Harrington v Lowe S177/1995 [1996] HCATrans 140 (21 March 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S177 of 1995

B e t w e e n -

MAUREEN FRANCES HARRINGTON

Appellant

and

KEVIN GRAHAM LOWE

Respondent

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 MARCH 1996, AT 10.20 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: May it please the Court, I appear for the appellant with my learned friend, MR G. RICHARDSON. (instructed by Keddies)

MR M.D. BROUN, QC: May it please the Court, I appear for the respondent with my learned friend, DR P.E. NYGH. (instructed by Adrian Twigg & Co)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases I appear with my learned friend, MR E. WILLHEIM, intervening for the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor) We appear to support the validity of section 37A in as much as it may be under attack. It may assist the Court if I hand the Court our submissions now to indicate our approach on the Order 24 rule 1(8) issue.

BRENNAN CJ: Yes, thank you. Mr Bennett.

MR BENNETT: I hand to the Court nine copies of my outline and nine additional bundles of authorities.

BRENNAN CJ: Yes, Mr Bennett.

MR BENNETT: There is a philosophical problem in characterising a rule which says that negotiations of one type or another may not be given in evidence. On the one hand of course, as is recognised in all areas of alternative dispute resolution, confidentiality or the inability to use evidence of negotiations may be something which greatly conduces towards settlement of disputes and therefore, on that view alone, could be characterised as procedural.

That has been recognised for years in the without prejudice rules. On the other hand, it has also been recognised in those rules and elsewhere that such provisions can have a very great substantive effect and that in many cases the application of a rule that evidence is excluded may have the effect not merely of enabling some procedure to occur or facilitating a procedure, but the effect of altering the substantive result of litigation.

There are a number of levels on which one can look at the problem in the present case. One can look at it in the way we have dealt with in paragraph c on page 2, which is the way that a Full Supreme Court of five justices in South Australia dealt with it and the way it has been dealt with in the United States and Canada, which is very simply to say that exclusionary rules of evidence are substantive, not procedural, and therefore you cannot have a rule of court about them.

That would not apply to a rule of court which said that evidence shall be given by affidavit or evidence shall be given in direct speech. A rule like that might be procedural because one can do it in another way, but a rule which says that you cannot give evidence about certain matters at all is substantive. That is the broad level one can put it on.

One can put it on a narrower level and say there were numerous exceptions at common law to the without prejudice rule, and I will take your Honours to those in a moment. As was said in one New South Wales case, one cannot have one's cake and eat it too, even though one professes to eat it without prejudice to one's having it. And at least those exceptions, such as the rectification exception involved in this case, should be recognised if the rule is not to have substantive effect. That is the way we put it in paragraph b.

A third way it can be put is the way it is put in paragraph a, which is to say the Act itself authorises certain substantive matters and this rule, the way it is applied in this case, is preventing the Act operating, and therefore the rule actually is inconsistent with the principal Act. And a fourth way of putting it is to rely on the Harris v Caladine approach and say that the effect of the rule is to make a decision of the Registrar and a consent order unchallengeable in the case where it should be challengeable. And that is the constitutional approach to it.

The second point in the case is a very short one. That is simply that, in the light of what was said in Harris v Calladine about the need for appeals from Registrars to exist in order for a power to be delegated to them, to impose a seven day time limit, when the time limits for all appeals that we know of throughout Australia are 21 or 28 days, is simply to attempt to cut down in an unauthorised way the ability of the Court to interfere with the decisions of Registrars. That is a point which really one only has to state to argue and there is not much more one can say for or against it.

KIRBY J: Yes, but would 15 days be acceptable, would eighteen and a half days be acceptable? I mean, where is the principle?

MR BENNETT: Your Honour, the answer to that has to be that I cannot tell your Honour exactly when day ends and night begins but I know that midnight is night and midday is day and this is midnight. Seven is clearly on one side of the line. Twenty-one would clearly be the other. Fourteen might be all right. Ten is very dubious.

KIRBY J: Fourteen is not uncommon in rules in Australia on interlocutory matters. Twenty-one and 28 are common on substantive matters. Seven is very short.

MR BENNETT: Yes, that is the second point, your Honour, and I will come to that.

KIRBY J: But there is a power to extend, is there not?

MR BENNETT: Yes, there is. Now, may I come back then to the detailed submissions on the first aspect and might I start by inviting your Honours to go to Order 24 rule 1(8). It is at page 6,132 of the CCH service and your Honours will see the rule does not impose any confidentiality. There is nothing to stop parties attending a conference of this nature and then telling the newspapers the next day, subject, perhaps, to contempt of court in an extreme case, what was discussed at the conference. No confidentiality of the type imposed in standard mediations is imposed here and in a sense that is something which makes clear that it is a rule talking about evidence in court. It is not a rule talking about what happens at the conference and the rule says that subject to certain very limited exceptions:

evidence of anything said, or of any admission made, in the course of a conference held pursuant to this rule is not admissible in a court (whether or not exercising Federal jurisdiction) or before a person authorised to hear evidence -

so, for example, if there was a disciplinary hearing about a practitioner and that was a body authorised to hear evidence, one could not give evidence of professional misconduct by that practitioner at a conference of this nature -

by consent of parties or by or under the Act, the Regulations or these Rules.

It is a very, very broad prohibition and the exceptions are very narrow. The exceptions are a:

trial of a person for an offence committed at the conference -

on the hearing of certain very limited applications under two sections of the Act and on -

the hearing of an application for costs arising out of the conference.

and in such a case the Court -

has to preserve confidentiality; confidentiality, I should not say, which does not otherwise seem to exist.

DAWSON J: What sort of offence would you commit at a conference, assault?

MR BENNETT: I suppose assault, your Honour, perhaps blackmail, but otherwise it is hard to imagine; criminal defamation, maybe?

There were two sections in the Act which deal with a slightly different situation and it is interesting to see the contrast where the legislature rather than the makers of rules of court have dealt with the matter. Under section 62 there is provision for "CONFERENCES WITH COURT COUNSELLORS OR WELFARE OFFICERS" in relation to proceedings involving the welfare of a child and subsection (5) is in almost identical terms to this rule and it is interesting to note there that the legislature thought the need to impose at least one additional exception because under section 70BC(1) if a party at such a conference says something which indicates that a child has been abused or is at risk of being abused, the court officer is bound to make a report and evidence of that can be given by that person under section 70BC(4).

So, that is not an offence committed at the conference. Your Honours will note that is an admission made at the conference that a parent has or intends to engage in child abuse but, of course, the rule does not contain even an exception in those circumstances. It is a very broad and powerful rule.

Now, can I just show your Honours quickly the proposition c on page 2 because that can be dealt with more briefly than the others. There is, as I have said there, authority in South Australia, Canada, and the United States that rules excluding legal professional privilege are substantive and not procedural. The South Australian case is Taylor v Guttilla (1992) 59 SASR 361. That case concerned a rule of court which provided that one had to provide one's opponent with copies of medical reports even if one was not going to use them in the case.

Now, a previous case had held that a rule saying one could not rely on a medical report at the trial unless one gave it to the other side 14 days before the trial was valid. Of course, such a rule involves a waiver of legal professional privilege but the point is, of course, it merely involves waiving it 14 days earlier than one was going to waive it anyhow. It simply is a rule saying, "If you're going to waive privilege in a report and use it at the trial then you've got to waive the privilege 14 days earlier so as to give the other party a chance to see it." That was held to be procedural.

This rule went further and said one had to provide the report even if one was not going to use it, ie, even if it was adverse, and that rule was held to be invalid as not authorised by the Act authorising the rules of court. The rule-making power appears at the bottom of page 376 and the top of page 377, and your Honours see that the relevant words of the power are in the fourth line at 377:

Regulating the pleadings, practice, and procedure in local courts -

local courts in South Australia being the equivalent of district courts in New South Wales and country courts in Victoria, and it was held unanimously by the five judges of the South Australian Supreme Court that that rule was substantive. It was substantive because the rules of privilege were - - -

KIRBY J: I think there is a District Court in South Australia. I am not sure, but I think there is.

MR BENNETT: I think there may be now, your Honour.

KIRBY J: Anyway, it does not matter. It is not important.

MR BENNETT: I may be wrong on that. My understanding is that at that stage what is now the District Court was called the local court, but, I may be wrong in that. That was my understanding, anyway. The court referred to the importance of legal professional privilege and to Baker v Campbell but it made it clear that it regarded this rule, overriding a rule of evidence about privilege, as being a rule having substantive effect.

TOOHEY J: One can see that fairly readily, I think, Mr Bennett, in regard to legal professional privilege, having regard to the way in which that has been treated by the courts. But what is the rule that is offended here?

MR BENNETT: The rule that evidence may be given of relevant matters in order to cause a substantive result. The present case is a rule creating, if one likes, a restriction rather than removing a restriction.

