Walmsley & Walmsley (No. 2) - [2011] FamCAFC 59

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 2)

[2011] FamCAFC 59

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where the husband seeks to appeal against orders that the matter proceed undefended and subsequent orders for property settlement – where there is no proper or acceptable reason for the delay – where there is no substantial issue to be raised on appeal – where the husband’s conduct and the history of the proceedings are relevant factors – consideration of the consequences for the parties if the application is granted or refused – application dismissed.

Family Law Rules 2004(Cth)

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

23 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

23 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 July & 19 November 2010

LOWER COURT MNC:

[2010] FamCA 680 &
[2010] FamCA 1034

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The Applications in an Appeal filed by the husband on 17 December 2010 and 11 February 2011 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Walmsley & Walmsley (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 94 of 2010
File Number: ADC 728 of 2008

Mr Walmsley

Applicant

And

Ms Walmsley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is a matter which commenced with an Application in an Appeal filed by the husband on 17 December 2010. In that application the husband, in effect, sought an extension of time to file a Notice of Appeal against orders made by Dawe J on 19 July 2010. That application was supported by an affidavit also filed on 17 December 2010. That application came before me on 28 January 2011. I do not propose to repeat all that I said on that occasion, but I adjourned the application to 11 February 2011
At that hearing on 28 January 2011 I pointed out to Mr Walmsley that what he should be addressing is not just the orders made by Dawe J on 19 November 2010, but also the orders made by Dawe J on 29 July 2010 given that those orders provided for the property settlement dispute between the parties to proceed on an undefended basis on the response of the wife. I also pointed out to Mr Walmsley that the affidavit that he had filed was inadequate, in that it did not explain, for example, why there was a delay in filing a Notice of Appeal. Finally, Mr Walmsley had not filed a draft Notice of Appeal, and it was not therefore possible to consider the merits of any proposed appeal.
In any event, over the objections of the wife I adjourned the application to enable Mr Walmsley to address those issues and others of less importance but equally necessary that were raised on that day.
Subsequent to that hearing, Mr Walmsley filed a further Application in an Appeal on 11 February 2011 in which he, in effect, sought extensions of time to appeal against both sets of orders made by Dawe J, namely those of 29 July 2010 and 19 November 2010. He also filed a draft Notice of Appeal.
However, he failed to file any further affidavit and when the matter came before me on 11 February 2011 I indicated that, and I also observed that the draft Notice of Appeal was inadequate and, indeed much of it was unnecessary, given for some reason Mr Walmsley included in the Notice of Appeal an application for leave to appeal and set out his position in relation to a number of paragraphs of Dawe J’s reason for judgment of 19 November 2010.
In any event, as I pointed to Mr Walmsley, there was no requirement for leave to appeal in this case and what he put in his notice in that regard was irrelevant to the issue that I had to determine which was a question of extension of time. However, the more significant matter was that without any further affidavit material there was still no basis on which the application could be granted. There was no explanation of the delay.
Mr Walmsley then sought a further adjournment to enable him to file a further affidavit and address the inadequacies of the documentation that he had put before the Court. Mr Walmsley indicated that he had seen a number of lawyers, that he had obtained advice, but he needed to get some advice about the appeal and how it should run if he was successful, but more significantly he said and I quote from paragraph 10 of my reasons:
Mr [Walmsley], though, seeks a further adjournment. He says he now has a lawyer who will give him some assistance, and he guarantees and undertakes that if he has more time, he will have the correct documents prepared, and this matter can proceed.
In the circumstances I agreed to give Mr Walmsley a final opportunity and adjourned the matter to today, again over the objections of the wife.
Mr Walmsley has filed a further affidavit on 17 February 2011, and he has also filed a further draft Notice of Appeal which corrects the position in relation to leave to appeal, namely, it does not seek that, but sets out grounds of appeal. I note though they are a repeat of the grounds of appeal which were in the earlier Notice of Appeal. In any event, I will come back to that.
The law in relation to applications for an extension of time is well settled. The High Court case which is often referred to is that of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
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: 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.
That decision has been followed in a number of Full Court decisions including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392, and summarising from those cases, the relevant factors which need to be addressed are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation and the consequences for the parties with the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
Now turning to the relevant factors in this case, firstly, the question of the delay and whether there are any adequate reasons which explain the delay.
In Mr Walmsley’s affidavit of 17 December 2010 there is nothing to explain the delay. No reason is proffered as to why the Notice of Appeal could not be filed within the 28 day time frame that the Family Law Rules 2004 (Cth) allow.
When I look at the most recent affidavit filed by the husband that omission has not been addressed. There is nothing in this affidavit which provides any reason to explain the delay in filing a Notice of Appeal against the orders made on 19 November 2010.
There is some information, though, in this affidavit which can be treated as addressing that issue in relation to the earlier orders, namely the orders of 29 July 2010, but before I come to that I just want to comment on this affidavit. I briefly commented on it earlier in response to a submission that Mr Walmsley was making but this is an affidavit which is substantially irrelevant to the issues that I have to determine.
Mr Walmsley has in three sub-paragraphs which I will come to addressed the question of delay in relation to the orders made on 29 July 2010 but beyond that Mr Walmsley has again, and I use the word advisedly and generously, misunderstood what this application is about and he has spent a lot of time and energy in setting out his position in relation to the reasons for judgment delivered by Dawe J on 19 November 2010.
He has also referred to and indeed annexed documents that he filed in the lead up to the hearing on 29 July 2010 but again even in respect of that matter, Mr Walmsley has missed the point. As I explained to him, today is not about me determining whether Dawe J was right or wrong in the orders that she made on 29 July or 19 November. It is about whether I should exercise my discretion in granting an extension of time for Mr Walmsley to file appeals against those two sets of orders.
This affidavit is consistent with the approach Mr Walmsley took to the draft Notice of Appeal which he filed on 11 February 2011, and Mr Walmsley has annexed pages and pages of photographs apparently relating to renovations of properties the subject of the proceedings before Dawe J. It has no relevance. Those issues, those matters, those facts have no relevance to the issue that I have to determine today.
One of the factors that I do have to determine is the prospect of success in an appeal and in determining that issue I do need to look at Dawe J’s reasons for judgment. Thus there are indirectly some matters that Mr Walmsley is raising in this affidavit and generally which are relevant but they are few and far between. As I say, this is not an opportunity for Mr Walmsley to re-run the hearings that took place before Dawe J on either 29 July 2010 or

