SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  This is an application to extend time to appeal.  The background to it has some complexity.  The male applicant and the female respondent commenced a de facto relationship in early 2006.  In September 2006, the respondent gave birth to their child.  Their relationship ended acrimoniously about a year later.  The applicant lodged a caveat over the respondent's Melbourne unit.  She brought an originating motion in the Supreme Court of Victoria to have his caveat removed.  That motion filed in Victoria was cross-vested to the Supreme Court of Queensland at Cairns.[1]  The sale of the unit went ahead on condition that half the net proceeds of the sale ($48,376.69) were to be held by the respondent's then solicitors in a term deposit on trust for the parties.  On 15 August 2008, the trial judge ordered that $25,969.06 of the $48.376.69 be released to the respondent's solicitor on a trust to fund the payment of her legal and associated expenses arising from the dispute between the parties.[2]  One of the questions determined at the subsequent trial in Cairns on 16 April 2009 was the orders to be made in respect of the remaining proceeds of the original $48,376.69.  The other matter for determination arose out of the respondent's application under Ch 19 Property Law Act 1974 (Qld) to the Supreme Court in Cairns for orders that she obtain property held by the applicant, ultimately only the engagement ring the applicant gave to her in 2006.

[2] On 30 April 2009, the primary judge made the following orders:

"1. Declare that the [respondent] is entitled to the balance (together with interest thereon) of the term deposit held by R T Breen and Co, Solicitors pursuant to order of the Supreme Court of Victoria made on 5 February 2008.

2. Declare that the [respondent] is entitled to retain the engagement ring given to her by the respondent on 23 June 2006.

3. By consent I adjourn the question of costs of the proceedings in the Supreme Court of Victoria and of those proceedings allowing each party to make submissions in writing within 14 days from the date hereof."

[3] On the 23 July 2009 the judge ordered the applicant to pay the respondent's costs of and incidental to these proceedings fixed at $75,000.00.

[4] The applicant did not file an appeal from the orders of 30 April 2009 within the prescribed time period of 28 days.[3]  He sought to file a notice of appeal from the orders of 30 April 2009 and the costs order of 23 July 2009 on 31 July 2009.  The registry did not accept the notice of appeal insofar as it related to the orders of 30 April 2009 as it was out of time, but it accepted his appeal from the costs order of 23 July 2009.  As this purported appeal was from a costs order only, s 253 Supreme Court Act 1995 (Qld) applied.  The applicant was required to first obtain the leave of the primary judge before any right of appeal arose.  His failure to do so made his appeal from the costs order incompetent.  The matter was listed before me for directions on 28 September 2009.  With the consent of both parties, I ordered that the applicant's flawed notice of appeal be treated as an application for an extension of time to appeal from the order of 30 April 2009, and as an appeal from the costs order of 23 July 2009 only insofar as the extension of time to appeal and the appeal from the substantive orders were successful.  This application is therefore an application for an extension of time to appeal only from the primary judge's order of 30 April 2009.  Only if the application and appeal are successful can this Court consider the costs order of 23 July 2009.

[5] I would refuse this application.  These are my reasons.

The applicant's request for an adjournment

[6] This application was listed for hearing on Monday, 2 November 2009.  On the afternoon of Friday, 30 October 2009, the applicant faxed a medical certificate to the registry stating that he had been diagnosed as suffering from an upper respiratory tract infection for which he was prescribed antibiotics and given sick leave from 30 October to 2 November 2009 so that he was not then fit to attend court.  The respondent opposed the application for the adjournment.  The registry informed the applicant, at my direction, that the Court was not prepared to delist the matter on the basis of the medical certificate, but that he could renew his application for an adjournment at the hearing.  The registry also advised him of my view that it would be prudent to have the doctor who provided the medical certificate available by telephone for cross-examination. 

[7] At the hearing on 2 November 2009, the applicant again sought an adjournment on the ground that he was too unwell to conduct his case.  Both parties, although represented at the primary hearing, were self-represented in this Court.  The applicant presented no further evidence in support of his application for an adjournment.  He said he had "massive pain, cough, joint pain … and … nowhere near fit to proceed with this matter".  He did not have his medical practitioner available for cross-examination as he said it was "such a short notice" and he had "been in bed for the last five days.  I've had no chance to read any material about today's matter.  I'm just so weak, lethargic, I'm just not well." 