TOOHEY J: Yes, I understand that, but you rely upon just a general proposition that anything anyone says may be the subject of legal proceedings or may be used in evidence unless otherwise excluded?

MR BENNETT: Yes, your Honour, anything relevant to the case. May I just give this example. Suppose there was a statute abolishing legal professional privilege so that Baker v Campbell did not exist any more and there was no legal privilege, and suppose a rule of court created it and did the reverse in fact of what was done in Taylor v Guttilla and said that there shall be a complete privilege in relation to legal professional communications and a party cannot be ordered to disclose them in court. The result must be the same as it was in Taylor v Guttilla. It is not something that can be done by rules of court. It is something which has a substantive effect on parties' rights.

GUMMOW J: There are several layers of questions, I think, Mr Bennett. Firstly, Order 24 has to be sourced in some power in the statute authorising the court, does it?

MR BENNETT: Section 123, your Honour.

GUMMOW J: Then the question would, be on its proper construction does section 123 authorise Order 24.? Then there would be the question: If Order 24 speaks as it does seem to speak as to admission of evidence in any court anywhere, by the look of it, would that be something that was authorised by 123? If it were, would 123 itself be valid?

MR BENNETT: Those questions would certainly arise, your Honour.

KIRBY J: It all has to be done by steps, does it not? I do not know what your submissions are as to - I do not think you will solve it by looking at what was done in Canada or South Australia.

MR BENNETT: Well, your Honour, all those cases involve words such as "practice and procedure" and that is what section 121 uses.

GUMMOW J: Well, not just those words, does it?

MR BENNETT: Your Honour, none of the subparagraphs seem to be relevant.

GUMMOW J: No, no, it says "incidental to practice and procedure or necessary or convenient" et cetera.

MR BENNETT: Your Honour, those words would be implied in any event. There is ample authority that where one confers a power, one confers - - -

GUMMOW J: But one can at least get from it that 123 seems to be addressed to courts exercising jurisdiction under the Family Law Act.

MR BENNETT: Yes. It is almost impossible to see how the rule could be violated in relation to areas outside that.

GUMMOW J: Yes.

MR BENNETT: The phrase I think used by Justice Dawson on the leave application was wildly invalid in relation to that and we would respectfully adopt that. But it is ultimately a construction of the words "practice and procedure" and that is why we call in aid the three cases to which I have referred as reaching that result.

GUMMOW J: But assume - I am sorry to be persistent about this - but assume one reached the conclusion that there is nothing in 123 which would authorise Order 24 in the wildly invalid sense. What then happens to Order 24? Does the whole of it go, or is it to be distributed in some way? Is there any reading down principle that applies? I do not know.

MR BENNETT: Your Honour, we make two alternative submissions. One is that the whole rule goes as a rule concerned with evidence and with admissibility of evidence. The other is that at least it must be read down to accommodate the common law exceptions to without prejudice communications.

GUMMOW J: Yes, but read down pursuant to what guiding principle, controlling principle?

MR BENNETT: Read down pursuant to a need to read it down to an extent so as to make it pro tanto valid in accordance with the general provisions of the Interpretation Act about pro tanto severability.

GUMMOW J: But would they apply to an order of court?

MR BENNETT: My recollection is, your Honour, I have not got the section in front of me but my recollection is that the Acts Interpretation Act 1972 has a provision rendering - - -

GUMMOW J: Pretty widely drawn.

MR BENNETT: Yes - rendering that rule applicable to delegated legislation. The Canadian Case is Circosta v Lilly (1967) 61 DLR 2d 12 - it is in the additional bundle I provided to your Honours, and the loose page in it is a page from the judgment at first instance which sets out the section of the empowering Act, which does not appear in the judgment on appeal. And your Honours will see there the words are:

regulating the pleading, practice and procedure in the Supreme Court -

and there is a general subsection which is really an extended incidental power and the Ontario Court of Appeal had no difficulty holding that this was not procedural. The rule in question there was a rule almost the same as the South Australian rule. It was part of the same idea that one ought to be made to discover expert reports, and waive privilege in them, even if they were adverse.

On page 15 of the judgment of the court, their Lordships said this - this is at point 3 of the page:

Admittedly such a fundamental alteration of well-settled principles of law lies within the exclusive jurisdiction of the Legislature and can scarcely be held to come within the limited delegated authority which the Legislature has committed to the Rules Committee.

The learned trial Judge would appear to have made a broad distinction between jus and remedium and to have concluded that any law concerned not with rights but with remedies was procedural law.....He thus confounded the remedy with the process by which it was made available. In private international law "procedure" is a term of very wide significance and includes not only those rules which govern the process of litigation but also pleading and the rules of evidence.

So, one can ignore private international law cases dealing with procedure. That is a much wider definition:

Rules regulating the production of evidence are part of the law of evidence as are also the rules of exclusion and immunity from disclosure: the privilege by the exercise of which a party is exempted from disclosing communications made to a legal adviser by or on behalf of his client is an example of one of the latter.

And so on. In the result it is held to be invalid.

McHUGH J: Mr Bennett, is there not a further problem in this particular case which distinguishes cases like Circosta and Taylor? They are cases dealing with rules which seek to deal with evidence in the main action. Order 24 rule 1(8) is incidental to the holding of a conference and even if you were to succeed in having subrule (8) declared invalid, might it not be the case that public interest privilege would apply to these conferences in any event, having regard to the purpose of the conference, so that the proceedings in the conference would not be admissible?

MR BENNETT: Your Honour, we would embrace that.

TOOHEY J: You would not have any trouble with that, would you, because it is the end result that you are seeking to have admitted in evidence, the making of the agreement, not what was said in the course of leading to the agreement.

MR BENNETT: I have no trouble with that. I have no trouble with demonstrating, as I will demonstrate, that if one applies the public interest test, as the common law did to the exceptions to without prejudice rule, this is clearly within an exception because there is a greater public interest in the use of it than there is in the prohibition of the use of it, on the facts of this case.

TOOHEY J: But Justice McHugh's comment to you does raise another question, I think; namely, that it would be very difficult to read this rule down because you would have to read it down in a way that really would quite alter the purpose of the rule, I would think.

MR BENNETT: Your Honour, in a very real sense I am not concerned with that. I submit that the rule is certainly invalid in its operation in this case. Whether that brings down the rule or brings down the rule pro tanto is a matter of indifference to my client. In a sense, there is no contender before the Court for that distinction, because on this case it makes not difference to either party if the rule is brought down in its entirety or pro tanto. So there is no proper contra dicta on that issue. I suppose there is nothing that can be done about that.

GUMMOW J: The Solicitor-General seems to suggest in the written submissions that the answer to these problems is dispensation under Order 4 rule 1. What would you say to that?

MR BENNETT: We asked for it, your Honour, and the trial judge said it was not necessary because the rule was invalid. Then the Full Court said that the rule was valid and sent it back. That remains, in a sense, but - - -

GUMMOW J: We have got to construe it regardless of the problems of your client who gets in by special leave to raise these questions of public importance. How does one construct the interrelation?

MR BENNETT: Your Honour, the fact that it can be dispensed with as a discretionary matter would nor preclude it from being a rule of substance having substantive effect and having the effects which we say are not permitted. There also may be a question as to whether the general power of dispensation applies to this rule.

GUMMOW J: That is what I was wondering.

MR BENNETT: Because the power of dispensation, of course, which is in Order 4, rule 1 simply says:

The court or a registrar may dispense with compliance with any of the requirements of these Rules -

It is rather addressing itself to compliance with a rule in a procedural sense. Would one have, for example, a substantive application to the Family Court dispensing with compliance with this rule before the Supreme Court of a State? One can well imagine real difficulties in applying the dispensing power to this rule.

GUMMOW J: Yes, thank you.

MR BENNETT: No doubt I would face those if I went back to a trial to renew that application. The third case in this series is - - -

TOOHEY J: Could I just interrupt you for a moment, Mr Bennett? There have been one or two occasions in which you have read something which has not entirely accorded with the print that I am looking at. For instance, you said Order 4, rule 1, "The court or the registrar".

MR BENNETT: That is what my copy says, your Honour.

TOOHEY J: Yes, well I am wondering what is the print that you have? Consolidated to when?

MR BENNETT: Yes, mine incorporates amendments made in early January of this year, your Honours.

TOOHEY J: But amendments made to 1 February, 1995 print or is it a new reprint of the Act?

MR BENNETT: Your Honour, mine is a loose leaf service. I see that the page in question on mine is December 1995 so my page 5,601 which has Order 4, rule 1 is December 1995.

KIRBY J: The members of the Court have the CCA print.

TOOHEY J: Yes, there have been some amendments made to the print which the Court presently has before it which the members of the Court have.

MR BENNETT: Your Honour is ahead of me in relation to that then.

TOOHEY J: Well, no, we are behind you really.

MR BENNETT: I am sorry.

TOOHEY J: You are ahead of us.

