Wilborn & Hervey
[2025] FedCFamC1A 19
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wilborn & Hervey [2025] FedCFamC1A 19
Appeal from: Hervey & Quayle [2024] FedCFamC2F 1605 Appeal number: NAA 354 of 2024 File number: BRC 9067 of 2022 Judgment of: AUSTIN J Date of judgment: 18 February 2025 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time –
Where the primary judge made orders for the applicant to pay the respondent’s costs incidental to several hearings in the original proceedings – Where the applicant is a former solicitor of a party in the original proceedings – Where none of the grounds of appeal seem to have any reasonable prospects of success – Appeal dismissed.Legislation: Family Law Act 1975 (Cth) Pt VIIAB, s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 2.23, 12.15, 13.38
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 24 Date of hearing: On the papers in chambers Place: Newcastle The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 354 of 2024
BRC 9067 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WILBORN
Applicant
AND: MS HERVEY
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 February 2025 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilborn & Hervey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
These reasons explain the dismissal of an application to review the decision of the appeal registrar, refusing the applicant’s application for an extension of time within which to file a Notice of Appeal.
Background
In February 2024, consent orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 2) to finalise a de facto financial cause between parties under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
Although the substantive financial cause was thereby finalised, one party still pressed an outstanding costs application against the other party’s former lawyers for their conduct causing costs to be thrown away at three anterior Court events in January 2024.
The costs application was heard in February 2024, final written submissions were filed in May 2024, and judgment was delivered on 14 November 2024. On that date, the primary judge relevantly made these orders:
2.Pursuant to s117 of the Family Law Act 1975 (Cth) [law firm] and its Director, [named] and principal solicitor [the applicant] are jointly and severally liable to pay the [respondent’s] costs of and incidental to the hearings on 24 January 2024, 25 January 2024 and 29 January 2024 fixed in the total sum of $17,931 (as referred to at paragraphs 144 and 145 of the Reasons for Judgment), with such amount payable within 28 days from today’s date.
3.The Registrar is to provide to the Office of the Legal Services Commission Queensland for investigation with respect to the professional conduct of [the Director] and [the principal solicitor] in relation to their conduct in these proceedings as referred to in this judgment.
(As per the original)
The “principal solicitor” referred to in the orders (“the applicant”) attempted to file a Notice of Appeal from Orders 2 and 3 on the last day of the appeal limitation period – 12 December 2024 – however the Notice of Appeal was not filed until 4.45 pm and so was 15 minutes late.
By operation of r 2.23(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the Notice of Appeal was taken to have been filed the next day and, hence, was out of time. The appeal registrar therefore properly rejected it.
On 18 December 2024, the applicant filed an Application in an Appeal seeking an extension of time within which to file the appeal. The application was heard on 21 January 2025 and dismissed the next day. Essentially, the appeal registrar found Order 3 was not an order from which an appeal lies and, as for Order 2, the prospective appeal had no reasonable prospects of success and so it would be futile to grant the requested extension of time.
On 12 February 2025, the applicant filed an Application in an Appeal reviewing the appeal registrar’s decision.
The applicant requested that the review application be determined in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Rules, which request is granted.
The applicant presumably relies upon the following material to prosecute the review:
(a)the draft Notice of Appeal the applicant attempted to file, dated 12 December 2024;
(b)the affidavit of Ms C, filed on 18 December 2024 in support of the application to extend time;
(c)the applicant’s affidavit filed on 20 December 2024 in support of the application to extend time;
(d)the applicant’s written submissions filed on 14 January 2025 in support of the application to extend time; and
(e)the applicant’s affidavit filed on 12 February 2025 in support of the review application.
Legal principles
This being a hearing to review the decision of the appeal registrar made on 22 January 2025, it is conducted an original hearing of the applicant’s application for an extension of time within which to file the appeal from the orders made on 14 November 2024.
The principles governing an application to extend time within which to appeal were described this way in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Those principles are now applied.
Disposition
The applicant’s draft Notice of Appeal states an intention to appeal from Orders 2 and 3 made on 14 November 2024.
Order 3 does not embody a “judgment” from which any appeal lies. It is not an order made in the exercise of any statutory jurisdiction afforded to the Court. It purports only to be a direction given by the judge to a registrar, which does not decide any legal right of any person. Allowing for the grammatical deficiency of the order, it is simply intended to direct the provision of something it does not identify (but presumably meant to be the sealed orders and the reasons published for the costs order) to the State Legal Services Commissioner to facilitate any investigation by that State officer into the applicant’s professional competence. The application for an extension of time to pursue an appeal from Order 3 should be refused.
