Prendergast and Parsons (No. 8)

[2007] FamCA 1213

FAMILY COURT OF AUSTRALIA

PRENDERGAST & PARSONS (NO. 8) [2007] FamCA 1213

FAMILY LAW - APPEAL – Application to extend time to appeal – Applicant (a declared vexatious litigant) sought leave to file three different Notices of Appeal concerning interlocutory rulings in an ongoing hearing – It was not argued whether he was restrained from filing Notices of Appeal or making applications to extend time to appeal – The first and second proposed Notices of Appeal were filed several months out of time and no cogent explanation for delay was given – The third proposed Notice of Appeal filed six days out of time set out unclear grounds of appeal and there did not appear to be any reasonable prospect of success – Held it was best to await the outcome of the substantive proceedings before challenging procedural aspects – Applications dismissed

Family Law Act 1975 (Cth)

APPLICANT: MR PRENDERGAST

RESPONDENT: MS PARSONS

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 764 of 2004

APPEAL NUMBER: SA 51 of 2007

DATE DELIVERED: 24 July 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 24 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

ORDERS

1. The application filed 21 June 2007 is dismissed.

2. The oral application to file a Notice of Appeal against the striking out of portions of the husband’s affidavit on 26 March 2007 is also dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Prendergast & Parsons (No. 8).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 764 OF 2004
APPEAL NUMBER: SA 51 OF 2007

MR PRENDERGAST

Applicant

And

MS PARSONS

Respondent

REASONS FOR JUDGMENT

1. I have before me three applications for leave to extend the time to file Notices of Appeal in relation to proceedings that are presently part-heard before Guest J and are resuming, as I understand it, sometime in August of this year.  The three proposed notices of appeal concern three different aspects of the proceedings. 

2. The first application, which has only appeared by letter of 19 July 2007, seeks to appeal a ruling made on 26 March 2007.  The ruling is said in the proposed Notice of Appeal:

   "Strike out father's most paragraphs in two affidavits". 

3. The grounds given are:

   ·    "The judge has not considered the best interests of the child"; and

   ·    "The affidavit contained material specifically outlined contrary to the general description given by the judge." 

4. As best as I can understand the complaint, the evidence‑in‑chief that was sought to be relied upon at the hearing by the father has been severely curtailed by rulings made by the trial judge as to the admissibility of the material.

5. No cogent reason has been advanced by the applicant as to why, if he had any rights in relation to appealing those rulings, those rights were not properly exercised within the time prescribed by the rules, namely 28 days after the ruling. 

6. I am cautious about suggesting that he actually had any rights at that time for two reasons.  Firstly the correct method of challenging the rulings may require the father to await the pronouncement of the substantive orders.  Also, there is an order of Morgan J made on 25 July 2005 declaring the applicant to be a vexatious litigant and restraining him from filing any further applications in the proceedings without first obtaining permission from a judge of the Family Court of Australia at Melbourne so to do.  Whether the effect of that order is to restrain him from filing notices of appeal or making applications to extend time for appeal is a matter not argued before me.  I will assume that for the purposes of today he does not require leave under Morgan J's order but can come here as of right.

7. That having been said, it seems to me that if the father ultimately has a genuine grievance in relation to the material that was struck out by Guest J then at the conclusion of the principal proceedings if he is aggrieved by the orders made and wishes to appeal and can do so as of right, or with leave, then amongst his grounds of appeal he could complain that the judge wrongly excluded the evidence that he sought to lead.  The appropriate time for dealing with that issue would be the hearing of the principal appeal and not on a piecemeal basis throughout the course of the proceedings whenever he felt aggrieved by any ruling he perceived as adverse to him. 

8. In any event, the application is now two months out of time and there is no basis upon which, in my view, the dictates of justice would make it appropriate to grant that application. 

9. The second proposed appeal relates to the refusal of the trial judge on 22 March 2007 to accede to an application by the husband that he orally disqualify himself from further hearing the proceedings.  On that day Guest J delivered an extempore judgment.  No attempt was made to appeal that ruling until late in the evening of 15 June 2007, some three months later, when an attempt was made to file by way of facsimile a Notice of Appeal against the order of 26 March that the trial judge failed to disqualify himself.

10. The Family Law Act1975 (Cth) (“the Act”) provides in s 94(1AA) that:

    An appeal lies to a Full Court of the Family Court from a decree or decision of a judge exercising original or appellate jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.

11. The time for such an appeal as of right expired 28 days after the order being made.  No cogent explanation has been put forward as to why it is that the husband did not appeal within time.  The husband is able, if he remains aggrieved by subsequent proceedings before Guest J, to renew his application before Guest J if there are new grounds for so doing.  Once again he is able, if he is ultimately aggrieved by the final results of his trial before Guest J, to include amongst his proposed grounds of appeal a ground that Guest J erred in failing to disqualify himself from hearing the proceedings.  There is no basis put forward upon which it would be appropriate for me to now extend the time to deal with the ruling that was made on 26 March 2007.

