Vissell and Ors and Vissell and Anor

[2020] FamCAFC 41

FAMILY COURT OF AUSTRALIA

VISSELL AND ORS & VISSELL AND ANOR [2020] FamCAFC 41

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the applicants failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the applicants seek reinstatement of their appeal – Where the applicants seek to appeal against the order of a judge which dismissed an appeal against the decision of a registrar – Where leave was granted to the applicants to appeal against the judge’s order – Where there  may be some merit in the proposed appeal – Where there would be some prejudice to the respondents if the application was allowed – Application to reinstate granted.

Family Law Act 1975 (Cth)
Family Law Rules (2004) rr 22.13, 22.44

Jackamarra v Krakouer (1998) 195 CLR 516

FIRST APPLICANT: Ms R Vissell

SECOND APPLICANT: Mr Q Vissell

THIRD APPLICANT: L Pty Limited

FOURTH APPLICANT: M Pty Limited

FIFTH APPLICANT: CC Pty Limited

FIRST RESPONDENT: Mr Vissell

SECOND RESPONDENT: Ms Vissell

FILE NUMBER: SYC 2224 of 2018

APPEAL NUMBER: EA 122 of 2019

DATE DELIVERED: 25 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 25 February 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 30 September 2019

LOWER COURT MNC: [2019] FamCA 697

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Yates Beaggi Lawyers

SOLICITOR FOR THE FIRST

RESPONDENT:

Abrams Turner Whelan Family Lawyers

SOLICITOR FOR THE SECOND RESPONDENT: Marsdens Law Group

Orders

1. That Appeal EA 122 of 2019 be reinstated.

2. That the appellants file and serve a draft appeal index within seven (7) days from the date of this order.

3. That the solicitor for the appellants pay the respondent husband’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.

4. That the solicitor for the appellants pay the respondent wife’s costs of this Application in the amount of $251.50 within twenty-eight (28) days.

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 Vissell and Ors & Vissell and Anor 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 122 of 2019
File Number: SYC 2224 of 2018

Ms R Vissell

First Applicant

And

Mr Q Vissell

Second Applicant

And

L Pty Limited

Third Applicant

And

M Pty Limited

Fourth Applicant

And

CC Pty Limited

Fifth Applicant

And

Mr Vissell

First Respondent

And

Ms Vissell

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

introduction

1. The first to fifth applicants are five individuals and entities (“the applicants”).  By an Application in an Appeal filed on 21 January 2020, the applicants seek an order to reinstate their appeal against an order made by the primary judge on 30 September 2019 (“the order”).  The order requires the applicants to comply with subpoenas for the production of documents at the behest of Ms Vissell (“the wife”).

2. On 19 December 2019, I granted leave to the applicants to file a Notice of Appeal against that order and it was determined that the application for leave to appeal and the appeal would be heard at the same time.

3. The Notice of Appeal was filed on 20 December 2019, following which the Appeals Registry advised the applicants by email on 23 December 2019 that they were required to file a draft appeal index no later than 4.30 pm on 17 January 2020. The applicants failed to file the draft appeal index by the due date. Accordingly, the appeal was deemed to be abandoned by operation of rule 22.13 of the Family Law Rules (2004) (“the Rules”).

4. The background facts relevant to this Application are set out in my earlier judgment concerning the applicants’ application for a review of registrar’s orders (Vissell and Ors & Vissell and Anor [2019] FamCAFC 259) (“Vissell”).

Reinstatement

1. Rule 22.44 provides that a party may apply to have reinstated an appeal taken to be abandoned under Chapter 22 of the Rules.

2. The principles relating to applications to reinstate an appeal are set out in Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”), in particular, Gummow and Hayne JJ at [33]:

   …[W]hen 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…

Discussion

Delay

1. As was mentioned earlier, the applicants’ Notice of Appeal was filed in time but their draft appeal index was not.  The draft appeal index was due by 4.30 pm on 17 January 2020.  No attempt was made by the applicants to file the appeal index on time.

2. The affidavit filed in support of this Application was sworn by a solicitor at the firm instructed by the applicants.  In his affidavit, the solicitor explains the delay was caused due to his firm’s office closure from 20 December 2019 to 20 January 2020.  As such, the solicitor did not receive the email from the Appeals Registry outlining the requirements to file a draft index, until his return to the office on 20 January 2020.  On 21 January 2020, the solicitor contacted the Appeals Registry to advise that a draft appeal index could be prepared (without the assistance of counsel briefed) by 24 January 2020 (affidavit of Farshad Amirbeaggi filed 21 January 2020, pars 2-3).  However, the Registry advised that the appeal had been deemed abandoned four days earlier on the 17 January 2020.  This Application was filed following that advice.

3. While the explanation for delay is not particularly compelling, it should be borne in mind that the consequences of a solicitor’s default should not readily be imposed on the client (Jackamarra).  In any case, the applicants have acted promptly in bringing the present application and the delay itself was very short.

4. When the applicants’ presentation of their Application is considered, it is accepted that they will present the documents required to prosecute the appeal in a timely fashion.  This point is reinforced by the affidavit filed in Court by leave, today.  In the circumstances the delay is adequately explained.

Merits of the appeal

1. The applicants assert four grounds of appeal.  Stated broadly, it is their contention that the primary judge was in error by allowing the subpoenas dated 23 May 2019 to be issued by the wife.

2. As I mentioned in my earlier judgment (Vissell [8]), there are some difficulties in assessing the probable disposition of the application for leave to appeal and any appeal. However, the proposed challenge is not so devoid of merit that it could be said it is doomed to fail.

Prejudice

1. It is accepted that the effect of refusing the applicants’ application is that they would not be able to pursue their appeal.

2. On the other hand, it can be said that the respondents are prejudiced by the delay in bringing on the appeal.  Nonetheless, they took a pragmatic stance and the appeal is reinstated with their consent. Aspects of the effect of an order for reinstatement of the appeal can otherwise be addressed by an order for costs. 

Conclusion and Costs

1. It should be determined that the applicants have provided sufficient explanation for the delay and that the proposed grounds of appeal provide a basis upon which one might conclude that their appeal is not doomed to fail. 

2. Given the sensible consent of the respondents, it follows that the application for reinstatement will be granted.

3. A question as to costs arises and the solicitor for the applicants correctly acknowledged that responsibility for this sorry state of affairs sits with him.  Each of the respondents sought costs of one hour at scale.  The amount sought is appropriate and an order will be made to that effect and with the concurrence of the applicants’ solicitor against him.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 25 February 2020.

Associate: 

Date:  11 March 2020