Extension of Time – to File Appeal Books
The following are two cases of the Full Court of the Family Court involving applications for reinstatement in circumstances where the appellant failed to file a draft appeal index. Both the decisions were handed down in February 2017. They both refer to rule 22.13 of the Family Law Rules which apply if the appellant fails to file a draft appeal index.
The cases have very different outcomes. Reinstatement was permitted in one case and in the other it was not.
Some important points raised include:
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.
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
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
Two cases involving extension of time to file appeal books and considering the question of reinstatement are now considered in more detail:
Telama & Telama  FamCAFC 8 (6 February 2017)
Goudarzi & Bagheri  FamCAFC 9 (7 February 2017)
Telama & Telama  FamCAFC 8 (6 February 2017)
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s solicitors failed to file the draft index to the appeal books on time – Where the delay was minimal – Where the respondent would suffer no prejudice if the appeal is reinstated – Where it is in the interests of justice for the appeal to be reinstated – Application allowed – No order as to costs.
Family Law Rules 2004 (Cth) rr 22.13(3), 22.44, 24.05(2)
Gallo v Dawson  HCA 30; (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 70 ALR 185
Rand & Rand  FamCAFC 88
Hearing Date: 21 December 2016
Judgment Delivered: 6 February 2017, Sydney
Judgment of: Aldridge J
Lower Court Jurisdiction and Judgment:
30 August 2016, Federal Circuit Court of Australia
(1) That the appeal EA 167 of 2016 be reinstated.
(2) That the time for filing the draft appeal index be extended up to and including 25 October 2016.
By an Application in an Appeal filed 10 November 2016, the applicant sought reinstatement of her appeal pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”). The applicant’s appeal had been deemed abandoned after she failed to file the draft index to the appeal books on time.
The Federal Circuit Court had made orders setting aside a binding child support agreement entered into between the parties. The applicant filed a Notice of Appeal.
The Appeal Registry sent a letter to the applicant informing her that she was required to file and serve a draft index to the appeal books by 4.30 pm on 24 October 2016. On that date, at 4:39 pm and 4:42 pm, the applicant’s lawyers electronically lodged the draft index with the registry.
Rule 24.05(2) provides:
(2) 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.
The clear effect of this rule is that the applicant’s draft index was taken to have been filed on 25 October 2016 – one day late.
On the assumption that the Registrar had accepted the draft appeal index for filing, on 3 November 2016 the respondent filed an Application in an Appeal seeking review of the Registrar’s decision to accept the draft appeal index for filing despite the fact that it had not been filed on time.
On 9 November 2016, the Registrar, sent the parties a letter informing them that as the draft appeal index had been filed late, the appeal had been deemed abandoned pursuant to r 22.13(3) of the Rules.
On 10 November 2016, the applicant filed the present application seeking reinstatement of the appeal. On 11 November 2016 the respondent filed a Notice of Discontinuance in relation to his Application in an Appeal seeking a review of the Registrar’s decision.
The Relevant Principles
In considering whether to reinstate an appeal, the Court will have regard to what was said by McHugh J in Gallo v Dawson  HCA 30; (1990) 93 ALR 479 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  VicRp 27;  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  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  VicRp 113;  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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy  1 WLR 8 at 12;  3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The above remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless, the Family Court considered that they were relevant to this matter (Rand & Rand  FamCAFC 88).
The first issue is whether the applicant has a reasonable explanation for her delay in filing her draft appeal index in accordance with r 22.13(2) of the Rules.
It is relevant to recall here that the draft appeal index was filed some nine minutes late. While the applicant failed to comply with the Rules, the delay was minimal.
The applicant’s lawyer deposes that the delay was due to him being away from his office for many of the days leading up to the day when the draft appeal index was due to be filed. On 24 October 2016, the day the draft appeal index was due, the lawyer was unexpectedly detained in court when a planned directions hearing became a contested interim hearing.
The Court considered that this was a reasonable explanation for the delay. Further, it is accepted that, generally speaking, the defaults of a party’s lawyer should not lightly be visited on the party: Jess v Scott (1986) 70 ALR 185.
