TRAVER & BOYCE
[2021] FamCAFC 44
FAMILY COURT OF AUSTRALIA
| TRAVER & BOYCE | [2021] FamCAFC 44 |
| FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file a draft appeal index as ordered – Where there is no utility in allowing the appeal to proceed – Where there is no adequate or acceptable reason for the failure to file the draft appeal index in time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where there is prejudice to the respondent if the application is granted – Where in the interests of justice the application must be refused – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.44 and r 22.57 |
| Bemert and Swallow (2010) FLC 93-441; [2010] FamCAFC 100 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 |
| APPLICANT: | Mr Traver |
| RESPONDENT: | Ms Boyce |
| FILE NUMBER: | PTW | 8289 | of | 2018 |
| APPEAL NUMBER: | WEA | 21 | of | 2020 |
| DATE DELIVERED: | 31 March 2021 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 31 March 2021 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 18 November 2020 |
| LOWER COURT MNC: | [2020] FCWA 220 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Order
The Application in an Appeal filed on 2 February 2021 be dismissed.
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 Traver & Boyce 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 21 of 2020
File Number: PTW 8289 of 2018
| Mr Traver |
Applicant
And
| Ms Boyce |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an Application in an Appeal filed by Mr Traver (“the applicant”) on 2 February 2021, seeking to reinstate an appeal that was deemed abandoned by his failure to file a draft appeal index within the time provided by the Family Law Rules 2004 (Cth) (“the Rules”).
The Notice of Appeal that has now been deemed abandoned was filed on 8 December 2020, and in that Notice the applicant sought to appeal from orders made by a Judge of the Family Court of Western Australia on 18 November 2020.
The Application in an Appeal is supported by an affidavit also filed on 2 February 2021.
Ms Boyce (“the respondent”), opposes the application, and to that end, has filed a Response on 22 March 2021, seeking, in effect, dismissal of the application.
That Response is supported by an affidavit also filed on 22 March 2021. However, as I have pointed out to the respondent, that affidavit, although it is lengthy, unfortunately, does not contain any relevant information for the purposes of the application. That is not a criticism of the respondent; she does not have legal representation, and I interpolate here, neither does the applicant, and given the history of this matter it is understandable that the respondent has gone to the time, trouble and maybe expense in preparing this lengthy affidavit. But, to repeat, unfortunately, at the end of the day, it does not assist in the determination of this application.
I mention here one other document, which is an affidavit filed by the applicant on 26 March 2021. As I pointed out to the applicant earlier today, that is an affidavit to which I will not be referring because it, in effect, responds to the affidavit of the respondent, and is in the same category, namely, there is nothing in that affidavit which is relevant to, or assists me in the determination of the application before the court today.
Background
To repeat, the Notice of Appeal which has now been deemed abandoned was filed on 8 December 2020 and, relevantly, as is the practice of the Appeal Registrar, on 9 December 2020, lengthy correspondence was sent to the applicant by email by the Appeal Registrar attaching for service a filed copy of the Notice of Appeal, and providing relevant brochures detailing appeal procedures, together with an Affidavit of Service for completion and filing in due course.
Importantly, in that correspondence, the Appeal Registrar alerted the applicant to the fact that he was required under the Rules to file a draft index to the appeal books within 28 days of the filing of a Notice of Appeal. And, helpfully, the Appeal Registrar identified for the applicant that, in this case, that meant that the draft index needed to be filed by no later than the close of the Registry on Tuesday 5 January 2021.
Further, and also importantly, in that correspondence the Appeal Registrar informed the applicant that, if he failed to file the draft appeal index within time, the appeal would be deemed abandoned. And even more significantly, the Appeal Registrar, as is the practice, not only identified the relevant Rules of Court but also, helpfully, enclosed a sample draft appeal index for the assistance of the applicant, and a copy of the relevant rules.
As is plain, because of the application before the court today, the applicant failed to file his draft appeal index within the time permitted and, as is again the practice of the Appeal Registrar, a letter was sent via email to the applicant on 7 January 2021 advising that the appeal was deemed abandoned, alerting the applicant to the fact that he could seek to reinstate the appeal, and identifying the documents that he would need to file. Importantly, in terms of the documents, what the Appeal Registrar did was set out the factors that needed to be addressed in the affidavit, namely, an explanation for the delay in filing the draft index, the reasons why reinstatement should be granted, an explanation as to the merits of the proposed appeal, and any other relevant fact.
The Principles
In terms of the principles to be applied, r 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned, however, unlike its predecessor r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert and Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
…[i]n our view, 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. …
That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175].
As to that latter case and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than just refer to that.
In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert and Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in an oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…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. 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. 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. 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. 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…
(Citations omitted)
Thus, in summary, the fundamental issue is whether reinstatement of the appeal 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 be taken into account.
