SOMERS & ETTRIDGE
[2019] FamCAFC 209
•24 October 2019
FAMILY COURT OF AUSTRALIA
| SOMERS & ETTRIDGE | [2019] FamCAFC 209 |
| FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file a draft appeal index as ordered – Where there is no utility in allowing the appeal to proceed – Where if reinstatement is to be considered the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where there is no adequate or acceptable reason for the failure to file the draft appeal index on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where in the interests of justice the application must be refused – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the application is opposed but no reason is provided as to why those costs should not be ordered – Where the applicant has been wholly unsuccessful – Costs ordered in the sum as sought. |
| Family Law Act 1975 (Cth) s 93A(2) Family Law Rules 2004 (Cth) rr 22.36, 22.44 and 22.57 |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Bemert and Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Somers |
| RESPONDENT: | Ms Ettridge |
| FILE NUMBER: | MLC | 11262 | of | 2015 |
| APPEAL NUMBER: | SOA | 33 | of | 2019 |
| DATE DELIVERED: | 24 October 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 24 October 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 July 2019 |
| LOWER COURT MNC: | [2019] FamCA 420 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Paterson |
| SOLICITOR FOR THE RESPONDENT: | Carew Counsel Pty Ltd |
Orders
The Application in an Appeal filed on 26 August 2019 be dismissed.
The applicant de facto husband pay the costs of the respondent de facto wife of and incidental to the Application in an Appeal fixed in the sum of TWO THOUSAND THREE HUNDRED AND FORTY-TWO DOLLARS [$2,342.00].
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 Somers & Ettridge 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 MELBOURNE |
Appeal Number: SOA 33 of 2019
File Number: MLC 11262 of 2015
| Mr Somers |
Applicant
And
| Ms Ettridge |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Mr Somers (“the applicant”) on 26 August 2019, seeking to reinstate an appeal that was deemed abandoned by his failure to file a draft appeal index within the time provided by the Family Law Rules 2004 (Cth) (“the Rules”).
The Notice of Appeal that has now been deemed abandoned was filed on 2 July 2019, and in that Notice the applicant sought to appeal from orders made by Johns J on 18 June 2019, her Honour making the orders on that day and then delivering her reasons later, namely on 4 July 2019.
The Application in an Appeal is supported by an affidavit also filed on 26 August 2019.
Ms Ettridge (“the respondent”) opposes the application and, to that end, has filed a Response on 2 September 2019, seeking dismissal of the Application. That Response is supported by an affidavit also filed on 2 September 2019.
At the commencement of the hearing I raised with the applicant, who appears in person, and with counsel for the respondent, the utility of reinstating the appeal, given what has now transpired in relation to a property which has been the subject of proceedings in this court and, indeed, was the subject of the orders made by Johns J on 18 June 2019.
That issue arises in this way. The orders made by Johns J on 18 June 2019 provided, in summary, for the respondent to be appointed as trustee to have the sole conduct of the sale of the property at Suburb C, for her, in that capacity, to execute a contract of sale for a named sum in favour of the named purchaser, and for her to also be able to sign all necessary documents to give effect to the sale of the property.
The orders further provided that if the sale referred to was not completed, then the respondent could continue to have the sole conduct of the sale on such terms, and for such sale price as she deemed appropriate. There were conditions to that, namely providing notice to the applicant of any offer to purchase, and giving the applicant liberty to apply to the court in the event that he had concerns about that offer. The orders further provided for the applicant to facilitate inspection of the property by any valuer, for him to vacate the Suburb C property within 21 days, and thereafter, the respondent have sole use and occupation of the property. However, if the applicant failed to facilitate inspection of the property by a valuer, then he was to vacate the property within seven days.
There were then orders providing for the removal of the possessions of the applicant, for the respondent to be responsible for certain costs, and procedural orders in relation to the giving of notice, providing a copy of the orders to various persons, including the purchaser, the conveyancer and the police, and orders addressing the question of costs. There was an adjournment of a specific paragraph of the respondent’s application to a date to be fixed, and there was liberty given to the respondent to list the matter on short notice if there was non-compliance with the order for the applicant to vacate the property.