MR BENNETT: Well, my learned friend's copy which is as at June 1993 says, "The court". My friend's copy on which that page was produced on June 1993 but as to which the whole has been amended up to February 1995, so it is correct to then, says "The court".

GUMMOW J: That is what we have.

MR BENNETT: Yes. Well, mine which is up to December 1995, says "The court or a registrar".

TOOHEY J: Well, then we may need to have regard to some amendments that have been made since February 1995.

MR BENNETT: I am not aware of any others that are relevant to this case, your Honour, and that one probably is.

TOOHEY J: Not because they are critical but just so that we correctly reproduce the sections.

KIRBY J: Which version should we work on, "The court", that being the version at the time the proceedings were in the Family Court, or "The court or the registrar"?

MR BENNETT: "The court", your Honour, the version at the time.

KIRBY J: Very well, that is the one we have and that is what we will work on.

MR BENNETT: Yes. The other case - and I can deal with this very briefly - is a case in which I have provided your Honours with the lexis printout: Republic Gear Company v Borg-Warner Corporation [1967] USCA2 153; 381 F 2d 551, a decision of the Court of Appeals for the Second Circuit, a case decided in 1967. The problem of course arises in the United States because of the Erie Railway v Tompkins doctrine which says that federal courts apply federal procedure but State substantive law. The problem then is what happens if - and of course the States in the United States have taken the view that they have different common laws. The question then arises: are rules of privilege in a State substantive or procedural?

On the fourth page in the print I have provided to your Honours, at point 2 he said:

Rules of privilege are not mere "housekeeping" rules which are "rationally capable of classification as either" substantive or procedural for purposes of applying the doctrine of Erie R Co v Tompkins. Such rules "affect people's conduct at the stage of primary private activity and should therefore be classified as substantive or quasi-substantive." Prospective application of a federal rule denying a privilege is certainly the sort of disuniformity which might well influence the choice of a forum. Furthermore, it would permit the fortuitous eventuality of the choice of forum to determine the legal consequences of such primary private conduct undertaken in reliance upon a state-created privilege.....

Our view that state rules on privilege are substantive for Erie purposes is not only supported by reason but also by the weight of authority.

There is a discussion of the issue in Professor Enid Campbell's book, Rules of Court. I have given your Honours the pages. At page 139 under the heading Witnesses' Privileges, she says:

In the United States there have been sharp divisions of opinion among both academic writers and the courts about whether the rules defining witness privileges are procedural or substantive.

Your Honours will note that it is put broadly: "defining witness privileges" rather than just "legal professional privilege".

The question of how such rules should be characterised has arisen not only in relation to the ambit of the power to make rules of practice and procedure but also in relation to the application of the Erie doctrine.....Some witness privileges, eg the privilege against self-incrimination, are constitutionally entrenched; and some are statutory. Many federal courts in the United States have taken the view that even when they are not constitutionally entrenched, witness privileges are not mere matters of procedure. They are rather expressive of policies that the maintenance of the confidentiality of certain communications should take precedence over ascertainment of the truth.

Of course, that is this case. There is then a reference to Borg-Warner. On the following page:

How rules defining witnesses' privileges should be characterised - whether as rules of procedure or rules of substantive law - received a great deal of attention in the United States following the promulgation of the -

rules which made a number of changes.

In the end the Congress left little room for doubt about where it stood on the issue. Witness privileges were not something to be refashioned -

and I would ask your Honours to note the word "refashioned" which applies both ways -

by the makers of rules of court. The courts had a continuing role to play in the development of the common law as an incident of their truly judicial function. But they could not change the rules by legislative fiat.

Then she optimistically says:

English and Australian courts are likely to take the same view.

I so submit.

McHUGH J: I must say, Mr Bennett, it is not very satisfactory being handed lexis copies when United States judgments are in the Federal Reporter series.

MR BENNETT: Yes, I apologise for that, your Honour; I should have done it the other way. There was a reference to the problem by your Honour Justice Gaudron in Harris v Caladine [1991] HCA 9; 172 CLR 84 itself. I will be referring to it on each aspect of this case. At page 153 your Honour anticipated the problem in this case. In the middle of that page your Honour, who was a member of the majority, said:

It was not suggested that the appellant was precluded from litigating the question whether the terms of the order were agreed by the parties. Rather, it was said that a document which the parties signed came into existence in the course of or as a result of something said during a registrar's conference convened under order 24, rule 1 and that, by order 24, rule 1(8) evidence could not be given of what was said at that conference. No argument was put as to the proper construction or validity of order 24, rule 1(8). It was merely asserted that the effect of order 24, rule 1(8) was to preclude a consideration of the question whether the terms of the order were agreed by the parties. That is not so. At most, the provisions limit the evidence admissible on that issue. That being so and whatever the effect of order 24, rule 1(8), the question raised is not one touching the validity of order 36A, rule 2.

Which was the delegation to the registrar.

Rather, it is a question of the power of the Family Court to make a Rule of Court purporting to render inadmissible what would otherwise be admissible evidence in a proceeding properly instituted under the Act. That question was not raised in the Family Court nor in the notice of appeal. It is not appropriate for that question to be further explored -

We would submit that that passage does give some support to the approach taken, although it does not decide the question, of course.

Now, may I turn to submission b and just put to your Honours in very general terms - I do not propose to spend a lot of time on this - the nature of the exceptions to the without prejudice rule. The without prejudice rule, of course, has exactly the same purpose as Order 24, rule 1(8). It is the purpose of facilitating communications between parties with a view to settling cases in such a way that their communications cannot be used against them if the settlement negotiations fail.

The classic situation is one should not be able to say to a party in the witness-box, for example, "The fact that you are willing to settle at such a low figure shows that you have no confidence in the truth of the evidence you're giving." That sort of matter can never be put to a witness, and that is the purpose of it, so that parties are free to negotiate without inhibition. That rule has developed quite a number of exceptions. Rush v Tompkins [1988] UKHL 7; (1989) AC 1280 is a case I should refer to just for the purpose of showing your Honours a judicial exposition of that purpose. It is a decision of the House of Lords and there is just a short passage at page 1300 where the purpose of the rule is expounded by Lord Griffiths, and at B on that page His Lordship says:

Nearly all the cases in which the scope of the "without prejudice" rule has been considered concern the admissibility of evidence at trial -

It is in the additional bundle I have given your Honours, on page 1300 B:

In such circumstances no question of discovery arises because the parties are well aware of what passed between them in the negotiations. These cases show that the rule is not absolute and resort may be had to the "without prejudice" material for a variety of reasons when the justice of the case requires it. It is unnecessary to make any deep examinations of these authorities to resolve the present appeal but they all illustrate the underlying purpose of the rule which is to protect a litigant from being embarrassed by any admission made purely in an attempt to achieve a settlement.

So, if one takes a purposive approach, clearly one would be able to use it in this sort of case:

Thus the "without prejudice" material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement, which is the point.....Wilsher.....Tomlin.

There is an act of bankruptcy example where there was a letter sent out to creditors saying, "I'm suspending payments of my debts," and the letter was headed "without prejudice", and it was held that did not prevent the letter being an act of bankruptcy.

Then Kitcat v Sharp is a case where there was a without prejudice communication threatening to publish defamatory statements about the other party unless the proceedings were withdrawn. That was a contempt of court although it was without prejudice. Cutts v Head is a case where it is looked at concerning costs. That is an exemption within it. There is even an exemption in an earlier case where a without prejudice document was able to be looked at for the purpose of showing the handwriting of the person writing it as opposed to what he said. Again, one would have thought that is a fairly obvious exception to the without prejudice principle.

We have given other examples in paragraph b. Tomlin, of course, was use permitted to ascertain whether binding agreement was reached. Quad Consulting was used to demonstrate misleading and deceptive conduct in the course of negotiations leading to a concluded agreement which was under attack. That is an exception which goes much deeper than some of the others. That is a case that is without prejudice discussion, a settlement is reached and then one party wants to say, "You obtained this agreement by misleading and deceptive conduct because of what you said in without prejudice correspondence," and it was held it could be looked at for that purpose. That is Quad Consulting.

Tenstat is a case where there was an exercise of option without prejudice and it was held to be a valid exercise of option and we submit, although we have not found a case directly in point, that clearly for the purpose of rectification one can look at without prejudice correspondence, even where there is no concluded agreement, and may I just give this example to your Honours. Suppose there is a course of without prejudice correspondence in which one party offers to settle for 100,000, the other says it will take 120,000 and the first goes up to 105 and the second comes down to 115, perhaps they even get to 109 and 111 and then negotiations break down - that is all without prejudice - and a week later in an open letter one party says, "We are now prepared to settle for 10," obviously meaning 110, and the other writes back saying, "I accept the offer." So the contract is open, not without prejudice.

