Rand & Rand (Application to Extend Time)
[2008] FamCAFC 146
•2 October 2008
FAMILY COURT OF AUSTRALIA
| RAND & RAND (APPLICATION TO EXTEND TIME) | [2008] FamCAFC 146 |
| FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL – CONTEMPT – Where applicant husband found guilty of contempt and sentenced to a term of imprisonment – Where appeal against the sentence imposed following the finding of contempt was filed within time – Where no explanation for delay in filing appeal against contempt provided – Where appeal against the finding of contempt would be consolidated with the appeal against the sentence imposed – Where no real prejudice to wife – Where proposed grounds not entirely hopeless – Where personal liberty at stake – Application granted. FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – Where applicant husband sought leave to the extent that it was necessary on the basis the contempt order may be regarded as interlocutory – Not necessary to decide this issue as this could be decided by the Full Court together with the hearing of the appeal on sentence. FAMILY LAW - COSTS – Where Court granted an indulgence to the husband – Husband to pay the wife’s costs of the application. |
| Family Law Act 1975 (Cth) – s 4(1), s 94, s 112AP, Family Law Rules 2004 (Cth) – r 21.08, Ch 22, r 22.02, r 22.03, r 22.12, r 22.42 Criminal Appeal Act 1912 (NSW) – s 10 |
| Gallo & Dawson (1990) 93 ALR 479 McMahon & McMahon (1976) FLC 90-038 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Rand |
| RESPONDENT: | Ms Rand |
| FILE NUMBER: | EA | 76 | of | 2008 |
| APPEAL NUMBER: | SYF | 2153 | of | 2001 |
DATE DELIVERED: | 2 October 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 1 October 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 June 2007 |
| LOWER COURT MNC: | [2007] FamCA 1674 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mater with Mr Fox |
| SOLICITOR FOR THE APPLICANT: | Armstrong Legal |
| SOLICITOR FOR THE RESPONDENT: | Adrian Twigg & Co |
Orders
That the time to file a Notice of Appeal against orders of the Honourable Justice Collier made 25 June 2007 be extended until 4.00 pm on 17 October 2008.
That the appellant husband file and serve a pre-argument statement on or before 4.00 pm on 17 October 2008.
That the appellant husband file and serve a draft appeal index on or before 4.00 pm on 17 October 2008.
That the Appeal Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal such procedural hearing to be held at a time and date notified to the parties by the Appeal Registrar.
Liberty to either party to relist the matter before the Honourable Justice Boland (or if she is not reasonable available another member of the Appeal Division) on 7 days notice in writing to the other party and to the Appeal Registrar.
That the husband pay the wife’s costs of this Application as agreed and failing agreement as assessed.
IT IS NOTED that this appeal is to be heard at the same time as Appeal No EA 38 of 2008.
IT IS NOTED that publication of this judgment under the pseudonym Rand & Rand (Application to extend time) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SYF 2153 of 2001
File Number: EA 76 of 2008
| Mr Rand |
Applicant
And
| Ms Rand |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before me is an Application in a Case filed on 7 July 2008 by Mr Rand, (“the husband”) in which he seeks an extension of time in which to file an appeal against orders made by Collier J on 25 June 2007 following the hearing of contempt proceedings instituted by Ms Sottern (“the wife”). In his Application the husband names the wife as Ms Rand. The husband seeks the following orders:
1.That the Applicant be granted leave (if required) and/or extension of time (if required) to Appeal against the findings contained in Order (1) made by His Honour Judge Collier on 25 June 2007 and/or Orders made by His Honour Judge Collier on 25 June 2007 and Reasons for Judgement delivered on 19 July 2007.
2.That the Applicant be granted leave (if required) and/or extension of time (if required) to Appeal against the findings contained in Order (1) made by His Honour Judge Collier on 25 June 2007 and that the said finding be overruled and dismissed forthwith.
3.That the Applicant be granted leave and/or extension of time (if required) to Appeal the Orders of His Honour Judge Collier dated 25 June 2007 and Reasons for Judgement delivered on 19 July 2007.
4.That the Applicant be granted leave (if required) and/or extension of time (if required) to Appeal against Orders of His Honour Judge Collier dated 25 June 2007 and Reasons for Judgment delivered 19 July 2007and that the said Orders be dismissed forthwith.
5.Such further Orders as this Honourable Court deems fit and appropriate in the circumstances.
6.Costs of and incidental to this Application.
