Wentworth v Wentworth S117/1995 [1995] HCATrans 412 (24 November 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S117 of 1995

B e t w e e n -

KATHERINE WENTWORTH

Applicant

and

PETER FITZWILLIAM NEVILLE WENTWORTH

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 9.31 AM

Copyright in the High Court of Australia

MS K. WENTWORTH: Your Honour, I would seek leave to appear in person.

BRENNAN CJ: Is Mr Russo here?

MS WENTWORTH: Yes, your Honour.

MR S. RUSSO: Yes, I am, your Honour.

BRENNAN CJ: Well, you are appearing, Mr Russo.

MR RUSSO: Your Honour, I have not prepared this matter. I have assisted Ms Wentworth in the preparation of it. She has prepared the argument. It would be my application to the Court that Ms Wentworth be granted that leave.

BRENNAN CJ: It may be your application to the Court but you are on the record as the solicitor for the applicant in this case. By reason of your being on the record as the solicitor for the applicant in this case, the procedure of Order 69A rule 13 has not been followed, and this matter has been listed for hearing before three Justices.

MR RUSSO: Your Honour, I had attempted to obtain senior counsel for Ms Wentworth and had written to the Court during the course of last week seeking some direction from the Registrar as to the course which would be taken by the Court, given that I was unable to obtain counsel to represent Ms Wentworth. Unfortunately, I have not obtained any response to that.

BRENNAN CJ: This matter came before Mr Justice Gummow, as you know.

MR RUSSO: Yes, your Honour.

BRENNAN CJ: And you were present on that occasion.

MR RUSSO: Yes, I was, your Honour.

BRENNAN CJ: And the transcript on that occasion reveals that there was no prospect then thought of getting counsel to appear for Ms Wentworth.

MR RUSSO: I understand that, your Honour, but in view of the fact that the special leave application was brought forward, I attempted to try and seek counsel to represent Ms Wentworth.

BRENNAN CJ: What has bringing it forward got to do with the prospect of getting one if there was no prospect then?

MR RUSSO: Because, your Honour, it sometimes develops in the Wentworth Cases that there is, at least, some counsel who would be prepared to act for Ms Wentworth when an application has actually been set down for hearing.

BRENNAN CJ: Why should not we, now that we are assembled as a Full Bench to hear this application, insist on your appearing and presenting it?

MR RUSSO: Your Honour, my submission to your Honours would be that Ms Wentworth's case would not be given the best possible opportunity before your Honours if I was to make the submissions. I have not prepared; I have not attended to the actual preparation of submissions; I have assisted Ms Wentworth; we have argued in various matters; I have done as much as I can to assist her in the orderly preparation of the case to come before the Court but I am not prepared to argue it, your Honour.

BRENNAN CJ: It seems that you have lent your name to the process. Is that what has happened, Mr Russo?

MR RUSSO: Not at all, your Honour. I have consistently acted for Ms Wentworth and consistently assisted her in the preparation of all her cases.

BRENNAN CJ: Have you ever appeared?

MR RUSSO: Yes, I have, your Honour.

BRENNAN CJ: Have you appeared in this Court?

MR RUSSO: No, your Honour. I have always been represented by counsel for Ms Wentworth with the exception of, I think, two occasions. I was able to brief counsel on behalf of Ms Wentworth, I think, on two or three separate occasions that we have been before this Court.

BRENNAN CJ: The difficulty is, of course, that there has been a stay order in this case, Mr Russo, has there not?

MR RUSSO: Yes, there has, your Honour.

BRENNAN CJ: It is obvious that the matter must be resolved today in order that the question of the continuance or otherwise of that stay should be itself resolved. It would seem that the Court has no option but to hear Ms Wentworth.

MR RUSSO: I apologise to the Court, your Honour, but I did seek some direction from the Court after it became clear to me that there was no counsel who would pick up the pieces in this case and appear on behalf of Ms Wentworth today.

