Roff and Roff

[1999] FamCA 2258

[1999] FamCA 2258

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. SA 48 of 1999

File No. HB 6469 of 1981

IN THE MATTER OF:

Richard John ROFF

Applicant /Husband

and

Vianne Carol ROFF

Respondent/Wife

________________________________________________________

APPLICATION FOR REINSTATEMENT OF NOTICE OF APPEAL

REASONS FOR JUDGMENT OF THE FULL COURT

________________________________________________________

Coram:  NICHOLSON CJ, COLEMAN and WATT JJ
Date of Hearing:                6 DECEMBER, 1999
Date of Judgment:            6 DECEMBER, 1999

Appearances:

Mr P. Tree of Counsel instructed by
Trezise Partners
41A Salamanca Place Hobart 7000 for the husband.

Mr M. Foster of Counsel instructed by

Piggott Wood and Baker
199 Macquarie Street Hobart 7000 for the wife.

Name of Appeal:                   Roff
Appeal Number:  SA 48 of 1999
Date of Appeal Hearing :     6 December 1999
Date of Judgment:                6 December 1999
Appeal Coram:  Nicholson CJ, Coleman and Watt JJ

Catchwords:           Family Law – Practice and Procedure – Application to reinstate appeal – Whether Court has discretion to extend the time for serving appeal papers nunc pro tunc – Order 32 rule 15 Family Law Rules

This was an application by the husband by the husband to reinstate an appeal pursuant to various rules contained in Order 32 of the Family Law Rules. 

By Notice of Appeal filed on 16 June 1999, the husband appealed against orders requiring him to transfer a substantial sum of money to the wife.  A stay was granted pending the appeal, subject to the payment by him of $300,000 to the wife within six weeks of the date of the order.  A Deputy Registrar of the Court directed that the appeal book together with eight copies should be filed by 27 August 1999. 

The husband submitted that while he was involved in negotiations to obtain the sum of $300,000, arrangements for the preparation of appeal papers fell into abeyance.  The husband said he faced difficulties in obtaining the relevant documents and transcript from his former solicitors with whom he had a disputed bill for costs, and lacked funds to pay for fresh copies.

In his affidavit sworn and filed on 28 September 1999, the husband said that his solicitors then had all documentation necessary to complete the appeal papers and he was informed that the appeal book could be filed with the prescribed number of copies within 24 to 48 hours.

Before the Full Court, the wife submitted that the Court has no discretion to extend the time for serving of the appeal papers pursuant to Order 32 rule 15(5), which is in the following terms:

"If an appellant or cross-appellant who is responsible for filing and serving the appeal papers does not file and serve the appeal papers by the date fixed under paragraph 12(1)(h), or by a later date fixed under subrule (3), the appeal or cross-appeal is taken to be abandoned at the end of 28 days after the date by which the appeal papers should have been filed and served."

Held:  per curiam, application for reinstatement for granted; applicant to pay the respondent’s costs.

1. It is well established by a number of cases both in this and other courts that a court has the power to extend the time for compliance with a self-executing order dismissing an appeal even though that time has expired: Eure v Tidwell (1995) FLC 92-622 cited.

1. Under the Family Law Rules, the Court has discretion to extend time for compliance with aspects of rule 15, and may do so nunc pro tunc.  There is no reason to read subrule (5) more narrowly.  It is in the interests of justice that such discretion should be preserved given the nature of the Court’s jurisdiction. 

1. The respondent should have the costs of the application as the husband had sought an indulgence and had not complied with the directions.

REPORTABLE

NICHOLSON CJ:  

1. In this matter, we have before us an application to reinstate an appeal pursuant to various rules contained in Order 32 of the Family Law Rules.  The situation is as follows.

1. Following trial, a decision was given in the matter on 17 May 1999.  There was some delay which involved no fault of the parties.  The result of the hearing was that the learned trial Judge made orders for the payment of a substantial sum by the husband to the wife.  The subsequent sequence of events was as follows.

1. An application was made to stay the operation of the trial Judge's order following a Notice of Appeal that was delivered by the husband on 16 June 1999.  The stay application was heard on 2 and 3 August 1999.  Hannon J ordered that the operative paragraph of his judgment (paragraph 2) be stayed pending appeal, subject to the payment by the husband of $300,000 to the wife within six weeks of the date of the order.  It appears that the husband did not succeed in obtaining that sum within six weeks.

1. On 16 September 1999, the husband received notification of the fact that he had a loan available of $300,000.  For various reasons, it appears that that was not availed of and subsequent enforcement proceedings were taken by the wife before Hannon J on 29 October 1999 and subsequently.  Those proceedings resulted in orders for sale of a vineyard for a sum which will net in the vicinity of $240,000 to the wife.  Those enforcement proceedings are still pending. 

