PANALEON & PANALEON
[2014] FamCAFC 82
•8 May 2014
FAMILY COURT OF AUSTRALIA
| PANALEON & PANALEON | [2014] FamCAFC 82 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is a satisfactory explanation provided by the applicant for failing to file the Notice of Appeal within time – where there is merit in one of the two grounds of appeal – extension of time granted. |
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| APPLICANT: | Mr Panaleon | |||
| RESPONDENT: | Mrs Panaleon |
| FILE NUMBER: | MLC | 8294 | of | 2010 |
| APPEAL NUMBER: | SOA | 6 | of | 2014 |
| DATE DELIVERED: | 8 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 8 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 16 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2372 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Jenkinson |
| SOLICITORS FOR THE RESPONDENT: | MacGregor Solicitors |
Orders
The time for the applicant to file and serve a Notice of Appeal against the orders made by Judge Burchardt on 16 December 203 be extended to the close of business on Thursday 5 June 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Panaleon & Panaleon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 6 of 2014
File Number: MLC 8294 of 2010
| Mr Panaleon |
Applicant
And
| Mrs Panaleon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by
Mr Panaleon (“the applicant”) on 21 January 2014. In that application the applicant seeks, although not in so many words, but this is the effect of it, an extension of time to file a Notice of Appeal against orders made by
Judge Burchardt on 16 December 2013.
That application is supported by an affidavit of the applicant, and a draft Notice of Appeal, both filed on 21 January 2014.
The application is opposed by Mrs Panaleon (“the respondent”).
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
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.
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.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced namely, by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made or the judgment is delivered. Rule 22.11 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.
In this case the reasons for judgment were delivered and orders were made on 16 December 2013. The 28 day period expired on 13 January 2014. The applicant did not file a Notice of Appeal in that timeframe, and that of course has led to his application that is before me today, that application being filed on 21 January 2014, some eight days after the 28 day time period expired.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J said this 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 McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, what I take from those authorities is that the fundamental issue here is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. Of those factors mentioned in Gallo v Dawson, it seems to me the most relevant factors would be first, any explanation for the failure to comply with the timeframe, secondly, the merits of the appeal and thirdly, what prejudice might be suffered by either party depending upon the result.
In relation to other factors such as the nature of the litigation, the history of the proceedings and the conduct of the parties, I note that this matter has had a long history, and that for example the applicant has made a number of unsuccessful applications for extension of time to appeal previous orders made. Although neither party has made any detailed submissions based on those factors, the history is a matter that has some relevance here.
Discussion
Adequate Explanation
If he was intending to appeal, the applicant was required to file a Notice of Appeal within 28 days of the date of the orders being made, namely
16 December 2013. As has been identified the 28 day period expired on
13 January 2014.
What the applicant tells me in his affidavit is that, and I summarise, when he received the final orders, he sought legal advice from a law firm known as Allan McMonnies, Solicitor, and he gave instructions to that law firm that he wished to appeal all of the orders made by the Federal Circuit Court judge. The applicant then attended at the offices of his solicitor on 13 January 2014. He says that he waited several hours for the solicitor to see him, and when he eventually did see him, he was handed what he describes as an “Appeal”, and I take that to mean a Notice of Appeal. He further deposes that he was requested by his solicitor to take the Notice himself to the Family Court on the next day.
However, what the applicant did was he spoke to a friend and apparently attempted to file the Notice of Appeal by facsimile, despite his solicitor having told him earlier that the Family Court would not accept filing by facsimile. The applicant says that by mistake the Notice of Appeal was sent to the Federal Court instead of the Family Court. The applicant assumed that the Federal Court would pass on to the Family Court his Notice of Appeal, but on
14 January 2014 he says he received a letter from the Appeal Registrar of the Family Court telling him that his appeal had been, to use his word, “rejected”, because it was out of time.
Although this is what the applicant deposes to in his affidavit, it is unclear to me how, if he had sent the Notice to the Federal Court on 13 January 2014, first, it would have got to the Family Court ultimately, and secondly, how he could have received a letter from the Appeal Registrar the next day. In any event what I take from the affidavit is that at or about the end of the 28 day period, the applicant made attempts to file a Notice of Appeal, those attempts were unsuccessful, and he became out of time in terms of being able to file a Notice of Appeal.