BRENNAN CJ: It may be appropriate for this Court to state what the duty of legal practitioners is in relation to litigants in person. You may resume your seat, Mr Russo.

MR RUSSO: Thank you, your Honour.

BRENNAN CJ: I will state it in these terms. Rules relating to litigants in person are designed to conserve judicial time and, incidentally, to protect parties who have succeeded in litigation from unmeritorious appeals. The need for rules of this kind arises from experience of the difficulty and often the inability of litigants in person to perceive the validity of the reasons which have led to their failing in litigation or to appreciate what has to be shown in order to obtain a grant of special leave. The legal profession is expected to assist this Court in exercising its jurisdiction under section 35A of the Judiciary Act 1972 , not to subvert the operation of the Rules adopted to assist in its exercise. It is inappropriate for a solicitor or barrister to lend his or her name to proceedings in order to permit a litigant in person to avoid the application of Order 69A rule 13.

Now, having said that, in the light of the explanation given by Mr Russo, it should not be taken that Mr Russo has, as it were, fallen foul of that admonition. It is nonetheless one that should be borne in mind by any solicitor who might be placed in a situation of difficulty by a litigant in person.

I should also make it clear that nothing that I have just said relates to the present application or its merits, nor to the capacity of Ms Wentworth to present the case adequately on her own behalf but it is something which should be understood very clearly by the profession in relation to their duties to this Court. Very well, Ms Wentworth, we will hear you in person.

MR D.F. JACKSON, QC: If the Court pleases, I appear with MR G.C. LINDSAY, SC for the respondent. (instructed by Dunhill Madden Butler)

MS WENTWORTH: Your Honours, I am grateful for that indulgence. Your Honours, this is an application in relation to section 8 of the Family Provision Act, New South Wales, 1982 which was introduced as a result of the Law Reform Commission Report 1977 to alleviate hardship.

The matters in the Law Reform Commission Report are set out in the application books at page 25 and following. The specific purpose was to allow for increased provision for eligible persons to whom provision had been previously made. There were similar legislation which had already been enacted in other States: Western Australia, the Inheritance (Family and Dependants Provision) , section 16(1); Queensland, the Succession Act 1968 and 1981, section 42; Tasmania, the Testator's Family Maintenance Act 1912 , as amended in 1970, section 9(5)(b); South Australia, the Inheritance (Family Provision) Act 1972 , section 12; the Australian Capital Territory, Family Provision Act 1969 , section 9(3); and in Victoria, the Act, your Honours, is a little queryable in the way in which it has been interpreted in that State, the Administration and Probate Act 1958 , Part IV, section 97(5). The Act in the Northern Territory does not have a similar power to make further provision.

The Act in New South Wales as introduced is similar to the provisions of the New Zealand legislation of the Family Protection Act 1955, in particular, section 12. The thrust of all the legislation relates to whether all previous provisions made remain adequate and, if not, having regard to the circumstances, the time the order is to be made, the Court may or should increase it. The scheme in New South Wales, under section 8, must be read with section 9(2) and have regard to section 9(3) and (4) of the legislation. The case under consideration here, your Honours, particularly involves the questions of section 8 and section 9(2)(b)(ii). Perhaps if your Honours would - - -

BRENNAN CJ: We have a copy of the Act here.

MS WENTWORTH: The judge at first instance, his Honour Mr Justice Santow, made the first determinations under section 8 for New South Wales and it is submitted that he correctly applied the test as to jurisdiction as set out by this Court in Singer v Berghouse.

BRENNAN CJ: Now, I think you should understand, Ms Wentworth, that you have 20 minutes and we have read the papers. So, there is no need for you to repeat anything but only to develop whatever is in the papers.