19 November 2010.
In any event, to return to the issue of delay, as I say Mr Walmsley in this affidavit has attempted to address that issue in relation to the orders of 29 July 2010 and I specifically refer to paragraphs 3(b), (c) and (d) of his affidavit where he says, and to summarise somewhat, he did not file a Notice of Appeal because he was under pressure at work, and he suffered constant stress due to the decision made by Dawe J to hear the case on an undefended basis.
I note that there is no medical evidence presented by Mr Walmsley. I note these are mere assertions and I do not frankly understand how he would be under any stress or pressure given that Dawe J’s decision was that the matter proceed undefended. The effect of that is that Mr Walmsley was to take no part in those proceedings. Thus there was nothing for him to prepare, and nothing for him to do in relation to the hearing. All he had to concentrate on and think about was, do I want to appeal against this order, and if I do, I have 28 days to file a Notice of Appeal which is a relatively straight-forward document, and that is all.
In paragraph 3(c) he further says that he could not afford to pay for legal assistance and he was advised, he says, that it was a complicated matter even for skilful legal practitioners to prepare an appeal. Again he provides no detail of that, and I have no information as to his financial circumstances. I note that he has of recent times been able to, as he says, consult a number of lawyers, and presumably he has paid them or has some arrangement about paying them.
Therefore, again, I am not persuaded that those mere assertions provide reasons why he did not file his Notice of Appeal within the 28 day period.
The final matter he raises is that he did not file a Notice of Appeal because he felt that Dawe J would be able to reach a just and equitable decision when her Honour ultimately heard the matter on an undefended basis. That was a choice and a decision that Mr Walmsley made himself. In my view that is not a reason for failure to file a Notice of Appeal. He presumably was aware of the time frames, and yet he has not chosen to file a Notice of Appeal, he has chosen to leave it and then when of course Dawe J delivers her reasons for judgment and he is unhappy with them, and he does want to appeal. However, in my view, this is not a proper reason or acceptable reason for failing to file a Notice of Appeal within the appropriate time frame.
Thus, the long and the short of it is there are no reasons provided by Mr Walmsley for his failure to file a Notice of Appeal against the orders made on 19 November 2010, and although he has attempted to put forward what can loosely be described as reasons for failing to file a Notice of Appeal against the orders made on 29 July 2010 I am not persuaded that any of those reasons are adequate.
The next relevant factor that I need to address here is whether there is a substantial issue to be raised on appeal. To address that question what I have is the reasons for judgment delivered by Dawe J both on 29 July 2010 and 19 November 2010, and I have Mr Walmsley’s affidavit material, but most significantly there is his draft Notice of Appeal which is meant to set out the particular complaints that he has against the orders made by Dawe J.
Looking at that draft Notice of Appeal, firstly, in the grounds of appeal, Mr Walmsley addresses the orders made on 19 November 2010 and his complaint is that Dawe J did not or failed to make orders that were just and equitable. He then sets out in these grounds of appeal bald assertions or rather complaints. For example, he says in ground 1(f):
Where the court failed to consider whether the orders were just and equitable in light of s75 of the Family Law Act 1975 subsection (2)(m).
Now, I do not know what that means, and similarly there is ground 1(g):
Where the court failed to consider whether the orders were just and equitable in light of the Family Law Act 1975 subsection (2)(C)(ii).
Again, I do not know what that means. But that gives the flavour of the grounds of appeal that Mr Walmsley is promoting. Perhaps, putting it at its highest, he is saying Dawe J has erred by not considering the relevant sections of the Family Law Act 1975 (Cth) and considering whether the orders that she made were just and equitable.
I have read Dawe J’s reasons for judgment of 19 November 2010, and just concentrating on that for the moment, Dawe J has addressed what can be expected of her in terms of determining a property settlement dispute bearing in mind that it was a matter that proceeded undefended and her Honour only had before her the wife’s documents and the wife’s submissions. Within those constraints I am not persuaded that there is any substantial issue to be raised on appeal in relation to the orders of Dawe J of 19 November 2010.
