PANALEON & PANALEON

[2013] FamCAFC 78

FAMILY COURT OF AUSTRALIA

PANALEON & PANALEON [2013] FamCAFC 78

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks to extend the time for him to file a Notice of Appeal against orders made by the Federal Magistrate (as he then was) on 3 August 2011 – where the application is opposed by the wife – where the orders made on 3 August 2011 were only to adjourn the matter, to require the parties to file submissions as to the orders to be made and costs – where there is no possible basis on which the husband could succeed in pursuing an appeal against the orders of 3 August 2011 – where the relevant orders for property settlement are those made by the Federal Magistrate on 23 November 2011 – where the husband has previously pursued an application to enable him to appeal against those orders and that application was dismissed – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – COSTS – where the respondent seeks costs – where the application is opposed by the applicant – applicant to pay the respondent’s costs of and incidental to the application as agreed and in default of agreement as assessed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Mr Panaleon

RESPONDENT: Ms Panaleon

FILE NUMBER: MLC 8294 of 2010

APPEAL NUMBER: SA 3 of 2013

DATE DELIVERED: 13 May 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 13 May 2013

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 August 2011

LOWER COURT MNC: [2011] FMCAfam 657

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: MacGregor Solicitors

Orders:

1. The application in an appeal filed by the husband on 14 January 2013 be dismissed.

2. The husband pay the wife’s costs of and incidental to the application, such costs to be as agreed and in default of agreement as assessed.

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 ADELAIDE

Appeal Number: SOA 3 of 2013
File Number: MLC 8294 of 2010

Mr Panaleon

Applicant

And

Ms Panaleon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me today is an application in an appeal filed by Mr Panaleon (“the husband”) on 14 January 2013.  In that application the husband sought a number of orders, primarily though he sought, as is described in the application, “leave to appeal out of time in regards to orders made on 3 August 2011 by Magistrate Burchardt FM”.  I take that to be, and there is no issue about this because it is common ground, an application by the husband for an extension of time to file a Notice of Appeal against the orders made by Federal Magistrate Burchardt, as he then was, on 3 August 2011.

2. The other orders that the husband sought in the application are not orders that this court can make at this time, or indeed, at all.  Thus, regardless of what I do with the application for an extension of time, I propose to dismiss paragraphs

   
   

   2 to 5 inclusive of that application.

3. In relation to the application for an extension of time, that is supported by an affidavit filed by the husband on the same date namely, 14 January 2013, and to which is annexed a draft Notice of Appeal.

4. The application is opposed by the wife.

5. The application initially came before me on 4 April 2013 and at that time the husband appeared in person, and the wife was represented by Mr Lovering of counsel.  As everyone will recall the husband initially did not appear but part-way through the hearing he did, and so the matter was able to proceed.  I indicated to the husband that his application simply could not succeed and I had no choice but to dismiss it.  However, the husband sought an adjournment to obtain legal advice about the matters that I was raising.  I was concerned that the husband did not quite understand the point that I was trying to make because it was largely a legal technical issue as to why his application could not proceed.  Although the adjournment was opposed I did adjourn the matter to enable the husband to obtain legal advice, and I made an order adjourning the matter to today.

6. Understandably in the circumstances, the wife’s counsel made an application for costs thrown away, and after hearing submissions about that I made an order for costs namely, that the husband pay $2,200 by way of costs thrown away by Friday 10 May 2013.  The husband has not complied with that order and I have raised with the husband today my concerns about that.

7. Ms Gurpinar who appears today for the wife has not sought an order, for example, that the application in an appeal not be heard until and unless the husband has complied with previous orders of this court, and understandably she has taken that stance on instructions with a view to ensuring that this matter is finalised as expeditiously as possible.  It is now up to the wife to take any enforcement proceedings that she may be advised to in relation to the order for costs, and I do not propose to raise that matter again.

8. I also mention that on 24 April 2013 the husband forwarded to the court an application in an appeal and a supporting affidavit.  That application was not accepted for filing because the orders sought in it were not orders that could be made by this court.  As is the usual practice those documents have been forwarded to me in the event that the husband sought to raise that application today.  Having read the orders sought I agree entirely with the Appeals Registrar that they are not orders that can be made at this time in this matter, and thus it was appropriate that the Appeals Registrar refused to accept that application for filing.  I am not going to dwell further on that application but it is quite apparent that the orders sought are orders that would only come into play in the event that the husband was able to proceed with the appeal.  The husband has to get over the hurdle though of obtaining an extension of time before the appeal can be proceeded with.