In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the relevant timeframe, secondly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed.
It could be said that the history of the proceedings is also relevant here, as well as the conduct of the parties and the nature of the litigation, but I propose to confine my remarks to what I see as the three most relevant factors.
The failure to comply with the relevant timeframe
Unfortunately, despite what the Appeal Registrar alerted the applicant to, there is almost nothing in his affidavit in support of the application which addresses this factor, namely, providing the reasons for the failure to comply with the relevant timeframe. The only reference that I can glean from the affidavit is in paragraph 9 where the applicant deposes that the delay, and quoting directly from that paragraph “is that I have no funds to obtain the evidence needed at present”.
Pausing there, there is no need to obtain any evidence. A draft appeal index, as the applicant would well know from the example that was forwarded to him by the Appeal Registrar, is a document that sets out a list of the documents that were before the primary Judge, and I will return to that.
The only other area where this issue is touched upon in the affidavit is in paragraph 11, where the applicant says, and again quoting from that paragraph, “I am not in a position to lodge the proposed appeal index because I suffered”, and he then lists eight points which I summarise as financial damage, medical incapacitation, eyesight defectiveness due to age, conflict with the children’s matter that was also before the court, arrival at a settlement which would serve all concerned, time to produce the evidence for a retrial, time to produce the evidence by way of subpoenas, to be allowed to present to the court an affidavit, and, finally, the file was never sent to the City R Courthouse.
Frankly, not much of that makes any sense in considering this application. Thus, what I did was provide the applicant with the opportunity today to make oral submissions in relation to the reasons for the failure to comply with the timeframe and, in summary, what he has put to me are problems with gaining access to the court file, the effects of any lockdown as a result of COVID-19, the suggestion that the relevant office of the court was not open, his work commitments, and he had no funds to obtain legal assistance.
In my view, none of those matters provide any satisfactory reason for the failure to file a draft appeal index within time.
Access to the court file
The court file was held in Perth. Certainly, the applicant resides in City R, which is some three or four hours away from Perth, but I do not accept that the applicant was unable to access the court file in the time that he had to prepare and file a draft appeal index. Indeed, I fail to see why he needed access to the court file, because the documents that he needed to list were those documents that were before the primary Judge, and all the applicant needed to do was to refer to the reasons for judgment delivered by the primary Judge, wherein her Honour identified the documents that were before her. And the applicant certainly had her Honour’s reasons for judgment.
COVID-19 lockdown and access to the relevant court office
I also do not accept that there was any lockdown which prevented the applicant filing a draft appeal index. Nor do I accept that the office was not open such that he could not do whatever was necessary in terms of preparing and filing a draft appeal index, and then sending it to the court.
Work commitments
This is not a factor that I would give any credence to, given that there was a reasonable timeframe available for the applicant to prepare and file what was a simple and straightforward document, effectively no more than one page.
No funds to obtain legal assistance
The applicant does not need legal assistance to file a draft appeal index. He has been given every assistance by the Appeal Registrar, and indeed has been provided with a sample document. It is a simple one page document, identifying those documents which were before the primary Judge.
Thus, none of those matters provide, in my view, a satisfactory reason for the applicant’s failure to file a draft appeal index within time and, reverting to what is in his affidavit, nothing there provides a satisfactory reason for failure to comply with the timeframe.
The merits of the appeal
What I need to consider here is whether there is any chance of success if the appeal is allowed to proceed, and I put it like that because, if there is a reasonable chance of success, or even if there is the remotest chance of success, then that would be sufficient to allow the appeal to proceed, all other factors being equal. But where there is no chance of success, then it would be futile to allow the appeal to proceed because, of course, all that would happen is the appeal would then simply be dismissed because it had no prospects of success. And that accords with the relevant authorities, and particularly the High Court decision of Jackamarra v Krakouer (1998) 195 CLR 516. There I refer to what was said by Brennan CJ and McHugh J in commenting on the difference between an application for an extension of time where no appeal has been filed, and a circumstance such as this, where the appeal has been filed but a procedural requirement has not been complied with. To repeat, what their Honours, and indeed all of the other members of that bench stressed in this decision, is that it is only where there is no chance of success that the lack of merit can lead to the application being dismissed.
The first step in that consideration is to identify the grounds of appeal, because, of course, that is where I need to look to see if there is a chance of success. The grounds are as follow:
1.An error of law occurs leading to claims of a substantial miscarriage of justice in the denial of natural justice in an application where a clash of the foundation of the principles of law occurs that is unfair, as it arrives at ultra vires, in the dealing with effectively, hears a crime, see [her Honour’s] orders 1 to 18 dated 18 November 2020 (Orders).
