TELAMA & TELAMA
[2017] FamCAFC 8
•6 February 2017
FAMILY COURT OF AUSTRALIA
| TELAMA & TELAMA | [2017] FamCAFC 8 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s solicitors failed to file the draft index to the appeal books on time – Where the delay was minimal – Where the respondent would suffer no prejudice if the appeal is reinstated – Where it is in the interests of justice for the appeal to be reinstated – Application allowed – No order as to costs. |
| Family Law Rules 2004 (Cth) rr 22.13(3), 22.44, 24.05(2) |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Jess v Scott (1986) 70 ALR 185 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Telama |
| RESPONDENT: | Mr Telama |
| FILE NUMBER: | SYC | 1450 | of | 2008 |
| APPEAL NUMBER: | EA | 167 | of | 2016 |
| DATE DELIVERED: | 6 February 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 21 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2375 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Harris Freidman Lawyers |
| THE RESPONDENT: | In person |
Orders
That the appeal EA 167 of 2016 be reinstated.
That the time for filing the draft appeal index be extended up to and including 25 October 2016.
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 Telama & Telama 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 SYDNEY |
Appeal Number: EA 167 of 2016
File Number: SYC 1450 of 2008
| Ms Telama |
Applicant
And
| Mr Telama |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 10 November 2016 Ms Telama (“the applicant”) seeks the reinstatement of her appeal pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”). The applicant’s appeal was deemed abandoned after she failed to file the draft index to the appeal books on time.
On 30 August 2016, Judge Henderson made orders setting aside a binding child support agreement entered into between the applicant and Mr Telama (“the respondent”). The applicant filed a Notice of Appeal against these orders on 26 September 2016.
On 4 October 2016, the Appeal Registry sent a letter to the applicant informing her that she was required to file and serve a draft index to the appeal books by 4.30 pm on 24 October 2016. On that date, at 4:39 pm and 4:42 pm, the applicant’s lawyers electronically lodged the draft index with the registry. It is important to note r 24.05(2) of the Rules, which provides:
(2)A document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open.
The clear effect of this rule is that the applicant’s draft index is taken to have been filed on 25 October 2016 – that is to say, one day late.
However, based on the assumption that the Registrar had accepted the draft appeal index for filing, on 3 November 2016 the respondent filed an Application in an Appeal seeking review of the Registrar’s decision to accept the draft appeal index for filing despite the fact that it had not been filed on time.
On 9 November 2016, the Registrar, correctly in my opinion, sent the parties a letter informing them that as the draft appeal index had been filed late, the appeal had been deemed abandoned pursuant to r 22.13(3) of the Rules.
On 10 November 2016, the applicant filed the present application seeking reinstatement of the appeal. On 11 November 2016 the respondent filed a Notice of Discontinuance in relation to his Application in an Appeal seeking a review of the Registrar’s decision.
The relevant principles
In considering whether to reinstate an appeal, the Court will have regard to what was said by 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
It is important to observe that the above remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless they are relevant to this matter (Rand & Rand [2009] FamCAFC 88).
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, and the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice on the applicant.
Discussion
The first issue is whether the applicant has a reasonable explanation for her delay in filing her draft appeal index in accordance with r 22.13(2) of the Rules.
It is relevant to recall here that the draft appeal index was filed some nine minutes late. While the applicant failed to comply with the Rules, the delay was minimal.
The applicant’s lawyer deposes that the delay was due to him being away from his office for many of the days leading up to the day when the draft appeal index was due to be filed. On 24 October 2016, the day the draft appeal index was due, the lawyer was unexpectedly detained in court when a planned directions hearing became a contested interim hearing.
I consider this to be a reasonable explanation for the delay. Further, it is accepted that, generally speaking, the defaults of a party’s lawyer should not lightly be visited on the party: Jess v Scott (1986) 70 ALR 185.
The delay was minimal. The prejudice that would be suffered by the applicant if the orders sought were not granted would be significant: she would lose the benefit of her appeal. The respondent did not point to any particular prejudice that would be suffered by him if the appeal was to be reinstated. He did, however, point to the very protracted history of the litigation between the parties.
The respondent also submitted that he had a vested right to retain the judgment of the primary judge which should not be interfered with “unless there is a compelling reason to do so”.
This is not an entirely correct expression of the principles to be applied. In Jackamarra v Krakouer (1998) 195 CLR 516, Brennan CJ and McHugh J said:
4.These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question — should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
(Footnote omitted)
In that same case, Gummow and Hayne JJ said:
33.Her appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
The requirement to file a draft appeal index is a procedural step in a regularly filed appeal. The failure to do so in a timely fashion is usually, of itself, insufficient to deny the appellant the pursuit of their appeal.
The respondent submitted that there was little merit in the appeal and that this was a sufficient reason to refuse the application.
In Jackamarra, Gummow and Hayne JJ said:
35.The parties submitted here that the Full Court should have decided whether the appeal was “arguable”. It is important to understand what is meant in this context by “arguable”. If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed.
It is important to recognise the caution expressed by the Court in Jackamarra is because when hearing applications of this kind, the court will not normally have before it all of the material which it would have if it was hearing the appeal itself.
The applicant submitted that a significant ground of appeal was that the primary judge failed to take into account the respondent’s extensive non‑disclosure. For his part, the respondent submitted that the primary judge did recognise the relevant non-disclosures and gave the issue appropriate weight. Which contention should be accepted is a matter for the bench hearing the appeal. It is sufficient to record that I am not satisfied that the grounds of appeal are so devoid of merit that the appeal would be futile.
Taking all of these matters into account I am satisfied that it is in the interests of justice for the appeal to be reinstated.
Neither party sought an order for costs. The lawyers for the applicant responsibly indicated that the application was brought without cost to her. There will, therefore, be no order as to costs.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 February 2017.
Associate:
Date: 6 February 2017
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