Subsequently, to repeat, eight days after 13 January 2104, namely on
21 January 2014, the applicant filed the application which is before the court today.
Ms Jenkinson for the respondent submits that that is not an adequate explanation of the failure to comply with the prescribed timeframe. First, she points out that there is no explanation as to why the Notice of Appeal was not filed earlier in the 28 day time period following the making of the orders, and secondly, in any event, Ms Jenkinson points out that the applicant “ignored”, to use her word, what his solicitor said about how he could file the Notice of Appeal in the Family Court, and as a result he became out of time. In other words he should have simply filed the Notice at the court that day.
For my part, I consider that the explanation given by the applicant is a sufficient one for the purposes of this application. Granted, there is no evidence as to what the applicant did or did not do prior to 13 January 2013, except of course he deposes to initially instructing his solicitor that he wished to appeal, but of course it must be borne in mind that in between 16 December 2013 and 13 January 2014 there was the Christmas/New Year period, and that may very well explain the delay in attending to the Notice of Appeal, particularly by his solicitor.
It is apparent on the evidence that the applicant made attempts, and made every effort to file his Notice of Appeal within time. Once it became out of time it is also relevant that the applicant was not dilatory in pursuing the matter because approximately a week later he filed the application that is before me today.
To repeat, in those circumstances, and for those reasons, I am satisfied that the explanation provided by the applicant is a sufficient one.
The merits of the appeal
As is always the case in these matters it is not possible for this court to be definitive about the prospects of success of the appeal because of limited material. I have the reasons for judgment delivered by the Federal Circuit Court judge, and I have been provided, and I am not sure on what basis or how, with the transcript of the hearing of that day, which is as brief as the reasons for judgment and does not really add anything to those reasons, and the only other document I have to assist me is the draft Notice of Appeal.
Doing the best I can with that material, and turning first to the draft Notice of Appeal, there are obvious difficulties with that draft Notice. Ms Jenkinson has pointed out for example that the order identified as the order appealed from in Part D of that document, is incorrect. As she has conceded though there is the correct reference to the orders in the grounds of appeal, and the order annexed to the draft Notice is the right order. Thus that can be overcome.
More importantly, the applicant in that draft Notice of Appeal seeks to appeal against all orders made by the judge. He has set out two grounds of appeal. The first ground in summary is, that the court was in error in hearing the matter on 16 December 2013 without notice to the applicant. I ignore for the moment the balance of that ground of appeal where the applicant suggests that there were as he described it, “unjustified orders made in favour of the wife that are scandalous and inappropriate”. That is simply not correct, and does not provide any basis for an appeal to be launched against the orders made by
his Honour.
The second ground of appeal, and again in summary, is that the court erred in making a costs order against the applicant. Prima facie that is not a proper ground of appeal. It simply says the court was wrong in making an order. It does not identify any error by the judge of fact or law in making that order. However, I have to take into account, and do take into account, that the applicant is without legal representation. I do not know how much of his draft Notice of Appeal was prepared by his solicitor so I have to allow some leeway to the applicant, and I do. Thus I take it that that ground of appeal alleges that the court erred in making a costs order in a hearing about which the applicant had been provided no notice, and when he was not present.
Ms Jenkinson has persuasively submitted that the first ground of appeal has no prospects of success. She says that is because the orders complained of are final orders in a lengthy process to execute the orders for property settlement made by the trial judge in the face of determined opposition by the applicant, and his failure and indeed refusal to cooperate to ensure that for example, necessary land transfers were completed.
Ms Jenkinson tells me, and I accept, that the application that was before
his Honour, needed to be made as a result of a requirement of the Land Titles Office as to the form of documentation necessary to complete the land transfers, which were originally ordered some time ago by his Honour, in the context of final property settlement orders. It was seen, and in my view, understandably so, that it was unnecessary for the applicant to be brought to court in relation to that application, or indeed to have any say in relation to that application, because the point had been reached where it was entirely up to the respondent to complete the transfers, and there was nothing that the applicant could do, or could say, which could prevent the orders relating to the land transfers being made, or alter those orders in any way given, as I say, the format was a requirement of the Land Titles Office. Thus, although the applicant was not served with the application and the affidavit which led to the hearing when his Honour made these orders, and his Honour, as he says in his reasons for judgment, granted leave for the application to proceed on an urgent ex parte basis, I do not consider that the applicant has any chance of success in suggesting that the court has erred in proceeding to make those orders in relation to the land transfers on that day in his absence.
