Oscar & Traynor

[2007] FamCA 1019

FAMILY COURT OF AUSTRALIA

ALLEN & ALLEN (EXTENSION OF TIME APPLICATION) [2007] FamCA 1018

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL PROPERTY ORDERS, COSTS ORDERS AND ENFORCEMENT ORDERS - Whether appropriate to exercise discretion in favour of the husband - Consideration of principles applicable to exercise of discretion as  discussed in Gallo v Dawson (1990) 93 ALR 479 - Whether strict application of the rules would cause injustice - Whether conduct of the parties relevant - Husband's conduct militated against granting leave - Whether merit in husband's proposed grounds of appeal - Property and costs appeal lacked prospects of success - Whether prejudice to either party in refusing leave - Whether prejudice can be overcome by costs order - Whether the proposed appeal against enforcement orders rendered moot - Whether appropriate to exercise discretion in favour of applicant to extend time – Application to extend time dismissed.

FAMILY LAW - APPLICATION TO VARY ORDERS MADE BY FULL COURT RESTRAINING DISPERSAL OF PROCEEDS OF SALE - Whether appropriate to vary orders made by Full Court - Where undertaking given by husband - Proceeds retained pending outcome of application for extension of time - Application to extend time dismissed - Appropriate to vary Full Court orders.

FAMILY LAW - COSTS - Where husband wholly unsuccessful - Where adjournment necessitated by wife filing extensive material shortly prior to hearing - Appropriate to make costs order in favour of wife, except for adjourned hearing day.

Family Law Act 1975 (Cth) s 75(2), s 94(1A), s 94(2D), s 94(2E), s 94(2F), s 117(1), s 117(2), s 117(2A)
Family Law Rules 2004 Chapter 22, r 22.02, r 22.03, r 22.42

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248
De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605; (1979) 4 Fam LR 583
Farmer v Bramley (2000) FLC 93-060; (2001) 27 Fam LR 316
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Kowalski and Kowalski (1993) FLC 92-342
Munday and Bowman (1997-1998) 22 Fam LR 321
Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377
Tormsen and Tormsen (1993) FLC 92-392
Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029

APPELLANT: Mr Allen

RESPONDENT: Ms Allen

FILE NUMBER: PAF 5923 of 1995

APPEAL NUMBER: EA 33 of 2006

DATE DELIVERED: 3 September 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 20 July 2007, 8 August 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 28 May 2004
24 December 2004
6 March 2006

LOWER COURT MNC: [2004] FamCA 449
[2004] FamCA 1180
[2006] FamCA 101

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Allen in person

SOLICITOR FOR THE RESPONDENT: Mr Phair

Orders

1. The husband’s application filed 29 March 2006 is dismissed.

2. That the solicitor acting for the husband and the wife in relation to the sale of the Hills District property release to the wife the sum of $100,000.00 retained from her share of the proceeds of sale of the property.

3. The husband pay the wife’s costs of the application filed 29 March 2006 save and except costs of 20 July 2007 on a party/party basis, as agreed, and failing agreement, as assessed.

AND THE COURT NOTES the undertaking of the husband given to the Court before Collier J on 27 July 2007 and that the husband may seek to vary the terms of that undertaking to limit the sum so affected by the undertaking to $40,000.00.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Allen & Allen (Extension of Time Application).

THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 33 of 2006
File Number: PAF 5923 of 1995

Mr Allen

Appellant

And

Ms Allen

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 29 March 2006 Mr Allen seeks, amongst other orders, an order for an extension of time in which to appeal orders made by Coleman J in May 2004 at the conclusion of defended property proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) between himself and Ms Allen. The parties have been divorced for many years. For convenience and clarity, and without wishing to cause offence, I will refer to them in these reasons as “the husband” and “the wife”.

2. On 18 July 2007 the wife filed a Response in which she seeks orders for the dismissal of the husband’s application, and amendment to orders made by the Full Court on 6 July 2007 (“the Full Court orders”), which orders restricted the disbursement of part of the net proceeds of sale of the parties’ former matrimonial home in the Hills District, Sydney (“the matrimonial home”) pending the hearing of the husband’s application for an extension of time to appeal.

3. Also before me is an Application in a Case filed by the wife on 18 July 2007 in which she seeks to vary the Full Court orders so that the whole of her entitlement in the net proceeds of sale of the matrimonial home is released to her.  She did not pursue other relief sought in the application against the husband because of an undertaking given by the husband to the Court on 27 July 2007 and noted by Collier J in paragraph 2 of the orders made by him that day.

4. The hearing which commenced before me on 20 July 2007 was adjourned because the wife’s solicitor served extensive affidavit material on the husband shortly prior to the hearing.  The hearing continued on 8 August 2007 with the husband appearing via video link from the Townsville Registry assisted by a McKenzie friend.   

Evidence

1. The husband’s application is supported by his affidavit sworn on 29 March 2006.  I also granted him leave to rely on his affidavit sworn 4 June 2007.  The wife’s application is supported by two affidavits of her solicitor, Mr Damian Phair, sworn respectively 4 July 2007 and 18 July 2007.  

Background

1. The proceedings, particularly so far as the husband’s proposed appeals are concerned, have had a convoluted history and it is appropriate that I record brief aspects of the history of the litigation to aid understanding of the present applications.  I will firstly set out some brief history relevant to the parties.  That history appears from the reasons for judgment of Coleman J.  I will also set out relevant history from the Court record, the judgments of Collier J of 23 May 2007 and the Full Court (Finn, May and Thackray JJ) of 6 July 2007.

2. The husband was born in April 1947 and he was aged 56 years at the date of the hearing before the trial Judge.  The wife was born in November 1943 and she was aged 60 years at the date of the hearing before the trial Judge.

3. The parties married in January 1968 and separated in September 1994. A decree nisi was pronounced in January 1996, which decree became absolute in February 1996.

4. There are four children of the marriage all of whom had attained the age of 18 years at the date of the trial.

5. The parties separated under the one roof at the matrimonial home in September 1994.  From November 1995 the wife and the three youngest children of the marriage lived in rented or other accommodation until December 1997 when the wife and children re-occupied the matrimonial home where they remained until 2002.

6. In 1999 the husband discharged the mortgage secured over the matrimonial home by payment to the mortgagee of approximately $27,000.00.

7. In approximately 2001 the husband received a common law damages award of $276,245.50 in proceedings in the District Court of New South Wales for false imprisonment and wrongful arrest.

8. The husband purchased a property in North Queensland for approximately $150,000.00 from the common law damages award.

9. The parties’ contested property proceedings were heard before Coleman J on 17 and 18 May 2004.  The wife was legally represented by her former solicitors, and the husband was self-represented.  On 28 May 2004 Coleman J published his reasons for judgment, and made orders.  In summary, his Honour’s orders provided for the matrimonial home to be sold, and the net proceeds of sale to be divided equally between the parties with a provision that the husband pay to the wife from his share the sum of $8,340.00.  The broad effect of his Honour’s orders was that the parties’ individual assets, other than the matrimonial home, were retained by the owner of those assets.  Coleman J referred to the overall effect of his orders as follows:

   The Court concludes that the parties should share equally the assets referred to above, with the exception of the monies received by the husband as a result of his common law action. It is common ground that [the matrimonial home] is to be sold. On sale, the proceeds of [the matrimonial home] should be divided equally between the parties, subject to an adjustment in favour of the wife from the husband’s shares of $8,340 to achieve equality of division of all the assets except the husband’s common law award. (paragraph 80) 

10. The husband did not appeal Coleman J’s orders in the time provided in the Family Law Rules 2004 (“the Rules”).

11. On the application of the wife, and following receipt of written submissions, on 24 December 2004 Coleman J made costs orders (“the costs orders”) in favour of the wife.   Those orders provided that the husband pay the wife’s costs on and from 24 July 2002 until 3 December 2003 as agreed or failing agreement as assessed.