The party seeking rectification says, "I can prove my mistake easily enough. I go in the box and say when I wrote 10 I meant 110 and it was a typographical error." But the party has to prove more. The party has to prove that the other party either was under the same mistake or knew of the mistake or to have known of it under Taylor and Johnston. In order to demonstrate that one has to go to the without prejudice correspondence and say, "Well, these negotiations were at 109 and 111, obviously when you said 10 you meant 110," but unless you could use that correspondence that is not apparent and, in my respectful submission, there is no doubt that one could look at without prejudice correspondence for that purpose, even though there was no concluded agreement. Of course in a case where it reaches a concluded agreement it is a fortiori.

The case on that is Lewis v Combell Constructions (1989) 18 NSWLR 528. That is the nearest we have been able to find and that is a case where there were negotiations very much of the type I have described between two solicitors. Your Honours can see the course of those negotiations and the figures at paragraph B, C and D on page 530 - I will not take your Honours to it - and then the mistake was at B on 531 where a document being a formal offer of compromise in the court was completed and, as your Honours see at B on that page, the solicitor:

intended to complete these with the figure of $227,000 but, by mistake, entered the figure as $127,000.

And the negotiations were leading towards 110,000 and the finding of fact was, at page 534 just above G, that although the court did not go so far as to find the other solicitor knew of the mistake, because he swore he did not, the court said:

I do think a reasonable solicitor in the same position, with knowledge of all the same facts, would have thought it was likely to have been a mistake.

That finding was held sufficient to justify ignoring the document and, in effect, correcting it. The point of that was, of course, although the matter is not discussed, all those communications must have been without prejudice and it was clearly accepted by the court that they could be looked at for the purpose of seeing that there was a mistake and that was a case, of course, where there was no concluded agreement. So the submission is that under the general law one can do that.

Now here, the case is very much in that area. One has an Order 24 conference at which, after discussion, the parties agree that the wife will get 60 per cent of the assets and the husband will get 40 per cent of the assets. Fortunately, Order 24 does not prevent me stating that and impose some penalty on me.

That is agreed at the Order 24 conference. The solicitors then go away to write letters to each other about the formalising of this, and in relation to one property my client's solicitor gets it wrong. It is a property where there was some complexity because the husband had a two-third interest and it was subject to a mortgage, and it was a property he was to retain. Instead of saying, as one would expect consistently with those terms, that 60 per cent of the value of that property would be paid by him to her in accordance with the general division, in working it all out, it said that 40 per cent of it would be paid by her to him, although he was retaining it. It does not take much imagination to see why we say that is fairly obviously a mistake and how it is an understandable mistake, but there was correspondence about it and it was missed over a string of correspondence. What the trial judge found was that it was quite clear what the agreement was from the Order 24 conference; one could look at it for that purpose, and once one did that, it was absolutely clear there was a mistake in the correspondence in the final written agreement which could be simply rectified through the mechanism of section 79A which I will take your Honours to in a moment.

We submit that is a classic example of an area where use of without prejudice or confidential or other communications, would it, under the general law, be permissible? To exclude it, is to exclude, in a case like this, the substantive ability of the court to do justice between the parties and rectify the agreement. In our respectful submission, that is a case where a rule of court cannot take away that substantive right of rectification from the party.

That brings me to the submission a on the first page, which ties it in to the power in the Act. If your Honours would look at section 79A of the Act, your Honours will see:

Where, on application by a person affected by an order made by a court under section 79 -

that is property settlement -

in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that:

(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance -

The words, "or any other circumstance" have not to be construed ejusdem generis, and no one seems to suggest they should be.

In Harris v Caladine four of your Honours - I have given the page references in my submissions, I will not read them to your Honours - took the view that that section clearly permitted one to correct a miscarriage of justice by reason of mistake. We would submit that that is clearly correct. So, if one has a situation where the agreement has been entered into and approved by the registrar, in circumstances of where it would have been challengeable for mistake or would have been capable of rectification under rules analogous to Taylor and Johnston, the court may do so under that provision. We simply remind your Honours of the old case which laid down the general rule, Huddersfield Banking v Henry Lister (1895) 2 Ch 273, which is in the small bundle of documents, and that laid down a rule which has been applied many times since, that where you have a consent order, it can be impeached on any ground on which the agreement underlying it could have been impeached. I will just show your Honours the passages; they are very short.

At page 280, Lord Justice Lindley, at the end of the first paragraph of his judgment said, at the middle of the page:

nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expresses in a more formal way than usual.

Lord Justice Lopes, at page 283, point 6, just below the reference to the two cases, said:

The law seems to be that a consent order may be set aside for the same reasons as those on which an agreement may be set aside. It appears to me that when once a common mistake is established you can set aside an agreement.

And Lord Justice Kay, at page 284, in the second paragraph beginning:

Now, what is this consent order? After all, it is only the order of the Court carrying out an agreement between the parties. Supposing the order out of the way and the agreement only to exist, there can be no sort of doubt that the agreement could be set aside, not merely for fraud, but in case it was based upon a mistake of material fact which was common to all parties to it. Then, if it could be set aside on that ground, why should the Court be unable to set it aside simply because an order has been founded upon it?

So the common law rule is, a consent order, even after it is passed and entered, can be impeached on the same basis as the agreements underlying it could be impeached. And submission (a) is that once the Act authorises that in a substantive provision, how can a rule of court effectively prevent you doing it by depriving you of the ability to rely on the only evidence which is going to enable you to do it - which will be the situation in rectification cases of the type which occurred in Lewis v Combell Constructions, or this case. So, to that extent, the rule is inconsistent with the statute.

The final way we attack it, and this is paragraph d. on page 2, is a slightly more indirect way, and this is the constitutional way of putting it. And that is that in Harris v Caladine, the Court layed down that if registrars are to have delegated powers, it is essential that the courts retain control. And the court normally retains control by an appeal mechanism and in that case there was an appeal mechanism, as there is today, which gives a right to a hearing de novo and that the Court held was sufficient.

The problem here is, when the registrar approves the consent order negotiated at the Order 24 conference and makes the orders on it, if one is to have an effective appeal against that by showing that the underlying agreement was mistaken, one needs to be able to refer what happened at the Order 24 conference and therefore one effectively has no right of appeal against the registrar's order, if this rule is given its full effect. Certainly one has a hearing de novo but it is a hearing de novo at which one cannot call the only evidence which will show that the registrar's orders should be set aside.

So, for that fourth reason, we submit that the rule goes too far and for those reasons we submit the rule is either invalid or at least should be read down to the extent to make it valid, and that involves at least recognising the exception in relation to situations analogous to rectification where one needs to see whether the agreement was come to under a mistake.

The second submission will not take much longer to deal with than my outline of it in opening. It is simply that clearly if the time for appeal was one minute the rule would be invalid. It would contravene Harris v Caladine. There is no doubt of that. Clearly if it were 14, 21, 28 days one would not be able to complain. The question is, is seven days just unreasonably short, bearing in mind that a party needs to - - -

GAUDRON J: How does it arise really in this case? I mean, it would not matter whether it was seven days, seven weeks or seven months. It would still be caught by your exclusionary evidence rule.

MR BENNETT: Your Honour, we were outside the seven days. There was an argument as to whether the trial judge had impliedly extended time by what he did. The Full Court seems to have taken the view that he did not and, therefore, that would be, on the decision of the Full Court, another reason why we would fail. We submit that the rule is simply far too short a time, bearing in mind the need to have mature consideration of an appeal.

When one looks at what one needs to do before one appeals, one needs to consider the decision of the registrar, one needs to ascertain that there is a reason for challenging it, one needs to obtain instructions, one needs to take advice on whether it is appropriate, one needs to prepare documents and one needs to file and serve them. As a matter of practical reality obviously it can be done in seven days. It probably can be done in one day but we would submit, bearing in mind the importance attached in Harris v Caladine to having control over exercise of powers by registrars, we would submit it is an unreasonably short time limit which has the effect, in many cases, of entrenching registrars' powers in a manner which should not exist. That is the argument, your Honour, it is as short as that. It is a matter, in a sense, of impression. For those reasons, it is our respectful submission - - -

KIRBY J: What is the relevance then of the dispensing power? Does that not save the validity?

MR BENNETT: Your Honour, a dispensing power can be exercised liberally or it can be exercised very restrictively. There is no appeal under House v The Queen, or very limited appeal, from a decision in relation to a dispensing power. If a rule undispensed would be ultra vires or unconstitutional, it is not saved by a discretionary dispensing power which may not be exercised and as to which it may be almost impossible to challenge it.

There is one very minor matter arising out of the notice of appeal and that is that the judgment on costs was delivered after the appeal was commenced and accordingly we need to seek leave to amend to add a challenge to the finding on costs. I do not, of course, challenge the finding on costs independently of the appeal in the case, but if my appeal is successful we would, of course, want to challenge the order for costs as well and because the order for costs was made after the date of the notice of appeal, I need leave to amend to do that. So, I formally seek leave to amend the notice of appeal by adding a challenge to the order for costs. That appears - it has been written in handwriting - on page 251 in the appeal book. I am not quite sure how it got written in handwriting there but the amendment I need to make is really to add those words.

