Somers & Ettridge (No 3)
[2019] FamCAFC 234
•4 December 2019
FAMILY COURT OF AUSTRALIA
| SOMERS & ETTRIDGE (NO 3) | [2019] FamCAFC 234 |
| FAMILY LAW – APPEAL – EXTENSIONS OF TIME – Where the applicant provides no satisfactory explanation for the failure to file Notices of Appeal within time – Where the proposed appeals have no prospect of success – Where there is a lack of bona fides on the part of the applicant – Where it is beyond doubt that the interests of justice demand that the application for extensions of time be dismissed – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks costs – Orders made for written submissions to be provided by both parties. |
| Family Law Act 1975 (Cth) Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Somers |
| RESPONDENT: | Ms Ettridge |
| FILE NUMBER: | MLC | 11262 | of | 2015 |
| APPEAL NUMBER: | SOA | 31 | of | 2019 |
| DATE DELIVERED: | 4 December 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 September 2017, 29 October 2018, 20 November 2018, 7 December 2018 |
| LOWER COURT MNC: | [2017] FamCA 1173 [2018] FamCA 863 [2018] FamCA 943 [2018] FamCA 1042 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Paterson |
| SOLICITOR FOR THE RESPONDENT: | Carew Counsel Pty Ltd |
Order of 25 November 2019
The Application in an Appeal filed on 7 June 2019 be dismissed.
Order of 4 December 2019
Within 14 days of the date hereof the respondent file and serve written submissions in relation to the issue of costs.
Within 14 days of the receipt of the said written submissions the applicant file and serve written submissions in response.
Within seven days of the receipt of the responding submissions the respondent file and serve any reply thereto.
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 (No 3) 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 31 of 2019
File Number: MLC 11262 of 2015
| Mr Somers |
Applicant
And
| Ms Ettridge |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in an Appeal filed on 7 June 2019, Mr Somers (“the applicant”) sought extensions of time to file Notices of Appeal from a declaration made on 15 September 2017 by Thornton J, final orders for property settlement made on 29 October 2018 by Cronin J, an order for costs made on 20 November 2018 by Cronin J, and enforcement orders made on 7 December 2018 by Cronin J.
That application is opposed by Ms Ettridge (“the respondent”), and to that end she filed a Response on 11 July 2019, seeking an order that the application be dismissed.
The application was heard on 3 September 2019, and judgment was reserved. However, on 25 November 2019, at the commencement of the hearing of an appeal by the applicant from orders made by Johns J on 2 August 2019, I took the opportunity to make an order dismissing the Application in an Appeal filed on 7 June 2019 in this matter. I was not in a position to deliver my reasons for judgment at that time, but I indicated that I would do so within two weeks. These are those reasons.
Extensions of time are required here given that the Family Law Rules 2004 (Cth) (“the Rules”) provide that a Notice of Appeal must be filed within 28 days of the making of the orders sought to be appealed (r 22.03). Plainly that requirement has not been complied with by the applicant, and he is well out of time to file a Notice of Appeal from any of the orders referred to.
The relevant principles
The principles relevant to the determination of an application for an extension of time can be found in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:
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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott [1986] 12 FCR 187, at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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…
In summary, the fundamental issue is whether extensions of time are necessary for the Court to do justice between the parties, and in considering that, there are a number of factors which may be relevant to be taken into account. In my view, the three most relevant factors here are first, whether there are adequate reasons which explain the failure by the applicant to comply with the timeframe provided in the Rules, secondly, the prospects of success of any of the proposed appeals, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed. To a lesser extent, the history of the litigation and the conduct of the parties are also relevant, and I will touch on these issues where necessary, later in these reasons.
