Petchey and Petchey - [2018] FamCAFC 256

FAMILY COURT OF AUSTRALIA

PETCHEY & PETCHEY

[2018] FamCAFC 256

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no adequate or satisfactory reason for the failure to file – Where there is no basis for leave to appeal to be granted if time is extended – Where the proposed ground of appeal is without merit – Where there is prejudice to both parties depending upon whether the application is allowed or refused – Where the prejudice to the respondent outweighs any prejudice to the applicant – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs on the basis that the applicant has been wholly unsuccessful – Where impecuniosity is not a bar to an order for costs being made where there are circumstances which justify such an order – Costs ordered in the sum sought by the respondent.

Civil Dispute Resolution Act 2011
Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth) – r 4.09

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Petchey

RESPONDENT:

Ms Petchey

FILE NUMBER:

DGC

931

2016

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

10 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

10 December 2018

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Dr R Smith

SOLICITOR FOR THE RESPONDENT:

Guthrie & Associates

Orders

The applicant de facto husband have leave to rely on his unfiled affidavit sworn on 3 December 2018.
The Application in an Appeal filed on 15 November 2018 be dismissed.
The applicant de facto husband pay the respondent de facto wife’s costs of and incidental to the Application in an Appeal filed on 15 November 2018 fixed in the sum of TWO THOUSAND THREE HUNDRED AND SEVENTY ONE DOLLARS [$2,371].

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 Petchey & Petchey 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: DGC 931 of 2018
Appeal Number: SOA 81 of 2018

