Ritter & Ritter
[2019] FamCAFC 109
•25 June 2019
FAMILY COURT OF AUSTRALIA
| RITTER & RITTER AND ANOR | [2019] FamCAFC 109 |
| FAMILY LAW – APPEAL – APPLICATION FOR AN EXTENSION OF TIME – Where the applicant attempted to file the Notice of Appeal on the last day for filing – Where the applicant was given incorrect information by court staff – Where the appeal registry subsequently rejected the filing of the Notice of Appeal – Where the applicant seeks an order pursuant to s 79A setting aside final orders – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the applicant would suffer an injustice if leave is not granted – Application allowed. |
| Family Law Act 1975 (Cth) s 79 Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Ritter |
| FIRST RESPONDENT: | Ms Ritter |
| SECOND RESPONDENT: | Ms X Ritter |
| FILE NUMBER: | PAC | 3900 | of | 2018 |
| APPEAL NUMBER: | EA | 51 | of | 2019 |
| DATE DELIVERED: | 25 June 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 25 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 April 2019 |
| LOWER COURT MNC: | [2019] FCCA 782 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Lynch of Beswick Lynch Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | Ms Everett |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Hawach of McAuley Hawach Lawyers |
Orders
The time in which the applicant may file a Notice of Appeal against the orders of Judge Obradovic made 30 April 2019 be extended until 14 July 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ritter & Ritter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 51 of 2019
File Number: PAC 3900 of 2018
| Mr Ritter |
Appellant
and
| Ms Ritter |
First Respondent
and
Ms X Ritter
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Mr Ritter (“the husband”) seeks to appeal against an order for summary dismissal of his application by Judge Obradovic on 30 April 2019. The orders concern Ms Ritter (“the wife”) and Ms X Ritter the parties’ daughter (“the daughter”).
On 30 April 2019 her Honour summarily dismissed the husband’s initiating application which sought that final property orders be set aside pursuant to s79A of the Family Law Act 1975 (Cth) (“the Act”). Consequent upon that relief being granted, the husband also sought orders pursuant to s79 of the Act that the wife and the daughter transfer to the husband, the daughter’s interest in two properties jointly held by the wife and the daughter namely, Property A and Property B.
The husband requires an extension of time in which to file his appeal against her Honour’s orders because although his solicitor attempted to file the appeal on the last day in the time provided by the Rules, the document whilst taken into possession of the appeal registry was not filed on that day.
As I understand the circumstances it is these. On 28 May 2019 at approximately 4.00pm the husband’s solicitors attended the Sydney Registry of the Family Court to lodge the Notice of Appeal. At the same time an application form for exemption from fees was also provided. However the husband’s solicitors did not have a copy of his Pensioner Concession Card but were informed by registry staff that the details of the card could be forwarded to the Court by email the following day which was done. Although at that point and probably too late in any event, the concession card was not signed and that appeared to be a further hurdle. Although at the time of tendering the Notice of Appeal the husband’s solicitor offered to pay the full filing fee by cheque and to later seek reimbursement, the solicitor was informed that the Court did not accept payment by cheque and as I say the Notice of Appeal was accepted for filing and a receipt was issued. However, shortly afterwards the husband’s solicitors were advised that the Notice of Appeal whilst having been taken into the possession of the registry had not been accepted for filing as payment had not been lodged with the Notice of Appeal.
On 7 June 2019 the husband brought this application for extension of time in which to file the Notice of Appeal.
Background
It is useful to give some factual context to the issues to be considered on the application.
The husband and wife purchased, as joint tenants, Property C, in a suburb of Sydney in about 2008 and separated in about 2009.
In 2007 the husband had been imprisoned for a crime, the details of which are not immediately apparent, but at about that same time, by reason of proceedings under the Confiscation of Proceeds of Crime Act 1989 NSW (“the Proceeds of Crime Act”), he was obliged to pay some $100,000 to the NSW Crime Commission.
The husband was again imprisoned in 2012. While serving that sentence he was assaulted and stabbed by another inmate. While in prison and still recovering from the assault, the husband’s case is that his daughter, the second respondent to the appeal, told him that the Crime Commission having become aware that he owned Property C were proposing to bring further proceedings under the Proceeds of Crime Act. He asserts that, in order to avert losing that property, his daughter persuaded him to sign over his interest in that property to her on her undertaking to purchase a property for him on his release from prison. The husband signed the necessary documents and final property orders were made by consent.
The husband was released in 2013 and eventually came to understand that the house that he had been living in since his release, had not been purchased in his name.
In August 2018 the husband brought proceedings in the Federal Circuit Court seeking to set aside the property orders and seeking as I say, if the orders were set aside, other property orders.
On the application of the wife and the parties’ daughter, the court was asked to summarily dismiss the husband’s s 79A application. That application was heard and determined on 22 March 2019 and the husband’s application summarily dismissed.
It is against this order that the husband sought to appeal.
The application
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. That time expired on 28 May 2019 the date on which his solicitor attempted to file the Notice of Appeal.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour 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. 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. 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. 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. 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…
(Citations omitted)
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable” and it will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
The solicitor for the Second Respondent argued, having carefully gone through and addressed the proposed grounds of appeal, that there was no merit in the proposed appeal. However, having considered the judgment, the proposed grounds of appeal and the argument on the application I am of the view that the appeal has merit such that other matters being considered an extension of time should be granted.
Turning then to the other matters, clearly the husband sought to file the appeal within the prescribed time and his inability to do so was as a result of his lawyer being misadvised in the first instance by the court registry. The application to extend time was brought expeditiously and I am therefore satisfied that an extension of time ought to be granted.
I should note that the wife’s solicitor Ms Everett appeared and submitted to the jurisdiction of the court and her appearance was mentioned by Mr Hawach for the Second Respondent.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for ex tempore judgment of the Honourable Justice Ainslie-Wallace delivered on 25 June 2019
Associate:
Date: 25 June 2019
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