FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT –where the husband has not satisfactorily explained his failure to comply with the Family Law Rules 2004 (Cth) – where there is an arguable case on appeal – where the wife will suffer prejudice if the appeal is reinstated and the husband serious consequences if it is not – where the interests of justice require that the application is granted – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks costs in the sum of $1,750 – where the costs are sought to be reserved – where there is no basis on which to reserve the question of costs – husband to pay the wife’s costs in the amount sought.

Jamine & Jamine [2012] FamCAFC 2 (23 January 2012)

Last Updated: 30 January 2012

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE

[2012] FamCAFC 2

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT –where the husband has not satisfactorily explained his failure to comply with the Family Law Rules 2004(Cth) – where there is an arguable case on appeal – where the wife will suffer prejudice if the appeal is reinstated and the husband serious consequences if it is not – where the interests of justice require that the application is granted – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks costs in the sum of $1,750 – where the costs are sought to be reserved – where there is no basis on which to reserve the question of costs – husband to pay the wife’s costs in the amount sought.

Family Law Act 1975 (Cth) – s 94(2D) and (2F), s 117(2) Family Law Rules 2004 (Cth) – r 22.13(2) and (3), r 22.57

Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow [2010] FamCAFC 100; (2010) FLC 93-441 Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Jamine

RESPONDENT:

Ms Jamine

FILE NUMBER:

MLC

3286

of

2008

APPEAL NUMBER:

SOA

73

of

2011

DATE DELIVERED:

23 January 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 January 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2011

LOWER COURT MNC:

[2011] FamCA 792

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matta

SOLICITOR FOR THE APPLICANT:

Bowlen Dunstan & Associates Pty

COUNSEL FOR THE RESPONDENT:	Mr Forster
SOLICITOR FOR THE RESPONDENT:	Slater & Gordon

ORDERS

(1) The Notice of Appeal filed on 17 October 2011 be reinstated.
(2) The husband file and serve a draft appeal index within 14 days of the date hereof.
(3) Upon compliance with paragraph 2 hereof the Regional Appeal Registrar list the Notice of Appeal for a directions hearing.
(4) The husband pay costs thrown away fixed in the sum of $1,750 to the solicitors for the wife on behalf of the wife within 28 days of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamine & Jamine 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 MELBOURNE

Appeal Number: SOA 73 of 2011
File Number: MLC 3286 of 2008

Mr Jamine

Applicant

And

Ms Jamine

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application in an appeal filed on 12 December 2011 by the husband in these proceedings. The application seeks orders that the Notice of Appeal filed by the husband on 17 October 2011 be reinstated and that the husband file a draft appeal index within such time as the Court deems fit.
2. The Notice of Appeal filed on 17 October 2011 was against orders made by Cronin J on 19 September 2011.
3. The appeal was taken to be abandoned on 14 November 2011 pursuant to Rule 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). The husband failed to file a draft appeal index as required by Rule 22.13(2) within 28 days after the filing of the Notice of Appeal.
4. The application is opposed by the wife.

RELEVANT STATUTE LAW AND RULES

5. Rule 22.13 provides:

(2) The appellant must file a draft index to the appeal book within:

(a) 28 days after:

(i) filing the Notice of Appeal; or

(ii) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or

(b) if the court extends the period mentioned in paragraph (a) -- the period ordered by the court.

(3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned. (Emphasis added)

6. Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
7. Section 94(2D) provides:

(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

...

(g) to reinstate an appeal dismissed under a provision of the Rules of Court; 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.

8. Section 94(2F) provides:

(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

APPLICABLE PRINCIPLES

9. In the case of Bemert & Swallow [2010] FamCAFC 100; (2010) FLC 93-441, the Full Court considered in some detail the relevant principles to be applied where there is an application to reinstate an appeal. Significantly, the Full Court concluded at paragraph 154:

... in our view, 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.

10. It was identified in Bemert & Swallow though that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-cited judgment of McHugh J in Gallo v Dawson (1990)
    [1990] HCA 30; 93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said 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: seeAvery 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 200at 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.

See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.

11. Thus, the fundamental issue is whether reinstatement of the appeal is necessary to enable the Court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent that cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.

DISCUSSION

12. As to the relevant factors in this case, those that have been identified and in respect of which submissions were made by both counsel are, firstly whether there are adequate reasons provided by the husband to explain his failure to comply with the relevant timeframe, secondly whether there is a substantial issue to be raised on appeal, and thirdly the consequences for the parties of the grant or refusal of the application.