MS WENTWORTH: I am grateful for that, your Honour. His Honour Mr Justice Santow found as a matter of objective fact that the previous provision which had been made was inadequate at the application books, 37, point 25 to 30, and correctly exercised his discretion to make further provision. Justice Santow correctly identified the applicant's present financial position and to that end obtained further evidence from the applicant. It is submitted that his Honour had regard to all the relevant matters; firstly, as to why cost orders under section 7 had impacted so hard on the applicant; two, the increases in mortgage repayments and, three, the failure of admission by the applicant which left her with no prospects of earning a living or paying outstanding monetary claims and with costs against her in excess of $500,000 which were incurred in her attempting to obtain admission.

His Honour correctly identified that he had to take into account circumstances, the date of the order under the section 8 and not as an application under section 7: AB 8 point 20, 20 point 15, 22 point 10, 24 point 50. Your Honours, I can take you to the application book references but I think, perhaps, it is not necessary in the address.

His Honour Mr Justice Santow took into account the prior evidential determinations as to why provision should be made and the relevant considerations - application book 39 - as found by Mr Justice Bryson and the Court of Appeal in the section 7 application and those considerations, (1) to (10), about which no contradictory evidence was provided in the hearing in the section 8 application: page 21 to 25. Justice Santow adopted those findings. Your Honours, I will take you to those. If your Honours could just open the application books at page 39. Mr Justice Santow took each of those matters, (1) to (10), into account and in doing so exercised his function under section 9 of the Act; particularly 9(3) and 9(4), your Honours.

His Honour found, as did Justice Bryson and also the Court of Appeal in the section 7 application, that "The plaintiff was truly in need" - this is No (10) - "for her maintenance when the testator died and still is." His Honour had regard to section 27(1) of the Act as he was required to do and in doing that gave consideration to, firstly, the reasonable expectations of the defendant, the needs of the defendant and the substantial justice and merits of the case. His Honour had regard to section 28(1) as to value of the property and the amplitude of resources available from the estate or the notional estate of the testator. His Honour had regard to section 28(5) and considered there were special circumstances for allowing designation of property to be made as notional estate.

Justice Santow considered the previous provision of $100,000 made by the Court of Appeal in 1992 as an advancement in life and the circumstances that it was made with the implicit assumption that the applicant would be admitted to practice. Your Honour, those findings are at the application books at 23 point 20, 24 point 15 and 36 point 15.

BRENNAN CJ: Ms Wentworth, you failed because of the intervention of the Court of Appeal.

MS WENTWORTH: Yes.

BRENNAN CJ: In order to succeed here - this is on this present application - you must show, I should have thought, both an error on the part of the Court of Appeal and an error of such a kind as warrants the grant of special leave to appeal to this Court.

MS WENTWORTH: Yes, indeed, your Honour. I am very acutely aware of that, your Honour. What I am endeavouring to do is show that his Honour Mr Justice Santow, having made various findings and then exercising his discretion, did not err in any way and that the Court of Appeal, in varying the determinations that Mr Justice Santow made, had, in accordance with the terms of House v The King and the various principles - did not demonstrate that Mr Justice Santow had made any error in fact or principle and simply substituted a view on a set of facts which is not a course which is open to the Court of Appeal in an appeal process such as this.

BRENNAN CJ: You failed substantially because of the requirement to demonstrate a substantial detrimental change and the Court of Appeal held, on the facts of the case, that that had not been shown.

MS WENTWORTH: Your Honour, I think what the Court of Appeal, in fact, did was that they concurred with the facts as were found by his Honour Mr Justice Santow and then they substituted their own view as to whether those facts constituted substantial detrimental change and that is the attack which is mounted against the judgment of the Court of Appeal.

BRENNAN CJ: What is the special leave point in that?

MS WENTWORTH: The special leave point in that is the total failure by the Court of Appeal to deal with the terms of the legislation as it stands, your Honour.

Your Honour, perhaps I can continue. His Honour Mr Justice Santow had correctly identified the matters required to be considered under section 8 as constituting substantial detrimental changes in circumstances and made certain objective findings of fact. His Honour had regard to the applicant's set of circumstances as at the two relevant dates, being 3 March 1992 and 24 May 1994, and considered the applicant's financial circumstances at those dates and considered the plaintiff's application for admission of those dates. I think this is the point that your Honour is directing my attention to.