Mr Petchey

Applicant

And

Ms Petchey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Application in an Appeal filed by Mr Petchey (“the applicant”) on 15 November 2018. The application is opposed by Ms Petchey (“the respondent”).
The order sought in that application is an order that cannot be made on such an application; it is an order that can only be made upon the hearing and determination of an appeal. However, as I indicated at the commencement of the hearing today, this Court and the respondent, have treated the application, despite the order sought, as being an application seeking to extend the time to file a Notice of Appeal against orders made by Judge Phipps on 1 June 2016.
Those orders were procedural orders made upon the first return date of an Initiating Application filed by the respondent in these proceedings on 6 April 2016, seeking orders for property settlement. The Family Law Rules 2004 (Cth) provide for a 28 day period in which a Notice of Appeal can be filed following orders made by the Federal Circuit Court of Australia. Plainly, a Notice of Appeal was not filed in that time period, otherwise this application would be unnecessary. It is relevant to note though, that it has taken almost two and a half years for the applicant to file the application that is before the court today.
The application is supported by an affidavit also filed on 15 November 2018. It is a brief affidavit and deposes as follows:
1.Lawyers Guthrie and Associates prevented compliance with pre action proceedures (sic), instructing their client and failing to be instructed.
2.According to the Family Law Act 1975, and Family Law Rules. Genuine attempts must be made before filing in the court.
3.The scenerio (sic) created by the initiating party lawyers Guthrie & Associates mislead (sic) the court.
There is a further affidavit which was sworn by the applicant on 3 December 2018 and forwarded to the Appeal Registry, however, there is no file number on the document, and it has not been received for filing. On looking at that affidavit though, it appears to bear some relevance to the application that is before the court today, and as I indicated earlier today, I am prepared to receive that affidavit in the context of this application. I note there was no objection to that course by counsel for the respondent.
In that affidavit the applicant deposes as follows:
1.Lawyers Guthrie acted unfairly to disengage my legal representative and being unqualified and unaware of appeal time limitations.
2.The Family Law Act 1975 there are compulsary (sic) pre action procedures ignored in this case, creating prejudice to the parties.
3.Extraneous material filed, created by the initiating party lawyers Guthrie & Associates mislead the court and registry.
4.Dissallowing (sic) extension of time to file NOA’s would support a compounding miscarriage of justice.
5.Allowing extra time could simplify the matter and have the matter addressed as administrative failures.
The principles that apply in applications such as this are well settled, and I need do no more than refer to the oft cited High Court decision of Gallo v Dawson (1990) 93 ALR 479, and in particular, what McHugh J said at 480 as follows:
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.
As can be seen, what his Honour there said is that ultimately it is a question of where the justice of the case lies, and the need to ensure that Rules of Court which fix times for doing acts do not become instruments of injustice. In addressing that overarching principle, there are a number of factors that can be considered where relevant, such as the reasons for the failure to file the Notice of Appeal within time, the merits of the proposed appeal, and the consequences for the parties of the grant or refusal of the application. They are the three principal factors which are often dealt with in these cases, and in my view they are the factors which are relevant here.
There are other factors that can be considered, such as the history of the proceedings, the conduct of the parties, the nature of the litigation, but none of those matters, in my view, are relevant to the application before the court today.
I turn now to consider the principal factors relevant to this application.
First, the issue of the reasons for the failure to file a Notice of Appeal within time. In that regard there is nothing whatsoever in the affidavit filed in support of the application which provides any reason for the failure to file the Notice of Appeal within time. However, in the affidavit sworn on 3 December 2018, there is at least a passing reference to that issue, and it appears in paragraph one. The effect of that is the applicant deposes that he is unqualified and unaware of appeal time limitations. However, it has often been said and, indeed, it was also said in Gallo v Dawson, that lack of legal knowledge is a misfortune, not a privilege.
In my view, the only reason that I can glean from that affidavit is insufficient and, as counsel for the respondent has pointed out, the applicant must have known of the timeframe for filing a Notice of Appeal given that he, on 23 April 2018, filed a Notice of Appeal against orders made by Judge Burchardt on 26 March 2018 in appeal no. SOA 27 of 2018. Yet it still took another seven months for the applicant to file the application that is now before the court. To repeat, I do not consider that reason an adequate or satisfactory reason for the failure to file a Notice of Appeal within time or, at the very least, for what is a failure by the applicant to file an application seeking an extension of time in a timely fashion.
Turning to the second matter, namely the merits of the appeal. Because the orders made by the primary judge are procedural orders, leave to appeal is required, and the applicant has recognised that, given that in his Draft Notice of Appeal dated 15 November 2018, which is the Notice of Appeal that he would want to proceed upon if an extension of time is granted, the applicant set out the facts on which he seeks leave to appeal as follows:
1.The judge made an order where the initiating applicant did not comply with pre action procedural requirements.
2.The initiating application did not fullfill requirements or qualify in the Federal Circuit Court jurasdiction.
3. Court proceeded in favour of the applicant unjustly.
(Errors and omissions as per the original)
Dealing with those facts one at a time, and putting aside for the moment whether they are matters that correctly invoke the relevant test as to whether leave to appeal should be granted, the first fact relied upon is that there was no compliance with pre-action procedural requirements. Plainly the applicant is misconceived about that issue. There are, of course, pre-action procedures in the Family Law Rules 2004 (Cth) which apply in the Family Court of Australia. These proceedings though were in the Federal Circuit Court of Australia, and those pre-action procedures do not apply in that court. In oral submissions the applicant has suggested instead that the requirements of the Federal Circuit Court of Australia were not complied with, and he raises without identifying it, r 4.09 of the Federal Circuit Court Rules 2001 (Cth), and suggests that there was non-compliance with that rule, which requires an applicant to file a genuine steps statement, pursuant to the Civil Dispute Resolution Act 2011 (Cth). The problem the applicant has in relying on that rule is that it does not apply under the Family Law Act 1975 (Cth).
