Pyke and Aramantha - [2011] FamCAFC 197

FAMILY COURT OF AUSTRALIA

PYKE & ARAMANTHA

[2011] FamCAFC 197

FAMILY LAW – APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where the applicant sought to file a Notice of Appeal five days out of time – where there is an adequate explanation for the delay – where there are arguable grounds of appeal – consideration of the consequences for the parties if the application is granted or refused – extension of time granted – costs order.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004(Cth) rr 22.02, 22.03 & 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Pyke

RESPONDENT:

Ms Aramantha

FILE NUMBER:

HBC

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

27 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

27 September 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 May 2011

LOWER COURT MNC:

[2011] FMCAfam 482

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trezise

SOLICITOR FOR THE APPLICANT:

Dobson Mitchell & Allport

COUNSEL FOR THE RESPONDENT:

Ms Burrows-Cheng

SOLICITOR FOR THE RESPONDENT:

Murdoch Clarke

Orders

The time for the father to file and serve a Notice of Appeal against the orders made by Federal Magistrate Baker on 26 May 2011 be extended to close of business on Tuesday 4 October 2011.
The father pay the mother’s costs of and incidental to the Application in an Appeal filed on 24 August 2011, such costs to be assessed in default of agreement.
The Application in an Appeal filed on 24 August 2011 be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Pyke & Aramantha is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 61 of 2011
File Number: HBC 87 of 2008

Mr Pyke

Applicant

And

Ms Aramantha

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

I have before me an Application in an Appeal filed by the father on 24 August 2011 seeking an extension of time to file a Notice of Appeal against the orders made by Federal Magistrate Baker on 26 May 2011. That application is supported by an affidavit of the father filed on the same date.
The application is opposed by the mother. The mother filed a Response and an affidavit in support on 16 September 2011 in which she seeks that the application be dismissed.

The relevant statute law and rules

Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(1) of the Family Law Act 1975 (Cth) provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

