Poirier & Poirier
[2024] FedCFamC1A 165
•20 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Poirier & Poirier [2024] FedCFamC1A 165
Appeal from: Poirier & Poirier [2024] FedCFamC2F 559 Appeal number: NAA 132 of 2024 File number: BRC 8438 of 2021 Judgment of: AUSTIN J Date of judgment: 20 September 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to dismiss her Application in an Appeal seeking reinstatement of an abandoned appeal – Where the failure to file the draft appeal index in time was the fault of the applicant’s previous lawyers – Where the applicant sought to immediately correct the default – Where the respondent admits the appeal evinces merit in some respects – Where there is more prejudice to the applicant if the appeal is not reinstated than to the respondent if the appeal is reinstated – Appeal reinstated. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13, 13.07, 13.14, 13.44,
Cases cited: Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Farrington & Belkis [2024] FedCFamC1A 133
Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
Number of paragraphs: 30 Date of hearing: 18 September 2024 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person Counsel for the Respondent: Mr Tonge Solicitor for the Respondent: Cooper Grace Ward Lawyers ORDERS
NAA 132 of 2024
BRC 8438 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS POIRIER
Applicant
AND: MR POIRIER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
20 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The orders made by the appeal registrar on 7 August 2024 are set aside.
2.The Notice of Appeal filed on 30 May 2024 is re-instated.
3.Otherwise:
(a)the Application in an Appeal filed on 15 July 2024 is dismissed;
(b)the Response to an Application in an Appeal filed on 19 July 2024 is dismissed;
(c)the Application in an Appeal filed on 28 August 2024 is dismissed; and
(d)the Response to an Application in an Appeal filed on 12 September 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Poirier & Poirier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the disposition of an application to review the decision of an appeal registrar made on 7 August 2024, refusing the applicant’s application to reinstate her appeal which was deemed abandoned.
Background
On 3 May 2024, the primary judge made property settlement orders to finalise a financial cause between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The orders effected a division of the parties’ property and superannuation in shares of 60 per cent to the applicant and 40 per cent to the respondent.
The applicant appealed from that judgment on 30 May 2024. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) required the applicant to file a draft appeal book index by 27 June 2024 (r 13.14(2)(a)(i)), in default of which the appeal was deemed abandoned (r 13.14(3)). She failed to file the draft appeal book index by that date and so the appeal was abandoned.
On 15 July 2024, the applicant filed an Application in an Appeal seeking the appeal’s reinstatement (r 13.44), which application the respondent opposed by his Response filed on 19 July 2024. The contested application was heard by the appeal registrar on 6 August 2024 and dismissed with costs on 7 August 2024.
On 28 August 2024, the applicant filed an Application in an Appeal seeking judicial review of the appeal registrar’s decision, in rebuttal of which the respondent filed a Response to an Application in an Appeal on 12 September 2024.
The review hearing must be conducted as an original hearing of the applicant’s reinstatement application.
The applicant relied upon:
(a)her affidavit filed on 15 July 2024 in support of the reinstatement application; and
(b)her affidavit filed on 28 August 2024 in support of the review application
The respondent relied upon:
(a)his affidavit filed on 2 August 2024 in rebuttal of the reinstatement application; and
(b)his affidavit filed on 12 September 2024 in rebuttal of the review application.
Legal principles
In Allan & Ors & Allan & Ors (2014) FLC 93-606, the Full Court said this with respect to the legal principles governing applications to reinstate appeals:
32.The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]–[46]; Bemert & Swallow (2010) FLC 93–441 at [128]–[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”.
This observation was also recently made in Farrington & Belkis [2024] FedCFamC1A 133:
10.When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4] , [7] , [9] , [33] , [66] and [73]).
Those principles are adopted and applied in this instance.
Disposition
The failure to file the draft appeal book index on time was the fault of the applicant’s then lawyers. The applicant gave this evidence:
7.The Notice of Appeal was filed on 30th May 2024. I now know that a draft Appeal Index ought to have been filed on or before 27th June 2024. I apologise for the noncompliance with this requirement. I cannot recall ever being informed of the requirement to file this document. At the time I was engaged in advancing my appeal preparation by obtaining the transcripts, the exhibits and other documentation and engaging with counsel as to the conduct of the appeal.
