Walker and Page
[2018] FamCAFC 264
•21 December 2018
FAMILY COURT OF AUSTRALIA
| WALKER & PAGE | [2018] FamCAFC 264 |
| FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time in which to file a Notice of Appeal in respect of final property orders – where the orders made in the Federal Circuit Court of Australia provided the wife to indemnify the husband in respect of a fixed liability while requiring the husband to indemnify the wife with respect to a potentially very open ended liability – where the husband contended those orders are not just and equitable – where the husband has a substantial issue to be raised on appeal – where the husband’s delay in filing his appeal is not necessarily adequately explained – where explanation for delay is not determinative – where there is a greater prejudice to the husband if he were denied the opportunity to have the subject orders considered on appeal – application allowed. |
| Family Law Act 1975 (Cth) s 94(2D)(a), 94AAA(5) Family Law Rules 2004 (Cth) r 1.14, 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Pendleton & Pendleton [2018] FamCAFC 203 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Walker |
| RESPONDENT: | Ms Page |
| FILE NUMBER: | BRC | 1066 | of | 2017 |
| APPEAL NUMBER: | NOA | 95 | of | 2018 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 20 December 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 3032 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Seaholme |
| SOLICITOR FOR THE RESPONDENT: | Power Legal |
Orders
The time for filing a Notice of Appeal from the orders made by Judge Vasta in the Federal Circuit Court of Australia on 17 July 2018 be extended up to and including 4 January 2019.
There be no order as to costs of the applicant husband’s Application in an Appeal filed 22 October 2018.
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 Walker & Page 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 BRISBANE |
Appeal Number: NOA 95 of 2018
File Number: BRC 1066 of 2017
| Mr Walker |
Applicant
And
| Ms Page |
Respondent
REASONS FOR JUDGMENT
On the hearing of this Application in an Appeal by Mr Walker (“the husband”) yesterday, I expressed my intention to grant an extension of time for the husband to appeal from final property settlement orders made by Judge Vasta in the Federal Circuit Court of Australia on 17 July 2018. These are my reasons for granting the application, which was opposed by Ms Page (“the wife”).
The orders made by Judge Vasta on 17 July 2018 provide for, inter alia:
a)the property situated at Suburb L (“the Suburb L property”) to be sold and the net proceeds of sale be paid towards the costs of sale and the X Bank mortgage secured by the Suburb L property;
b)the wife indemnify the husband in respect to any surplus monies owing to the X Bank with respect to the mortgage secured by the Suburb L property up to $50,000;
c)the husband indemnify the wife in respect to any surplus monies owing to the X Bank with respect to the mortgage secured by the Suburb L property over $50,000;
d)the wife retain a property situated at Suburb M and indemnify the husband in respect to the W Bank mortgage secured by that property;
e)the wife retain her interest in her professional firm and indemnify the husband in respect of any debts associated with that business;
f)the husband retain his interest in a property situated at Suburb P;
g)the wife retain her motor vehicle, her superannuation entitlements and any other property in her possession, title or name, and remain solely responsible for any other liability in her name; and
h)the husband retain his motor vehicle, two motorcycles, his superannuation entitlements and any other property in his possession, title or name, and remain solely responsible for any other liability in his name.
For reasons shortly to be discussed the orders referred to in (b) and (c) above assumed particular significance on this application.
Pursuant to s 94(2D)(a) of the Family Law Act 1975 (Cth) (“the Act”) an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division.
Husband’s application to extend time
By his Application in an Appeal filed 22 October 2018, the husband sought an extension of time in which to file a Notice of Appeal in respect of the orders made by Judge Vasta on 17 July 2018. The power to extend time is provided in r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”).
Section 94AAA(5) of the Act with reference to r 22.03 of the Rules prescribe a 28 day time period from the date of orders for the filing of a Notice of Appeal. As such, the husband ought to have filed a Notice of Appeal by no later than 14 August 2018. The husband’s Application in an Appeal was filed more than two months after the expiration of that appeal period.