12. No agreement was reached between the parties as to the quantum of the costs payable.  There is no evidence before me that the costs have been assessed by the Registrar.

13. The husband filed an appeal against the costs orders (appeal number EA 5 of 2005) on 20 January 2005 (“the costs appeal”). The husband had filed a summary of argument on 4 February 2005 in the costs appeal. I am unable to ascertain why a procedural hearing was not then appointed in accordance with r 22.15 of the Rules, but it appears due to an administrative error the husband’s appeal was not listed for a procedural hearing until 20 January 2006.

14. At the time of the first procedural hearing on 20 January 2006 the husband had filed a draft appeal index in accordance with the Rules. At the procedural hearing the husband indicated he may not be residing at the address given for service on his Notice of Appeal [ the North Queensland property] and the orders issued that day contained the following notations:

    …

    2.   The Court will send copies of any correspondence to the appellant Husband at both [the Hills District property] and [the North Queensland property].

    3.   The Appellant Husband proposes to file a notice of change of address for service.

15. On 20 January 2006 the husband filed a Notice of Address for service which disclosed his address for service as the matrimonial home.

16. At the request of the husband, a further procedural hearing was conducted on 20 February 2006 when I amended the appeal book index to include Coleman J’s reasons for judgment in the property proceedings in the index.  No appeal books were filed by the husband in accordance with the orders.   

17. Coleman J on 10 February 2006 dealt with an application by the wife in which she sought enforcement of the trial Judge’s property orders and for machinery orders to facilitate the sale of the matrimonial home.  Orders were made on 6 March 2006 (“the enforcement orders”).

18. The husband on 29 March 2006 filed an Application in a Case and draft Notice of Appeal.  In his application the husband sought the following orders:  

    1.Appeal the Judjment [sic] of His Honour Justice Coleman dated 17 & 18 May 2004, which is out of time due to extenuating circumstances.

    2.Oppose subsequent Applications and Orders issued stemming from the Final Judjment [sic].  Also to be addressed and clarified which would otherwise be Appealed

    3.These applications being [a]  Costs order 24 th Dec 2004

    [b] Enforcement Hearing of 10 Th [sic] Feb 2006.  Reasons for Judjment [sic] 6Th [sic] March 2006.

    4.Stay of proceeding [sic] till [sic] applicant’s orders are heard.

    5.Application of notice of Appeal to the Full Court by applicant and orders be approved. 

19. On 2 May 2006 Registrar Jurd wrote to the husband at his address for service, and at his North Queensland property, advising the costs appeal was abandoned pursuant to the Rules on 14 April 2006 by reason of his failure to file appeal books. No formal application was made by the husband for re-instatement of the costs appeal.

20. The husband asserts because he did not receive any response from the Appeal Registry after filing his application on 29 March 2006, he faxed to the Appeal Registry a further application in May 2006.   A faxed copy of an application which was before me during the course of the present hearing shows a handwritten filing date of 29 May 2006, but no Court filing stamp.  The husband shows his address as “[a North Queensland address but with no suburb]”.  The application is dated 14 May 07 (my emphasis) and bears a fax date on each page of June 21, 2006 8:38 to 8:40am.   No original of the application could be located in the Court file.  The orders sought in that application are as follows:

    1.Appeal the Final Hearing 17& [sic] 18 Th [sic] May 2004 Judgement orders of 28 Th [sic] May 2004.

    2.Appeal the Costs Hearing and Orders 24 Th [sic] December 2004

    3.Appeal the Enforcement Judgement 6 Th [sic] March 2006

    4.Bring the Orders of 28 Th [sic] May 2004 back into time.

    5.Costs certificate under [costs] Act 1981

    6.THAT THE 3 APPEALS BE LISTED AS 1 OR ALL TOGETHER

    7.THE 2 APPEALS 10 th FEB 2006 and 6 th MAY 2006 BE LISTED AS 1 OR TOGETHER

    8.THAT ALL THE JUDGEMENTS IN THIS CASE OF HIS HOUOUR [sic] JUSTICE COLEMAN BE TESTED IN THE APPEALS COURT.  (original  emphasis) 

21. Before me, the husband said I should disregard dates from his fax machine, as he was unable to change the date on that machine.  I will return to discuss this application later.

22. Before me, the husband sought to orally amend this application to delete the date 10 February 2006 in paragraph 7 and to insert 24 December 2004. 

23. It is necessary that I say something about the husband’s application filed on 29 March 2006.  It is clear from the husband’s submissions that he misconstrued information provided to him by the Registry staff.  It appears from his submissions that the husband mistakenly believed that:

    ·he had filed an appeal in time against the enforcement orders made 6 March 2006;

    ·he had an application to extend time to appeal the substantive property orders of 24 May 2004;

    ·his costs appeal was validly filed; and

    ·his challenge to all three orders would, by reason of this application, be consolidated into one appeal.

24. As the husband had sought in paragraph 4 of his application a stay of the trial Judge’s orders, on 20 April 2006 Registrar Jurd, wrote to the husband as follows:

    I refer to the Application in a Case in form 2 that you filed on 29 March 2006 and the supporting documents.  Among the orders sought is one, “4.  Stay of proceeding till applicant’s orders are heard”.

    To obtain a stay of proceedings you must make a separate application and file it at Parramatta Registry to be heard by the Honourable Justice Coleman.

    The documents required are another Application in a Case in form 2 seeking the stay and an affidavit in support. 

25. It appears, in anticipation of the stay application, the appeal file was sent to the Parramatta Registry of the Court and the matter was not listed before a Judge of the Appeal Division to hear and determine the application.

26. The matter was re-activated in 2007 by the wife seeking to inspect the appeal file to ascertain the status of the matter.  Thereafter her new solicitors corresponded with the Appeal Registry to confirm the status of the husband’s applications.

27. On 1 March 2007 the Appeal Registrar wrote to the husband.  It is appropriate that I set out that letter in full, including the addresses shown on the letter: 

    01 March 2007

    Mr [Allen]
    [Hills District address]

    Mr [Allen]

    [Incorrect version of North Queensland address]

    Dear Sir or Madam,

    Re:  [Allen]
      EA33 of 2006

    I refer to the above matter in which you filed, on 29 March 2006, an Application in a Case seeking to extend the time to appeal the orders of the Honourable Justice Coleman dated 24 December 2004, 28 May 2005 and 6 March 2006.

    I note that you had some communication with my predecessor, Registrar Jurd, in late April of 2006.

    It does appear that your matter has not progressed since that time.  Are you intending to proceed with this application?

    I would be grateful if you would advise me within 28 days of your intentions regarding this matter.

    I look forward to receiving you [sic] further advice in this respect.

