Wellington & Child Support Registrar
[2012] FamCAFC 34
•8 March 2012
FAMILY COURT OF AUSTRALIA
| WELLINGTON & CHILD SUPPORT REGISTRAR | [2012] FamCAFC 34 |
| FAMILY LAW – APPEAL – Review of regional appeal Registrar’s order granting an extension of time for filing of documents – Where on the due date for filing the respondent sought an extension of time to file and serve a summary of argument – Where the respondent did not seek an extension by means of a formal application but rather by facsimile correspondence – Where the appellant applicant objected to his consent not having been sought by the respondent, to the extension of time itself and to the Registrar hearing the matter – Where the hearing occurred by telephone – Where the documents were filed but not served in time with the Registrar’s order extending the time – Where the documents were served by email on the due date and by post one day later – Where it could not be said the appellant applicant had not been served – Service deemed effective. FAMILY LAW – APPEAL – Hearing de novo – Where the respondent had not been served with a sealed copy of the appellant’s summary of argument – Where a Notice of Constitutional Matter had been filed – Where there was no prejudice to the appellant in granting the extension of time as the hearing of the appeal had not yet been listed – Where the extension of time should have been granted – application dismissed. FAMILY LAW – COSTS – There be no order as to costs. | |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Wellington |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 4659 | of | 2008 |
| APPEAL NUMBER: | NA | 36 | of | 2011 |
| DATE DELIVERED: | 8 March 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 7 March 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 312 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Brasch |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The application filed 24 January 2012 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wellington & CSR has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 of 2011
File Number: BRC 4659 of 2008
| Mr Wellington |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the appellant in these appeal proceedings filed on
24 January 2012 seeking review of the regional appeal Registrar’s orders made on 16 January 2012.
The orders of the regional appeal Registrar were as follows:
1) That the time for the Respondent to file and serve the Summary of Argument and List of Authorities be extended until 23 January 2012.
2) That the Appellant file and serve an affidavit evidencing any outstanding responses from each Attorney-General as to whether or not they seek to be heard in this appeal by not less than 14 days after receipt of same.
The substantive appeal is from orders of Federal Magistrate Slack made
7 April 2011 in relation to enforcement of child support liabilities. The appellant was the respondent in those proceedings instituted by the Child Support Registrar by way of enforcement summonses. The appellant filed a notice of appeal on 4 May 2011 and an amended notice of appeal on
25 November 2011.
The orders sought in the application include the following:
2. That the Orders of Registrar Kane made on 16 January 2012 be set aside.
3. That the Court declare the Respondent Child Support Registrar is in default of the orders of Registrar Spink made on 13 July 2011.
4.That the Court proceed to hear the application for leave to appeal and the appeal.
The applicant suggested that as the appeals Registrar should not have given an extension of time to the respondent, and as the respondent has failed to serve on him the summary of argument, the appeal should be heard without their written summary of argument.
For reasons which will later become apparent, it is not accepted that an extension of time should not have been given, although the process by which this eventuated could be criticised.
The respondent filed the summary of argument on the due date and emailed the document to the applicant. It is unfortunate that service was not effected on the due date at the applicant’s address for service, but it could not be said that he had not been served.
The applicant seeks further orders in this application:
6. Alternatively a declaration that there is no reasonable cause to continue Caveat No. [1].
7. A declaration that Orders of FM Slack made on 7 April 2011 are an arrangement satisfactory to the respondent Child Support Registrar.
8. A declaration that the Orders made by FM Slack on 5 June 2008 did not constitute a reasonable cause to lodge and or continue Caveat No. [2] insofar as it forbids the Registered Owner,
[Ms V], from registering any instrument affecting her interest in the title against which the caveat has been executed.9. A declaration that the Orders made by FM Slack on 16 April 2010 did not constitute a reasonable cause to lodge and or continue Caveat No. [1] insofar as it forbids the Registered Owner, [Ms V], from registering any instrument affecting her interest in the title against which the caveat has been executed.
These applications can be disposed of shortly as the applicant has not appealed the orders of 5 June 2008 and 16 April 2010, when certain orders were made that the applicant be restrained from dealing with a certain property located in Cairns, held by him and Ms V as tenants in common.
