Reynolds & Featherstone

[2021] FamCAFC 105

FAMILY COURT OF AUSTRALIA

Reynolds & Featherstone [2021] FamCAFC 105

Appeal from:

Featherstone & Reynolds [2019] FCCA 3655

Appeal number(s):

SOA 30 of 2021

File number(s):

MLC 2003 of 2019

Judgment of:

STRICKLAND J

Date of judgment:

24 June 2021

Catchwords:

FAMILY LAW – APPEAL – Extension of time – Where the applicant seeks to extend the time in which to file Notice of Appeal – Where no satisfactory reason proffered for failure to file Notice of Appeal – Where no explanation of 14 month delay in filing application seeking an extension of time – Where grounds of appeal have no chance of success – Where prejudice to the respondent if the application were granted – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:

Gallo v Dawson (1990) 93 ALR 479

Division:

Appeal Division

Number of paragraphs:

15

Date of hearing:

24 June 2021

Place:

Adelaide (parties appeared via Microsoft Teams)

The Applicant:

Litigant in person

The Respondent:

Litigant in person

ORDERS

SOA 30 of 2021
MLC 2003 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR REYNOLDS

Applicant

AND:

MS FEATHERSTONE

Respondent

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 18 May 2021 be 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Featherstone has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

1. Before the Court today is an Application in an Appeal filed by the applicant on 18 May 2021.  In that Application, the applicant seeks three orders.  In relation to order 1, although it does not say so in so many words, I treat that as an Application to extend the time to file a Notice of Appeal against orders made by a judge of the Federal Circuit Court of Australia on 13 December 2019.  The orders sought in paragraphs 2 and 3 are not orders that can be sought in this Application.  They relate to the result of the orders made by the primary judge, and more particularly, the complaints that the applicant has about those orders.

2. In summary then, the Application before the Court is an Application seeking an extension of time to file a Notice of Appeal against the orders made on 13 December 2019.  Those orders were, firstly, a declaration that the applicant and the respondent were in a de facto relationship.  Secondly, an order granting leave to the applicant, who is the respondent to the Application before the Court today, to apply for property settlement orders.  And, thirdly, there is a suite of orders by way of property settlement.  Now, all of those orders are sought to be appealed against, in the event that time is extended.

3. The Application is supported by an affidavit, also filed on 18 May 2021.  And as is required, there is also before the Court a draft Notice of Appeal, which is the Notice of Appeal that the applicant would wish to proceed on, in the event that time is extended. 

4. The Application is opposed by the respondent. 

5. The principles to be applied in relation to such an application are well-settled, and for example, there is the oft-cited quote from Justice McHugh in the High Court decision of Gallo v Dawson [1990] 93 ALR 479. His Honour said this at page 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.

6. In summary, what his Honour there says is, firstly, that the Court has a discretion to extend time under the Rules of Court, and that discretion is given for the sole purpose of enabling the Court to do justice between the parties.  Then, in looking at where the justice of the matter might lie, there are a number of factors to be considered.  First, the reasons for the failure to file the Notice of Appeal within the time specified in the Rules, and in this instance, that time is 28 days following the making of the orders.  Secondly, the merits of the proposed appeal.  Thirdly, the prejudice to the parties, depending upon the result of the application. 

7. There are other factors that are mentioned by his Honour, such as the history of the proceedings, the conduct of the parties, and the nature of the litigation, but for my part, I do not need to address those factors and I propose to limit my consideration of this Application to the three principal factors that I have just mentioned.

8. Thus, the first issue to be considered is the reasons for the failure to file a Notice of Appeal within the requisite time period, namely 28 days following the making of the orders.  The first thing to note about that, is that the orders were made on 13 December 2019, yet it was not until 18 May 2021 that the Application that is before the Court today was filed by the applicant.  That lengthy period is also relevant, but in terms of the reasons proffered by the applicant for the failure to file a Notice of Appeal within time, it is difficult to discern the same from the affidavit of the applicant, and he has sought to explain that in his oral submission today.

9. In short, what he says is that he was not able to access the Commonwealth Portal to file the documents, because the ability to access the Portal was held by his ex-partner and she would not provide him with the login details.  However, as I have explained to the applicant today, that cannot be a reason for failing to file a Notice of Appeal within time, given that the Portal is not available for the purpose of filing appeal documents.  But even if it was, I am not satisfied that the reason proffered is a satisfactory reason for the failure to file the Notice of Appeal within time.  And my concern about that is coupled with the lengthy delay between the end of the 28 day period and the actual filing of the Application before the Court today.  It is well over 12 months and approaching 14 months and there is no explanation proffered for that delay. 

10. So, moving then to the second primary factor, namely the merits of the appeal.  In that regard, there are two grounds of appeal in the proposed Notice of Appeal, namely:

    1.On the grounds [the respondent] was reciving rent assistance to rent a room in my home that she states to Centerlink and to the Magistrait Court that she was not in a relationship, but to the Federal Court [the respondent] is stating she was in a relationship and did not have to prove it.

    2.On [the respondent’s] supper payout she only showed the Judge copies and clearly you can see the names, dates, and signiture of manager were covered the Judge asked if [the respondent] had original documents with all names and dates, [the respondent] said Yes, but did not prove this to the Judge, and he did not follow this up on what I was saying and Lets it go straight through, Just Like CenterLink.

    (As per the original)

11. As can be seen, it is quite difficult to discern precisely what the complaints are from the grounds of appeal, but doing the best that I can, neither of the two grounds of appeal demonstrate or reveal any appealable error by the primary judge.  For example, to allege that the respondent has lied to the Court does not sound in error by the judge.  And that is what an appeal is about, namely whether there is appealable error by the judge.  In this instance, having carefully read his Honour’s reasons for judgment, I can discern no such appealable error.

12. In my view, not only is there no reasonable chance of success if the appeal was allowed to proceed, there is no chance of success.  And thus, it would be absolutely pointless to allow the appeal to proceed, because the minute it did, it would then be subject to immediate dismissal.  It is inappropriate to waste everyone’s time and resources in having an unmeritorious appeal proceed through the system and impact upon other deserving cases that may be waiting for hearing.

13. Turning finally to the third principal factor, namely the prejudice to the parties, depending upon the result.  Clearly, there is prejudice either way and that is quite common in these matters.  If the Application is dismissed, the prejudice to the applicant is that he would not be able to pursue an appeal.  On the other hand, if the Application was permitted, there would be prejudice to the respondent, because she would have to deal with the appeal, whereas, as the matter currently stands, there is no appeal on foot and she can proceed to enjoy the fruits of the orders made by the primary judge.

14. My task is to balance that prejudice and, in my view, the prejudice that would be suffered by the respondent if the Application is granted, is far greater than any prejudice that would be suffered by the applicant if the Application is dismissed.  I say that, primarily, because there is no merit in this proposed appeal.

15. In conclusion, as I have indicated, the authorities identify that the task of this Court is to consider where the justice of the case lies and, specifically, whether there would be injustice to the applicant if the Rules of the Court were strictly applied.  Here, consideration of the relevant factors demonstrates that the justice of the case requires the Application to be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strickland.

Associate:

Dated:       2 July 2021