(Applicant’s Affidavit filed 15 July 2024)
…
6.I make this Application in circumstances where my previous solicitors did not file my draft appeal book index.
7.I was not informed by my previous solicitors of any requirements needed of me to comply with a draft appeal book index nor given any reason to believe they were not complying with Court requirements. I did not receive an email, a telephone call or any form of communication to even discuss this item in the weeks leading into the deadline.
…
10.I was not aware the Appeal was taken to be abandoned until 15 July 2024 the day my Application in an Appeal, and accompanying Affidavit were executed and filed.
…
51.It remains my position, but for my previous solicitors’ conduct, the Appeal would still be on foot…
(Applicant’s Affidavit filed 28 August 2024)
The applicant deposed that the solicitors originally acting for her in the appeal sent her an email on 9 August 2024 confessing this:
36.…We are of the view that you may now have a claim against us for professional negligence…
(Applicant’s Affidavit filed 28 August 2024)
The respondent was impelled to concede the only reasonable inference to draw from such unchallenged evidence is that the applicant’s solicitors were to blame for the default. That being so, it is well settled the adverse consequences of modest negligent omissions by lawyers are not usually visited upon their unfortunate clients (Allesch v Maunz (2000) 203 CLR 172 at 186; Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at [14], [33], [68] and [70]).
Here, the default was modest. As soon as the applicant learned of the default, she immediately moved to correct it with the help of new lawyers. Her reinstatement application was brought within three weeks of the deemed abandonment of the appeal. The applicant adequately explained her delay, despite the respondent’s refusal to accept she did, so attention turns to the ostensible merit of the appeal.
The abandoned Notice of Appeal comprises 20 grounds of appeal. The applicant deposed in her first affidavit to an intention to expand the number of grounds to 22 if the appeal is reinstated, though the two extra grounds seem to add nothing to the existing grounds. She then deposed in her second affidavit to an intention to again revise the grounds of appeal if the appeal is reinstated, saying this:
49.It remains my intention to file and serve an Amended Notice of Appeal, however given the time restraints on filing this Review, and the voluminous Court material and transcript to consider same has not been completed at this juncture by my new legal representatives.
50.I will be seeking leave to rely on a further Affidavit addressing the merits of my Appeal and providing the draft Amended Notice of Appeal at the first available opportunity, and prior to any hearing of this Review.
However, the applicant did not produce any draft Amended Notice of Appeal or a third affidavit as she said she would, so her application to re-instate the appeal is therefore determined on the grounds of appeal as they appear presently in the abandoned Notice of Appeal.
The applicant addressed the ostensible merit of the grounds of appeal at length in her oral submissions. Suffice to say, many of the existing grounds appear to lack merit or are de minimis because they entail alleged errors of relatively insignificant sums of money.
Significantly, however, the applicant alleged the primary judge made one error which cost her $60,000 (Ground 2). In relation to that point, the applicant deposed this:
16.1I say that [the primary judge] erred in respect of the Westpac Business Loan [account number] has been allocated twice to both the [respondent] and I. The loan is in my name. The [respondent] has accepted no ownership of such loan, and I am solely meeting the loan repayments, therefore bearing the financial consequences of this double-up error. I say [the primary judge] failed to properly take into account the fact that this loan is a liability of mine in calculating the property settlement payable to me, prejudicing my settlement by some $60,000.00
(Applicant’s Affidavit filed 15 July 2024)
…
52.…
d.The Court has doubled up the allocation of the Business loan ([account number]). The Court error of a doubled-up Business loan is in my name and [the respondent] has taken no steps to take ownership of the loan or meet his share of that outstanding debt, prejudicing me some $66,000
(Applicant’s Affidavit filed 28 August 2024)
The respondent did not address that allegation of error in his evidence. However, in submissions, he expressly conceded the error.
