SOLH & SALAH - [2015] FamCAFC 193

FAMILY COURT OF AUSTRALIA

SOLH & SALAH

[2015] FamCAFC 193

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file a Notice of Appeal – Where there is no appearance by or on behalf of the respondent – Where there is incomplete information as to why the respondent has not appeared – Where there has been delay by the applicant in bringing the proceedings – Where any prejudice to the applicant sounds in costs – Application adjourned.

FAMILY LAW – APPEAL – COSTS – Where the applicant makes oral application for his costs of the adjournment – Costs reserved.

APPLICANT:

Mr Solh

RESPONDENT:

Ms Salah

FILE NUMBER:

DGC

1777

2012

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

24 September 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

24 September 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

8 December 2014

LOWER COURT MNC:

[2014] FCCA 2086

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Grant

SOLICITOR FOR THE APPLICANT:

Merhi & Associates

SOLICITOR FOR THE RESPONDENT:

Randles Cooper & Co
Pty Ltd

Orders

The application in an appeal filed on 29 July 2015 be adjourned for further hearing before the Honourable Justice Strickland in Melbourne at 10:00am on Friday 4 December 2015.
The question of the applicant’s costs be reserved to the adjourned hearing date.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Solh & Salah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SOA 53 of 2015

Mr Solh

Applicant

And

Ms Salah

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before me today is an application in an appeal filed by Mr Solh (“the applicant”) on 29 July 2015 seeking an extension of time to file a Notice of Appeal against orders made by Judge Jones on 8 December 2014. That application is supported by an affidavit of the same date.
When the matter was called on this morning there was no appearance by or on behalf of Ms Salah (“the respondent”).
Mr Grant of counsel appeared for the applicant, and I inquired of him as to whether he, or his client, or his instructor, had any knowledge of why the respondent may be absent. Mr Grant then filled me in as to what has happened, at least from his client’s perspective, since the application was filed.
Mr Grant rightly pointed out that there is no affidavit of service on file, but he has provided me with documentation which satisfies me that the application and affidavit have been served, and it seems they were served upon the respondent’s solicitors, Randles Cooper. It is apparent that that firm of solicitors have been acting for the respondent for some time. They recently appeared before the trial judge on 3 August 2015 on behalf of the respondent, when orders were made by the trial judge in relation to a contravention application which was filed on 23 October 2014. Indeed, as Mr Grant has pointed out to me, in paragraph 4 of that order, the trial judge provided for the hearing of the contravention application to be brought forward, once the appeal to this court had been heard and finally determined.
Of course, at this stage, there is no appeal before this court, but that is not a criticism of the trial judge. It is just a manner of expression. There is, of course, before this court an application for an extension of time to file a Notice of Appeal, and that was what the trial judge was referring to.
In summary then, as Mr Grant put to me, the respondent through her solicitors must have been aware of the application and the affidavit, and that that application was before this court.
The solicitors were still acting for the respondent, at least as recently as 3 August 2015. There has been no Notice of Ceasing to Act filed in the first instance proceedings, and there has been no indication to the Appeal Registrar that those solicitors are no longer representing the respondent, nor any indication that they were, for example, only acting for her in the first instance proceedings as opposed to these proceedings. Further, as Mr Grant has rightly pointed out, in the application that his client filed, it did not have a date for hearing when it was returned by the Appeal Registrar, because the date was at that time unknown. It was not until 15 September 2015 that the usual letter was sent by the Appeal Registrar to both parties’ solicitors, advising of the hearing today. I note that there has been no response to that letter received by the Appeal Registrar from the respondent or her solicitors.
There was a telephone discussion between solicitors on 23 September 2015, followed up by a letter sent by email on that same date by the applicant’s solicitors to the respondent’s solicitors. That letter tells me that apparently the respondent is currently overseas, and it indicates that the applicant will seek to proceed with his application today, and sets out terms on which an adjournment might be considered.
There is no application to adjourn these proceedings by the respondent and, to repeat, there has been no appearance by or on behalf of the respondent.
I invited Mr Grant to contact the respondent’s solicitors to ascertain the current position. Mr Grant agreed to that and has reported to me that he has spoken to the respondent’s solicitor who tells him that he holds no instructions currently in relation to this matter, and confirms that the respondent is overseas. The only further information that I need to record is, from the bar table, Mr Grant informed me that on his client’s instructions the respondent went overseas on 19 September 2015.
That is a potted history of this matter as it relates to the question of whether I proceed with the application today, or adjourn the matter.
I am concerned about the absence of the respondent. It seems to me there is incomplete information as to her position, and in particular her position vis-à-vis her solicitors and, for example, I do not know what discussions have taken place between the respondent and her solicitors as to this hearing, before she left for overseas. My options are to proceed with the matter on the basis of the respondent opposing the application, or to adjourn it.
Having reflected on the matter, and having inquired of Mr Grant what prejudice to his client there would be if the matter was adjourned, and his response being only in the question of costs, I am disposed to adjourn the application. A prime reason for that is that the application was only filed on 29 July 2015, some six months at least after the applicant became aware of the orders, according to his affidavit of 8 December 2014, and which he now wishes to appeal against. The applicant sets out in his affidavit why it has taken so long for him to bring the application, and they are understandable matters, but the question ultimately for me will be whether they provide an adequate explanation of the delay, and whether to allow an appeal to proceed at this point is in the interests of justice.
That said, my point in referring to that is not as to the merits of the application itself, but the fact that there has been significant delay by the applicant himself. His application, to repeat, was only filed on 29 July 2015; less than two months ago. Ironically, and I mention this only by way of background, one of the main reasons for the applicant looking to appeal the orders of the trial judge of 8 December 2014, was that he at that time was overseas. It is ironic that when his application comes on for hearing the respondent too is overseas but, to repeat, that is by way of background and not a basis for necessarily adjourning the proceedings.
Therefore, so that there is no doubt about it, I propose to adjourn the proceedings because there has been delay in the application being brought by the applicant, I am not satisfied that I am fully apprised of all the circumstances relating to the absence of the respondent today, and Mr Grant’s concession that the prejudice to his client sounds in costs. I do not overlook that Mr Grant put to me that any delay, of course, prejudices his client; that goes without saying, but to repeat, there has been delay by the applicant himself in this matter.
In relation to costs, counsel for the applicant makes an oral application for his costs of today fixed in the sum of $2,200. I am disposed to make an order for costs, and have said as much in my reasons to date, namely that the prejudice to the applicant sounds in costs. However, until I know the full circumstances of the respondent I will not make an order for costs, and I simply receive that application and reserve the question of costs to the adjourned hearing date.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 24 September 2015.

Associate:

Date: 7 October 2015