WADSLEY & CABASSA
[2021] FamCAFC 16
FAMILY COURT OF AUSTRALIA
| WADSLEY & CABASSA | [2021] FamCAFC 16 |
| FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of his failure to file an appeal book 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 appeal book on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – 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, r 22.57 |
| Bemert and Swallow (2010) FLC 93-441; [2010] FamCAFC 100 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 |
| APPLICANT: | Mr Wadsley |
| RESPONDENT: | Ms Cabassa |
| FILE NUMBER: | ADC | 3383 | of | 2017 |
| APPEAL NUMBER: | SOA | 47 | of | 2020 |
| DATE DELIVERED: | 9 February 2021 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 February 2021 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 May 2020 |
| LOWER COURT MNC: | [2020] FCCA 1089 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Matthew Mitchell Lawyers |
Orders
The Applications in an Appeal filed respectively on 25 September 2020 and 26 October 2020 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 Wadsley & Cabassa 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 ADELAIDE |
Appeal Number: SOA 47 of 2020
File Number: ADC 3383 of 2017
| Mr Wadsley |
Applicant
And
| Ms Cabassa |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an Application in an Appeal filed by Mr Wadsley (“the applicant”) on 26 October 2020, seeking an order that the Notice of Appeal filed on 3 June 2020, appealing against orders made by a Judge of the Federal Circuit Court of Australia on 7 May 2020, be reinstated.
There is an affidavit filed in support of that application, also on 26 October 2020.
The reason for the application is that the appeal was deemed abandoned, and that arose as a result of the applicant failing to comply with an order made by the Appeal Registrar on 11 September 2020, providing for the applicant to file and serve the appeal book by 4:30pm on Friday 16 October 2020.
The application is opposed by Ms Cabassa (“the respondent”).
The relevant legal principles
Rule 22.44 of the Family Law Rules (2004) (Cth) (“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)
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; 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, the affidavit filed by the applicant is brief. It comprises only two paragraphs as follows:
1.I have requested the Subpoenaed Documents that relate to the Child Care Centre from [the Judge’s] Chambers as I was not allowed to copy them for the trial. This was request was made back on the 6 October 2020. I have contacted them again and sent a copy of the orders with the request. I am still waiting to hear back from her Chambers.
2.The matter for the Court Trascripts from the trial on the 4, 5 & 6 March 2020 Case 3383/2017 has been adjourned till November. I do not have acces to the transcripts at this time.
(As per original)
There is nothing directly put or deposed to in those two paragraphs which provides the reasons for the failure to comply with the relevant timeframe, but I glean from what the applicant has deposed, that he is in effect saying that he was not able to file his appeal book within time, because he was still waiting for some subpoenaed documents which he had requested from the primary judge’s chambers, and the court transcripts.
In relation to the first issue of the subpoenaed documents, I have been informed today by the applicant that he ultimately received a response from the primary judge’s chambers, and he received one page of the documents. I have not seen that document; it has not been put before this Court. I do not know what that document comprises, or what other documents, if any, were sought, but I fail to see how there was a need to obtain those subpoenaed documents to enable the applicant to prepare and file his appeal book. The appeal book is a book that comprises the relevant documents that were before the primary judge, and until subpoenaed documents are tendered, they are not before the court. Further, even if the documents sought were exhibits, it is not necessary to include exhibits in an appeal book.
As to the second issue, namely the transcripts, I mention that prior to the deemed abandonment of the appeal, the applicant had filed an Application in an Appeal on 25 September 2020 seeking an order that the court provide the transcript of the hearing for the purposes of the appeal. That application came before this Court on 6 October 2020, and was adjourned to 16 November 2020, primarily because it was not apparent from the Notice of Appeal that was before the court at that time and, more specifically, the grounds of appeal, whether there was a need for transcript, and indeed, whether there was a need for all of the transcript.