In Pendleton & Pendleton [2018] FamCAFC 203 I recently outlined a summary of the relevant principles to be applied when determining an application of this nature. I repeat that summary as follows:
6.The power to extend time is provided in r 1.14 of the Rules. The principles governing the discretion to exercise that power are well established in many decisions of the Full Court. Some recent examples include Bant & Clayton [2014] FamCAFC 108; Chong & Chong [2016] FamCAFC 211; Manotis & Manotis (No 2) [2016] FamCAFC 232; Harrison & Ward [2017] FamCAFC 99; McMillan & McMillan [2017] FamCAFC 88 and Harrison & Ward [2018] FamCAFC 136.
7.Each of those decisions place emphasis upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 (“Gallo v Dawson”) in which his Honour said of an equivalent rule of court:
…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…
8.It can be seen that in Joshua v Joshua (1997) FLC 92-767 at 84,440 that Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo v Dawson, the significance of the consideration as to whether the applicant establishes a substantial issue to be raised on appeal. There, his Honour observed:
…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
9.The determinative question then, on this application, is whether an extension of time is necessary to enable the Court to do justice between the parties and to prevent injustice – in this connection the Court must weigh the prima facie entitlement of the respondent to retain the benefit of the judgment and the desirability of finality of litigation (see Tormsen and Tormsen (1993) FLC 92-392).
Is there a substantial issue to be raised on Appeal?
Much of the husband’s focus in support of his application and in his proposed appeal is upon complaints to the effect that he was denied natural justice and procedural fairness by the trial judge in a number of respects. In summary, the husband contends that as a self-represented litigant with mental health issues he was subjected to undue pressure by the trial judge, particularly whilst he was undergoing cross-examination at trial by counsel for the wife.
Whilst it appeared that at least some of the husband’s stated complaints, for example that the trial judge actually threatened the husband with imprisonment whilst the husband was giving evidence in cross-examination, were not in fact borne out upon review of the relevant part of the trial transcript, not all of the husband’s complaints could necessarily be so readily dismissed. For example, a consistent theme of the husband’s complaints was that he was not given sufficient opportunity to present his case and without all of the trial transcript (only the first day was available) it is difficult to make an assessment of the merits of the husband’s complaints overall about procedural fairness and natural justice.
This is not, I emphasise, to be interpreted as my having formed any view to the effect that there is substance in any of the husband’s complaints concerning lack of procedural fairness or denial of natural justice. It is only to observe that such complaints are, by their nature, serious and it is trite that procedural fairness and natural justice are of fundamental importance in civil litigation particularly where a party such as the husband represents himself in final proceedings. In summary, it might be said that by reason of the nature of these complaints the husband necessarily has a substantial issue to raise on appeal.
In the end, though, it is unnecessary for me to reach a concluded view one way or the other as to whether or not the husband raises any substantial issue concerning procedural fairness or natural justice. That is because there is, in my judgment, a substantial issue to be raised on appeal by the husband by reason of the nature and effect of the orders made by the trial judge.
It can be seen that the orders provide for the sale of a real property earlier referred to as the Suburb L property. It appears that as at the time of trial there was a contract for sale of that property in evidence at a sale price of $189,000. In the result, though, that sale did not proceed due to the purchaser failing to obtain approval of finance.
The property remains unsold. Until it is sold, it is of course speculative as to the price at which the property will sell. However, it does not seem to be open to question that very significantly more is owed by way of mortgage debt to the X Bank on the property than is likely to be yielded on the sale of the property.
The orders made by the trial judge, which were in the same terms as sought by the wife at trial, have the effect that the wife must indemnify the husband with respect to any “excess” mortgage debt remaining after the net sale proceeds are received by the X Bank, but only up to a total of $50,000. Thereafter, it is the husband who indemnifies the wife for the excess indebtedness over and above $50,000.
