West and White
[2009] FamCAFC 218
•30 November 2009
FAMILY COURT OF AUSTRALIA
| WEST & WHITE | [2009] FamCAFC 218 |
| FAMILY LAW - APPLICATION IN AN APPEAL – Application to extend time to appeal – Where Notice of Appeal received at Court post office box on last day for filing appeal – Applicant asserted documents were “filed” - For a document to be filed it must be accepted for filing by an employee of the Court who has the requisite authority to permit the document to be filed – Notice of Appeal filed one day late – Delay is explained – Extension of time to file Notice of Appeal is granted – Where applicant subject to s 118 order – s 118(2) variation ordered to enable applicant to appeal |
| Family Law Act 1975 (Cth) ss 94AAA, (5), 118, 118(2), Pt XIIIA Federal Magistrates Court Rules 2001 rr 13.10 Family Law Rules 2004 rr 1.14, 1.23, (4)(1), (2), (3), (4), (5), 11.05, 11.05(4), 22.03, 24.05 High Court Rules 2005 r 1.07(2) |
| Gallo v Dawson (1990) 93 ALR 479 Joshua v Joshua (1997) FLC 92-767 |
| APPELLANT: | Mr West |
| RESPONDENT: | Ms White |
| FILE NUMBER: | (P)NCC | 3 | of | 2007 |
| APPEAL NUMBER: | (A)EA | 127 | of | 2009 |
| DATE DELIVERED: | 30 November 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATE: | 20 November 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 75 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Fox, Attwaters Solicitors |
| RESPONDENT: | In person |
Orders
That the time for the appellant husband to file a Notice of Appeal against the orders of Federal Magistrate Coakes of 25 August 2009 be extended to 4.00pm on 11 December 2009.
That the appellant husband shall file and serve a draft appeal book index on or before 8 January 2010.
Pursuant to s 118(2) order 13 dated 1 September 2005 is varied by adding thereto the words “other than to appeal or in relation to an appeal”.
That the costs of this Application be reserved to the Full Court hearing the appeal.
IT IS NOTED that publication of this judgment under the pseudonym West & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Glanton & Holden.
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
Appeal Number: (A)EA 127 of 2009
File Number: (P)NCC 3 of 2007
| MR WEST |
Appellant
And
| MS WHITE |
Respondent
REASONS FOR JUDGMENT
By application in an appeal filed 20 October 2009 Mr West (“the husband”) sought an extension of time in which to file a Notice of Appeal against orders made by Coakes FM on 25 August 2009. The proceedings before the Federal Magistrate comprised a Contravention Application brought pursuant to Pt XIIIA of the Family Law Act 1975 (Cth) (“the Act”) against Ms White (“the wife”).
The Federal Magistrate dismissed the husband’s Contravention Application pursuant to r 13.10 of the Federal Magistrates Courts Rules 2001 and ordered him to pay the wife’s costs in the amount of $650. Against those orders the husband wishes to appeal.
In support of his application the husband relied upon his affidavit filed 20 October 2009 and oral testimony.
Background facts
The litigation between the husband and wife commenced in the Federal Magistrates Court in June 2002. Numerous orders have been made over the years and several judgments delivered by the Federal Magistrates Court, the Family Court and the Full Court of the Family Court. For current purposes, it is unnecessary for me to go into the procedural history in detail. It is sufficient to note that on 16 December 2008, final property settlement orders were made by consent (‘the consent orders”).
Order 1 made on 16 December 2008 provides as follows:
1By way of alteration of property interests pursuant to section 79 of the Act, the parties and each of them do all acts and things and execute all deeds and instruments necessary or convenient to effect the following:
1.1 the sale by private treaty for the best price reasonably obtainable in the current market of the land and premises situate at and known as [details deleted] in the State of NSW being the land more particularly described in Certificate of Title folio identifier [identifying number deleted] (“the home”);
1.2 the application of the proceeds of sale of the home in the following order and priority:
1.2.1the “usual” adjustment of rates and statutory charges;
1.2.2selling agent’s commission on the sale and any other proper expenses of the sale;
1.2.3solicitor’s costs and disbursements of acting for the vendor on sale and in relation to the discharge of the mortgage registered on title;
1.2.4subject to order 4 hereof, to the wife 57% of the balance then remaining;
1.2.5subject to order 5 hereof to the husband the balance then remaining.
