WAKEHURST & MOLVIG - [2008] FamCAFC 218

FAMILY COURT OF AUSTRALIA

WAKEHURST & MOLVIG

[2008] FamCAFC 218

FAMILY LAW – APPEAL – APPLICATION FOR AN EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Whether there is sufficient explanation for the failure to file within time – Whether there is a substantial issue raised by the proposed grounds of appeal – Whether the respondent would suffer any hardship, injustice or prejudice

FAMILY LAW – COSTS – Appellant to pay costs of the respondent fixed at $4,725

Casson & Casson (1988) FLC 91-962
McMahon & McMahon (1976) 2 FamLR 11,267

APPELLANT:

Mr Wakehurst

RESPONDENT:

Ms Molvig

FILE NUMBER:

BRM

1126

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

27 March 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

25 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 August 2007

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Trotter

SOLICITOR FOR THE APPELLANT:

Rider-Bell Solicitors

COUNSEL FOR THE RESPONDENT:

Mr McGregor

SOLICITOR FOR THE RESPONDENT:

KL King & Associates

Orders

That the appellant be given leave to file and serve a Notice of Appeal by 4:00pm on 30 April 2008.
That the appellant file and serve a list of documents from the Federal Magistrates Court file which the appellant contends are relevant to the appeal by 4:00pm on 30 April 2008.
That the respondent file and serve within 14 days of service upon her of the appellant's list in accordance with Order 2, a list of further documents from the Federal Magistrates Court file which the respondent asserts are relevant to the appeal or are documents on the appellant's list which the respondent asserts should not be before the court on the hearing of the appeal.
Upon any issue about the documents to be before the Court on the appeal being raised, that issue be determined by the appeal registrar at a date to be fixed.
That the appellant file in the Appeal Registry eight (8) copies of the appeal books and serve two copies on the respondent on or before 4:00pm on 30 June 2008.
That the appellant file and serve a summary of argument and list of authorities to be relied upon by 4:00pm on the date 21 days before the first commencement date of the Full Court sittings in which the appeal is listed for hearing.
That the respondent file and serve a summary of argument and list of authorities to be relied upon by 4:00pm on the date 14 days before the first commencement date of the Full Court sittings in which the appeal is listed for hearing.
That the appeal be listed for hearing on a date to be fixed by the appeals registrar in the Brisbane Full Court sittings commencing in the second half of the calendar year for 2008.
That the applicant pay the respondent's costs of and incidental to the application for leave to appeal fixed at $4725.

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

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: NA12 of 2008

MR WAKEHURST

Appellant

And

MS MOLVIG

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application filed on 22 February 2008 for an extension of time to appeal from an order made by Federal Magistrate Burnett on 20 August 2007. It became apparent during the argument that the applicant may wish also to appeal from a previous order in relation to child support. However, that is not part of the draft Notice of Appeal which is attached to the affidavit of the applicant.
The intended Notice of Appeal is from all the orders made on 20 August 2007, which were in relation to property settlement between the parties. It is necessary to briefly mention the grounds of appeal because it is relevant to part of the argument.
The grounds of appeal as presently drafted are as follows:
(1)That the learned Federal Magistrate failed to take into account relevant considerations in relation to the assessment of income available to pay child support at an increased rate, namely, did not take into account obligations caste [sic] upon the applicant/appellant to pay child support to three children of a former marriage when making the assessment with respect to a departure order.
(2)That the learned Federal Magistrate erred in determining that the applicant was in arrears in payment of child support and hence reached determination with respect to the rights of the parties in respect of property settlement, upon an incorrect premise.
(3)That the appellant's former solicitors failed to place before the court relevant material, being:
a)documents the subject of directions and orders, particularly tax returns, accounts, inventories, deposits into accounts, contractors' receipts and invoices.
b) failed to issue subpoena for relevant documents, namely bank statements, demonstrating payment of child support to a former spouse;
and thereby caused the learned Federal Magistrate to act or reach a conclusion on an incorrect premise.
It is asked in this intended Notice of Appeal that the appeal be allowed and that the matter be remitted for rehearing.
Although not clearly explained by the solicitor for the applicant it seems apparent that for ground three (3) to succeed it would be necessary for the applicant to file an application to adduce further evidence before the Full Court and that such further evidence be admitted on appeal. In this case it would be necessary to demonstrate that if the learned trial Judge had this material it would have made a difference to the outcome and the orders made.

