Taccini and Taccini - [2018] FamCAFC 27

FAMILY COURT OF AUSTRALIA

TACCINI & TACCINI

[2018] FamCAFC 27

FAMILY LAW – APPEAL – Application to extend time to appeal – Applicant seeks to appeal against property settlement orders – Joshua v Joshua (1997) FLC 92-767 and Tormsen and Tormsen (1993) FLC 92-392 considered – There is a substantial issue to be raised on appeal – Adequate explanation for the delay – No relevant prejudice to the respondent – Time within which to appeal extended – Applicant to contribute to respondent’s costs in fixed sum.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 1.14

Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Taccini

RESPONDENT:

Mr Taccini

FILE NUMBER:

PTW

2418

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

13 February 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

13 February 2018

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

6 September 2017

LOWER COURT MNC:

[2017] FCWA 110

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Hooper SC

SOLICITOR FOR THE RESPONDENT:

Bloxham Legal

Orders

The time within which the applicant had to file a Notice of Appeal against the orders made by the Honourable Justice Moncrieff on 6 September 2017 be extended to 28 days from the date hereof.
The Application in an Appeal filed 30 November 2017 be dismissed.
The applicant contribute to the respondent’s costs fixed in the sum of $1,000, payable within 90 days.

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 Taccini & Taccini 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 PERTH

