WALDROW & WALDROW
[2015] FamCAFC 189
•25 September 2015
FAMILY COURT OF AUSTRALIA
| WALDROW & WALDROW | [2015] FamCAFC 189 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim property decision of a Federal Circuit Court Judge out of time – Where the Federal Circuit Court Judge had made multiple orders over a number of years – Where the delay is adequately explained – Where it is difficult to determine merit because the proposed Notice of Appeal does not appeal the correct orders – Where the proposed Notice of Appeal does not contain adequate grounds of appeal – Application adjourned to allow an amended proposed Notice of Appeal be filed – Application adjourned. |
| Family Law Act 1975 (Cth) s 79, 90K, 90KA(c) Family Law Rules 2004 r 1.14, 22.13(3), 22.03 |
| F Firm & Ruane and Ors (2014) FLC 93-611 |
| APPLICANT: | Mr Waldrow |
| RESPONDENT: | Ms Waldrow |
| FILE NUMBER: | BRC | 11843 | of | 2007 |
| APPEAL NUMBER: | NA | 48 | of | 2015 |
| DATE DELIVERED: | 25 September 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 24 September 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1626 |
REPRESENTATION
| THE APPLICANT: | Mr Waldrow (in person) | |
| COUNSEL FOR THE RESPONDENT: | Ms Wilson | |
| SOLICITOR FOR THE RESPONDENT: | Stockley Furlong | |
It is Ordered:
The applicant husband’s Application in an Appeal filed 14 July 2015, seeking an extension of time to file a Notice of Appeal against the orders of Judge Baumann made on 18 October 2013, be adjourned to a date fixed by the Registrar.
The applicant husband has leave to file an affidavit attaching a proposed Notice of Appeal on or before 4 pm on 23 October 2015.
Upon failure to file such document by 23 October 2015, the application be dismissed and the applicant husband is ordered to pay the respondent wife’s costs of this application on an indemnity basis.
The costs of the application are otherwise reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldrow & Waldrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 48 of 2015
File Number: BRC 11843 of 2009
| Mr Waldrow |
Applicant
And
| Ms Waldrow |
Respondent
REASONS FOR JUDGMENT
On 14 July 2015, Mr Waldrow (“the husband”) filed an Application (together with an affidavit) seeking an extension of time to file a Notice of Appeal from orders made on 18 October 2013 by Judge Baumann.
To understand the nature of the application and the appeal, it is necessary to provide some background.
The husband and Ms Waldrow (“the wife”) signed a financial agreement dated 28 February 2008. Among other things, the financial agreement required the husband to do all things necessary to transfer free of encumbrance the A Street property. The wife was required to pay to the husband $312,500 upon the sale of her B Street property. Upon receipt of the cash payment from the wife, the husband was then required to do all things necessary to transfer free of encumbrance his C Street property (“C Street Property”).
The events surrounding the transfer of these properties are central to the husband’s complaint. In essence, the wife submits that she completed her obligations in accordance with the financial agreement, but that the husband failed to transfer the C Street Property. The husband argues, inter alia, that the amount of $312,000 was paid into the wrong account, causing him to be unable to discharge the liabilities over the C Street Property.
On 14 July 2015, the husband filed a Notice of Appeal against the orders of Judge Baumann on 19 June 2015. Those orders required the husband to pay the wife a sum of $380,000 (together with interest) and ordered the wife provide to the husband a quantification of her costs on both an indemnity and scale basis. This appeal was deemed abandoned on 14 August 2015, as the husband failed to file a draft index as required by r 22.13(3) of the Family Law Rules 2004 (“the Rules”).
The wife strenuously opposes the application and seeks orders that the husband pay her costs on an indemnity basis. In essence, counsel for the wife submitted that there was no merit in the proposed appeal and that this application was merely a delaying tactic on the part of the husband.
Pursuant to r 22.03 of the Rules, a Notice of Appeal must be filed “within 28 days after the date the order appealed from was made”. The husband was therefore nearly two years out of time when he filed the application on 14 July 2015.
Background
The parties married in December 1993 and separated in December 2007.
The parties began negotiations about a financial agreement in January 2004; the document underwent a number of revisions. The final agreement for the purposes of these reasons, and which purported to terminate all previous agreements, was entered into 28 February 2008.
The contentious clause of the financial agreement is clause 9, which deals with the division of property and liabilities. It is not necessary to repeat the clause in full; it concerned three properties, located at A Street, B Street and C Street, Queensland.
The parties first came before Judge Baumann on 25 October 2010, when the wife commenced enforcement proceedings pursuant to s 90KA(c) of the Family Law Act 1975 (Cth) (“the Act”). The husband, in response sought to have the agreement set aside and to have a bank joined as a third party.
