Sharaf & Nouri
[2022] FedCFamC1F 898
Federal Circuit and Family Court of Australia
(DIVISION 1)
Sharaf & Nouri [2022] FedCFamC1F 898
File number: PAC 3638 of 2022 Judgment of: CAMPTON J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to extend the time prescribed in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to file an Application for Review of the exercise of power by a senior judicial registrar – Application for leave dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13, 14.05 Cases cited: Gallo & Dawson (1990) 93 ALR 479; [1990] HCA 30 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 27 October 2022 Place: Sydney Solicitor for the Applicant: Mr Sant, Longton Legal Solicitor for the First and Second Respondents: Mr Lloyd, WM Lloyd & Associates ORDERS
PAC 3638 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHARAF
Applicant
AND: MR NOURI
First Respondent
B PTY LTD
Second Respondent
order made by:
CAMPTON J
DATE OF ORDER:
27 October 2022
THE COURT ORDERS THAT:
1.The Application for Review of the husband filed 17 October 2022 of the exercise delegated power by a Senior Judicial Registrar in making orders on 16 September 2022 is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharaf & Nouri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Listed before me today is an Application for Review of orders made on an undefended basis against the husband by a senior judicial registrar on 16 September 2022, filed on 17 October 2022 (“the husband’s Application for Review”).
It was agreed by the parties that pursuant to r 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) the husband was obliged to file his Application for Review within 21 days of the date of the exercise of delegated power by the senior judicial registrar. Hence, the time limit to review the orders made on 16 September 2022 expired on 7 October 2022. In circumstances where the husband’s Application for Review was filed 10 days out of time, he sought the indulgence of leave to extend the time for filing.
The High Court in Gallo & Dawson (1990) 93 ALR 479 recorded that it is essential for the proper operation of a system of justice for time limit to be imposed, but that time limits should not in and of themselves become instruments of injustice (at 480, per McHugh J). A time limit is a general rule. Any provision for an extension to the limit is an exception to the general rule. The High Court further stated that in considering whether indulgence should be afforded to a litigant seeking to extend a time limit imposed by rules or legislation, it is important to have regard to the general perception that delay to proceedings may risk effecting a deterioration in the quality of justice to be achieved. The authorities further make it clear that the Court should be liberal in extending any indulgence of leave to avoid hardship.
For the purposes of this application, it is incumbent upon the husband to address three matters:
(a)That he has a prima facie case for relief sought;
(b)Whether a denial of an extension of time would cause him hardship; and
(c)The reasons for his delay in filing his Application for Review.
In respect of this matter, an Application for Review operates as an original hearing. That is, it would be a hearing of the matters listed for determination before the senior judicial registrar on 16 September 2022 afresh.
The sole evidence relied upon by the husband in seeking the indulgence of an extension of time to file and progress his Application for Review is Exhibit 1, being the orders made 16 September 2022. On my reading of those orders, there is little to support that the case of the husband would achieve otherwise than that ordered by the senior judicial registrar on that day. The husband does not, for example for the purposes of his Application for Review, identify any further evidence by way of affidavit or otherwise that he would seek to read to support his application for the indulgence of leave.
The second matter relevant to ground the exercise of discretion for leave is that the denial of the husband’s claim by way of review would cause him hardship. Again, the orders made on 16 September 2022 do not underscore any foundation for hardship. Rather, they establish that on the day prior to the hearing (being 15 September 2022), the husband emailed the Court indicating that he was aware of the hearing listed on the following day and that he did not intend to participate in the hearing. Additionally, the Court noted that prior orders made by a judicial registrar on 12 September 2022 recorded the wife having put the husband on notice that she would seek to proceed on an undefended basis on 16 September 2022. To my mind, the evidence relied upon by the husband establishes that he made an election, notwithstanding his knowledge of the listing and the matters to be agitated on that day, not to attend the hearing listed on 16 September 2022. In those circumstances, I am unable to find any hardship that would be occasioned on the evidence relied upon by the husband so as to ground an indulgence of leave.
The third matter the husband ought to address by way of his evidence in seeking leave is an explanation for his delay. Again, there is no evidence as to the explanation for delay. This factor weighs against granting the indulgence of leave sought by the husband.
For the purposes of this determination, I am mindful of, and give significant weight to, the husband, having the benefit of his current solicitors, electing not to pursue any application pursuant to r 10.13 of the Rules.
The must be some material upon which the court can exercise its discretion. In all of the circumstances, I am not satisfied that the husband has achieved an evidentiary foundation to ground an exercise of discretion for leave to extend the time for him to file his Application for Review. The Application for Review will be dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 16 November 2022
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