2.An error of law occurs where the judge goes wrong with closed mind in not allowing a party to present case knowing of onset of prejudice and bias suffered.
3.An error of law occurs where the judge goes wrong in not accepting application before the Court.
4.An error of law occurs where the judge goes wrong reflusing to recluse self with the onset of bias and the slow grind of case approach.
5.An error of law occurs where the judge goes wrong in accepting letter as invited by the Court for a party to present and not other party.
6.An error of law occurs where the judge goes in wrong in accepting two false affidavits where one is set aside for the other with unsigned sworn page and scandelous depriving a party to make a fair assessement and response.
7.An error of law occurs where the judge goes wrong in not allowing a party to be legally represented.
8.An error of law occurs where the judge goes wrong in the mis-information to rule application is not before me.
9.An error of law occurs where the judge refuses to allow a party to present case the witnesses and evidence in the extraordinary circumstances of COVID-19 denial in year 2020.
10.An error of law occurs where the judge goes wrong in a slow grind of the principles of law that involves the identification of onset of bias in the order of [a] Magistrate dated 30 October 2018 that “should not take on an authority” and the link to ultra vires issues.
11.An error of law occurs where the judge goes wrong in not dealing with the party evidence the sworn evidence that led to the court’s wrong doing in the magistrate[‘s] refusal to allow an order preveting other party from going to work and [a] magistrate dealings “by consent only” and then makes orders.
12.An error of law occurs where the judge goes wrong by the presiding magistrates on 16 June 2019, 04 December 2019 and 16 October 2019 dealings and orders that denied leave to be legally represented and assistance to present case.
13.An error of law occurs where the judge goes wrong by not allowing leave to deal with the parties affidavit two affidavit errors, the invested party letter and application and COVID 19 deal to present case.
14.An error of law occurs where the judge goes wrong where a substantial error of law occurs where the Court staff pass on information to the judge and magistrate set to punish.
15.An error of law occurs where the judge goes wrong in law where a substantial error in ultra vires occurs in order 15 dated 18 November 2020 arrival “All documents produced by named persons pursuant to subpoena in relation to property proceedings only be returned or destroyed in accordance with the request form the named person on the expirations of 42 days from the date hereof” for not allowing access to the file to attain the subpoena in the property proceedings that was denied party to know, to access the evidence, check its veracity of claims and influence on the court.
16.An error of law occurs where the judge goes wrong in the orders 14 in its arrival “Except as otherwise provided in the orders, the applicant and respondent shall be solely responsible for any and all liabilities presently in the name of each of them respectively and indemnify the other party and keep that party indemtify in relation to such liabilities” where investors in the purchase, construction and contracted is not considered.
17.An error of law occurs where the judge goes wrong in accepting a party’s affidavit evidence and its exhibit knowning well from the onset of the Magistrate view that a party “You should not take on an authority” even in findings of ultra vires that involve the property misrepresentation and other wrong doing.
18.An error of law occurs where the judge goes wrong in not allowing access to the full file, the things, the audio and documents at the R Court house.
19.An error of law occurs where the judge applies the wrong excersice of judicial dicreation in the order 1 dated 18 November 2020 knowning well that party does not have the means and funds to leave property or to repair damage property suffered due to others and that upon leaving the property the material set to repair the damage is to be disposed of.
19.An error of law occurs where the judge applies the wrong principles to effectively deny a party a home that suffered damage for the purpuse to finish for all concern in addition to offer of $65,000 plus more at completion effectively to protect all.
20.An error of law occurs where the judge applies the wrong principles to effectively deny a party a home that suffered damage for the purpuse to finish for all concern in addition to offer of $65,000 plus more at completion effectively to protect all.
21.The judge goes wrong in the approach that causes fear and intimidation upon seeking leave to present the case, the issues, the facts and the denial of question of law as applied pretrial and in trial.
22.The Judge goes in the approach that the Applicant has not contacted the Respondent to deal with the property sale and upkeen.
23.Subtantial miscarriage of justice – unfair proceedings to arrive at ultra vires as this is a crime and the sale of property should help all concern ultimately to benefit all averting financial serious damage.
(As per original)
I mention here, that in the Notice of Appeal, the applicant has sought leave to appeal, and he has set out what seems to be the same material that he set out in his grounds of appeal in support of an application for leave. I do not need to refer to that though, because the applicant does not need leave to appeal. This is a final order made by the primary Judge, and there is an appeal as of right.
As would be obvious by a perusal of the grounds of appeal, none of those grounds of appeal are competent. Many of them are not only difficult to follow, but some are impossible to understand. By way of example, and for current purposes, I refer to Ground 1.