In relation to financial circumstances of the applicant, his Honour made a finding as to further liabilities, that there had been an increase in costs of about $600,000 of which $538,000 approximately was in relation to seeking to obtain admission. He also found that there had been an increase in mortgage commitments of about $200,000. His Honour found that those matters constituted a substantial detrimental change in the circumstances of the applicant in monetary terms.

As to the admission, His Honour found that as at 3 March 1992, the applicant had made an application for an admission and an award of $100,000 had been made by the Court of Appeal on the implicit assumption that admission would be granted as a short-term stopgap measure. His Honour had regard to the costs of the applicant in attempting to obtain admission in an amount of about $538,000 and His Honour had regard to the fact the application for admission had been refused by Mr Justice Campbell in December 1992 and the Court of Appeal in February 1994.

His Honour found that they were lost prospects of the applicant supporting herself and properly identified that this was a substantial detrimental change in circumstances. His Honour then properly identified the test under section 9(2)(b)(ii) as to inadequacy of provision and then made a discretionary determination having regard to the words in section 8 as to "may" and "ought" and made orders, having regard to the relevant circumstances in the exercise of his discretion and particularly having regard to the findings which I have just taken your Honours to, (1) to (10).

His Honour failed in making his orders in terms on correct principles, it is submitted, your Honours, as to the quantum.

DAWSON J: Ms Wentworth, what you really have to address yourself to is the fact that the Court of Appeal concluded that as at 3 March 1992 you were insolvent and as at 24 May 1994 you were insolvent, but more so, and you have to address yourself to the question whether there is an error in principle in finding on those facts that there was no substantial detrimental change in your circumstances within the meaning of section 8 of the Family Provision Act 1982 . That is the point.

MS WENTWORTH: Thank you, your Honour. As to the question of a finding of insolvency as at 3 March 1992, the Court of Appeal erred in making that finding in several ways. The Court of Appeal failed to take into account the amounts which were owed as debts by the defendant to the plaintiff at that time. The Court of Appeal at that stage said the costs of the section 7 application had been incurred and that because they had been incurred without giving any benefit for amounts which should be paid to the plaintiff, put only on the debit side of the ledger, the liabilities which were claimed against the plaintiff and did not put anything on the credit side of the ledger for those amounts which were outstanding and waiting to be paid.

As events have turned out in May this year the findings in relation to those costs have increased the payments due to the plaintiff in an amount of some nearly $300,000. These are matters which the Court of Appeal failed to have regard to in making a finding of insolvency. Secondly, the attack on that finding is this, your Honours: a finding of insolvency is a finding which arises out of monetary circumstances when certain other things have happened. The finding of insolvency, your Honour, we would say, was not open to the Court of Appeal. It was a matter which was raised before his Honour Mr Justice Santow and his Honour Mr Justice Santow correctly, we say, rejected any such proposition and his Honour also had clear regard to the position which he saw that there can be, in circumstances, competition with creditors et cetera, and insolvency has particular connotations which were neither proved nor were in evidence nor were matters which the Court of Appeal, in fact, could have regard to in the evidence as it stood before them.

So that a finding of insolvency, your Honours, as at 3 March 1992 was not open to the Court of Appeal on the evidence before the court. Insolvency has connotations of being unable to pay debts as they fall due and, your Honours, there was no evidence before the court in the terms of that definition that that position had been arrived at so that a finding of insolvency as at March 1992 was not such as could be one which the Court of Appeal could find.

What the Court of Appeal was required to do was to determine whether or not, as at March 1992, there were claims made for certain amounts and whether there was an increase in claims made for certain amounts. The debts had not at that stage fallen due, your Honour, and therefore a finding of insolvency at either point is unavailable to the Court of Appeal. Mr Justice Santow, we submit, correctly determined that there was a change in the financial circumstances between those two dates. But as to a finding of insolvency, that was not open or available, your Honour, on the evidence before the court. There was no material which the court could rely on to make that finding.

