PETCHEY & PETCHEY
[2019] FamCAFC 48
•20 March 2019
FAMILY COURT OF AUSTRALIA
| PETCHEY & PETCHEY | [2019] FamCAFC 48 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no basis for leave to appeal to be granted if time to appeal is extended – Where the proposed grounds of appeal are without merit – Where the prejudice to the respondent outweighs any prejudice to the applicant – Application dismissed. FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Where impecuniosity is not a bar to an order for costs being made where there are circumstances that otherwise justify such an order – Where the applicant has been wholly unsuccessful – Costs ordered in the sum sought by the respondent. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 Petchey & Petchey [2018] FamCAFC 256 |
| APPLICANT: | Mr Petchey |
| RESPONDENT: | Ms Petchey |
| FILE NUMBER: | DGC | 931 | of | 2016 |
| APPEAL NUMBER: | SOA | 99 | of | 2018 |
| DATE DELIVERED: | 20 March 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 20 March 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 June 2016 |
| LOWER COURT MNC: | NA Transcript only |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Bastick |
| SOLICITORS FOR THE RESPONDENT: | Guthrie & Associates |
Orders
The application in an appeal filed on 21 December 2018 be dismissed.
The applicant pay the costs of the respondent of an incidental to the appeal fixed in the sum of TWO THOUSAND FIVE HUNDRED AND THIRTY ONE DOLLARS AND NINETY FOUR CENTS [$2,531.94].
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 |
Appeal Number: SOA99 of 2018
File Number: DGC 931 of 2016
| 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 21 December 2018. The application is opposed by Ms Petchey (“the respondent”).
The order sought in the application is in effect an extension of time to file a Notice of Appeal against orders made by Judge Phipps on 23 June 2016.
In the application it is said that the applicant is “[s]eeking further orders as set out in the draft notice of appeal attached.” I do not know to what that is referring, save and except, of course, that there are, as required, orders set out in the Draft Notice of Appeal in the context of the appeal. In any event, the only order that I can make today is in relation to the extension of time, and thus I ignore the reference to so-called further orders set out in the Draft Notice of Appeal for the purposes of today.
The orders made on 23 June 2016 were procedural orders made in relation to an Initiating Application filed by the respondent in these proceeding on 6 April 2016, seeking orders for property settlement. They are procedural orders which I can describe as usual procedural orders made in a property settlement matter in order to progress the proceedings, such as requiring the parties to attend upon a conciliation conference, adjourning the matter until the conclusion of the conciliation conference, requiring the parties to provide full and frank disclosure documents, and providing for the parties to obtain valuations.
In any event, the Family Law Rules 2004 (Cth) (“the Rules”) provide for a 28 day period in which a Notice of Appeal can be filed following orders made in the lower court, and in this instance that is 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 of course relevant to note that it has taken 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 21 December 2018. It is a brief affidavit, and it is instructive that I set out the contents of that affidavit in full as follows:
1.There has been a miscarriage of justice in the FCC in the matter DGC931/2016.
2.The application DGC931/2016 was knowingly filed outside statuted time limits and required leave of the court to proceed. There was no application for leave before the court.
3.Lawyer […] filed a misleading affidavit 9 June 2016 in the matter DGC931.2016 as an act of pollusion, poluting the case material and creating distrust.
4.The FCC registry Dandenong failed in their duty to provide competant screening services and to facilitate adequate proceedings.
5.Legislated procedures for a matter where family violence is alledged, require further supporting forms of evidence to progress fairly, that were not produced and as a matter of proceedural fairness the issue requires judicial comments.
(Errors and omissions as per original)
In addition, and as is required, the applicant has provided to the court a Draft Notice of Appeal that he would seek to proceed upon if he is successful in his application for an extension of time.
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.
In addressing the overarching principle of where the justice of the case lies, 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 which can be considered, such as the history of the proceedings, the conduct of the parties, and the nature of the litigation, and in this case the history of the proceedings and the conduct of the parties are factors that can be considered relevant. What I specifically refer to in that context is this. As I said, the orders appealed against are procedural orders made by Judge Phipps on 23 June 2016. His Honour made previous orders in those same proceedings on 1 June 2016 which were also procedural orders, and on that day his Honour adjourned the matter to 23 June 2016. The primary order that his Honour made on 1 June 2016 was to require the respondent to file and serve a Response, an affidavit, and a Financial Statement, and the matter was then to be considered again on 23 June 2016, when his Honour was to make further procedural orders to progress the case.
I have referred to the earlier order because on 15 November 2018 the applicant filed an Application in an Appeal seeking an extension of time to appeal against those procedural orders. That application was dealt with by this Court on 10 December 2018 (Petchey & Petchey [2018] FamCAFC 256), and the application was dismissed. If one looks at the material in support of that Application in an Appeal, and the contents of the Draft Notice of Appeal which was put before the court, one would see a marked similarity between what was in those documents, and what is in the documents in support of the application before the court today.
I raised that issue at the commencement of the hearing today with the applicant, and invited him to address me as to what the differences were between the applications, and in my view he was not able to do that.
That renders this application today a complete waste of time, and a waste of the resources of this busy court.
In any event, the applicant has determined to proceed with the application that is before the Court today, but the recent history, and the conduct of the applicant in pursuing this application, are matters which I will be taking into account in determining where the justice of the case lies.