I could give other examples, but that is a ground of appeal which simply makes no sense. It is not a competent ground of appeal. It does not identify any recognised or understandable appealable error by the primary Judge. And I provide that description and that comment in relation to all of the grounds of appeal.
Thus, I am able to find that, on the basis of those so-called grounds of appeal, and I call them that deliberately, there is no prospect of success if the appeal is allowed to proceed.
I did give an opportunity to the applicant to make any further submissions today in relation to the success or otherwise of his grounds of appeal. And what he put to me is that there was, first, an issue of bias. Now, that is something that he raised in one of the so-called grounds of appeal, namely, Ground 2.
Again, that is not only difficult, but almost impossible, to understand. However, it seems, and this ties in with the other submission that the applicant made to me today in this context, that what is complained of there is “not allowing a party to present case”.
Relevantly what happened in this case is expressed accurately and adequately in her Honour’s reasons at [4] where her Honour says this:
[The respondent] was granted leave, in relation to financial matters, to proceed on an undefended basis pursuant to orders made in October 2019. Those orders were made as a consequence of [the applicant’s] failure to properly participate in the proceedings and comply with orders made by the Court. [The applicant] has not filed any documents in the financial proceedings. [The applicant] has been given every opportunity to participate, but has chosen not to do so. I was satisfied the trial should proceed, noting that [the applicant] was aware of the proceedings, as evidenced by his frequent correspondence with the Court and his attendance when the matter was listed for directions before me. [The applicant] has been served with [the respondent’s] trial material. [The respondent] sought for the trial to proceed. I agreed it was appropriate for these proceedings to be brought to an end.
Thus, that puts into context the applicant’s complaint, seemingly made in his grounds of appeal and in his submissions today, that he was not able to present his case, in that he was not able to file documents. And what he said to me today was, if he had been allowed to, then the result of the hearing would have been quite different.
The problem for the applicant in making that submission and raising that as a ground of appeal, is that it is not competent. The order providing for the proceedings to be undertaken on an undefended basis was made in October 2019. There was no appeal from that order, and given that, and given the history of the matter, the matter should have proceeded undefended, as it did. Her Honour has not made any error in proceeding on that basis.
Nothing that has been put to the court today in relation to the success of the appeal, changes my view that there is no prospect of success if I allow this appeal to proceed. And to repeat, on the basis of such a finding, it logically follows that the appeal should not be reinstated because, if it was reinstated, given that there was no prospect of success, all that would then happen is the appeal would be dismissed, and that would be a waste of everyone’s time and effort and, presumably, expense.
The prejudice to the parties
If the application is dismissed, then, prima facie, the applicant would suffer prejudice in that he would not be able to pursue the appeal. However, in my view, that is no prejudice because of my finding that the appeal has no prospect of success, and there would be no utility in reinstating the appeal.
There is no appeal from a refusal to grant an application such as this. There is the possibility though of an Application for Special Leave to Appeal being made to the High Court of Australia, but the question obviously would be, whether that is something which is proportionate to what is at stake here. Thus, the applicant is not entirely without a remedy, but to repeat, in my view, any suggestion of prejudice goes, given my finding of lack of utility.
On the other hand, if the application were successful, there would clearly be prejudice to the respondent in that she would have to deal with the appeal. There would be resource, time and money issues, and in a background where, given the appeal is deemed abandoned, there is in fact no appeal on foot, and the respondent is perfectly at liberty to proceed to organise her life and her circumstances on the basis that there is no appeal against the orders of the primary Judge.
Conclusion
As the authorities recognise, consideration of the relevant factors informs the determination of the fundamental issue, namely, is it in the interests of justice to allow the appeal to proceed. Here, in my view, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused. I have found that there is no satisfactory explanation for the failure to file the draft index within time. I have found that there is no basis on which it can be said that the appeal has any chance of success. And there is prejudice to the respondent if the application is granted. Thus, in my view, to repeat, the application for reinstatement must be refused.
I note that the relevant orders made by her Honour are currently stayed, and that order was made on 11 January 2021.
For the benefit of the parties, and given that I will now be making an order dismissing the application for reinstatement, that brings to an end the stay. That is also apparent from paragraphs 1, 2, and 3 of the order made on 11 January 2021. Importantly, and again for the parties’ benefit, what her Honour provides for in paragraph 2 is for the respondent to this application to have liberty to relist her Application in a Case filed on 21 December 2020, and her Contravention Application filed 21 December 2020, and that is what should now occur.
I assume that they are applications by way of enforcement because, as I understand it, the applicant has not complied with the orders, and he was not required to do so, while the stay was in place. However, immediately the stay ceases, as will happen shortly, then the applicant will be obliged to comply with the orders, and any enforcement proceedings will be able to be pursued.
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 31 March 2021.
Associate:
Date: 9 April 2021