Adequate explanation

13. In order to appreciate the issue here, I need to initially set out the sequence of events as follows:
    1. Cronin J delivered his reasons for judgment and made the order sought to be appealed against on 19 September 2011.
    2. The husband filed his Notice of Appeal against this order on 17 October 2011.
    3. On 18 October 2011 a letter was sent to the husband’s solicitors by the acting Regional Appeal Registrar returning the stamped copy of the Notice of Appeal for service and setting out in detail what the husband then needed to do in order to progress the appeal, including filing a draft index to the appeal books within 28 days of the filing of the Notice of Appeal. Significantly the letter indicated that the 28 day period expired on
       14 November 2011 and that failure to file the draft index by close of business on that day would result in the appeal being deemed abandoned.
    4. The husband failed to file a draft appeal index by 14 November 2011.
    5. By letter dated 16 November 2011 the Regional Appeal Registrar informed the solicitors for the husband and the solicitors for the wife that as a draft index had not been filed the appeal was taken to be abandoned. The letter included advice as to the relevant section of the Act allowing for an application for reinstatement of the appeal.
    6. On 12 December 2011 the husband filed his application in an appeal seeking an order that the appeal be reinstated.
    7. By letter dated 22 December 2011 the solicitors for the husband forwarded to the Regional Appeal Registrar a draft index to the appeal books. However, given that the appeal was deemed abandoned this draft index was not filed.
14. The husband filed an affidavit on 12 December 2011 in support of the application and that affidavit and the annexures thereto comprises the evidence of the husband in relation to the question of reinstatement. The affidavit is quite brief and reads as follows:

1. That I am the Appellant in these proceeding (sic).

2. Annexed hereto and marked with the letters “GJ 1” is a true copy of correspondence forwarded by this Court to my legal practitioner dated 16 November 2011.
3. I was overseas at the time and did not receive an email from my legal practitioner enclosing the correspondence. I was unaware as to the existence of the correspondence until I received a further email from my legal practitioner on 22 November 2011 together with the letter from this Court dated 16 November 2011 advising that my Appeal had been taken to be abandoned as a draft Index had not been filed.
4. I am in the process of obtaining a transcript of the proceedings and will have Appeal Index filed once I have obtained the transcript.
15. The annexure marked with the letters “GJ 1” to this affidavit comprises the two letters referred to above dated respectively 18 October 2011 and 16 November 2011.
16. In his oral submissions at the hearing the husband’s counsel explained that on the basis of this affidavit the husband’s reason for not complying with the Rules was that he was overseas and did not receive an email from his solicitor enclosing the letter of 18 October 2011, and he remained unaware of this correspondence until he did receive an email from his solicitor on
    22 November 2011 enclosing the letter dated 16 November 2011.
17. I consider this to be an inadequate explanation of the husband’s failure to file a draft appeal index within the time required by the Rules. There is no evidence whatsoever as to the period of time when the husband was overseas, nor as to where he was, and none of the emails from his solicitors are annexed. It is apparent that he was still in Australia on 17 October 2011 because on that day he personally filed the Notice of Appeal in the Regional Appeal Registry and his signature appears on that Notice of Appeal. Significantly though no evidence is presented by the husband as to whether he was back in Australia or still overseas at the time when the draft appeal index was due to be filed, namely on 14 November 2011.
18. The husband was represented at the hearing before Cronin J, and when
    his Honour delivered his reasons for judgment and made the order which the husband seeks to appeal. Thereafter it is apparent from the documents that are before me that the same firm of solicitors continued to represent the husband during all relevant periods thereafter. However, there was no evidence from the husband’s solicitors as to any advice that they may have given him in relation to the appeal and the requirements under the Rules including in particular the filing of a draft appeal index.
19. The submission of the counsel for the husband became in effect that because the husband was not aware of the letter from the Court dated 18 October 2011 that provides an adequate explanation for the failure to comply with the Rules. I reject this submission. The onus is not on the Court to inform the husband of the requirements under the Rules. The Rules are in place and the onus is on the husband to inform himself of his responsibilities under those Rules. In any event, it must not be forgotten that the husband was legally represented at all relevant times.
20. It is also relevant to consider the actions by the husband following his alleged realisation on 22 November 2011 that he was then out of time. It is apparent that he instructed his solicitor to file the application that is now before me, and that was done on 12 December 2011, and then on 22 December 2011 his solicitor forwarded a draft appeal index to the Court. Thus, there is no inordinate delay there. However, that does not take anything away from the circumstance that the husband has not satisfactorily explained his failure to comply with the Rules in the first place.