Order 7A of the consent orders provides:
7A. That in the event of any disagreement between the parties as to any aspect of the listing for sale, or sale, or auction of the home, then the Chief Executive Officer for the time being of the Real Estate Institute of New South Wales or his nominee (hereinafter referred to as “the CEO”) shall be and is hereby appointed to determine any such disagreement, and any costs incurred shall be borne equally between the parties, and the solicitors for the wife are authorised and directed by these orders to make any necessary adjustment from the parties’ respective shares of the proceeds of the sale pursuant to order 1 hereof.
Order 8 of the consent orders provides that: “The wife shall keep the husband informed of the progress of the marketing and sale of the home.”
The wife was the sole registered proprietor of the former matrimonial home. On 14 August 2009 she exchanged contracts for the sale of the former matrimonial home.
The same day the husband filed the subject Contravention Application in which he alleged the wife had contravened order 7A of the consent orders. In his supporting affidavit the husband alleged that the wife entered into the contract for the sale of the former matrimonial home without any consultation with him as to conditions, price or terms of sale. The husband alleged that the sale figure was unsatisfactory.
The husband’s Contravention Application came before Coakes FM on 25 August 2009. His Honour summarily dismissed the Contravention Application pursuant to r 13.10 of the Federal Magistrates Rules. His Honour held, at par 12 of his judgment:
… I find on the evidence the husband has adduced, that he has no reasonable prospect of successfully prosecuting the proceeding or claim under which he brings this application.
In his proposed Notice of Appeal the husband relied on the following ground of appeal:
1. The magistrate proceeded the hearing without due fairness in procedure to the applicant in that after issuing a date for hearing (14.12.2009) he proceeded on with a decision without fair notice of his intention, thus disadvantaging the applicant’s input to a hearing and examine the respondent (that was not available) and to adduce evidence.
The husband produced an Australia Post document tracking receipt which established that the husband’s Notice of Appeal was correctly addressed to the Eastern Appeals Registry and received at the Court’s post office box address at 4.36 am on 22 September 2009. The last day for filing a Notice of Appeal against the orders made on 25 August 2009 was 22 September 2009.
I infer that the mail box was cleared during 22 September 2009 and at some time during business hours that day the husband’s Notice of Appeal was delivered to the registry.
Appeals registry staff received the husband’s Notice of Appeal on 23 September 2009. He was refused permission to file it and informed that he would need to bring an application for an extension of time. It is this application with which I am concerned. The husband, however, raised a preliminary point to the effect that because the Court had received his Notice of Appeal within time he does not require an extension of time.
Relevant law
Section 94AAA of the Act deals with appeals from the Federal Magistrates Court. Section 94AAA(5) specifies that an appeal from the Federal Magistrates Court is to be instituted within the time prescribed by the standard Rules of Court or such further time as is allowed in accordance with the standard Rules of Court.
Chapter 22 of the Family Law Rules 2004 deals with Appeals. Rule 22.03 provides that a Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
Rule 1.12 of the Rules provides:
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise.
(2)The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.
Pursuant to r 1.14 a party may apply for 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 subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
The relevant principles to be applied when deciding whether to extend time for lodging an appeal were decided by the High Court in Gallo v Dawson (1990) 93 ALR 479. McHugh J held at 480-481:
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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
In Joshua v Joshua (1997) FLC 92-767 at 84,440 Lindenmayer J discussed the applicable principles which govern the grant or refusal of an extension of time to file an appeal in the family law context. He said:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court's satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.