On 30 March 2012, Judge Baumann dismissed the husband’s application to join the bank, finding there was no evidence of collusion or other conduct between the wife and the bank to direct the funds into the purportedly wrong account. The wife’s application for enforcement was adjourned to 11 April 2012.
The parties appeared before Judge Baumann on many occasions in July 2012, September 2012 and April 2013.
In his reasons of 18 October 2013, Judge Baumann concluded there was no reason to set aside the financial agreement. It was recorded in these reasons that on 19 April 2013, the bank had secured default judgement in the Supreme Court of Queensland (“the Supreme Court”) to recover the C Street Property from the husband. It was ordered that the husband and his business entity pay to the bank a sum of $281,212.46, plus interest and costs.
This Supreme Court default judgment affected the proceedings before Judge Baumann, as it was now impossible for his Honour to make orders to enforce the relevant clause in the financial agreement for the transfer of the C Street Property. It is for these reasons that Judge Baumann made the following orders on 18 October 2013:
(1)This matter be adjourned for directions to 1:00pm on 30 October 2013 in the Federal Circuit Court of Australia at Brisbane.
(2)The Husband file and serve, by 4:00pm on 28 October 2013, an affidavit setting out the current status of the Supreme Court action affecting [the C Street Property] as well as an updated financial statement.
(original emphasis)
It is from those orders that the husband now seeks leave out of time to appeal.
The parties appeared again before the judge on 30 October 2013. It was in these proceedings that it emerged further orders were made on 23 October 2013 in the Supreme Court, providing for the recovery of the C Street Property and striking out the husband’s counterclaim. The husband advised that notwithstanding these orders, he had filed a new counterclaim to the bank’s substantive application.
Having the benefit of further information regarding the status of the Supreme Court action affecting the C Street Property, Judge Baumann made the following relevant orders on 13 November 2013:
1.The Husband’s Application to set aside the Binding Financial Agreement on 22 March 2013 is dismissed.
2.The reasons for judgment in this matter are reserved.
…
In reasons published on 8 May 2014, in addition to providing an extensive history and background, Judge Baumann considered the submissions of the wife for enforcement of the financial agreement. The wife sought an order requiring the husband to access his superannuation to effect the transfer of the C Street Property. Judge Baumann concluded the court did not have power to make such orders, and instead adjourned the matter again to 13 May 2014.
In reasons published on 26 September 2014, it is explained that it emerged that the C Street Property had been sold by the bank for $380,000. Consequently, the wife sought damages in that amount. The husband sought to have the proceedings stayed pending the conclusion of his litigation in the Supreme Court. Judge Baumann found he did not have power under s 90K of the Act to award the damages as requested by the wife, but instead invited submissions regarding the court’s accrued jurisdiction to award damages for breach of contract. The husband’s application for a stay was dismissed and the matter was adjourned to 24 October 2014.
After finding the court could exercise its accrued jurisdiction to award damages for breach of contract, on 19 June 2015, Judge Baumann ordered that the husband “pay to the wife the sum of $380,000 within 30 days, together with interest at the prescribed rate under the Family Law Rules from 6 July 2014 to the date of payment.” This decision was made by reference to a then recent decision of the Full Court – F Firm & Ruane and Ors (2014) FLC 93-611 (“F Firm & Ruane”). The husband says as a litigant in person he did not have proper opportunity to deal with this complex issue.
Upon the filing of his notice of appeals and application for an extension of time to file these appeals, the husband also applied for a stay of the enforcement order made 19 June 2015 pending the outcome. In granting the stay on 25 August 2015, it should be noted that Judge Baumann incorrectly stated the appeals filed related to the orders made on 19 June 2015 and 13 November 2013, when the latter date should have read 18 October 2013. Judge Baumann acknowledged in his reasons that the appeal of the orders made on 19 June 2015 had been deemed abandoned at that time.
The Application to extend time to Appeal
As noted above, the husband is nearly two years out of time. In deciding whether an extension of time should be granted, regard must be had to the well-known principles for such extension.
Principles for an Extension of Time
As previously noted, a Notice of Appeal must be filed within 28 days of the making of the relevant order (pursuant to r 22.03). Rule 1.14 of the Rules allows a party to apply to extend (or shorten) a period of time fixed under the Rules. No further criteria are contained within the Act or the Rules to assist in the exercise of discretion to extend time.