The second matter which the Court of Appeal, we say, failed to identify correctly was the position in relation to admission. As to the position as at March 1992, I had made application for admission as a barrister. In the intervening period between March 1992 and May 1994 that application had been refused. I therefore had lost the prospect of being able to earn a living. I, in the terms of the judgment had lost both private and public reputation. I had lost the prospect of being able to obtain work in other areas because of the terms of the judgment and I had incurred costs in a substantial amount in excess - or liabilities for costs in excess of $500,000. Those were very substantial changes to my circumstances at that time, bearing in mind that most of the amount of money that was claimed as at March 1992 related to what the defendant owed me on the orders of the court on the section 7 application.

So that the defendant then comes up to the Court of Appeal and says, "You have to make a finding that she can't meet her liabilities as at March 1992 because by employing various mechanisms of delay within the court process I have not paid her the debts which I owe her and for which I am liable" and, I might add, that is still the position. The defendant has still not paid the debts he was liable to me for and both the findings of the Court of Appeal and of Mr Justice Santow were that as of March 1992 the disastrous financial position that I found myself in as far as any outstanding cost liabilities were because of non-payment of those costs in the section 7 application to me at that time.

So that the matter in relation to the mortgage was finely balanced with the value of the property so that at the time of March 1992 there was about $200,000 still of an amount in excess of the mortgage claims and as at May 1994 that situation had changed to the other side. Your Honours, his Honour Mr Justice Santow had considered the facts at the relevant dates. He determined there had been a change; that it was substantial and that the change was detrimental to the applicant.

The errors in the Court of Appeal are seven: it attempted to substitute its own views for those of the primary judge when there was no error made by the primary judge. The finding of insolvency is a state arising out of a set of circumstances or facts and it was not available to the Court of Appeal. The effects of the non-admission I have gone to. The Court of Appeal failed to have regard to the fact of the liabilities of the applicant as found by Mr Justice Santow, the costs of the section 7 application due to be paid to the applicant by the defendant and not yet paid.

The point in relation to the court, your Honour, which I have not yet dealt with is that neither his Honour Mr Justice Cole nor his Honour Mr Justice Powell should have sat to hear these matters. The plaintiff was not given procedural fairness or natural justice in that two Justices who sat to hear the matter had either previously disqualified themselves for apprehended bias or, on 7 September, Mr Justice Cole, in the middle of the material matter, disqualified himself for bias. Your Honours, it is submitted that those failures on the part of the court are such as should allow the plaintiff to have this matter dealt with in a Full Appeal Court. The Court of Appeal imposed its view on a discretionary determination by the primary judge when the primary judge had made proper findings as to principles and of law and no error was made by the primary judge in those findings.

It is submitted that this leave, if not granted, would cause the plaintiff great hardship and if not granted and the matters were not properly tested, that there would be a test for all other States which would cause equal hardship to other applicants. The applicant, it is submitted, has passed the test of detrimental changes in circumstances and the Court of Appeal failed to properly identify any error in the findings of Mr Justice Santow, and Mr Justice Santow was, in fact, correct in his determinations.

Your Honours, I have briefly noted the matters of apprehended bias and on that basis alone, because the matter was not heard by a bench, that the applicant could be confident, would bring an impartial unprejudiced mind to the determinations, was not a court which should have, indeed, sat to hear the matters.

BRENNAN CJ: Yes, thank you, Ms Wentworth. We need not trouble you, Mr Jackson.

This application for special leave to appeal seeks to raise for determination the correctness of the application by the Court of Appeal of New South Wales of the test imported into section 8 of the Family Provision Act (NSW) by the words:

"a substantial detrimental change in the circumstances of the eligible person" -

to the facts of the case The application of that test depends, of course, on the infinitely variable facts of cases brought under the section. A grant of special leave in the present case would not lead to a definition of the test for general application. Moreover, the prospects of ultimate success of Ms Wentworth's application if special leave were granted are not such as to warrant a grant of special leave. The allegations of bias are without merit. For these reasons, special leave will be refused.

