Tedja and Sony
[2014] FamCAFC 35
FAMILY COURT OF AUSTRALIA
| TEDJA & SONY | [2014] FamCAFC 35 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for not filing the appeal within time – where the appeal has no merit – where the prejudice to the applicant if the appeal is not allowed does not and cannot outweigh the prejudice to the respondent if the application is granted – application dismissed. |
| ||||
| APPLICANT: | Mr Tedja | |||
| RESPONDENT: | Ms Sony |
| FILE NUMBER: | MLC | 7099 | of | 2012 |
| APPEAL NUMBER: | SOA | 62 | of | 2013 |
| DATE DELIVERED: | 26 February 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 6 May 2013 |
| LOWER COURT MNC: | [2013] FCCA 211 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Barclay |
| SOLICITOR FOR THE RESPONDENT: | Women’s Legal Services Victoria |
Orders
The application in an appeal filed on 14 October 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tedja & Sony has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 62 of 2013
File Number: MLC 7099 of 2012
| Mr Tedja |
Applicant
And
| Ms Sony |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by
Mr Tedja on 14 October 2013. In that application he seeks a number of orders, only one of which though can be before this court at this time, and that is an application for an extension of time to file a Notice of Appeal against the orders made by Judge Connolly on 6 May 2013.
The other orders sought in the application are first, leave to adduce further evidence, and secondly, security for costs. I propose to dismiss the application for those orders because, to repeat, it is not open to the applicant to seek such orders at this time. They are matters for the Full Court if the proposed appeal is able to proceed.
Turning to the application for an extension of time, there is an affidavit filed in support of that application. The affidavit in effect comprises two sections. The first section is headed “Request to allow extension of time by filing an Application in an Appeal” and there are paragraphs numbered 5 through to 15 under that heading. Those paragraphs address, as it seems to me, Mr Tedja’s explanation for his failure to comply with the prescribed time limit to file a Notice of Appeal.
There is then a section headed “The Reasons for Appealing the Final Orders” which runs for several pages and paragraphs. I have indicated to Mr Tedja, and I confirm, that I have looked at those paragraphs, but I have not read them in their entirety because my initial reading of them indicated quite clearly that they were not matters that went to the application that is before me. They are not relevant to the application, and it is not open to Mr Tedja to try and supplement his application by putting in a narrative as to why he says he wants to appeal.
A further document filed in support of the application is a draft Notice of Appeal. In that draft Notice Mr Tedja seeks leave to appeal and that leave is supported by several paragraphs. I have explained to Mr Tedja that he does not need leave to appeal, and thus I am ignoring that part of his draft Notice of Appeal. What I do need to have regard to though are the grounds of appeal set out in that draft Notice of Appeal.
I have indicated to Mr Tedja that there are difficulties with those grounds of appeal. The obligation on an appellant is to set out proper grounds of appeal identifying appealable errors by the trial judge. Unfortunately that is not what Mr Tedja has done. Instead, in a narrative form he has set out several paragraphs complaining about the judge, the Independent Children’s Lawyer (the “ICL”) and also the family report writer. Further, there are paragraphs in respect of which I can have no regard, and I am referring specifically to paragraphs 9, 10 and 11, and the second half of paragraph 8. I cannot have any regard to those paragraphs because those paragraphs comprise issues and facts that have arisen subsequent to the orders made by the trial judge which are the subject of the proposed appeal.
I observe that if the appeal is allowed to proceed it will be open to Mr Tedja to make an application to the Full Court that hears his appeal to adduce further evidence. I do not propose to delve into that though beyond saying that having read those paragraphs, I do not consider that that further evidence would be permitted. It does not satisfy the principles and requirements set out in the High Court decision in CDJ v VAJ (1998) 197 CLR 172.
In any event, for my purposes today I propose to ignore those paragraphs for the reasons that I have just given, but in the knowledge that if I was for example hearing this appeal now, as a single judge, I would not be disposed to receive those facts as further evidence.
The respondent has not filed any answering documents but there is no requirement to do that. She is represented by counsel today who tells me that the respondent opposes the application.
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479 McHugh J 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.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time 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 take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
Applying those principles to this case, there are three factors that I need to address. First, the explanation for the failure to comply with the requisite time period, secondly, the merits of the proposed appeal, and thirdly, the prejudice or the hardship that would be incurred by either party, depending upon the result of the application.
As to the nature of the litigation, the history of the proceedings, and the conduct of the parties, I have no evidence to enable me to address those factors in any meaningful way.
Discussion
Adequate Explanation
As I have said, that explanation is set out in some detail in the affidavit of
Mr Tedja filed on 14 October 2013. In summary, what Mr Tedja says is that initially following the making of the orders by the trial judge, he was not in a financial position to file an appeal. He says that he wished to seek legal aid but to do that he needed a concession card, and to obtain that he applied for a Newstart Allowance.
At the time the orders were made Mr Tedja was working under a contract but that contract finished a week or so later. In any event, Mr Tedja’s application for a Newstart Allowance was met with resistance, and he had to go to the extent of appealing decisions made by officers of Centrelink. It was not until early August that he was successful in obtaining financial assistance from Centrelink by way of an allowance, and he then received his concession card.
At that time Mr Tedja lodged his application for legal aid but that was refused.
He says in his affidavit that he made other attempts to obtain legal assistance. He went to the Family Court, the Federal Magistrates Court (as it then was), and to a Community Legal Service but he was not able to be provided, he says, with the assistance he needed, and ultimately he determined that he would commence these proceedings himself, and he filed the application now before the court on 14 October 2013.
In relation to that explanation I challenged Mr Tedja as to various matters that he deposed to in his affidavit, and particularly as to his financial resources both as at May 2013 and subsequently, and as to his alleged inability to obtain legal advice.