It is common ground that the property has now been sold. Plainly, in those circumstances, the issues of the respondent being the trustee for sale, for her to continue in that capacity in the event of the sale not being completed, the order providing for inspection of the property by a valuer, the order providing for the applicant to vacate the property, and the procedural matters, have all been overtaken by the fact that the sale has now been completed. Thus, that raises in my view, the utility of the appeal being reinstated and, specifically, what point there is to the appeal being reinstated in those circumstances, when, for example, no order is sought in the appeal for the reversal of any of those orders made by her Honour. What is sought is that the orders be set aside and in lieu, two orders be made. First, that pursuant to s 93A(2) of the Family Law Act 1975 (Cth), the Full Court receive further evidence upon questions of fact in relation to her Honour’s orders and secondly, pursuant to r 22.36 of the Rules, the Full Court grant the applicant permission to make an application in relation to an appeal.
I suggest that what I have just outlined demonstrates the lack of utility in reinstating the appeal, given, that if reinstated, no purpose will be served by hearing and determining the appeal as constituted, or as filed.
The applicant submits that there is utility, and in summary, he says that the orders made by her Honour are based on a decision and orders that should not have been made, namely the previous orders made by Thornton J and Cronin J in 2017. What Thornton J did was make a declaration that there was a de facto relationship, and then Cronin J made orders for a property settlement which included an order for the sale of the property.
Thus, if I understand it correctly, what the applicant is saying, is that those initial orders and declarations, should not have been made, and therefore, the orders made by Johns J should not have been made because the orders her Honour made were by way of enforcement, in effect, of the order made by Cronin J in relation to the sale of the property.
I note that in relation to the declaration made by Thornton J, and the orders made by Cronin J, judgment is reserved on applications by the applicant seeking an extension of time to file appeals against them, and also other orders subsequently made by Cronin J, for example, in relation to costs.
However, the submission of the husband does not establish the utility of the appeal. What I have to look at in determining the utility of reinstating this appeal, is the utility of that appeal being allowed to proceed from the specific orders made by Johns J, and that has not been demonstrated.
I should add that another submission that the applicant makes, is that to not reinstate would not be just and equitable. I do not quite understand that submission, but I take it to mean that in looking at the overall circumstances, and the history of the matter, the applicant wants to argue that the orders should never have been made, and thus the property should never have been sold.
That is well and good, but, in my view, that does not address the question of the utility of this particular appeal being reinstated, given the orders that are the subject of the appeal, and the orders that he seeks in the event of the appeal being successful. In my view, there can be no point in allowing the appeal to proceed, given that the property has been sold.
Thus, to repeat, there is no utility in reinstating this appeal, and for that reason alone I propose to dismiss the application.
I have heard argument though in relation to reinstatement, putting aside the issue of utility, and I propose to address those arguments in the event that it is thought that there is some utility in reinstating the appeal.
Rule 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor, r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert and Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services [Australia Ltd v ANU (2009) 239 CLR 175].
As to that latter case and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than just refer to that.
In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert and Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
(Citations omitted)
In summary then, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to be taken into account. In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the relevant timeframe, secondly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed. It could be said that the history of the proceedings is also relevant here, as well as the conduct of the parties and the nature of the litigation, but I propose to confine my remarks to what I see as the three most relevant significant factors.
First, addressing the issue of the reasons for the failure to comply with the relevant timeframe.
What the applicant says in his affidavit, in summary, is that he was unable to file the draft appeal index within time because of, as he describes it, the overwhelming number of other court events, and events incidental to the proceedings, in which a draft appeal index was required to be filed. He suggests that he has been harassed by telephone, email and text messages. I interpolate to say I am not quite sure how that provides a reason for failure to comply with a timeframe, but there it is.
He also suggests that his health has affected his ability to concentrate, which he says makes him slower than he would like, and he, in the affidavit, refers to some injuries he sustained in March of 2013, and what he says are some post-traumatic stress issues.
That seems to be the extent of his reasons for his failure to comply.