The explanations for the failures to comply with the relevant timeframes
In his affidavit filed on 7 June 2019, the applicant puts forward the same reasons for his failures to file Notices of Appeal in respect of each of the sets of orders of which he now complains, and in summary those reasons are as follows:
a)He had a number of court events to attend to in several jurisdictions.
b)He had insufficient funds to obtain representation because of the respondent allegedly removing money from his business without his knowledge or consent.
c)It took him two and a half years to obtain a restraining order against the respondent to stop her attending his offices and premises and removing documents. He obtained the restraining order on 25 May 2017, four days before the hearing before Thornton J.
d)i. Between May 2016 and May 2018 he was attending to a costs dispute with his solicitor which led to complaints to the Victorian Legal Services Board and Commissioner, and a referral to the Victorian Civil and Administrative Tribunal.
ii.Orders were made in 2017 by the Tribunal determining the amount to be paid by the applicant for costs, but he alleges that that did not resolve the matter and he has failed to comply with the order.
iii.He has not paid the amount required to be paid to the solicitor, and his file which contains documents relevant to the matter before Thornton J is being retained.
e)He has referred the respondent’s firm of solicitors to the Victorian Legal Services Board and Commissioner.
f)Between June 2015 and June 2018 he was involved in a trademark dispute.
g)He suffers from post-traumatic stress disorder diagnosed by a psychologist as a result of being exposed to an accident in January 2009 involving the respondent who sustained life-threatening injuries. As at the date of the affidavit, he had been working for 29 months with the psychologist.
h)He suffers from damage to “Cervical, Thoracic and Lumbar spine”, and he is waiting for treatment in the public health system.
i)As a result of pain from the spinal damage he lost almost two weeks of preparation time prior to the final property settlement hearing on 23 October 2018. He was unable to attend to the filing and serving of all of his documents.
The respondent submits that none of these reasons provide an adequate explanation for the applicant’s failure to file Notices of Appeal within time, and I agree with that submission.
The circumstance that the applicant may have had a number of court events to attend to in different jurisdictions, plainly does not provide a reason for not being able to file Notices of Appeal within time. Even if there was a clash where he may have had to work on more than one matter, something which has not been established, what the applicant has done, is to make a conscious decision to work on the other matter and not prepare and file a Notice of Appeal.
Further, even if it can be accepted that the applicant had insufficient funds to obtain representation, that does not provide an adequate reason for not filing Notices of Appeal within time. As an experienced self-represented litigant, the applicant is quite capable of preparing and filing a Notice of Appeal, and indeed, he has now done so in this matter on more than one occasion, even if only in draft.
The issue about a restraining order is irrelevant to the filing of Notices of Appeal, as are his dealings with his solicitor over legal costs, the trademark dispute, and his complaint about the respondent’s solicitors.
It is noteworthy that once each of those matters had finalised, the applicant made no move to seek an extension of time to appeal against the declaration made by Thornton J, or to file Notices of Appeal within time against the subsequent orders, when he clearly could have done so.
As to the applicant’s alleged post-traumatic stress disorder, he has provided a letter written by a psychologist on 7 May 2019. It records that she has been consulted on 20 occasions by the applicant since November 2016. It also records that he presented with “ongoing symptoms of post-traumatic stress disorder”. However, there is no diagnosis of that disorder, and importantly, there is no indication that the symptoms the applicant has self-reported have prevented him from preparing and filing Notices of Appeal. That is also the case with what the applicant has deposed to in his affidavit as to this alleged disorder.
Thus, even if this letter is admissible, neither it, nor anything in the affidavit in relation to this alleged condition, provides a reason for the failure by the applicant to file Notices of Appeal within time.
In relation to the other health issues raised by the applicant, namely alleged spinal damage and alleged pain caused as a result, the applicant provides no medical evidence whatsoever, and there is no basis to find that the alleged condition prevented him from preparing and filing Notices of Appeal. Indeed, it is noteworthy that he claims that he lost two weeks of preparation time prior to the hearing before Thornton J, but he does not identify any other period when he had these difficulties, and certainly in none of the 28 day periods of time during which it was open to him to file Notices of Appeal following the orders of which he now complains.
