TAQUE & LONE
[2014] FamCAFC 83
•5 May 2014
FAMILY COURT OF AUSTRALIA
| [2014] FamCAFC 83 | |
| TAQUE & LONE | |
FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – where the application is opposed by the respondent – where the interests of justice require that the application be granted – appeal reinstated.
| Family Law Act 1975 (Cth) - s 90RD(1), ss 94(2D) & (2F) |
Family Law Rules 2004 (Cth) – r 22.13, r 22.44 & Chapter 22
|
| APPLICANT: | Ms Taque |
| RESPONDENT: | Mr Lone |
| FILE NUMBER: | ADC | 58 | of | 2012 |
| APPEAL NUMBER: | SOA | 78 | of | 2013 |
| DATE DELIVERED: | 5 May 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 5 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 2346 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richards |
| SOLICITOR FOR THE APPLICANT: | Patsouris & Associates |
| THE RESPONDENT | In person |
Orders
The Notice of Appeal filed on 3 December 2013 be reinstated.
The appellant file and serve a draft appeal index within fourteen [14] days of the date hereof.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Taque & Lone 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 ADELAIDE |
Appeal Number: SOA 78 of 2013
File Number: ADC 58 of 2012
| Ms Taque |
Applicant
And
| Mr Lone |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed by Ms Taque (“the applicant”) on
10 April 2014 seeking in effect that the Notice of Appeal filed in this matter on 3 December 2013 be reinstated.
The application is supported by an affidavit also filed on 10 April 2014, and that is an affidavit of a Law Clerk employed by the solicitors for the applicant.
There is a further order sought in the application, namely, that the time for the filing of a draft appeal index be extended to the date of filing of this application. That is not an order that need be sought, and it is not an order that I would make. If I was prepared to reinstate the appeal then there would be consequential orders made in relation to the filing of a draft appeal index, and perhaps for the listing of the matter for a directions hearing.
Thus the application I need to deal with is the application that the Notice of Appeal, referred to above, be reinstated.
The application is opposed by Mr Lone (“the respondent”).
As I have indicated the Notice of Appeal was filed on 3 December 2013. That Notice sought to appeal against two orders made by Judge Kelly on
5 November 2013. I have raised with counsel for the applicant today that there is some confusion as to one of the orders sought to be appealed against, but only in terms of the numbering that has been used.
The two orders identified in the Notice of Appeal are orders 1 and 5 made on
5 November 2013.
Order 1 is in fact a declaration made by the judge pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the parties were in a de facto relationship, and that relationship continued until mid-August 2010.
In the second order (order 5) there is a typographical error in that paragraph 5 is referred to in the second line of that order whereas it should be paragraph 4. That has led to the confusion about these orders.
One other quirk in relation to the orders made is that ultimately Judge Kelly published two sets of reasons for judgment. As to what I have described as order 1 namely, the declaration, her Honour published her reasons for judgment on 24 January 2014. In that judgment she only records making one order namely, the declaration. In relation to the other orders made by her Honour on 5 November 2013, her Honour published her reasons for judgment on
23 December 2013, and in those reasons for judgment there are a number of orders, including the order that I have described as order 5. The quirk that I am referring to is that as a result, if one looks at those two separate published sets of reasons there are in fact two orders numbered 1.
The fact that Judge Kelly published two separate sets of reasons for the orders made on 5 November 2013 is a crucial fact in relation to the application that is before me today.
Procedural Background
The orders were made on 5 November 2013, and the reasons were published respectively on 23 December 2013 and 24 January 2014.
The Notice of Appeal was filed on 3 December 2013.
Following her Honour publishing her reasons for judgment on 23 December 2013, as is common practice, the Appeal Registrar notified the parties that the applicant was to file a draft appeal index by 20 January 2014 namely, 28 days after her Honour’s reasons for judgment were published as provided for in the Family Law Rules 2004 (Cth) (“the Rules”). However, the Appeal Registrar was unaware that there was to be a separate set of reasons published in relation to the declaration made on 5 November 2013, and as I have indicated those reasons were not published until 24 January 2014.
As it happened, the applicant did not file a draft appeal index by 20 January 2014. The reason for that is now plain, and that is, the parties were still waiting for her Honour to publish her reasons for judgment in relation to the declaration she made on 5 November 2013. To repeat though, the Appeal Registrar was unaware of that, and as is common practice, when the draft appeal index was not filed the parties were notified that the appeal was taken to be abandoned.
That notification was by letter to the parties dated 23 January 2014, and the parties were directed to the relevant Rule which is r 22.13(3). Also in that letter, again as is common practice, the Appeal Registrar referred the parties to s 94(2D)(c) of the Act, which provides for an application for reinstatement of the appeal to be made if that is an application that is sought to be pursued.
As is apparent from what I have said already, the next critical fact is on
24 January 2014 the second set of reasons for judgment were published by Judge Kelly, and duly forwarded to the parties.
According to the affidavit of the Law Clerk to which I have earlier referred, those reasons were received in the solicitor’s office on 28 January 2014. However, as is deposed to in that affidavit the receipt of those reasons in the solicitor’s office was not brought to the attention of the solicitor having the conduct of this matter, namely Mr Patsouris, and in turn they were not forwarded to counsel. It was explained that that was a matter of oversight.