MR JACKSON: Your Honours, two things: I ask for an order for costs of the application. The second thing relates to the stay. The form of stay is one that goes until, I think, the end of today or further order. Might we, in the light of the Court's order, have the stay dissolved?

BRENNAN CJ: What do you have to say about those applications, Ms Wentworth?

MS WENTWORTH: Your Honour, I did not have time to address the fact that some of the consequential orders which the court had made were not available to it under the terms of the Act and I would wish to address on those before the stay is, indeed, dissolved, your Honour.

BRENNAN CJ: Mr Jackson, what is the advantage of dissolution now, as against midnight?

MR JACKSON: Your Honour, there are proceedings, I understand, going on in the Court of Appeal later today in which, I am told, it would facilitate the Court of Appeal's deliberations. I cannot take it beyond that, to know the stay had come to an end.

BRENNAN CJ: What do you have to say about the question of costs, Ms Wentworth?

MS WENTWORTH: Your Honour, the matters in the Court of Appeal will not be affected whether or not the stay comes to an end now or at midnight tonight, it is not going to have any affect there. Do your Honours wish me to address you on the reason why I say the consequential orders failed?

BRENNAN CJ: No, we are not entertaining that application. We are asking you what do you have to say about the application for costs?

MS WENTWORTH: Your Honour, in circumstances of applications under the Family Provision Act which is an Act which is designed to alleviate hardship of applicants, it would be onerous in the extreme for this Court to award costs against the applicant.

DAWSON J: Ms Wentworth, what was the order made in the Court of Appeal?

MS WENTWORTH: The order in the Court of Appeal was that costs be ordered against me and I wish to say something about that as well, your Honour. Your Honour, the applicant would ask that the costs of the applicant in both the Court of Appeal and this Court and before his Honour Mr Justice Santow be paid out of the estate or the notional estate on a common fund basis. The reason for that is this, your Honour: the primary judge had found that the applicant had need. The Court of Appeal determined that on particular principles, which your Honours have now determined, that that was an incorrect finding but, your Honours, in attempting to obtain relief from the hardship which the plaintiff is seeking, then certain costs have been incurred.

The plaintiff has demonstrated, your Honour, that she is in a situation of severe hardship which any order for costs made against her will simply only be exacerbated. That is not what the legislation was designed for. The legislation is designed specifically to relieve hardship.

TOOHEY J: Did the order of the Court of Appeal touch the costs of the proceedings below?

MS WENTWORTH: Yes, your Honour.

TOOHEY J: To what extent?

MS WENTWORTH: The costs below had been ordered to be paid to me on a particular basis: first, on a party/party basis and that any difference between the costs below - between the party/party costs and all of the costs be paid to me as an advancement in life, so that the Court of Appeal set that order aside in toto.

TOOHEY J: Ordering you to pay the costs of the application under section 8?

MS WENTWORTH: Yes, that is correct. If the Court orders costs, and it is quite often that the Court in these applications makes the order that I seek - if the Court were to order costs against me in this matter, all that that does, your Honours, the plaintiff having demonstrated that she is in a disastrous financial situation, that she is suffering - - -

DAWSON J: We cannot do anything about the costs below. We really are only arguing about the costs in this Court, Ms Wentworth.

MS WENTWORTH: I realise that, your Honour, but what I am seeking to ask is a special order for costs: that the plaintiff not be ordered to pay costs of the appeal or in the court below.

DAWSON J: I do not see how it could do that. We are really only arguing about costs here.

MS WENTWORTH: Your Honour, I understand the difficulties but because of the reasons for the Act and the implementation of the Act, an order for costs against me, your Honours, is just simply exacerbating the situation.

DAWSON J: I understand that in relation to the application here.

MS WENTWORTH: Yes. Your Honours, the whole situation is one where, by this Court, should alleviate that hardship, with respect.