The delay was minimal. The prejudice that would be suffered by the applicant if the orders sought were not granted would be significant: she would lose the benefit of her appeal. The respondent did not point to any particular prejudice that would be suffered by him if the appeal was to be reinstated. He did, however, point to the very protracted history of the litigation between the parties.
The respondent also submitted that he had a vested right to retain the judgment of the primary judge which should not be interfered with “unless there is a compelling reason to do so”. The Court considered that this is not an entirely correct expression of the principles to be applied. In Jackamarra v Krakouer (1998) 195 CLR 516, Brennan CJ and McHugh J said:
These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question — should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court’s business would be prejudiced by granting the application.
At paragraph 19, Alridge J said, “The requirement to file a draft appeal index is a procedural step in a regularly filed appeal. The failure to do so in a timely fashion is usually, of itself, insufficient to deny the appellant the pursuit of their appeal.”
The respondent submitted that there was little merit in the appeal and that this was a sufficient reason to refuse the application. In Jackamarra, Gummow and Hayne JJ said:
The parties submitted here that the Full Court should have decided whether the appeal was “arguable”. It is important to understand what is meant in this context by “arguable”. If it means no more than that counsel, acting responsibly, can formulate an argument which can properly be advanced in support of the appeal, the test is too loose; if it is clear that that argument will fail, the appeal should not proceed.
At paragraph 19, Alridge J said, “It is important to recognise the caution expressed by the Court in Jackamarra is because when hearing applications of this kind, the court will not normally have before it all of the material which it would have if it was hearing the appeal itself.
Aldridge J was satisfied that it was in the interests of justice for the appeal to be reinstated.
No cost orders were made.
Goudarzi & Bagheri  FamCAFC 9 (7 February 2017)
FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where no reasonable explanation for delay – Where prejudice to the respondent if appeal reinstated – Where grounds of appeal unlikely to attract appellate intervention – Application dismissed.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth): r 22.13
Gallo v Dawson  HCA 30; (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand  FamCAFC 88
Hearing Date: 7 September 2016
Judgment: Delivered on 7 February 2017 at Sydney
Judgment of Ryan J
Lower Court: Family Court of Australia and Judgment made on 31 May 2016
(1) The Application in an Appeal filed 24 June 2016 be dismissed.
(2) The Application in an Appeal filed 4 August 2016 be dismissed.
(3) No later than two (2) months from the date of these orders, the Appellant wife shall pay the Respondent husband’s costs in relation to these applications in the amount of $1,110.80.
The husband and wife had been engaged in property settlement proceedings following the breakdown of their marriage. Final property orders had been made by Cleary J which are subject to an appeal instituted by the wife.
The Appeal comprises of two Applications in an Appeal by the wife which arise out of a second appeal by her against a conditional stay of orders made in the wife’s favour by Cleary J on 31 May 2016. The wife failed to adhere to the conditions attached to the stay, and as a consequence of which the stay has been discharged.
As to the first application, by Application in an Appeal filed on 4 August 2016 the wife seeks to reinstate her Notice of Appeal filed on 22 June 2016. The appeal was deemed abandoned because she failed to file and serve the draft appeal index by 20 July 2016, being the date prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) (“the rules”) and as confirmed by correspondence from the Appeals Registry on 27 June 2016. As a consequence and by virtue of r 22.13(3), the appeal was deemed abandoned.
In the event the appeal is reinstated, the second application which was filed on 24 June 2016 seeks expedition of the wife’s appeal against the stay orders (but not the substantive appeal).
By her Notice of Appeal (for the stay appeal), the wife seeks that all orders made by the primary judge on 31 May 2016 be set aside.
On 31 May 2016 Cleary J granted the wife a conditional stay of the orders which provided for the sale of the family home pending the outcome of her appeal. The conditions required that the wife pay the loan repayments for two of the St George Bank residential loans, as well as the strata levy payments and council and water rates. In the event the wife failed to meet those conditions and the default continued for seven days, the stay would be discharged.