Accordingly, 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. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.
When was the husband’s Notice of Appeal filed?
Rule 24.05 of the Family Law Rules is as follows:
(1)A document is filed if:
(a)The document is:
(i)Delivered to the registry;
(ii)Posted to the registry; or
(iii)Sent to the registry by electronic communication under rule 24.06 (facsimile) or 24.07 (e-mail and Internet);
(b)The filing fee (if any) is paid or waived.
Note The Registry Manager will record the date of filing according to the current protocol adopted by the court.
(2)A document is filed if it is accepted for filing by a judicial officer in court during a court event.
(3)On the issue of a subpoena, the Registry Manager must seal a sufficient number of copies for service.
(4)A document that is sent for filing by electronic communication after the filing registry has closed is taken to have been received by the filing registry on the next day when the filing registry is open.
(5)Except as otherwise required by these Rules or an order, a document to be relied on in a court event must be filed at least one day before the date fixed for that event.
Note For information about filing fees, see regulation 11 of the Regulations.
I enquired of the Registry Manager if there is a protocol of the type referred to at the note to r 24.05. I was informed that there are staff directions for the receipt and management of documents and that the acceptance of documents for filing is delegated to particular staff. There is otherwise nothing which is described as a protocol. It appears that these staff directions and authorisations comprise the protocol to which the notation in the rule refers.
The dictionary to the Family Law Rules 2004 defines “file” in the following terms; “file means to lodge in a court registry (see Pt 24.2).” There is no definition of “lodge” in the dictionary. It thus carries its ordinary meaning.
In Strudwick and Johnson delivered 7 March 1996 (unreported) Lindenmeyer J discussed the meaning of the word “filing”. His Honour’s remarks must be read in the context of the then relevant rule, namely r (4)(1):
4(1) A document is filed in, or in connection with, proceedings if:
(a)it is delivered to the filing registry; or
(b) with the leave of a court or a Registrar - it is delivered to a registry that is appropriate in the circumstances;
and the document is accepted for filing by the court or a Registrar.
4(2) ...
4(3)The Registrar shall cause the date of filing to be marked on every document that is filed.
4(4)Where a document has been filed, each copy of the document for service shall bear the seal of the court in which the document was filed.
Lindenmeyer J said:
4.12In ordinary cases, acceptance for filing will be implicit in the act of handing over a document and having it received by the filing staff without reservation. However, this general rule must be qualified. Acceptance for filing will not be implied if the person tendering a document for filing is advised that it will be referred to a Registrar or some other advice is given that it is not accepted for filing, such as if the document is defective in some way. Therefore, I conclude that the document was filed on 29 August 1995 when it was received into the Registry.
4.13Order 2, Rules 4(3) and (4) prescribe procedural requirements in relation to documents which have been filed. Subrule (3) states that the date of filing is to be marked on every document filed. Under subrule (4), where a document has been filed, each copy of the document is to bear the seal of the court. However, these are merely rules for, respectively, record keeping and the authentication of documents. Although the document delivered by the husband to the Registry did not receive the filing stamp or the seal of the court at that time, both of which are generally affixed contemporaneously, the affixing of these stamps is not an integral part of the act of filing.
Unlike the situation in Strudwick and Johnson the rules under which this application is determined do not refer to the requirement that a document must be accepted in order for it to be deemed as having been filed. It is the husband’s contention that he was required to do no more than deliver the Notice of Appeal to the Court by the last day upon which he could lodge an appeal for the document to be filed on time.