The second fact alleges that “[t]he Initiating Application did not fulfil requirements or qualify in the Federal Circuit Court of Australia jurisdiction”. It is not readily apparent what the applicant was referring to there, but in oral submissions he indicated that he was referring to what appears in Part H of the Initiating Application filed by the respondent in these proceedings on 6 April 2016. There, in paragraph 55(a), the box “No” was crossed, answering the question, “Did your de facto relationship break down on or after 1 March 2009?”
The relevance of that is that if the de facto relationship was not continuing as at 1 March 2009, then there is no doubt that the Federal Circuit Court of Australia did not have jurisdiction to hear the application, because these parties were in a de facto relationship. However, there was an Amended Initiating Application filed on 8 November 2016 which corrected that paragraph, and, in any event, the answer in the original application was clearly a clerical error. That is apparent because in paragraph four of the affidavit filed on 6 April 2016 in support of the Initiating Application, the applicant in those proceedings and the respondent in these proceedings, clearly deposes to when she says the relationship ended.
Ultimately, following the hearing of these proceedings in the Federal Circuit Court of Australia on 7 and 8 February 2018, the primary judge found that there was a de facto relationship, and it had not broken down prior to 1 March 2009. Thus that cannot be a basis for leave to appeal to be given.
The third factor was again somewhat difficult to understand and needed amplification. It was that “[t]he court proceeded in favour of the applicant unjustly”.
In response to my query as to what that meant, the applicant indicated that he was referring to what he described as scandalous allegations made either by the solicitors for the respondent in these proceedings, or the respondent herself, and specifically in the affidavit to which I have just referred. Now, plainly, there are allegations in that affidavit of inappropriate conduct by the applicant, but that is not a matter which can be the basis for leave to appeal orders made by the primary judge being granted.
Thus, as I say, even putting aside whether these matters engage with any of the tests for whether leave to appeal should be granted, none of these three matters provide a basis for leave to appeal to be granted.
Out of abundant caution though, I also turn to the ground of appeal, which would only be relevant if leave to appeal was granted, namely:
1.The Initiating Application filed 5^th April 2016, DGC 931 2016 proves that the court has not the jurasdiction (sic) required to proceed. Part “H”
That ground raises the same issue in relation to Part H in the Initiating Application. However, I have dealt with that issue, explaining that it cannot be a basis for leave to appeal, and certainly is not a ground of appeal that has any merit given the circumstances that I have outlined.
In terms of the consequences of either a refusal or a grant of the application and the prejudice that might flow, plainly there is prejudice to both parties. There would be prejudice to the applicant if the application was not granted in that he would not be able to pursue this appeal. There is no appeal to the Full Court of this Court from a decision refusing the application. The only possible avenue of appeal is to seek special leave to appeal from the High Court of Australia but that, of course, is a difficult exercise and may not be proportionate in the overall scheme of things, but that would be a matter for the applicant. Suffice to say that there would clearly be prejudice to the applicant if the application was refused.
On the other hand, if the application is granted there would also be clear prejudice to the respondent in that there is currently no appeal before the court, and if the appeal was allowed to proceed she would have to deal with it and expend time, energy and money in addressing it.
The other issue raised by counsel for the respondent in terms of prejudice is the utility of allowing this appeal to proceed given what has now transpired. To repeat, the orders sought to be appealed against were the initial procedural orders to move this matter along the case management pathway. It has moved along that pathway and reached a final hearing in February 2018. Thus, in my view there would be no utility in granting leave to appeal and allowing the appeal.
As I have previously indicated, a consideration of those factors informs the determination of the fundamental issue which is where the justice of the case lies. As I have found, there is no adequate reason provided for the failure to file a Notice of Appeal within time. More importantly, and specifically, there is no basis for leave to appeal to be granted, and even if there was, there is no merit in the one ground of appeal that is proposed. Finally, there is prejudice to both parties, but given the lack of utility in the appeal, prejudice to the respondent outweighs any prejudice to the applicant. Therefore in my view, the interests of justice require that the application be dismissed.
I now have an application for costs by the respondent as a result of the Application in an Appeal being dismissed. The costs sought are on a party/party basis in the sum of $2,371, to cover the appearance last week when this matter was mentioned and listed for hearing today, and for the hearing today and the preparation for that hearing.
The application is opposed. It is suggested somehow that last week’s hearing had nothing to do with the applicant, and instead was some problem that the court had, and today the applicant suggests that the costs sought are unreasonable.
In my view, there should be an order for costs. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs the question of costs. Pursuant to s 117(2), costs can be ordered if there are circumstances that justify such an order, and in determining whether there should be an order, the relevant factors are to be found in s 117(2A). Here, the primary factor relied upon is paragraph (e), namely, the applicant has been wholly unsuccessful.
The applicant does raise his financial circumstances in the context of the application for costs, but Dr Smith for the respondent has mentioned in his submission that his client is in a difficult financial position as well. The position in relation to costs is that impecuniosity, if that is the case, is not a bar to a costs order being made. I note that the applicant says that he has some money, but to use his words, he does not want that extorted out of him to go to the other party. That, of course, is no basis for not ordering costs. However, proceeding on the basis that the applicant is unemployed and in a difficult financial position, the fact of the matter is, and there is ample Full Court authority for this, and to repeat, impecuniosity is not a bar to an order for costs where there are circumstances otherwise which justify an order being made. Here there is, namely, the applicant has been wholly unsuccessful in the application before the court today.

I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 December 2018.

Associate:

Date: 19 December 2018