YILMAZ & YILMAZ - [2013] FamCAFC 155

FAMILY COURT OF AUSTRALIA

YILMAZ & YILMAZ

[2013] FamCAFC 155

FAMILY LAW – APPEAL – Application in an Appeal – extension of time for filing Notice of Appeal – merit of the appeal – whether there would be an injustice – where there would be no injustice – Res Judicata.

FAMILY LAW – PROPERTY – Value of Property – expert evidence – where there have been consent orders.

Family Law Act 1975 (Cth)

Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386
Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

APPELLANTS:

Mr Yilmaz and Ms A Yilmaz

RESPONDENT:

Ms B Yilmaz

FILE NUMBER:

WOC

532

2007

APPEAL NUMBER:

2013

DATE DELIVERED::

9 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

12 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 May 2013

LOWER COURT MNC:

[2013] FamCA 533

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Othen

SOLICITOR FOR THE APPELLANTS:

Autore & Associates Solicitors & Barristers

COUNSEL FOR THE RESPONDENT:

Mr Alexander

Orders

Application of Mr and Ms A Yilmaz seeking an extension of time in which to file a notice of appeal against the orders of Le Poer Trench J be dismissed.
Mr and Ms A Yilmaz to pay the wife’s costs of and incidental to the application as assessed or agreed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yilmaz and Anor & Yilmaz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 86 of 2013
File Number: WOC 532 of 2007

Mr Yilmaz and Ms A Yilmaz

Appellant

and

Ms B Yilmaz

Respondent

REASONS FOR JUDGMENT

Mr Yilmaz (“the husband”) and Ms A Yilmaz (“the husband’s mother”) seek leave to appeal against a decision of Le Poer Trench J of 2 May 2013 in which he dismissed their application to set aside orders made by Boland J on 11 February 2002, 31 October 2001 and 21 August 2002.
The notice of appeal was filed on 5 July 2013, about four and a half weeks after the time prescribed for filing an appeal.
Ms B Yilmaz (“the wife”) opposes the grant of leave.

Background

It is apparent that this litigation has a complex history. Some context is necessary to the consideration of the application and it is taken from the reasons of Le Poer Trench J.
In February 2000 Boland J made final property orders between the husband and wife which required the husband to pay $170,000 to the wife within three months. Her Honour also made orders to operate in default of the ordered payment. Although the husband lodged an appeal against her Honour’s orders, it was later withdrawn.
On 31 October 2001, further orders were made by Boland J on the wife’s application, essentially to enforce the earlier orders. At this time Ms A Yilmaz, the husband’s mother was joined to the proceedings. The husband sought orders setting aside her Honour’s February 2000 orders, asserting that they had been based on a false valuation of land [21].
In July 2002, Judicial Registrar Johnston (as he then was) imposed a sentence of imprisonment on the husband and the husband’s mother for contravention of the 31 October 2001 orders.
On 28 August 2002, the husband, his mother and the wife entered into consent orders for variation of the 31 October 2001 property orders pursuant to s 79A of the Family Law Act. The consent orders provided that certain parts of the earlier property orders (February 2000 and 31 October 2001) be discharged on payment by the husband to the wife of $225,000 [30].
In July 2004, Moore J heard an application brought by the husband’s parents (Ms A Yilmaz and Mr Z Yilmaz) in which they sought to have the 28 August 2002 consent orders made by Boland J set aside pursuant to s 79A [39]. His Honour Le Poer Trench J’s judgement extracts passages from Moore J’s reasons which make it clear that the husband, while a party to his parent’s application, took no part in the hearing. In the result, Moore J dismissed the husband’s parents’ application [40].
The proceedings from which the husband seeks to appeal were in response to the application of him and his mother seeking to set aside and/or stay the orders of August 2002 (and, it seems the earlier orders of February 2000 and October 2001).
The issue before Le Poer Trench J, raised by the wife, was whether the husband and his mother are estopped from bringing an application pursuant to s 79A in relation to the orders of 28 August 2002. The husband’s application before Le Poer Trench J was based on his assertion that Boland J’s orders were made in reliance of a false valuation produced as a fraud by the wife [37].
His Honour concluded that on entering into consent orders on 28 August 2002, the earlier orders of Boland J made on 20 February 2000 and on 31 October 2001 ceased to have force and effect. Thus he found that any assertion that the February 2000 orders were based on false valuations was irrelevant [97]. His Honour said:
97.… At the time of the making of the orders on 28 August 2002, the husband already held the view that the evidence presented to the Court by the wife for the original orders was wrong. With that belief in mind, he consented to the new property orders which were made that day. Those orders were substantially different to the original orders which had been made in 2000, and again very different to the orders which had been made in October 2001.
98. If I be wrong in the above determination, then I am satisfied that the husband should have proceeded with his application (described as a response) which he specified before Boland J in the hearing which gave rise to the orders of 31 October 2001. As can be seen above, he clearly made the claim in the nature of an oral response to the application of the wife then before the Court. I find that as he chose not to offer any evidence to support the order he sought before Boland J in that hearing he has had a hearing on the merits of his case and, accordingly, the principle of res judicata applies and the husband is estopped from again litigating the same issue with the wife.
His Honour further observed that if the principle of res judicata did not apply in relation to the hearing before Boland J in October 2001, the husband had another opportunity to have a hearing on the merits of his claim before Moore J. He noted that in her judgment Moore J observed that the husband had filed an application in April 2003 seeking to set aside the orders of 21 August 2002 but withdrew that application on 27 January 2004 [100].
In those circumstances his Honour found that the husband was prevented from bringing the same application before him.
Turning to the application of the husband’s mother, his Honour dismissed her application because she had sought that the orders of 28 August 2002 be set aside in the hearing before Moore J in August 2004 and that application had been heard and dismissed by Moore J. [101].
Finally, his Honour found, in the event that neither the husband nor his mother was estopped from bringing the proceeding then before him, that the applications of the husband and his mother should be dismissed because the evidence on which they relied to support the application did not establish a proper basis for setting aside the orders of 28 August 2002, and, to the extent that they remained in force, the orders of 11 February 2000 and 31 October 2001 [102].