Order 2 is an appealable judgment, but the first question to now be addressed is whether the proposed appeal raises a substantial issue about that order, which question is answered by directing attention to the proposed grounds of appeal.
The proposed grounds of appeal are pleaded as follows:
1.The learned judge erred at law because the discretion to award costs under s.117(2) of [the Act] is to be construed by the limits in r.12.15 of [the Rules] and [the applicant], as supervising solicitor:
a. was not an employee of [the Director]; alternatively,
b. was not an agent of [the Director]; alternatively,
c. was not causative of costs being incurred by the [respondent].
2. [The applicant] was denied procedural fairness;
a.because he was not provided with precise particulars of his conduct that was said to fall within to the matters identified in r.12.15(1) of the Rules, specifically:
i. his failure to comply with the Rules or an order; or
ii. his failure to comply with a pre-action procedure; or
iii. his improper or unreasonable conduct; or
iv. his undue delay or default;
3.[The applicant’s] conduct, as a supervising solicitor, was not so deficient, delinquent or incompatible with professional standards it necessitated a personal costs order against him.
4.The learned judge erred in the exercise of the discretion to make a personal costs order against [the applicant] because the learned judge relied upon findings of fact which were either not available on the evidence adduced, or untested.
Ground 1 alleges some form of constriction of the width of the discretion available to the primary judge to make the costs order against the applicant under s 117 of the Act, but the proposition of an error of law may be immediately rejected. The breadth of s 117 of the Act is such that it enables costs orders to be made against parties, their lawyers, and even third parties not joined to the proceedings in exceptional circumstances (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 189–190, 202, 207, 213, 220, 226–229). So far as can be discerned, the applicant does not dispute he was correctly described as the principal solicitor of the incorporated legal practice which was still on the Court record as being the lawyers acting for the respondent in the de facto financial cause in January 2024, with a Notice of Address for Service having formerly been filed in September 2022.
Ground 2 asserts the applicant was denied procedural fairness because he was not provided with precise particulars of his misconduct to justify the costs order against him under r 12.15 of the Rules. This complaint may also be rejected. The costs hearing before the primary judge was conducted on 23 February 2024. The applicant elected not to appear that day, despite being aware of the costs application (at [46]–[49] and [54]). The primary judge was satisfied the applicant had been properly served with the material upon which the costs order was sought against him (at [54] and [140]). The applicant was then given several weeks to listen to the audio recording of the costs application, the hearing of which proceeded in his wilful absence, and more time to thereafter make any submissions in writing (at [55]–[56]). The applicant filed two sets of submissions several weeks afterwards (at [57]–[69] and [82]), which were taken into account. His complaint of being denied procedural fairness seems quite baseless.
Ground 3 is not a competent ground of appeal. It is just an assertion of disagreement with the findings of the primary judge. No attempt it made to articulate how the primary judge fell into error by determining the applicant’s conduct was such as to justify a costs order against him.
Ground 4 is also misconceived in its current form. It alleges a miscarriage of discretion based upon factual findings which were not open to the primary judge.
The ground fails to identify the allegedly erroneous factual findings. More to the point, the evidence which revealed the nature of the applicant’s unsatisfactory professional conduct was uncontroversial. It comprised a solicitor’s affidavit filed and served by the party seeking the costs order against him and the transcripts of events at Court on the relevant dates. The solicitor’s affidavit was not challenged by the applicant and there could have been no rational challenge to the content of the transcripts. The applicant elected to adduce as evidence on the costs dispute only some written communication between himself and the other person who is jointly and severally bound by the costs order (at [82] and [117]), by which the applicant sought to absolve himself of blame at the expense of the other person (at [107]–[122]). On the material the applicant has now chosen to place before the Court, the complaint of factual error could not be established and so neither could the ancillary complaint of discretionary error.
None of the four grounds of appeal seems to have any reasonable prospects of success, let alone to raise a substantial issue. It would therefore be pointless to extend time for the proposed appeal, despite the short amount of time by which it was belatedly filed, because enabling its pursuit would only likely visit prejudice upon the respondents, who would then needlessly incur costs to resist it.
One final point is worth mentioning. The applicant submitted to the registrar the costs order has already been paid by the other party bound by it (at [119]). Assuming that is true, because there is no evidence to prove the fact, it is another reason why time to appeal should not be extended. There is no utility to the appeal. The costs order has been executed and so, absent any claim against the applicant by the payer for contribution, the applicant no longer bears any joint or several liability for the costs. There is no longer a justiciable dispute to be quelled between the applicant and the beneficiary of the costs order, which probably means there is no jurisdiction to even entertain the proposed appeal (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [32]–[35], [66], [68], [72]–[74] and [91]–[92]).
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 February 2025
0
6
2