Yates and Yates
[2011] FamCAFC 87
•10 March 2011
FAMILY COURT OF AUSTRALIA
| YATES & YATES | [2011] FamCAFC 87 |
| FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the husband failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – where efforts were made within time to comply with the requirement to file a draft appeal index – where the husband had difficulty accessing documents from his solicitor who was overseas – where there is an adequate explanation for the delay – consideration of the consequences for the parties if the application is granted or refused – where the interests of justice require that the application be granted – appeal reinstated. |
| Family Law Act 1975 (Cth) s 94(2D)(c) & s 94(2F) Family Law Rules 2004 (Cth) rr 1.14, 22.13, 22.44 & former r 22.57 |
| Bane & Hacker [2009] FamCAFC 110 Batey‑Elton & Elton [2009] FamCAFC 101 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Yates |
| RESPONDENT: | Ms Yates |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Patrick Fitzgerald |
| FILE NUMBER: | HBC | 506 | of | 2009 |
| APPEAL NUMBER: | SA | 76 | of | 2010 |
| DATE DELIVERED: | 10 March 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 September 2010 |
| LOWER COURT MNC: | [2010] FamCA 775 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ayliffe |
| SOLICITORS FOR THE APPLICANT: | Munro & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr McVeity |
| SOLICITORS FOR THE RESPONDENT: | Bishops Barristers & Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fitzgerald |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
The Notice of Appeal filed on 5 October 2010 be reinstated.
Within twenty-one (21) days of the date hereof the Applicant file and serve an amended Notice of Appeal.
This matter be referred to the Regional Appeals Registrar for the listing of a Directions Hearing on an urgent basis.
IT IS NOTED that publication of this judgment under the pseudonym Yates & Yates 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 76 of 2010
File Number: HBC 506 of 2009
| Mr Yates |
Applicant
And
| Ms Yates |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
The application before me today is an Application in an Appeal filed by the husband on 14 January 2011. In that application, he seeks three orders, but the effect of what he seeks is that the Notice of Appeal that has been deemed abandoned be reinstated.
In the orders sought, there is reference to an extension of time to file a draft index, and that order to be pursuant to r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”), but this is not an application for an extension of time; it is an application for reinstatement. However, as I think at least one counsel has commented, the nature of such an application is very much akin to an application for an extension of time, and the principles apply mutatis mutandis. In any event, to proceed, in support of that application there is an affidavit filed by the husband on 14 January 2011. I also have before me the reasons for judgment delivered by Benjamin J on 7 September 2010, his Honour’s orders and the Notice of Appeal which was filed, importantly, within time on 5 October 2010, and which sets out the grounds of appeal and the orders sought.
I mention at this point that there has been some discussion between bar and bench about the adequacy of that Notice of Appeal, and particularly in relation to the grounds of appeal. For my part, I am concerned as to the adequacy of those grounds. That concern is shared by all counsel. In fact, Mr Ayliffe for the husband has conceded that, and has indicated that his client would be quite prepared to be subject to an order requiring an amendment of the Notice of Appeal if his application is successful.
It is important, if I do reinstate this appeal, that there be a timeframe set for any further procedural steps so that this matter can be progressed as quickly as possible.
I now turn to the relevant statute law and rules. Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals and relevantly s 94(2D)(c) says:
(2D) Applications of a procedural nature, including applications:
…
(c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
That is the subsection under which the husband is making his application. Also, relevantly, s 94(2F) provides that:
No appeal lies under this section from an order or decision made under subsection ... (2D).
In relation to the Rules of Court, the rule under which the appeal is deemed abandoned here is r 22.13. That rule provides for the filing of a draft index to appeal books within 28 days after the filing of the Notice of Appeal, or the date when reasons for judgment are delivered, and if that is not complied with then the appeal is taken to be abandoned.
The next relevant rule is r 22.44 which provides simply that a party may apply to have an appeal taken to be abandoned under Chapter 22 of the Rules reinstated. It has to be noted that that rule is the current rule in place of the former r 22.57 which dealt with the reinstatement of appeals, and that rule provided a number of factors that the court may consider in determining an application for reinstatement as follows:
Former Rule 22.57 Application for reinstatement of appeal
(1) A party may apply to have an appeal abandoned under subrule 22.56(1) reinstated.