It is also instructive to reflect on the timing of the application seeking extensions of time. The respondent submits that it was not done bona fide, and was done for no other reason than “to be vexatious and to continue to frustrate the implementation of the orders made throughout the course of these proceedings to date”.
There is force in that submission, given the history of the proceedings since the initial order for the sale of the property was made by Cronin J on 29 October 2018. The applicant refused to comply with that order, and despite there being three enforcement applications filed, and various orders made, the applicant was able to stall the sale of the property. It had reached the stage by June 2019 where the applicant was required to sign a contract of sale, and he was refusing to do so. It was only then that he filed the application seeking extensions of time, just prior to the respondent filing a further Application in a Case on 12 June 2019, seeking further enforcement orders in relation to the sale of the property. Plainly, he thought that filing the application for extensions of time would prevent or further delay the sale of the property, because he followed that up with an application to stay the orders providing for that sale, pending determination of his “appeals”. However, it did not achieve that purpose, with Johns J dismissing the latter application on 2 August 2019, and at the hearing of the application, I was informed that settlement of the sale of the property was due to take place on the following Friday. Indeed, it is common ground that the sale has now been completed.
The prospects of success of the proposed appeals
In each of the proposed Notices of Appeal the applicant seeks leave to appeal, and if leave is granted, to appeal against the declaration/orders made. However, he does not require leave to appeal against the declaration made by Thornton J on 15 September 2017, the final property settlement orders made by Cronin J on 29 October 2018, or the order for costs made by Cronin J made on 20 November 2018, but he does require leave to appeal against the enforcement orders made by Cronin J on 7 December 2018.
The “facts relied on in support” of the latter application are as follows:
1.The learned trial Judge is bias (sic) and exceeded the reasonable exercise of discretionary judgement (sic).
2.The learned trial judge allowed extraneous or irrelevant matters to guide or affect him mistaking the facts and accepting hearsay and unproven assertions by the [respondent].
3.The learned trial judge ordered costs against the [applicant]. The [applicant] complied with orders and the [respondent] did not comply with the orders.
Plainly, paragraphs 1 and 2 are not facts, but are mere assertions without any particulars, and as such they do not provide any basis for leave to appeal to be granted.
As for paragraph 3, which relates only to the order for costs, that too contains nothing more than a bare assertion without demonstrating any basis for leave to appeal to be granted.
I note that because of the inadequacy of all of the grounds of appeal in the Draft Notices of Appeal, on 12 July 2019 I ordered that the applicant file and serve a document setting out in detail the appealable errors that he asserts that each of the judges have made in relation to the orders the subject of each of the Draft Notices of Appeal. The applicant filed that document on 19 August 2019, but nothing in there addressed the facts relied on in support of any of the proposed applications for leave to appeal, and in particular in relation to the proposed application that I am now considering.
Leave to appeal simply cannot be granted on the basis of what the applicant relies on in this proposed application, and thus that application has no prospects of success. Out of abundant caution though, I will consider the grounds of appeal propounded in that Draft Notice of Appeal, together with the grounds of appeal in each of the other Draft Notices.
The grounds of appeal in the Draft Notice of Appeal from the declaration made by Thornton J on 15 September 2017 are as follows:
1. The Learned trial judge’s decision is plainly wrong.
2.The learned trial judge failed to afford the [applicant] procedural fairness.
3.The learned trial judge failed to provide adequate reasons.
4.The learned trial judge erred and her Honour’s discretion miscarried in confining the scope of her enquiry into “the existence of a de-facto relationship between the parties” rather than considering whether the [respondent] had established a prima facie case and whether that case was sufficient to justify jurisdiction, the threshold hearing and her s.90RD of the Family Law Act 1975 (Cth) declaration that a de-facto relationship existed between the parties;
5.The learned trial judge was clearly biased and failed to bring an impartial and unprejudiced mind to the resolution of the question as to the existence of a de-facto relationship between the parties. Her honour clearly erred.