Principles

The matters to be considered in relation to allowing leave out of time to file an appeal are well settled. Although entirely a discretionary matter, in order to succeed in an application for leave to extend time within which to appeal an applicant must satisfy the Court as to three things.
1.That there is sufficient explanation for the failure to file and serve a Notice of Appeal within time;
2.That there is a substantial issue raised by the grounds of appeal and that, if successful, is likely to materially affect the outcome of the case.
3.That any hardship occasioned to the respondent because of the delay can be compensated for and any injustice or prejudice to the respondent avoided by orders as to costs or otherwise - see McMahon v McMahon (1976) 2 FLC 11-267 and Casson v Casson (1988) FLC 91-962.

Delay

In this case, the respondent vigorously argued that there had not been an explanation for the delay. The affidavit of Mr Wakehurst explained the circumstances both before and after the hearing of the trial. He says that before the matter was heard he provided his former solicitors with instructions that various documents should be provided and that a person, Mr S, should be contacted, who would provide the necessary information in relation to the business. It is Mr Wakehurst’s contention that he has literacy problems and this compounded his otherwise limited appreciation of what ought to have been provided to the solicitors and understanding what they were doing. Mr Wakehurst says that he made constant inquiries of his solicitors and was assured that the matters were being attended to.
Apart from the question of whether the trial Judge had all the documents necessary for a proper determination before him it would also be Mr Wakehurst’s case on appeal, it seems, that the failure to attend to these matters gave the trial Judge the impression that he could not be relied upon. It is correct that the trial Judge made adverse remarks about the applicant's credit.
After the hearing there was some delay in his former solicitors providing to him a copy of the judgment. The judgment was delivered on 20 August 2007 after a hearing on 5 and 6 February of that year. It seems that the applicant did not receive a copy of the judgment until about October 2007 and at that time he could not understand it. He then attended on new solicitors, who he says have now explained it to him.
Prior to seeing the judgment he did ask his previous firm of solicitors if something could be done about the result. Counsel who appeared for him at the trial was at that time in Ireland. Not surprisingly, there was a significant delay and the solicitors subsequently told him that they had spoken to his counsel who said there were no grounds for an appeal. Reference was also made to an advice being sought from another counsel who also advised, although I do not understand that it was in writing, that there were no grounds for appeal.
Although his affidavit is not entirely specific in relation to dates, it seems that the time for filing of the appeal had certainly expired by the time the appellant had received the judgment. The difficulty in the applicant's case in relation to the issue of delay is the explanation as to what happened after his current solicitors took over the matter, that is a proper explanation for the delay from about 9 November 2007 to 22 February 2008 when the application was filed.
It seems from the applicant's affidavit and what has been said by his solicitor that there were other matters to attend to, including issues about costs and enforcement of the orders. The husband says he became preoccupied with the sale of some of the property which had serious financial implications in relation to interest payments and requirements of the bank. Further difficulties arose in relation to child support.
In part, it seems, because of the difficult financial position the husband found himself in, he has obtained work in a remote area, which has created difficulties in itself in communication with his lawyers.
In relation to the applicant's assertion about his literacy, which is of some relevance to the question of delay because of his appreciation of the proceedings, his contentions are supported by affidavits from his former wife Ms J and, to some extent, by a psychologist Dr H. Ms J explains that they were married for 14 years and that due to the husband's limited literacy skills she did all the paperwork for the business.
The report of Dr H, while clearly intending to support Mr Wakehurst personally, is of limited assistance in relation to the application for leave to appeal. Without dealing with it in detail it does explain that numerous tests were performed on the applicant and his limited comprehension.
Returning to the question of the delay between November of 2007 and when the application was filed, on 22 February 2008 it seems that, in part, this is due to the applicant's current solicitors. Leave was given to file an affidavit of Christine Elizabeth Trueman sworn 20 March 2008. She is a solicitor in the office of the respondent's solicitors. This affidavit was apparently prepared with a view to applying for security for costs and other applications and only parts of the affidavit, being pars 9, 13, 15, 16 and 18, were relied on. These paragraphs reveal that from about mid-November the applicant's current solicitor was indicating that they were considering filing an appeal and that they were obtaining an opinion from counsel. In fairness to the solicitor it seems, as I have mentioned, that at that time there were numerous other matters to which they were attending apart from the question of considering filing a Notice of Appeal, including an issue of costs and submissions to be provided to the Federal Magistrate.
Again, on 21 November 2007 the solicitor for the applicant indicated that they intended to file a Notice of Appeal. Appreciating that there was then some break over Christmas, the solicitors still did not file an application seeking to file a Notice of Appeal out of time. Correspondence attached to the affidavit of Ms Trueman indicates that an e-mail was sent dated 8 January 2008 where it was said by Ms Rider-Bell:
“An application is due to be filed in the Federal Magistrates Court in relation to a Stay of Proceedings in the family law matter of [Wakehurst] -v- [Molvig]. At the same time an extension of time will be sought and an Appeal filed, appealing the decision of Federal Magistrate Burnett.”
On 11 January 2008 the applicant's solicitors sent to the respondent's solicitors a Notice of Appeal, an Application in a Case and an Affidavit of Mr Wakehurst. The Notice of Appeal is in the same terms as that for which leave is asked. The application, however, was for a stay of the orders. It seems that it was not appreciated at that time by the solicitors that it was necessary to obtain leave to file the Notice of Appeal.
Although Ms Rider-Bell sought to be critical of the procedures in the Family Court in Brisbane, in particular that there was some delay after her filing these documents, it is quite apparent that largely this delay was caused by her own error. Ultimately, the application for leave was filed.
In essence, it seems that the delay can be explained first by the fact that the husband did not, despite his request, receive a copy of the judgment until October 2007 and then asked for advices from his solicitors and former counsel which were negative. There then followed a delay in obtaining further solicitors who were pre-occupied, perhaps understandably, with other matters and then mistakenly thought that a Notice of Appeal could be filed. These series of events may demonstrate that Mr Wakehurst has not received a standard of legal advice which could be expected, but it does in any event explain the delay.