Again, whilst figures are necessarily speculative, in the course of argument the husband suggested on estimates he gave that there might be a very significant shortfall between the total amount owing to the X Bank at the time of sale, and the amount yielded from the sale. The serious issue to be raised on appeal by the husband might therefore be summarised as saying that orders having this effect cannot be just and equitable. That is, to leave the wife’s liability fixed in the amount of $50,000 on the one hand, whilst there is potentially a very open ended liability to be met ultimately by the husband on the other, cannot be just and equitable.
Moreover, as the husband points out, the wife may act to increase the mortgage debt to the X Bank yet remain liable only for the $50,000 excess amount set by the orders, and therefore leave to the husband an even greater excess amount liability. Indeed, one of the husband’s contentions on this application was him having learned only since the trial, and in the course of proceedings between the parties and the X Bank in the Supreme Court of Queensland, as to amounts redrawn by the wife on the relevant mortgage debt to the X Bank so as to increase the liability.
In my judgment, the husband has a substantial issue to be raised on appeal as to the justice and equity of the orders made in these terms.
Notably, on the hearing of this application, counsel for the wife acknowledged that there was this identified difficulty with the operation and effect of the orders made. That acknowledgement was tantamount to a concession by the wife that the husband has a substantial issue to raise on appeal.
Reasons for the delay
As earlier noted, the relevant delay in this case to the filing of this application is a period slightly in excess of two months.
The husband asserts that the reason he was unable to file a Notice of Appeal within the timeframe prescribed by the legislation was that he suffered serious mental health issues after the trial concluded. The husband states that he was previously diagnosed with a major depressive disorder and his condition deteriorated as a result of the proceedings such that he was not in an appropriate mental state to consider filing an appeal at that time.
The husband advances no specific medical evidence to support the assertion that his mental health was so compromised between 17 July 2018 and 14 August 2018 that it precluded him from instituting an appeal within time. However, in paragraph 5 of the husband’s affidavit filed in support of this application the husband indicates that he has attended upon his general medical practitioner and a psychiatrist and has received a medical certificate and prescription medication to treat his depression.
Moreover, admitted as Exhibit 1 on the hearing of this application was some more recent and further medical evidence confirming continuing mental health issues for the husband. It is clear that for a long time now the husband has been debilitated by mental health issues from time to time. These would obviously make the difficult task of self-representation in stressful legal proceedings more difficult.
In summary, whilst the medical evidence and the husband’s evidence more generally probably falls short of being properly characterised as adequately explaining the subject delay, there is at least some explanation for what is, in relative terms, not a very long delay. In any event, explanation for delay is not in my judgment a determinative factor in this case.
Conduct and prejudice
While the wife is, of course, prima facie entitled to retain the fruits of the judgment intended to bring an end to the parties’ financial relationship, there is the potential for substantial injustice if the errors asserted by the husband are substantiated on appeal.
Counsel for the wife who appeared on the application did not seek to raise any specific matters concerning prejudice to the wife to be taken into account. As earlier observed, the subject property seemingly is yet to be sold and the relevant amounts of debt are yet to crystallise.
Conclusion
In my judgment an extension of time for the husband to file his appeal is necessary in order for justice to be done in this case. There is a greater prejudice to the husband if he were denied the opportunity to have the subject orders reviewed on appeal than is produced for the wife in being subjected to further litigation, and potential disturbance of the trial judgment.
Costs
Whilst the husband did not incur any legal costs with respect to his application, he has incurred outlays and he made particular reference to the outlay of obtaining the first day of the trial transcript. That outlay will fall for consideration in the substantive appeal when the Full Court considers any question of costs at the conclusion of the appeal. That factor, together with the feature that the husband is receiving an indulgence by the grant of an extension of time to appeal, operates for my conclusion that there ought be no order for costs in the husband’s favour for this application.
Whilst counsel for the wife initially sought an order for costs in the wife’s favour, notwithstanding that the outcome of the application is that it has been successful, counsel for the wife did not persist in what seemed to be an ambitious application.
There will therefore be no order for costs with respect to this application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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