Applicable principles

The law in relation to applications for extension of time is well settled. The leading case is Gallo v Dawson (1990) 93 ALR 479.where McHugh J said this (at 480):
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.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary what those cases tell me, and in particular Gallo v Dawson, is that there are a number of factors which need to be addressed when considering an application for an extension of time, and they include whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. However, the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Addressing the relevant factors in this case, there are two particular matters that have been highlighted by counsel in their respective submissions and they are whether there has been an adequate explanation of the delay and the issue of the merits of the appeal. I observe at this point that this is a case where leave to appeal is required, but because the basis of seeking leave is the proposed grounds of appeal it is appropriate to consider the merits of those grounds.
I propose to concentrate on those two factors. Nothing has been raised by either counsel in relation to for example the history of the proceedings or the nature of the litigation.
In terms of the delay, what is not in dispute is that the Federal Magistrate delivered her reasons for judgment on 26 May 2011 and the 28 days would therefore have expired on 23 June 2011. What I am told in the affidavit in support of the application is that on 30 May 2011 there was a request made for the transcript, that transcript was received on 14 June 2011 and was forwarded by the father’s solicitor to the father on that date. Then on 22 June 2011 the father instructed his solicitor to prepare and file a Notice of Appeal in relation to the orders made on 26 May 2011. That was attended to by the father’s solicitor and a Notice of Appeal was prepared and was forwarded to the Regional Appeals Registrar via the DX postal facility. It was anticipated that the Registry would receive the letter and the Notice of Appeal on the next day namely, 23 June 2011 and thus be filed within the 28 day time period. However, for some reason which has still not been explained, the Registry did not receive the Notice of Appeal and the covering letter until 28 June 2011. Thus, the appeal was out of time.
The mother submits that there has not been an adequate explanation of the delay between the 14 June 2011 and the 22 June 2011 namely, the period of time in which the father had the transcript and then gave instructions to appeal.
In the affidavit of the mother filed in support of the Response the delay in filing the application that is before me today was also raised. The father’s solicitor became aware that the appeal was out of time on 30 May 2011 yet the application seeking an extension of time was only filed on 24 August 2011. However, I am told today by Mrs Burrows-Cheng that it is not suggested that there is no adequate explanation for that delay. In the affidavit in support of the application Mr Tresize does provide an explanation for that delay, and I assume that that explanation has been accepted and there is no issue about it. Thus, the issue of delay relates only to that period 14 June to 22 June 2011. What is put on behalf of the mother is that there could have been an affidavit filed by the Applicant detailing for example what happened in that period of time, but this was not done and the Court is none the wiser as to what occurred in that time.
For my part though that is a period of eight days. It is not unreasonable to proceed on the basis that that is a reasonable time for a litigant to take in the transcript of proceedings and presumably the advice of his solicitor as to whether to appeal or not and then determine whether he would give instructions to appeal. Given that, I consider there has been an adequate explanation of the delay in not filing the Notice of Appeal within time.
Turning then to the merits of the case. All that I have in relation to that issue are the reasons for judgment delivered by the Federal Magistrate and the Notice of Appeal which was prepared but unable to be filed within time.
There are two proposed grounds of appeal. First, that the Federal Magistrate made errors of fact in that certain findings were not based upon the evidence and secondly, the Federal Magistrate denied the appellant procedural fairness by making findings about aspects of the appellant’s expenditure. In a nutshell what Mr Tresize put to me is that the Federal Magistrate should have given the father the opportunity to address the concerns that the Federal Magistrate seems to have had about the father’s expenditure but that was not done and those concerns only became apparent upon reading her Honour’s reasons for judgment.
On behalf of the mother it is put that the Federal Magistrate has made no error and there are therefore no prospects of success on appeal. The argument is put in this way. The financial information which was before the Federal Magistrate was put before the Federal Magistrate by the father. The father had ample opportunity to either file a further affidavit beyond the one that he did, or give further oral evidence beyond the oral evidence that he did give, to explain his financial expenditure as set out in those documents. Thus he had the opportunity to adduce that further evidence, but he did not, and it was quite open to the Federal Magistrate to make implications from the evidence that the father himself presented. That implication being that the father, despite the expenditure which he claimed, was able to afford to meet the school expenses which were the subject of the application before her Honour.
In support of the merits of the appeal Mr Tresize put in response to questions from me that there was no cross-examination specifically of the father in relation to the majority of his expenditure and nor were there any submissions made in final addresses specifically directed to individual items of expenditure save and except in relation to two specific areas namely, a tax refund and the purchase of a tractor by the father.
The difficulty that I have in addressing this issue is that I only have limited information before me. In particular I do not have the benefit of the transcript, and frankly, it is impossible, and would be improper for me, to express a concluded view of the prospects of success of the appeal. I do have the benefit of the reasons for judgment of the Federal Magistrate and the Notice of Appeal setting out the grounds of appeal but to repeat, I do not have the complete information that, for example, a Full Court hearing the appeal would have. Thus, I am limited in what I can say and what I can find in relation to the merits of the appeal.
I approach these matters in a similar vein to matters where there are applications for summary dismissal because there are no reasonable prospects of success. The law in relation to such matters is in effect that where there is even the minutest prospect of success then summary dismissal should not apply. Relating that then to the matter before me, although I am concerned about whether there are realistic prospects of success, in my view, there is sufficient there to allow this matter to go forward. I cannot say that there is no prospect of success.
Turning next to the consequences in the event of either the refusal or the grant of the application.
If the application is refused there are serious consequences for the father in that there is no appeal from such a decision. There is though the ability to make an application for special leave to appeal to the High Court but that in itself is a difficult application to make and the question would be whether it would be warranted or even successful in a case like this. Thus, to repeat there are serious consequences for the father if I refuse the application.
In relation to the mother, if I grant the application there are obvious consequences for her. As Mrs Burrows-Cheng has suggested a prejudice to the mother is that this matter has still not been finalised. There are other consequences though, namely, if the appeal is to proceed the mother will then have to address that appeal, instruct her legal advisers to respond appropriately to it, and that will involve time and money. Thus there will be financial consequences as well.
That factor and the issues relating to delay and the merits of the appeal all lead to the overarching principle which is of course where the justice of the case lies. In that regard it seems to me that most significant factor in favour of granting the application is that there is an adequate explanation of the delay. There is also an issue about the merits of the appeal. As I say it is difficult for me to be definitive about the chances of success but where there is even the most miniscule chance of success the matter should be allowed to proceed.
In my view the justice of the case lies in granting the application and that is what I propose to do.
I should also say that I am not persuaded that any hardship or prejudice to the mother cannot be addressed by for example an order for costs.
Mrs Burrows-Chen makes an application for costs on behalf of the mother. Mr Tresize does not oppose that application. I therefore propose to make an order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 September 2011.

Associate:

Date: 30 September 2011