    Yours faithfully,

    Appeal Registrar

28. The letter addressed to the matrimonial home was returned to the Court, and the husband asserts, understandably, given his correct address at the North Queensland property was not on the letter, that he did not receive the letter.

29. Following further correspondence from the wife’s solicitors, the Appeal Registrar advised those solicitors in writing on 17 April 2007 that, as there had been no response by the husband to her letter of 1 March 2007, it was proposed to list the matter at the next available Full Court for dismissal of the application.

30. On 3 May 2007 the husband rang the Appeal Registry to enquire about his appeal.  He advised he had not received correspondence from the Court dated 1 March 2007.  The husband caused a letter to be faxed to the Court that day confirming he had not received correspondence, and referred to his application filed in March 2006.  He concluded “Please notify me regarding necessary information that you require to expedite this matter urgently”.

31. On 3 May 2007 the Appeal Registrar wrote by fax to the husband enclosing a copy of her letter of 1 March 2006, and requested that the husband confirm in writing within ten days whether he wished to proceed with his application to extend time to appeal the orders of Coleman J. 

32. The husband replied to the Appeal Registrar by letter dated 11 May 2007 as follows:

    I have received your communication dated 03 May 2007 on the 10^th May 2007 you indicate that you had faxed same on the 3^rd May as well, that has not transpired.

    1.You have indicated that you have sent a letter to my [Hills District] address, which remained unanswered.  In my applications, nowhere are the [Hills District] [sic] address referred to in any way.  As my recipient address is clearly [the North Queensland property] followed by my mobile phone [number omitted] and my land line phone fax of [number omitted][application in a case and affidavit both clearly marked and lodged on the 29^th March 2006] I have received various correspondences at this address from the Appeals registry namely Mr Jurd in the past.

    2.A notice of Appeal was lodged to appeal the decisions of His Honour Justice Coleman in particular his judgment of 6^th March 2006.  The appeal of judgment costs order of 24^th Dec 2004 had already commenced after a lengthy wait and the appeal books were being prepared

    3.At the same time, due to the nature of the judgement of 28^th May 2004 and 24^th Dec 2004 I was advised to relodge a notice of appeal and realist [sic] the judgement of 24^th Dec 2004.  Practicality dictates that 3 appeals are not practical I was told one would be arranged to deal with the 3 judgements.

    4.I am astounded that the Appeals Court made no effort to communicate to me there [sic] intentions or clarify the appropriate procedure to deal with this serious matter of appeal

    5.There is an application for a stay listed on 18^th May and had I not made enquiries about the appeal number, and found that the matter was found to be ignored since the notice of application 29^th March 2006, [see your letter 01 March 2007] and to be abandoned without my consultation or authority in due course. (original emphasis)

    6.On 24^th April 2006 His Honour Justice Coleman rejected an application on costs, His Honour Justice Coleman, because of the appeals pending against his judgements, excused himself from further hearings.

    7.Clearly his judgements have to be tested in the Full Court otherwise it would be a denial of natural Justice to  [Mr Allen].

    8.Under no circumstances have I abandoned the application of the notice of Appeal.  (original emphasis) 

1. The husband wrote a further letter to the Appeal Registrar in the following terms on 12 May 2007:

   Regarding your letter of 3 rd May 2007 and your letter of 1st March 2007, which you sent to my [Hills District] address

   I wish to point out that the address was designated on documents relating to appeal processes commenced at that time, the appeal of the Judgment of Justice Coleman dated 24^th Dec 2004.

   Documents and the preparation of the appeal books were established so all documents relating to that applications [sic] were sent to my address.  I was staying in Sydney till [sic] the conclusion of the appeal in April.2006 [sic]

   I have since learned that unauthorised persons connected to Mrs [Allen] had returned your notice of the 1st March 2007.

   Clearly disrupting the court processes to fast forward the sale of the house before the Appeal is heard which would result in the loss of the amount of $107,000,00 [sic] to me.

   As I am the occupying tenant they have changed the locks and moved my possessions and mail whilst I am away without my authority to obtain their objective..

   Clearly showing what their motives are, and their disregard of the law, which protects occupant’s rights, as I am still the tenant.

   I have found it necessary to respond to the courts [sic] letter of 1st March 2007 to clarify the unusual remarks and errors.

   Another application in a case was lodged 29^th March 2006 seeking to appeal the 3 judgements of Justice Coleman.

   However it was only necessary to bring back into time the Judgement of the final hearing dated 17 & 18 May 2004 orders 28^th May 2004. 

   The appeal Judgement of 24 ^th December 2004 was underway the evidence listed and the appeal books being prepared and a date given for lodgement by Justice Boland.

   The inclusion of the 24 ^th Dec 2004 judgement was relisted and the appeal Judgement of 6 ^th March 2006 lodged on the 29 ^th March was within the allocated time. 

   In my affidavit of supporting evidence see Page 3 Summation 24 and the notice of appeal document, which clearly state the copys [sic] of the Judgements to appeal.

   Nowhere have I asked for an extension of time in the applications

   There was none needed for the 24^th DEC 2004 or the 6^th MAR 2006.which was a new appeal.

   Due to human error it appears that the Appeals Court has let all my applications lapse ignoring the serious aspect of my appeals.  There has been no significant communication to establish any time frames or instructions regarding the appeals.

   Especially the Judgement of the 6 th March 2006, lodged in time but which is subject to enforcement now.

   There appears to be a derelict [sic] of duty and disregard of duty of care towards the serious process off [sic] appeals, in particular this case.

   Now addressing the letter of the 1st March 2007
   That “the matter has not progressed since that time?.
   The matter was a notice of appeal not an extension of time.

   Also indicating that the matter would be terminated without any consultation or authority from me since ‘no action has been taken in the matter since April 2006.”

   You failed to notify me of what action to take, since the appeal was lodged on the 29 ^th March 2006.

   To allow these applications to lapse clearly is a gross Denial of Natural Justice. 

   I have included another Application in a Case and orders to clarify any confusion.

   The supporting evidence of the Appeal lodged on the 29 ^th March 2006 shall remain the same.

   As will the notice of appeal and the grounds of appeal and the listing of the three orders that I am Appealing.

   Could you please notify the Family Court of Parramatta over the human error in processing this application of Appeal?

   As I have applied for a stay of proceedings on the 18th May 2007 on the sale of the house subject to the orders of the 6 ^th March 2006 from Justice Coleman

   As an appeal is underway and not an extension of time.

   This will be faxed and sent

   Note:
       Please contact me if you do not understand what I am Appealing in the Appeals Court, and I will attempt to clarify. (original emphasis) 

2. It appears to me that the application which the husband asserted before me had been filed in May 2006 was, in fact, the application referred to by the husband in his letter dated 12 May 2007 and attached to that letter, and not filed on 29 May 2006 as shown in handwriting on the cover sheet.

3. On 17 May 2007 the Court wrote to the husband advising that his application filed 29 March 2006 would be listed before a Judge of the Appeal Division.  The matter was accordingly listed before me on 20 July 2007, and the tentative listing before the Full Court in the June sittings, and upon which it appears Collier J who heard the stay application on 18 May 2007 relied, did not occur.

4. The husband then proceeded with a number of first instance applications in the Parramatta Registry which were originally listed before Collier J on 18 May 2007. His Honour heard the applications as Coleman J, after the enforcement proceedings and in light of the application to extend time to appeal his orders, disqualified himself from further hearing the matter.  

