SUFFOLK & SUFFOLK
[2010] FamCAFC 262
•20 December 2010
FAMILY COURT OF AUSTRALIA
| SUFFOLK & SUFFOLK | [2010] FamCAFC 262 |
| FAMILY LAW - APPEAL – Application to reinstate appeal – Appellant’s solicitors filed notice of ceasing to act after appeal instituted – Attempted filing of appeal books – Appeal books did not comply with orders of Registrar – Did not contain full transcript – Appeal deemed abandoned for failure to file appeal books – Full transcript now provided to Court – Where the parties attempted to reach consent orders and failed –Where the wife opposes the reinstatement of the appeal – Where the wife has been prejudiced by the substantial delay – Where there are some serious concerns about the husband pursuing the appeal – Where orders will be made dismissing the appeal should written submissions not be filed – Where the husband has some proper matters to argue – Where the husband may suffer injustice should the appeal not be reinstated – Appeal reinstated FAMILY LAW - COSTS – Where the husband has caused substantial delay – Where the wife has suffered prejudice – Husband to pay the wife’s costs of the appeal to be assessed |
| Family Law Act 1975 (Cth) s 90G(1) Family Law Rules 2004 22.20, 22.21, 22.43(1), 22.44 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Suffolk |
| RESPONDENT: | Ms Suffolk |
| FILE NUMBER: | BRC | 4720 | of | 2008 |
| APPEAL NUMBER: | NA | 73 | of | 2009 |
| DATE DELIVERED: | 20 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 December 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 September 2009 |
| LOWER COURT MNC: | [2009] FamCA 917 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Chan Lawyers |
Orders
That husband’s appeal filed on 2 October 2009 be reinstated.
That the husband file submissions in support of the appeal on or before 4.00pm 25 February 2011.
The wife file the submissions in response 21 days after the submissions of the husband have been filed.
Should the husband fail to file the submissions his appeal be dismissed.
The husband pay the wife’s costs of and incidental to the application to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Suffolk & Suffolk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 73 of 2009
File Number: BRC 4720 of 2008
| Mr Suffolk |
Appellant
And
| Ms Suffolk |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
In the husband’s amended application filed 31 May 2010, he asks for an extension of time to file an appeal. In fact that is not the difficulty in his appeal. It is that his appeal was deemed abandoned under rule 22.21 as a result of non compliance by the husband in his failure to file complete appeal books by 26 February 2010.
This matter has a long history.
The parties were married in August 2004 and separated in 2007.
A financial agreement was entered into between them on 10 August 2004.
On 4 September 2009, O’Reilly J made orders setting aside the financial agreement. Her Honour determined that the agreement was not a binding financial agreement pursuant to s 90G(1) of the Family Law Act 1975 (Cth) (“the Act”).
In relation to the appeal, I have granted the parties a series of adjournments to allow for the drafting and signing of a new financial agreement. I have also referred the matter to the Appeals Registrar for further dealings. It was expected on 6 September 2010 that a notice of discontinuance of the appeal would be filed and consent orders made.
I have since been informed that the parties have not been able to reach agreement and having listened to the husband, who appears in person and the solicitor for the wife it appears at least to me, that the parties are a long way away from agreeing.
The husband, therefore, wishes to have his application for the reinstatement of the appeal heard.
The main reason this is resisted, understandably, by the solicitor for the wife is the significant delay in the matter so far, and the further delays occasioned by such an order being made.
History
The hearing before O’Reilly J was on 15 and 22 July 2009. The husband and the wife at that time were represented by solicitors and counsel.
The husband appealed from those orders by a notice of appeal filed 2 October 2009. The husband’s application before me today is to re-instate the appeal. It may be of benefit that I explain why the appeal was deemed abandoned.
On 27 October 2009 a draft appeal index was filed by the husband’s solicitors.
On 7 December 2009 the Appeals Registrar conducted a directions hearing. He made orders in relation to the preparation of the appeal and the settling of the appeal index. The husband was required to prepare the appeal books in accordance with the settled index, which included transcripts of the proceedings before O’Reilly J. The husband, pursuant to order 3, was further required to file the appeal books by 4:00pm on 26 February 2010. Order 4 provided:
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date.
