PENCIOUS & SEARLE
[2015] FamCAFC 2
•13 January 2015
FAMILY COURT OF AUSTRALIA
| PENCIOUS & SEARLE | [2015] FamCAFC 2 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate the appeal previously filed against orders made by Cronin J on 28 February 2012 – Where that appeal was deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where the applicant provides no explanation of the failure to comply with the order for the filing of the appeal books and no plausible explanation for the delay in filing an application until 21 March 2014 – Where the Notice of Appeal is deficient namely, the applicant failed to apply for leave to appeal and there is no proper ground of appeal – Where the application lacks bona fides – Where there is an obvious prejudice to the respondent in granting the application – Where the interests of justice demand that the application be refused – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – COSTS – Where in the event that either party seeks costs r 22.53 of the Family Law Rules 2004 (Cth) applies. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth) – r 22.21, r 22.44 and r 22.53
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 |
| APPLICANT: | Mr Pencious |
| RESPONDENT: | Ms Searle (formerly Pencious) |
|
| DATE DELIVERED: | 13 January 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 February 2012 |
| LOWER COURT MNC: | [2012] FamCA 74 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rattray |
| SOLICITOR FOR THE APPLICANT: | Altona Legal |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE RESPONDENT: | Adrian Abrahams Family Law |
Order
The application in an appeal filed on 21 March 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle 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 24 of 2012
File Number: MLC 11069 of 2008
| Mr Pencious |
Applicant
And
| Ms Searle (formerly Pencious) |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by
Mr Pencious (“the husband”) on 21 March 2014. In that application three orders were sought, but I note that the application was not received in relation to the second order sought, namely a stay of a “costs assessment”; that order had to be sought from the trial judge who made the order, namely
Cronin J. Thus the orders sought that I have to determine are (as per the original):
1.THAT the Applicant have leave to re-instate the Notice of Appeal filed 27 March 2012.
4.(sic) SUCH further or consequential Orders as the Court deems fit.
The application was supported by an affidavit of the husband also filed on
21 March 2014. There are two topics addressed in that affidavit, namely “Anton Pillar Order” and “Leave to Reinstate Appeal”. I was told by counsel for the husband that no “Anton Pillar Order” was in fact being sought, and thus, except to the extent that this part of the affidavit bears upon the application for reinstatement, I am to ignore it. It is necessary though to set out the paragraphs of the affidavit that appear under the heading of “Leave to Reinstate Appeal”, namely:
17.On 27 March 2012 I filed Notice of Appeal in relation to the Order made 28 February, 2012.
18.I subsequently abandoned this Appeal after obtaining the transcript but prior to preparation of the Appeal Books.
19.I (sic) the circumstances that have now arisen and as a result of the information obtained during the costs assessment process as referred to in paragraphs 5, 6 & 7 hereof, I seek the leave of this Honourable Court to reinstste (sic) by (sic) Appeal tahen (sic) to have been abandoned.
20.I humbly request that this Honourable Court grant the Orders sought in my Initiating Application and Application in an Appeal field (sic) herein.
The application is opposed by Ms Searle (formerly Pencious) (“the wife”).
Background
As can be seen the application to reinstate relates to a Notice of Appeal filed by the husband on 27 March 2012 against orders made by Cronin J on 28 February 2012. By those orders his Honour dismissed the application of the husband filed on 3 December 2009 seeking an order that the wife’s solicitor and her legal firm be restrained from further acting for the wife in the parenting and property settlement proceedings, and his Honour made an order as to the filing of written submissions on costs.
On 23 May 2012 the Appeal Registrar conducted a directions hearing and, inter alia, made an order that the husband, as the appellant, file appeal books by
4 July 2012. This order was not complied with, and by letter dated 9 July 2012 the Appeal Registrar notified the parties that the appeal was taken to be abandoned pursuant to Rule 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”).
Legal principles
Rule 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor (r 22.57) this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court. That is consistent with the Full Court decision of Bemert & Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
… [i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
That said though, the Full Court also noted (at [154]) that it was “important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175]”.
As to the latter case, and in particular the issue of case management, French CJ said this (at [30]):
It might be thought a truism that “case management principles” should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
I was also referred by senior counsel for the wife to the following observations by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services:
112.A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues that they seek to agitate.