On 29 January 2014 at the further hearing of the applicant’s application for a stay of the orders made on 5 November 2013, according to Mr Richards, counsel for the applicant, the Judge did not mention that she had delivered her reasons for judgment in relation to the declaration on 24 January 2014.
Mr Richards tells me that there was discussion, and particularly from her Honour, whereby her Honour explained that she was unaware that the Notice of Appeal that had been filed was an appeal against both her orders by way of injunction and the declaration.
It is beyond doubt that as at 29 January 2014, the appeal could not in fact be deemed abandoned. I say that because of course time could not run under the Rules until the relevant reasons for judgment had been published. Therefore the notification by the Appeal Registrar on 23 January 2014 that the appeal was deemed abandoned was incorrect, and the appeal was in fact still on foot as at 29 January 2014. Judge Kelly having published her second set of reasons for judgment on 24 January 2014, time had only commenced to run from that date, and under the relevant Rules the applicant had 28 days thereafter to file a draft appeal index.
On 18 March 2014 a letter was sent to the Appeal Registrar by the solicitors for the applicant referring to the letter of 23 January 2014 from the Registrar. There was an issue as to whether that letter was a letter dated and forwarded on 4 March 2014 as opposed to 18 March 2014. It is quite clear from the letter the court has that the letter was dated and sent on 18 March 2014. Mr Richards recalls that as counsel he settled the letter on 4 March 2014, and he assumed that it had been sent on that date. I do not consider that anything turns on that. I accept what Mr Richards says to me and thus it is quite apparent that as at, certainly 4 March 2014, the applicant’s solicitors were alive to this issue and were looking to take it up with the Appeal Registrar.
In the letter dated 18 March 2014, the solicitor for the applicant alerts the Appeal Registrar to the fact that as at the date of her letter of 23 January 2014, the parties were still awaiting the second set of orders to be delivered by
her Honour. The letter goes on and acknowledges that those reasons were published on 24 January 2014, were received by the applicant’s solicitors on
28 January 2014, and then indicates that by way of oversight those reasons were not brought to the attention of Mr Patsouris, and were not forwarded to counsel. The applicant’s solicitor also requested in that letter that the appeal be reinstated without the necessity of filing a formal application and affidavit. Of course by that time namely, 18 March 2014, the 28 day period within which a draft appeal index needed to be filed had expired, and the appeal was deemed abandoned pursuant to the Rules. Thus, there needed to be an application filed, and that was of course done on 10 April 2014.
Relevant Statutory Provisions
Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals and relevantly paragraph (c) provides as follows:
(2D) Applications of a procedural nature, including applications:
…
(c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned: or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
That is the paragraph under which the father is making his application. I also observe that s 94(2F) provides as follows:
No appeal lies under this section from an order or decision made under subsection ... (2D).
In relation to the Rules, the rule under which the appeal is deemed abandoned here is r 22.13. That rule provides for a filing of a draft index to appeal books within 28 days after the filing of the Notice of Appeal, or the date when reasons for judgment are delivered, and if that is not complied with then the appeal is taken to be abandoned.
Rule 22.44 is also relevant, and that provides simply that a party may apply to have an appeal taken to be abandoned under Chapter 22 of the Rules reinstated.
In terms of relevant authorities, I refer to the High Court decision of Gallo v Dawson (1990) 93 ALR 479, and specifically the judgment of Justice McHugh where his Honour said this 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.
Although that High Court decision was dealing with an extension of time to appeal, it has been held in this Court on a number of occasions, that the principles there set out equally apply to an application to reinstate an appeal. I refer to cases such as Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
The other authority that I mention briefly is Bemert & Swallow (2010)
FLC 93-441. That was a decision of the Full Court of this Court which specifically addressed the principles to be applied in hearing reinstatement applications such as this. I note that the Full Court in that case referred to, with approval, the cases that I have just cited, namely Rand & Rand and Batey‑Elton & Elton, and also referred to and said very much what I have just said as to the relevance of the decision in Gallo v Dawson. Importantly though, in Bemert & Swallow, the Full Court concluded (at paragraph 154) that:
… 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.
However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules, and the Rules generally in relation to case management, and in my view, it is necessary to have regard to those relevant factors identified by Justice McHugh in Gallo v Dawson in determining such an application as is before me today.
Discussion
Delay
Putting the timeframe here into context, the relevant timeframe is the 28 day time period following publishing of the reasons for judgment, and in this case that would have been towards the end of February 2014.
I have already referred to the reasons identified in the affidavit of the Law Clerk, but to repeat those reasons, although the reasons for judgment were received in the solicitor’s office on 28 January 2014, they were not brought to the attention of the solicitor who had the conduct of the matter, nor forwarded to counsel, and that was a matter of oversight in the solicitor’s office.