Relevant Law
This application relates to the procedural conduct of an appeal, which is governed by the Family Law Rules 2004 (Cth). The regional appeal Registrar is able to shorten or extend the time for compliance with a rule or a procedural order by virtue of Rule 1.14:
Shortening or extension of time
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrules (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
Review by a judge of a regional appeal Registrar’s order is guided by Rule 22.40 of the Family Law Rules 2004 (Cth) which provides:
Review of Regional Appeal Registrar’s Order
A party may apply for a review of a Regional Appeal Registrar’s order relating to the conduct of an appeal by filing an Application in the Regional Appeal Registry, within 14 days after the order is made.
Note 1 The Regional Appeal Registrar must list the application for review for hearing by a Judge of the Appeal Division (or, if no Judge of the Appeal Division is available, another Judge).
Note 2 The court may shorten or extend the time for compliance with a rule (see rule 1.14).
(own emphasis)
As the appellant applicant seeks orders that the court declare the respondent in default of the procedural orders made 13 July 2011 and proceed to hear the appeal, it is relevant to consider also the rules governing non-compliance or delay, contained in Rule 22.45 of the Rules:
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned ; and
(b) a party (the defaulting party ) has not:
(i)met a requirement under these Rules or the Regulations;
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3) The court may make an order under subrule (2) on its own initiatee if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
(original emphasis)
As the respondent filed the summary of argument on the due date and even taking into account the difficulties of service, no such order would be made.
As became apparent during the submissions of the applicant, the main complaint is that the respondent, when seeking the extension of time, did not make an application in a formal sense thus depriving the applicant from an opportunity to reply and object. For present purposes, reference should be made to rules 22.36 and 22.37:
[22.36] Application in relation to appeal
A party may make an application in relation to an appeal by filing an Application in an Appeal together with an affidavit stating the facts relied on in support of the application.
[22.37] Hearing date for application
On the filing of an Application in an Appeal, the Regional Appeal Registrar must:
(a) fix a date for a hearing of the application; or
(b) refer the application to a Judge in chambers if:
(i)the applicant has asked the court, in the application, to determine it without an oral hearing and the respondent has not objected to the request (see Part 5.4); or
(ii) the Regional Appeal Registrar considers
it appropriate.
It is immediately apparent in the context of the arguments in this matter that had the respondents filed an application then no doubt the applicant would have filed material taking objection to the extension of time. As will be made clear later in these reasons, the applicant’s position was known to the Registrar by reason of his correspondence with the court.
It is also apparent from the Act that matters such as the filing of submissions can be dealt with by written submissions, i.e. without an oral hearing. See section s 94AAA (10) and (11):
Appeals to Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia
…
(10) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
(b) for leave to amend the grounds of an appeal under subsection (1) or (1A); or
(c) to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d) to stay an order of the Family Court made in connection with an appeal under subsection (1) or (1A); or
(e) for an extension of time within which to file an application for leave to appeal; or
(f) for security for costs in relation to an appeal; or
(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or
(h) to adjourn the hearing of an appeal; or
(i) to vacate the hearing date of an appeal; or
(j) to expedite the hearing of an appeal;
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(own emphasis)
Reasons of the Registrar
The notice of appeal was filed on 4 May 2011. On 13 July 2011, Registrar Spink made procedural orders in the appeal. These orders included a requirement that the respondent file and serve a summary of argument and list of authorities by 23 December 2011. On 23 December 2011, the respondent sought the extension of time in respect of filing the summary of argument and the list of authorities the subject of this application.
A procedural hearing to consider the request for an extension of time was held on 16 January 2012. According to the court file, Registrar Kane conducted the hearing with both parties appearing by telephone. The coversheet states the appellant appeared in person, and Ms Brasch of counsel appeared for the respondent, the Child Support Registrar.
Following the hearing, the Registrar made the orders. The reasons for the Registrar are repeated here in full:
REASONS FOR DECISION
1. On 13 July 2011 Registrar Spink made procedural orders in this appeal, including, inter alia:
6. That the Appellant within 28 days file and serve an affidavit of service, evidencing the service of the Notice of Constitutional Matter on each of the Attorney-Generals [sic] for the Commonwealth, State and Northern Territory Governments and include in that affidavit the advice of each Attorney-General as to whether or not they seek to be heard in this appeal.
7. That the Appellant file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 25 November 2011
8. That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 23 December 2011
9. That the appeal be listed for hearing in the next available Brisbane Full Court sittings.
2. By email to the father and to the Court dated 23 December 2011 the respondent Child Support Registrar sought an extension of time to file the summary of argument and list of authorities to 20 January 2012.
