’s preference for the evidence of the husband’s valuer over the evidence of the wife’s valuer. She also asserted in her Notice of Appeal that the trial Judge misunderstood her claim, and his Honour was mistaken in the orders he thought she sought. The wife also sought to challenge the trial Judge’s contribution assessment on the basis that his Honour gave insufficient weight to the wife’s initial contributions. Further, the wife sought to challenge the trial Judge’s findings of equal contributions to YG Pty Ltd. Among the other challenges set out in the Notice of Appeal was a challenge to the trial Judge’s adjustment in the wife’s favour under s 75(2), it being asserted the adjustment was inadequate. The Notice of Appeal indicated that the grounds of appeal may be amended on receipt of the transcript. No amended Notice of Appeal had been filed by 24 April 2008 and, pursuant to the rules, leave would have been required to file such an amended Notice of Appeal, a procedural hearing having been conducted.
It was asserted before me today by Ms Judge, counsel for the husband, that the Pre-argument Statement, which I note was filed on 5 February 2008, was not served on the husband’s solicitors.
I have already set out above the circumstances in which the appeal was deemed abandoned.
Relevant statute law and rules
Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals. It is in the follow terms:
Section 94
(2D) Applications of a procedural nature, including applications:
…
(g)to reinstate an appeal dismissed under a provision of the Rules of Court; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2F) provides:
(2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
The effect of s 94(2D) is that, other than an application being accepted by the High Court for special leave, any determination I make in this matter is not subject to an appeal to the Full Court.
Rule 22.56 of the rules is in the following terms:
Rule 22.56 Abandoning an appeal
(1)If, by the date for compliance (as fixed in accordance with these Rules or extended by an order), an appellant does not file:
(a) a pre‑argument statement; or
(b) the appeal books;
an appeal is taken to be abandoned at the end of the 28th day after the date for compliance.
(2)If the draft index to the appeal books is not filed within 3 months after the date of cancellation of the first court date under paragraph 22.15 (a), the appeal is taken to be abandoned.
(3)If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of the other parties to the appeal.
Also relevant is r 22.57 of the rules. It is in the following terms:
Rule 22.57 Application for reinstatement of appeal
(1)A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.
(2)In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non-compliance was intentional;
(e)whether there is a good reason for the non-compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non-compliance was caused by the party or the party’s lawyer;
(h)the effect of non-compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
Rule 1.04 is in the following terms:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
Evidence
The solicitor for the wife, in his affidavit (paragraph 4), deposes “[d]ue to a clerical error the last date to file and serve Appeal Books by 24 April 2008 was not diarised”.
At paragraph 5 of his affidavit Mr R deposes:
We do not [sic] copies of all the documents to finalise the Appeal Book. Some of the documents that are required to be inserted in the Appeal Books and [sic] are the list of exhibits and [Mr G’s] Schedule forwarded to the Trial Judge by consent on 20 November 2007. We wish to locate these documents by inspecting the court file.
Thereafter, Mr R sets out attempts he asserts were made to inspect the file. At paragraph 9 of his affidavit Mr R deposes:
As indicated above, on or about 30 May 2008 a letter from the Appeal Registry, Eastern Region was received and in particular stating “The Appeal was taken to be abandoned from the end of 22 May 2008.” I seek from this Honourable Court to have an extension of time to file and serve the Appeal Books within 7 days as the majority of the copying has been done except for the missing documents that we do not have and require to inspect the court files in order to obtain same and insert into the documents prepared to put the Appeal Books together.
The husband’s solicitor, Mr J, in his affidavit refers to the order made by Registrar Halbert on 28 February 2008 and correspondence between the wife’s solicitor and his firm dated respectively 2 April 2008 and 10 April 2008. I have already noted that part of the correspondence is not read in this application. .
Mr J, in his affidavit, deposes:
7.I say that I did not receive any documentation from the Wife or her legal representatives in compliance with Orders 3 and 4 of the Orders of the Court dated 28th February 2008 on or before 24th April 2008 or at all.
8.I say that I have never received any documentation from the Wife or her legal representatives advising that there was any difficulty in compliance with the Orders dated 28th February 2008 within the prescribed time or at all.
9.I say that I have never received any notification from the Wife’s solicitor of an intention to have the matter re-listed before the Court for further Directions in accordance with Order 6 of the Orders dated 28th February 2008.