9. This is a matter which has had a relatively lengthy history and I have heard a number of applications myself.  One such application that I did hear was an application in an appeal filed by the husband on 17 May 2012 in appeal number SA 2 of 2012.  In that application the husband effectively sought an extension of time to appeal against other orders made by Federal Magistrate Burchardt, namely orders made by his Honour on 23 November 2011.  That application was heard by me on 24 September 2012 and I delivered reasons for judgment on that day when I dismissed the application.  Relevantly for today’s purposes, I set out in those reasons for judgment a brief history of the proceedings to that time as follows:

   16.In order to appreciate the issue here I need to initially set out the sequence of events as follows. 

   17.The hearing in relation to property settlement took place before the Federal Magistrate on 23 May 2011.

   18.Prior to that hearing there had been an application to adjourn the hearing made by or on behalf of the husband, who, at that time, was overseas and who alleged that he was suffering from ill-health.  On 18 May 2011 the Federal Magistrate though refused that application and in effect directed that the hearing proceed on 23 May 2011 when it was initially listed.

   19.As is apparent from his Honour’s reasons for judgment delivered on 23 May 2011, both parties were represented at the hearing by counsel and their counsel made oral submissions.  The application to adjourn that I have just adverted to was not further pressed.  There was also an application on file for the husband to attend by telephone, but that application was not pressed.  At paragraph 22 of his reasons for judgment his Honour said this:

   Both parties, without objection, simply made submissions adopting in part the affidavit material filed, but also a series of dates set out in their case outlines and also submitted on their instructions.

   20.I note that not only was there affidavit material before his Honour addressing the relevant issues, but there were case outlines filed by both parties, and ultimately at the hearing there were submissions made on behalf of both parties.

   21.His Honour delivered his reasons for judgment on 3 August 2011.  At the conclusion of his Honour’s reasons for judgment, he canvassed the orders that both parties were seeking.  His Honour indicated though that he would give the parties an opportunity to consider his reasons for judgment and then make further submissions as to what orders the court should make, to give effect to the conclusions reached in those reasons for judgment.

   22.The matter next came before his Honour on 30 September 2011 and his Honour delivered further reasons for judgment on 4 October 2011.  The issue confronting his Honour at that time was that it had been made known to his Honour by solicitors representing the wife that valuable water rights worth in excess of $100,000 could be attached to at least one of the properties of the parties, and there was an extension of time sought to file materials in light of that new information.  There were further materials filed and his Honour made orders on 4 October 2011 as follows:

   1)The Applicant wife be authorised to instruct Mr Kennon
   [a solicitor] to:

   a)Complete the transfer of water rights to the Panaleons; and

   b)give or obtain a valuation of the property (or properties) once the water rights are transferred.

   2)The Applicant wife be authorised to indicate to Mr Kennon that his fees will be paid from the proceeds of sale of the LB property if they are not otherwise paid.

   3)The matter be otherwise adjourned to the court for mention on 28 October 2011 at 9.30am.

   23.On 28 October 2011 his Honour further adjourned the matter to
   23 November 2011 and ordered that each party file documents as to the form of orders the court should make.

   24.On 23 November 2011 his Honour delivered further reasons for judgment and made final orders as follows:

   1.The Applicant Wife be authorised to sell the properties at LB and E.

   2.That the Wife have full authority to act in relation to the sale/auction and transfer of the properties at LB and E as directed by the nominated Real Estate Agent to give effect to settlement of that property.

   3.That the Wife be at liberty to do all acts and things necessary to give effect to these orders without the requirement to obtain the Husband’s consent or signature on any of the documents, and these orders act as authority for the Wife to do so.

   4.That the Wife’s solicitor be appointed to conduct any conveyancing necessary to give effect to these Orders.

   5.That the proceeds of the sale of the LB and E properties be applied as follows:

   a)Firstly to pay real estate agents fees, commission and any other fees incurred in marketing the properties;

   b)Secondly to pay the conveyancing costs associated with the sale of the LB and E properties.

   c)Thirdly to pay M & S for all costs associated with the “water matter”.

   d)Fourthly to pay all outstanding rates and charges associates [sic] with the land.

   e)To disburse the proceeds in accordance with Judgment handed down on 3rd August, 2011 by this Honourable Court subject to valuations of the NF and C properties as adopted by His Honour at paragraph 32.

   6.        That the NF property be transferred to the Wife.

   7.        That the Husband retain the C property.

   8.That the Husband pay 1/3 of the costs of the Wife of and incidental to these proceedings.

   9.Such further or other orders as this Honourable Court deems appropriate.

   10.That the wife be authorised to sell the water rights either as a single entity or in separate lots at a reserved price agreed to by Mr Kennan [sic] of M and S.

   11.That the LB and M properties be sold with reserve prices of:

   (a)      LB      $50,000;

   (b)      M       $55,000

   Although the wife be permitted to sell either or both the properties privately or by Public Auction at her discretion.