3. By email on 10 January 2012 the appellant father objected to the extension of time requested.
4. I listed this case before me today for consideration of the request for extension.
5. The appellant father sent further emails to the Court dated
13 January 2012 and 15 January 2012 addressing these matters.6. At the hearing today Ms Brasch of counsel appearing for the respondent Child Support Registrar requested the time for filing be extended to 23 January 2012.
7. At the outset, I advised the parties that due to the number of appeals listed before this appeal it was unlikely that this appeal may obtain a date for hearing prior to May this year.
8. I have had regard to the email of the respondent Child Support Registrar dated 23 December 2011 and emails of the father dated
13 January 2012 and 15 January 2012 detailed above and the oral submissions of the parties today.9. I refer to paragraph 9 of the orders of Registrar Spink made
13 July 2011. By that order this appeal has since that time been on the list of matters awaiting allocation of a date of hearing before the Full Court. I note it is unlikely this Appeal may obtain a date for hearing before the May 2012 sittings of the Full Court.10. Since the orders of 13 July 2011 the appellant father has given Notice of a Constitutional Matter in November 2011, filed an amended Notice of Appeal on 25 November 2011; filed his summary of argument on 25 November 2011 and filed his list of authorities on 12 December 2011.
11. In those circumstances the matter which I consider of most relevance in considering the request for extension is whether undue prejudice will be caused to the appellant by such an extension. As the appeal remains on the list of matters awaiting an appeal hearing, the appeal is not delayed by the extension of time sought, and given the anticipated timeframe to appeal hearing outlined above, I am satisfied that the extension sought will not cause undue prejudice to the appellant father. I do not consider it necessary to traverse the balance of the matters addressed in the correspondence of the respondent Child Support Registrar or the appellant father as I do not consider they take the matter any further.
12. I therefore grant the request of the respondent Child Support Registrar for an extension of time to file the summary of argument and list of authorities to 23 January 2012 and so order.
The appellant applicant filed an application in an appeal on 24 January 2012, within the prescribed 14 day period, seeking, inter alia, that the orders made by the Registrar be set aside.
Lengthy affidavit material has been filed by both parties in this application.
Affidavits
The applicant has filed a total of four affidavits in support of his application. Two of his own, and two of persons said to have been present with him at the time of the telephone hearing.
The applicant has, unnecessarily, included in his own affidavits extensive material relating to the substantive appeal. As mentioned earlier, in addition to seeking to have the orders of the Registrar set aside, the applicant seeks orders in this application that the court declare the respondent in default of the orders of Registrar Spink made 13 July 2011 and proceed to hear the application for leave to appeal and the appeal. Alternatively, the applicant seeks that the appeal be set down to be heard at the first available date. In the further alternative, the appellant seeks a range of declarations in relation to the orders of FM Slack pertaining to the enforcement summonses.
As stated by the Registrar in paragraph 9 of the reasons for her decision, this appeal is awaiting listing before the Full Court. The substantive issues raised in the appeal will be heard by the Full Court. As a single judge my ability to make orders in this application is limited to a review of the Registrar’s decision ordering an extension of time for the respondent’s filing of a summary of argument and list of authorities. Accordingly, I will only consider any details relating to the substantive appeal insofar as it is relevant to that issue.
It should also be noted that the hearing of this application by me arises merely by operation of the Rules. Note 2 to Rule 22.40 states that the application must be listed by the Registrar for a hearing. No leave or consideration of the merits of the application prior to its hearing is required. It is a hearing de novo.
One basis for the applicant’s application seeking to have the orders of the Registrar set aside appears to be that his consent was not sought first by the respondent, nor granted by him, for an extension of time to file the relevant documents.
In paragraphs 28 to 42 of his first affidavit filed in support of his application on 24 January 2012, the applicant outlines the email correspondence between himself, the respondent and the court prior to the procedural hearing. These events will be considered below. He also outlines his own account of what was said at the procedural hearing before the Registrar, by telephone on 16 January 2012. The paragraphs of his affidavit pertaining to the conversation are set out here:
43. On 16 January 2012 I received a telephone call from a person who identified himself as [the appeals registrar assistant] of the Family Court. I placed the telephone onto speaker. [The appeals registrar assistant] said to me, “Could you hold the line for a minute please. Registrar Kane will be with you shortly.”