(2) In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non-compliance was intentional;
(e)whether there is a good reason for the non-compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non-compliance was caused by the party or the party’s lawyer;
(h)the effect of non-compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
With the current rule, there are no factors set out to provide guidance in considering such an application, but, logically, and the authorities support this, the sorts of matters identified in the former r 22.57 are the sorts of matters which are relevant to this application and would and should be considered by the Court in dealing with any reinstatement application. However, as counsel has rightly put to me, ultimately it is a matter of discretion (Bane & Hacker [2009] FamCAFC 110 at paragraph 25).
Now putting the timeframe here into context, as I have said, the reasons for judgment were delivered and orders were made on 7 September 2010, the Notice of Appeal was filed within time on 5 October 2010, and that meant that the draft appeal index needed to be filed by 2 November 2010. That did not happen and it was not until 10 November 2010 that the draft appeal index was in fact filed.
In terms of other relevant authorities, I have been referred to some by counsel, but I particularly want to refer to the High Court decision of Gallo v Dawson (1990) 93 ALR 479, and also specifically the judgment of McHugh J where his Honour said this (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.
Although that case was dealing with an extension of time to appeal, it has been held in this Court on a number of occasions, and this is what I referred to earlier, and I highlight now, that the principles there set out equally apply to an application to reinstate an appeal. I refer to cases such as Rand & Rand [2009] FamCAFC 88 and Batey‑Elton & Elton [2009] FamCAFC 101. The other authority that I mention briefly is Bemert & Swallow (2010) FLC 93-441. That is a quite recent Full Court decision of this Court which addresses specifically the principles to be applied in hearing reinstatement applications such as this. I note that the Full Court in that case approved, or referred to with approval, the cases that I have just cited, namely Rand & Rand and Batey‑Elton & Elton, and also referred to and said very much what I have just said as to the relevance of McHugh J’s decision in Gallo v Dawson. Importantly, though, in Bemert & Swallow, the Full Court concluded (at paragraph 154) that:
… the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules, and the rules generally in relation to case management, and also I add, in my view, it is helpful to have regard to the factors set out in the former r 22.57, not from any prescriptive point of view, but as a guide.
The sorts of matters, or the relevant factors, that are often referred to in cases such as this, are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, the history of the proceedings, the conduct of the parties to the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. However, as counsel has put to me, and I agree with entirely, the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
In this case, helpfully, the relevant factors have been confined to a consideration of whether there has been an adequate explanation for the delay. No submission has been made that I need to address the merits of the appeal and consider whether there is a reasonable prospect of success. Nor was there any suggestion that I need to look at the conduct of the parties or the history or nature of the litigation.
Often there are two aspects of delay. One is the delay in the failure to comply with the timeframe set under the Rules, in this case a 28 day time period, but also it is sometimes raised as an issue that there was an inordinate delay, or no explanation for a delay, between the expiry of that 28 day period and the filing of the application seeking, in this case, reinstatement. However, that is not an issue here.
Turning to the facts that are relevant to the issue that is in dispute, there is, as I say, the affidavit of the husband. Mr Ayliffe has taken me specifically to paragraphs 7 through 16 of that affidavit, and Mr McVeity, paragraphs 6 through 9. At the risk of being laborious, I need to specifically address not all of those paragraphs, but most of them, in order that the context of this application can be understood.
As I have said, the Notice of Appeal was filed on 5 October 2010. In the 28 day period for filing the draft appeal index, what I am told in paragraph 7 is that there was a meeting between the husband and his solicitor, Mr John Munro, on 27 October 2010. There is, thus, no explanation of what was done in relation to this issue between 5 October 2010 and 27 October 2010. In any event, the meeting took place within time, it took place apparently just prior to Mr Munro leaving for overseas, and I quote the second sentence of that paragraph:
At the conclusion of that meeting Mr. Munro forwarded me documents to allow me to file the draft index to the appeal books with some further amendments and documents I required from Launceston.
I raised with Mr Ayliffe what in fact that sentence meant given that an appeal index is simply a document which sets out the list of documents to be before the appeal court. In this case, the appeal index ran to some 3 or 4 pages. Mr Ayliffe, though, could not say anything more than what was in the affidavit as to what the documents were that were to be forwarded to the husband by Mr Munro, and I proceed on the basis that there was some documentation needed to be sent by Mr Munro to the husband to allow him to file the draft index.