   12.That the wife’s costs be as agreed or be taxed failing agreement.

   13.Reserve liberty to apply for ancilliary orders should same be necessary.

   25.It is those orders of 23 November 2011 that the husband seeks to appeal against.

   26.On 23 December 2011, the husband filed an application in an appeal seeking, in effect, an extension of time to appeal against the orders made by Burchardt FM on 23 November 2011.  That was supported by an affidavit of his then solicitor filed on the same date.   There was also a draft Notice of Appeal filed, being the Notice of Appeal that he wished to rely on in the event that he was granted an extension of time. 

   27.That application in an appeal was listed before me for hearing on
   21 March 2012.  However, at that time, the wife, through her counsel, indicated that she now consented to the husband being given an extension of time to file a Notice of Appeal against the orders of 23 November 2011.  I was informed that the Notice of Appeal which would be relied upon could be filed within 14 days and I was asked to extend the time for filing a Notice of Appeal for that period of 14 days. 

   28.The formal order made was that the time for the husband to file and serve a Notice of Appeal against the orders made by Burchardt FM on 23 November 2011 be extended to the close of business on Wednesday 4 April 2012, which covered the period of 14 days that was sought.

   29.The husband failed to comply with that consent order and on 5 April 2012 his then solicitors forwarded to the Appeal Registry a Notice of Appeal.  However, that Notice of Appeal was not accepted by the Registry because, of course, it was out of time, and it was returned to the husband’s solicitors. 

   30.On 17 May 2012, as I have already referred to, the husband filed the application in an appeal which is before me now, seeking an extension of time, together with a supporting affidavit.

   31.The court is told in the affidavit filed in support of the application, and confirmed in oral submissions today, that on 2 April 2012
   Mr Kotsifas’ firm received instructions from the husband to act in this matter and enquiries were then made of the husband’s previous solicitors, including requesting their file.  That request was refused, it seems because the husband was still indebted to his previous solicitors.  The court is further told in this affidavit that on the date of receiving instructions from the husband, the husband informed Mr Kotsifas that he had provided instructions to his previous solicitors to appeal the decision made by Burchardt FM on
   23 November 2011 and at that time, namely 2 April 2012,
   Mr Panaleon, the husband, seemed unaware of any dates in relation to his application for an appeal.  As a result, further enquiries had to be made of his previous solicitors.

   32.Mr Kotsifas then deposes that on 4 April 2012 at 3.20 pm he had a telephone conversation with the husband’s previous solicitor, which was confirmed by a letter sent by facsimile, that a Notice of Appeal had to be filed that day, and that letter is annexed to the affidavit of Mr Kotsifas.

   33.Apparently a Notice of Appeal was prepared urgently and sent to the court on 5 April 2012, as I have already indicated, but it was out of time.

   34.The explanation for the failure to comply with the order appears to be that the husband was unaware of the dates, but more importantly his previous solicitors had failed to file a Notice of Appeal within time. 

   35.However, I consider this to be an inadequate explanation.  There is no evidence put before me as to what happened or what was supposed to happen between 21 March 2012, namely the date of the making of the order, and 2 April 2012, when the husband instructed his new solicitors.  There was certainly correspondence between the husband’s previous solicitors and the husband, because the letter which is annexure “JJK1” to the affidavit of Mr Kotsifas refers to and encloses a photocopy of a letter dated 29 March 2012 to the husband.  However, that letter has not been put before me, although I do know that it enclosed a copy of the orders of 21 March 2012.  Apart from that there is no evidence that I have of any interaction between the husband and his previous solicitors, and there is also no evidence as to why the husband changed his solicitors.

   36.In my view that is a significant gap in the evidence in support of this application, and when I drew that to the attention of Mr Kotsifas he made an oral application to adjourn the proceedings to put further evidence before me.  That application was opposed and after hearing submissions I refused that application and, indeed, dismissed it.  Thus, the position is that apart from annexure “JJK1”, there is absolutely no evidence before me as to what occurred between 21 March 2012 and 2 April 2012, and as I say, I see that as a significant gap in the evidence in support of this application.

   37.Significantly there is also an obvious inconsistency between what the husband says and the facts.  The husband says, to repeat, that he was unaware of the dates, but that does not sit well with the fact that the husband’s previous solicitors sent him a copy of the order on
   29 March 2012.

   38.I also note that it was not until 17 May 2012 that the application seeking an extension of time was filed.  There is no explanation in the affidavit that is before me as to why it took so long to file that application.

   39.There was of course a Notice of Appeal already drafted, that being the draft Notice of Appeal filed with the application in an appeal on 23 December 2011.  There is no explanation as to why that draft Notice was not able to be proceeded with to avoid failing to comply with the timeframe that I had set in my order of 21 March 2012. 