KIRBY J: You had a purported cross-appeal before the primary judge but it really appears to have been more in the nature of a notice of contention, or what one would call in another place a notice of contention. Is there no procedure for notices of contention in the Family Court? What should we do in relation to the cross-appeal?

MR BENNETT: Your Honour, it does not arise if I am successful. The Full Court ordered that the matter go back to the trial judge for a number of matters, that there be in effect a rehearing. If I am successful, we would submit one would simply set that aside and dismiss the appeal to the Full Court. The notice of contention just would not arise. This point about costs simply arises because the Family Court delivered a second judgment.

KIRBY J: I understand the costs point.

MR BENNETT: I seek leave also to amend order 4 sought on page 252 to include an order for costs in the Full Court. That would simply bring the appeal into the usual situation which could not be followed because of the dates on which the judgments were delivered.

TOOHEY J: Does that mean that the matter of costs was dealt with by the Full Court just on the general way in which costs of an appeal might be dealt with without the restrictive provisions of the Family Law Act 1959 in relation to costs?

MR BENNETT: Yes, your Honour. They were argued but, notwithstanding that, my client, the wife, was ordered to pay the costs in the Full Court of the Full Court and the trial.

TOOHEY J: Thank you.

MR BENNETT: But of course, if that order were set aside, nothing further would arise out of that. But we would seek the order for costs in the Full Court. May it please the Court.

BRENNAN CJ: Mr Broun.

MR BROUN: I have handed to your Honours' staff an outline of our contentions and some additional pages which in effect are my notes of what I wanted to say to your Honours which, having in a typewritten form, may save your Honours from note taking and indeed may enable me to go through some of the material much more quickly.

BRENNAN CJ: Mr Broun, I take it there is no objection to the application by Mr Bennett to amend the notice of appeal?

MR BROUN: No, your Honours, we have nothing to say about that. Perhaps if your Honours at this stage looked only at the first page and a bit and then I could take your Honours through the rest. Your Honours, the first point I would like to emphasise is that we adopt and rely on the reasons of the Full Court of the Family Court and, indeed, very closely reasoned and considered matters. Most of the points that I am going to put to your Honours occur in one form or another in the joint reasons of the Full Court of the Family Court.

First of all, your Honours, I would like to refer to the history of the provisions which I deal with on page 3. This rule, in almost exactly the same words, has been there now for 35 years and has been a regular part of family law practice and procedure throughout that time.

It began under the Matrimonial Causes Act which came into operation on 1 February 1961. In the rules made pursuant to that legislation it was rule 167 and that was pursuant to section 127 of the Matrimonial Causes Act which gave the Governor-General the power to:

make rules, not inconsistent with this Act, for or in relation to the practice and procedure of the courts having jurisdiction under this Act, or any of them -

of course, that provision, in section 127, is much narrower than the present one in the Family Law Act under section 123. Section 127 of the 1959 Act was, as have all of the subsequent ones, being made subject to sections 48, 49 and 50 of the Acts Interpretation Act, which means, in effect, that the regulations had to be laid before Parliament for approval. Any resolution by either House of Parliament could have disallowed them. So they in effect received the sanction of Parliament in that neither House saw fit to move to disallow them and that has happened with all of the subsequent rules.

BRENNAN CJ: Do we need to go through all these rule-making powers and the exercise of them?

MR BROUN: Your Honours, they are there. I have set them out. My submission in substance I can leave your Honours with them in writing because I do not really want to add very much to that, but the substance of it is that this is a rule that has been there for a long time and which has had in effect the implied adoption of Parliament three times in three different forms but the basic operative words of excluding evidence being there - - -

DAWSON J: By not being disallowed. Adoption of Parliament how, Mr Broun?

MR BROUN: By not being disallowed. The implied approval, if we might put it that way.

DAWSON J: That does not amount to very much, does it?

TOOHEY J: It might be more to the point to know whether the rule has ever been challenged before or its predecessors.

MR BROUN: No, your Honours, it has not. As far as I am able to establish none of the previous rules have ever been challenged in the 35 years that it has been there and the 35 years that it has been employed. But the last one that I would really like to place some emphasis on is the present rules which came in in 1983 or at least consequent upon the amendments made in 1983 which came into effect in January 1985. Now, the 1983 legislation was important because it also put in section 79(9) to the Act itself. Section 79(9) of the Family Law Act inserted by those amendments in 1983 and which came into effect in the beginning of 1985 says, if I may take your Honours to section 79(9) of the Act:

The Family Court, or a Family Court of a State, shall not make an order under this section in proceedings with respect to the property of the parties to a marriage or either of them (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless -

(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State - - -

TOOHEY J: Mr Broun, I am sorry to interrupt you, but I am just having a bit of trouble picking up that section 79(b) in the 1983 amendment.

MR BROUN: Your Honours, I have got it set out on page 6 of my typed script and I thought I had put in a reference to which section of the 1983 Act put it in, but your Honours can pick it up of course in any edition of the Family Law Act since then because the amendments that have been made - no amendment has been made - - -

McHUGH J: It is by section 36 of the Family Law - - -

TOOHEY J: Yes, I have it now.

MR BROUN: Thank you, your Honour. I am obliged, your Honour.

BRENNAN CJ: This shows that you have to have a conference before the order is made.

MR BROUN: That is so.

BRENNAN CJ: What do you make from that?

MR BROUN: Your Honours, I make this, that Parliament thought there should be a conference held before an order is made as a condition in effect of the court proceeding to determine the matter, one would have thought, a procedural step, just as one may say one cannot have an order made in one's favour or relief granted unless particulars are filed or there is a statement of claim.

BRENNAN CJ: What does it lead to?

MR BROUN: It leads to this question, your Honours, what did Parliament think it was talking about as a conference? Answer: the one that had, at that stage, been in operation on a daily basis for 22 years and there had been a well-established practice, never challenged, in operation in exactly these terms up to that stage - - -

DAWSON J: Now, Mr Broun, do you seek to support the whole of the rule?

MR BROUN: Yes, your Honour.

DAWSON J: Even that part which attempts to govern the evidence which is admissible in another court?

MR BROUN: No, your Honour, I do not seek to uphold that.

DAWSON J: Well then, that must be invalid.

MR BROUN: Well, your Honours, the Full Court said that they had doubts about whether that could be valid and expressly did not decide that.

DAWSON J: Surely the Family Court cannot legislate to provide what evidence is admissible in another court?

MR BROUN: Well, your Honour, there is an argument but I would prefer not to go into in this matter because it does not arise.

DAWSON J: Well, if you do not seek to support the whole of the rule, and some of must be invalid, then that affects the argument you are now putting.

MR BROUN: Your Honour, it does, I suppose. Yes, it does, but I would submit that that aspect is not something that really arises in this matter.

DAWSON J: It does mean that this escaped the attention of Parliament and everyone else until now. That is what it does mean.

MR BROUN: Your Honour, perhaps if I shortly state what would seem to be the argument defending that aspect, namely that this is something that the Family Court - I come to this argument later on in my submissions in a different context in reference to this. First of all, your Honours, of course, section 123 makes this rule subject to sections of the Acts Interpretation Act and expressly the laying before Parliament again, and so on, but section 46 of the Acts Interpretation Act does say that you read it down and otherwise it still remains valid if it exceeds the power - - -

GUMMOW J: Is that right? Is the Family Court an authority within the meaning of section 46? It is an odd way of describing a court.

MR BROUN: Well, it says:

Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations and by-laws) -

I would submit that - - -

GUMMOW J: Now, section 123(2) of the Family Court Act picks up some provisions of the Acts Interpretation Act but not, I think, section 46.

MR BROUN: Well, section 46 applies to an Act, any Act presumably, which confers upon any authority power to make or issue any instrument including rules, regulations and by-laws, so one would have - I am just checking whether there is a definition of an authority, but I do not think there is.

GUMMOW J: I do not think there is. There is in some other sections, for example I think in section 34AB there is an internal definition of "authority" but there does not seem to be any general definition of "authority".

MR BROUN: Yes:

Where an Act confers power on any person in the section called an authority -

Well, presumably, your Honour, "authority" is, one would have thought, a word of the most general application. It might include a water board or an environmental control authority as well as a - - -

GUMMOW J: Yes, but this is a body exercising judicial power of the Commonwealth and legislative intrusion into rule making is a very special and perhaps limited element of exception to exclusive power in courts to make their rules and that is discussed in Davidson's Case, I think. So one has to be fairly careful before one just say, "Oh, `authority' means a federal court, just like Telecom".