To return to the three principal factors I mentioned a moment ago.
First, the reasons for the failure to file a Notice of Appeal within time.
As can be seen from the contents of the affidavit in support of the application, there is nothing whatsoever in that affidavit which provides any reason for the failure to file the Notice of Appeal within time.
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 he set out the facts on which he seeks leave to appeal as follows:
1.The initiating application DGC931/2016 was knowingly filed out of time limits set by the court and, requires leave of the court to proceeded, “there was no application for leave of before the court”, thus refusing this extension of time appliction to file a NOA, can only bring the court into further disrepute.
2.Allowing the matter to proceede in the FCC jurasdiction without prior mediation or genuine steps to raise and resolve issues causes financial expence and serious psychological pain to both parties, only to benefit lawyers.
3. Judge Phipps made parenting orders without legal justification.
4.The option to appeal at that stage was unknown to the self represented respondent as his knowledgable legal representative had been tricked into withdrawing services, due to a letter making false statement from lawyers Guthrie.
5.Refusing to grant an extension of time will show support for system failures that are not in the best interest of the Australian people.
(Errors and omissions as per original)
Dealing with those facts seriatim, 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 claims that the Initiating Application was filed out of time and requires leave of the court to proceed. However, that matter, namely whether leave to proceed was required, was indeed subsequently dealt with and determined in favour of the respondent in those proceedings. Thus, that cannot be a fact which would allow leave to appeal to be granted.
The second fact, in summary, suggests that the proceeding should not have been allowed to continue because there had been no prior mediation or genuine steps taken to resolve the issues. That is a fact which is, if not in the same wording, is a fact which is straight out of the facts relied on in the proceedings that I have mentioned earlier, namely the application for an extension of time to appeal against the orders made on 1 June 2016. This Court dealt with that issue in the reasons for judgment delivered on 10 December 2016 as follows:
14.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).
Thus, again, this is not a basis for granting leave to appeal.
The third fact claims that the primary judge made parenting orders without legal justification. The fact of the matter is there were no parenting orders made by Judge Phipps on 23 June 2016 and, plainly, that is not a fact that would require leave to appeal to be granted.
The fourth fact alleges that the applicant was unaware that he had an option to appeal because his legal representatives withdrew their services. Again, that is a matter which was dealt with in the previous proceedings, and specifically at [12] of the reasons for judgment delivered on 10 December 2018 as follows:
12.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.
That fact also does not provide a basis for leave to appeal to be granted.
The fifth fact claims that refusing to grant an extension of time “will show support for system failures that are not in the best interests of the Australian people. What nonsense. How that has found its way into a document filed in this Court is incomprehensible and I ignore it.
Thus, to repeat, and again putting aside whether these matters engage with any of the tests whether leave to appeal should be granted, none of these facts provide a basis for leave to appeal to be granted.
Out of abundant caution though, I mention the grounds of appeal which are set out in this Draft Notice of Appeal. I do not propose to go through them seriatim and I will deal with them generally. None of the grounds of appeal have any merit. They are incompetent and, many, if not all, have been dealt with in my reasons for judgment delivered on 10 December 2018 in the earlier proceedings that I have continuously referred back to.
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 an 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.
Of course, if the application was 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.
In [25] of the reasons for judgment delivered on 10 December 2018, this Court recognised that there was a further issue in terms of prejudice, and that is the utility of allowing this appeal to proceed given what has now transpired. In other words, the orders sought to be appealed against are procedural orders intended to move those proceedings along the case management pathway. It has moved along that pathway and, indeed, reached a final hearing in February 2018. Thus, as I said in [25] of my reasons of 10 December 2018, and I say again in relation to this application, there would be no utility in granting leave to appeal and allowing the appeal.
A consideration of all of the factors that I have mentioned informs the determination of the fundamental issue, namely where the justice of the case lies. I refer to the recent history of the proceedings and the conduct of the applicant in relation to those recent proceedings. I have found that there was no reason whatsoever provided by the applicant for the failure to file the 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 any of the grounds of appeal that are 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 $2,531.94.
The application is opposed.
In my view, there should be an order for costs.
Section 117 of the Family Law Act 1975 (Cth) governs the question of costs. Pursuant to s 117(2) costs can be awarded 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 makes two submissions in support of his opposition to an order for costs being made. First, he in effect says that it was reasonable for him to bring the application, and secondly, he raises his financial circumstances as relevant to whether an order for costs is made. In that regard, he says he is unemployed, but equally he has conceded that he has money which he received from an inheritance, and that is money he is living off.
I am obliged to take into account the financial circumstances of both parties, and in that regard the respondent’s counsel tells me that the respondent works as a cleaner, she earns approximately $50,000 a year, and her financial circumstances are poor.
In the circumstances the financial position of the applicant cannot prevent an order for costs being made. There is ample Full Court authority that impecuniosity is not a bar to a costs order being made if there are circumstances otherwise that justify an order being made, and that is the case here. The applicant has been wholly unsuccessful and I reject his submission that it was reasonable for him to bring the application.
To repeat, in my view, it was a complete waste of time for him to pursue this application given the result of his earlier application, and in respect of which judgment was delivered on 10 December 2018.
I certify that the preceding forty-four (44) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 20 March 2019
Associate:
Date: 9 April 2019
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