113.In the past it has been left largely to the parties to prepare for trial and to seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
114.Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule’s objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU’s application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a “just resolution” of ANU’s claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU’s claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
(Footnotes omitted, emphasis in original)
Importantly, and despite what the Full Court said at [154], it was also identified in Bemert & Swallow that the principles applicable to the determination of an application for an extension of time, as set out for example in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said at 480-481:
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.
See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
In the context of doing justice between the parties, it is also important to note that in Bemert & Swallow there was an acceptance of the principle that unlike where a Notice of Appeal has not been filed at all, where an appeal has been commenced within time, ordinarily the appellant is entitled to have the appeal determined in the usual way. However, as the Full Court said at [133]-[137] other considerations apply where the appeal is futile, or it is devoid of merit.
In summary then, the fundamental issue is whether reinstatement of the appeal 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 be taken into account. For example:
a)The length of any delays.
b)Whether there are adequate reasons that explain the delay or the failure to comply with the relevant timeframe.
c)The merits/futility of the appeal.
d)Whether there is any hardship or injustice to the respondent that cannot be compensated by orders for costs or otherwise.
e)The history of the proceedings.
f)The conduct of the parties in the proceedings.
g)The nature of the litigation.
h)The consequences for the parties of the granting or the refusal of the application.
i)The effect on the court’s capacity to dispose of other matters before it in a timely manner.
Delay and explanation
There are two time periods here; first, the time prescribed by the Appeal Registrar for the filing of appeal books namely, from 23 May 2012 to 4 July 2012, and secondly, the time between the deemed abandonment of the appeal (4 July 2012) until the filing of the application seeking reinstatement (21 March 2014).
The only semblance of an explanation for the failure to comply with the order for the filing of the appeal books and the almost 20 month delay in filing the application emerges in paragraph 19 of the affidavit of the husband as set out above. However, in truth that paragraph does not explain very much at all. First, there is no indication of what “the circumstances” are that have “now arisen”, no detail as to when those circumstances in fact arose, and beyond the reference to paragraphs 5, 6 and 7 of the affidavit, there is no indication of what “information” was “obtained during the costs assessment process”, and no detail as to when that “process” occurred. As to the paragraphs of the affidavit referred to, paragraphs 5 and 6 identify events that occurred before the Notice of Appeal was even filed, and all paragraph 7 reveals is that subsequent to the order of 5 April 2012 a copy of the wife’s itemised costs account was made available to the husband and his solicitors. In that regard it is unchallenged that the account would have been received on or about 2 July 2012. However, none of that provides any explanation for either the failure to comply with the order for the filing of the appeal books, or the almost 20 month delay in filing the application. Further, senior counsel for the wife points out in his written summary of argument, that by a Notice disputing the itemised costs account dated 7 November 2012, the husband specifically objected to items 355, 356, 358, 359 and 361 in the wife’s itemised costs account. It is said, and I accept, that that demonstrates that at least by 7 November 2012, still some 16 months before the application was filed, the husband and/or his solicitor had specifically considered the contents of each of those items.
That latter submission is put because, although there is nothing in the affidavit to this effect, it seems that the issue being raised is that those items in the costs account prima facie are inconsistent with evidence given by one Ms Y, an employee of the wife’s solicitor’s legal firm, before his Honour, and that was the catalyst to bringing the application. As is plain though, there are significant flaws in this argument which at the very least reflect on the bona fides of bringing the application on that basis. First, this still provides no explanation as to why the appeal books were not filed in time. Secondly, it is clearly not as the husband’s counsel put to the court during the hearing, namely that the husband and his legal advisers only “recently” became aware of this inconsistency. It clearly would have become apparent once the itemised costs account was perused, and the latest that would have occurred is November 2012. Thus, this argument does not assist the husband, and indeed it is the opposite.
The merits of the appeal
As was correctly highlighted by the senior counsel for the wife, leave to appeal is required here given that the application before his Honour was interlocutory. However, no leave was sought in the Notice of Appeal, and no facts were presented that demonstrate an error of principle or substantial injustice such that leave would be granted. Sometimes it is the case that the grounds of appeal can be relied on to cure this defect and provide a basis for leave to be granted, but that cannot apply here. There is no proper ground of appeal set out in the Notice of Appeal; the one and only “ground” of appeal is “[t]hat the learned Trial Judge erred in law by dismissing the Husband’s Application to restrain the Wife’s Solicitors from acting on her behalf”. That is a mere assertion which fails to identify the error “in law” alleged to have been committed by the trial judge. Thus not only does that not demonstrate a basis for leave to be granted, but if leave were to be granted that does not provide a proper ground of appeal and the appeal would have to be dismissed.