MR BROUN: Well, your Honour's, section 46, I would submit, is broad enough to cover this. If an authority lower down the chain is an authority, why would not the body of judges be an authority but, of course, in real terms, your Honours, this is not a - - -

GUMMOW J: But would there be any relevant general law principle that would apply? I tried to extract one from Mr Bennett but I failed.

MR BROUN: I would not specifically be aware of - I do not readily bring any such principle to mind, your Honour. Though, if I think about it, one might bubble up. Your Honours, the main point though, perhaps as to why we would submit that even part of this rule is valid, is that this whole rule is not about privilege. It is distinctly about court procedures and nowadays, particularly since this was introduced 35 years ago, it has become a regular part of virtually all court procedures. I think this Court may be the only exception now, that as a compulsory step, or if not compulsory, a step which is very strongly required in the procedure of the court, one of the steps that must be taken between the issue of initiating process and the delivery of judgment - - -

GUMMOW J: Yes, but the question, Mr Broun, is does that exclude the centuries old equity jurisdiction to rectify instruments that are the products of agreements that have been inaccurately reproduced into writing? That is the question.

MR BROUN: Your Honour, yes - - -

GUMMOW J: That is a very old and very substantive body of doctrine which protects people's rights, in a most substantive sense.

MR BROUN: Your Honour, that is certainly a point that I do wish to address - - -

GUMMOW J: And it is illustrated by the facts in this case, if I may say so.

MR BROUN: Yes, yes, indeed - - -

GUMMOW J: In a striking fashion.

MR BROUN: That is a point I do wish to address, but could I just deal with this one first and may I come back to your Honour's point, and it is something I sought to address in these submissions - and I will seek to address in the submissions in some detail. But if one begins with the position that there are procedural steps required by courts, and in the submissions, for example, I refer to the fact that the Supreme Court of New South Wales now has a provision in identical terms, with less exceptions. But that is in the legislation, not in the rules. There is a difference there and I quote that in the submissions. But - - -

BRENNAN CJ: What is the significance of this proposition, Mr Broun?

MR BROUN: Your Honour, can I get it out. The significance is that a mediation conference, with a court officer, is now a well established procedural step, recognised in virtually every court. It is not negotiation between parties. It is not an inter partes event. It is not a matter to which common law rules, or statutory rules about privilege apply. It is not a matter of privilege at all. It cannot be waived by the parties, as the ordinary rules of privilege is; it is a procedural step involving the court, and the parties, and it has a purpose of directing the parties' attention to the desirability of negotiation of mediation and frequently it does not even involve direct communication between the parties. These conferences are frequently held in a way where the registrar talks to each side separately, particularly - in fact it is a rule of practice that it must happen in that way if there are allegations of violence between the parties.

TOOHEY J: But no one would argue with all of that, I would imagine, Mr Broun, but in the end do you not have to face up to your own proposition, which is that where one party to the conference wishes to show, for the purposes of setting aside an agreement apparently entered into, that that agreement is contrary to what in fact the parties orally agreed, that the rule operates to preclude the admissibility of any evidence bearing on that matter.

MR BROUN: Your Honour, it does.

TOOHEY J: Yes, I know you said it does, but that is really the crux of it, is it not?

MR BROUN: Yes, but, your Honour we say it does for - - -

GUMMOW J: How is that simply a matter of procedure?

MR BROUN: Because, your Honour, it is nothing to do with negotiations between parties and is not a step which can be said ever properly or finally to lead to agreement. Now, may I explain that. The Order 24 conference, as they are usually referred to, is conducted orally. It is not the subject of considered letters between solicitors. It is husband, wife, registrar. That is the form of it. Sometimes lawyers are present, sometimes not. Most frequently the lawyers are not present for most of the time, or for most of the conference. The conference is always conducted on the basis of those oral discussions. It is always subject to the subsequent advice the parties may receive. Frequently it happens. I had one, in fact, the week before last, that one emerges from the conference believing an agreement is reached. Fifteen minutes later, or the next day, it is quite clear no agreement was reached, but it is always subject to two things.

First of all, the writing out of a document which everybody agrees represents what they have agreed upon, and in this particular instant case there were seven of them over a period of a year, seven different drafts, over a period of 12 months. It is also subject to a court making an order and as your Honours have held in Harris v Caladine, the making of an order is not a rubber stamp. It is not the mere recording of the agreement of the parties as in some of the cases to which my learned friend has referred.

GUMMOW J: Can I just ask you, what is the particular section that confers the power to make the order?

MR BROUN: Section 79.

GUMMOW J: Yes.

MR BROUN: And section 79(2) upon which your Honour placed some - - -

GUMMOW J: It talks about "satisfied that in all the circumstances, it is just and equitable"?

MR BROUN: Yes.

GUMMOW J: How can it be, in all the circumstances, just and equitable to mandate an agreement, an instrument that does not truly reflect the consensus of parties? And to shut the court out from deciding that by this order of the court, how on earth can that order facilitate the procedures of the court under section 79(2) when it, in fact, frustrates them?

MR BROUN: Your Honour is looking at after the order is made. May I look at the question before the order is made. The point I am seeking to make here is that the hardship or wrong or inconvenience produced by excluding that evidence is minor in comparison to the extraordinary disaster of permitting the evidence in. May I first explain why I say that the disaster of permitting - the inconvenience or disadvantages of permitting the evidence to be given are slight. There is, first of all, that there is always a document to be drafted.

BRENNAN CJ: Where does that come from?

MR BROUN: Because one has to give to the court a document and say, "Please make these orders." If fact, I think it is - it never happens, in fact, that the court - in fact, the court's practice requires a document to be submitted as a consent order.

GUMMOW J: Yes, but is there any legislative requirement for the production of a written instrument?

MR BROUN: There is not, your Honour. That is a matter of the practice of the court and it makes sense if one is agreeing to something and asking the court to make an order which will commonly be a number of pages of details. It is automatic that one is going to write that out and have the lawyers on both sides check it and agree upon it and the parties sign it.

DAWSON J: But what you are asking for is an order by consent under section 79, is that right?

MR BROUN: That is so, your Honour, but, still, as this Court has said in Harris v Caladine the fact that it has consented to does not remove the obligation from the judge or the registrar who makes that consent order to consider whether it is just and equitable and to review whether the order should be made.

DAWSON J: I recall that, but consideration would be pretty cursory if it were by consent, would it not?

MR BROUN: No, your Honour. This Court has indicated the sort of things that would be involved, but in this very case, for example, the deputy registrar who made the order, who was a different deputy registrar from the one who conducted the conference a year before, actually made a requisition for further information and further documentation. They are, the court officer reads the content of the court file - perhaps in a fairly quick way if it is very large - to see what the case is about; what the relevant financial positions of the parties are; and indeed, if there are no court documents and there is a consent order to be made, the court rules require a statement to be filed with the consent order, setting up, broadly, the financial position of the parties and what the case is about.

TOOHEY J: Except you have to face up to section 79A, do you not? Under ordinary circumstances if there had been a mistake on the part of one party, section 79A could be invoked in order to rectify that mistake. Or, if there had been fraud, duress, suppression of evidence; but you rely upon a rule which, in order to shut out from the court entertaining an application under section 79A, the very evidence which might be necessary to establish that there has been a miscarriage of justice.

MR BROUN: Certainly our submission is, and before the Full Court our submission was, and the Full Court did not have to deal with it, that in this particular case, that could not possibly arise because of a number of other factors. That was our other grounds of appeal. The Full Court was able to decide it simply on this first ground, that the judge had wrongly admitted that evidence, and that had coloured, in effect, the consideration of everything else, and therefore they said, "The proper thing to do is to send it back for a rehearing so that the matter may be considered".

TOOHEY J: Is that not implicit, if not explicit, in your argument, that the power of the court under section 79A is circumscribed by the rule in question, so that any evidence which might point to a miscarriage of justice is not admissible if it relates to what was said during the course of the conference?

MR BROUN: As a matter of evidence, yes, it is circumscribed in that respect. But, the power of the court under 79A(1) is very broad - they have to be satisfied of a miscarriage of justice - - -

TOOHEY J: It is not broad - I mean, it is cast in broad terms but you seek to qualify the court's power by saying, "Well, yes, true you can consider whether there has been a miscarriage of justice, but not by reference to anything that was said during the conference".

MR BROUN: That is so, yes. That is exactly what we submit.

TOOHEY J: That perhaps crystallises it.

MR BROUN: Yes. Your Honours, I was trying to develop the point that the step is a procedural one where there are parties, and the risk of any injustice happening thereafter by a consent order being made not being in accordance with what they discussed is protected against very significantly by the requirement that the court has information before it before making this consent order, to see that the order is just, and by the practical requirement that the document has to be prepared in writing, and, of course, the availability to each of the parties of advice in the drafting and formulating of the consent order.