6.The learned Justice Thornton J. erred on the facts;
7.The learned Justice Thornton failed to take into account a material considerations. Specifically, too much weight was placed on particular matters and too little weight was placed on other matters.
9.The learned trial Judge took into account irrelevant matters;
(Errors and omissions as per original)
The grounds of appeal in the Draft Notice of Appeal from the property settlement orders made by Cronin J on 29 October 2018 are as follows:
1. The Learned trial judge’s decision is plainly wrong.
2. The learned trial 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.
4.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 [respondent] that were not substantiated with evidence, making statements and assertions that were in error.
5.The learned trial judge in this instance acted under a misapprehension of fact in that significant weight was given to irrelevant and unproved matters.
6.The decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court.
7. A substantial injustice would result if leave were refused.
8. A substantial wrong has occurred.
(Errors and omissions as per original)
The grounds of appeal in the Draft Notice of Appeal from the order for costs made by Cronin J on 20 November 2018 are as follows:
1. The Learned trial judge’s decision is plainly wrong.
2. The learned trial judge failed to provide adequate reasons.
3. The learned trial Judge clearly erred on the facts.
4.The learned trial judge did not provide the [applicant] with an opportunity to review the s.90RD declaration made my (sic) Thornton J as stated in reasons.
5. A substantial injustice would result if leave were refused.
6. A substantial wrong has occurred.
The grounds of appeal in the Draft Notice of Appeal from the enforcement orders made by Cronin J on 7 December 2018 are as follows:
1. The Learned trial judge’s decision is plainly wrong.
2. The learned trial 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 [respondent] 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.A substantial wrong has occurred.
As can be seen, the grounds of appeal are almost identical in form. Though described as grounds of appeal, again they are in fact nothing more than assertions without any particulars, making it impossible to find that any of the appeals have any prospects of success.
Indeed, the only ground that provides any detail at all is Ground 4 in the first Draft Notice of Appeal. However, that said, having read her Honour’s reasons for judgment, that is not a complaint that can be made out. Thus, as they stood, it was safe to say that none of the Notices of Appeal had any chance of success.
Turning to the document filed by the applicant on 19 August 2019. The first thing to note is that the applicant failed to address all of the grounds of appeal in each of the Draft Notices of Appeal, and thus with those he left out, there is nothing further before this Court to demonstrate appealable error.
The proposed appeal against the declaration made by Thornton J on 15 September 2017
Only Grounds 2, 6, 7 and 9 are addressed by the applicant.
Ground 2
It is said that the alleged lack of procedural fairness arises from the failure of the primary judge to apply the “guidelines” for trial judges set out by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [253]. However, the only complaint is described as follows:
(23)The interests of Justice and the circumstances of this case required the judge to suggest procedural steps that should have been taken by me to produce evidence contained in the affidavits of Mr GG, Mr Y and Ms HH and Ms Z.
There is no indication though as to what the particular difficulty was that her Honour should have remedied. Her Honour recorded in her reasons for judgment the documents relied on by each party (at [13] and [14] and annexure A). Each of the affidavits referred to by the applicant in paragraph 23 above were included, and thus the evidence in those affidavits was before her Honour subject to cross-examination, and as her Honour also recorded (at [14]) Mr Y and Ms Z were cross-examined.
Thus, it is not apparent how her Honour failed to afford the applicant procedural fairness in those circumstances. Indeed, even if there was a divergence from the guidelines, that is not sufficient per se to demonstrate appealable error (Yein & Zihao (2019) FLC 93-889).
Ground 6
The applicant refers to evidence that he says demonstrated that the parties were not living in a relationship as a couple, and in a loving and affectionate relationship at various times in 2007 and 2008. However, there is no mistake of fact by her Honour here. It is simply a question of what her Honour made of the evidence, and not what the applicant says it revealed.