5. Orders were made by Collier J in the husband’s absence on that day as inadvertently his application to appear by telephone from North Queensland was not brought to Collier J’s attention.  The matter was relisted before Collier J on 23 May 2007 when his Honour refused to stay the enforcement orders made by Coleman J.  At the time of the hearing before Collier J the matrimonial home was listed for sale by public auction, which auction was to occur on 26 May 2007.

6. On 4 June 2007 the husband filed a Notice of Appeal in which he purported to appeal “decisions” of 18 May 2007 and 6 March 2006 of “Collier & Coleman”.

7. On 14 June 2007 a procedural hearing was conducted by Finn J and the following matters were listed before the Full Court for hearing on 28 June 2007:

   ·an appeal by the husband (filed 4 June 2007) against orders made by Collier J on 18 May 2007;

   ·any appeal against orders made by Collier J on 23 May 2007 which might be filed by the husband on or before 4pm on 18 June 2007; and

   ·any application by the wife for summary dismissal of the appeal or appeals, which might be filed prior to 10 am on 28 June 2007.

8. Orders were made for the filing of appeal books by the husband.  He did not comply with this order.  Before me the husband asserted the Full Court had been in error in dealing with the appeal, it seems because he thought the Full Court should deal with his appeal (which he mistakenly understood to have been filed in time) against Coleman J’s enforcement orders of 6 March 2006, and not Collier J’s orders of 18 and 23 May 2007. 

9. The auction of the matrimonial home proceeded on 26 May 2007 and the property was sold for a sale price of $430,000.00.  The Full Court noted settlement was due to take place on 9 July 2007.

10. The Full Court dismissed the husband’s appeal against the orders of Collier J made 18 May 2007, and made orders that the solicitor acting for the husband and wife in relation to the sale of the matrimonial home

    [r]etain in her or her trust account (or similar account) the amount of $100,000 out of each of the shares of the proceeds of that sale to be received by each party, pending the determination of the husband application in a case filed 29 March 2006 or other order of the Court.

Relevant statute law and rules

1. Section 94 of the Act provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D), (2E) and (2F) are also relevant. They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   (b)for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

   (c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); or

   (e)for an extension of time within which to file an application for leave to appeal; or

   (f)for security for costs in relation to an appeal; or

   (g)to reinstate an appeal dismissed under a provision of the Rules of Court; or

   (h)to adjourn the hearing of an appeal; or

   (i)to vacate the hearing date of an appeal; or

   (j)to expedite the hearing of an appeal;         

   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.

   (2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

3. Chapter 22 of the Family Law Rules 2004 deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal or review. 

3. These principles have been referred to in a number of cases, including Tormsen and Tormsen (1993) FLC 92-392 at 80,017. In Gallo v Dawson (supra) at 480 to 481 McHugh J said:

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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.

1. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Evidence in this application

1. The husband, who was self represented in the application before me, relied firstly on his affidavit sworn on 29 March 2006.  That affidavit contained much inadmissible material.  As I have already noted, he also relied on his affidavit sworn 4 June 2007.

2. The husband did not initially provide written submissions.  However, by letter dated 19 July 2007, and later 2 August 2007, he forwarded written submissions in support of his application.  The wife also filed written submissions which were expanded by her solicitor in oral submissions. 

3. Disregarding the inadmissible material in the husband’s affidavit, his evidence in respect of the merits of the costs appeal appeared to me to be as follows:

   I had no option but to appeal.  Since 9 months passed from 1st judgment to the next.  I honestly believed no one receives costs as they applied for Indemnity costs, I did not apply; Unfortunately the Judge penalised and awarded party costs instead, overlooking the documents submitted at 4 Th [sic] Dec 2003.  Where I tried to settle on a number of occasions going against his summation that I did not want to settle but the above documents show otherwise. (paragraph 7 husband’s affidavit of 29 March 2006)

4. The husband deposed in paragraph 8 of his affidavit “[i]t took almost 12 months for the court to start the appeal on costs …”.  I accept such a delay occurred.  It appears the delay was the result of an administrative error, and not in any way the fault of the husband.

5. The husband deposed to a caveat lodged against the title to the matrimonial home and that the existence of this caveat “was not addressed at the final hearing.” (paragraph 10)

6. The husband, it appears in support of his application for leave to extend time to appeal the substantive judgment, said in paragraph 11 of his affidavit:

   His Honour Justice Coleman ignored all financial contributions paid out by me years after the DECREE NISIE [sic].  I was on a non-existent wage what money came in paid rates utilities and out goings [sic] of the house Mrs [Allen] paid none of these things after or during the marriage, even though she was working and as part owner liable for responsibility.  His Honour placed the onus and responsibility unfairly on me?  [.Refer to her affidavit at final hearing].

7. The husband also deposed to Coleman J’s judgment of 28 May 2004 containing “glaring errors”.  No particulars are supplied by the husband, but from his oral submissions he clarified “the errors” were nine matters set out in paragraphs 14-23 inclusive of his affidavit as follows:

   14[1] Mrs [Allen] when she left in 1996 took all her possessions and other property that she wanted [refer to affidavit 3^rd Sep 2002] excluding the house

   15[2] When she returned in 1998 after 18 months what she brought back with her she removed with her when she left in Jan 2002 items signed by carrier. Refer to list she was entitled to move back in as part owner of property in dispute.

   16[3] Mrs [Allen] left the home 6 months after the divorce for the first time not in 1994 as stated in their document affidavit submitted at final hearing 17 18 may 2004, [error of 2-5 years] [sic]

   17[4] At the time of the Final Hearing property settlement 17 Th [sic] May 2004 – 10 YEARS OUT OF TIME

   18[5] His Honour makes reference to child support regarding [K] (a child of the marriage) and [A] (a child of the marriage) it did not occur for His Honour to examine the conditions of Divorce, we were ordered to both provide the needs of [K] which we DID.

   19[6] I had my son [A] who was my apprentice at the same period.

   20[7] When Mrs [Allen] returned in 1998 it was convenient for both of us, as we both had separate lives and oppose life styles.  Rather more convenient for Mrs [Allen] as she Dates refer to her affidavit.

   21[8] Interestingly His Honour discounted all my out goings [sic] which are quite extensive, including the Caveat, over $70.897 [sic] refer to doc evidence [money paid out after DECREE NISEI [sic] in upkeep] His Honour then declared Mrs [Allen] is entitled to $16.680 [sic]  Then awarded Costs [according to not settling] which amounts to according to her lawyers [who wont [sic] clarify] about $10.000 [sic] which  transposes to $20.000 [sic] when taken from my half.

   22They have been requested to provide a bill of costs, though they have being asked several times by me, and Justice Coleman, even at their last hearing 10 Feb and have not done so.

   23[9] All told a SIGNIFICANT amount to consider $107,577.00, His Honour Justice Coleman discounted. And awarded from Mr [Allen]

8. The wife relied on affidavits of her solicitor, Mr Damian Phair, sworn 4 July 2007 and 18 July 2007 and extensive written submissions forwarded to the Appeal Registrar on 20 July 2007.

