PANALEON & PANALEON
[2012] FamCAFC 160
•24 September 2012
FAMILY COURT OF AUSTRALIA
| PANALEON & PANALEON | [2012] FamCAFC 160 |
| 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 on 23 November 2011 – where there is no adequate explanation for the failure of the applicant to comply with the timeframe for the filing of a Notice of Appeal – where there is no merit in the proposed appeal – where the interests of justice require that the application be refused – application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – COSTS – where the respondent seeks costs but has no figure to put to the court – where the applicant does not oppose the application for costs but seeks to be heard on the quantum – 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 94AAA (1), (5), (10), (11), (12) Family Law Rules 2004 (Cth) – Chapter 22, r 1.14, r 22.02, r 22.03 |
| GallovDawson (1990) 93 ALR 479 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Panaleon |
| RESPONDENT: | Ms Panaleon |
| FILE NUMBER: | MLC | 8294 | of | 2010 |
| APPEAL NUMBER: | SOA | 2 | of | 2012 |
| DATE DELIVERED: | 24 September 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 24 September 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1497 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. Kotsifas |
| SOLICITOR FOR THE APPLICANT: | Kotsifas & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITOR FOR THE RESPONDENT: | MacGregor Solicitors |
Orders:
The application in an appeal filed on 17 May 2012 be dismissed.
The husband pay the wife’s costs of and incidental to the application, such costs to be as agreed but 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 2 of 2012
File Number: MLC 8294 of 2010
| Mr Panaleon |
Applicant
And
| Ms Panaleon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This in an application in an appeal filed on 17 May 2012 by the husband in these proceedings. The application seeks, in effect, an order extending the time for the filing of a Notice of Appeal against orders made by Federal Magistrate Burchardt on 23 November 2011. There are other orders sought in the application but they are orders that I cannot make and so the only aspect of the application that I will be dealing with is the application seeking an order for an extension of time.
The application is supported by an affidavit of the husband’s solicitor, also filed on 17 May 2012.
The application is opposed by the wife.
Relevant statute law and rules
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates 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 Magistrates Court exercising original jurisdiction under this Act; …
Section 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.
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
…
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.
Rule 1.14 provides that a party may apply to extend a time that is fixed by a procedural order.
Applicable principles
The law in relation to applications for extension of time is well settled. In these matters, 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 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, or more importantly and more relevantly, which explain the failure to comply with the timeframe either set under the Rules or pursuant to an order of the court, as is the case here, 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.
Discussion
I now turn to the factors that are relevant in this case in determining where the justice of the case might lie. The factors that have been identified and in respect of which submissions were made by both counsel are first, whether there are adequate reasons provided by the husband to explain his failure to comply with the relevant timeframe, secondly, whether there is a substantial issue to be raised on appeal and thirdly, the consequences for the parties of the grant or refusal of the application.
Adequate explanation
In order to appreciate the issue here I need to initially set out the sequence of events as follows.
The hearing in relation to property settlement took place before the Federal Magistrate on 23 May 2011.
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.
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.
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.
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.
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 [L] 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.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.
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 [L] and [E].
2.That the Wife have full authority to act in relation to the sale/auction and transfer of the properties at [L] 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 [L] 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 [L] 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 [L] and [M] properties be sold with reserve prices of:
(a)[L] $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.
It is those orders of 23 November 2011 that the husband seeks to appeal against.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The merits of the appeal
It is not always possible for the court in hearing an application for an extension of time to be definitive in assessing the merits of the appeal, and the reason for that is usually limited documentation. What I have in this case though are the reasons for judgment delivered by his Honour on 23 November 2011, on
3 August 2011 and 4 October 2011, which inform me as to what occurred over that period of time, and all of which is relevant to the appeal. I also, of course, have the Notice of Appeal upon which the husband seeks to proceed, and I have had the benefit of oral submissions of both counsel today. Thus I consider that I am in a position today to be definitive in assessing the merits of the appeal. I add that I also have the benefit of being the judge who was to hear the first application seeking an extension of time and in that context, I had read all the relevant documents that were relied upon, and that also better informs me as to the merits of the appeal.
The grounds of appeal set out in the proposed Notice of Appeal which is annexure “JJK2” to the affidavit of Mr Kotsifas are as follows:
1.That the trial Judge erred in basing his findings of fact with the denial of natural justice.
2.That the trial Judge erred in concluding that the matrimonial assets were based on correct property valuations.
3.That the trial Judge erred in concluding that properties included in the pool of assets were undervalued and not sworn valuations.