Grounds 7 and 9
The applicant refers to certain of the evidence before her Honour, and says that that evidence should not have been given the weight her Honour afforded to it, or should have been given more weight. However, it is not open to a litigant to cherry pick the evidence, and suggest error, whilst ignoring the totality of the evidence taken into account by her Honour. Further, a weight challenge can only succeed if it is demonstrated that her Honour was “plainly wrong” in the exercise of her discretion, and that has not been established here.
Thus, it is still the case that no appealable error is identified by the applicant in relation to the declaration made by Thornton J.
The proposed appeal against the orders for property settlement made by Cronin J on 29 October 2018
The applicant seeks to address Ground 4 which he describes as “procedural fairness”. However, as can be seen from [25] above, that is not the ground as pleaded. Indeed, there is no ground of appeal asserting a failure to provide procedural fairness, and no other ground is addressed by the applicant.
Ground 4 as pleaded asserts that Cronin J was biased, however, there are no details in this document addressing such a claim. Thus, it is still the case that the applicant has not identified any appealable error in relation to the orders for property settlement made by Cronin J.
The proposed appeal against the order for costs made by Cronin J on 20 November 2018
Only Grounds 1 and 2 are addressed by the applicant.
Grounds 1 and 2
What the applicant has said under this heading is difficult to follow. There is nothing here that elaborates at all on the bare assertions that comprise these grounds, and indeed, it is even possible that the applicant is withdrawing this appeal. He says on page 12:
(a)Grounds in Draft Notice of Appeal in relation to 20 November 2018 costs is otherwise redacted.
In any event, there is still no appealable error identified by the applicant in relation to the order for costs made by Cronin J on 20 November 2018.
The proposed appeal against the orders for enforcement made by Cronin J on 7 December 2018
I confirm that to pursue this appeal the applicant requires leave, and I have found that there is no basis for such leave to be granted. However, to repeat, for completeness I will address what the applicant sets out in this document in relation to the grounds of appeal.
Grounds 1 – 7
Again, what the applicant puts as to further detail, is difficult to follow, and it fails to provide any basis for finding appealable error in the grounds of appeal as pleaded.
Thus, there is still no basis to find that the applicant would enjoy any level of success if he was able to pursue this appeal.
The prejudice to the parties depending on the result of the application
If the application is allowed, there would clearly be prejudice to the respondent in that she would have to deal with the appeals. There would be resources, time and financial issues involved where currently there are no appeals on foot, and the respondent is quite entitled to proceed on that basis.
If the application is dismissed, prima facie the applicant would suffer prejudice in that he would not be able to pursue the appeals. However, in fact there would be no prejudice to the applicant in relation to the proposed appeals against the declaration by Thornton J, the final orders for property settlement made by Cronin J, and the enforcement orders made by Cronin J. That is because it is common ground between the parties that the property the subject of the property settlement proceedings has been sold to a third party, and given it has been this sale that the applicant has been seeking to prevent, there would be no utility in permitting these proposed appeals to proceed.
There is also the lack of bona fides on the part of the applicant in pursuing the application for extensions of time. To repeat, I consider that that application was nothing more than part of a last minute attempt by the applicant to delay the sale of the property.
There is, of course, no appeal from a refusal to grant an application such as this. There is the possibility of an application for special leave to appeal being made to the High Court of Australia, but clearly the question 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 question of prejudice goes with the lack of utility in allowing the appeals to proceed.
As the authorities recognise, consideration of the relevant factors informs the Court’s discretion of the fundamental issue, namely, is it in the interests of justice to allow the appeals to proceed. Here, it is beyond doubt that the interests of justice demand that the application for extensions of time be dismissed. There is no adequate reason for the failure to file the Notices of Appeal within time, and there is a lack of bona fides on the part of the applicant. There is no basis on which it can be said that any of the appeals have any chance of success, and there is the prejudice to the respondent if the application is granted. Thus, even if it could be said that the appeals have some utility, the application must be dismissed.
Costs
At the hearing of the application the respondent made an application for costs, but sought that there be written submissions provided in support of that application. Accordingly, I will make orders for that to occur.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 December 2019.
Associate:
Date: 4 December 2019
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