9. Mr Phair, who appeared on the wife’s behalf before me, in his oral submissions most appropriately conceded that no point should be taken in respect of delay by the husband up to March 2006.  In fact, he said that if the husband had prosecuted his application at that time the wife would probably have consented to an extension of time.  He submitted that the husband, who has appeared before the Court on many occasions, was well able to take steps to pursue his applications after that time, and had failed to do so.  He submitted the husband only prosecuted his applications when the matrimonial home was about to be sold.  He referred me to asserted conduct by the husband which he submitted was designed to frustrate the sale of the matrimonial home, and the wife receiving her entitlements under the orders.

10. In his affidavit sworn 4 July 2007, Mr Phair deposed to the existence of caveats lodged on the title to the matrimonial home. One caveat had been lodged by the husband’s former solicitors claiming an equitable interest (it appears relating to outstanding legal fees).  He deposed to orders made by Coleman J on 6 March 2006 which required the husband to remove the caveat lodged by him.  Mr Phair annexed correspondence to his affidavit between the husband, the conveyancing solicitor, and his former solicitors.

11. Mr Phair also referred to an order made by Coleman J on 6 March 2006 for the appointment of a valuer to value the matrimonial home if the parties were unable to agree on a value for the reserve price of the property.  Mr Phair said that the husband had refused to pay one half of the valuer’s fees as ordered by the Court.

12. Mr Phair also deposed to the husband refusing to comply with a request to remove personal belongings from the matrimonial home.

13. In his affidavit sworn 18 July 2007, Mr Phair deposed to the necessity to file an application to apply to have the Registrar sign a withdrawal of caveat on behalf of the husband, as the husband had refused to do so.

14. In his written submissions, Mr Phair referred to the failure of the husband to file the costs appeal books.  He asserted “[t]he Husband has done everything in his power in order to delay and frustrate the sale of the property…” (paragraph 15 wife’s submissions). He submitted that the wife’s entitlements under the orders had been “…diminished substantially because her legal costs in this matter exceed $120,000 and are the direct result of the Husbands [sic] constant applications to the Family Court and his continual attempts to delay and frustrate the sale of the matrimonial property and his failure to comply with Court Orders.”  (paragraph 19 wife’s submissions)

Discussion

1. In considering the husband’s application to extend time in respect of the substantive orders of Coleman J in the property proceedings, as well as the subsequent costs orders, I am satisfied, given the concession of Mr Phair, it would be unfair to consider delays by the husband up to the filing of his present application in March 2006. 

2. It appears to me that the two principal matters which I should consider in the exercise of my discretion are the conduct of the parties, and more significantly, the prospects of success of the proposed grounds of appeal.   I will however briefly consider other relevant matters. 

3. I find it convenient to consider whether or not strict compliance with the rules will work an injustice on the husband by considering the criteria referred to by McHugh J in Gallo v Dawson (supra) which I do below.

Will strict compliance with the rules work an injustice on the applicant?

(a)      History of the proceedings

1. I have already set out a detailed history of the litigation to date.  I am not satisfied that it would be appropriate for me to take into account a lack of prosecution of this application by the husband from 2004 until March 2006.  I accept the husband failed to file appeal books in the costs appeal.  This is explicable at least in part by his misunderstanding of the nature and effect of the present application.  However, he failed to take any steps when abandonment of the costs appeal was drawn to his attention by Registrar Jurd’s letter on 2 May 2006.  I do not accept he filed an application on 26 May 2006 by fax, by reason of the discrepancies in that document which I have referred to above.  I am satisfied on the balance of probabilities the application was forwarded to the Court under cover of his letter of 12 May 2007.  I find these two matters do not support the husband’s application for an indulgence by the Court. 

(b)      The conduct of the parties

1. Whilst the major thrust of matters relating to conduct have been raised by the wife against the husband, I accept that there was a lengthy delay on the part of the wife’s former solicitors to provide the husband with an itemised bill of costs to enable the assessment to proceed in a timely manner.

2. The applications to the Court, and the correspondence annexed to Mr Phair’s affidavit support his submissions that the husband has not co-operated to facilitate the sale of the matrimonial home.   Mr Phair said that the wife had incurred otherwise unnecessary legal costs to enforce the trial Judge’s orders, (including the appointment of conveyancing solicitors), and because of the failure of the husband to sign necessary documents, including the withdrawal of caveat lodged by him.  The husband’s conduct in delaying the sale of the matrimonial home militates against exercising discretion in his favour.

(c)      The nature of the litigation

1. It appears to me that the husband’s proposed appeal to challenge the trial Judge’s enforcement orders made on 6 March 2006 has been rendered moot by the completion of the sale of the matrimonial home. 

2. I accept that absent leave being granted, or any circumstances which would permit the orders to be set aside under s 79A (which appears most unlikely), that the husband will be precluded from challenging the trial Judge’s property orders, and his entitlements will be as found by the trial Judge. I further find that absent leave to extend time to appeal, the husband will be required to pay the wife’s costs as assessed pursuant to the costs order.

(d)     Consequence for the parties of the grant or refusal of the application for extension of time

1. The consequence for the husband of a refusal of the application will be that his entitlements will remain as determined by the trial Judge.

2. The consequence for the wife if leave is granted is that the litigation will not be at an end.  She will face additional legal costs and delay, further eroding her property entitlements.

(e)      The prospects of success of the appeal

1. I am satisfied in the circumstances of this case, the most important factor for me to consider in determining this application are the merits or otherwise of the proposed grounds of appeal. Without conducting an exhaustive analysis of the husband’s proposed grounds, I will endeavour to assess the prospects of success of each ground.  My task is not particularly assisted by the draft Notice of Appeal on which the husband seeks to rely as he has not distinguished which grounds he seek to rely in respect of his challenge to each of the orders of the trial Judge.  Doing the best I can, I will consider the grounds I find relevant to each order.  I propose to first consider the challenge to the substantive orders, as consideration of the success or otherwise of that proposed appeal, may well affect the prospects of success of the costs appeal.

1. The substantive proposed appeal against the property orders

1. The husband’s proposed grounds of appeal appear to be:

   1.Applied wrong principal of law Section 75 [2] [A] [B]

   2.Made a finding of facts on which could not be supported by evidence brought before the court

   3.The financial hardship imposed on appellant

   4.Exercised discretion of decision clearly wrong

   …

   8.Some Documents and letters were not submitted at Final hearing as. [sic] Evidence

   9.Incorrect information given to the Justice by applicant reg [sic] dates and times

   10.Incorrect information about child support.  Refer to divorce conditions of Divorce court, which were abided by.

   11.The financial contribution factor was clearly unfair and unjust

   …

   14.The magnitude of the amount of money that was paid out years after the [DECREE NESIE] [sic] marriage had ended which Justice Coleman discounted as a CONTRIBUTION to the MARRIAGE.

   15.The property settlement is 8 years out of time all that is left is the house to be considered nothing else all other assets were settled in 1996 and again in 2002

   …

   17.Under Section 75 it is clearly apparent that an adjustment in my favour is appropriate for the division of the property. 

2. From the husband’s written and oral submissions it is apparent that he asserts error by the trial Judge in essentially three areas:

   ·that the trial Judge gave insufficient weight to his contributions to the matrimonial home and welfare of the family post separation and in particular after the parties’ divorce in 1996;

   ·that the trial Judge failed to make an adjustment in the husband’s favour under s75(2) by reason of his ill-health or by reason of some other factor;

   ·that the trial Judge’s discretion miscarried by his reliance on incorrect factual matters, and in particular the parties’ respective financial support for their children post separation.