The proposed grounds of appeal

The husband and his mother raise 17 grounds challenging his Honour’s determination. They are not easy to understand.
It seems that the husband and his mother assert a denial of natural justice because his Honour did not allow the husband to rely on documents from Turkey (ground 1); in permitting the proceedings before him to continue “until the verification of the material from Turkey could be verified” (ground 4); in failing to allow the husband to bring further evidence from Turkey (ground 10); in not allowing the husband to adduce further evidence about “irregular evidence” produced by the wife (ground 12); in not allowing the husband to rely on the affidavit of an expert (ground 13); in not allowing the husband to rely on the evidence of the expert (ground 15).
Further grounds challenge the correctness of his Honour’s interpretation of the orders and the effect on them of the consent orders of August 2002 (grounds 5, 8, 9 and 11).
The husband asserts that the trial judge failed to take into account that the orders made by Boland J were based on incorrect evidence (Ground 2), incorrectly interpreted paragraph 119 of Boland J’s reasons of 11 February 2000 (ground 9) and that his Honour erred in “interpreting Boland J’s reasons in paragraph 124 of her judgment of 11 February 2000 (ground 11).
Grounds 3, 6 and 14 challenge his Honour’s findings in relation to the wife’s evidence. Ground 7 challenges his Honour’s rejection of evidence brought by the husband in relation to “proceedings in a foreign country”.
Ground 17 challenges his Honour’s finding, adverse to the submissions of the husband that the proceedings before Moore J were “proceedings instituted by his parents and were based on different grounds to that pursued by (the husband)” in the proceedings before his Honour.
Ground 16 asserts that the trial judge was in error in not setting aside Boland J’s orders of 31 October 2001 on the basis that the valuation evidence was false and in finding a res judicata and Anshun estoppel applied when those principles do not apply to matters brought under s 79A of the Family Law Act because it has no application under Part VII of the Act.

The application for extension of time

The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 are found in the judgment of McHugh J at 480. His Honour said:
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. 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. 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. 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. 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. (citations omitted)

Explanation for the delay

In his affidavit in support of the application, the husband (speaking for his mother who joins in the application but who did not file any documents in support of the application), said that although his Honour’s decision was made on 2 May 2013, he did not receive a copy of the judgment until 6 June 2013 when, he said, he found out that his solicitor who had been acting for him had withdrawn from the record on 3 June 2013.
The husband engaged his present solicitor on 12 June and instructed him to lodge a notice of appeal.
Quite how the husband became aware that judgment had been delivered is somewhat unclear.
The husband further says that his mother is not in good health and he has been caring for her.
If the length of the delay and the reason for it were the only matters necessary to consider in such an application, a grant of leave would probably be given. The rules as to time limits are enacted to provide fairness and certainty for litigants. In this case, the husband being no longer represented and not being personally notified of delivery of judgment, found himself outside the time prescribed for bringing an appeal.
However that is not the only consideration. It is necessary to consider the merit of the proposed appeal because it would be futile to extend time in which an appeal may be filed if the appeal was without merit.

Merit of the appeal

It is to be noted at the outset, that the assessment of the prospects of a proposed appeal for these purposes does not require the applicant to prove that the appeal will succeed, but there must be demonstrated an arguable case.
Although counsel appeared for the husband on the application for extension of time, he had been instructed late and had not seen his Honour’s reasons. Obviously then he could not address this important issue, the merits of the proposed appeal.
Thus directions were made that the husband file and serve submissions directed to the merits of the appeal by 4 pm 18 September 2013. The wife was directed to file submissions by 4 pm 23 September 2013. The husband failed to comply with the direction. The wife complied and submissions were filed on her behalf.
Given the litigation history of this matter and the years that have elapsed since the orders were first made, this matter will be determined without submissions from the husband on the merit of the appeal. I have had regard to the submissions of the wife.
The determination of the merits is difficult given the nature and expression of the grounds of appeal, many of which are not entirely understandable. I propose to consider them in a general way.
The evidence of value before Boland J
At [49] his Honour extracts part of the husband’s evidence on which he relied in the proceedings before his Honour and, it is notable that in it the husband asserts that the orders of 11 February 2000 were based on a misinterpretation by Boland J of some Turkish documents. The husband further asserted that:
31.36 …I was not able to obtain and bring to this Court further evidence because I was not able to leave the country. By the time I was finally able to leave the country in 2011, the laws and pretty much everything had changed.
…..
33.5 I say I always knew that the valuations were wrong, but I had no real idea of the extent of the mistake in the orders until recently.
His Honour then considered the effect of the husband’s evidence in these extracted passages against the evidence available and concluded:
54. Notwithstanding the husband was able to travel to Turkey in 2011, the totality of the admissible evidence which he is able to put before the Court in support of his claim that the evidence of value relied upon by the wife for the 20 February 2000 orders was fabricated is that contained in annexure “M” to his affidavit as it is repeated above.
Given the husband’s comments in his affidavit about the changing of the laws in Turkey when he returned in 2011, it is difficult to understand what evidence he asserts could have been provided to his Honour in support of the evidence before him.
His Honour makes no reference to any application for adjournment made by the husband for the purpose of obtaining further evidence from Turkey on this issue (or at all). While that is not, of course, to say that the husband did not make such an application, however, on its face, his Honour considered the evidence produced to him by the husband in support of his assertion that the orders in February 2000 were based on incorrect valuation.
Evidence before the trial judge
At [55], his Honour considered the evidence sought to be introduced by the husband from an, apparently well-credentialed expert in Turkish law over the objection of the wife. The purpose of the introduction of this evidence was to establish the wife’s part in a fraud in relation to the valuation.
In the following paragraphs his Honour sets out the substance of the wife’s objections to the evidence and his determination on the objection. It is true that, in the result, he declined to allow the husband to rely on that evidence.
The grounds relating to this evidence (ground 13 and 15) assert a denial of natural justice. In the light of his Honour’s reasons for refusing to accept the evidence, it is difficult to see the force in these grounds.
The effect of the consent orders of August 2002 on the operation of the orders of February 2000 and October 2001.
His Honour, after considering the evidence and the orders previously made, said:
35. The only reasonable construction of the order made by the Court on 21 August 2002 is that all previous orders made pursuant to s 79 were set aside (with the specific exception of the named orders of 31 October 2001) and a new order under s 79 was made in substitution. If that be correct, then the orders of 11 February 2000 and 31 October 2001 ceased to have force and effect when they were varied by the order made under s 79A on 21 August 2002. If that be correct, then there is no order of 11 February 2000 or 31 October 2001 capable of being set aside by the application now sought to be pressed by the applicants…
The grounds as address this finding do no more than assert error and in the absence of argument on the husband’s behalf as to these challenges to his Honour’s finding, it is difficult to see where the error lies in his Honour’s reasoning.
His Honour’s findings about res judicata and estoppel
In considering the issue of whether the husband’s application was able to be pursued by him, his Honour carefully considered the previous proceedings. In particular he concluded that, notwithstanding the husband’s assertion that the proceedings before Moore J were not brought by him, that in those proceedings the husband’s mother and father sought to have the orders of August 2002 set aside under s 79A and the husband took no part and did not oppose their orders or seek other orders [42].
The ground challenging his Honour’s finding (ground 16) does no more than assert error. It does not provide a basis for the assertion. It is difficult to understand what is being asserted let alone determine whether the ground has merit.
I make a similar finding as to so much of ground 16 as challenges his Honour’s conclusions about Anshun estoppel.
In Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, Kirby J said, at 540, referring to Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386 at 387-388:
The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile…
In this matter, to grant leave to extend time to the husband would be futile. He has not demonstrated that his appeal is arguable.

Prejudice

Finally, but not unimportantly, it is necessary to consider the prejudice that might flow if leave to extend time is not granted and if it is. It could be argued that if the husband is not given leave to bring his appeal out of time he will suffer prejudice in not being able to challenge his Honour’s determination which has the effect of stopping him challenging the orders of 28 August 2002 and those of February 2000 and October 2001 as might still be in effect.
There is prejudice to the wife who, on the expiration of the time in which an appeal may be brought, is entitled to regard the litigation at an end. This is especially acute in this case given the number of proceedings and their conduct over many years. It is the respondent who has the benefit of an order, made with the consent of the husband in 2002, but yet which is still the subject of litigation 11 years later.

Conclusion

The matters to which I have referred persuade me that no injustice will flow to the husband if time in which to bring an appeal is not extended.
The husband’s application will be dismissed.
This is a matter in which it is appropriate for the husband to pay the wife’s costs of the application.

_____________________________________________________________________

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
9 October 2013.

Associate:

Date: 9 October 2013