Pasello and Pasello

[2020] FamCAFC 89

FAMILY COURT OF AUSTRALIA

PASELLO & PASELLO [2020] FamCAFC 89

FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where the primary judge made consent orders on 9 September 2019, which the husband says were not actually made until 19 November 2019 – Where the husband is mistaken in his belief – Where there is no adequate explanation for the delay – Where r 16.02 and r 16.07 of the Federal Circuit Court Rules 2001 (Cth) discussed – Application dismissed – Order that the husband pay the wife’s costs of the application.

Family Law Rules 2004 (Cth) rr 1.14, 10.15, 17.01, 17.01A, 22.03
Federal Circuit Court Rules 2001 (Cth) rr 13.04, 16.02, 16.07

E I Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT: Mr Pasello

RESPONDENT: Ms Pasello

FILE NUMBER: BRC 6124 of 2019

APPEAL NUMBER: NOA 115 of 2019

DATE DELIVERED: 21 April 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 25 March 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT ORDERS DATE: 9 September 2019

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Turnbull Mylne

Orders

1. The husband’s Application in an Appeal filed 13 December 2019 is dismissed.

2. The husband pay the wife’s costs of and incidental to his Application in an Appeal filed 13 December 2019 within twenty-eight (28) days of the costs being assessed.   

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pasello & Pasello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 115 of 2019
File Number: BRC 6124 of 2019

Mr Pasello

Applicant

And

Ms Pasello

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 9 September 2019, the primary judge, seemingly in the course of a duty day in which this matter was listed, pronounced some interim consent orders in relation to both the parenting and the property aspects of the parties’ litigation.

2. No appeal from those orders was brought within the time limited for its institution. Now by Application in an Appeal filed 13 December 2019, Mr Pasello (“the husband”) seeks to extend the time for him to lodge an appeal from the consent orders. For her part, Ms Pasello (“the wife”) opposes the application.

3. On 25 March 2020 I heard the Application in an Appeal and reserved my decision. For the reasons which follow, the husband’s application must be dismissed.

BACKGROUND

1. The primary proceedings were instituted by the wife on 29 May 2019. The proceedings related to both the parenting arrangements for their children, and the appropriate division of the parties’ property, which, perhaps a little unusually, in part comprises two adjacent houses, in which, post separation, the parties have resided.

2. The first return date of the wife’s application was on 9 September 2019. At that hearing, both the husband and the wife were represented by solicitors. A transcript of the proceedings on that day formed part of the material before me. From that, it is clear that shortly after the matter was first called on, the wife’s solicitor told the primary judge that the practitioners had “put a lot of work into this today” and although “we keep getting stuck in the mud. But notwithstanding that, we have come to some agreements, but not on every issue” (Transcript 9 September 2019, p.2 lines 21–23). In response to his request to have the matter quickly brought back again, the primary judge gave the parties a further date of 19 November 2019.

3. Then, by reference to what appears to have been some hand written notes of the discussions between the parties, the husband’s solicitor commenced to articulate the orders which the parties were seeking by consent. However, he also said “we will draft and agree these orders, your Honour, obviously before they come [to] you” (Transcript 9 September 2019, p.3 lines 19–20). There were then 15 specific orders pronounced by his Honour before the matter was adjourned.

4. Subsequently, the husband ceased to be represented.

5. On 25 October 2019, the wife’s solicitor forwarded draft orders to the primary judge’s chambers under cover of an email which relevantly provided:

   We now attach hereto draft Orders which we believe reflect that which were made by Consent on 9 September 2019… Despite repeated requests, neither [the husband] nor his former solicitor will attend to confirming if the Orders are correct.

   (As per the original)

6. Later that day the husband responded by email identifying that he did not agree with the terms of the orders which the wife’s solicitors had provided. He followed that email up with a further email on Monday 28 October.

7. On 29 October 2019 the primary judge’s associate wrote an email advising the parties relevantly as follows:

   We confirm that the transcript has been reviewed and Mr Mylne, Solicitor for the [wife] stated on record: “[w]e will draft and agree these orders before they come in to you” as the parties cannot agree on what orders are by consent and no signed agreement has been forwarded to chambers, no order will be taken out from 9 September 2019 and the matter will remain listed for mention to 9:30am on 19 November 2019.