Plainly, given these circumstances, it would be futile to reinstate the appeal. In this regard I also observe that at no time was it suggested on behalf of the husband that the Notice of Appeal would be amended to provide proper grounds of appeal, or the leave to appeal would be sought.
Despite these deficiencies being fatal prima facie to the application before the court, in the interests of justice I permitted counsel for the husband to explain the error “in law” that it is said was committed by the trial judge. I was then told that the error was the application by his Honour of the wrong “test” for determining whether a solicitor should be restrained from acting further for his or her client. However, for any test to be applied there has to be evidence of a conflict of interest; in other words, there needs to be a basis for the imposition of the injunction. Here that evidence is said to arise from the inconsistency between what Ms Y said in oral evidence to his Honour and what appears in the itemised bill of costs. The difficulty though that the husband has in promoting this is that that would need to be the subject of an application for leave to lead further evidence, and that was simply not addressed by the husband’s counsel, and nor indeed was it even recognised by him that it would be required. In any event, to succeed in such an application not only would the principles in CDJ v VAJ (1998) 197 CLR 172 need to be satisfied, but the evidence could not be controversial and cross-examination could not be required.
Here, it is apparent that the application would fail on both counts. I accept the submission of senior counsel for the wife that it would not satisfy the principles set out in CDJ (particularly at [109] and [111]); the further evidence that would be sought to be adduced does not “relate to the issues of fact in question but only to the credit of a witness” (paragraph 21 of the wife’s written summary of argument). Thus, it could not give rise to a different result.
There were also six affidavits filed in the wife’s case addressing the inconsistency relied on by the husband, and which render the evidence as to the same controversial and requiring cross-examination.
I also accept senior counsel for the wife’s submission that it may be problematic that what, if anything, Ms Y heard when the husband and his senior counsel were in conversation in the courtroom can be classified as “confidential” information.
In summary then, the application to lead the further evidence would be unsuccessful, and his Honour’s findings would remain unaffected.
What then of the complaint that his Honour applied the wrong test? Putting aside whether without further evidence going to the ultimate issue it matters, it is not necessarily the case that his Honour has erred in this regard. It is said that the “correct” test is that approved by the Full Court in McMillan and McMillan (2000) FLC 93-048 at [42] and [54]. There, in addressing the scenario where a solicitor who has received confidences while previously acting for one party, subsequently acts for the other party, the Full Court held that to obtain an injunction the former client need only prove a prima facie case as to confidential material, the disclosure or use of which by the solicitor in the course of the conduct of the current proceedings for the present client, would be prejudicial to the former client. Further, all that is required is that there be at least a theoretical possibility that confidential information could be used against the former client if the solicitor continued to act.
Now it is immediately apparent that the issue here is quite a different one, and it does not involve a solicitor who previously acted for a party now acting for the other party. In any event, what the trial judge did here was to look to the conduct of the wife’s solicitor and his employee and assess that against the code of conduct regulating legal practitioners, and against the best practice guidelines published by the Family Law Council and the Family Law Section of the Law Council of Australia, and then ask how a reasonable, properly informed, independent observer would view that conduct. His Honour concluded as follows:
183.… On the basis that the independent observer was made aware of the importance of the process enabling a litigant to obtain justice, along with the obligations of lawyers to ensure that they neither abuse their positions of power or inflame proceedings, would the independent observer have been disturbed by any of these events? I could not find that a properly instructed, reasonable and independent observer would say that Mr Abrahams or his employees had overstepped the boundaries either from the perspective of what I have earlier referred to as the process to obtain justice or for that matter, the guide to good conduct by practitioners involved in family law proceedings to which I have earlier referred. On that basis, the husband’s application must be dismissed.
Thus, it is apparent that in specific terms the test applied by his Honour was different than the test approved in McMillan. However, the overall effect of what his Honour did here is much the same, and that is apparent for example from what his Honour said at [181] and [182], namely:
181.It was submitted that even if I was to find that, in isolation, these events did not mean that there had been some tainting of the process, holistically, I should find that the husband could have no confidence in the judicial process for so long as Mr Abrahams continued to act for the wife.
