Ottoway and Ormond - [2011] FamCAFC 65

FAMILY COURT OF AUSTRALIA

OTTOWAY & ORMOND

[2011] FamCAFC 65

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where there is an adequate explanation for the delay – where there are arguable grounds of appeal – where the conduct of the husband is relevant – consideration of the consequences for the parties if the application is granted or refused – extension of time granted.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004 (Cth) r 22.02 & r 22.03

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Ottoway

RESPONDENT:

Ms Ormond

FILE NUMBER:

MLC

6121

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

7 March 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 December 2010

LOWER COURT MNC:

[2010] FMCAfam 838

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boden

SOLICITOR FOR THE APPLICANT:

Starnet Legal

COUNSEL FOR THE RESPONDENT:

Ms Yeoh

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Service Victoria

Orders

The time for the applicant to file and serve a Notice of Appeal against the orders made by Federal Magistrate O’Dwyer on 10 December 2010 be extended to the close of business on Monday 21 March 2011.

IT IS NOTED that publication of this judgment under the pseudonym Ottoway & Ormond is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 10 of 2011
File Number: MLC 6121 of 2008

Mr Ottoway

Applicant

And

Ms Ormond

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an Application in an Appeal filed by the husband on 19 January 2011, and, in effect, the husband seeks an extension of time to file a Notice of Appeal against orders made by Federal Magistrate O’Dwyer on 10 December 2010. Those orders were orders by way of final property settlement. The husband has filed two affidavits, one on 19 January 2011 and one on 4 March 2011 in support of his application.
The application is opposed by the respondent.
The relevant statute law and rules that apply here are as follows:
3.1 Section 94AAA(1) of the Family Law Act 1975 (Cth) provides:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
3.2Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court.
3.3 Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
3.4 Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
3.5Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
3.6Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
In summary, the husband in this case had 28 days in which to file a Notice of Appeal following the making of orders on 10 December 2010. Thus, the last date to file a Notice of Appeal would have been 7 January 2011.
The law in relation to applications for extension of time is well settled, and I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Addressing the relevant factors arising in this case, there is first the question of delay, and the explanation for that. As I have said, a Notice of Appeal was not filed within the requisite 28 days, that period expiring on 7 January 2011, but the Application in an Appeal was filed on 19 January, some 12 days later.
The explanation for the delay is that, firstly, no notice was received by the husband or his lawyers that judgment was to be delivered by the Federal Magistrate. The husband’s solicitor then went on leave between 15 December 2010 and 4 January 2011, and it was in that period of time when the judgment delivered by the Federal Magistrate on 10 December 2010 was received in his office. As a result the earliest that the husband’s solicitor could make available the judgment to the husband and take instructions on it was 12 January 2011, and then, as is apparent, instructions were obtained to file an application and that was done on 19 January 2011.
I took particular care in enquiring of the respondent’s counsel as to whether that sequence of events was in fact challenged, and it seems that it is not. Thus, I am satisfied that there is a reasonable explanation for the failure to file the Notice of Appeal within the 28 day period, and also I find that there was not an inordinate delay before the application itself was filed.
The next issue which has been the subject of submissions before me and which is a highly relevant factor is whether there is a substantial issue to be raised on appeal. For me to understand what complaint the husband makes in relation to the orders of 18 August 2010, I have had regard to the affidavit material filed. There was no draft Notice of Appeal, and that would have been helpful, but, in the circumstances, I am able to glean both from the affidavit material and the submissions made on behalf of the husband what the complaints are.
In effect, there will be two major grounds of appeal if the matter is allowed to proceed. The first is there was a denial of natural justice in that the husband was not afforded the opportunity to obtain documents which he said he had in support of his claim that he was suffering from ill health. Unfortunately, I do not have the transcript, and nor do the parties have access to the transcript, and I have had to rely on the memory of Mr Boden and his instructions from his client as to what happened in this regard. Ms Yeoh, who appears for the respondent, did not appear at the hearing and thus she cannot contribute to this part of the discussion. Mr Boden’s recollection is that during the course of the husband’s evidence, he asked the Federal Magistrate for the opportunity to obtain these documents and that was refused. I proceed on the basis that that in fact happened.
The second proposed ground of appeal relates to the circumstance of the Federal Magistrate leaving out of the property pool the house property and the motor vehicle purchased by the wife subsequent to separation. It is suggested that the Federal Magistrate erred in doing that.
In response, the respondent’s counsel has made very forceful submissions in relation to the merits of the appeal and suggested that the Federal Magistrate’s findings were open to the Federal Magistrate on the evidence that was before his Honour.
It was pointed out that there were significant credit findings. His Honour found that he had no hesitation in accepting the wife’s evidence as accurate as opposed to that of the husband, and in particularly addressing the issue of the house property purchased by the wife after separation, the Federal Magistrate in his reasons for judgment accepted the evidence of the wife as opposed to that of the husband. The issue, as I understand, was whether the funds used to purchase that property could be traced back to funds available to the parties prior to separation or whether it was purchased solely from funds earned by the wife or accumulated by the wife subsequent to separation, and his Honour found that the latter was the case. The respondent’s counsel submits that this finding was perfectly open to the Federal Magistrate.