   (As per the original) (Emphasis altered)

8. Subsequently the wife’s solicitor obtained a transcript of the proceedings on 9 September 2019, and on 15 November 2019 submitted a fresh set of draft orders that strictly conformed with the orders that had been pronounced in court, albeit with one minor alteration of no significance. On the same day the husband again responded to the primary judge’s associate by email, referring to his earlier communications, and claiming that the orders “do not regard the best interests of the children and do not focus on the rights of the children.”

9. The matter then came before his Honour on 19 November 2019, and again a transcript of the proceedings on that day were in evidence before me. At page 3 of the transcript the primary judge said as follows:

   HIS HONOUR: Yes. And on the last occasion, we went through – I went through with both Mr Mylne and [Mr B], your solicitor, what orders had been agreed upon. And I specifically asked after each time that I was about to make an order, can I make that order? And each time, I was told, yes, by your solicitor and Mr Mylne. As a result, on the record, I made certain orders. I then asked the parties to go away and draft those orders and send them to my chambers. I didn’t ask the parties to go away and renegotiate the orders. The orders were made. Once the orders are made on the record, they can only be amended by various applications under the Act, but in real terms, they’re orders made.

   The orders that were sent in on 15 November correspond directly to the orders that I made. On that occasion, rather helpfully, the recorders – the people that transcribe the recordings, put a number next to each order that I made and I’ve been able to read through the transcript and, now that I’ve read through the order that was sent through on 15 November, that order corresponds with the orders I made. So if you don’t agree to those orders, you will need to get some legal advice about how you might set those order aside. But today is not the opportunity to do that. There’s no application before me.

   I simply re-mentioned the matter because when the orders first came in, there was a lot of difficulty and, as a result, Mr Mylne has now [gone] through the transcript and provided exactly the consent orders that I made on that day. They were made by consent because your lawyer, instructed by you, and you were sitting in the court, said, yes, you can make those orders, your Honour. And Mr Mylne, instructed by his client, who was sitting in the court, said, yes, you can make those orders, your Honour.

   There was a discussion about when certain payments might be made on the election of the wife taking over [1 C Street]. So all of that happened. I understand you might be unhappy with the outcome because you, as you say, you were suffering some stress. But, nevertheless, you will need to bring an application before the court if you wanted to seek to set these aside. There was some discussion on the last occasion, for example, about the selling of [2 C Street]. And your lawyer said, no, no, no, it’s too soon to be talking about that. No order was made. Okay. You understand all of that?

   (Transcript 19 November 2019, p.3 line 23 to p.4 line 11) (Emphasis added)

10. Later, the primary judge further said as follows:

    HIS HONOUR: No, no, but the orders were made at the time. I’ve just explained all that to you. When you were here on the last occasion, on 9 September, I made orders as a result of what I was being told by both your lawyer and Mr Mylne. The orders were made. I simply then said to the solicitors, go away, draft those orders, send them back to me. Not negotiate orders. Just write down what it is that I just said. And I asked them to do that because then it’s easier for my associate to upload the orders. So the orders were made.

    [THE HUSBAND]: When ---

    HIS HONOUR: You did consent. You had a lawyer, instructed him. He gave the consent on the record. The orders were made.

    (Transcript 19 November 2019, p.5 lines 1–12)  

11. A little later again his Honour continued:

    HIS HONOUR: So there’s no confusion, the orders that are uploaded today will be dated 9 September.

    (Transcript 19 November 2019, p.6 lines 25–26) 

12. In due course signed orders in conformity with those orally pronounced on 9 September 2019 were issued, bearing the date of 9 September 2019.

13. Although I do not have any evidence as to any unsuccessful attempt by the husband to lodge an appeal from those orders, I infer that occurred, and he was then advised that time had expired in which to bring an appeal, which led to him file his Application in an Appeal on 13 December 2019.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. Rule 1.14(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that “A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.”

2. Whilst there are no criteria specified either in the primary Family Law Act 1975 (Cth) or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480–481, McHugh J said:

   [A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. 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 and 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 194-195; 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.”

