Chau and Cao

[2019] FamCAFC 82

FAMILY COURT OF AUSTRALIA

CHAU & CAO [2019] FamCAFC 82

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant’s solicitors failed to file the draft appeal index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of her appeal – Application allowed – Applicant to pay the respondent’s costs of the application in a fixed sum.

Family Law Rules 2004 (Cth) r 22.13, 22.44

Gallo & Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

APPLICANT: Ms Chau

RESPONDENT: Mr Cao

FILE NUMBER: SYC 2741 of 2014

APPEAL NUMBER: EA 31 of 2019

DATE DELIVERED: 14 May 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 14 May 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 February 2019

LOWER COURT MNC: [2019] FamCA 97

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wen

SOLICITOR FOR THE APPLICANT: WB Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Chan

SOLICITOR FOR THE RESPONDENT: Linden Legal

Orders

1. Appeal EA31 of 2019 is reinstated.

2. The time for the filing of a Draft Appeal Index is extended up to and including 17 May 2019.

3. The Applicant pay the Respondent’s costs of this Application fixed in the amount of $500.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chau & Cao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 31 of 2019
File Number: SYC 2741 of 2014

Ms Chau

Appellant

And

Mr Cao

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 1 May 2019, Ms Chau (“the applicant”) seeks reinstatement of her appeal against orders of Rees J made on 27 February 2019. The appeal was deemed to be abandoned because the draft appeal index was not filed by the due date. An attempt was made to file it the following day but, of course, by then, it was too late and the appeal had been deemed to be abandoned (r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”)).

2. The power to reinstate an appeal that has been deemed to be abandoned (r 22.44 of the Rules) has the object of ensuring that the Rules, which fix times for compliance with particular acts, “do not become instruments of injustice”, as was explained by McHugh J in Gallo & Dawson (1990) 93 ALR 479 at 480.

3. The hearing of such an application therefore involves the exercise of discretion to enable the Court to do justice between the parties. The court will exercise its jurisdiction in favour of the applicant if it can be seen that strict compliance with the Rules will work an injustice.

4. In the present case, as can be seen, the solicitors who were acting for the appellant attempted to file a draft appeal index, but as explained in the evidence, were unable to do so on the day for compliance, although they were in a position to do so the day after. There is therefore a very minor infraction of the Rules, but with a significant effect.

5. It is necessary to recognise that the applicant has exercised her right of appeal in a timely way and that ordinarily that right of appeal should not be lost due to a failure to comply with procedural rules (Jackamarra v Krakouer (1998) 195 CLR 516).

6. Quite properly, the respondent has not taken a position to either consent or oppose the application. Accepting that, I am satisfied that it is appropriate to reinstate the appeal.

Costs

1. The appeal has been reinstated and that reinstatement was due to the fault of the appellant’s solicitor. Therefore, the respondent has been put to unnecessary costs in dealing with this application. I am satisfied that it is appropriate that the applicant pay the respondent’s costs of this application and that the sum claimed by the respondent seems to be reasonable.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 14 May 2019.

Associate:

Date: 14 May 2019