ZHAI & JUAN
[2010] FamCAFC 156
•20 August 2010
FAMILY COURT OF AUSTRALIA
| ZHAI & JUAN | [2010] FamCAFC 156 |
| FAMILY LAW - APPEAL – Application in an Appeal – Application for extension of time to appeal – Where husband attended the Appeal Registry with a completed Notice of Appeal within time provided in the rules – Where arguable that the husband filed his Notice of Appeal in the time provided and an extension of time is not required – Where husband took all reasonable steps to file appeal – Where inability to correct non-compliance with rule 24.05 of the Family Law Rules 2004 was a result of an administrative error – Where failure to extend time would work an injustice – Where delay occasioned by application minimal – If necessary application granted. FAMILY LAW - APPEAL – Application in an Appeal – Application for expedition – Application dismissed. |
| Family Law Act 1975 (Cth) – s 94AAA(5), s 94AAA(10), s 94AAA(11), s 94AAA(12) Family Law Regulations 1984 (Cth) – reg 16 Family Law Rules 2004 – r 22.02. r 22.03, r 22.11, r 22.40, r 24.05 |
| Doriemus & Vanderhum [2009] FamCAFC 56 Gallo v Dawson (1990) 93 ALR 479 Glanton & Holden [2009] FamCAFC 218 |
| APPLICANT: | Mr Zhai |
| RESPONDENT: | Ms Juan |
| FILE NUMBER: | SYC | 5092 | of | 2007 |
| APPEAL NUMBER: | EA | 62 | of | 2010 |
| DATE DELIVERED: | 20 August 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 11 August 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 April 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 373 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Zhai appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Monaco Lawyers |
Orders made 11 august 2010
That the time for filing a Notice of Appeal against the orders made by Federal Magistrate Altobelli on 19 April 2010 is if necessary extended to 11 August 2010.
That the appellant husband serve a sealed copy of the Notice of Appeal on the wife’s solicitors on or before 20 August 2010.
The appellant husband’s Application in an Appeal for expedition is dismissed.
The appellant husband file and serve a draft Appeal Book Index on or before 31 August 2010.
That the Appeal Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal at a date and time to be notified to the parties.
Reserve reasons for judgment in respect of the application for expedition and the application to extend time to appeal.
That the costs of and incidental to this hearing be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Zhai & Juan 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 SYDNEY |
Appeal Number: EA 62 of 2010
File Number: SYC 5092 of 2007
| Mr Zhai |
Applicant
And
| Ms Juan |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Zhai, (“the husband”) has filed two applications in appeal. Both applications were filed on 27 May 2010, and are each supported by an affidavit also both filed on 27 May 2010.
In his first application the husband seeks to review a Registrar’s decision not to accept a Notice of Appeal which the husband states he filed, or sought to file, on 14 May 2010. The proposed appeal is against orders made by Federal Magistrate Altobelli on 19 April 2010 in proceedings between the husband and Ms Juan (“the wife”) for settlement of property under s 79 of the Family Law Act1975 (Cth) (“the Act”). It appears in the alternate to the review of the Registrar’s orders, the husband seeks to extend time in which to file a Notice of Appeal.
In his second application the husband seeks orders that “This appeal case be given top priority as a matter of urgency”.
On 11 August 2010 I made orders extending, if necessary, the time for the filing of the Notice of Appeal, other procedural orders which appear at the front of these reasons, and I dismissed the application for expedition. These are my reasons for those orders.
The husband appeared on his own behalf. The wife was represented by her solicitor who appeared by leave via the telephone. The Court was advised that neither party required an interpreter.
The wife’s solicitor neither opposed nor consented to the husband’s applications.
I propose to deal firstly with the application to review the Registrar’s decision and then to consider the second application which I will treat as an application for expedition of the appeal if validly filed, or time is extended to file the husband’s Notice of Appeal.
Preliminary matters
There is no dispute that the husband prepared a Notice of Appeal dated 14 May 2010 and attended at the Eastern Appeal Registry to file his appeal on that day. I will discuss in the context of dealing with the husband’s first application whether or not the application to extend time is necessary, or whether the appeal was filed in accordance with the Act and the Family Law Rules 2004 (“the rules”) on that day.
It is also not in dispute that no order was made by a Registrar rejecting the Notice of Appeal. In these circumstances it appears to me that r 22.40 of the rules which rule enables a party to review a Regional Appeal Registrar’s order has no application in this case. I will accordingly deal with this matter as an application to extend time if such an extension of time is necessary.