The merits of the appeal

21. It is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation, namely, the reasons for judgment of the trial judge and the Notice of Appeal filed by the husband. I do not have the full range of documentation that would be before the Full Court hearing the appeal. For example, the Full Court would have the benefit of the transcript of the hearing before the trial judge, as well as all of the documents that were before the trial judge and summaries of arguments from the parties. Thus, I am simply not able to assess in any depth the merits of the appeal and my analysis must necessarily be limited to the documentation that I do have together with the oral submissions of the parties.
22. In these circumstances, the only question for me is whether there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success then that is enough. In this regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail then subject to where the justice of the case lies, the appeal should be allowed to proceed.
23. The order sought to be appealed against provided that “the husband pay the wife’s costs thrown away this day fixed in the sum of $7,500 (subject only to the question of whether counsel for the wife obtains a brief for 20 September 2011)”. The grounds of appeal set out in the Notice of Appeal are as follows:
    1. The Honourable Judge erred in the exercise of his discretion to award costs to the respondent.
    2. The Honourable Judge erred in fact/law when he held that “there is a small, and it is a very small amount of evidence to indicate that he was unable to travel” in view of the medical certificate dated 14.09.11 [enclosed] which clearly stated that the appellant was unable to travel at the material time.
24. His Honour’s order was made in circumstances where the trial was listed to commence on 19 September 2011 but the husband made an application through his counsel to delay the commencement of the hearing for 48 hours to enable the husband to be present. The husband was overseas at the time and a medical certificate dated 14 September 2011 was presented to the trial judge which certified that because of his medical condition he would not be able to travel either locally or internationally for at least seven days. The trial judge granted the husband’s application but ordered him to pay the wife’s costs thrown away as a result of the delay to the commencement of the trial.
25. In effect the complaint on appeal is that his Honour erred in the exercise of his discretion and in particular in finding that “there is a small, and it is a very small amount of evidence to indicate that [the husband] was unable to travel”. It is said that the medical certificate spoke for itself and provided more than sufficient evidence of the husband’s inability to travel and his Honour should have accepted that. It is further put that his Honour took into account irrelevant considerations namely that there was no evidence presented by the husband as to whether there were other methods by which he could still travel to Australia despite his medical condition. Given the limitations referred to above in assessing the merits of this appeal, and the low threshold that I have to apply, I am persuaded that despite considerable shortcomings in the grounds of appeal, there is an arguable case on appeal. Indeed, counsel for the wife in his submissions conceded that there was “a weak case”. Frankly though that is all that is required; in other words it cannot be said that the appeal is demonstrably hopeless or doomed to fail.

The consequences of the granting or refusal of the application

26. If the application is granted, the appeal will be reinstated and the wife will need to deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the wife given that currently the appeal is deemed abandoned and the wife has therefore been able to ignore the same. Although it has not been formally dismissed, it will not be listed for hearing in the way that appeals usually are.
27. If the application is refused, then the husband will not be able to pursue his appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise and may not of course be warranted in this case. In any event though this is a serious consequence for the husband if his application is refused.

CONCLUSION

28. As the authorities recognise, the Court’s consideration of the relevant factors here informs the Court in determining the fundamental issue, namely where the justice of the case lies. Here, despite there being an inadequate explanation for the failure to comply with the Rules and file a draft appeal index within time it is apparent that there is an arguable case on appeal, and there would be serious consequences for the husband if the appeal is not reinstated, and thus the interests of justice require that the application be granted.

COSTS

29. At the conclusion of the hearing I sought submissions as to costs.
30. The counsel for the wife sought an order for costs regardless of the result with such costs being fixed in the sum of $1,750.
31. Counsel for the husband indicated that his client would not be able to oppose an order for costs being made in the event of the application being dismissed, but curiously he indicated that if the application was successful then the question of costs should be reserved. I say curiously because I do not understand this submission and Mr Matta was not able to better explain it during the course of the hearing.
32. In my view there is no basis to reserve the question of costs and I propose to determine the application made by the wife.
33. In the words of s 117(2) of the Act, I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the husband to comply with the Rules, and of course I have found that he has provided an inadequate explanation for that failure. In the circumstances the wife was entirely justified in opposing the application and she should have her costs. Applications such as these necessarily seek an indulgence from the Court in circumstances where the need for the application results from the conduct of the applicant.
34. In terms of the amount sought by the wife, I consider the same to be reasonable in the circumstances, and indeed Mr Matta did not seek to challenge that amount.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
23 January 2012.

Associate:

Date: 23 January 2012