In relation to the question of the denial of natural justice, what Ms Yeoh puts to me is that the proceedings were commenced in July 2008 and there was ample time for the husband to have collated and presented the evidence that he wished to in support of his application for property settlement and it was appropriate for the Federal Magistrate to refuse to allow the husband to present this evidence which he said he had but did not have available at the last minute.
It was also pointed out that previously the parties had reached agreement about the property settlement dispute and consent orders had been made, but subsequently those consent orders were set aside on the application of the wife, and the basis for setting aside the orders, as referred to by the Federal Magistrate in his reasons for judgment, was in part the husband’s misleading conduct. The point of this is that even at the hearing which took place in relation to that issue, no evidence was presented by the husband in relation to his ill health.
Turning then to other relevant factors which arise from the authorities and which can be considered in this matter, there is the conduct of the parties and the history of the proceedings. In terms of the history of the proceedings, it is suggested that the delay in getting to a final hearing was caused by the husband.
Pausing there, I note of course that there is no affidavit material before me from the respondent, and what is being put to me in this regard is simply from the bar table by the respondent’s counsel. Thus I am not in a position to make any finding as to who has caused any delay in these proceedings, and that certainly was not the subject of any of the reasons for judgment delivered by the Federal Magistrate.
In terms of the conduct of the parties though, there is the failure of the husband to provide full and frank disclosure. That is a matter that the Federal Magistrate did comment on, and it is highly relevant.
I note also that the respondent’s counsel has suggested that the husband has not yet complied with certain costs orders. Mr Boden has not disagreed, and thus I proceed on the basis that that is the case. That can be brought into the category of the conduct of the husband in the proceedings.
The next and final factor that I need to have regard to is the consequences of refusing or granting the application. For the husband’s part, Mr Boden has suggested that there will be serious prejudice to the husband if the application is refused and that there will be minimal prejudice to the wife. Obviously, if I did refuse the application, then Mr Ottoway would not be able to pursue his appeal. There is also no appeal from a refusal to grant an application such as this. There is the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case, but certainly, I accept that there would be serious consequences for the husband in the refusal to grant his application.
On the other side of the coin, I do not accept though Mr Boden’s submission that there would be no or minimal prejudice to the wife. As Ms Yeoh has pointed out, if the application is successful, then the appeal will be allowed to proceed and that means ongoing litigation in a matter which commenced back in July 2008 and in respect of which there is, on anybody’s assessment of it, a very small pool of assets and very little to go around between the parties.
It was suggested to me that the wife would also be put to the expense of instructing lawyers, although she is currently being represented by the Women’s Legal Service, and Ms Yeoh has indicated that they would continue to act for the wife. I have said quite frankly, and I repeat again, that I proceed on the basis that, as his Honour found in paragraph 8 of his reasons, the wife is 41 years of age and employed as a professional. She is in good health. She earns approximately $140,000 per annum. Thus, I do not accept that she is without funds to pursue any ongoing litigation but, of course, the point of it is why should there be that ongoing litigation given that this is now an application by the husband where he is seeking the indulgence of the Court to allow his appeal to proceed. The wife should be able to enjoy the fruits of the judgment of the Federal Magistrate.
I have to balance the prejudice that each party would suffer depending upon the result.
Those factors to which I have had regard all lead to the overarching principle which is of course where the justice of the case lies.
In terms of the relevant factors, just to summarise, I am satisfied of the explanation for the delay and I find that it is a reasonable and adequate explanation. With the merits of the appeal, I am somewhat hamstrung by the lack of complete documentation, but that is unfortunately how I have to proceed. I have identified the documents that I have before me. I do not have, of course, the transcript of the proceedings. I do not have any of the other documents that were before the Federal Magistrate, and thus any conclusion that I come to in relation to the merits of the appeal has to be somewhat rough and ready. Although I am swayed by the respondent’s submissions as to the proposed grounds of appeal, it seems to me that there are arguable grounds of appeal there.
In terms of the history of the proceedings and the conduct of parties, as I have said, I accept most of what Ms Yeoh has put to me, and those factors fall in favour of refusing the application. With the consequences for the parties of either refusing or granting the application, to use the vernacular, that is virtually line ball in terms of the prejudice that each party would suffer, but, if anything, it falls in favour of the husband given the seriousness of not being able to pursue an appeal where I am satisfied that there is at least an arguable ground of appeal.
Thus, taking all those issues into account, in my view, the justice of this case requires that the application be granted.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 March 2011.

Legal Associate:

Date: 23 March 2011