The husband’s argument is based upon a literal reading of subrule (a) in isolation. It is noteworthy that the heading to subrule (a) is: “How a document is filed” and not “when a document is filed.” Subrule (a) is directed to the various modes of delivery to the Court of documents for filing. However, there is more to filing a document than merely using one of the modes for delivery referred to in subrule (a) to bring the document to the Court. For example subrule (b) requires that any fee must be paid or waived. Similarly throughout the rules there is reference to particular documents being required for particular proceedings. Rule 24.10 gives a Registrar the power to refuse to accept a document for filing if one of the six criterion therein are found to exist. That the rules contain preconditions to a document being filed which, even where complied with, a Registrar may nonetheless refuse demonstrates that for a document to be filed it must be accepted for filing by an employee of the Court who has the requisite authority to permit the document to be filed. Consequently mere delivery of the document in accordance with subrule (a) even if fully compliant with the relevant rules, does not equate to filing a document.
The effect of these findings is that the husband’s Notice of Appeal was not filed when it was received on 22 September 2009. It is thus necessary to consider the husband’s application for an extension of time. However before I leave this topic I observe that this issue is dealt with more tidily in the High Court Rules. Rule 1.07(2) of the High Court Rules 2004 says: “A document is filed when it is accepted in the Registry and is stamped.” Although for the reasons stated above I am satisfied that for a document to be filed in the Family Court it must be accepted it would be desirable if that were stated in the rules. At the very least, this would go some way towards ensuring that the many litigants who participate without legal representation understood the import of Pt 24.2.
Should the husband be granted an extension of time?
It is not possible to determine from the Court file why the husband’s Notice of Appeal was received in the Eastern Appeals Registry a full day after it was received at the Court’s postal address. Although the husband could have avoided any issue by posting his Notice of Appeal earlier or personally presenting it to the registry in Sydney, the receipt of his Notice of Appeal by the relevant employee the day after it was delivered to the Court is the Court’s and not the husband’s delay. Clearly had an appropriate employee considered the document on the day it was received the Notice of Appeal would have been filed within time. This factor weighs heavily in favour of the husband being granted the indulgence sought by him.
In the circumstances, it is unnecessary to give other than cursory consideration to the husband’s likely prospects of success. From his proposed grounds of appeal it appears that the husband’s challenge is predominantly one which raises issues of procedural fairness. Given the lack of transcript and appeals books, I cannot conclude that the husband’s appeal is without merit. The point being I am unable to assess the merits of the procedural fairness challenge without the benefits of the transcript.
Consequently, the husband will be granted an extension of time.
Other matters
On 1 September 2005 an order was made against the husband pursuant to s 118 of the Act. This order is set out below:
13.The husband must not, without leave of a Judge of this Court institute any further proceedings against the wife under the Family Law Act.
14.Any application for such leave is in the first instance to be listed before a Judge in chambers without appearances and unless otherwise ordered is not to be served upon any other party.
The husband did not seek permission to commence the contravention application before the Federal Magistrate. Before me, the husband and the solicitor for the wife agreed Coakes FM was unaware of the s 118 order.
Where a s 118 restraint order operates, the parties are required to seek leave pursuant to r 11.05 to start or continue a case. By r 11.05(4) the Court must not grant permission to start or continue a case unless it is satisfied that the case has reasonable likelihood of success.
The effect of the s 118 order which does not exclude an appeal or application in an appeal is that the husband must prima facie comply with r 11.05(4) for his application to be given permission to proceed. The rules however do not anticipate that a case could be commenced and brought to finality in circumstances without the s 118 and r 11.05(4) issues having first been addressed. While it may be that, had the husband sought permission to commence or continue his case the application of r 11.05 may have resulted in permission being denied, to deny the husband the opportunity to appeal against dismissal of his application at this stage would be contrary to the interests of justice. Accordingly in reliance upon r 1.12 it is appropriate that I dispense with r 11.05.
As I have recorded the s 118 order made against the husband prevents him from lodging an appeal without leave. It seems perverse that the order should have such an effect. This outcome appears to me to be an oversight in the way the order was drafted and it is likely this appeal embargo is an unintended consequence. Accordingly and of my own motion, pursuant to s 118(2) it is appropriate to vary the s 118 order made 1 September 2005 so that it does not apply to an appeal.
For these reasons I make the orders identified at the beginning of this judgment.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 30 November 2009
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