On 22 June 2016 the wife filed a Notice of Appeal against those orders. It is within this appeal that the two instant applications arise.
The wife did not comply with the conditions of the stay order, and as such the stay had been discharged. The wife made it clear that even if her appeal was reinstated she would not rectify the breaches and would not comply with the conditions of the stay pending the appeal hearing. As to the St George loans, the effect of her non compliance is to put the husband’s credit rating and relationship with his bank at risk.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson  HCA 30; (1990) 93 ALR 479. These are not repeated again here as they are already referred to in the first case discussed above.
The wife had until 20 July 2016 to file her draft appeal index.
The first question to be answered is – whether the wife has provided an adequate explanation for her failure to comply with the timeframe for filing the draft appeal index?
The wife ultimately acknowledged, that she gave priority to other matters rather than this litigation (after originally saying the date was wrong, the date was not brought to her attention etc).
At paragraph 33, Justice Ryan said, “The net effect of the evidence is that in relation to this issue, the wife gave a highly selective account of her dealings with the Appeal Registry and, as I said earlier, insufficient attention to her obligations as a litigant. The later point was reinforced by her decision to attend this hearing without any of the court documents or material which might have supported her contentions (for example, her contention she had paid some council and water rates).”
And at paragraph 34, “On balance, I am satisfied that during the relevant period, the wife gave her time and attention to other matters and paid scant regard to the need to file the draft index by the due date. The explanation in these circumstances is not reasonable and she has not provided an adequate explanation for her delay.”
The merits of the appeal
The wife prepared her own appeal and relies on eight grounds of appeal by way of challenge to the stay orders, including that she was denied a fair hearing, she was wrongly ordered to pay loans which were fraudulent, there should have been a longer period of default before the stay would be discharged and that on a proper evaluation of her financial circumstances the primary judge should have realised the wife could not make the various payments upon which the continuance of the stay hinged. It is understood most of these grounds mirror those relied on in the substantive appeal. Grounds 5, 6, 7 and 8 were found to be argumentative and no grounds at all.
On the material available, Justice Ryan was satisfied that the stay appeal as presented would most likely fail.
Prejudice and Conduct
The husband will be prejudiced if the appeal is reinstated. The loan is in his sole name and the wife’s default damages his credit worthiness. She has no intention of making good the default; the effect of her evidence being she would continue to direct her income to other expenses. There was no suggestion she would realise other assets to make good the default and pay the ongoing expenses.
The husband is also entitled to a significant share of the proceeds of sale (in the vicinity of $2 million), which would continue to be denied. While he is of some wealth and his inability to access his share of the sale proceeds did not compromise his immediate standard of living, he has significant borrowings (loans and a line of credit) which he plans to discharge from his share of the sale proceeds. Presently he pays some $10,859.00 per month in relation to these loans which, if the loans were paid out, would cease. The reinstatement of the appeal would cause him hardship.
It was accepted that the wife would also suffer hardship if the appeal is not reinstated. She would lose the chance to argue that the terms of the stay were erroneous and, if the husband moves to enforce the orders (the outcome of which in itself is discretionary), she may well lose her chance to retain the family home. This is a weighty consideration, but the significance is tempered by the fact that the loans are in default, and on the wife’s case will continue to be in default and thus the third party mortgagee has rights it may pursue.
The wife’s refusal to make the mortgage repayments persuaded the Court that the hardship which befalls the husband should carry greater weight than that which befalls her.
Conclusion and costs
The application for reinstatement was dismissed and the application for expedition of the stay appeal was also be dismissed.
The husband sought an order that the wife pay his costs. This was on the basis that the wife would have been wholly unsuccessful in an application necessitated by her failure to comply with her obligation to comply with the rules. The husband’s application was opposed by the wife. He sought the equivalent of four hours at scale including attendance at the hearing and this order was made.
This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to an an extension of time application for filing of the appeal books and reinstatement of an appeal.
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