Appeal Number: WA 41 of 2017
File Number: PTW 2418 of 2015

Ms Taccini

Applicant

And

Mr Taccini

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is that of Ms Taccini (“the applicant”) seeking an extension of time within which to file a notice of appeal against orders made by Moncrieff J on 6 September 2017. The respondent to the application is Mr Taccini (“the respondent”).
By way of background, the matter went to trial over a number of days in February and March 2017 and written submissions were provided in April and June 2017 prior to the delivery of judgment on 6 September 2017.
His Honour’s judgment is lengthy, and the court record discloses that on the day it was delivered, the proceedings were stood down after just a few minutes. No doubt that occurred because his Honour had, in his reasons, invited counsel to submit a minute effecting the distribution foreshadowed in his judgment.
The matter was called on again later in the morning, by which time it appears the respondent’s counsel had been able to prepare a minute. His Honour then made the orders in the terms proposed in the minute with one amendment. His Honour also made directions in relation to the filing of submissions relating to costs.
Significantly, although prior to that time the applicant had been legally represented, she appeared self-represented on the day judgment was delivered and she has indicated to me today that she was somewhat dissatisfied with her legal representation during the trial.
One of the complaints the applicant has made in her proposed notice of appeal arises from a claimed denial of time for her to seek legal advice following the publication of the reasons. Whether there is any substance in this complaint is impossible to tell because I do not have a transcript. In any event, a copy of the judgment would have been given to the applicant on the day the judgment was delivered and presumably she was also provided with a copy of the minute that senior counsel for the respondent had prepared.
The record indicates that the judgment was then distributed to the parties on 11 September 2017 to postal addresses the parties had provided. However, it appears the applicant had misplaced documents or alternatively had not received them because on 28 September 2017 or thereabouts the applicant made a written request to the court for a copy of the judgment and the orders.
Although the applicant had requested that the documents be emailed to her as soon as possible, it seems they were considered too large to send in that form and they may therefore have been sent in the post. In any event, the time for appealing against the decision expired on 4 October 2017 and by that time no appeal had been lodged. In her affidavit in support of her application for an extension of time, the applicant provides no reason for the delay in filing an appeal up to 9 October 2017.
The only explanation is that she was a self-represented litigant and in her submissions today the applicant expanded upon that proposition, explaining how it took time for her to ascertain the appropriate processes. That is a matter I consider I can take into account without any sworn evidence since it is self‑evident. The applicant also points to the very strong criticism directed at her in the findings of the primary judge and the fact that such criticism was hurtful. The criticisms of the applicant may have been warranted, but nevertheless I accept that they would have been hurtful and would not have necessarily put the applicant in “a good place” to determine the appropriate course to take to challenge the judgment.
The explanation provided for subsequent delay is that on 9 October 2017 the applicant attended at the registry to submit “papers”, but was informed that they were not completed correctly and that she needed to try again once the documents were amended.
The applicant then swears that, on 16 October 2017, she was struck by a hoarding which had come loose from a building project in the city, causing her injury. She provides more than satisfactory evidence of the impact upon her of that accident and her consequence inability to proceed with the appeal.
It was not until 13 November 2017, which was more than a month after the last date for filing of the appeal, that the application was lodged seeking the extension of time. The application has not been listed until now because the medical evidence provided indicated the applicant would not be able to deal with the legal issues any earlier than 9 February 2018.
Subsequently, on 30 November 2017, the applicant filed a further document in which she sought certain orders and provided a further affidavit containing scandalous and irrelevant assertions.
As I see it, the grounds set out in the proposed notice of appeal provided to the Court, but not provided to the respondent until the commencement of today’s hearing, challenge three aspects of his Honour’s decision.
Ground 1 relates to the assessment of the s 75(2) factors by which his Honour made a fairly modest adjustment against the contribution finding he had already made. The second ground attacks the judge’s decision to dismiss the applicant’s claim for spousal maintenance on the basis that she had not met the threshold for such a claim. The third ground relates to the procedural fairness issue alluded to earlier concerning the judge failing to allow the applicant time to seek advice about the orders that counsel for the respondent had drafted.
However, in advancing her argument this morning, the applicant has, although referring to the s 75(2) ground, focused on issues that are relevant only to the contribution finding and she has also referred to the adverse credit findings. When I pointed out that her grounds were not consistent with the arguments she was presenting today, the applicant explained that she felt it necessary to provide some form of grounds of appeal to get her application submitted in time and she foreshadowed seeking to amend after she takes further advice from a solicitor who she says is assisting her with some aspects of the appeal.
Turning then to the legal principles relating to such applications, the Family Law Act 1975 (Cth) (“the Act”) prescribes the filing of a notice of appeal within the time prescribed in the Family Law Rules 2004 (Cth) (“the Rules”). The Rules provide for the appeal to be lodged within 28 days after the order appealed from was made, but, significantly, r 1.14 permits the extending of time in which to appeal.
The principles relevant to applications for extensions of time were set out by Lindenmayer J in Joshua v Joshua (1997) FLC 92-767 where his Honour, referencing the decision in GallovDawson (1990) 93 ALR 479, explains that
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court’s satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant
…
the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation.
But as has been pointed out in Tormsen and Tormsen (1993) FLC 92-392, the wide discretion given to the Court is not to be fettered and it is therefore the case that failure to establish factors normally informing the discretion is not a bar to the exercise of the discretion in favour of the applicant.
Turning first to the question of whether there is a substantial issue to be raised on the appeal, I am satisfied that there is a substantial issue, which is not to say that I am persuaded that the appeal has any strong merit. It is simply that in the notice of appeal the applicant has identified a potential ground that is at least arguable; namely the modest s 75(2) adjustment in circumstances where the applicant has the care of two relatively young children, while the primary judge found there was no impediment to her working. I emphasise that I do not wish to suggest that there is merit necessarily in that ground of appeal, but it is a matter that is worthy of consideration by a Full Court.
Next I consider the discretionary matters that inform my decision. As counsel for the respondent has correctly pointed out in his submissions, there was little in the applicant’s affidavit that explained the delay in the critical 28 days leading up to 4 October 2017. What can be said is that during this period the applicant was self-represented, as she stated in her affidavit.
It is the case that the appellate process is complicated. People do take time to find out how to proceed and sometimes to seek legal advice. In this case, the applicant also relies upon the trauma she experienced as a result of the strong adverse credit findings made against her and her doubts about what this meant in terms of the outcome for her. In my view, those are adequate explanations.
In terms of the further delay, it is the unchallenged evidence of the applicant that she attended at the registry and that is corroborated to some extent by the fact that the record discloses that she sought to obtain a copy of the judgment and orders just before coming to the court. I do not know why her appeal documents were rejected, but I have no reason to doubt her evidence they were.
There is then comprehensive evidence about what then befell the applicant in terms of the accident in the city and the medical consequences, which would have made it difficult for her to file this application.
Finally, it is noted that the application seeking an extension of time to appeal was filed on 13 November 2017 and the delay is therefore relatively modest.
In dealing with other discretionary factors, counsel for the respondent very properly acknowledges that, save for the obvious prejudice to the respondent associated with an appeal being allowed to proceed, there is no prejudice in the sense that word is understood when exercising this discretion.
In considering the public interest in the finality of litigation, it is a strong factor, but is ameliorated here by the shortness of the delay and by the fact that, ultimately, the delay would have no impact on the resolution of the appeal.
Finally, I note that the applicant has been strongly warned by me today about the possible cost consequences associated with an unsuccessful appeal. I appreciate that the respondent may not be able to secure reimbursement of all the costs he will incur in defending the appeal, though there has been mention today of the possibility of an application for security being made.
For all of those reasons, I am satisfied there should be an extension of time.
The applicant has foreshadowed that she may wish to amend her notice of appeal. It is preferable this be done prior to the filing of the notice of appeal, and I therefore intend, subject to any comment, to give the applicant 28 days in which to file an amended notice.
There being no comment in relation to the proposed timing, the formal order of the Court is that the time within which the applicant had to file a notice of appeal against the orders made by the Honourable Justice Moncrieff on 6 September 2017 be extended to 28 days from the date hereof.

RECORDED: NOT TRANSCRIBED

Following the indication by the applicant that she will no longer pursue the additional application filed 30 November 2017, that application will be dismissed.

RECORDED: NOT TRANSCRIBED

The application now before the Court is the respondent’s application for costs. Although the respondent has been wholly unsuccessful in the proceedings today, and although the Act provides that each party would ordinarily pay their own costs, it is well accepted that there are exceptions to that proposition. In cases where a party has had to come to the Court seeking an indulgence, it is not uncommon for them to have to meet the costs of that exercise, even if they are successful in obtaining the indulgence.
As counsel for the respondent has pointed out in his submissions, there is an added factor in this case: the respondent was not served properly with all of the documents and, although he was able to “scratch around” and get those documents, even that exercise had not secured a copy of the proposed notice of appeal which should have been provided to the respondent.
Without that document, the respondent was not in a position to properly assess the merits of the application for an extension of time. In the circumstances, I am persuaded, notwithstanding that the applicant appears to be in somewhat difficult financial circumstances, that the applicant should pay the respondent’s costs. The amount sought is modest given the attendance today of senior counsel and a solicitor.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 13 February 2018.

Associate:

Date: 30 April 2018