Indeed, as Ms Jenkinson has emphasised, those orders being made, the land transfers have been registered and there is nothing more to be done and indeed nothing in that regard which can be undone. To pursue an appeal against those orders, namely the orders relating to the land transfers, can be considered futile.
As is clear from what I have said about the prospects of Ground 1, I have had regard to the history of the matter, and the fact that the applicant has attempted at every stage to prevent completion, or execution, of the orders for property settlement made by the trial judge, and he has failed and/or refused to cooperate in that process. That history has been highly relevant in the view that I have taken in relation to Ground 1.
However, I have a different view in relation to the second ground of appeal which is, to repeat, and putting it in my words, the court has erred in making a costs order against the applicant in circumstances where he was neither served with the application or the affidavit, or at the very least put on notice of an application for costs being made, and a costs order being made by the trial judge in his absence.
As I have said at the start of this part of my reasons, I am not in a position to be definitive as to whether an appeal will succeed or not, and indeed that is not the question that I have to ask myself. The question is, does the applicant have an arguable case, or alternatively, is there any prospect of success in relation to the appeal, or any part of it.
In my view, the applicant has an arguable case in relation to Ground 2 of his draft Notice of Appeal in challenging the making of the costs order in the circumstances of that order being made.
The consequences of granting or refusing the application
If the application is refused then there clearly will be prejudice to the applicant because he will not be able to pursue an appeal against the orders made by the judge, and importantly there is no appeal against any order I make in relation to this application to the Full Court of this court. The only avenue open to the applicant would be to seek special leave to appeal to the High Court of Australia. That is a difficult exercise at the best of times, and in terms of proportionality, it may not be a course that the applicant would want to launch into. To repeat, there clearly would be prejudice to the applicant if I dismissed his application.
On the other hand there will also clearly be prejudice to the respondent if I grant the application. She has proceeded to date on the basis that the orders made by the trial judge are in place and have been complied with, and as is apparent the land transfers have been registered and there is nothing more to be done. It is a clear prejudice if the respondent was now put in the position of having to face an appeal against those orders.
Of course, as I have indicated, I am not satisfied that the applicant has any chance of success in appealing against the orders made in respect of the land transfers, and that takes away the force of any prejudice identified.
However, as I have also said, in my view there is an arguable case in relation to challenge to the order for costs, and thus the respondent would go from having an order in place, to that order being subject to an appeal, and there being uncertainty from her point of view as to the result of that. Equally, she would have to spend time and devote resources and incur costs in responding to any appeal.
Thus, there is prejudice either way.
Conclusion
As I have said when I was outlining the relevant principles in these matters, the overarching question is where the justice of the case might lie, and the answer to that is informed by the findings I make in relation to the relevant factors that I have considered.
In summary, I have found that there is an adequate explanation for the failure to comply with the timeframe for the filing of a Notice of Appeal. I have found that in one respect the applicant has an arguable case on appeal, and specifically in relation to the order for costs made by the Federal Circuit Court judge. The only other factor that I have had regard to is, of course, the prejudice to the parties and to repeat, there is prejudice to the applicant if I refuse the application, and equally there will be prejudice to the respondent if I grant the application.
Taking those factors into account, in my view, it is in the interests of justice that the application be granted.
The next question is the terms of the order I might make.
I propose to make an order extending the time for the applicant to file a Notice of Appeal. It is not for me at this stage to direct what the applicant should or should not include in the Notice of Appeal that he proceeds on, and it may be that he does not proceed on the draft Notice of Appeal, particularly having regard to what I have said in these reasons for judgment, and I am referring here to the fact that I do not consider that he has a chance of success in relation to Ground 1, but otherwise in relation to Ground 2.
I certify that the preceding forty-five (45) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 8 May 2014.
Associate:
Date: 13 May 2014
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