182.In isolation, each of the events is, as I have found, innocuous. Collectively, they are so disjointed both as to the participants and as to time, I find that it matters little whether they are collective or isolated.
It must also not be forgotten that his Honour was not dealing here with a solicitor who had previously acted for the other party, and it is understandable that the particular circumstances called for a different approach.
That said, bearing in mind that I am not hearing the appeal, but rather an application to reinstate the appeal, I am not in a position to be definitive about whether there is merit in this argument, and I must concede that it is arguable. However, that still does not help the husband given that there would be no further evidence before the Appeal Court going to the ultimate issue, and in respect of which the application of a seemingly different test might be relevant.
Before leaving the merits of the appeal it is necessary for me to say something about the futility of the appeal. The interlocutory order the subject of the appeal was made in the context of parenting proceedings which were completed by consent orders made on 22 May 2011, noting as well that at the time of the hearing of this application the children of the marriage were respectively aged 20 years and 17 years.
There had been property settlement proceedings, but they were concluded by orders made on 23 May 2013. There was an appeal by the husband against those orders, but that appeal has been dismissed. Accordingly, as I understand it, the only issue still to be determined finally is that of costs. Thus, it is readily apparent that this appeal is futile, and that is regardless of any merit in the appeal; it can go nowhere as presently constituted.
The conduct of the husband
I have touched on how in effect to pursue this application in the absence of an explanation for the failure to comply with the order of the Appeal Registrar, and for the delay in bringing the application, smacks of a lack of bona fides on the part of the husband. That is also brought into sharp focus by the futility of the appeal even if it was reinstated, as well as the failure to seek leave to appeal and the absence of any proper ground of appeal. I also note the contents of the affidavit of the solicitor, Adrian Abrahams filed on 2 May 2014, and in particular the number and fate of complaints by the husband to the Legal Services Commissioner and to the Ethics Committee of the Law Institute of Victoria (paragraph 31). It is also relevant that this court’s limited resources will be burdened by the reinstatement of this appeal, and that can scarcely be justified in the context of the husband’s conduct, and as described by senior counsel by the wife, his “cavalier” attitude to “the case management principles” that guide the work of this court.
The consequences for the parties of the granting or the refusal of the application.
If the application is granted, there will be serious prejudice to the wife which cannot be compensated for by an order for costs. In her affidavit filed on
2 May 2014 the wife deposed to the emotional toll that has been placed on her by this protracted litigation, and the emotional burden borne by her by the prospect that the appeal, having been deemed abandoned in July 2012, might be reinstated.
On the other hand, if the application is refused there will be an obvious prejudice to the husband in that he will not be able to pursue his appeal. There is of course no appeal to a Full Court from such a decision, and all the husband would be left with is a special leave application to the High Court of Australia. However, this outcome is clearly of the husband’s own making given his failure to comply with the order of the Appeal Registrar, his failure to file an application to reinstate the appeal in a timely fashion, his lack of bona fides in ultimately bringing the application, and his failure to seek leave to appeal and to provide a proper ground of appeal. Thus, I am not disposed to attach much if any weight to the prejudice to the husband that would flow from refusing his application.
Conclusion
As the authorities recognise, the consideration of the relevant factors inform the court’s determination of the fundamental issue, namely, is it in the interests of justice to allow the appeal to proceed. Here, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused. There is no explanation of the failure to comply with the order made by the Appeal Registrar and there is no plausible explanation for the delay in filing the application. Indeed, I have found a lack of bona fides in what was put on behalf of the husband in this regard, and in any event, the receipt of the wife’s itemised costs account had nothing to do with any alleged error by the trial judge in applying an incorrect test. Then there were the deficiencies in the Notice of Appeal, namely the failure to apply for leave to appeal and there being no proper ground of appeal, and no suggestion of any amendment to overcome these deficiencies. Further, the appeal lacked merit, it was plainly futile and finally, there was the serious prejudice to the wife if the application was granted.
Costs
In the event that either party wishes to pursue an application for costs, that will need to be undertaken in accordance with r 22.53 of the Rules.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
13 January 2015.
Associate:
Date: 13 January 2015