[8] The respondent opposed an adjournment.  She said that she had also been unwell.  She was in a new relationship, was pregnant and had morning sickness.  She had, however, prepared for the hearing and "just want[ed] to move on with [her] life".  She pointed out that the applicant had already completed a lengthy written outline of argument.

[9] This Court refused the application for an adjournment for the reasons given at the hearing.[4]  The applicant then spoke in support of his application for about two hours during which there was a 20 minute adjournment.  He seemed familiar with his material and able to vigorously advance his contentions.

What the applicant must show to be given an extension of time

[10]  The applicant must explain why he did not file his appeal within time and demonstrate that there is utility in extending time to appeal, that is, that he has some prospects of success in an appeal if he were granted an extension and the interests of justice warrant the extension of time.[5]

The applicant's contentions

[11]  The applicant's draft amended notice of appeal listed nine grounds:

"1.    That his Honour eved in decision on 15 August 2008 is that he ordered in paragraph 5 that $25,969.06 be released to the Applicant, and that created a perceived bias. That created an injustice.

2.    That injustice being that Applicant was given an advantage that those funds were for legal representation which I the Respondent did not have.

3.    His Honour prejudged the primary decision by realising these funds in paragraph 5 to the Applicant.

4. Respondent amended the Original Application two days before trial contrary to the requirements of the Universal Procedure Rules 1999 of the Supreme Court. Appellant's offer made on 15 April 2009 not accepted by Respondent.

5.(a)Constructive trust material for the Appellant being ignored by Primary Judge as the Respondent did not work. Investment property mortgage was paid by the Appellant by cash deposit paid into the Respondent National Australia Bank savings account, the direct debit withdrawal paying the Respondent mortgage.

6.    Respondent being negligent of not reading the Appellant amended list of documents for disclosure for the Appellant dated 15 July 2008. 

7.    Respondent did not contribute financially or non financially as Respondent to the Appellant assets ignored by the Primary Judge. 

8.    Appellant apply to legal aid for legal representation thus delay waiting for response for legal representation for Application of Court of Appeal.

9.    Appellant applied to QPILCH for help to establish the Appellant record book was denied thus this delay the Appellant applying seeking extension of time to appeal dated from the response letter of the QPILCH dated 10 September 2009." (errors and emphasis in the original).

[12]  The orders sought in the draft amended notice of appeal were:

"Leave for Application of time to appeal to be granted.

Leave to appeal (if required) be granted to the Appellant.

The orders made on 23 July 2009 be stayed pending the hearing and determination of the Appeal.

The orders made on 23 July 2009 be set aside.

An order that the Respondent should bear her own costs of the proceeding No. 624/2007.

An order that the Respondent should pay the Appellant's costs of the proceeding No. 624/2007.

An order exempting the Appellant from payment for the appeal Record Book." (errors and emphasis in the original).

[13]  The applicant's written submissions contained 17 paragraphs.  The first nine repeated the nine grounds of appeal set out in [11], with some additional references to exhibits on which he placed emphasis.  The remaining eight paragraphs are as follows:

"10. It was the Respondent who was arguing in front of our child all the times, seeing our child cry was not in my view the best interest of the child. Respondent was behaving erratically to change my identity and personality. Catchwords "You always try to change me and put me down" dated latter 15 September. See Exhibit A862 Vol. 2.

11.On 13 march 2008. Informing Cope Lawyers by email, be seeking costs to you "clients unnecessary actions of claiming of my properties". See Exhibit A870 Vol. 2.

12.Emails sent to Copy Family Lawyers to inform their client to produce deposit slips to National Australia Bank savings account. See Exhibit A866 Vol. 2.

13.Letter from Derek and Dwyer Lawyers disclosing amended list of documents, dated of letter 18 July 2008. See Exhibit A724.

14.Affidavit of [DJH] sworn 25 July 2009 shows Amended list of document shows disclosure of yacht item 23 being sold. See Exhibit A732.

15.Respondent making error that I did that was ignored by His Honour Justice Jones. "One of the assets of the Respondent had been sold". Para. 41. See Exhibit A522 Vol. 2.

16.Respondent making allegation that is an expensive due to her own negligence of that reading my own material dated 15 July 2008 Amended list of documents. See Exhibit 523 Para. 42.