On 26 February 2010, the solicitors for the husband attempted to file the appeal books. However, the books were not prepared in accordance with the settled index and therefore not accepted for filing. The deficiency related to one aspect only, the absence of the transcript of the proceedings on 15 July 2009. It seems that only an extract of the transcript from that day was provided, rather than the full transcript.
On 9 March 2010, the Appeals Registrar emailed the husband. He indicated that he had been advised by the husband’s solicitors that they were no longer acting for the husband. The registrar asked the husband to telephone him urgently so that they could discuss the status of the appeal.
On 12 March 2010, the solicitors for the husband filed a notice of ceasing to act. Since that time the husband has represented himself.
The Appeals Registrar sent a letter to the husband dated 17 March 2010 and said:
I have tried to contact you about the appeal books on the mobile number advised by your former solicitors on a number of occasions and each time a message on that line indicated that the phone was switched off. I have also emailed you at the address again provided by your former solicitors and have received no reply.
The Registrar then set out the reasons why the appeal books were not accepted for filing and continued:
Therefore this Appeal is taken to be abandoned pursuant to Rule 22.20(2) of the Family Law Rules.
You are referred to Section 94(2D)(c) of the Family Law Act. Any application for reinstatement of this appeal should be made on an Application in an Appeal supported by affidavit filed with me in the [Northern] Regional Appeals Registry.
By facsimile dated 7 April 2010, the husband sent his correct contact details to the Appeals Registrar. He also indicated he had tried to contact the Registrar and left a message.
On 16 April 2010 the husband filed an application seeking an extension of time to file the full transcript of 15 July 2009. As already observed, in essence the husband seeks the reinstatement of his appeal. In the affidavit filed in support of that application, the husband stated:
I understand only portion of transcripts has been given. I hereby attach a full copy for your records.
By letter dated 28 May 2010, the husband sent an amended application and accompanying affidavit “with more details as they requested”. The application and affidavit were filed on 31 May 2010. Within that letter, the husband stated that the wife had informed him that she had “discontinued use of Chan Lawyers services for the time being” and indicated he was unsure whether to send copies of the amended application and affidavit to the firm.
The amended application is in similar terms to the original application. However, the supporting affidavit contains an “annexure of evidence”, as it was described by the husband, in which he sets out his position. I set out the entirety of that annexure:
My ex solicitor, Hirst & Co Solicitors, was dealing with the matter in order to comply by 26th February 2010, namely to provide 4 copies of appeal books with a full transcript of the proceedings which occurred on the 15th July 2009 (they had full transcript on file).
I was surprised to receive correspondence 3 weeks later that we did not comply. I contacted Hirst and Co Solicitors to supply us with the full transcript, which they have done (a copy of this was handed to [the Appeals Registrar] during our previous meeting).
After speaking with [the Appeals Registrar] by phone he advised me to lodge new Application in an Appeal along with the Affidavit which was filed on 16th April 2010 and copies sent to Chan Lawyers.
Copies of the Appeal Books were also personally delivered to Chan Lawyers.
During the month of April I was very unwell suffering from exhaustion, loss of voice and throat complications, that is why [the Appeals Registrar] and I missed each other calls on several occasions.
By a letter dated 18 June 2010 the solicitors for the wife wrote to the Appeals Registrar to “confirm … that we still act [for the wife], and have held instructions despite what the Husband thinks, all of the relevant time.” The letter continued:
We are instructed that the Husband is seeking to persuade our client to dispense with our services and representation, however as previously stated, [we] still hold instructions.
The solicitors further stated that they have instructions to seek that there be discussion to ensure that the matters could be resolved, and asked quite reasonably, for a two or three week adjournment.
Attempts have been made since then, and earlier, for the most part of the last six months to resolve this matter, but unfortunately that has not been successful.
On 20 June 2010, the wife filed a response to the application in an appeal seeking that the husband’s application be dismissed and that the husband pay the wife’s costs of and incidental to the application. An affidavit in support was filed by the wife’s solicitor.