Today in Court I granted leave to Ms Judge, counsel appearing on behalf of the husband, to rely on a further affidavit of her instructing solicitor sworn on 30 July 2008. In that affidavit the solicitor annexes a copy of the orders made by Coleman J. In paragraph 3 of the affidavit the solicitor deposes to the fact that the wife has not applied for a stay of the orders of Coleman J. Thereafter, the solicitor sets out those orders with which he says there has been compliance and those in which he asserts there has been a failure to comply with the orders of Coleman J. A number of matters in that affidavit are said by Mr Gould, counsel for the wife, to be contentious.
Discussion
I propose to deal with this application for reinstatement by reference to the criteria in r 22.57.
The main purpose of the rules
I deal firstly with the main purpose of the rules which I have already referred to and read into these reasons for judgment.
I accept that the non-compliance with the orders has delayed the timely disposition of this appeal and has resulted in unnecessary legal costs to date to the husband, particularly in respect of this application.
Administration of justice
The wife had a prima facie right to appeal the orders of the trial Judge within 28 days of the judgment. I note that the appeal was filed in the time prescribed by the rules and the grounds of appeal, on their face, demonstrate arguable grounds of appeal. By saying this it does not mean that I have exhaustively considered the grounds of appeal, or his Honour’s reasons for judgment, and formed a view as to the merits or otherwise. I simply note that the grounds demonstrate arguable grounds of appeal. The wife’s pre-argument statement was also filed in accordance with the rules. I note that I was advised from the Bar table today that the Pre‑argument Statement had not been served on the husband's solicitors. Notwithstanding that fact, I find that the interests of justice would favour granting an indulgence to the wife in order that she could fully ventilate her rights of appeal. In so finding, I note that Ms Judge has cogently argued today that the appeal is one against a very experienced senior Judge and that many of the grounds are matters which go to the exercise of discretion.
There is no doubt if the appeal is reinstated, a discretionary matter, the appellant wife faces a significant hurdle in success, if in fact the grounds are those challenging the exercise of discretion by the trial Judge, I refer to such well-known authorities as House v The King (1936) 55 CLR 499, and Gronow & Gronow (1979) 144 CLR 513. However, as I said earlier, on balance I am satisfied that, there being on their face arguable grounds, it would be a significant denial of justice if the appeal could not be prosecuted.
Whether the application has been made promptly
The wife’s solicitors were notified by the Appeal Registrar on 27 May 2008 that the appeal was deemed abandoned. This application was filed promptly thereafter on 4 June 2008. Although the appeal books should have been filed on 24 April 2008 I do not find that the delay is substantial. In coming to that finding I have taken into account the submissions made by Ms Judge that nothing had occurred from 24 April 2008, but in the overall scheme I am still satisfied the delay is not substantial.
Whether the non-compliance was intentional
On the evidence before me I could not be satisfied that the non-compliance was intentional, rather the evidence indicated that the solicitor with the conduct of the matter failed to appropriately note the terms of the orders which required the filing of the appeal books by 24 April 2008, and to diligently pursue the appeal by obtaining necessary documents for the appeal book in a timely manner.
Whether there is a good reason for the non-compliance
I have already set out the wife solicitor’s evidence on this topic.
There is no evidence before me that any non-compliance can be directly attributed to the wife.
In Mackey and Mackey [2007] HCATrans 271 (28 May 2007) the husband’s solicitor missed a date deadline for the lodging of submissions in a special leave application which had the effect that the special leave application lapsed. In dealing with an application for an extension of time to restore the special leave application Heydon J noted “While these events are regrettable, they are the kind of events which can easily happen in professional practice. They are not events for which the husband was personally responsible”.
On the evidence before me it appears that the non-compliance is directly attributable to an error on the part of the wife’s solicitor and there are reasons for that non-compliance.
The extent to which the party has otherwise complied, in the case, with orders and other legislative provisions
I have already noted that the Notice of Appeal was filed within the requisite time period, as was the Pre-argument Statement, although the latter was, I am told today, not served. From the correspondence annexed to the wife’s solicitor’s affidavit it appears some attempt has been made to inspect the file. At paragraph 9 of his affidavit, the wife’s solicitor deposes to undertaking “the majority of the copying” although at the date of the swearing of his affidavit it appears that no inspection had been conducted at the Exhibits Section. I note that on 19 December 2007 the assistant to the Appeal Registrar wrote to the wife’s solicitors providing detailed instructions about the documents which would be required for the appeal books. Included in the letter was the following:-
…
5. You should consider which exhibits will be relied upon and any arrangements to be made to have them available to the Full Court. (If you are unsure about which documents should be included you should inspect the registry file and, if necessary, arrange with the Exhibits Officer to inspect the exhibits).