44.Another person spoke and identified herself as Registrar Kane. I started to speak and she told me to stop.
45.She then spoke to another person who identified herself as [Ms] Brasch. Registrar Kane then said to her, “Are you appearing for the respondent Ms Brasch.” Ms Brasch spoke indicating that she was appearing.
46.Registrar Kane then said to me, “Are you on the telephone Mr [Wellington].” I replied, “I note that you didn’t ask for an appearance Registrar because I do not appear.”
47.I did not at any time during the phone call give any consent whatsoever for orders to be made. I objected consistently to jurisdiction being taken through the telephone call.
48.During the conversation I said the words, “I want to make it clear Registrar that I have written to the respondent advising them that they have not asked me for consent to any extension of time. There has been no request from the respondent so there has been no opportunity to refuse. If and when the respondent requests my consent I can then give their request my consideration.”
49.At no time during the telephone call was my consent requested to extend the time for the respondent to file and serve documents.
Affidavits have also been filed by other persons, Mr J and Ms V, in relation to the telephone hearing before the Registrar. Both persons state they were present with the applicant at the time of the telephone call with Registrar Kane, and set out what they purport to have heard of the conversation. The affidavits do not advance the application against the making of the orders by Registrar Kane and as such I will not detail their contents.
There is no transcript of the hearing. In the reasons for decision, the Registrar did not make note of the applicant’s apparent unwillingness to be recorded as having appeared at the hearing. As previously stated, on the coversheet of the reasons it is noted that both parties appeared by telephone. However, there can be no doubt that the Registrar had read the appellant applicant’s emails and understood his objections.
The applicant appears to be under some misapprehension about the governance of procedural matters in an appeal to this Court. While it may be said that an appeal is ‘the appellant’s appeal’, this does not mean appellants possess the power to conduct the entirety of the proceedings as they see fit and to control the actions of the respondent. The court, and the Registrar as a member of the court, has the power to guide the conduct of the proceedings by making procedural orders. The court may hear from the parties as to the appropriate course, as was done by the Registrar in this case. Indeed parties may agree with each other about matters, and the court can then make consent orders giving effect to their agreement. However, decision making as to procedural issues ultimately rests with the court, subject always to procedural fairness.
The applicant filed a second affidavit on 29 February 2012. The appellant again included material irrelevant to the issue in this application, which I will accordingly not address. In this second affidavit, the applicant appears to raise a separate or alternative complaint, that of non-compliance by the respondent with the orders made 16 January 2012 by the Registrar extending the time to file the submissions, because the submissions were not served on him by the due date.
The applicant says he received an envelope (which he presumably considered to be the relevant documents from the respondent) at 11.30 am on
24 January 2012 at his home. The respondent filed the summary of argument and list of authorities on 23 January 2012. The applicant says the respondent did not comply with the orders of the Registrar because the respondent did not serve the relevant documents on him by 23 January as was required by Order 1.
Order 1 stated that ‘the time for the respondent to file and serve … be extended until 23 January 2012’. The appellant’s understanding of the order is clearly then that the respondent was required to have completed both filing and serving of the documents on 23 January 2012, such that the appellant receive the documents on that same day. It seems that the respondent did not effect service on the appellant applicant at his address for service until the following day, but did email the documents to him.
Chapter 7 of the Rules governs the service process. Rule 7.01 provides that service of a document may be carried out by special service or ordinary service unless otherwise required by a legislative provision. Rule 7.07 describes ‘special service’ and states a document may be served on a person in Australia by sending it to the person by electronic communication. Rule 7.17 states that service is taken to have been carried out, either on the date when service is acknowledged, or if served by post to an address in Australia, on the third day after it was posted.
On both the notice of appeal and amended notice of appeal, the appellant applicant did not include an email address in the address for service section. The notice of appeal form requests parties do not include email or fax addresses unless they are willing to receive documents from the Court and other parties in that way. The applicant stated he had omitted his email address from the notice because he did not want to be served by email. He did concede however, that he often served and was served with documents by the respondent by facsimile, and that he also often received documents from the court by email.
Rule 7.02 contains an ultimate discretion of the court regarding service. A court may find a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.