3. The following factors are established by the authorities as being potentially relevant:

   ·    The nature and history of the proceedings;

   ·    The length of the delay, and any explanation for the same;

   ·    The merits of the appeal; and

   ·    Any prejudice or other consequence for the respondent if leave is granted. 

NATURE AND HISTORY OF PROCEEDINGS

1. The proceedings relate to the parties’ children and property. They appear to be at an early stage.

LENGTH OF AND EXPLANATION FOR HUSBAND’S DELAY

1. The period of delay is a little over two months. The husband explains that delay on the basis that he did not, and still does not, accept that the impugned orders were in fact made on 9 September 2019, but were only made on 19 November 2019, and hence, in effect, either the date of 9 September 2019 on the written orders is incorrect, or alternatively, the fact that the orders were not physically issued until 19 November 2019, albeit bearing date 9 September 2019, founds a justifiable excuse for his delay in bringing the appeal.

2. Rule 22.03 of the Rules provides:

   A Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.

3. Rule 17.01 of the Rules provides:

   An order is made:

   (a)in a hearing or trial--when it is pronounced in court by the judicial officer; or

   (b)in any other case--when it is signed.

4. Further, r 17.01(2) provides that “[a]n order takes effect on the date when it is made, unless otherwise stated.”

5. Rule 17.01A of the Rules draws a distinction between an order being made on the one hand, and an order being entered on the other, as indeed also does r 16.07 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). Here the husband’s focus is upon the entry of the order, rather than the date that it was made. However the entry of the order is irrelevant to determining the time in which an appeal can be brought as of right.

6. Nonetheless the husband presses two facts as informing his mistaken belief. The first is the statement made by the husband’s solicitor that “we will draft and agree these orders” which thereafter the husband has refused to do, and secondly, the terms of the 29 October 2019 email sent by the primary judge’s chambers that “no order will be taken out from 9 September 2019”. However again the husband misunderstands that entry of the written orders is not the relevant event, and that the phrase “taken out” is synonymous with entered, and thus believes that therefore no orders were made on 9 September 2019. That belief is wrong.

7. Whilst one must inevitably have some sympathy for a self-represented litigant becoming confused between an order being made on the one hand, and being taken out or entered on another, in the circumstances of this case, I am not satisfied that comprises an adequate explanation for the delay.

MERITS OF APPEAL

1. In his draft Notice of Appeal signed 13 December 2019, the husband advances five grounds, albeit they are expressed in a very prolix and imprecise way. Doing the best I can in construing them, the first ground appears to be that there was some form of impropriety in the communication between the wife’s solicitor and the primary judge’s chambers after 9 September 2019. It is apparently then said that this could create a reasonable apprehension of bias on the part of the primary judge. However not only is that conclusion without any factual foundation, but further, it is impossible to understand how post 9 September 2019 communications between a solicitor and the primary judge’s chambers could in some way demonstrate error on the part of orders pronounced on 9 September 2019. Ground 1 is without merit.

2. The second ground appears to be again an allegation of ostensible bias on the part of the primary judge, in that “the judge did not give me the opportunity to defend the assertion [the wife’s solicitor] made about his last submission of the draft consent orders.” However, plainly such an opportunity was afforded to the husband on 19 November 2019, as the transcript bears out. Further, it is plain that the written orders bearing the date of 9 September 2019 conform with the orders made on that day, and again it is difficult to see how any subsequent activity on the part of the judge could infect the orders pronounced on 9 September 2019 with error. Certainly there is no basis for asserting or construing the facts as demonstrating ostensible bias here.

3. The third ground of appeal asserts a non-compliance with r 10.15 of the Rules. Particularly it is said that “there were no draft of consent orders made or tendered to a judicial [officer] during the court event” of 9 September 2019, and therefore it is said r 10.15(2), which deals with draft consent orders, was not complied with. However leaving aside the fundamental difficulty that the Rules did not apply to the primary judge (although r 13.04 of the FCC Rules is in materially similar terms) again the husband is fundamentally mistaken, in that r 10.15 (and indeed r 13.04) is directed towards a filed written application for consent orders, rather than consent orders that are sought orally. There is therefore no merit to the third proposed ground of appeal.

