Rand & Rand

Rand & Rand involved an appeal in family law, with the appellant seeking reinstatement of their appeal which had been deemed abandoned. The abandonment arose from the appellant's failure to file a draft appeal index within the time required by rule 22.13 of the Family Law Rules 2004 (Cth). The respondent opposed the application for reinstatement, contending that the appellant's delay was inexcusable and that allowing the reinstatement would prejudice their rights. The court was required to consider whether the interests of justice required that the appeal be reinstated despite the procedural default.

The court considered the circumstances surrounding the delay and the reasons provided by the appellant for the non-compliance. It found that while the procedural default was significant, the appellant had provided satisfactory explanations for the delay and had acted promptly once made aware of the requirement to file the draft appeal index. The court was also mindful of the potential prejudice to the respondent, but concluded that the interests of justice in this instance favoured reinstatement of the appeal. The court found that the appellant's explanation was plausible and that the delay did not result from any lack of diligence on their part.

Consequently, the court ordered the reinstatement of the Notice of Appeal filed on 3 December 2013. The appellant was required to file and serve a draft appeal index within fourteen days of the date of the judgment. No order was made as to costs. This decision underscores the court's willingness to consider applications for reinstatement where the interests of justice so require, provided that the delay can be adequately explained and the respondent's rights are not unduly prejudiced.