   40.It is for these reasons that I find there is no adequate explanation of the husband’s failure to comply with the order of 21 March 2012.

10. It is important that I repeat that history in these reasons for judgment because as I have indicated, the husband in relation to the final orders for property settlement made on 23 November 2011, ultimately filed an application in an appeal as I have identified, on 17 May 2012, seeking an extension of time to file an appeal against those orders of 23 November 2011.  That application was dismissed by me on 24 September 2012.  Yet, in the application that is before me, what the husband seeks is an extension of time to file an appeal against the orders made on 3 August 2011.  Referring back to the history that I have just identified, 3 August 2011 was of course when his Honour delivered expansive reasons for judgment in relation to property settlement, but the only orders that he made were to adjourn the matter and require the parties to file submissions as to the orders to be made and as to costs.

11. Thus, it can be seen that there is no possible basis on which the husband could succeed in pursuing an appeal against the orders made on 3 August 2011. 

12. The relevant orders by way of property settlement, to repeat, were those orders made on 23 November 2011, and the husband has pursued an application to enable him to appeal against those orders, but that application was dismissed.  The matter is over.  The husband with all due respect to him, prima facie, is seeking by the back door to again appeal against the final orders for property settlement made on 23 November 2011.  That is not something that he can do.  The husband has had his opportunity and he has failed.

1. The husband as I have indicated is acting for himself, English is not his first language, although he has been able to make himself understood at the hearings that I have conducted, and having read his documents and having listened to him, it seems to me that the husband is confusing the orders, he perhaps thinking that there were orders made on 3 August 2011 which were orders for property settlement and which were different from the orders made on

   
   

   23 November 2011.  That is the most generous explanation that I can give of the husband’s position.  

2. Whether it is a misunderstanding, or whether the husband well and truly understands the position and is simply trying it on, I can make no further comment.  To give the husband the benefit of the doubt though, even if he is confusing the orders, that still does not allow him to succeed on his application before me today.

3. To repeat, that application seeks to appeal against orders made on 3 August 2011, when all those orders did was to adjourn the matter and require the parties to file submissions.

4. Again, to repeat, for the benefit of the husband, the orders for property settlement are those made on 23 November 2011 and he has well and truly exhausted his avenues to appeal against those orders.

5. For those reasons I propose to dismiss the application in an appeal filed by the husband on 14 January 2013.

6. Having dismissed the application in an appeal filed by the husband the wife’s solicitor seeks an order for costs.  She is not in a position to put a figure to me and thus she asks that those costs be assessed in default of agreement.

7. As with any application for costs this application is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section insofar as it is relevant provides as follows:

   (1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 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), (4A) 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.

8. As is apparent the section provides that each party is liable for their own costs, however if there are circumstances which justify it, this court is able to make an order for costs. In considering whether to make an order for costs, and if so, what costs they should be, the court is directed to take into account those factors that are relevant pursuant to s 117(2A) of the Act.

9. There are two relevant matters arising from that subsection and they are first, the financial circumstances of the parties and secondly, the fact that the husband has been wholly unsuccessful in his application.  The latter provides a circumstance which justifies an order for costs.

10. The fact of the matter is that the husband has pursued this application, which he filed on 14 January 2013.  It initially came before me on 4 April 2013, as I have indicated, when I provided him with my preliminary view.  It was adjourned to enable him to seek legal advice.  The husband tells me that he sought legal advice, however given what he has relayed about that legal advice, either the husband did not explain adequately to the solicitor that he saw what the issue was, or that solicitor has misunderstood, because nothing that the husband put to me about the matter had any relevance to why his application has to be dismissed.

11. The husband is acting for himself, the wife is not.  She has been obliged, because of the husband’s application, to instruct solicitors to respond to the application and appear at the hearing today.  I have already made an order for costs in relation to the adjournment on 4 April 2013, so I am only dealing with the costs of today, and of course any costs that the wife might have in relation to any preparation for today.

12. In relation to financial circumstances, I appreciate and understand that the husband says that his financial circumstances are poor.  I note of course that there has been a finalised property settlement proceeding between the parties, the effect of which was that the property of the parties was divided on a 55 per cent 45 per cent basis.  The husband has not put any specific detail before me as to his financial circumstances, nor has he explained what he has done with, or what has happened to, his entitlement from the property settlement.  Be that as it may, there are many Full Court authorities that confirm the position that impecuniosity is not a bar to making an order for costs, particularly where a party is acting in person and it is their unsuccessful application which has led to the other party incurring legal costs, as is the case here.

13. I therefore propose to make an order for costs as sought.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on

13 May 2013.

Associate:     

Date:              15 May 2013