Evidence
The husband’s evidence in respect of the circumstances of his filing, or attempted filing, of the appeal are not in dispute. They are set out in the husband’s affidavit. The facts in the affidavit are in accordance with the appeal file. They may be briefly summarised as follows:
·the husband attended the Eastern Appeal Registry with a completed Notice of Appeal on 14 May 2010;
·the husband sought to have the filing fee waived on the basis that he was entitled to an exemption. The husband is in receipt of social security benefits. As he had misplaced his health care card and consequently did not have the card with him at the time of presenting his Notice of Appeal he decided to pay the relevant filing fee by credit card, and to seek a refund after he produced his health care card (I note that provided the husband subsequently established he was entitled to an exemption the Registrar was obliged under regulation 16(4) of the Family Law Regulations 1984 (Cth) (“the regulations”) to refund the full amount of the fee paid;
·the husband had previously in the proceedings been granted an exemption from payment of filing fees;
·the husband attached to his affidavit a photocopy of letter from Centrelink which confirms he is the holder of a health care card valid to 10 June 2010;
·on 14 May 2010 the husband completed a payment form provided by the Registry by providing his credit card number details. The Notice of Appeal and payment form were accepted by the Appeal Registry staff;
·the husband deposes that the Appeal Registrar’s assistant read the payment form before accepting it and the Notice of Appeal;
·the payment form was incomplete because the husband, it appears inadvertently, did not tick whether his credit card was a Visa credit card or a Mastercard credit card;
·the Registry did not attempt to contact the husband about the omission from the form until 24 May 2010, and the husband responded to a voicemail message left for him by the Registry on 27 May 2010;
·the husband immediately thereafter produced some evidence of his receipt of social security entitlements to the Appeal Registry staff, namely a transport concession card. The husband told the Appeal Registry staff he had mislaid his health care card. He was advised to obtain evidence of his entitlement to the card; and
·on 27 May 2010 the husband was advised by the Appeal Registry staff that his appeal had not been filed in the time provided by the rules and he was required to make this application. He then immediately filed the application.
Relevant statute law and rules
Section 94AAA of the Act provides for appeals to the Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia. Section 94AAA(5) provides as follows:
An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) are also relevant. They provide:
(10) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(j) to expedite the hearing of an appeal;
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the rules deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Of particular relevance to this application is r 24.05 of the rules. It provides 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; and
(c) the document is accepted in the Registry and is stamped.
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 4.30 pm according to legal time in the Australian Capital Territory 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 1 For information about filing fees, see regulation 11 of the Regulations.
Note 2 A person sending a document by electronic communication is responsible for ensuring that the document is received by the court.
Note 3 A judicial officer may require a party to give an undertaking to pay a filing fee before accepting a document for filing.
Note 4 The rules relating to filing by electronic communication apply
only if the court has the facility to accept documents by electronic communication: seeAlso relevant is reg 16 of the regulations. It is useful that at this point I set out that regulation:
(1) Subject to subregulation (3), the fee mentioned in item 301 of Schedule 1AA is payable for an appeal under section 94 or 94AAA of the Act.
Note This fee is subject to increase under Part IIAA .
(2) Subject to subregulation (3), the court fee is payable by the appellant at the time of filing the notice of appeal.
(2A) Except in a case to which subregulation (3) applies, a registrar shall not accept a notice of appeal for filing unless the court fee has been paid.
(3) The court fee referred to in subregulation (1) is not payable if:
(a) the appellant has been granted legal aid, under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the Attorney‑General, for the matter to which the proceedings relate; or
(b) the appellant is, at the time of filing a notice of appeal:
(i) the holder of one of the following cards issued by Centrelink:
(A) a health care card;
(B) a health benefit card;
(C) a pensioner concession card;
(D) a Commonwealth seniors health card; or
(ii) the holder of any other card issued by Centrelink or the Department of Veterans' Affairs that certifies entitlement to Commonwealth health concessions; or
(iii) an inmate of a prison or otherwise lawfully detained in a public institution; or
(iv) a child under the age of 18 years; or
(v) in receipt of a youth allowance, or an austudy payment, within the meaning of the Social Security Act 1991 ; or
(vi) in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme; or
(c) a registrar, having regard to the income, day to day living expenses, liabilities and assets of the appellant, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the appellant.
Note Regulation 16A makes provision in relation to the review of a decision of a registrar under paragraph (3) (c).