I do not accept that the applicant’s involvement in other proceedings is a satisfactory excuse for a failure to comply with the filing of a relatively simple and straightforward document, namely a draft appeal index. As to his health, it may be that he has those health problems, and I am not suggesting otherwise, but there is no evidence to suggest that they affected his ability to file a draft appeal index within time, and I note that there is no medical evidence, including any medical report attached to that affidavit. There is reference to documentation, as he describes it, from a psychologist, but, as I say, there is no report, and no documentation attached to his affidavit which would allow me to make a finding in relation to the effect of his health upon his ability to file a draft appeal index within time. I have already touched upon the so-called excuse of the applicant being harassed, and I do not accept that as a satisfactory reason for failing to file a draft appeal index.
Thus, I find that there is no satisfactory explanation given by the applicant for his failure to file a draft appeal index within time.
Coming to the second factor, namely the merits of the appeal.
In the Notice of Appeal, nine grounds of appeal are relied on, namely:
1. The Learned Judge’s decision is plainly wrong.
2. The learned judge failed to provide adequate reasons.
3. The learned trial Judge clearly erred on the facts.
4.The learned trial judge was biased and failed to bring an impartial and unprejudiced mind to the proceedings.
5.The learned trial judge took into account extraneous or irrelevant material and failed to take into account material considerations, accepting hearsay as evidence, facts stated by the Applicant that were not substantiated with evidence, making statements and assertions that were in error.
6.The learned trial judge in this instance acted under a misapprehension of fact in that significant weight was given to irrelevant and unproved matters.
7.The decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court.
8. A substantial injustice has occurred.
9. A substantial wrong has occurred.
They are simply not competent grounds of appeal. They are mere assertions as opposed to grounds of appeal, and it is impossible to discern from those so-called grounds of appeal, whether any of the assertions can have any prospect of success.
I do note that in Grounds 7, 8 and 9 there would appear to be some confusion on the part of the applicant, because those three grounds seem to relate to the question of leave to appeal as opposed to being grounds of appeal. Thus, in reality, it is only Grounds 1 to 6 which need to be addressed.
The effect of that is that I am not in a position to find that the Notice of Appeal, if reinstated, would have any chance of success. I might also say, that having read her Honour’s reasons for judgment and attempted to relate the assertions numbered 1 to 6, I fail to see how her Honour has erred in the way asserted.
Coming to the third and final factor, namely the prejudice to the parties depending upon whether the appeal is reinstated or not. If the application was dismissed then, prima facie, the applicant would suffer prejudice in that he would not be able to pursue this appeal. However, in my view, that is no prejudice to him, given my earlier finding that there is no utility in reinstating the appeal.
There is no appeal from a refusal to grant an application such as this. There is the possibility though, of an application for special leave to appeal being made to the High Court of Australia, but the question obviously would be whether that is something which is proportionate to what is at stake here. Thus the applicant is not entirely without remedy, but, to repeat, in my view, any suggestion of prejudice goes, given my finding of lack of utility.
On the other hand, if the application is successful, then there would clearly be prejudice to the respondent in that she would have to deal with the appeal. There would be resource, time and money issues, and in the background where, given the appeal is deemed abandoned, there is in fact no appeal on foot, and the respondent is perfectly at liberty to proceed to organise her life and her circumstances on the basis that there is no appeal against the orders of Johns J.
As the authorities recognise, consideration of the relevant factors informs the court’s determination of the fundamental issue, namely is it in the interests of justice to allow the appeal to proceed. Here, in my view, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused. I have found that there is no satisfactory explanation for the failure to file the draft appeal index within time. I have found that there is no basis on which it can be said that the appeal has any chance of success, and there is prejudice to the respondent if the application is granted. Thus, even if it could be said that the appeal had some utility, in my view, the application for reinstatement must be refused.
Given the order that I propose, I now have an application on behalf of the respondent for costs. The amount sought is $2,342, which is an amount calculated on the scale, and it represents party/party costs.
The applicant formally opposes the application but provides no reason as to why those costs should not be ordered, given that his application has been dismissed and he has been entirely unsuccessful. I therefore propose to make an order for costs in the sum sought by the respondent.
I certify that the preceding forty (40) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Strickland J delivered on 24 October 2019.
Associate:
Date: 6 November 2019
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