There would be no impediment to the parties jointly approaching the primary judge to correct the mathematical error by resort to the slip rule, either because the error does not reflect the Court’s intention as set out within the reasons for judgment (r 10.13(1)(e)), they both consent (r 10.13(1)(f)), or it was an accidental slip (r 10.13(1)(h), but they have not done so. When that failure was raised, the respondent belatedly sought an adjournment of the review hearing to permit him to make such an application to the primary judge, but his adjournment application was rejected. The parties were not granted any reprieve to do what they could have done months ago. Nothing now decided within the context of this review hearing precludes such an application yet being made to the primary judge.
Absent resort to the slip rule, the only way for the error to be redressed is by an appeal, which proposition the respondent was impelled to concede. The applicant would suffer considerable financial prejudice if deprived of the chance to remedy that error, which proposition the respondent could not dispute. It seemed rather extraordinary that he maintained his opposition to the reinstatement application in the face of his concessions.
Having heard the parties’ submissions, several other grounds of appeal seemed to be at least arguable (Grounds 1, 15 and 16).
Ground 1 is a complaint the appealed orders are internally inconsistent because Order 5 requires the applicant to bear a particular debt which Order 14(d) inconsistently requires the respondent to pay and for him to furthermore indemnify the applicant against it. The respondent asserted there is no internal inconsistency in the orders because the subject loan was a personal loan to the parties and not a business loan for the benefit of corporations or trusts in which he enjoys a controlling interest. The applicant alleged the respondent’s submission was repugnant to the evidence he adduced in his affidavit filed in the original proceedings on 15 May 2023. That is not a dispute which can be determined on the face of the material presently available, but the applicant’s position is not plainly wrong. The respondent could not point to any commentary by the primary judge on the issue within the reasons for judgment which made the applicant’s position untenable.
Grounds 15 and 16 concern sums totalling about $132,000 in aggregate. The alleged errors are the primary judge’s failure to address the applicant’s applications for orders specifically bringing to account monies had and received by the respondent. The applicant alleged she sought such specific orders within her Amended Minute of Final Order, of which the primary judge was aware (at [19(a)]), but his Honour allegedly overlooked the issues because they were neither disposed of by an order either granting or dismissing them, nor were they referred to in the reasons for judgment. The alleged errors are, inferentially, either an error of law by not determining the live applications or an inadequacy of reasons. The respondent did not respond to those grounds, either by evidence or submission.
Even though the respondent contended many of the grounds of appeal were unmeritorious, he was prepared to admit the appeal evinced merit in some respects, in which event he could only then fall back on the prejudice he would suffer to rebut the reinstatement application.
The respondent alleged, inferentially if not expressly, that he elected to abstain from filing any cross appeal to establish the material errors he asserts were made by the primary judge contrary to his interests and, since he is now out of time to file any cross appeal (r 13.07(2)), he would be prejudiced if the appeal is reinstated. However, any prejudice he might now perceive suffering on that account could be cured by an extension of time within which he may file a cross appeal. When that alternative was put to the respondent, he expressly rejected it. The corollary must be that any such prejudice is not worth remedying.
The respondent could not otherwise point to any prejudice he might suffer from reinstatement of the appeal aside from the inconvenience of having to meet it when he did not think he would need to do so for about the three weeks duration of its deemed abandonment. If the applicant’s appeal is as weak as he contends, save in respect of Ground 2, then he should be confident of its ultimate dismissal in all other respects. Presumably, given his admission of Ground 2, he would then seek costs against the wife in respect of those parts of the appeal which he was unnecessarily put to the expense of defending.
The prejudice for which the respondent argues is well outweighed by the contrary prejudice the applicant would suffer if the appeal is not reinstated. The appeal has ostensible merit in some respects and the applicant gave satisfactory explanations for its abandonment and her application to then reinstate it.
The appeal registrar also ordered the applicant to pay the respondent’s costs of the failed reinstatement application, which order should also be set aside upon the reinstatement of the appeal.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 20 September 2024
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