The Application is opposed by the wife.
The husband’s Application arises in circumstances where the trial Judge heard an application filed by the wife on 1 February 2007 in which she sought the husband be dealt with for contempt under s 112AP of the Family Law Act 1975 (Cth) (“the Act”) for breach of orders made by Rowlands J on 10 January 2006 at the conclusion of defended property proceedings between the husband and wife and third parties, and for breach of a bond imposed following contravention proceedings instituted by the wife. The contravention proceedings culminated in Judicial Registrar Loughnan making orders on 24 October 2006 which required the husband to enter into a bond, subject to various conditions, in the sum of $20,000.00.
Subsequent to the trial Judge finding the two contempt charges proved, his Honour ordered that the parties approach the Listing Director for a date to deal “with the sentencing aspect of this matter”.
On 28 March 2008 the trial Judge sentenced the husband to an indefinite term of imprisonment in respect of the breach of the orders of Rowlands J of 10 January 2006, and in respect of breach of the orders of 24 October 2006, the husband was sentenced forthwith to imprisonment for a period of four months. The two terms of imprisonment imposed by the trial Judge were ordered to be served concurrently.
On 3 April 2008 the husband filed an appeal (EA 38/2008) in which he sought to appeal against the sentencing orders made on 28 March 2008, although it is clear from the Notice of Appeal as filed that it also purports to deal with aspects of the orders made on 25 June 2007.
On 25 June 2008 the Appeal Registrar conducted a procedural hearing in respect of Appeal No EA 38/2008 (“the sentencing appeal”). That day the Appeal Registrar made the following orders:
1.That the husband pay the wife’s costs of today, for a period of 1.5 hours at Family Law Act scale, within 28 days.
2.That the Husband file any application to extend time to appeal the orders of the Honourable Justice Collier dated 25 June 2007 within 14 days.
3.That the procedural hearing in EA38 of 2008 be adjourned to a date to be advised following delivery of judgment in any application filed pursuant to order 2 above.
4.That, in the event the husband does not comply with order 2 above, the appeal in EA38 of 2008 be re-listed before the appeal registrar at a date to be advised by the appeal registrar.
Evidence
The husband in support of this Application relies on an affidavit of his former solicitor Mario Piperides filed 7 July 2008 (“Mr Piperides”). Mr Piperides filed a Notice of Ceasing to Act on behalf of the husband on 23 July 2008 and a Notice of Address for Service was filed on behalf of the husband by Armstrong Legal on 24 July 2008.
In his affidavit Mr Piperides deposes to assuming conduct of the matter on behalf of the husband during mid-March 2008 “or thereabouts” (paragraph 1). After referring to the orders of the Appeal Registrar which I have already set out above, Mr Piperides referred to the orders made on 25 June 2007 and deposed at paragraph 5 “His Honour Judge [sic] Collier made no specific Order (in Order 1) against the Applicant/Appellant Husband”. He thereafter noted that the sentencing hearing took place on 12 November 2007 and that the husband was sentenced on 28 March 2008.
Mr Piperides deposed at paragraph 8 of his affidavit:
I verily believe and understand and am instructed that on advice the Applicant/Appellant Husband did not seek to Appeal against the finding and Order (1) made 25 June 2007 until he was sentenced by the Court. He was sentenced by the Honourable Court on 28 March 2008.
Later at paragraphs 10 and 11 he deposed:
I am instructed and verily believe and understand that it has at all material times been the specific intent of the Applicant/Appellant Husband to Appeal against the Court’s finding and/or Order (1) made on 25 June 2007 as well as the sentence imposed upon him.
I verily believe and understand that it was not considered appropriate to Appeal or challenge the findings made in Order (1) of Orders made 25 June 2007 until the Applicant/Appellant Husband was ultimately sentenced. The sentencing took place on 28 March 2008.
Mr Twigg, who appeared on behalf of the wife, pointed out, correctly, that paragraphs 8, 10 and 11 contain inadmissible hearsay material, and that the husband failed to adduce any evidence to explain his delay in bringing this Application.
Annexed to Mr Piperides’ affidavit is a copy of proposed grounds of appeal. Those grounds are identical to the grounds in the sentencing appeal.
Relevant statute law and rules
Section 94 of the Act provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:
An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Sections 94(2D), (2E) and (2F) are also relevant. They provide:
(2D) Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
……
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
(2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).
Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made. Rule 22.12 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.
Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order.
Relevant legal principles – application for leave to appeal out of time
The relevant principles to be applied in deciding whether to extend time for lodging an appeal or an application for leave to appeal are set out in Gallo & Dawson reported in (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties for the grant or refusal of the leave.
The principles have been referred to in a number of cases in this Court including McMahon & McMahon reported in (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at page 80,017 and Gallo & Dawson (supra) at 480 to 481 where McHugh J said:
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 the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
Mr Mater, counsel for the husband, referred to the dcision of the Full Court in Tormsen and, in particular, at 80,017 where the Full Court said:
… The fundamental issue in application for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties: Hughesv.National Trustee Executors & Agency Co. of Australasia Ltd [1978] VR 257 at 262 per McInerney J. cited with approval in Gallo v. Dawson (1990) 93 ALR 479 at 480 per McHugh J. In that connection the Court must weigh the right which the respondent to the application prima facie has to attain the benefit of the judgment: Vilenius v. Heinegar (1962) 36 ALJR 200 at 201, and the desirability that there be finality of litigation: Ratnam v. Cumarasamy [1964] 3 All ER 933 at 935. A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Shepperdson v. Lewis [1966] VR 418 at 421, 422 per O'Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation. …
Discussion
I propose to consider the merits of this application by reference to the criteria enunciated by McHugh J in Gallo & Dawson. In so doing I will also consider whether or not it is necessary for the Court to grant an extension of time in respect of the orders of 25 June 2007.
In so doing I take into account the paucity of the admissible material filed on the husband’s behalf.
(a) History of the proceedings
Given the obvious nexus between this Application and the sentencing appeal, and the identical nature of the grounds of appeal in the sentencing appeal and those proposed if this application, if the necessary leave is granted, I have had reference to the Pre-Argument Summary filed on behalf of the husband. The parties raised no objection to this course. Some background material is contained in that statement, including the following:
3.The Appellant/Husband is aged 47 years approximately and the Respondent/Wife approximately 44 years. The parties married [in July 1984] and separated during October 2000 or thereabouts. There are three (3) children of the marriage.
4.On 16 January 2001 the Respondent/Wife brought an application for property orders and hearing of such application commenced on 9 September 2002.
5.At that time a significant issue arose regarding whether or not the Appellant/Husband had an interest in a patent for a process known as the “[N Technology]”. In essence, the [N Technology] was intended to produce [usable material from waste material]. The technology had been purchased by a company controlled by the Appellant/Husband and the Appellant/Husband’s evidence was to the effect that he had transferred his rights, title and interest in the said technology to his uncle, [Michael Rand].
6.An issue at the hearing was whether the Appellant/Husband had control of this particular asset and if so, what value should be attributed to it.
7.The matter was complicated in that on 28 November 2002 the Appellant/Husband became bankrupt. The proceedings which had commenced before the Trial Judge were adjourned and further parties were added namely the Appellant/Husband’s Trustee in Bankruptcy, members of the Appellant/Husband’s family, business associates of the Appellant/Husband, the liquidator of one of the Appellant/Husband’s companies and companies associated with members of the [Rand] family.
8.After the joinder of the additional numerous parties the hearing was adjourned on 5 December 2002. The hearing of the matter recommenced after the Appellant/Husband had been discharged from his bankruptcy during November 2005. The hearing recommenced on 16 November 2005 and evidence concluded on 25 November 2005. The trial judge, His Honour Mr Justice Rowlands delivered his judgment on 10 January 2006.
9.Appeals were lodged in this Honourable Court by the Appellant/Husband, the Appellant/Husband’s father and mother and related entities and a company liquidator. The Appellant/Husband’s Appeal was stayed pending lodgement of a security for costs. That Appeal did not proceed. Judgment of the Full Court in respect to Appeal by Co-Appellants was delivered on 29 April 2008, inter alia, upholding the Appeal Orders 1, 5, 6 and 9 were allowed [sic]. The Full Court set aside Orders relating to the directors' loan accounts in respect of [Rand Enterprises Pty Limited (in liquidation)] and that the Application relating to such Orders be remitted for rehearing and that the Respondent/Wife’s application for extension of time to Cross Appeal the Orders of Rowlands J of 10 January 2006 be extended.