The application was adjourned on the basis that the regime put in place by the Appeal Registrar provided for a summary of argument to be filed in early November 2020, and thus it was hoped that the summary of argument would provide more information, and perhaps a basis for this Court, in effect, finding that there were exceptional circumstances which would allow the court to consider providing the transcript.
I refer to it in that way because, as I have explained to the applicant, this Court is not funded to provide transcript to litigants. However, it is an access to justice issue, and where there are exceptional circumstances, the court has a discretion to provide transcript.
In any event, the abandonment of the appeal overtook that application, and that application has obviously not been finally dealt with, and will clearly only be dealt with if the appeal is reinstated.
Again though, I fail to see why the applicant required the transcript in order for him to file the appeal book. The transcript is not included in the appeal book these days because the appeal book is prepared electronically, and the transcript is provided separately. Thus, although there was an order that the applicant provide the transcript, that was a separate order to the provision of the appeal book. Accordingly, I am not persuaded that there was a need for the transcript to be obtained prior to the filing of the appeal book.
There is then nothing in the affidavit which provides a satisfactory explanation for the failure to file the appeal book within time.
The merits of the appeal
First, there is a distinction between a situation where, for example, the appeal itself has not been filed within time and there is, in those circumstances, an application for an extension of time, and a situation like this, where the Notice of Appeal was filed within time, and the appeal is on foot, but what has happened is that there has been a failure to comply with, for want of a better description, a procedural, but nonetheless, necessary order, that an appeal book be filed.
It is plain from relevant High Court authority that in the first example I have given, the question of the merits of the appeal is a highly relevant factor, but in the second example, of which this is one, that is not necessarily the case.
What the High Court has said in Jackamarra v Krakouer (1998) 195 CLR 516, is that the merits of the appeal in circumstances like this will be relevant if it can be found that the grounds of appeal have no prospect of success, and there is no merit in the appeal.
Plainly, that is the case, because where it can be found that there is no prospect of success, it would be futile to reinstate the appeal, as it would simply be subsequently dismissed. In other words, to do that would be a waste of everyone’s time. Thus, logically, where it can be found that there is no merit in the appeal, then that becomes a highly relevant circumstance in determining whether the appeal should be reinstated. And that is what I need to look at here in considering the question of the merits of the appeal.
I mentioned earlier the difficulty with the grounds of appeal propounded in the Notice of Appeal, and those grounds are as follows:
1.The Judged showed clear bias against me.
2.The Respondent perjured herself on more than one occasion.
3.The Judge stated that she prefers the Respondents testomony, yet the Respondents affidavits clearly show that, they are contradictory.
(As per original)
As can be seen, those three grounds of appeal are nothing more than bare, general assertions, and as such, prima facie cannot succeed, and that of course was a reason why I adjourned the issue of the provision of the transcript to await the filing of the summary of argument. Indeed, that subsequently happened, although not as initially ordered, namely in early November, but on 18 December 2020 the applicant filed his summary of argument which he proposed to rely on in the appeal. Indeed, that arose out of a specific order that this Court made on 16 November 2020, where I ordered that the applicant provide to the court and the respondent mother the summary of argument on which he would propose to proceed in relation to his appeal, if reinstated.
Turning to that summary of argument, it is contained in six pages, and what the applicant has done is identify various paragraphs of the reasons for judgment of the primary judge, and set out his comments and/or complaints in relation to those paragraphs. That takes up the first three pages of the summary, and I do not propose to go through those paragraphs line by line, or chapter and verse, because, unfortunately, and with respect to the applicant who is a self-represented litigant, they simply do not identify appealable errors by the primary judge in the context of the grounds of appeal that he is relying upon.
What is readily apparent from those three pages, is that the applicant has misunderstood what an appeal is about, and he has sought to re-run his case. In response to the findings by the primary judge, he has simply put his version of the facts again, and submitted that the primary judge was in error in failing to accept his version, and accepting the evidence of the other party.