12. The final matter is a little bit more difficult in that on 18 May 2007 in the course of the proceedings Guest J made an order that:

    Both the husband and the wife do attend upon a psychiatrist nominated by the independent children's lawyer for preparation of a psychiatric assessment and report, and that each the husband and the wife do abide by the directions of the independent children's lawyer and appointed psychiatrist in relation to preparation of that report.

13. The time for appealing against that order, subject again to the potential restrictions placed on the husband by the existence of Morgan J's order, would have expired at the close of business on 15 June 2007.  It is apparent that the father acting for himself endeavoured to send a proposed Notice of Appeal by way of facsimile to the Family Court of Australia shortly before 5 pm on 15 June 2007, which was a Friday. 

14. The attempts to get through to the fax number dialled by the father were unsuccessful and when he went to check the number he was dialling he realised that he had been dialling the wrong number, and he then endeavoured to dial the correct number, namely the number of the Melbourne Registry and was only able to reach the Melbourne fax number at some time after 5 pm on 15 June, by which time the time for filing of the appeal had expired in that the Registry was no longer open for business. 

15. Immediately the following Monday he endeavoured to file a hardcopy of the proposed Notice of Appeal at the Dandenong Registry of the Family Court of Australia but that is not the appropriate filing registry.  Eventually he found his way to the Melbourne Registry on 21 June 2007 and there was told he was too late and he would need to file an application for time to be extended.  He has filed that application and it is that application which is before me today.

16. The principle that I need to give consideration to is to avoid injustice between the parties I need to consider amongst other things the question of delay.  In a sense the delay is the minimum possible time, namely, the first day the Registry was open after the time expired an attempt was made to file the document after unsuccessful attempts had been made to file it on the last possible moment within time.  That is one sense of the delay.  The other sense of the delay is of course that the order had been made in the middle of May and the entire period of time within which, subject again to Morgan J's order, an appeal could have been lodged within time was simply allowed to run with no explanation before me as to why that time was not utilised to file the document.

17. Perhaps more significantly I need to be persuaded that there is something to be dealt with, argued about on the appeal and I need to balance that against the effect that an appeal may have on delaying part-heard litigation that has already been extended through an inordinate period of time since it commenced.  I need to pay attention to the desirability of some finality in litigation and allow the proceedings to run a normal course without too many hurdles being placed in their way.  Any complaints, ultimately, about process and the unfairness thereof can be dealt with on an appeal after the substantive proceedings have been completed.

18. When I look at the order sought in the proposed Notice of Appeal I am left wondering what the complaint is about.  Guest J himself raised in his reasons for judgment issues of concern about jurisdiction but they are not issues that are taken up in the Notice of Appeal.  The order required both the husband and the wife to attend upon the psychiatrist for psychiatric assessment.  Guest J expressed the view that from his observations of what was happening in the running of the case it was necessary that an assessment of the parties be made available to him.  He also made comment that if either party failed to comply with the order he might be able to draw adverse inferences against them without otherwise seeking to require the order to be complied with.  That is a matter ultimately that Guest J will have to give attention to if the father, or the mother for that matter, does not comply with the order.

19. The order sought by the father in his Notice of Appeal does not challenge the making of the order vis-a-vis the wife but seeks to enlarge upon it.  He seeks the following order in the proposed notice of appeal:

    1.      That the orders of 18/5/2007 [be] set aside;

    That the Mother attend to Psychiatric assessment;

    That all subpoenaed documents and all affidavits and court documents [be] forwarded to the Psychiatric assessor;

    That all costs as funded by Legal Aid, or beared [sic] on the mother [sic] part.

    I have a significant degree of difficulty in understanding precisely what is sought by the last aspect of the proposed Notice of Appeal. 

20. None of the proposed grounds of appeal challenge the power of the judge to make the orders sought.  They simply seek to agitate that for the mother to be properly assessed the assessor will need to have adequate material placed before him. 

21. Ultimately, the manner in which the psychiatric assessor assesses the mother is a matter for the psychiatrist.  It will be open to the husband to challenge the psychiatric assessment by asking the psychiatrist what matters he took into account and then endeavouring to put to him other matters which the father says ought to have been taken into account if the psychiatrist has ignored them.  It will then be a matter then for the trial judge to rule upon each of those matters and their relevance as an appropriate attack upon the witness.

22. There does not appear to me to be any rational prospect of success in relation to the appeal on the basis of the grounds that are sought to be argued, and as such that militates against my granting the leave to appeal out of time.

23. In those circumstances it seems to me that the justice of the situation can best be attended to by the father awaiting the outcome of the substantive proceedings before challenging the procedural aspects of it, and that further leave to appeal out of time at this stage would be quite inappropriate. 

24. In the circumstances the application filed 21 June 2007 is dismissed and insofar as the same can be seen as an application, the oral application to file a Notice of Appeal against the striking out of portions of the husband's affidavit on 26 March 2007 is also dismissed.

I certify that the preceding Twenty Four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  28 August 2007