10.The Order of Rowlands J of 10 January 2006 that is relevant to the current Appeal lodged by the Appellant/Husband are Orders no. 3 and 11:
“3.And declared that the Wife (subject to Order 11 hereof) is entitled to one half of any profits arising out of the patents or other intellectual property relating to the conversion of waste material to building products and further order that the Husband account and (subject to Order 11 hereof) pay to the Wife one half of any profits received in respect of the intellectual property of the various companies known as [N Pty Limited], [N Corporation], [B Pty Limited] and related entities.
11.That the Wife's entitlement to profits pursuant to Order 3 above in amount to the sum of:
(a) any balance outstanding in respect of the sum of $4,417,406 referred to in the final paragraph of the reasons for judgment of 10 January 2006, plus
(b) any costs ordered in favour of the Wife in respect of these proceedings including their enforcement; plus
(c) interest on sums outstanding referred to in (a) and (b) above, at the rate of interest prescribed by the Family Law Rules or as otherwise ordered.” [original emphasis]
(b) The conduct of the parties
There are several aspects of the conduct of the husband which are of concern and which I find are relevant to the exercise of my discretion. First, the husband has been found to have contravened orders made by Rowlands J and placed on a bond subject to conditions. Further, the trial Judge has found, to the criminal standard of “beyond reasonable doubt”, that the husband has contravened Order 3 of the orders of Rowlands J made 10 January 2006. Further, the husband’s appeal against the final orders of Rowlands J was subject to the husband paying security for costs. The appeal lapsed by reason of the husband’s failure to provide security as ordered.
Each of these matters militates against exercising discretion, if it is necessary to do so, in favour of the husband to extend time to appeal.
(c) The nature of the litigation
The appeal is one in which the husband seeks to challenge the determination of the trial Judge that he was in breach of court orders which involved a flagrant challenge to the authority of the Court pursuant to s 112AP. The effect of the orders made on 25 June 2007 is that the husband will, absent a successful appeal on conviction and/or sentence, be subject to incarceration for at least four months, unless his sentence is earlier discharged by an order of the Court.
Thus, the consequences for the husband if leave is not granted and the appeal upheld are serious and significant, involving the liberty of a person.
(d) Consequence for the parties of the grant or refusal of the application for extension of time
Absent an extension of time the husband will be precluded from challenging his Honour’s findings that he was in breach of Order 3 of the orders of Rowlands J, and in breach of the bond imposed by the Judicial Registrar. Consequently any appeal by him will, prima facie, be limited to a challenge to the sentence imposed by the trial Judge. Given the wide range of discretion available to a trial Judge in imposing sentence, particularly in light of a prior proven contravention, the appeal on sentence alone would appear to have little prospects of success.
(e) The prospects of success of the appeal
Mr Twigg submitted, and I accept as correct, that absent any satisfactory explanation for delay, my focus must be directed to the proposed grounds of appeal.
I have already noted that the proposed grounds of appeal are identical to the grounds relied on in the sentencing appeal. Proposed ground 5 appears to me to lack any proper jurisdictional basis and rather appears to be a claim of negligence against the husband’s former solicitor, which claim would be properly justiciable in civil proceedings, rather than a proper ground of appeal in this Court. Grounds 8 and 9 are referable to the appeal against the sentencing orders made on 28 March 2008.
It is difficult, absent the transcript and documents relied on in the court below, to assess in any realistic way the prospects of success of the appeal.
Mr Mater helpfully provided me with a written chronology of relevant events, and a document entitled “Contentions of the Husband which are intended to be made on appeal if leave (if it is necessary) or extension of time (if it is necessary) is granted”.
It is unnecessary on this application for me to determine whether or not the orders made on 25 June 2007 were interlocutory (and thus require leave to appeal) or final orders, as that aspect of the application can be argued before a Full Court if an extension of time is granted. Further any leave application would be heard at the same time as the sentencing appeal. Thus my focus is on whether an extension of time to appeal (or to seek leave to appeal) should be granted.
Mr Mater’s submissions on the merits of the proposed appeal included the following:
·that Orders 3 and 11 of Rowlands J were ambiguous, and it was well open to the husband to assert he had complied with the orders;
·that the trial Judge was in error in determining the husband had not complied with the orders of Rowlands J;
·that Rowlands J made an error of law in making Order 3 as the husband’s property, including the technology, had vesting in his trustee in bankruptcy and the property did not revert to him on his discharge from bankruptcy;
·that the trial Judge erred in law in dealing with two different breaches of orders in one charge; and
·that issue estoppel had no application to the proceedings before the trial Judge
Whilst it would not be appropriate on the application to assess the proposed grounds in detail, I consider that proposed grounds 1 and 4 could not be said to be entirely hopeless.