TOOHEY J: There is a difference, I think, Ms Wentworth, between the costs of an initial application under the Family Provision Act or comparable legislation but once a matter leaves that court and then proceeds by way of appeal, the ordinary rules of appeal of costs tend to take over. In other words, the successful appellant gets costs; if unsuccessful, pays costs. I am not suggesting that is a rigid rule but there is a difference between the initial application and the appellate process that may follow.

MS WENTWORTH: Your Honours, I understand that, but the situation under this particular legislation is a little like, I suppose, applications under the Legal Aid Commissions Act in that the applications are made by applicants in need. I have certainly demonstrated need and all courts have found that. But, your Honour, if costs do not flow right through from the primary court under this Act, through the appellate process, then the problem is exacerbated because what the Court of Appeal did was reverse the order for costs that Mr Justice Santow made.

So, as the costs order stand at the moment, I have to pay the costs before his Honour Mr Justice Santow, as well as the costs of the Court of Appeal and that is why I am asking that this Court make orders in respect of the costs in all three courts. I would suggest the Court certainly has the power to do that and I would ask the Court for a special order in respect of the costs of all of the hearings. I think that is all I can say, your Honours.

BRENNAN CJ: Yes, thank you. We will hear what you have to say about that, Mr Jackson.

MR JACKSON: Your Honours, the first thing is one has a situation, of course, where this is not the first hearing of the matter. It is the third court the matter has been in. The Court has held the application was without substance and failed. In circumstances like that - - -

BRENNAN CJ: No, we did not say it was without substance. We said that a grant of special leave would not lead to illumination.

MR JACKSON: I am sorry, your Honour. The advocate's flourish, if I may say so, your Honour. Could I just say, however, in relation to it, because this is a case where there is, for practical purposes, no estate now, any order for costs means that we pay. It means that we pay out of our own funds. Your Honours will see at page 13 of our submissions we deal with the question of costs. It may be that absent Ms Wentworth winning the lottery that we never get the money from her but, on the other hand, there are some orders for costs, not yet fully worked out because of appeals and so on, in relation to which we may be able to set off the amount of any order for costs against the liability, if any, under those orders. So, it is not a matter bereft of utility from our point of view.

Your Honour, if one looks at it from the point of view of saying, "Is there any reason why the unsuccessful applicant shouldn't pay and, in effect, that we should pay", and your Honours would appreciate these applications are not altogether cheap. It must involve, if one looks at the size of the two volumes of the record, $30,000; $40,000; $50,000, who knows. So that one is not talking about a small sum of money, and why should we have no order for costs? In our submission, there is no basis at all.

DAWSON J: Except that in these cases orders for costs do not automatically follow the event.

MR JACKSON: Is your Honour speaking of this class of case?

DAWSON J: Yes, Family Provision Act.

MR JACKSON: Yes, your Honour, ordinarily speaking, at first instance, the order is that the costs of all parties come out of the estate. But, your Honour, that does not always happen when one gets to the first appeal and certainly when one gets to the application for special leave by a party who has been unsuccessful in the court below, it does not follow at all, if I may say so with respect. It is not the normal thing in those circumstances and in the earlier case, as your Honours will have seen - - -

DAWSON J: I do not know that there is any normal course. The number of cases getting to this stage would not be sufficient to see what the course would be.

MR JACKSON: Well, very few, your Honour, one of the reasons being that the unsuccessful parties are likely to have to pay the costs.

DAWSON J: Perhaps; perhaps not.

MR JACKSON: Perhaps not, your Honour, but can I just say this: it would be, if I may say so with respect, an unusual indulgence for an order for costs not to be made in the present case and we would submit there is no reason why an order should not be made having the effect that we have to pay for it because it all comes out of property that is ours.

BRENNAN CJ: In this case, the matter having reached this Court on an application for special leave to appeal, we see no grounds on which the application for an order for costs should be refused. Accordingly, special leave will be refused with costs.

AT 10.10 AM THE MATTER WAS CONCLUDED