BRENNAN CJ: Maybe there is advice available. It depends whether they are legally represented. The fact is that 79A contemplates that the consent order that has been made under section 79 may, in fact, achieve a miscarriage of justice. So that, one cannot be so sanguine as to think that anything that emerges after a conference and results in a consent order will not be a miscarriage of justice.

MR BROUN: Your Honour, I concede that.

BRENNAN CJ: That being so, what is the relevance of the fact that this is, as you say, procedural?

MR BROUN: Your Honour, what I was endeavouring to make clear is that the risk there is small. Think, on the other hand, of - - -

BRENNAN CJ: You say so, but what does that mean?

MR BROUN: It means small in comparison to the risks of permitting evidence to be given as to what happened in the conference. If one begins with the position of saying one can give evidence of what was agreed, one will presumably have to open up everything said in the conference over the course of - they usually run for about an hour or an hour and a half - by the registrar, each of the parties, the lawyers, different groups of people in the room at different times discussing the question.

It is going to be, first of all, extraordinarily difficult as a piece of evidence to sort out when it is all oral and there is not a single document about any of it unless one of the solicitors happens to have made any notes about what was said, and usually that is not done till the end of it anyway. There is then the fact that the court officer, the registrar, will be involved in giving the evidence and will become an important piece of the evidence in the proceedings. Indeed, in this very case after the trial judge had admitted evidence from the wife, an endeavour was sought to call the deputy registrar who had conducted the conference, but the deputy registrar in fact said, "Well, I have no recollection. I've destroyed my notes".

The next problem is that it would mean that the parties would be compelled to go to a conference where they did not have the protection of knowing that whatever they said was going to be excluded, which has been the basis that these conferences have always been conducted on so that the parties are totally free, because it would have to be explained to them the various exceptions as to when evidence might be given of things that they had said. It would greatly inhibit the conference and its effectiveness. Also the conference is not generally purposive to settle matters so much as to direct the parties' attention to the desirability of considering settlement. In fact, in a small percentage of cases, the parties there and then come to some outline agreement. More often there is a general move towards settlement which is carried into effect at a later point of time.

So that one has disadvantages on one hand, and there is certainly a disadvantage on the other. We concede that there is a disadvantage, but the question is a matter of policy: which is the bigger problem? Is not the fact that this rule has stood there for 35 years and has been progressively adopted by other courts some indication that this is the better policy?

KIRBY J: That argument would have greater force, I think, if it were a clash between a policy in the section and another policy in the section as in New South Wales, but here there is a section where the Parliament has indicated its will and then there is a rule which puts forward another policy which has, as you say, many strong things going for it, but it is made by a rule maker under power and is subject to what the Parliament has said shall be a facility available to parties to do justice. I do not think it is a clash between policies. It is a question of power because the rule maker cannot make a rule which will undermine the power which Parliament has given.

MR BROUN: Your Honours, emphasis is, correctly of course, to be placed on 79A(1) but we would also place emphasis on section 79(9) where the Parliament seems to have indicated a clearest intention that there should be a conference not defined or described in the section before an order can be made as a necessary, if you like, hurdle between the litigant and his judgment. If one asks, "What conference were Parliament talking about?", the answer seems to be very clear. It was the one that had been there for 22 years. So that there are in effect perhaps conflicting signals to be found in the legislation as to what Parliament intended. But the question is, in effect, what is the rule doing?

If it is a rule about evidence, it is like many rules of many courts about evidence, but we would say that it is really primarily a procedural step designed not only for the benefit of the parties but, of course, to help courts deal with the growing problem of the large amount of litigation courts have to get through, the limited funding and the limited judicial time available. It is in the courts' interests to move the parties towards settlement if they can. They are, in effect, not only represented by a registrar, they are one of the interested parties in the outcome of the proceeding.

GUMMOW J: Exactly. One wonders if that is an apt use of the judicial resources of the country.

MR BROUN: Your Honour, certainly it is believed to have had an impact in saving the judicial resources of the country by increasing the number of settlements which occur.

GUMMOW J: I am not talking about economics, Mr Broun. I am talking at a somewhat higher level.

MR BROUN: Your Honours, of course Parliaments tend to think economics a fairly high priority.

BRENNAN CJ: We understand your propositions that this was an historical situation which in practice you say has achieved more good than it has done harm.

MR BROUN: Your Honour, exactly.

BRENNAN CJ: Is there anything you wish to add to that?

MR BROUN: Yes, your Honours, that was in effect, if I might say, my first point which takes me up to about page 7 of my - it might go a little bit further. It goes further than page 7 I think, but could I refer your Honours perhaps to a number of points where the rules do do things about evidence in a way that rules of most courts do.

BRENNAN CJ: What is that going to help us to do? We are focused on a specific problem, Mr Broun, and one of the things that courts like to do is to save their own time.

MR BROUN: Yes, indeed, your Honour, as indeed I have exactly been saying about one of the purposes of these conferences. Your Honours, could I refer to Taylor v Guttilla, which Mr Bennett placed some stress on. One might well wonder about the soundness of the decision as a matter of policy but that is perhaps something we can leave to one side. The test they seem to have adopted was one of proportionality, whether the rule went beyond the rule-making power or whether it was in proportion for the purposes which the power was given by the legislation, but the important thing I would emphasise to your Honours about Taylor v Guttilla is that it did not overrule the previous decision of Cleland v Boynes where a rule in slightly different terms but nonetheless relating to medical reports in personal injuries matters had been upheld even though it was a rule clearly dealing with the question of disclosure of evidence.

Taylor v Guttila said, in effect, that the rule they were considering there just went too far and was not in proportion. Now, your Honours, that is sometimes referred to, colloquially, as the "good heavens" test; does a court look at the rule and say "Good heavens, this goes too far". I can see, your Honour Justice Gummow perhaps would take the view that this rule has already failed the "good heavens" test. But the question is proportionality, essentially, and we would submit that if one looks at the powers given by the legislation to make rules and the purposes of those, then one would have to say that this rule, in our submission, is well within proportion.

Now, your Honours, there is another rule in very similar terms which it is important to look at because it does similar things, in situations where perhaps your Honours may see similar problems. Could I take your Honours to the present rules of the Family Court - - -

KIRBY J: Just before you do that, could you help me. I think the Full Court mentioned this - has this Court adopted the principle of proportionality in this area?

MR BROUN: Well, your Honour, they seem to have accepted that that was the test - one of the tests that can be usefully applied, and it is also - - -

TOOHEY J: I think Tanner says something about it, Mr Broun.

MR BROUN: Yes, I was just about to refer to that, your Honours, which is in 166 CLR - - -

GUMMOW J: That was by concession in Tanner, was it not? There was no debate about it.

MR BROUN: Yes, I think that may be so. But could I take your Honours to Order 23 rule 5, which really goes further than Order 24 rule 1, and - - -

BRENNAN CJ: And so?

MR BROUN: Because, your Honours, if - perhaps I would put it this way - if one is considering as a useful test proportionality, I would invite your Honours to look at Order 23 which goes further and which your Honours may nonetheless be satisfied is in proportion to the purposes which the rules had been intended to achieve. It says that:

A judge, Judicial Registrar or Magistrate may interview in chambers or elsewhere a child who is the subject of proceedings under Part VII -

that is anything about guardianship, custody, welfare of children. Subrule (2):

The interview may be in the presence of a court counsellor, a welfare officer or another person specified by the Judge, Judicial Registrar or Magistrate.

5(3) Evidence of anything said at the interview shall not be admissible in any court.

It goes far further than the present one. Then 5(5):

A child (other than a child who is, or is seeking to become, a party to proceedings) shall not be called as a witness or remain in court unless the court otherwise orders.

A very clear rule excluding evidence. Rule 5(6):

Except with the prior leave of the court, a child (other than a child who is, or is seeking to become, a party to proceedings) shall not swear an affidavit for the purposes of proceedings.

Again, a very strong exclusionary rule. Now 5(3) in fact is in stronger, clearer and more absolute terms than the one we are adjudicating, yet it is made under the same - - -

DAWSON J: It may be even more invalid if there are degrees of invalidity.

MR BROUN: Well, your Honour, we would say, "Look at section 123, look at Order 23 rule 5 and can one say that Order 23 rule 5 is out of all proportion to what section 123 was directed to".

GUMMOW J: Now, proportionate to what? One gets to the words of section 123. How is one helped? The question has already been dealt with, has it not? Is it incidental to practice and procedure?

MR BROUN: Yes, but one looks at the general purposes for which the legislation is there, what the legislation requires.

GUMMOW J: No, one looks at section 123.

MR BROUN: Yes, your Honours, in 123 we have it expressed in what is now the common broad form found in legislation of this kind for many courts and bodies. It may make rules of court not inconsistent with the Act. That is the early one, so it gets stronger. But it goes on to - - -

GUMMOW J: Well, to some extent this is inconsistent with the Act. It may be, using the particular use of the word "inconsistent".

