SATCHELL & CARR
[2018] FamCAFC 155
•8 August 2018
FAMILY COURT OF AUSTRALIA
| SATCHELL & CARR | [2018] FamCAFC 155 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in timely way is inadequate – Where the proposed appeal is against cost orders – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.12 Federal Circuit Court Rules 2004 (Cth) Schedule 1 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Penfold v Penfold (1980) 144 CLR 311;[1980] HCA 4 |
| APPLICANT: | Mr Satchell |
| RESPONDENT: | Ms Carr |
| FILE NUMBER: | SYC | 696 | of | 2014 |
| APPEAL NUMBER: | EA | 97 | of | 2018 |
| DATE DELIVERED: | 8 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 August 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 June 2018 |
| LOWER COURT MNC: | [2018] FCCA 1510 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Worner |
Orders
That the application in an appeal filed on 13 July 2018 be dismissed.
That the applicant pay the respondent’s costs of the application in an appeal in the amount of $242 within twenty-eight (28) days of these orders.
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 Satchell & Carr 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 97 of 2018
File Number: SYC 696 of 2014
| Mr Satchell |
Applicant
And
| Ms Carr |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 13 July 2018, Mr Satchell (“the applicant”) seeks an extension of time to file a Notice of Appeal (EA 97 of 2018). The proposed appeal relates to cost orders made by Judge Boyle in finalised parenting proceedings on 12 June 2018.
The orders under appeal require the applicant to pay the respondent mother’s (“the respondent”) legal costs in the sum of $19,363 (Order 1) and for the applicant to pay the Legal Aid Commission of NSW for the total costs of the Independent Children’s Lawyer (“the ICL”) in the amount of $10,837 (Order 2).
Order 1 under appeal relates to the respondent’s costs incurred from when the respondent filed her case outline to the conclusion of the trial, including the setting down/hearing fees paid by her. The primary judge found in favour of the respondent’s submissions for costs which addressed the s 117(2A) Family Law Act1975 (Cth) (“the Act”) factors, including that the applicant had been wholly unsuccessful [27], [37].
In his draft Notice of Appeal the applicant seeks to have Order 1 set aside. He contends that he should not have to bear the respondent’s costs in the parenting proceedings as his case was based on the opinion of the family report writer Dr G (“the family report writer”).
Order 2 makes the applicant liable for the total costs of the ICL. This order was made based on her Honour’s finding that it would be just for the applicant to bear the full cost of the ICL due to his conduct in the parenting proceedings [45]. The applicant seeks that Order 2 be varied so that the total sum payable to the Legal Aid Commission of NSW is halved, the new sum being $5,418.50.
Relevant background
So as to give this application context, it is necessary to refer to some brief background facts. These are taken from her Honour’s reasons and the documents filed in support of this application.
The parenting and property proceedings were commenced by the respondent on 22 August 2014. The applicant filed a response on 24 November 2014 and the matter proceeded to a Child Dispute Conference.
Property issues were resolved by way of consent orders on 18 January 2016.
Parenting proceedings were heard by Judge Henderson on an undefended basis. The applicant appealed against her Honours orders and that appeal was resolved by consent and the final parenting orders were converted to interim orders. The parenting proceedings were then heard before Judge Boyle over three days from 11 to 13 September 2017. Judgment was delivered on 29 November 2017. The parties were ordered to file written submissions in relation to the costs of the proceedings.
The respondent sought costs on an indemnity basis in the sum of $86,815 for the whole of the proceedings. The applicant opposed the application. The ICL sought costs in the amount of $3,768.65 from the respondent (who had already paid the Legal Aid Commission $1,650) and $5,418.65 from the applicant.
The primary judge found in favour of the respondent for costs, however due to the absence of circumstances of a kind that would warrant costs on an indemnity basis, the primary judge ordered the applicant to pay the respondent’s costs calculated by reference to the Federal Circuit Court scale (Federal Circuit Court Rules 2004 (Cth), Schedule 1). Orders were made in relation to the ICL’s costs as previously outlined.
On 13 July 2018 the applicant filed a draft Notice of Appeal and the subject application in respect of that proposed appeal.
Discussion
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal within the timeframe stipulated by r 22.03. In this case, the last day for filing an appeal in respect of EA 97/2018 was 10 July 2018.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. I have already mentioned that this tranche of litigation concerns costs incurred against a background of dispute in relation to a child’s parenting arrangements.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
The effect of the applicant’s affidavit filed in support of this application is that because he is self- represented he needed the full gamut of time to understand her Honour’s reasons for judgment, consider the law, speak to family members and obtain advice. He deposes that he was “only ten hours” late in filing his notice of appeal. This is wrong, he was three days late, however this would not be a determinative factor in determining this application. Instead, the merits of the proposed appeal will be far more influential in deciding whether or not an extension of time will be granted.
It is accepted that the applicant attempted to file the application or the Notice of Appeal on the 29th day but it was rejected. The error, whatever it was with the documentation, was able to be rectified quickly and this application as accepted for filing on the date already mentioned.
The complaint raised by the applicant in his single ground of appeal is that the applicant sought orders in parenting proceedings based on the advice of the family report writer. As I understand it, the gravamen of the complaint is that her Honour has failed to appreciate that he had a meritorious application and was bona fide in pursuing orders in relation to the parties’ daughter. However, the primary judge found at [27] the applicant’s case to be inter alia, “wholly unsuccessful”, which justified an order for costs against him. The applicant does not believe he should be responsible for bearing the other parties’ costs at all. It is his contention that the magnitude of costs really was a matter for his former partner and the judge ought not to have visited them on him.
The barriers to a successful appeal in relation to an order for costs are high indeed. Orders for costs are quintessentially a matter for the trial judge and the Full Court has made it abundantly clear that the court should be very slow to intervene in orders of that nature. The line of authority developed in the Full Court of the Family Court stems from the High Court decision in Penfold v Penfold (1980) 144 CLR 311. The proposed ground of appeal fails to engage in any credible way with an assertion of an error of law by the primary judge, and, as currently drafted, the proposed appeal is doomed to fail.
Nor am I persuaded that the applicant has provided an adequate explanation for his failure to file the Notice of Appeal in accordance with the timeframe contained within the Rules. Firstly, the Rules are clear. Moreover, the applicant has experience in filing appeals, and has previously been able to file an appeal albeit self-represented and within the timeframe.
There is no adequate explanation for why he could not file a Notice of Appeal within 28 days but was in a position to file it on the 29th day. It bespeaks a lack of attention to the obligations imposed by the Rules. I am bolstered in this view by her Honour’s findings to the effect that the applicant has a well documented history of failing to comply with court directions and orders, relevantly, court directions as to time. The net effect of this is I am not persuaded that the explanation for delay is adequate.
Conclusion and costs
The interests of justice weigh against an extension of time and the application will be dismissed.
There is an application by the respondent that the applicant pay her costs of this unsuccessful application for an extension of time. The costs sought are in the amount of $242 being one hour calculated by reference to the scale. The applicant opposes the order for costs and says that he is unable to afford it. The amount sought is modest and appropriate. I am satisfied that the applicant’s lack of success in the application amounts to justifying circumstances for an order for costs and justifies the order sought. The amount sought will be ordered to be paid within 28 days. It is noted that the applicant is now departing from the court, but he was present when the order for costs were made.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 August 2018.
Associate:
Date: 8 August 2018
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