Turning to what Mr Walmsley complains about in the grounds of appeal in relation to the orders of 29 July 2010, he is a little unclear, but he seems to put this under the heading of procedural fairness.
The issue for Dawe J on 29 July 2010 was whether, given the husband’s failure to comply with orders for the preparation of the matter for trial and the number of opportunities that Mr Walmsley had had to do that, which had in fact led to the trial being adjourned to give Mr Walmsley another opportunity to file documents, and given the affidavit material that Mr Walmsley had filed attempting to explain why he had not complied with the orders, and given that all that Mr Walmsley has raised in his affidavit of 17 February 2011 was before Dawe J on 29 July 2010, the matter should proceed undefended given the conduct of the husband and the failure to comply or whether a further opportunity should be given. Her Honour carefully addressed the relevant issues and in the exercise of her discretion her Honour took into account what the husband had presented to her, and doing the best I can with the grounds of appeal promoted by Mr Walmsley I am not persuaded that there is a substantial ground of appeal here.
There are a number of other factors which the authorities that I have referred to indicate can be relevant and may need to be addressed, namely, the nature of the litigation, the conduct of the parties in the proceedings and the history of the proceedings.
In terms of the conduct of the parties and the history of the proceedings, I need go no further than refer to the reasons for judgment delivered by Dawe J on 29 July which amply sets out the then recent history of the matter and the failure to comply with orders by Mr Walmsley and the number of opportunities that he had been given to prepare the matter for trial. Nothing there, in my view, assists in any way the husband’s case in terms of his application today.
Indeed, it points to a dismissal of his application today. But the other factor that I want to address is the consequences for the parties of the grant or refusal of the application. If I granted the application, that would permit Mr Walmsley to pursue appeals against the orders of 29 July 2010 and 19 November 2010, and he would need to consider whether he should amend his Notice of Appeal. That would be a matter for him subsequently but the significant consequence is upon the wife. The wife would need to then deal with that appeal and respond to it and prepare documents in relation to it and instruct lawyers in relation to it if she deemed it necessary to go to that extent.
Thus there are serious consequences both in terms of time and cost that would be visited upon the wife if I granted this application. Whereas this is a matter where the wife is able to proceed on the basis that Mr Walmsley had not filed a Notice of Appeal and thus the orders that were made needed to be complied with and nothing further would need to be attended to by her in that regard.
On the other hand, if I refuse the application then there are serious consequences for the husband as well. He would not be able to pursue his proposed appeals and there is no appeal from an order refusing such an application as this. There is the ability for Mr Walmsley to file a special leave application in the High Court of Australia but, albeit that is possible, that is a difficult exercise to undertake.
I have to balance those consequences in reaching my decision today and that leads me to the overarching principle which I referred to, namely, where do the interests of justice lie in this case. Do they require a granting of the application or a refusal of the application, and that is the ultimate question for me in light of the factors which I have referred to. In my view, given what I have said to date in these reasons, the justice of the case clearly falls on the side of refusing the application.

Mr Walmsley has had ample opportunity to present a proper case. He still has not. He was aware that his application today would stand or fall on the evidence that he presented. I have attempted to do whatever I could to direct Mr Walmsley to what he needs to properly present in this case, but he has failed to adequately address those issues.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 February 2011.

Associate:

Date: 22 March 2011