4.That the trial Judge erred in not providing an equal distribution of the pool of assets taking into consideration there are no children under the age of 18 years of the marriage.
5.That the trial Judge erred in failing to give weight to the parties [sic] senior age.
6.That the trial Judge erred in not having appropriate regard to the evidence of the valuation of the properties.
7.That the trial Judge erred in providing an order for property settlement award in favour of the wife is plainly unjust.
I have taken the husband’s solicitor through those grounds and as a result of that exercise, Mr Kotsifas has indicated to me that his client abandons Grounds 1, 2, 3, 4 and 6. I observe that whether Mr Kotsifas had abandoned those grounds on behalf of his client or not, having considered them at length with him I find that there is no merit in any of those grounds of appeal for the reasons that were addressed with Mr Kotsifas. That leaves Grounds 5 and 7.
With Ground 5, Mr Kotsifas was not able to indicate to me how the alleged error by the Federal Magistrate would have affected his Honour’s decision and rendered it erroneous.
The age of the parties is a relevant matter to be taken into account under s 75(2) of the Act. His Honour identified the birth dates of the parties, and thus he was aware of their ages. However when his Honour addressed what he saw as the relevant s 75(2) factors, he did not identify the ages of the parties as being a relevant factor. What is apparent from his Honour’s reasons for judgment is that the only factor which led his Honour to adjust the percentage entitlements of the parties by allocating a further five per cent to the wife, was that she had additional care responsibilities for Y, the one child of the parties who was under the age of 18 years, and in respect of whom the husband had ceased contributing years before.
I can find no error by the Federal Magistrate in determining that the age of the parties was not a relevant factor to be taken into account, and to repeat,
Mr Kotsifas was not able to indicate to me any basis on which the appeal would be allowed because of this.
That brings me to Ground 7. As it reads the ground makes no sense. However, Mr Kotsifas says that the complaint is with the actual order that the Federal Magistrate made, and in particular, that the Federal Magistrate should have at least considered, and if not made additional orders providing for the sale of the properties the husband was to retain in the event that the husband was unable to make the requisite payment to the wife.
One of the difficulties with that ground of appeal is that that was not the case of the husband before his Honour. Before his Honour what the husband was seeking was that he would be able to retain all of the properties, and it is not apparent that there was any application by the husband seeking an order that he retain the properties, that he pay out the wife her entitlement, but if he was not able to pay her out, then the properties be sold. It is also not for his Honour to make orders which the parties do not seek.
It is also the case that when his Honour delivered his reasons for judgment on
3 August 2011 he adjourned the matter to enable the parties to make submissions as to the orders that should be made. In response to this the husband did not seek the order that Mr Kotsifas suggests his Honour should have made.
Another difficulty which has been pointed out by the respondent’s counsel is that that is not an order sought on the appeal. The orders that the husband seeks on the appeal are that all of the orders of the Federal Magistrate be set aside, that the matrimonial pool of assets be sold, and there be an equal distribution, presumably of the proceeds of sale, between the parties.
I do not consider I need to go any further with this issue. I find that it is not open to Mr Kotsifas to suggest that the Federal Magistrate has made an error in how he framed his order. Thus I find that there is no merit in Ground 7.
The result of that exercise is that I do not consider there to be any merit in any of the grounds of appeal.
The consequences of granting or refusing the application
If the application is granted, then the husband will be able to pursue his appeal and the wife will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the wife, given that currently, there is no appeal on foot.
If the application is refused, then the husband will not be able to pursue his appeal. Significantly, there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case. In any event, that is a serious consequence for the husband if his application is refused and I need to take it into account.
Conclusion
As the authorities recognise the court’s consideration of the relevant factors here informs the court in determining the fundamental issue namely, where the justice of the case lies.
In this case, there is an inadequate explanation for the failure to comply with the order made on 21 March 2012, and there is no arguable case on appeal. There will of course be serious consequences for the husband if the application is not granted, but, in my view, that cannot and does not outweigh the failure to provide an adequate explanation, and more importantly, and perhaps more significantly, my finding that there is no merit in the appeal. Thus, the interests of justice demand that the application be refused.
Costs
I now have an application for costs made on behalf of the wife.
In the circumstances Mr Kotsifas does not oppose an order for costs being made, but he does seek to be heard on any quantum. Given that counsel for the respondent does not have a figure to put to me for the costs that she seeks, I propose to make an order that 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.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
24 September 2012.
Associate:
Date: 4 October 2012
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