The Australian Government Solicitor (‘the AGS’), the solicitor for the respondent, has filed two affidavits in this application. In his first affidavit filed 7 February 2012, a solicitor from the AGS states he filed the summary of argument and list of authorities at the court on 23 January 2012. He also states that on the same day, he sent sealed copies of the documents to the appellant applicant’s email address, informing the appellant in the email that the documents had been sent to him by Express Post that day, and did not receive any electronic notification that the email had not been received or delivered. Attached to his affidavit is a copy of the email, dated 23 January 2012, 4.13 pm (Exhibit A).
The solicitor also stated that on 23 January 2012 he arranged for a copy of the documents to be sent by Express Post to the applicant at his address for service in Cairns. Attached to his affidavit is a copy of the documents sent, being copies of the sealed summary of argument and list of authorities, and a cover sheet with Express Post sender stickers attached.
A second affidavit of the respondent’s solicitor was filed on 29 February 2012. Relevantly, the solicitor states he has not yet been served with a sealed copy of the appellant applicant’s summary of argument. He states an unsealed copy was received on 25 November 2011, in time with the original and unchanged order of the previous Registrar dated 13 July 2011. The respondent has now been provided, by the court, with a copy of the sealed summary of argument.
In this second affidavit, the solicitor also details the service of, and return from the appellant applicant, his affidavit dated 7 February 2012 (and supplementary notices incident to the substantive appeal). The solicitor states he caused the affidavit (and the other documents) to be sent to the appellant by email on
20 February 2012 (Exhibit F). The solicitor states on 20 February 2012 he once again caused to be sent, by email to the appellant applicant, sealed copies of the respondent’s summary or argument and list of authorities (Exhibit G).
To the extent that it is necessary, and accepting the appellant applicant’s evidence about service, it is accepted that the service on him was effective.
Discussion
In order to be successful in his application, the applicant must demonstrate that the Registrar erred in the exercise of discretion, in fact or in law, by ordering an extension of time for the respondent to file documents. The appellant has not presented an argument in these terms. The argument is more about procedural fairness and the need for a formal application to be filed.
The appellant applicant filed his summary of argument on 25 November 2011, as required by the procedural orders of 13 July 2011. On 25 November 2011 he also filed an amended notice of appeal. The summary of argument totals 21 pages. The amended notice of appeal contains 41 grounds of appeal. The appellant applicant did not, as was required by those orders, file his list of authorities on 25 November 2011. This was filed on 12 December 2011.
It is also relevant to note here the impact of filing of Notices of a Constitutional Matter. Order 6 of the orders made 13 July 2011 by Registrar Spink ordered that within 28 days, the appellant file and serve an affidavit of service evidencing the service of the Notice of a Constitutional Matter on each of the Attorneys-General and include in that affidavit the advice of each as to whether or not they would seek to be heard in the appeal. The appellant did not file and serve such an affidavit within 28 days.
On 31 January 2012, the respondent filed a supplementary notice of constitutional matter. That notice stated that the appellant filed a notice of a constitutional matter on 11 November 2011. The appellant’s notice does not appear on the court file as being filed on that date. It appears to have been filed later, by inclusion in an affidavit of service of the appellant dated 12 December 2011. In the affidavit the appellant states he posted the notice to the Registry for filing and then served of copy of the notice on the Attorneys-General as required by the orders of 13 July 2011. The substance and form of the affidavit are as were required by the orders of 13 July 2011, however the filing was approximately four months out of time.
On 23 December 2011, the day the respondent’s summary of argument and list of authorities were due to be filed, the respondent sought an extension of time to file these documents. The extension of time was not sought by the filing of an application, but rather by way of facsimile correspondence addressed to Registrar Spink and CC’d to the appellant applicant.
In the facsimile correspondence the solicitor for the respondent stated the appellant’s summary of argument raised constitutional issues, as was evidenced by the appellant’s filing of a notice of constitutional matter, and further consideration by the client of these issues was required. It was further stated that in circumstances where the parties had not yet been provided with a hearing date, no prejudice would be suffered by the appellant should the extension be granted (MAW-4 to 24 January 2012 affidavit).
The appellant applicant responded by email on 28 December 2011. In an email addressed to the appeals registrar assistant of the court and CC’d to the solicitor for the respondent, he stated that the respondent had not raised a valid ground for an extension of time. He stated if an application were made he would resist it on the basis that the respondent had issued a Departure Prohibition Order which remained in force against him regardless of the judgment in the court below and in addition the respondent had lodged two caveats against his interest in properties of which he owns with a third party. The appellant stated that if there was a genuine need for an extension of time, which he did not accept, the respondent had had sufficient time prior to 23 December 2011 to contact him to ask for an extension (MAW-5 to 24 January 2012 affidavit).