The fact of the matter is that Mr Tedja could have at any time up to the conclusion of the 28 day period filed a Notice of Appeal. There is a fee for the filing of a Notice of Appeal, but there is the ability to obtain an exemption from the fee, and at that time Mr Tedja says he was not employed and he was not receiving any allowance from Centrelink. It is apparent that he made no attempt to prepare and file a Notice of Appeal with the court in the 28 day period. Instead, he made the decision to make an application for Newstart Allowance with a view to getting a concession card, with a view to then making an application for legal aid. However, that has taken several months, ultimately without success.
Mr Tedja of course seems to suggest that his financial circumstances in some way prevented him filing a Notice within time. However, there is absolutely no evidence that he has presented to this court, noting that he has annexed a number of documents to his affidavit, as to his financial circumstances at any time during the relevant period. I have difficulty in accepting that given at the time that the orders were made Mr Tedja was still in employment, and he was still receiving income from his employment, that he did not have sufficient funds to prepare and file a Notice of Appeal. In any event, lack of finances cannot be an excuse for not filing a Notice of Appeal; he could have prepared it himself, and if he had no funds he could have sought an exemption from paying the filing fee.
The consequence of Mr Tedja not doing anything about the appeal, is that several months have gone past, and this is highly relevant to the question of prejudice. As Ms Barclay has put to me in her submission, I need to consider and take into account the respondent’s position. Orders were made in May 2013 and yet nothing was done about an appeal until October.
It is also important to note that once the 28 day period had passed, what
Mr Tedja had to do was file an application for an extension of time. He did not do that until 14 October 2013, and there is no adequate explanation as to why he did not.
In summary then, I find that the explanation provided by Mr Tedja is not a satisfactory one.
The merits of the appeal
I have already expressed my concerns about the so-called grounds of appeal and I reiterate those concerns here.
I took Mr Tedja through paragraphs 1 through 8 under that heading. They comprise complaints in paragraphs 1, 2 and 3 about the judge refusing to disallow questions which Mr Tedja perceived were annoying, intimidating or misleading, from opposing counsel. In paragraphs 4 and 5 Mr Tedja complains about the ICL, suggesting that the ICL asked inappropriate questions of him and the judge refused to disallow those questions. Moreover he criticises the ICL for not bringing before the court the views of the children. Then in paragraph 6 he criticises the family report writer ostensibly on the same ground namely, failing to put before the court the views of the children. He consequentially criticises the judge for not disallowing what Mr Tedja describes as a distorted view being put before the court.
It is clearly in the discretion of a trial judge as to what questions will be allowed, and what will be disallowed. Importantly, Mr Tedja conceded that at no point did he raise with the judge that he was concerned at the nature of the questions that he was being asked and/or request the judge to disallow the questions.
Thus no appealable error on the part of the judge is demonstrated in those paragraphs.
As to the criticisms of the ICL, and the family report writer, again Mr Tedja has not indicated that he raised any objections to their conduct during the hearing, and thus they were matters left entirely to the discretion of the judge and the judge did not see fit to intervene. There is no appealable error on the part of the judge demonstrated by those complaints.
In the first half of paragraph 8, what Mr Tedja complains of it seems, and doing the best I can, is that the judge did not properly consider what is in the best interests of the children, and in particular take into account their views. Despite the criticism of the ICL and the family report writer, the judge had evidence of the children’s views before him, and as I read his judgment his Honour took them into account. Again, in my view, no error is demonstrated here on the part of the judge.
As I have explained to Mr Tedja I understand that he is appearing without legal representation, and I understand he has prepared his documentation himself. I accept that he has done the best he could, but Mr Tedja has to appreciate, that this is a court of law. I am tasked with determining whether this appeal should be allowed to proceed by extending the time to file a Notice of Appeal. One of the matters I have to have regard to is the merit of the appeal, and if the appeal has no merit, it is not appropriate to allow the appeal to proceed.
In this instance I find that the proposed appeal has no merit. I can say that given Mr Tedja is without legal representation and he prepared the documents himself, I have paid close attention to the reasons for judgment delivered by his Honour, but nothing emerges from those reasons which would create any doubt as to the correctness of the decision.
The consequences of granting or refusing the application
As the matter presently stands, all of the orders made by the judge have been in place for some time, and there is no appeal on foot. The respondent has been able to proceed on that basis, and she has not needed to do anything further in relation to them. However, if the application is granted then the appeal will be able to proceed and the respondent will have to deal with it. Thus there is clear prejudice to the respondent in that event. As I have mentioned above, the timeframe is also important in that regard. The orders were made in May 2013, but the application for an extension of time was not made until October 2013, and in that five month period the respondent was entitled to proceed on the basis that there was nothing for her to be concerned about or to address.
On the other hand, if this court refuses the application there would be undoubted prejudice to the applicant. There is no appeal from a refusal of such an application, save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in the circumstances of the case, and thus for that to be the only avenue for the applicant to pursue is a serious prejudice to him.
Conclusion
As the authorities recognise the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here, I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time, and I take into account the further delay beyond that 28 day period in filing an application seeking an extension of time.
I have also found that the appeal has no merit. The question for the court in that regard is whether it has been demonstrated that there is an arguable case on appeal, and the exercise is somewhat similar to the exercise in determining an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies as a result of a consideration of all the other relevant factors, the appeal should be allowed to proceed. Here this is a case where it can safely be said that the appeal is doomed to fail.
The only factor then in the applicant’s favour is the prejudice to him if the application is refused, but that does not and cannot necessarily outweigh the prejudice to the respondent if the application is granted.
This is a clear case where the interests of justice require that the application be refused, and that is the order that I propose.
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
26 February 2014.
Associate:
Date: 13 March 2014
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