1. So far as the appeal aspect of the matter is concerned, on 27 July 1999 an appointment was scheduled with a Deputy Registrar of the Court for the settling of the index to the appeal book.  The Deputy Registrar directed that the appeal book together with eight copies should be filed in the appeal registry by 27 August 1999. 

1. As I have mentioned, there was a stay application in early August and it appears from the husband's affidavit that he was involved in negotiations for the obtaining of the loan of $300,000, and he says that in the meantime, arrangements for the preparation of appeal papers fell into abeyance. 

1. He said that he had a number of difficulties, the first of which was that the relevant documents and the transcript of the proceedings before his Honour, were held and still are held, by his former solicitors with whom he has a disputed bill for costs in excess of $75,000.  He says that pending taxation and payment of costs, the solicitors have withheld his copies of court documents.

1. Secondly, he says he did not have sufficient funds to pay to his solicitors the amount required to obtain fresh copies of the documents, and that he attended the Hobart Registry and personally photocopied all of the court documents required for the purposes of the appeal papers.  Then, on 17 September, he attended Auscript and ordered further copies of the transcript and it appears that on 24 September he was advised by Auscript that the transcript had been prepared.  He then collected 658 pages of transcript at a substantial cost and delivered them to his solicitors that afternoon. 

1. The husband said in his affidavit sworn and filed on 28 September 1999, that his solicitors then had all documentation necessary to complete the appeal papers and he was informed that the appeal book could be filed with the prescribed number of copies within 24 to 48 hours.

1. The present application was originally made returnable before me in Melbourne and I referred the matter to the Full Court sitting in Parramatta this day. 

1. In my view, there is no substance in the argument that was advanced before us by Mr Foster for the wife that the Court has no discretion to extend the time for serving of the appeal papers pursuant to Order 32 rule 15(5).  It is well established by a number of cases both in this and other courts that a court has the power to extend the time for compliance with a self-executing order dismissing an appeal even though that time has expired - see the discussion in Eure v Tidwell (1995) FLC 92-622.

1. Order 32 rule 15(5) states:

"If an appellant or cross-appellant who is responsible for filing and serving the appeal papers does not file and serve the appeal papers by the date fixed under paragraph 12(1)(h), or by a later date fixed under subrule (3), the appeal or cross-appeal is taken to be abandoned at the end of 28 days after the date by which the appeal papers should have been filed and served."

1. Subrule (6) is in the following terms:

"Unless the court otherwise orders, if an appeal or cross-appeal is abandoned under subrule (5) the appellant or cross-appellant must pay the costs of the other parties to the appeal or cross-appeal."

1. It was pointed out by counsel during the course of argument that the concept of abandoning an appeal seems to be confined to subrule (5). Mr Foster submitted that we should give it an automatic operation in the sense that abandonment of an appeal means something different than a dismissal of an appeal.  He said that the fact that it carries with it a costs order means that unless there was strict compliance with it, the appeal must be deemed to be abandoned for all purposes at the end of the relevant time.

1. It is quite clear under the Family Law Rules that the Court does have discretion to extend time for compliance with aspects of the rule and may do so nunc pro tunc.  In the circumstances, I see no reason to read subrule (5) more narrowly than any other rule.  Indeed it would seem to me the interests of justice would require that the discretion should be preserved, given the nature of this jurisdiction and given the nature of the difficulties faced by appellants and particularly appellants who are suffering a degree of lack of financial strength. This is not to say that the time should be extended as a matter of course.  This is always a matter of discretion. 

1. If one examines the circumstances of this case it seems to me that there is much substance in Mr Tree's submission for the husband that in reality, although there have been long delays in the matter, very few of those delays can be laid at the door of the husband or of the wife.  It would seem to me to be quite inappropriate to shut the husband out in the circumstances outlined. 

1. Whilst I have noted Mr Foster's criticisms in relation to what he says to be a lack of support for the assertions made by the husband as to his difficulties, they seem to me to be reasonable, particularly the husband’s inability to obtain the papers from his earlier solicitors, which was obviously a significant factor in preventing the proper preparation of the appeal papers.

1. In the circumstances therefore, I would allow the application and make an appropriate extension of time. 

COLEMAN J: 

1. I too would allow the application and extend the time for the reasons given by the Chief Justice.  I otherwise have nothing to add.

WATT J:  

1. I concur with the reasons given by the Chief Justice and have nothing to add.

RECORDED   :   NOT TRANSCRIBED

NICHOLSON CJ:  

1. We will extend the time to 13 December 1999. 

RECORDED   :   NOT TRANSCRIBED

NICHOLSON CJ:  

1. We think the respondent should have the costs of the application the reasons being, I think, obvious, that the husband was seeking an indulgence and had not complied with the directions for whatever reason.

RECORDED   :   NOT TRANSCRIBED

NICHOLSON CJ: 

1. We will fix costs at $800.