It is open to me to assume that what was happening was Mr Munro was going overseas, he did not have the time to file the appeal index on his client’s behalf, and he then left it to his client to file that index. There were some documents to be sent to the husband by Mr Munro from Hobart to Launceston; Mr Munro’s office being in Hobart, the husband residing in Launceston. I am told that the documents did not arrive, but by that time Mr Munro had left for overseas, and the husband says, in paragraph 9, that he had difficulty making contact and gaining access to the documents he required to attend to the filing of the draft index by 2 November 2010.
I take from that that the husband was aware he needed to file a draft index by 2 November 2010. He was waiting for documents to arrive to enable him to do that, but they did not arrive. He then made every effort to contact Mr Munro, and to gain access to those documents so that he could still comply with the timeframe, but he was unsuccessful in that regard.
In paragraph 11 I am told that the husband eventually made contact with Mr Munro overseas. I am not told when this was and, indeed, I am not told when Mr Munro left for overseas, but I can safely assume from what is in the affidavit that Mr Munro left for overseas prior to 2 November 2010, and that looking at paragraphs 11 and 12, it was some time between 2 November 2010 and 10 November 2010, when the husband was able to make contact with Mr Munro. It also seems safe to assume that it was earlier rather than later in that period that the contact was able to be made. In any event, Mr Munro arranged for the husband to gain access to the relevant documents, and the husband then prepared and filed the draft index on 10 November 2010.
That is the explanation for the delay and, as Mr Ayliffe has put, the husband, on that version, should be treated as largely blameless. However, I do not accept that entirely, because, as I said, I have no explanation for why nothing was done about this between 5 and 27 October 2010. Nevertheless, that should not be fatal to the application succeeding because I accept, on the basis of the affidavit material that is before me, that efforts were made within the 28 day period to comply with the requirements. At the end of the day, it was a combination of Mr Munro being overseas and the documents which were to be sent to the husband not being received which led to the inability to comply with the requirements of the Rules.
I note that Mr Ayliffe has taken me to subsequent paragraphs of the affidavit. However, in my view, they are not directly relevant to this issue of the delay. Mr Ayliffe, though, I assume, has taken me to them to indicate that his client has done the right thing, to use the vernacular, thereafter, that he has contacted the Independent Children’s Lawyer, and the other side, and apologised for the lateness and sought their consent to the late filing of the notice.
Turning to the submissions of Mr McVeity, he has concentrated on paragraphs 6, 7, 8 and 9, although I consider paragraphs 11 and 12 have some relevance.
In any event, Mr McVeity’s submission is that there is no proper explanation for the delay. He has echoed a comment I made, namely that there is no affidavit from Mr Munro before the Court. An affidavit of Mr Munro would, at the very least, have been helpful, given that Mr Munro would have been able to properly inform the Court as to the documents, for example, that were to be sent to the husband, and fill in the gaps that I have identified along the way in looking at the affidavit of the husband, including the precise time of going overseas, the precise time of his client making contact with him, and the detail of arranging for access to the documents and the like. In any event, we do not have that affidavit, and I am confined to the affidavit of the husband.
Mr Fitzgerald, counsel for the Independent Children’s Lawyer, does not oppose the application, but he has made some very relevant comments as to the progress of this matter depending upon the result today.
Although the issue here is the explanation for the delay, it is still relevant to address the consequences of either granting or refusing the application. If I refuse the application, as I have identified, there is no appeal from that refusal, save and except there would still be the ability of the husband to make an application for special leave to appeal to the High Court of Australia. Now, that is a difficult exercise - I do not hesitate to say that - and may not be warranted in this case, but it would be the only avenue available to the husband to be able to pursue this appeal. Thus there are serious consequences in refusing to grant the application.
On the other hand, in granting the application, there is a clear and obvious prejudice to the wife, namely, the appeal would be reinstated and she would then have to deal with it. That would involve time, resources, effort and cost, presumably, in instructing her legal representatives to respond to the appeal, whereas, as the matter stands today, the appeal is deemed to be abandoned, the matter is over, and she would have been able to get on with her life. More importantly, because this is both a property matter and a children’s matter, the children would likewise be able to get on with their lives.
Thus, there are serious consequences for the wife as well, and I have to take that into account and balance that, as best I can, in considering where the interests of justice lie. In coming to that, given there has been an adequate explanation for the delay, and given how this matter has been argued, the only other matter which I need to put into the equation is the consequences of either refusing or granting the application.
In all the circumstances it seems to me that the interests of justice require that this application be granted, and that is what I propose to do.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 March 2011.
Legal Associate:
Date: 7 April 2011
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