On 29 July 2010 the solicitor for the wife wrote to the Registry seeking an adjournment from 30 July 2100 to 4 August 2010. This correspondence also revealed that the parties were thought to be then close to reaching consent orders. Consequently the request was approved.
The parties then sought a further adjournment on 2 August 2010. The reason provided to justify the request was that the husband’s solicitor was “drafting a binding financial agreement for the parties signature”. Following this indulgence the parties were then granted a series of additional adjournments so that the binding financial agreement could be signed.
An agreement has never been reached and the husband now asks to have his application for reinstatement of the appeal heard.
Subject to reinstatement being granted, the appeal is now ready to proceed after written submissions are filed by the parties.
I should also mention that a directions hearing in relation to that the wife and her solicitors have complied in every respect, with all orders made by the court.
The wife’s submissions
I have referred already to part of the affidavit of the wife. In addition, I should say that Ms Chan, in her written and oral submissions seriously opposed the reinstatement.
In the affidavit Ms Chan sets out the long history of the matter and canvassed matters to which I have already referred. Ms Chan also details and provides copies of various correspondence between her and the husband’s various legal representatives.
The concluding paragraphs in Ms Chan’s affidavit are as follows:
6. I believe that the Appellant/Husband has been allowed substantial time in this matter.
7. Due to substantial and undue delay caused by the Appellant/Husband since filing his Amended Application on 10 May 2010, I believe that his said Application should be dismissed.
8. Further such delay has caused detriment to the Respondent/Wife financially particularly as she should now be able to proceed with her property application.
It is the last matter which is of particular concern. I also have the very useful submissions provided in writing by Ms Chan.
Relevant law
For the purpose of this application four rules are particularly relevant. Rule 22.20 prescribes the form that the appeal books must comply with. Rule 22.21 provides time limits for the filing of appeals. Rule states 22.21:
If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.
In rule 22.44 provides that a party to an appeal which has been abandoned may apply for reinstatement of an appeal. The rule does not proscribe any criteria to be considered when dealing with such an application. The rule states:
A party may apply to have an appeal taken to be abandoned under this Chapter reinstated.
Also relevant is r 22.43(1), which provides as follows:
If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of all other parties.
Discussion
In this matter, I am of the view that the appeal should be reinstated, despite the substantial prejudice to the wife occasioned by the very significant delay.
As Ms Chan set out in her submissions, the principles relevant to this application can be extracted from the well known decision of Gallo v Dawson (1990) 93 ALR 479, particularly at 480. In paragraph 5 of Ms Chan’s submissions she has summarised the matters that I need to particularly consider. I am mindful of the delay in this matter and the impact on the wife.
Although the appeal may not be heard until at least the middle of next year, it is necessary in this case to allow the appeal to be reinstated. Because there is some real concern as to whether the husband will diligently attend to the appeal and whether he is genuine in this matter I intend to make an order providing that he file documents on or before 25 February 2011. These are his submissions in support of the appeal. I intend to make an order that should the husband not file these documents then the appeal will be dismissed.
Obviously enough orders will be made that the wife file her material some 21 days thereafter.
If possible this appeal will be heard in the middle of next year, depending on the pressures of other matters, which include those matters affecting children.
I have a real concern about the genuineness of the husband’s appeal; it is obvious that it is a very real concern that the filing of the notice of appeal is being used as a delay tactic to keep the wife out of her entitlement. However, on the face of the notice of appeal, it seems that the husband has some proper matters to argue. He did file the appeal books and simply failed to file a part of the transcript. It cannot be said that there has not been an adequate explanation for the delay. It is obvious that should the husband not proceed with his appeal there could be some injustice to him.
Costs
In relation to costs, it is obvious from the reasons that in giving the husband this indulgence, the husband should pay the wife’s costs.
Costs do not follow the event in this court and I do take into account the fact that the husband says he is in poor financial circumstances. However it is striking, at least in my view, that there has been delay by the husband and that this has caused some serious prejudice to the wife. An order for costs should be made.
I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of Justice May delivered on 20 December 2010.
Associate:
Date: 23 December 2010
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