3. Both in his oral and written submissions the husband referred to the decision of the Full Court in Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377 as support for his argument that the trial Judge had erred in his assessment of the parties’ relative contributions.

4. In his reasons for judgment, the trial Judge noted at the commencement of the hearing the husband sought the sale of the matrimonial home and division of the proceeds as to 70 per cent to him and 30 per cent to the wife.  His Honour noted “[i]mplicit in the husband’s stance is that each party retain such other assets as may exist and be in the possession of that party or retain the benefits of such assets as such party has previously obtained where those assets no longer exist.”(paragraph 4)  He also noted that the wife sought a greater share of the matrimonial home “because of the existence or previous existence of a number of assets, the most significant of which came into existence in the post separation period as a result of litigation successfully pursued by the husband against the state of New South Wales and a number of New South Wales Police Officers.” (paragraph 5)

5. The trial Judge carefully recorded the husband’s submission that events occurring after the parties’ separation were irrelevant and should not be taken into account by the Court.  At paragraph 9 of his reasons the trial Judge noted:

   There can be no question that the husband fervently believes that he is right in asserting that the wife cannot possibly benefit in any way from his common law damages award.  He believes with equal fervour that nothing which has occurred since 1994, at least in terms of contributions, should be taken into account in these proceedings.  The Court has endeavoured to explain to the husband that it is legitimate for the wife to agitate matters subsequent to final separation, a period during which the parties resumed joint occupancy of [the Hills District property] (for a period of almost 4 ½ years), and that the Court had not formed any view that the wife should in fact benefit from any of the matters of which the husband asserted to be irrelevant.  The Court is less than convinced that the husband has understood that because a claim is able to be agitated at trial it does not follow that the Court accepts such claim. The husband seemed unable to understand or accept that the Court was obliged to hear the evidence in relation to these matters before reaching a conclusion albeit the conclusion may well ultimately, if not for the reasons asserted by the husband, be largely consistent with the stance he has taken. 

6. The trial Judge thereafter referred to the husband’s lack of disclosure “with respect to the fate of assets” acquired by him since 1994, which the trial Judge found to be less than satisfactory.  His Honour then said:

   The reasons for so concluding will emerge in the reasons which follow, but essentially, with the possible exception of some personalty, the value of which has not been established, but which is not likely to have been significantly valuable in any event, the property which the husband has not explained the fate of can, if need be by reliance upon the decision of the Full Court in Townsend v Townsend (1995) FLC 92-569, be brought to account sufficiently to enable the Court to properly evaluate the contributions of the parties and the relevant s 75(2) factors. Put bluntly, to the extent that the husband has failed to disclose prior to trial or “played dumb” during the trial, those ploys have been largely unsuccessful. (paragraph 12)

7. Having set out a chronological history of the parties’ acquisition of assets and their respective contributions, the trial Judge referred to the fact that when the wife resumed occupation of the matrimonial home after 1994 that the wife did not:

   …assert that she paid any mortgage instalments, council rates or water rates on [the Hills District property] at anytime subsequent to 1994, she asserts that she contributed to household and living expenses until she vacated the home in January 2002.  The husband’s evidence is not entirely clear on this point, but it does seem that he admits that the wife thus contributed during the last period in which the wife occupied [the Hills District property].  The wife concedes certain of the husband’s contributions in that period. (paragraph 24)   

8. In paragraph 25 of his reasons the trial Judge referred to the issue of child support.  His Honour said:

   It is common ground that the husband never paid child support subsequent to 1994 although the evidence suggests that there were potentially two children for whom the child support may have been payable, [A] and [K].  [A] was employed by the husband as an apprentice receiving at least award wages.  The husband suggested that [K] ceased to be dependent at about 16 years of age although [K] completed year 12 of secondary schooling which would have made her somewhat older when she ceased to be dependent. 

9. Thereafter, the trial Judge noted that the husband had in February 1999, discharged the mortgage secured over the matrimonial home by making payment of approximately $27,000.00.  The trial Judge noted “[t]he contentious issue relates to the $236,000.00 net which the husband received as a result of the common law proceedings against the State of New South Wales and certain police officers.”  (paragraph 34)  His Honour thereafter recorded the husband had expended $150,000.00 of that sum on the purchase of his property in North Queensland and concluded “[m]ystery surrounds what has become of the balance of the net proceeds of the common law action, the sum of approximately $86,000.00.” (paragraph 35)  His Honour then said “…[t]he husband received the money and, by his refusal or inability to explain what has become if it, save to the extent of $150,000.00, cannot complain that, pursuant to the decision of the Full Court in Townsend v Townsend (1995) FLC 92-569, that sum is taken into account…” (paragraph 37) His Honour then set out the assets and liabilities of the parties finding a total net asset pool of $757,260.00. The trial Judge included the whole of the husband’s common law award of $236,000.00 in that total.

10. In paragraphs 43 to 52 of his reasons, the trial Judge dealt extensively with the parties’ post-separation contributions.  His Honour noted during the period from separation until December 1997 the parties’ son, [A] was apprenticed to the husband and paid by him, and that the wife solely supported their daughter, [K].  His Honour concluded that the wife’s contributions during that period, having regard to the husband’s exclusive occupancy of the matrimonial home, were “somewhat greater than those of the husband”. 

11. Thereafter, his Honour dealt with the period from December 1997 to January 2002.  His Honour had regard to the fact that during this period the husband paid mortgage instalments, together with council and water rates.  His Honour recorded payments of approximately $46,000.00 in mortgage payments, council rates of approximately $8,500.00 and “water rates of somewhat lesser but substantial magnitude as well as insurance and maintenance expenses”. (paragraph 45)

12. His Honour then noted that from January 2002 the wife derived no benefit from the matrimonial home and the husband had exclusive occupancy of that property rent free.  He also noted the husband had paid outgoings on the property since January 2002.

13. Having referred to the lack of evidence as to the source of the funds of $27,000.00 which the husband used to discharge the mortgage, his Honour concluded “[e]valuating the contribution is thus not without difficulty”. (paragraph 49)

14. His Honour concluded at paragraph 52 of his reasons:

    Subject to a consideration of the husband’s common law award, the post-separation periods do, having made appropriate allowance for the absence of child support for [K], suggest that the husband made, as between the parties, a somewhat greater contribution than did the wife.

15. The trial Judge then went on to consider in detail the husband’s common law award.  Whilst recognising that the wife assisted the husband’s common law claim by giving evidence, and that her contribution in that regard “is entitled to be recognised”, his Honour qualified the finding and said “…the wife’s contributions must be seen as comparatively minor compared to those of the husband in relation to the acquisition of the award.” (paragraph 67)

16. His Honour’s conclusions in relation to contributions are set out in paragraph 68 as follows:

    As has been recorded earlier, on balance, the husband’s contributions with respect to [the Hills District property] modestly exceed those of the wife by virtue of events which occurred in the post-separation period, particularly in the period 1997 to 2002. To regard the wife’s entitlement by virtue of contributions to the acquisition of the husband’s common law award would, as off setting that imbalance so as to render the parties equally entitled to [the Hills District property] would be just and equitable. To the extent that the wife’s contributions with respect to the common law award ought not be recognised within the context of s 79(4), it would be proper to do so within s 75(2)(o). The impact of so doing would be the same as the Court considers appropriate by approaching the issue via S79(4). For convenience, as doing so has no impact on the outcome of the proceedings, the Court prefers to recognise the contribution within that context.