17.Respondent quoted "I am a single mother" in fact she has not disclosed her new relationship with her fiancée farmer [JFE]." (errors in the original)

The primary judge's reasons

[14]  The judge's reasons for the orders of 30 April 2009 were as follows.  His Honour noted that the questions remaining for determination were the disposition of the balance of the proceeds of the sale of the Melbourne unit held by the respondent's former solicitors and the reserved costs,[6] as well as the disposition of the engagement ring which the applicant gave the respondent in 2006 in contemplation of their proposed marriage.[7]

[15]  The judge made the following findings.  The parties' relationship broke down irretrievably on 27 September 2007 when they ceased to co-habit.  The respondent was 30 years of age at trial.  She trained as a beautician.  When she met the applicant she was working as an exotic dancer in a Melbourne nightclub.[8]  The applicant was 42 years old at trial.  He was previously married but he separated from his wife in late 2005.  They divorced in mid 2007.  He owned property in Melbourne together with a five-bedroom, five-bathroom high quality home on Sovereign Island, Gold Coast, which sold in August 2007 for $3.2 million.[9]  The applicant invited the respondent to move in with him at the Gold Coast.  They spent the 2006 New Year holiday together there before she temporarily returned to Melbourne.  From February 2006, they lived together in his Sovereign Island home.  She gave birth to their child in September 2006.  The child was three years old at trial and lived with the respondent in Cairns.  The applicant had access to the child three days a week.[10]  The parties ceased cohabiting in late September 2007.[11]

[16]  The judge also found the following facts.  The parties did not come to Cairns on holidays but to pursue investment opportunities for the applicant.  He purchased property in Cairns.  The parties lived with the respondent's parents but intended to move into their own home.  They ceased living together because of their deteriorating relationship and because the applicant wanted to resume his life on the Gold Coast.[12]

[17]  When the parties began living together on the Gold Coast in February 2006, the respondent gave up her job and her residential unit in Melbourne.  Her unit was subject to a mortgage which she was paying off.  The applicant did not want her to work and, at his insistence, she became a full-time home-maker, maintaining the Sovereign Island home to the applicant's demanding expectations so that it was well presented to potential buyers.  She also provided the normal domestic services and benefits for him.[13]  She therefore had no income and was unable to independently meet her mortgage repayments and other expenses of her Melbourne unit until she found a tenant later in 2006.  The applicant made some payments to her at this time.[14]  He paid moneys into her bank account in early 2006 and she ultimately conceded that some of those payments would have been applied to her mortgage payments and outgoings for her unit.  The extent of these payments was unclear and in the end it was not necessary to quantify them.[15]  When the parties began living together, the respondent had no income and no immediately realisable property.  On the other hand, the applicant had significant assets and apparent wealth.  In those circumstances, it was reasonable for him to financially contribute to her move to the Gold Coast and for him to make these payments.[16]

[18]  The judge rejected the applicant's claim that, because he had made a payment of $700 and monthly repayments for a time of about $300, he had a constructive trust in the respondent's Melbourne unit.[17]  There was no evidence of any agreement between the parties that he would take an interest in the property or any statement by the respondent which would have allowed him to conclude that was her intention.  His payments to the respondent were not used to improve the property.  They were part of a necessary domestic arrangement between the parties following from the applicant's insistence that the respondent must not seek paid employment.  Shortly after they began living together, she became pregnant and was also actively involved in providing domestic services for the applicant, so that she had no opportunity to make an independent financial contribution to her Melbourne unit.  For these reasons, it could not be said that the applicant acted to his detriment or that there was anything unconscionable in her acceptance of the money from him.[18]  The judge referred to and distinguished Baumgartner v Baumgartner[19] from the present case.[20]  His Honour concluded that the applicant's payments in respect of the respondent's Melbourne unit did not create any beneficial interest by way of a constructive trust.  The applicant had no caveatable interest in the premises and no right to share in the proceeds of its sale.  The money still held on term deposit by the respondent's former solicitors should be regarded as the respondent's separate property.[21]

[19]  The parties also disputed the value of the engagement ring but the real issue was not its value but to whom it belonged.[22]  The judge noted that, ordinarily, when a woman breaks an engagement after a man has given her an engagement ring, she returns the ring to him.  But if the man breaks the engagement without recognised legal justification, he cannot claim return of the ring.[23]

[20]  The judge made the following factual findings on this issue.  The applicant gave the respondent the ring in contemplation of their marriage which did not eventuate.  The parties moved to Cairns in August 2007 intending to make their home there.[24]  There had been tensions between them which the respondent claimed was because of the applicant's infidelity; the move to Cairns was to provide them with a fresh start.[25]  On 15 September 2007, the applicant left the respondent and their child in Cairns, leaving a note which in part read:

"I saying goodbye for a number of reasons your always try to change me and put me down in front of your parents and everyone else.  I will stay in Cairns for a day then go down south … will miss my daughter very much … you never have grown up … ."

