Applicant Seek Reinstatement of Appeal
Denholm & Denholm [2022] FedCFamC1A 113 (22 July 2022)
The huisband seeks an order re-instating the appeal which was deemed to be abandoned when he failed to file his draft appeal index in time. It was not filed on time because the husband's lawyers and their staff were exposed to COVID-19 infections. The Court, in determining whether the appeal should be reinstated, relied upon relevant jurisprudence.
Facts:
The husband seeks an order re-instating the appeal which was deemed to be abandoned pursuant to r 13.14(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) when he failed to file his draft appeal index in time. The husband relied upon his affidavit filed on 8 July 2022 and the draft appeal index he intends to file if permitted to do so. The husband’s default was not substantial, he advances good reasons for the delay, and no apparent prejudice would be occasioned to the wife if the appeal is re-instated. The draft appeal index was due to be filed under the Rules on 8 June 2022.
It was not filed on time because the husband’s lawyers and their staff were exposed to COVID-19 infections and, by reason of their illness and the isolation directions then in operation in the State of Western Australia, were unable to attend to their litigation practice with usual diligence and timeliness. If re-instated, the grounds of appeal are as set out in the Notice of Appeal filed on 4 May 2022. They contain an admixture of alleged legal, factual and discretionary errors.
The orders under appeal were made on 6 April 2022 and require the sale of the former family home, due to the husband’s default in paying a stipulated sum of money to the wife on time. According to the evidence, the appealed enforcement orders have not been implemented as the wife has not yet taken steps to list the property for sale.
Issue:
Whether or not the appeal should be reinstated.
Applicable law:
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14 - pursuant to which the applicant sought an order re-instating the appeal.
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 - provides that the adverse repercussions of omissions and errors by lawyers are not usually visited upon their clients.
Analysis:
The delay in filing the draft appeal index was therefore beyond the husband’s personal control. On their face, several grounds appear unmeritorious, but it cannot be presently said the entire appeal is so devoid of merit that it would be futile to re-instate it. Aside from having to meet the appeal on merit, the wife did not contend its re-instatement would cause her any particular prejudice.
Conclusion:
The appeal is re-instated. The time for filing the draft appeal index is extended to 4.00 pm on Monday 25 July 2022. The Application in an Appeal filed on 8 July 2022 is otherwise dismissed.