17. Thereafter, his Honour considered relevant s 75(2) factors comprehensively dealing with the husband and wife’s respective income positions, and the disparity of their capital at the conclusion of the proceedings noting that “…the husband would have substantially more capital than would the wife, by roughly more than 2 to 1…” (paragraph 73) The trial Judge noted that the husband would retain the entirety of the monies received by him as a result of the common law proceedings “albeit the wife’s contributions with respect to that fund have been recognised in the contribution entitlements of the parties…” (paragraph 75), and concluded that no adjustment under s 75(2) should be made.

18. The husband’s proposed appeal is an appeal against a discretionary judgment.  Limits on appellant interference with such judgments are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. 

19. A careful reading of his Honour’s reasons for judgment demonstrates that his Honour thoroughly evaluated the post-separation contributions of the parties and gave significant weight to the contributions made by the husband.  The nub of the husband’s complaint about the trial Judge’s reasons for judgment appears to be that he did not “draw a line in the sand” at the date of the parties’ separation, but rather assessed all contributions, both financial and non financial, to the date of the hearing. 

20. His Honour’s principled reasoning is consistent with authority.  The Full Court in Kowalski and Kowalski (1993) FLC 92-342 (Nicholson CJ, Nygh and Fogarty JJ) said at 79,630:

    A more logical and consistent approach is one which is based on the proposition that once a marriage has been celebrated between the parties, the entire relationship between the parties whether arising out of contributions before, during or after the formal tie of marriage was entered into or dissolved, falls within the ambit of Part VIII of the Family Law Act 1975.  This principle explains why contributions made between cohabitants who later marry are judged according to the criteria set out in the Family Law Act 1975 and not according to those set out in the Property Law Act 1958 (Vic) or the De Facto Relationships Act 1984 (NSW). It is also consistent with the proposition that post-separation and post-divorce contributions continue to be taken into account. These parties are before the Family Court because they were once married and hence the proceedings can be said to arise out of the marital relationship, even if the property, the subject of such proceedings, does not...

    See also Farmer v Bramley (2000) FLC 93-060; (2001) 27 Fam LR 316.

1. I am unable to discern any merit in the husband’s assertions that the trial Judge erred in the generous ambit of his discretion in assessing the parties’ contributions, both during their marriage and post-separation, particularly in light of the husband’s failure to make a full and frank disclosure in respect of his use of the balance of the common law award.

2. The husband also asserts that the trial Judge failed to make an adjustment under s 75(2)(a) and (b) in his favour.

3. His Honour’s reasons for judgment disclose that the trial Judge carefully weighed and assessed all relevant s 75(2) factors, including the greater capital retained by the husband. I am unable to discern any error of the exercise of discretion by the trial Judge in making no adjustment in favour of either party under s 75(2).

4. The remaining challenge which the husband wishes to agitate in respect of his Honour’s reasons is directed to asserted reliance by the trial Judge on incorrect factual matters.  The husband asserted that the trial Judge was led to error in the exercise of his discretion by incorrect evidence about the parties’ responsibilities for child support.  From the passages from his Honour’s judgment set out above, it is clear that his Honour recognised and took into account the husband’s actions in providing financial assistance for [A].  I discern no appealable error by the trial Judge in his assessment of the financial provisions made by each of the parties for [K] and [A] during the parties’ marriage, and after separation.  Further, I am unable to  discern that any error in the wife’s affidavit material (if there is such error) about the date of resumption of her occupation of the matrimonial home which could be said to vitiate his Honour’s discretion (see De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605; (1979) 4 Fam LR 583)

5. In summary, I assess the husband’s prospects of success in respect of the property appeal to be negligible.

1. The enforcement appeal

1. I have already noted that this proposed appeal has been essentially rendered moot by reason of the sale of the matrimonial home.  I further note that the orders made by the trial Judge are basically orders of a machinery nature and typical of orders regularly made in this Court to facilitate the sale of a property.

1. The costs appeal

1. It appears to me the following grounds may be relied on by the husband in respect of this appeal:

   …

   2.Made a finding of facts on which could not be supported by evidence brought before the court

   3.The financial hardship imposed on appellant

   4.Exercised discretion of decision clearly wrong

   …

   16.The issue of Costs awarded against me on opinion, is unwarranted and applied on the 24th. Dec 2004  The Justice overlooked documents at final hearing and the obvious circumstance of my situation.  Applied wrong principal of law.

2. First, his Honour recorded in his judgment that the wife had been out of time to apply for property settlement, but the husband had consented to an extension of time for her to do so.  The husband does not challenge that factual finding of the trial Judge.  The trial Judge noted that the wife had sought an order for costs on an indemnity basis in her application filed 21 October 2002.

3. In paragraph 7 of his reasons the trial Judge determined, having regard to offers of settlement made by the wife, “but for the husband’s affidavit in relation to the events of 1 December 2003, the wife’s claim for costs from February 2002 through to, and including, the trial of the proceedings would in the Court’s view be difficult to resist”.  Thereafter, in paragraph 8 his Honour dealt in detail the husband’s offer to settle contained in his affidavit.

4. The trial Judge set out the relevant statutory provision dealing with costs (s 117) and cited relevant authority (Penfold v Penfold (1980) 144 CLR 311 at 315). Thereafter his Honour considered in detail each relevant provision of s 117(2A) and turned his attention to offers of settlement. His Honour referred to two offers made on behalf of the husband by his former solicitors to settle the proceedings by purchasing the wife’s interest in the matrimonial home (4 June 2003 and 8 July 2003) but noted the deficiencies in such offers as they failed to specify a sum on which settlement could be achieved.

5. His Honour specifically noted the offer made in the husband’s affidavit and limited costs payable to a defined period concluding on 3 December 2003.  His Honour rejected the wife’s application for costs to be assessed on an indemnity basis.

6. In his affidavit sworn 29 March 2006 the husband asserts that: 

   It is well documented that my lawyer tried to settle on 3^rd Jun [sic] 2003 for the amount of $200.000 [sic] which is what they demanded, However they then lifted their demand to $310.000, [sic] their own valuation of the house currently was $350.000, [sic] they had convinced Mrs [Allen] to run for 65% of the house.  And all my current assets [Well documented] Once again  the matter would and could have been settled 2 days before the final Hearing 4 the [sic] Dec 2003 with me agreeing to sell the property and just dividing equally [It was common knowledge that I had purchased my home in [North Queensland] 2 nd [sic] Sep 2003,] and very anxious to settle to repay my commitments] but   unfortunately that was once again unaccepted.