[21]  This was evidence that the applicant was then leaving an established residence in Cairns rather than concluding a holiday there.  The respondent subsequently travelled to the Gold Coast on tickets provided by the applicant and stayed with him whilst they attended a wedding there.  They discussed a reconciliation but the applicant never returned to Cairns.  He falsely claimed that the respondent then moved to Cairns, taking their daughter without his consent.  In fact, he had provided return airline tickets for both her and their child to return to Cairns.[26]

[22]  The applicant's conduct was the subject of contested domestic violence proceedings in the Queensland Magistrates Court.  The circumstances of the parties' separation and the applicant's behaviour generally, both before and after the separation, convinced the judge that their marriage did not proceed because of the applicant's conduct.  For that reason, the applicant was not in a position to claim the return of the engagement ring.  It was the separate property of the respondent.[27]

[23]  The judge next considered whether there was any reason to adjust the interest of the parties in the relevant property for the purposes of Ch 19, Property Law Act.  Both parties claimed they had no significant net assets.  Both claimed to have received past financial support from their respective parents and to remain obligated to their parents.  The respondent carried the burden of caring for the child of the relationship, with only insignificant financial support from the applicant, who continued to maintain a lifestyle which, in the circumstances, was profligate.  He kept residences in both Cairns and the Gold Coast, with a luxury car in each place.  Shortly before the parties ceased cohabiting, the applicant had access to $2.7 million from the sale of his Sovereign Island property.  He used some of that money to purchase his present property holdings but much seemed to have been consumed by the manner in which he chose to conduct his financial affairs.  He had shown no basis for any claim to the items of property which belonged to the respondent.[28]

[24]  For these reasons, the judge made orders in favour of the respondent and adjourned the question of costs.[29]  The applicant appeared to be self-represented and to make his own submissions on the question of costs. 

[25]  As I have noted, on 23 July 2009 the judge ordered that the applicant pay the respondent's costs of the trial on an indemnity basis.[30]  The judge observed that both parties contended that they were entitled to costs on an indemnity basis.[31]  His Honour found the following.  The applicant's conduct, in lodging the caveats on the respondent's property and then obstructing her access to the funds when he knew she had limited capacity to maintain herself and their child, bordered on the perverse.  The respondent offered to settle the issue raised in the Victorian proceedings in a way more favourable to the present applicant than ultimately ordered on 30 April 2009.  She offered to settle the Victorian proceedings on the basis that she retained the money in her solicitors' trust account and that each party pay their own costs.[32]  His Honour considered s 341 Property Law Act, which provides that ordinarily each party in proceedings under Pt 19 of that Act bear their own costs, but allows a court to make a different order where the circumstances justify it.[33]  Each of the parties came before the trial court with virtually no realisable assets which could have been the subject of financial adjustment.[34]  The application was commenced in December 2007.  In January 2008, the court made orders specifically obliging the parties to disclose documents on or before 28 March 2008.  The applicant did not comply.  Throughout 2008, he failed to make full disclosure until shortly before trial.  This meant that the respondent only then became aware that the applicant had no disposable assets.  She immediately amended the scope of her claim, limiting the issues to those at trial.  She was wholly successful at trial.[35]

[26]  Although the applicant was completely unsuccessful at trial, he nevertheless sought costs on the indemnity basis, claiming that the respondent's offers were unreasonable and she should have been aware of the disposal of his property holdings including the "Dyna yacht".  The judge accepted the respondent's contention that the applicant refused her offer to agree to substantive orders and to limit the issue for the Court's determination to costs.  Consequently, the application caused much court time to be wasted.  The applicant's contention for indemnity costs against the successful respondent was "somewhat audacious".[36]

