Applicant Seeks Leave to Appeal
Acland & Grohl [2022] FedCFamC1A 112 (21 July 2022)
The applicant seeks review of the dismissal of Application in an Appeal seeking leave to appeal out of time. The respondent sought costs on an indemnity basis. The Court. in resolving this dispute, assessed the merits and the chance of success of the application.
Facts:
In September 2018, Carew J made an order under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) declaring that the applicant and the respondent were in a de facto relationship for two confined periods, with their relationship finally ending on 6 March 2016. The applicant appealed from the order within time in October 2018 but, following numerous amendments of the appeal, on 12 April 2019, the appeal was discontinued by the lawyers and then retained by the applicant. Three years later, on 13 April 2022, the applicant filed an Application in an Appeal seeking leave to appeal out of time from the declaratory order made in September 2018. The Appeal Registrar heard and dismissed the application with costs on 16 May 2022.
On 6 June 2022, the applicant sought these orders instead: That Orders [2] and [3] made by [the Appeal Registrar] dated 16 May 2022 be reviewed and set aside; That the Application for Adjournment sought by the Applicant at hearing on 10 May 2022 be granted; That leave be granted for the applicant to file and serve further evidence on the appeal; and, That the Application in an Appeal be relisted for hearing at a time and date convenient to this Honourable Court.
With the subject declaration intact and jurisdiction under Pt VIIIAB of the Act thereby established, the consequential property settlement proceedings between the parties were heard by Riethmuller J in November 2021 and determined by orders made in April 2022. The applicant has separately appealed those orders.
The applicant sought an adjournment of the hearing before the Appeal Registrar, which was refused.
Issue:
Whether or not the application should be granted.
Applicable law:
Family Law Act 1975 (Cth) Pt VIIIAB, s 117 - provides that that the Court should consider the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters.
Aclund & Grohl [2019] FamCAFC 69 - found and declared pursuant to s.90RD of the Family Law Act 1975 (Cth) that the defacto relationship ended between the Applicant and the Respondent on the 6 March 2016 and that the Court should have found and declared that the defacto relationship ended in or about 2004.
Analysis:
Any extension of time to appeal is pointless if the ostensible merit of the proposed appeal is lacking. The applicant neither filed nor tendered any proposed draft Notice of Appeal, but instead pleaded the proposed grounds of appeal in the Case Outline document filed on 10 May 2022.
Although the applicant contends the parties’ de facto relationship ended in 2004, there is no error evident in merely finding otherwise. Carew J found the de facto relationship ended in 2004 but found it resumed in 2005 and did not finally end until March 2016.
No attempt was made to articulate how her Honour fell into error by so finding, in which event the applicant’s bare assertions were not competent grounds of appeal. The applicant failed to give an adequate explanation for his very lengthy delay.
The applicant said he did not instruct his former lawyers to discontinue the original appeal, did not realise they had discontinued it without his instructions and did not realise at the time that the $32,000 he paid to the respondent was in satisfaction of the Full Court’s indemnity costs order. He did not say when he was eventually disabused of his misconceptions about the discontinuance and the payment of the respondent’s costs, which is a significant omission.
There is no satisfactory explanation for the elapse of time between discontinuance of the first appeal in April 2019 and the filing of the application to extend time to appeal in April 2022.
Conclusion:
The Application in an Appeal filed on 6 June 2022 is dismissed. The applicant shall pay the respondent’s costs of and incidental to the review application in the fixed sum of $10,450.
