THOMAS & ANTHONY - [2011] FamCAFC 201

FAMILY COURT OF AUSTRALIA

THOMAS & ANTHONY

[2011] FamCAFC 201

FAMILY LAW - APPEAL – Application for adjournment of hearing of appeal – Application refused – Extension of time for filing of submissions – Costs reserved.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Thomas

RESPONDENT:

Ms Anthony

FILE NUMBER:

SYC

4283

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

10 October 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

10 October 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 April 2011

LOWER COURT MNC:

[2011] FamCA 269

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Broun

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Morozov

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the time for filing and serving the husband’s Summary of Argument be extended to no later than 4pm on 4 October 2011.

That the husband’s Summary of Argument is thus deemed to have been filed in time.

That the time for filing and serving the wife’s Summary of Argument is extended to no later than 1 pm on 18 October 2011.

That the wife is granted leave to file any application for leave to adduce further evidence in the appeal and such further evidence by no later than 5 pm on Friday 14 October 2011.

That the wife’s costs of this application are reserved to the Full Court on 19 October 2011.

IT IS NOTED that publication of this judgment under the pseudonym Thomas & Anthony is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NO: EA 57 of 2011
FILE NUMBER: SYC 4283 of 2010

MR THOMAS

Appellant

And

MS ANTHONY

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

This is an application filed by Ms Anthony (“the wife”), the respondent to a Notice of Appeal filed by Mr Thomas (“the husband”) on 13 May 2011, to vacate the hearing of the appeal on Wednesday, 19 October 2011.
The application was filed on 30 September 2011, at which time, as the affidavit in support of it makes clear, the wife had not received the husband’s outline of argument. The outline of argument was to have been filed and served by no later than 9 September 2011, in consequence of directions made on 22 August 2011. They were in fact filed and served, albeit served, it seems, in an unsealed form which is no different to the form in which they were filed and sealed, on 4 October 2011.
The wife deposed in the affidavit filed in support of this application to difficulties created for her learned Senior Counsel, Mr Richardson SC, in preparation of her appeal as a consequence of the failure of the husband to file and serve his material within time. Whilst those complaints were raised in the wife’s affidavit, there is no evidence before the Court that Mr Richardson SC would be unable to adequately prepare the wife’s case and proceed with it on 19 October 2011, by which time, assuming, as foreshadowed to Counsel for the wife, 1 pm the previous day, 18 October 2011, were ordered to be the time by which the wife’s submissions in answer to those of the husband be filed and served. That would be a period of some two weeks from the date upon which the husband’s submissions were received.
Without suggesting that the matter is without complexity, it ought not be forgotten that the orders which give rise to the current appeal were interlocutory and, it is clear from the reasons for judgment of the trial Judge who made them, were made on the basis of limited and largely, if not entirely, untested evidence. The husband’s application for leave to appeal was expedited on 22 August 2011.
The judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 makes clear that in applications of this kind, the primary focus of interest is substantial justice and avoiding injustice. The focus of the Court’s interest has, as the transcript would confirm, been, from the outset of debate this morning, the prejudice to the wife, who has done nothing wrong, in allowing the application for leave to appeal to be heard on 19 October 2011.
Two observations are relevant in that context. The first is that, as noted a few moments ago, there is no evidence before this Court that Mr Richardson SC will be unable to adequately prepare the wife’s submissions within the proposed timeframe. The second is that nothing this Court does this morning precludes Mr Richardson SC, or whoever appears for the wife from, again, making an application to adjourn the hearing when the matter comes before the Full Court next Wednesday. That is not said in any way to encourage such an application, but simply to record the obvious that refusing an adjournment at this stage does not forever, necessarily, determine that issue.
The question of the husband’s delay has properly been raised by Counsel for the wife. Counsel for the husband, Mr Batey, swore an affidavit in which he deposed to events which occurred in premises with which he had some connection, or with which staff of his had some connection at Parramatta on 4 September 2011. Quite properly, Counsel for the wife does not suggest that anything said by Mr Batey in his affidavit was other than true and correct. Indeed, as anyone who is living in this State in early September would have had no choice but to be aware from the electronic media, events of the kind Mr Batey described in a number of paragraphs of his affidavit did occur.
As Counsel for the wife submitted, however, explanation of delay is not the whole of the issue. The submissions were, in fact, supposedly to be filed 21 days before this application was filed. There is no evidence that the difficulties to which Mr Batey referred in his affidavit were made known to the other side. It is perhaps a regrettable but, if it be true, unfortunate reflection of the state of the New South Wales Bar that, in circumstances such as are revealed to have occurred, Counsel, particularly Senior Counsel and very senior junior Counsel, could not have picked up a telephone and, one would have thought and hoped, averted all this. It seems that the Bar does not work that way these days.
In any event, the question of the failure to advise of the difficulties which were being encountered has dual significance. The first is that, in the Court’s discretion it must be taken into account. In this Court’s view, having determined that the evidence does not establish prejudice to the wife which cannot be remedied by the date the appeal is to be heard, it would not be just or equitable to refuse to exercise the discretion to extend time for filing of the husband’s submissions on the basis of prejudice to the wife.
The second significance of it is in relation to costs. It may well be, as Counsel for the wife implied, that had these difficulties been communicated and an indulgence sought, none of this would have been necessary. There does not seem to be any evidence about this either way, but it was for the husband to adduce that evidence if there was any. That, in the Court’s view, has the consequence that if there should be any costs of this application then those costs should be the costs of the wife.
The Court is not properly able to determine the question of costs today because the most important matter of all cannot currently be known. That matter is whether the appeal has any merit. If it does not, then it is difficult to see on what basis the Court could do other than exercise its discretion to award the wife her costs of this application. It could rhetorically be said what was the wife supposed to do, or refrain from doing, as at 30 September 2011 when no submissions had materialised within the 21 days since time had expired, and the evidence does not establish that any approach was made in that regard.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 10 October 2011.

Associate:

Date: 12.10.11