[27]  The judge concluded that the applicant's failure to make full disclosure resulted in the trial proceedings becoming a full blown dispute.  Had full disclosure been made, the respondent's false impression as to the applicant's financial status could have been corrected at an early stage.  She would not have had to engage a forensic accountant to analyse the applicant's affairs.  Only when she became aware of his true financial position was she able to make an appropriate offer of settlement.  In the circumstances, the respondent had acted reasonably, whereas the applicant had failed to comply with the court's order as to discovery.  For that reason, he should pay the respondent's costs from the date when he should have complied with that order, namely 28 March 2008.[37]

[28]  The judge determined, taking into account the limited means of both parties, that costs should be assessed on an indemnity basis in respect of the Victorian proceedings.  In respect of the Property Law Act application, costs were more in line with the standard basis of assessment, despite the applicant's disregard for the court order, a factor which could have justified costs on an indemnity basis.[38]

[29]  The judge then considered affidavit material filed on behalf of the respondent, which his Honour accepted, but discounted and rounded off, ultimately fixing the applicant's liability for the respondent's costs at $75,000.00.[39]

Reason for delay in appealing the decision

[30]  Grounds 8 and 9 of the applicant's draft notice of appeal deal with the reasons for his delay in appealing the decision.[40]  The applicant contends there were two reasons for his delay in appealing the decision.  First, he says he applied to Legal Aid Queensland (LAQ) for legal representation in the appeal.  Second, he claims he was delayed in filing his appeal because he applied to the Queensland Public Interest Law Clearing House (QPILCH) for assistance in the appeal. 

[31]  The difficulty for the applicant is that the material he has provided to this Court from LAQ and QPILCH shows that he did not apply for legal aid until 12 August 2009 nor to QPILCH for assistance until 2 September 2009, well after the appeal period had expired in respect of the order of 30 April 2009 and after he purported to appeal to this Court.  The delay was his, not that of LAQ or QPILCH.  These proposed grounds of appeal (grounds 8 and 9) provide no explanation for his delay in seeking to appeal.

[32]  It is significant that the applicant nowhere submits that he had always intended to appeal from the orders of 30 April 2009 but did not think the order was final and that the appeal period began to run until after delivery of the costs order.  It is a reasonable inference, therefore, that he had no complaint about those orders until the costs order was made against him.  Nothing in the applicant's written material or oral submissions provides a legitimate explanation for his delay in bringing his appeal.  Despite this paucity in his contentions, I will now turn to briefly consider his proposed grounds of appeal in case the interests of justice require an extension of time for leave to appeal to be given: cf R v Tait.[41]

The proposed grounds of appeal

[33]  The remaining proposed grounds of appeal are set out in these reasons at [11] and [13].  The first is a general claim that the primary judge erred in ordering that the money held by the respondent's solicitors on trust be released to her.  This unsatisfactorily broad contention appears to be better particularised in proposed grounds 2-5, 7 and 17.  I will return to it after discussing those grounds.

[34]  The second ground of appeal is a contention that the respondent was given an advantage when the judge released funds to her for her legal representation, an advantage which the applicant asserts he did not have.  He did not appeal from the relevant order of 15 August 2008.  In any case, he was, in fact, represented at the trial.  This ground of appeal does not seem promising.

[35]  The third ground of appeal is a contention that the primary judge pre-judged the issue, apparently by making an order in the respondent's favour as to the money held in her solicitor's trust account.  The applicant has provided no material to support his allegation of pre-judgment on the part of the primary judge.  Nor did he appeal from that order.  This proposed ground of appeal is not made out.

[36]  The fourth proposed ground of appeal complains about the respondent's alleged amendment to her application two days before the trial.  The applicant submits that it was contrary to the "Universal Procedure Rules 1999 of the Supreme Court".  The Uniform Civil Procedure Rules (UCPR) r 377 does prohibit amendment of the originating process without leave of the court, or in some instances, the registrar.  The applicant has not established that the respondent amended her application two days before the trial; that if she did, it was done without leave of the court; that, if leave was given, it was wrongly given; or that any injustice flows from the amendment.  This proposed ground of appeal does not seem promising.