Prospects of success on appeal

The grounds of appeal in this matter appear to relate to two matters, one being the exercise of discretion of the trial judge and the other being the failure of his lawyers to properly present his case. The second matter is inevitably difficult, but in this case there is some evidence contained in the husband's affidavit in support of this application that would, if demonstrated to be correct, support such a ground of appeal. If further evidence is allowed and it emerges that the husband did not understand even his own evidence and that his solicitors failed to properly present his case it may be that there is some merit in that ground of appeal. I also note that the husband alleges that he had not been informed of offers of settlement and had he been so informed the matter would not have gone to trial. That is an issue that may go more towards, one would think, a question of solicitors' negligence rather than a ground of appeal.

Prejudice to the respondent

Of some importance I notice that Ms Trueman in her affidavit in paragraph 14 says:
14.The property orders have now been effected, with the [B] factory being sold and the net sale proceeds paid to the wife pursuant to Order 8 of the Orders made by Federal Magistrate Burnett on 20 August 2007 together with interest.
Although there may be some other outstanding matters in relation to the enforcement of the orders it seems that to allow the Notice of Appeal to be filed would not substantially interfere with the wife receiving the benefit of the judgment. Further, it is intended to hear submissions in relation to costs, but may I say at this point it would be unusual for the respondent not to have their costs and to that extent some compensation may be made.

Costs

After giving judgment in this matter an application was made for costs on behalf of the respondent. As is well-known, the decision to make an order for costs is an entirely discretionary matter. In this Court costs do not follow the event. There must be matters that are relevant that would allow a Judge to make an order for costs. Mr McGregor mentioned two. One is that this was an application asking for the indulgence of the Court and the second is the facts and circumstances leading to the delay. In this case, I would observe that certainly the respondent cannot bear all the blame.
Mr Trotter is here to oppose an order for costs. His submissions were that in part the judgment arose by the fault of the wife who failed to provide information to the Court about child support. That is a matter that can only be revealed when the appeal is argued. It was further submitted that the husband has been unfortunate in this matter and up until now has been wholly unsuccessful and may not have a capacity to pay the costs.
It is quite clear to me that an order for costs should be made. It may well be that the husband will wish to raise with his previous solicitors and his present solicitors why his case has been managed apparently so poorly, but that is not a matter either for me or for the respondent to be concerned. This application involves some serious issues. It was appropriate that counsel be briefed. It was certainly not an obvious result that leave should be given in the circumstances and it remains to be seen whether the grounds of appeal are such that will support a successful appeal.
An application is made that the costs be fixed in the sum of $4724.70 and it seems to me that to fix costs and in such a sum is appropriate in these circumstances.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate:

Date: 16.04.08