Ardell & Thorn: Dismissal of Application in an Appeal Seeking Leave to Appeal Out of Time from a Costs Order

Ardell & Thorn (No 2) [2023] FedCFamC1A 86 (31 May 2023)

Introduction:

The case of Ardell & Thorn concerns an application in an appeal filed by the applicant, Ms. Ardell, seeking a review of the dismissal of her application for an extension of time within which to appeal from a costs order made by a judge of the Federal Circuit and Family Court of Australia Division. The respondent, Mr. Thorn, opposed the review application, which was ultimately dismissed.

Facts:

In November, the primary judge dismissed an application brought by Ms. Ardell against Mr. Thorn under the provisions of the Child Support Assessment Act. The applicant's belated attempt to appeal from that judgment was dismissed, and the judgment was accepted as being valid. In March, the primary judge made a costs order against Ms. Ardell in favor of Mr. Thorn. The time to file an appeal from this costs order expired in April, and no appeal was filed within time.

Issue: The primary issue in this case is whether the applicant, Ms. Ardell, should be granted an extension of time to file an appeal from a costs order. The costs order was made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 22 March 2023 which required Ms. Ardell to pay the respondent, Mr. Thorn's, costs fixed in the sum of $10,300.

Rule: The key legislation and rules relevant to this case are:

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 138
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03, 14.05, 14.07
The principles governing the grant and refusal of applications to extend time to appeal were referenced from the case Whitmore & Whitmore [2022] FedCFamC1A 75 which ultimately lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.

Application:

Applying these rules and principles to the facts, it was found that Ms Ardell did not demonstrate that there is a substantial issue to be raised in the appeal, making it pointless granting the extension of time to bring it. The court also considered other factors such as the extent of delay, reasons for delay, potential hardship or prejudice that would accrue to Mr Thorn if an extension were granted, and public policy considerations against unnecessarily re-opening finalised litigation.

Conclusion:

In conclusion, the court found that Ms Ardell has no substantial issue to raise in her intended appeal and it would be futile to extend time for her to bring it. As such, her application for review was dismissed with no order as to costs since Mr Thorn did not seek costs.

Parties Details:

Applicant: Ms. Ardell

Respondent: Mr. Thorn