4. The fourth ground of appeal asserts that the primary judge was mistaken that consent orders were actually made on 9 September 2019. Again the husband focusses upon the statement by the wife’s solicitor on the day, intimating that orders would be brought in, in due course. However it is plain from the FCC Rules, r 16.02, that “[u]nless the court otherwise orders, a judgment or order takes effect on the day when it is given or made.” Again, this draws a distinction between an order being made, and an order being entered (r 16.07). Given that on 9 September 2019, his Honour painstakingly pronounced orders in terms agreed to by the parties, there can be no doubt that the orders were then made. This proposed ground is also without merit.

5. The fifth and final ground refers to the fact that one of the consent orders, which deals with disclosure of documents, in its terms incorporated an annexure which set out the scope of the agreed disclosure. As to that, there was no articulation in court on 9 September 2019 of the contents of either an actual or proposed annexure, and the husband contends in this ground of appeal that “I did not see the Annexure A [until] the orders by consent were sealed and [filed] at the registry after the mention event on 19 November 2019.”

1. A number of matters must be said in relation to this. The first is that there must have been some discussion between the two solicitors on 9 September 2019 as to the actual or likely contents of the annexure, because the husband’s solicitor made no objection to an order being made in terms which referred to it. The second is that the annexure in fact restricts the scope of the disclosure which would otherwise be incumbent upon the parties to undertake, rather than expanding it. The third matter is that it is unclear whether, in these circumstances, an appeal lies from a consent order in any event, given the fact of consent. Whilst in certain circumstances, for example, where consent is given to a self-executing order in the event of default, courts have been prepared to infer that the consent was not of a kind which disentitled an appeal, this is quite a different circumstance. The final observation is that, being an interim property order dealing with practice and procedure, leave to appeal would be needed, and it is by no means clear that there was an error of principle in relation to the making of the consent order, or that restricting the scope of disclosure in some way prejudiced the husband.

2. Given that the interim order in question dealt with a procedural matter, it is likely susceptible of being set aside by the Federal Circuit Court of Australia as part of its power to control its own procedure (E I Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423). This may be what the primary judge was referring in the part of the transcript I have emphasised in [12] of these reasons. However the existence of such a power does not disclose error capable of being remedied on appeal.

3. Weighing all of these matters suggests that the prospects of ultimate success on this ground of appeal is slender.

PREJUDICE OR CONSEQUENCE FOR WIFE OF EXTENSION GRANTED

1. It must be accepted that the effect of extending time in which to bring this appeal is likely to significantly delay the subsequent advance of the primary proceedings. These were, in effect, interim orders intended to ready the matter for hearing. I do not view that prejudice as adequately able to be compensated by an order for costs.

EVALUATION

1. The husband has significantly delayed in seeking to bring an unmeritorious appeal. It would be an improper exercise of my discretion to allow an extension of time in order that the appeal could be brought. The husband’s application to extend time to file a Notice of Appeal therefore must be refused.

COSTS

1. In the event that the application was unsuccessful, the wife orally sought her costs “of and incidental to this matter on the standard basis.” The husband opposed any such order.

2. I have little evidence as to the parties’ financial circumstances, although I do note that Order 6 of the consent orders provided for the payment to the husband of $600 per week by way of salary from an identified trust. Further I note that the pool of property includes two houses, in which the parties are each residing.

3. Also relevant to the exercise of the discretion as to costs is the conduct of the parties, and in this regard, the husband is seeking to resile from the consent orders which his solicitor agreed to on 9 September 2019.

4. The husband has been wholly unsuccessful in this application.

5. An additional matter I identify as relevant is that, in any event, the husband was seeking an indulgence from the court, and there is a sound argument that even if his application had been allowed, nonetheless the party at fault should generally be obliged to compensate the other for the costs arising from their failure.

6. Weighing all those matters in the balance tells in favour of an order for costs in this case. There will therefore be an order that the husband pay the wife’s costs of and incidental to the Application in an Appeal within 28 days of their assessment.              

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 April 2020.

Associate: 

Date: 21 April 2020