The common law provides guidance on this issue and the principles for granting an extension of time are well known. Reference is often made to Gallo v Dawson (1990) 93 ALR 479 at 480-481 per McHugh J, and in particular the following three factors (although they are not decisive or exhaustive):
·Whether there is an adequate explanation for the delay;
·The proposed grounds of appeal having some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
The Application
In an affidavit filed 14 July 2015, in support of his application, the husband provides the following explanation of the reason for delay in filing the Notice of Appeal:
(28)A summary of reasons as to my extension of time is as follows:
(a)at all times I held the view that the judgment was only part heard and that it was not until the matter had been completely dealt with and/or not until a substantive order had been made that I would have the opportunity to appeal a judgement [sic];
(b)there have been numerous judgements [sic], long delays by the Court and many adjournments which have caused much uncertainty as to whether a final decision had actually been given;
(c)no substantive order was made in [Judge Baumann’s decision]. Only an order for directions and that I file and serve further material explaining what was occurring in the related Supreme Court proceeding;
(d)during subsequent Court appearances … I was informed by the Court (using words to the effect), that “I need to get on with the judgment and provide my final decision”;
(e)furthermore, at all subsequent appearances I expressed the view that I was intending to appeal [Judge Baumann’s decision].
(f)Finally and with respect, in light of the above and the extreme delays by the Court itself, it would not serve justice or the appearance of justice for the Court to disallow the hearing of an appeal on [Judge Baumann’s decision] and thus I request that leave to extend time for the hearing of such appeal be extended.
The reason for delay in filing the appeal is adequate in the unusual circumstances of this case. There was a regrettable delay between each of the hearings, which now spans five years. The primary judge apologised to the parties in his reasons for this delay. It must be further acknowledged that this delay was in part caused by the husband, in his attempt to join the bank as a third party, and pursue a remedy against them in the Supreme Court. The wife has not made any contribution to the delay.
Nevertheless, the husband, who has been mostly self-represented, has clearly misunderstood the progression of the trial and therefore failed to lodge a Notice of Appeal in time.
Regrettably, the husband has also failed to appeal all the appropriate orders. The relevant orders to which the appeal could relate will depend on the grounds of appeal; and they could possibly include at the very least the orders made on 13 November 2013, which dismissed the husband’s application to have the financial agreement set aside. The husband may wish to also appeal a number of other orders made by Judge Baumann. As noted in his summary of argument, the husband challenges many of the findings of fact in the reasons of 18 October 2013, although the orders made were only procedural in nature. Depending on the grounds, it may or may not be necessary for the husband to file more than one Notice of Appeal.
It became clear in the hearing of this application that the husband was under the belief that if he appealed the orders of 18 October 2013, this would have the effect of appealing every subsequent order after this date.
The husband acknowledged his abandoned appeal of the orders of 19 June 2015, which awarded damages to the wife. The husband stated he did not understand the requirements to progress the appeal, and nevertheless was still under the belief described above that he was still appealing these orders by virtue of the appeal of the 18 October 2013 orders.
This misunderstanding also made it difficult for the wife to respond when it came to arguing the proposed merit of the appeal.
Although not articulated in his grounds of appeal, during the hearing the husband raised a number of issues that relate to procedural fairness. Some of these problems can be found in his written submissions filed 22 September 2015. In summary, these relate to the following:
a)Whether the husband was denied procedural fairness when Judge Baumann relied upon F Firm & Ruane as authority to enliven the Court’s ability to award a remedy for breach of contract, where the husband asserts he was not invited to make submissions on this issue;
b)Whether Judge Baumann properly considered whether the requirements for a contract were made out, and if the elements constituting breach were present; and
c)Whether Judge Baumann erred in determining an award of damages in light of a s 79 application.
In light of these circumstances, it appears there may be some merit in an appeal.
During the hearing, Counsel for the wife correctly raised many concerns including if the husband failed to file the Notice of Appeal on time, particularly in light of his recent abandoned appeal and the effect on the wife of this proposed appeal. I considered making orders that create a mechanism for the wife to seek dismissal of the appeal and pursue the costs of the hearing of this application, should the husband fail to comply with these orders or file an unmeritous appeal.
However, it does seem unfair in the circumstances of this case that in effect the onus is placed on the wife to demonstrate that there is no merit in an appeal. The better course is to adjourn the husband’s application to allow him to file a proposed Notice (or Notices) of Appeal which refers to all relevant orders and provide proper grounds of appeal.
If the husband does not file such document within the time allowed, this application will automatically be dismissed with no need for further mention before the court. In addition, the husband will be ordered to pay the wife’s costs of the application on an indemnity basis, as asked.
If the husband files an affidavit attaching proposed Notice of Appeal, the matter will be relisted before me to determine if the husband should have leave out of time to appeal. The question of costs would also be heard on that occasion.
costs
The costs of application heard before me are otherwise reserved.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 25 September 2015.
Associate:
Date: 25 September 2015
0