WALDON & KIPLEY
[2015] FamCAFC 53
•6 March 2015
FAMILY COURT OF AUSTRALIA
| WALDON & KIPLEY | [2015] FamCAFC 53 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appeal was deemed abandoned for failure to file the appeal books in time – Whether the appeal should be reinstated – There was no submission that the appeal is devoid of merit, the appellant has provided an explanation for the delay and there is no prejudice to the respondent – Appeal reinstated with a self-executing order for dismissal in the event of further non-compliance. |
| Family Law Rules 2004 (Cth) – r 22.21 |
| Gallo v Dawson (1990) 64 ALJR 458 |
| APPELLANT: | Mr Waldon |
| RESPONDENT: | Ms Kipley |
| FILE NUMBER: | HBC | 246 | of | 2012 |
| APPEAL NUMBER: | SOA | 57 | of | 2014 |
| DATE DELIVERED: | 6 March 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne by video link from Hobart |
| JUDGMENT OF: | Thackray, Murphy & Kent JJ |
| HEARING DATE: | 6 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2014 |
| LOWER COURT MNC: | [2014] FamCA 728 |
REPRESENTATION
| THE APPELLANT: | In person by telephone |
| COUNSEL FOR THE RESPONDENT: | Mr FitzGerald |
| SOLICITOR FOR THE RESPONDENT: | FitzGerald & Browne |
Orders
The appeal (SOA 57 of 2014) filed on 2 September 2014 be reinstated.
The respondent’s application in an appeal filed on 22 December 2014 in relation to costs and the respondent’s response filed on 14 January 2015 be adjourned generally.
The time within which the appellant had to file and serve appeal books in accordance with the directions made by the Appeals Registrar on 21 October 2014 be extended to 42 days from today.
In the event the appellant fails to file and serve the appeal books within the extended time provided in paragraph 4:
(a) the appeal stand dismissed; and
(b)the respondent be at liberty to relist her application in an appeal filed on 22 December 2014 in relation to costs.
The costs of today’s hearing be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 57 of 2014
File Number: HBC 246 of 2012
| Mr Waldon |
Appellant
And
| Ms Kipley |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Thackray J
By his application in an appeal filed on 25 February 2015, Mr Waldon seeks the reinstatement of his appeal against orders made by Benjamin J on 14 August 2014.
The appeal was filed in good time on 2 September 2014. Procedural orders were made on 21 October 2014, including an order for the appeal books to be filed by 2 December 2014. As the wife’s solicitor appropriately conceded in his submissions this morning, this was an unusually tight timetable for the filing of appeal books in a non-urgent matter.
The appellant failed to file the appeal books by 2 December 2014 and sought a short extension to 12 December 2014. The respondent, Ms Kipley, appropriately agreed to the extension. However, the appellant failed to comply with the extended deadline, and the respondent thereafter refused to consent to a further extension.
The appellant attempted to file the appeal books shortly after 12 December 2014. However, the Appeal Registrar properly refused to receive them, because the appeal had been deemed abandoned pursuant to r 22.21 of Family Law Rules 2004 (Cth) (“the Rules”). In her email dated 22 December 2014, the Appeal Registrar also drew attention to deficiencies in the appeal books, in that they were incomplete and contained documents that were not in the approved index.
The appellant then obtained legal representation to assist him with this appeal, which is some demonstration of his bona fides in relation to the conduct of the matter. In the meantime, however, the respondent had very promptly filed an application for the costs of the appeal, and these matters come before us simultaneously today.
The principles governing an application for extension of time are not in doubt. They are set out in the following passage of the judgment of McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459:
The grant of an extension of time … is not automatic. The object … 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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
As the Rules are in place to assist the advancement of the interests of justice, the essential question to determine is whether the reinstatement of this matter is necessary to enable the Court to do justice.
It should firstly be noted that there has been no submission contending the appeal is devoid of merit and, on my brief reading of the material, it is appropriate that such a submission was not advanced.
The second matter to consider is whether there has been an adequate explanation for the delay. I have already mentioned that the timeframe in which these books were to be provided was very short. The appellant has provided an explanation for the delay. He is a self-represented litigant, who lives in a remote location, and he clearly made some effort to comply with the orders of the Court. In my view, the combination of these circumstances provides a more than adequate explanation for the delay.
A further matter to consider is the extent of prejudice to respondent. Again, no submission has been made claiming any prejudice to the respondent, other than the usual prejudice that she must now face an appeal that was otherwise deemed to be abandoned.
Taking into account all of those matters, it is my view that the appeal should be reinstated. The wife’s solicitor proposes that any reinstatement of the appeal should be subject to conditions; namely, that if the appeal books are not filed within time again, we should permit the application for costs to be relisted.
However, in my view, the conditions should go further. This matter needs to come to a conclusion and it is necessary for the directions made by the Court to be complied with. The appellant should be put on a timetable to file the appeal books, and if they are not filed within the extended time, then the appeal should stand dismissed and the wife should be at liberty to relist her application for costs before the Full Court at the next available sittings. The appellant anticipates being able to provide the books within 42 days and I am satisfied that is an appropriate timetable.
Murphy J
I agree with the orders proposed by the presiding judge and with his Honour’s reasons. I have nothing to add.
Kent J
I too agree with the orders proposed by the presiding judge and with his Honour’s reasons for them.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Kent JJ) delivered on 6 March 2015, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 31 March 2015
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