Snider & Taylor [2017] FamCAFC 167; (16 June 2017)

Last Updated: 31 August 2017

FAMILY COURT OF AUSTRALIA

SNIDER & TAYLOR

[2017] FamCAFC 167

FAMILY LAW – APPEAL – Application to extend time to appeal – Proposed appeal against dismissal of financial enforcement proceedings – Adequate explanation for delay – Notice of Appeal does not demonstrate appealable error – No merit in the proposed appeal – Application dismissed – Applicant to pay respondent’s costs of appeal in fixed sum.

Family Law Rules 2004 (Cth)

APPLICANT:

Mr Snider

RESPONDENT:

Ms Taylor

FILE NUMBER:

PTW

5663

of

2008

APPEAL NUMBER:

WA

17L

of

2017

DATE DELIVERED:

16 June 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

16 June 2017

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

19 May 2017

LOWER COURT MNC:

[2017] FCWAM 118

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Bannerman

SOLICITOR FOR THE RESPONDENT:

Bannerman Solicitors

ORDERS

(1) The Application in an Appeal filed 12 May 2017 be dismissed.
(2) Within 28 days of the date of this order the applicant pay the respondent’s costs of today fixed in the sum 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 Snider & Taylor 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 17L of 2017
File Number: PTW 5663 of 2008

Mr Snider

Applicant

And

Ms Taylor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me today is Mr Snider’s application for an extension of time within which to appeal orders made by Magistrate Moroni on 15 March 2017. The order that is sought to be impugned in particular is paragraph 1, by which his Honour ordered that “the proceedings, insofar only as they comprise financial enforcement proceedings, be and are hereby dismissed”.
2. At the same time, his Honour was dealing with an issue concerning the parties’ children and he has subsequently, on 19 May 2017, published reasons which deal with the children’s issue but also explain why he somewhat summarily dismissed the “enforcement application” as it was styled by Mr Snider.
3. The Magistrate has extremely succinctly and carefully set out the background to the enforcement proceedings at [54] and following of his reasons.
4. The applicant, Mr Snider, was aggrieved by the order his Honour made and endeavoured to seek to appeal. He lodged in the Registry a Notice of Appeal that was, on its face, defective and was properly rejected. He complains that the Appeal Registrar took too long to deal with the matter and that, had he been alerted promptly to the deficiencies, he would have been able to rectify them before he ran out of time in which to appeal.
5. When dealing with an application for an extension of time in which to appeal the court essentially is looking for two things: first an adequate explanation for the delay in filing the appeal and second whether there is a substantial issue to be tried, which involves some consideration of the merits of the appeal.
6. Turning to the first issue, I am satisfied Mr Snider had an adequate explanation for the delay. He is a selfrepresented litigant who struggles with the legal process, as many litigants do. He endeavoured to file his documents in time and he did not intentionally fail to sign the Notice of Appeal. He did not intentionally fail to give the correct date of the orders against which he was appealing. And he tells me that he lodged with the appeal the exemption form relating to the filing fee. There was some delay before he applied for an extension of time, but I am satisfied that there is an adequate explanation.
7. The difficulty that Mr Snider faces is in relation to the question of whether there is a substantial matter to be tried and whether there is any potential merit in his case.
8. In order to ascertain the merit, one looks to the Notice of Appeal. I understand the Appeal Registrar has previously suggested to Mr Snider that he obtain legal advice but presumably because of his financial position, Mr Snider has not been able to do so. Nevertheless, the Court has before it a Notice of Appeal that, on its face, is entirely unsatisfactory. It fails to disclose any potential appealable error other than, now that I have heard Mr Snider’s submissions, a complaint in relation to procedural unfairness, because he says that he was not given an adequate hearing before the Magistrate.
9. Something has been said by Mr Snider about the Magistrate, and the fact that this matter was not heard by a judge. It ought to be said that the Magistrate in question is in fact a far more experienced judicial officer than any of the judges of the court, including me, and one only needs to read the reasons for judgment to indicate the ability of the Magistrate to deal with this matter.
10. The Magistrate did not expend a great deal of time exploring the claim with Mr Snider, no doubt because he did not have as much time as I have had this morning. It is clear the matter did not require significant consideration because on its face, Mr Sniders’s application was bound to fail. As the Magistrate explained in his reasons, it is incumbent upon a litigant, even a self-represented one, to make their case clear to the other party and to the court. However, with respect to Mr Snider, his application was quite incomprehensible.
11. Now that I have had the opportunity to hear from Mr Snider in a little more detail, I understand that this is really a complaint in relation to the way in which an order made in January 2012 was to be enforced. The difficulty with that, however, is that following that order being made (as the Magistrate has made plain in his reasons) there was then further litigation relating to the issue, and the matter came back before the presiding judicial officer in March 2013, at which time issues were resolved as to the way in which the funds were to be distributed pursuant to the order of the court. Notwithstanding what Mr Snider initially said in his submissions, that order also involved an order being made for the dismissal of all outstanding matters then before the court.
12. Nothing that has been put by Mr Snider in his comments today suggests there is any underlying merit in relation to his complaint, although I readily accept that he has a sense of grievance. That sense of grievance is demonstrated by the fact that he unsuccessfully sought to challenge the orders that were subsequently made by the presiding judicial officer in March 2013. This explains why the Magistrate has said in his reasons that this appears to be another attempt by Mr Snider to deal with issues that have already been the subject of determination.
13. As I explained to Mr Snider, my concern for him is that if this matter were permitted to go further to the more extensive hearing that he wants, the respondent would run up legal costs opposing the application. At the end of the day, as night follows day, an application would have be made against him for costs. Those costs, in all probability, would have run to many thousands of dollars, for which Mr Snider would have ended up being responsible, leaving him with an even greater sense of grievance.
14. In my view, I do Mr Snider a favour by dismissing his application for an extension of time.

Recorded: Not Transcribed

15. The application now before the Court is the respondent’s application for costs in an amount of $1,000.
16. The only argument put in response is that the respondent’s solicitor has previously said he is charging at a very generous concessionary rate of $140 an hour and the applicant says that there should only have been two hours work. As I have earlier said, there would have been the perusal of documents (the correspondence, the application, the affidavit and the Notice of Appeal); taking instructions from the client; and appearing here today, including travel time likely more than an hour. Taking this work into account, I order the applicant to meet the respondent’s costs in the sum of $500 payable within 28 days.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Justice Thackray delivered on 16 June 2017.

Associate:

Date: 21/8/17