To repeat, that is nothing more than attempting to re-run the applicant’s case below. That is not what an appeal is about, or what an appeal requires. In simple and summary terms, what the applicant is obliged to do in an appeal is to identify appealable errors by the primary judge, and he has simply not done that in those paragraphs.
Following those three pages, there is then a one-line paragraph which says, “[t]he Judge was Bias [sic]”, and then there are several unnumbered paragraphs below that one line. Assuming that those paragraphs are an attempt by the applicant to demonstrate that the judge was biased, they simply do not satisfy the relevant test.
The relevant test is contained in a High Court decision of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, and there the High Court said this:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Footnotes omitted)
Unfortunately, again, and with respect to the applicant, who, to repeat, is acting without legal representation, it is not the case that where he disagrees with what the judge has done, in terms of the findings made, that that demonstrates bias, and that is, indeed, on my reading of this document, in summary, what he is relying on. In any event, it is apparent that the matters he has raised, upon a careful reading of the reasons for judgment of the primary judge, have been dealt with by the primary judge and, in my view, dealt with appropriately on the basis of sound reasoning. Thus, the allegation of bias is not substantiated in the summary of argument.
Then there is a heading on the fourth page of the summary of argument which reads, “[t]he Respondent perjured herself in Court”, and then there are approximately four paragraphs, unnumbered, below that heading.
Again, assuming that those paragraphs are an attempt to demonstrate where the respondent has perjured herself, the immediate problem is that that has not been established. All the applicant has done is, in summary, say “the respondent said X. I have said Y. I say the respondent has lied, and the judge should have accepted that”. That does not demonstrate perjury
I also note that there is one paragraph under that heading which refers back to what is described as a pre-trial hearing in September 2019. However, that is irrelevant to the appeal, because what needs to be looked at is what occurred at the hearing before her Honour, not any pre-trial hearing. In any event, what is alleged in that paragraph still does not get to the stage of demonstrating or establishing any perjury by the respondent.
Then the final heading on the second-last page of this summary is, “[t]he Judge prefers the Respondents [sic] evidence”. There are two or three unnumbered paragraphs under that heading, but, again, the applicant, unfortunately, and with respect, has fallen into the same error that he has throughout this document, and simply attempted to re-run his case. He put his case before the primary judge. He put his evidence before the primary judge. Specifically, he put his evidence in relation to numerous incidents which the primary judge dealt with in her reasons for judgment, and at the end of the day, her Honour accepted the evidence of the other party in preference to the evidence of the applicant. A trial judge is entitled to do that. Indeed, that is quintessentially the task of a trial judge, namely, where there is disputed evidence, to consider the evidence and make a finding as to what of that evidence is to be accepted. That is what her Honour did, and her Honour cannot be criticised for preferring the respondent’s evidence in that exercise.
As a result, there is nothing in that summary of argument which demonstrates any appealable error by the primary judge and, specifically, any error as alleged in the grounds of appeal. Thus, I am in the position to find that there is no merit in the appeal.
The prejudice to the parties depending on the outcome
If the application is dismissed, then prima facie the applicant would suffer prejudice in that he would not be able to pursue his appeal. However, in my view, that is no prejudice to him, given that where there is no merit in an appeal there is no utility in reinstating the appeal and allowing it to proceed.
I also note that 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 remedy if his application is dismissed, but to repeat, in my view, any suggestion of prejudice goes, given the lack of utility in reinstating the appeal.
On the other hand, if the application is successful, then there would clearly be prejudice to the respondent, in that she would have to deal with an appeal that she does not currently have to, because it is abandoned. There would be resources, time and money issues, and 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 that basis.
Conclusion
As the authorities recognise, consideration of the relevant factors informs the court’s 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 appeal book within time. I have found that the appeal is without merit, and there is prejudice to the respondent if the application is granted.
Thus, even if it could be said that the appeal had some utility, in my view, the application for reinstatement must be dismissed.
As a consequence of the dismissal of that Application, the Application in an Appeal filed on 25 September 2020 must also be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 February 2021
Associate:
Date: 23 February 2021
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