[37]  The applicant next contends in the fifth proposed ground of appeal that the primary judge ignored evidence of payments which the applicant made and which supported his claim that he had an interest in the Melbourne property by way of a constructive trust.  In his oral submissions, he took the court to documentary evidence which supported his claim that he paid $5,030 to the respondent on 14 December 2005.  Although the material he provided to the court did not show that payment entering the respondent's bank accounts, it seems he only photocopied every second page of her bank accounts.  Assuming that the evidence before the primary judge supported the applicant's payment of $5,030 to the respondent on 14 December 2005, that does not undermine the judge's reasons for rejecting the applicant's claim of an alleged constructive trust in his favour over the Melbourne property.  The judge considered that payments of this kind were reasonable removal expense payments and payments of moral obligation following upon the applicant's insistence that the respondent give up her employment and be a full-time home-maker, keeping his five-bedroom, five-bathroom house in premium condition for inspection by prospective buyers.  The judge was apparently well entitled to make those findings on the evidence.  The facts found by the judge, even allowing for the payment referred to in this ground of appeal, did not establish a constructive trust over the respondent's Melbourne unit in favour of the applicant: cf Baumgartner.[42]

[38]  The seventh ground of appeal also relates to his Honour's factual findings and conclusion that the amount held in the respondent's solicitors' trust account from the sale of the Melbourne property be paid to her.  This ground does not establish that the judge was not entitled to make the findings on the evidence in favour of the respondent which informed his Honour's ultimate conclusion on this issue.  The judge noted that the respondent was not employed when she began to live with the applicant because she had given up her employment to move from Melbourne to the Gold Coast to be with him and keep house for him.  She was not able to contribute directly financially to the household.[43]  The judge also accepted the respondent's evidence and the evidence of her parents that she undertook a demanding domestic role, at the applicant's insistence, maintaining his Gold Coast property and ensuring its proper presentation to potential buyers.[44]  In his oral submissions, the applicant emphasised evidence that cleaners regularly attended the Sovereign Island house whilst the applicant was pregnant.  He argued that this showed that she did not carry out domestic duties during this time.  His Honour was conscious that, shortly after the parties began their relationship, the respondent became pregnant.[45]  But the regular attendance at the premises by cleaners, even if established on the evidence, was not necessarily inconsistent with the judge's factual findings.  In between visits by cleaners, she no doubt maintained the house and performed other domestic services.  This proposed ground of appeal does not seem to legitimately undermine the primary judge's findings of fact, his reasoning or his conclusions based on them.

[39]  Finally, the applicant contends in his proposed ground of appeal 17, contained in paragraph 17 of his outline of argument, that the respondent should have disclosed her new relationship with her alleged fiancé instead of contending, as she did before the primary judge, that she was a single mother.  There is no evidence that she was in her present relationship at the trial.  The applicant has not applied for leave to or attempted to place any such evidence before this Court.  Nor has he demonstrated the relevance of such evidence.  This proposed ground of appeal does not appear to have any prospect of success.

[40]  None of these matters individually or collectively support his contention in proposed ground of appeal 1.

[41]  In his oral submissions, the applicant repeated his assertions made in his outline of argument that the judge did not properly consider the applicant's contribution to the Melbourne property.  He emphasised the payment of $5,030 which he says he made to the respondent on 14 December 2005 before she moved to the Gold Coast and that from that time he financially provided for her.  He emphasised that he paid for cleaners to maintain the Sovereign Island house when the respondent became pregnant.  But none of these reasons, even in combination with the matters raised in his outline of argument and proposed grounds of appeal established any error on the part of the primary judge in his fact-finding or reasoning leading to a declaration that the respondent was entitled to the balance, together with interest, of the term deposit held by her former solicitors, under the order of the Supreme Court of Victoria made on 5 February 2008.  It follows that proposed grounds of appeal 1-5 and 7-17 are not made out. 

[42]  Proposed grounds of appeal 6 and 13-16 seem connected.  The applicant there contends, as he did in his oral submissions, that the judge erred in misconstruing the nature of the applicant's discovery.  Instead, he contends, the respondent's discovery was inadequate.  He argues that she pursued claims about his yacht when she knew or should have known that the yacht had been sold.  In his oral submissons, the applicant also emphasised his affidavit evidence, filed in relation to the costs question, as to the sale of his yacht.  These proposed grounds of appeal are relevant only to the primary judge's decision as to costs,[46] where his Honour found that the applicant's failure to comply with court-ordered disclosure contributed directly to the respondent's costly conduct of the proceedings.[47]  The applicant has not demonstrated any error in this respect on the part of the primary judge.  But, in any case, these proposed appeal grounds go only to the correctness of the costs order.  There is and can be no independent competent appeal from that order.  This Court would only go behind that costs order if the applicant were successful in obtaining an extension of time to appeal and in his substantive appeal from the orders of Jones J on 30 April 2009.