Unfortunately it has not been made clear to me when it was realised in the solicitor’s office that there was a need to file the draft appeal index consequent upon the receipt of the reasons on 28 January 2014. The fact of the matter is that no draft appeal index was filed within the relevant 28 day period. All I am told about events subsequent to 28 January 2014 is that there was a hearing on 29 January 2014, where there was apparently no reference to her Honour having delivered her reasons on 24 January 2014, but what her Honour did do was, being aware of the letter from the Appeal Registrar of 23 January 2014, her Honour adjourned further hearing of the matter to 24 March 2014 to enable the status of the appeal to be clarified. It was in that time period that the letter dated 18 March 2014 was forwarded to the Appeal Registrar.
Although there is no specific reason put as to why the draft appeal index was not sought to be filed, for example, in the first half of February 2014, I accept that there was some confusion as to the state of the appeal and that certainly needed to be sorted out in some way with the Appeal Registrar, and that was the purpose, as I understand it, of the letter of 18 March 2014. To repeat, I accept that although that is the date of the letter, the letter was actually settled by counsel on 4 March 2014.
In my view, the reasons for the failure to comply with the time period prescribed in the Rules, although there are some unexplained aspects, are adequate reasons for the failure to comply.
The merits of the appeal
There are two orders the subject to the appeal namely, the declaration made by her Honour, and the injunction made by her Honour.
The grounds of appeal as set out in the Notice of Appeal filed by the applicant on 3 December 2013 are as follows:
1.The learned Federal Circuit Court Judge erred in the making of the declaration pursuant to s.90RD(1) of the Family Law Act 1975 to the effect that the parties were in a de facto relationship and that the relationship continued until mid August 2010 in that the findings were contrary to the evidence and contrary to the weight of the evidence;
2.The learned Federal Circuit Court Judge erred in principle in making the injunctive order in terms of paragraph 5 of the orders in that:
2.1The Applicant husband in the proceedings sought no such order and indeed sought no relief of any nature in the proceedings as would affect the Applicant for leave to appeal’s exclusive use and benefit of the property or the proceedings arising from its sale.
2.2The learned Federal Circuit Court Judge gave no or no adequate reasons for making the order.
2.3The financial obligations imposed on the Applicant/ Appellant by virtue of the order thereby constitute a substantial injustice.
As is unfortunately common in these applications it is a difficult task for me to determine the merits of the appeal given that all I have are the reasons for judgment of her Honour, and the Notice of Appeal. I do not have the benefit, as a Full Court would have in hearing the appeal, of written summaries of argument and the transcript of the hearing before her Honour.
However, doing the best I can, and bearing in mind that this is somewhat like an application for summary judgment where it needs to be established that there is no prospect of success in the appeal, I am not in a position to say that the appeal has no prospects of success. That is not to say that I am determining that it does have definite prospects of success. To repeat, I am hampered by not having all of the documentation that would be before an appeal court in order to determine this matter, and I can only base my finding on the documents that I do have.
Other factors
Referring to the principles emanating from the decision of Justice McHugh in Gallo v Dawson, it can sometimes be relevant to address factors such as the nature of the litigation, the history of the proceedings and the conduct of the parties in the proceedings, but neither party has put any of those matters in issue. For example, there is nothing that touches upon those issues or factors in the affidavit in support of the application, and of course the respondent has not filed any responding documents. Thus, I do not propose to refer to factors such as those, given I have no material to allow me to take those factors into account.
However, I need to take into account the prejudice that might be suffered by the parties respectively depending upon the result of this application. For example, if the application is granted, there will be a clear and obvious prejudice to the respondent, namely the appeal would be reinstated and he would then have to deal with it; that would involve time, resources, effort and cost, and maybe delay.
I note in his submissions to me the respondent has expressed concern about the time that this matter is taking to work its way through the courts, and what he is particularly concerned about is if the appeal is reinstated that may very well delay the finalisation of financial matters that are awaiting hearing before the Federal Circuit Court. I accept that those matters are a clear and obvious prejudice to the respondent.
On the other hand if I refuse the application then there is also a clear and obvious prejudice to the applicant. She would not be able to pursue her appeal. I accept what is put in the affidavit in support of the application that her instructions at all times have been for her solicitor and counsel to pursue the appeal.
When I say that the applicant would not be able to pursue the appeal I note that there is no appeal from the decision that I make on this application, save and except, it is open to make an application for special leave to appeal to the High Court of Australia. That of course is a difficult exercise and may not be warranted in this particular case. Thus, although there would be that avenue to pursue this matter, realistically, if I refuse the application, that would be the end of the matter for the applicant.
Given that there are clear and obvious prejudices to each party depending on the result, I have to balance those consequences as best I can in granting or refusing the application.
Conclusion
I have found an adequate explanation for the failure to comply with the timeframe for the filing of the draft appeal index. I have found that I am not in a position to say that the appeal has no prospect of success. In relation to the final factor namely, the prejudice that would be suffered by each party depending upon the result, to repeat, there will be prejudice to each party no matter what I decide in this case.
Taking into account those factors, which inform the ultimate decision that I have to make, and that is where the interests of justice lie, I find that the interests of justice require that this application be granted.
I certify that the preceding forty-six (46) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 5 May 2014.
Associate:
Date: 13 May 2014
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