Romano and June
[2013] FamCAFC 198
•19 November 2013
FAMILY COURT OF AUSTRALIA
| ROMANO & JUNE | [2013] FamCAFC 198 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for extension of time to file an appeal against a costs order – Where the delay was caused by the solicitor for the applicant making a mistake in the calculation of the prescribed time to file an appeal – Where there was delay of one day – Where there had been negotiations by the parties to resolve all matters between them – Where the respondent submitted that despite negotiations, the solicitors for the applicant had an obligation to file the notice of appeal within the prescribed time – Where the proposed notice of appeal appeared to contain sufficient ground for appeal and an arguable case – Where the extension of time would not cause real prejudice to the respondent – Application granted. |
| Family Law Rules 2004 |
| Gallo v Dawson (1990) 93 ALR 479 |
| CROSS-APPELLANT: | Ms Romano |
| CROSS-RESPONDENT: | Mr June |
| FILE NUMBER: | BRC 3679 of 2010 |
| APPEAL NUMBER: | NA 32 of 2013 |
| DATE DELIVERED:: | 19 November 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 19 November 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 May 2013 |
| LOWER COURT MNC: | [2013] FamCA 344 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hackett |
| SOLICITOR FOR THE APPELLANT: | Hirst & Co Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Ingelby |
| SOLICITOR FOR THE RESPONDENT: | Bowen Buchbinder Vilensky |
ORDERS
IT IS ORDERED BY CONSENT:
The cross-respondent pay to the trust account of the cross-appellant’s solicitors the sum of $1,000 within 28 days of this order on account of her costs incurred of and incidental to the husband’s appeal filed 13 June 2013 and discontinued on 23 August 2013.
IT IS FURTHER ORDERED:
The cross-appellant be granted an extension of time to file a Notice of Appeal against the orders of Justice Forrest made on 16 October 2013 until 4.00pm on 22 November 2013.
That the directions made by Registrar Kane in NA 32 of 2013 on 23 September 2013 be varied so as to provide that:
a) The date in paragraph 5 be brought forward to 20 December 2013;
b) The date in paragraph 6 be brought forward to 10 January 2014;
c) The date in paragraph 3 be varied to such date to be fixed at the hearing referred to in paragraph (4) below.
The application for review returnable this day be adjourned to 11.30am on 3 February 2013 in default of an agreed appeal book index signed by both counsel.
The costs of each of the applications of today be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Romano & June has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 32 of 2013
File Number: BRC 3679 of 2010
| Ms Romano |
Cross-Appellant
And
| Mr June |
Cross-Respondent
EX TEMPORE
REASONS FOR JUDGMENT
An application has been filed by leave this morning being an extension of time to file an appeal from an order of Forrest J made on 16 October 2013. The order was only in respect of the wife’s costs of the trial. However, it did require a substantial sum to be paid: that is, that the husband pay to the wife 50 per cent of the wife’s costs on a party and party basis. The wife had asked for indemnity costs fixed in the sum of $1,164,746.
The contents of the affidavit of Ross Matthew Hirst, the solicitor for the wife in this application for an extension of time, includes a number of assertions. It is said that a mistake was made calculating the time necessary to comply with the Family Law Rules 2004 (“the Rules”) to file an appeal. The mistake was that it was thought that the appeal should be filed by 14 November 2013.
Dr Ingleby, who appears for the respondent to this application, took objection to a number of parts of the affidavit, generally, and also on the basis that parts of the affidavit are irrelevant. It is conceded, properly, that one part of the affidavit should be excluded – that is, paragraph 12 – where it is said that the husband did not comply with the primary order.
It seems there really are two contentions providing the reason for the delay in filing the notice of appeal. The first I have mentioned; that is that a mistake was made in the office calculating the time necessary, and needless to say, that mistake having been delegated to somebody else, remains the responsibility of Mr Hirst. The other is that apparently – and quite appropriately Dr Ingleby did not suggest to seek otherwise – there had been some negotiations between the parties after 16 October 2013, described as being in an endeavour to resolve all matters between the parties.
Dr Ingleby correctly submits that despite this, there was still the obligation on the solicitors to file a notice of appeal within the time as prescribed by the Rules. In my view, it is not necessary to deal at any length with what were his objections, other than to observe and to make reference to his submissions in that respect.
Attached to the affidavit is the proposed notice of appeal. Of that, it can be said that there appears to be some substantial basis for the appeal. Again, Dr Ingleby quite appropriately did not suggest that this appeal was not other than being properly brought and with some sufficient grounds for appeal.
The authorities in relation to extensions of time are well known; see, for example, Gallo v Dawson (1990) 93 ALR 479. An extension of time should be given if it will do justice between the parties. In this case, I have formed the view that there is an adequate explanation for the delay, especially it being of only one day. In such a complicated matter, there is likely to be an arguable case, and apart from the imposition now of an appeal in relation to costs, as well as the cross-appeal, it could not be said that there is any real prejudice to the respondent, such that an extension of time should not be allowed.
In my view, such an order should be made, and the appeal in relation to the costs when filed should be consolidated with the other appeal. I have made some consent orders in the other applications. I should order that the appeal in relation to costs be filed and the extension of time be granted. That appeal when filed will be consolidated. The appeal registrar in due course when hopefully the other question is resolved will make some directions.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered ex tempore on 19 November 2013.
Associate:
Date: 5 December 2013