(3A) For subparagraphs (3) (b) (i) and (ii), holder of a card does not include a dependant of the holder of the card.
(4) Where the court fee referred to in subregulation (1) has been paid, being a fee that is not payable under subregulation (3), a registrar must refund to the applicant or other person who has paid the fee the full amount of fee.
(5) In this regulation, appeal includes cross appeal, and appellant includes cross appellant. (original emphasis)
Did the husband require leave to appeal?
There is no dispute that the husband delivered to the Eastern Appeal Registry a Notice of Appeal in the prescribed form. That document was accepted by the Registry staff. The husband provided a completed payment form on which he provided his correct credit card numbers to enable processing of the payment.
There is no evidence before me of what steps were taken by the Registry staff to process the payment, nor is there any evidence when such steps, if any, were taken. It is not in dispute that the Registry staff did not attempt to contact the husband prior to 24 May 2010, that is, outside the time provided by the rules for filing the appeal.
The question of what is meant by “filed” is discussed by Ryan J in Glanton & Holden [2009] FamCAFC 218 as follows:
23.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.
24.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.
25.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.
I am of the view that it is strongly arguable that the husband filed his Notice of Appeal in the time provided by the rules, and an extension of time is not required.
First the husband complied with the Act by preparing a Notice of Appeal and attending with Eastern Appeal Registry within 28 days of the making of the Federal Magistrate’s orders. Secondly, he provided credit card details which would enable processing of the credit card transaction on the day of lodgement. That is, he took the necessary steps on his part to effect payment. The payment form was read and accepted by the Registry staff.
Further on production of a health care card or a pensioner concession card he was entitled to have the payment made by credit card refunded to him.
I accept that “payment” in accordance with r 24.05 and reg 16 of the rules and regulations respectively would not be satisfied if the credit card payment was declined by the credit card provider. But there is no evidence in this case that the credit card details provided by the husband were rejected by the credit card provider.
In the event that I am in error in concluding the husband did not need an extension I propose to briefly consider that application.
Relevant legal principles – application for leave to appeal out of time
The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.
The exercise of discretion also involves an assessment of prospects of a successful appeal.
The principles which relate to an application for an extension of time in which to institute an appeal are carefully considered in the reasons of O’Ryan J in Doriemus & Vanderhum [2009] FamCAFC 56.
It is unnecessary in the circumstances of this case, and noting the wife’s attitude to this application, that I give extensive examination to the relevant principles.
I am satisfied that the husband took all reasonable steps to file his appeal in the time prescribed by the rules, and to the extent there may have been non compliance with r 24.05 the inability to correct that error was not that of the husband, but as a result of administrative error in the Registry. Unless time is extended the rules would work an injustice on the husband.
I also take into account the position of the wife who did not oppose the husband’s application. I am satisfied that the husband brought to the attention of the wife’s solicitor his appeal and application in a timely way. The delay occasioned by this application has been minimal. I am satisfied that any prejudice to the husband in extending time outweighs any prejudice to the wife.
The second application
The husband sought that I should expedite his appeal. He asserted that as the Federal Magistrate made no order for settlement of property in his favour he is in a difficult financial situation. He further asserted that at the hearing of the appeal he will seek to adduce further evidence the effect of which will demonstrate the order made by the Federal Magistrate is erroneous because the facts on which his Honour relied, based on the evidence of the wife were untrue. He asserts the wife’s evidence before the Court was false.
Section 94AAA(10)(j) provides that a procedural hearing to expedite an appeal may be heard by a single Judge or by the Full Court of the Family Court.
Discussion
The husband is unemployed and in receipt of Newstart Allowance. In his reasons the Federal Magistrate recorded the fact of the husband’s unemployment and that the focus of his life for the last few years had been the litigation (reasons paragraph 2).
While I accept that the husband is no doubt in difficult circumstances due to his unemployment, and he did not receive any adjustment by way of settlement of property as a consequence of the Federal Magistrate’s orders, he does not point to any other relevant circumstance which justifies this case being given priority over other matters awaiting hearing before the Full Court.
It is a not uncommon occurrence for litigants in this Court to be in receipt of social security benefits and in difficult financial circumstances. There are appeals brought by many persons in similar situations to those of the husband. While I have every sympathy for persons who are unemployed, in this case, I was not satisfied that the husband’s circumstances demonstrated such urgency that expedition of his appeal was justified.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland delivered on 20 August 2010.
Associate:
Date: 20 August 2010
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