6. You should contact National Transcription Services Pty Ltd to ascertain the cost of obtaining the transcript. The telephone number is 1800 144 188 – e-mail [email protected]
…
I also note that the procedural orders made by Registrar Halbert required to be included in the appeal books as item 21 the “List of Exhibits” but did not require the actual exhibits to be included in the appeal books. Notation 4 of the orders being in the following terms:
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
The exhibits list, if a copy was not made available at the procedural hearing, as is the usual practice, would have been readily obtainable by the wife’s solicitor. On balance, I find some of the matters for delay difficult to understand.
Whether the non-compliance was caused by the party or the other party’s lawyer
I have already discussed this issue from the wife’s position. I am satisfied there has been no default occasioned by the husband’s solicitor.
The effect of non-compliance on the other party
The husband has been put to the cost and expense of preparing material for this application and delay in the timely hearing of the appeal. I am now aware that no stay has been sought or granted in respect of his Honour’s orders and the husband is therefore entitled to receive the amount due to him pursuant to the trial Judge’s orders so this ameliorates some prejudice to the husband. I have already extensively considered the prejudice the wife would suffer if not able to pursue her appeal rights.
The effect of reinstating the appeal would have on the each other party and to other parties to other cases in the Court
There is no doubt that the number of appeals at the moment filed in the Sydney Registry is substantial. It is within my knowledge as the Appeal Judge in this Registry that the appeal sittings for the balance of 2008 are fully allocated, and that this matter would not now, at the earliest, receive a hearing before February 2009. I take that into account because if the books had been filed in the time prescribed in the rules, the matter may have been accommodated in the sittings in the last week in November, or the second week of the sittings in December 2008. I take that fact into account in assessing prejudice to the husband.
An order for costs, including an order for indemnity costs.
I note today before me, the wife’s counsel noted an undertaking to the Court by the solicitor that he would not charge the wife for the costs of this application. The necessity for this application is wholly as a result of non-compliance with the Court’s orders by the wife’s solicitors. I consider that on reinstating the appeal it would only be proper to ameliorate the prejudice to the husband that an order for costs should be made in his favour.
Whether a party should be prevented from taking any further step in the appeal until the costs are paid
On the evidence before me, I am not satisfied that further conditions should be imposed on the wife.
Conclusions
Balancing all of the relevant factors, I find that it would be appropriate to reinstate the appeal. In so doing I have regard to particularly the prejudice which would be afforded to the wife if she was not able to argue what on the surface appear to be arguable grounds of appeal. I take into account that no stay has been obtained of the trial Judge’s orders. Thus, the husband can pursue the fruits of his judgment pending the appeal. I also take into account that the delay from when the appeal was abandoned to filing this application was of short duration and that I can make an order for costs. In all of these circumstances, I am satisfied that the appeal should be reinstated.
Costs
The rules provide that one of the conditions of reinstating an appeal can be an order is made for costs, including indemnity costs. Of course in making an order for costs I must have regard, so far as I am able in this application, to the provisions of s 117. I am satisfied that in the circumstances it is appropriate to depart from s 117(1) and have regard to relevant factors under s 117(2A).
Ms Judge has very properly provided to me a copy of the costs agreement between the husband and his solicitor, and has provided me with a breakdown or an estimate of the costs which have been incurred by the husband in respect of this application. The solicitor’s costs are $3,150.00, including GST, and Ms Judge’s fees are $2,640.00, including GST, for her preparation for this matter and appearance today, totalling $5,790.00. From the wife’s point of view, Mr Gould submits that if an order for costs is made, it should be on a party and party basis and not on an indemnity basis.
Having regard to the criteria in cases such as Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 as to the extraordinary circumstances in which indemnity costs should be awarded, I am not convinced that this case is one which falls into the area of indemnity costs. I propose therefore to make an order that the wife pay the husband’s costs of this application, such costs to be on a party and party basis as agreed and, failing agreement, as assessed under Chapter 19 of the Family Law Rules 2004.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 31 July 2008
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