(f) Can hardship or injustice to the wife be compensated by an order for costs
I am conscious that the husband’s appeal against the substantive orders was deemed abandoned by reason of the husband’s failure to pay security as ordered. The ordering of security by the Full Court indicates to me that the husband’s capacity to adequately provide costs in the event an extension of time is granted and the appeal argued and subsequently dismissed is poor. This factor also militates against the extension of time to the husband. However, balancing that factor to some degree is the fact that the husband’s appeal against sentence has been filed in the time provided by the rules and the wife should not be involved in any substantial additional costs in responding to an appeal both as to conviction and sentence.
(g) Delay by the husband and explanation for the delay
The explanation for delay by the husband is non existent. However, as I will shortly discuss, I am satisfied that there was some basis for the delay by reason of Mr Maiden of senior counsel’s dialogue with the trial Judge at the time of the sentencing judgment that it was unnecessary to file an appeal until the proceedings had concluded by the trial Judge dealing with the sentencing aspect of the application.
(h) Is an extension of time necessary?
It appears to me that there is considerable doubt as to whether or not an extension of time to appeal is required in this case. The wife’s Application was an application under s 112AP. It is arguable that such an application is not determined by way of final orders until the whole application is disposed of by the imposing of a custodial sentence or fine or both if a contempt is found proved. The procedure to be adopted at the hearing of an application under s 112AP is set out in r 21.08 and requires the Court, under r 21.08(f), “to determine the case”. This supports an argument that it is the final sentencing orders which “determine” the case. However, I also have regard to the definition of decree in s 4(1) of the Family Law Act 1975 (Cth). That definition refers to “an order”. It is clear that the trial Judge did purport to make an order on 25 June 2007 although it is expressed in the copy provided to me in the following terms as a finding:
“ORDERS
1.I find each of the contempts against [Mr Rand] proven.”
It also appears to me that the criminal law authorities in relation to the filing of an all grounds appeal against conviction and sentence could also have relevance on this issue as they involve an analogous process of conviction and sentence. The Criminal Appeal Act 1912 (NSW) in s 10 provides for the method and time for filing an appeal. Section 10(1) of that Act provides as follows:
(1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person’s conviction or sentence:
(a)The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence.
(b)The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice.
I did not have the benefit of argument before me on interpretation of s 10 of the Criminal Appeal Act, or the Criminal Appeal Rules. However, given the provisions of the statute, and applying a purposive interpretation to the section, I discern that either notice of intention to appeal, or an appeal must be filed within the time limits against conviction independently of sentence.
Applying the procedure by way of analogy to the circumstances in this case, it supports the view that it may be necessary, unless orders determining breach, and subsequent sentencing orders are made reasonably contemporaneously, for separate appeals to be filed (and then consolidated) to avoid non compliance with the time limitations for filing an appeal.
It appears to me unnecessary that I determine on this Application whether or not an extension of time is required to challenge his Honour’s findings on conviction as well as sentence as will become apparent from my conclusions, I find time should be extended. On balance, it appears to me an extension of time is required. I am satisfied, in any event, as I will shortly explain, that if an extension of time is necessary that it should be granted in the interests of justice.
Conclusions
Whilst the reasons advanced by the husband for delay are not compelling, the proposed grounds of appeal sought to be relied on by the husband are not entirely lacking in merit. The proposed appeal involves the liberty of the subject. Accordingly, I am satisfied that the prejudice likely to be occasioned to the husband if leave is not granted to extend time to appeal against his Honour’s orders made on 25 June 2007 outweighs any prejudice which would be suffered by the wife. In so finding I am conscious that the husband already has an appeal filed in time in respect of the sentencing orders and costs involved to the wife with the appeals being consolidated will not be significantly increased.
On balance, I am satisfied it is appropriate to exercise my discretion to the extent it may be necessary to do so, to extend time to allow the husband to appeal against Order 1 of the orders made by Collier J on 25 June 2007.
Costs of this application
The Court has granted an indulgence to the husband in extending time. In these circumstances, I am satisfied that the husband should pay the wife’s costs of this Application as agreed and failing agreement as assessed. I note Mr Mater conceded that it was appropriate I make such an order.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 2 October 2008
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