The appellant sent another email on 10 January 2012, directly to the solicitor for the respondent and CC’d to the appeals registrar assistant of the court. The appellant stated that the orders of 13 July 2011 were made by consent and as such, any amendment for an extension of such must be either by consent or through an application to the court. The appellant also stated in the email that notwithstanding the respondent’s failure to file and serve the summary of argument and list of authorities, the hearing would proceed at the next available Brisbane Full Court sittings, at which time he would consider making an oral application for a contempt order to made against the “parties involved” (MAW-6 to 24 January 2012 affidavit).
It was confirmed with the appellant applicant by an email from the appeals registrar assistant on 11 January 2012 that the matter was listed for a procedural hearing before Registrar Kane on 16 January 2012. The email stated that the correspondence from the respondent dated 23 December 2011, and from the appellant dated 28 December 2011 would be mentioned at the hearing (MAW-7 to 24 January 2012 affidavit).
The appellant then sent an email addressed to the Registrar, via the email address of the appeals registrar assistant, on 13 January 2012. In that email the appellant raised his concerns about the matter being listed for a procedural hearing. It is apparent from that email that the primary concern of the appellant in relation to the application for an extension of time was that the respondent did not seek his consent or agreement to change the orders. The appellant states to the Registrar that it is his understanding the orders of 13 July 2011 may only be changed by consent of the parties, or alternatively an application to change the orders which must be heard by a judge. The appellant stated that any delay in hearing the matter, that is, the substantive appeal, would be prejudicial to his rights in the circumstances of the Departure Prohibition Order and the caveats remaining in force (MAW-8 to 24 January 2012 affidavit).
The appeals registrar assistant replied to the appellant’s email on 13 January 2012 and stated that the matter was listed to determine the request for extension of time as there was no consent (MAW-9 to 24 January 2012 affidavit).
The appellant again replied, addressing the Registrar, on 15 January 2012. The appellant stated that his understanding as a self represented litigant was that the Registrar was not in a position to grant such an extension without his consent. The appellant made a submission that in the absence of any documents being filed, the Registrar had no jurisdiction in the matter other than to consider the specific request. He suggested that the matter of the correspondence could be considered ex parte and stated that based on the correspondence, there was no reason for a hearing at all and that his appearance therefore could not ne given or refused. He also stated there was no jurisdiction to grant leave of any kind including leave to file an application for an extension of time. Such an application would require a formal application being made and would require support by substantive grounds (MAW-10 to 24 January 2012 affidavit).
In the reasons for decision, the Registrar stated she had had regard to the email of the respondent dated 23 December 2011 and the emails of the appellant dated 13 January 2012 and 15 January 2012, as well as the oral submissions of the parties on that day. No details of the submissions made by the parties at that hearing, leaving aside the issue of the appellant’s appearance or
non-appearance, are available.
Conclusions
In most cases the application for an extension of time to file a summary of argument is dealt with by registrars, through an agreement between the lawyers or by order in relatively uncontroversial circumstances. In this case, clearly a complicated matter, the appellant took objection. The better course may have been to require an application to be filed together with a supporting affidavit. This would have allowed the appellant applicant to make a response and file material.
In any event this is a hearing de novo. The reasons for the application to extend the time were explained by Ms Brasch and can be summarised as follows:
(1)No sealed copy of the appellant’s summary of argument had been served on the respondent and hence there was some ‘trepidation’ in drafting the respondent’s own summary of argument in response;
(2)The appellant’s summary of argument and amended notice of appeal were ‘difficult’ to comprehend and link together;
(3)The notice of constitutional matter required to be filed by the appellant within 28 days of the orders of 13 July 2011 was filed late, and was ‘deficient’; and
(4)There would be no prejudice whatsoever to the appellant.
Ms Brasch submitted that the first three arguments did not, in reality, need to be dealt with, because the complete lack of prejudice to the appellant dispensed with the matter altogether.
An order should have been made granting the extension of time. There was no prejudice to the appellant applicant. The application is dismissed accordingly.
I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 8 March 2012.
Associate:
Date: 8 March 2012
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