   They made no attempt to take up the offer, which was handed to them on the 4 Th [sic] Dec prior to entering the hearing.         Which was my only Response and a Major Document prepared the day before to support my case for entitlement, incomprehensibly there was now a standing offer now on the ’TABLE‘ they totally ignored for 3.5 months till 17 th    and 18th Mar 2004 final hearing where they re submitted [sic] their application for 65% of assets after DECREE NECEI [sic]

   The Applicant Lawyer cant [sic] seem to recall receiving my Affidavit by hand on the morning of the 4 th [sic] Dec 2003, His Honour acknowledged this in the Costs Judgment [though he said they must have read it some time] and coincidentally himself ERRED in failing to read the annextures [sic] of same document which supported my case. (paragraph 24)

7. The trial Judge dealt extensively with the husband’s former solicitor’s letter of 4 June 2003.  His Honour dealt with the husband’s solicitor’s assertions about the property being valued at $200,000.00.  At paragraph 22 of his reasons his Honour said:

   On 10 September 2002 however, the solicitors acting for the husband communicated a valuation obtained some 3 ½ years earlier suggesting “This home could perhaps be considered near land value purchase” and expressing an opinion of valuation of the property of $200,000 on that basis. 

8. The husband’s submissions about settlement offers made “two days” before the hearing are irrelevant, as the costs order was limited to costs up to 3 December 2004.  At most one day’s costs, if any, were involved.

9. It appears to me that to the extent the husband seeks to raise as a ground of appeal an error of fact by the trial Judge which vitiated his discretion (see De Winter v De Winter (supra)) such a challenge is unlikely to succeed having regard to paragraph 22 of his Honour’s reasons.  Further, insofar as the grounds challenge the exercise of discretion by the trial Judge, I am able to discern any irrelevant matter taken into account by the trial Judge, or any matter he failed to take into account.  Given the broad discretion to award costs, I find that the husband’s proposed grounds of appeal in respect of the costs judgment have no real prospects of success.

(f)       Can hardship or injustice to the respondent be compensated by an order for costs?

1. Prima facie, there is a sum from the proceeds of sale of the house which could provide security if so ordered to compensate the wife for costs incurred in the event the husband is granted leave to appeal and is unsuccessful in his appeal.  However, the costs which would be awarded on a party and party basis would not fully indemnify the wife for her legal costs incurred.

2. I also take into account that the wife has incurred substantial legal costs occasioned by reason of the husband’s failure to comply with Court orders to remove the caveat he lodged against the matrimonial home and to sign other documents necessary to enable the matrimonial home to be sold.  I also take into account that the wife has incurred and paid her one half share of the costs to obtain a valuation to enable the sale of the matrimonial home to proceed.

Conclusions – husband’s application

1. In Gallo v Dawson (supra) McHugh J noted 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…

2. I am conscious of the difficulties which the husband has faced as a self represented litigant in endeavouring to appeal the orders made by Coleman J in the substantive property proceedings, and subsequent cost and enforcement orders. There have been regrettable delays and administrative errors in the processing of the husband’s applications, and he is justified in the majority of his complaints in this regard. He also misunderstood what was required by the Rules to proceed with his proposed appeals out of time. Those matters however do not go to the fundamental issue, namely will strict compliance with the Rules work an injustice on the husband?

3. I am satisfied that even if the husband’s application in respect of the enforcement orders was deemed to have been filed in time, any appeal from such orders is now rendered moot by the sale of the matrimonial home, which sale was the relief both parties’ sought to finalise their property entitlements before the trial Judge. Hence I am satisfied the Rules do not work an injustice on the husband in respect of that proposed appeal. The husband’s proposed appeal against the property orders is an appeal against a discretionary judgment. The appeal grounds disclose no likely prospects of success if the appeal was heard, and prejudice to the wife by continuation of the proceedings. Likewise the proposed costs appeal is an appeal against a discretionary judgment. The husband’s proposed grounds in respect of this challenge to the trial Judge’s costs orders disclose no appealable error by the trial Judge. Overall, I am satisfied that strict compliance with the Rules will not work an injustice on the husband. Rather this long drawn out litigation should be able to be concluded as soon as possible.

The wife’s application

1. The Full Court at the hearing on 28 June 2007 was understandably unable to hear and determine the husband’s application for an extension of time to appeal the three sets of orders of Coleman J.  The order which the wife now seeks arises as a result of the orders made by the Full Court on 6 July 2007.  Orders 1 and 2 of the orders of the Full Court are relevant.  They are as follows:

   (1)That the solicitor acting for the husband and the wife in relation to the sale of the property [in the Hills District of] New South Wales, retain in his or her trust account (or similar account) the amount of $100,000 out of each of the shares of the proceeds of that sale to be received by each party, pending the determination of the husband’s application in a case filed 29 March 2006 or other order of the Court.

   (2)That each party be at liberty to apply for a reduction in, or the disbursement of, the amount held in trust pursuant to Order 1 of these orders to the Judge who hears the husband’s application in a case filed 29 March 2006. 

2. It appears to me those orders are typical of orders made as a condition of a stay pending an appeal to preserve assets in the event of a successful appeal.  On my reading of the Full Court’s orders, Order 1 would cease to have effect on my dismissal of the husband's application.  However, to remove any doubt, I propose to make an order authorising the parties’ conveyancing solicitor to release to the wife her share of the proceeds of sale of the matrimonial home.

3. Before me, the wife originally sought an order restraining the husband from accessing $40,000.00 of his share of the proceeds of sale of the matrimonial home, but withdrew that application as the husband had given an undertaking to the Court when he was before Collier J on 27 July 2007.  That order became Exhibit “A” before me.  The undertaking is limited in time until 17 September 2007.  Before me, the husband indicated that he thought his undertaking was limited to $40,000.00 as the wife had sought in her application.  I am satisfied that he is now aware of the terms of the undertaking he has given, and that he can if he wishes to do so, seek to vary the undertaking to limit it to the sum of $40,000.00 on 17 September 2007.

Costs of this application

1. The wife sought an order for costs regardless of whether the husband was successful in his application. She noted that even if successful, the husband had sought an indulgence from the Court, and that the application was necessary because of his failure to comply with the Rules. Before me, the wife’s solicitor submitted that if the husband’s application was dismissed that he should pay the wife’s costs on an indemnity basis.

2. The power to make an indemnity costs order in an appropriate case is recognised (see Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029 at paragraph 31). The principles which apply to the making of an indemnity costs order are not limited to cases where fraud or collateral purpose is established against one party. What is required is that some “particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis”: per Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233; (1993) 118 ALR 248 at 257. Generally the departure from the ordinary rules relating to costs will require exceptional circumstances (see Munday and Bowman (1997-1998) 22 Fam LR 321).

3. Section 117 is relevant to this application. Section 117(1), (2) and (2A) are in the following terms:

   Section 117   Costs

   (1)  Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.

   (2)  If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant.

4. Whilst I have no recent financial statements of the parties before me, it is clear that the husband received a larger share of the assets from the s 79 proceedings. I am satisfied he has the capacity from his share of the proceeds of the sale of the matrimonial home to pay costs. The wife earns a very modest income, and has incurred substantial legal costs in enforcing the sale of the matrimonial home and resisting this application. Neither party is in receipt of Legal Aid. The husband has been wholly unsuccessful in his application. I am satisfied that it would be appropriate that he pay the wife’s costs of these proceedings, excluding the adjournment on 20 July 2007, which adjournment was necessitated by the late filing of material on her behalf.

5. I have set out above the principles to be considered in making an order for indemnity costs.  I am not satisfied this is a case which falls within those principles. I find that costs should be paid on a party and party basis.  

I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date: