Yip & Wreford & Anor

[2014] FamCAFC 77

FAMILY COURT OF AUSTRALIA

YIP & WREFORD AND ANOR [2014] FamCAFC 77

FAMILY LAW – APPLICATION IN AN APPEAL – Application to reinstate appeal – Where a draft index to the appeal book was not filed within the relevant time limit – Where the delay was explained as the solicitor waiting for advice from senior counsel and Christmas holiday closures of the law firm – Where the Child Support Registrar does not oppose the application - Where there is adequate explanation for the delay – Where the proposed grounds of appeal suggest an arguable case not completely devoid of merit – Where there would be prejudice to the applicant if he was not able to prosecute the appeal – Where there is little prejudice to the respondent – Application granted.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Yip

RESPONDENT: Ms Wreford

SECOND RESPONDENT: Child Support Registrar

FILE NUMBER: NA 3 of 2014

APPEAL NUMBER: BRC 10087 of 2012

DATE DELIVERED:: 6 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 6 May 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 13 December 2013

LOWER COURT MNC: [2013] FCCA 2103

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGregor

SOLICITOR FOR THE APPLICANT: Emerson Family Law

SOLICITOR FOR THE RESPONDENT: Respondent appeared in person

COUNSEL FOR THE SECOND RESPONDENT: Ms Brasch

SOLICITOR FOR THE SECOND RESPONDENT: Sparke Helmore Lawyers

Orders

1. The appeal be reinstated.

2. The period of 28 days specified in r 22.13(2)(a) of the Family Law Rules 2004 for the filing of the draft index to appeal books be extended to 4.00pm on Friday, 9 May 2014.

3. The costs of this application of each party, including the second respondent, be reserved to the hearing of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yip & Wreford and Anor 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: BRC 10087 of 2012
File Number: NA 3 of 2014

Mr Yip

Appellant

And

Ms Wreford

Respondent

And

Child Support Registrar
Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. An application was filed by Mr Yip on 14 March 2014. His application is to reinstate his appeal. As it is the case today, it is not opposed by the second respondent who is the Child Support Registrar. The first respondent, Ms Wreford, opposes the application.

2. The history of the matter is that on 13 December 2013, Judge Coates dismissed the applicant’s appeal from a decision of the Social Security Appeals Tribunal (“the SSAT”). On 10 January 2014 the applicant filed a notice of appeal which was within time. A draft index to the appeal book was due on 7 February 2014 but it was not filed as required by the Family Law Rules 2004 (“the Rules”), that is, 28 days after filing the notice of appeal (r 22.13). Therefore, the appeal was deemed abandoned.

3. This application being filed on 14 March 2014 it can be said, was filed promptly. A draft index has now been prepared which is attached to the affidavit of Mr Jones filed on 14 March 2014. He is the solicitor for the applicant.

4. The principles applicable to the imposition of time limits and consequent applications such as this are well known. In this case I must consider the explanation for the delay, the merits of the appeal and the possible prejudice to the parties.

5. As to the explanation for delay, as counsel for the applicant has properly submitted this morning, the difficulty really was that the solicitor was waiting for advice from senior counsel as to whether the appeal should proceed. As counsel for the second respondent has correctly observed, it could be an unfairness to the applicant should he be penalised because of the solicitor’s offices closures over Christmas and counsel’s inability to turn around an advice as expeditiously as might have been hoped for. As mentioned, the draft is now prepared and the applicant wishes to proceed. It seems to me there is an adequate explanation for the delay.

6. As to the merits of the appeal, an amended notice of appeal is attached to the affidavit of Mr Jones. Mr McGregor, for the applicant, has explained the three matters that he would be particularly contending may succeed. One of them was that the SSAT proceeded with the hearing despite the applicant not having some relevant documents. This all of course, is a matter to be seen in the future.

7. The second respondent conceded, correctly, that this is not a case where it could properly be said that the appeal is so devoid of merit that it would be futile to extend the time. It seems that there is an arguable case.

8. The third matter is the question of prejudice. It can obviously be said that if the applicant is not given leave to proceed he is not able to prosecute his appeal and is left with an assessment that, at least it is contended for the purpose of this application, is a gross unfairness to him because his income was assessed at a considerably higher amount.

9. While having a considerable degree of sympathy for the respondent, who explains that the problem with child support payments has been going on for many years and she and the children are suffering considerable hardship, it cannot be seen by granting this application that the prejudice to her is in some way aggravated. Mr McGregor explained that the child support continues and that there has been no stay of the orders.

10. So thus it can be seen overall, that the application should be granted.

costs

1. The remaining question is that of costs.

2. In the written submissions of behalf of the Child Support Registrar there is an application for costs. It needs to be understood that there was some attempt by the solicitors for the applicant, quite properly, to seek an agreement in relation to this matter. Attached to the affidavit of the solicitor for the applicant is some correspondence. On 13 March 2014, Mr Jones sought the consent of the second respondent to file an amended appeal and this application.

3. On 14 March 2014, the Child Support Registrar, through their solicitors, reasonably asked for an affidavit that would explain the delay and said that the application would most likely be opposed. On that day, 14 March 2014, the solicitors served the application and the affidavit explaining the delay to which I have referred.

4. In those circumstances, it might have been much more sensible, in this case, it being such a minor matter, for the solicitors for the second respondent to have simply agreed. Of course, the respondent may not have agreed and she still opposes the application.

5. Overall, it seems that the proper course would be to reserve the costs of today to the hearing of the appeal as Mr McGregor asks. Usually in these cases an order for costs is made because this is an application asking for permission where the Rules have not been complied with. However, as the solicitors, very sensibly, wrote to the second respondent’s it seems that a costs order should not follow and that in this case, there be an order reserving the costs of each party to the appeal to see if there is any merit in the matter.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 6 May 2014.

Associate:

Date: 7 May 2014