[43]  The tenth proposed ground of appeal relates to the judge's findings as to which of the parties was responsible for the marriage not proceeding, and ultimately who was entitled to the engagement ring.[48] In his oral submissions, the applicant emphasised his assertion that the judge wrongly concluded that because the applicant left the relationship, the marriage did not proceed.  He also argued that his valuation of the engagement ring, rather than the respondent's, should have been accepted.  But the valuation was not the real issue between the parties.  The question was who was entitled to the ring.  The applicant has not provided any reasons in his written or oral submissions to demonstrate that the primary judge erred in accepting the respondent's evidence on this issue.  He has merely asserted that the judge was wrong to do so.  None of these contentions suggest any appealable error in fact finding or reasoning leading to the primary judge's declaration that the respondent was entitled to retain the engagement ring.  This proposed ground of appeal does not seem promising.

[44]  Paragraph 11 of the applicant's outline of argument (and apparently ground 11 of his proposed notice of appeal) concerns an email he sent to the respondent's solicitors on 13 March 2008 which referred to his "huge debt" attaching to the Sovereign Island property and giving notice that if he was forced to obtain legal representation to defend the respondent's claims, he would seek costs against her.  This proposed ground of appeal also seems to relate solely to the primary judge's discretionary costs order, which this court would only consider gainsaying if the applicant were successful in first obtaining an extension of time to appeal, and then in his appeal against the substantive orders of 30 April 2009.

[45]  Paragraph 12 of the applicant's outline of argument (and apparently ground 12 of his proposed notice of appeal) concerns emails sent on his behalf to the respondent's lawyers requiring the production of deposit slips to her saving bank account.  An email was exhibited to the respondent's affidavit sworn on 26 September 2008 in which she attested that she was unable to provide those documents as they were already in the applicant's possession in a storage facility on the Gold Coast to which he had refused her access until she paid him the amount he owed to the storage facility.  That affidavit was sworn and filed after the primary judge's interlocutory order of 15 August 2008 which included orders that the respondent:

"(b) …pay an amount of $969.06 or such other amount outstanding to Safeway Self Storage in relation to the storage facility held there in the name of [the applicant], such as is required to allow access to the storage facility, and that such amount be taken into account at the final hearing and

(c)the [respondent] be at liberty to remove any items belonging to her from such facility."

There has been no notice of appeal nor any extension of time to appeal in respect of that order.  It does not seem to have any relevance to the substantive orders of 30 April 2009 to which this application for an extension of time to appeal relates.  The applicant has not demonstrated that the email or emails to which he refers in this proposed ground of appeal have in any way affected the correctness of the primary judge's fact-finding or reasoning.  This proposed ground of appeal does not seem promising.

[46]  During his oral submissions, the applicant sought to adduce new evidence about the respondent's post-trial conduct which he submitted justified her losing custody of their child.  He did not produce any evidence to support his assertions, which seemed calculated more to distress the respondent rather than to be a serious attempt to persuade the Court of their merit.  Nor did he demonstrate to the Court that the post-trial conduct which he alleged against the respondent had any relevance to the primary judge's fact-finding or reasoning leading to the substantive orders of 30 April 2009.  His application to adduce new evidence must be refused.

Conclusion

[47]  The applicant has given no satisfactory explanation for his delay in appealing from the substantive orders of the primary judge made on 30 April 2009.  Nor has he demonstrated in his many proposed grounds that he has any prospect of success on appeal or that any injustice will flow from allowing the orders made on 30 April 2009 to stand.  It follows that his application for an extension of time to appeal from the substantive orders of 30 April 2009 must be refused with costs.  As he has been unsuccessful in obtaining an extension of time to appeal from those orders, he cannot appeal from the primary judge's orders as to costs without leave of the primary judge.  He did not obtain that leave: Re Golden Casket Art Union Office;[49] HIH Casualty and General Insurance Ltd v Dascam P/L & Ors.[50]

ORDERS:

1.The application to adduce new evidence is refused.

2.The application for an extension of time to appeal is refused with costs.

[48]  FRASER JA:  I agree with the reasons of the President and with the orders proposed by her Honour.

[49]  P LYONS J:  I have had the advantage of reading in draft the reasons for judgment of the President.  I agree with them and the orders proposed by her Honour.