MR BROUN: Yes. That is the question your Honours have:

for and in relation to all matters and things incidental to any such practice and procedure or necessary or necessary or convenient to be prescribed for the conduct of any business in those courts.

GUMMOW J: That is what we have to think about. One does not get anywhere by just throwing the word "proportionate" over it.

MR BROUN: No, of course not, your Honours. It is a matter of is this rule reasonably within what the section invites or requires. We would suggest to your Honours if Order 24 rule 1 goes then Order 23 rule 5 has no hope.

BRENNAN CJ: Well, what is that? An in terrorem submission?

MR BROUN: No, your Honours, but to draw attention that the fact that the court must look at the purposes of the legislation, what objectives were being sought to achieve before coming to a conclusion, or in the process of coming to a conclusion.

DAWSON J: That cannot be right. That is not what we are looking at. It may be very desirable to have a provision such as this. It is a question of who has the power to provide so, whether it is Parliament or the court, that is all.

MR BROUN: Well, your Honours, is there - my question is rhetorical, is there a great difference between Parliament passing it and putting in the Act or Parliament saying to another responsible group - it used be the Governor-General with the advice of the judges. Now, it is the judges with the advice of - - -

DAWSON J: All the difference in the world, Mr Broun, and that is what is important in this case.

MR BROUN: Well, your Honours, when Parliament is given the opportunity, and this case three times, to consider it and any House could toss it out is the different great? One is a negative way, one is a positive way, but the matter is reviewed by Parliament by the provisions of the Acts Interpretation Act

BRENNAN CJ: The manner in which Parliament exercises its legislative power is well-established, Mr Broun.

MR BROUN: Yes, indeed, your Honours. Now, your Honours, Mr Bennett, of course, puts to your Honours that this exclusionary rule is substantive and drew attention to other sections in that regard, particularly suggested anybody could go to a newspaper about what was said, but if this is, indeed, as we would contend, procedural, and the procedure of the court, then section 121 of the Act prevents publication in the media of anything about it.

My friend also referred to section 70BC. That would clearly apply to anything that emerged in an Order 24 conference but since those conferences relate to financial matters it is relatively rare that any question relating to welfare of children crops up in them, though sometimes it does, but of the sort of thing that is referred to in section 70BC, namely, something done to the detriment of the child on which the law places an obligation on the court officer to disclose it, if, for example, some sexual molestation of a child were to be revealed in an Order 24 conference there is no doubt that section 70BC and other legislation of other Acts would require that court officer to make a disclosure of it.

Now, your Honours, there are a few other things I did want to say. The question of what "necessary and convenient" means in section 123: we would submit that that goes a step further than what used to be the phrase of words used in Commonwealth legislation and State legislation which was "necessary and expedient" and "necessary and expedient" was discussed by this Court, as to what it meant, in Shanahan v Scott [1957] HCA 4; 96 CLR 245 at page 250. It also then was picked up and discussed further in Philpott v Boon (1968) Tas SR 101.

Your Honours, at page 8 of my written summary I have referred your Honours to other sections of the Act, of course, which do similar things to this rule we are considering, excluding evidence. Section 62(5) is in almost exactly the same words and section 18 again, uses almost the same words. So, one can readily see that the words of the rules are copied from the words of the Act. On page 9 I deal with the point I think I have already made that the registrar's conference is essentially a three-way exchange. It is not a negotiation between parties.

The court becomes a significant party in the deliberations and I give your Honours an example there of one decided case where one of the judge's had a problem involving a slightly different matter of Marshall v Marshall where neither of the parties objected to what had occurred during the conference being offered and it was, in fact, the court counsellor who objected to any disclosure of the material. That is Marshall referred to on page 9. Then, on pages 10 and following, I think I have already dealt with those in answers to your Honours' questions referring particularly to the passages in Harris v Caladine where some of your Honours referred to the importance and significance of the fact that the consent order was not a rubber stamp, that the registrar still had to make an order and give consideration to the justice of the order which is an important protection and one of the matters which, we would submit, reduces the damage which the rule might be seen to do. It is, therefore, something quite different from the sort of circumstances dealt with in cases such as Huddersfield to which Mr Bennett referred.

In considering the matters at pages 10, 11, 12 and 13 of my notes, your Honours, of course, will notice the Full Court of the Family Court considered three cases where this very question of the admission of evidence of things that had happened in the Order 24 conference arose. So, it has previously arisen in Johnston, Borninkhof and Gray which are all discussed in the Full Court's judgment in detail beginning from appeal book 207, all dealing expressly with this rule. All three of those decisions in circumstances referred to by the Full Court upholding the rule and upholding the exclusionary effect of the rule. I would direct your Honour's attention to those three cases. Johnston was itself a Full Court decision of a State. Borninkhof and Gray were single judge decisions by judges of the Family Court.

Then on page 13, your Honours, I refer to the questions of what is a matter of practice and procedure which section 123 expressly authorises and particularly in a family law context referring to the well-known decision of the Full Court of the Supreme Court of Victoria in White v White, a judgment of Mr Justice Barry, which is quoted on page 13 and, your Honours, this Court has approved that in Hooper and the Full Court of the Supreme Court of New South Wales also adopted a similar view and expressed even perhaps a broader view of what was practice and procedure for the purposes of a rule-making power under the then Matrimonial Causes Act in Price v Price, to which again we would particularly direct your Honours' attention.

I have already referred to section 79(9). On page 14, drawing on the private international law area, I have referred your Honours there to a number of authorities and a number of discussions in the texts on what, for purposes of selecting the law of the forum or the law of the contract, deciding between those, where evidence is very much treated as a procedural matter to be governed by the law of the forum and those cases perhaps emphasise that evidentiary questions do have a big impact on procedural questions or they are very loosely related to procedural questions, if not within the detailed scope of a matter of practice and procedure.

Your Honours, at the second part of page 14 we have referred to the operation of that subrule (9) which permits certain costs orders to be made about Order 24 conferences. At page 15 I deal with the question of comparison with section 131 of the new Evidence Act and we would have to say that, with respect, we cannot agree with the submissions foreshadowed by the Solicitor-General that section 131 now governs the position because section 131 of the Evidence Act is very much a matter dealing with privilege, a privilege to exclude or a privilege to permit, and it is very much a matter for the parties.

If it was a matter of privilege to be understood in that way, then the question arises, whose privilege is it when you have a three-way conversation? It must, in our submission, also be the courts' privilege because they are parties to the discussion which may or may not lead to an agreement or may lead to partial agreement.

GUMMOW J: The court is a party to it?

MR BROUN: Yes, because the court provides the registrar and it is the registrar who does in these conferences most of the talking and who provides the advice, who makes the suggestion, who tells people they are being unrealistic or stupid or who encourages them one way or another. A way of putting that, your Honours, is essentially the court creates this conference, provides the essential party to give the conference any point, namely, the registrar, because your Honours should not for a moment assume that in the average family law matter this conference is the only negotiations that occur. Most commonly there are extensive negotiations before the proceedings are commenced and the negotiations carry on at all times through the proceedings.

The point of this one is that an officer of the court is there to say to the parties, "You're stupid," or, "You're asking for too much," or, "A court will never do that," or, "Have you considered the costs of doing this," or, "Have you considered the risks," and, indeed, frequently to make a recommendation to the parties as to what they should consider. That is a very frequent ingredient.

So, if one talks of the question of privilege, it cannot be just the privilege of the husband and the wife, the court must have a privilege too. The registrar must have a right to say, "I went into that conference on the basis that the judges could not be told, or it could not be produced in public what I said to the parties in that conference. It is not fair that what I believed I had as a privilege is now going to be laid open to the word". It would become extraordinarily difficult for court officers conducting these conferences if they had to watch every word, and if they had to make notes of just what they were saying.

BRENNAN CJ: Has common law privilege ever been extended in relation to without prejudice negotiations to any person other than the parties?

MR BROUN: No, as far as I know, because - - -

BRENNAN CJ: Then what is the basis of saying that the court has a privilege?

MR BROUN: Because there has never been, up until these type of rules which are now been added in court after court, a situation where a court takes the initiative.

BRENNAN CJ: That may be so, but, I mean, solicitors, for example, are not the parties who have the privilege, are they?

MR BROUN: No, your Honour.

BRENNAN CJ: Even though they are present at the conversations.

MR BROUN: They are, but they are there as the agent or as the alter ego, perhaps, for these purposes of their client. They are not there in a separate right.

BRENNAN CJ: There is no common law doctrine of privilege for court officers, is that right?

MR BROUN: Your Honour, I do not think the question has ever arisen.

BRENNAN CJ: Perhaps it has not, and therefore there is no doctrine about it.

MR BROUN: There is no established principle, or no authority on it.

BRENNAN CJ: What principle then do you rely on to achieve one?

MR BROUN: Your Honour, I put it this way: if you have a negotiation between three parties, suppose - - -

BRENNAN CJ: But there is no negotiation here between three, is there?

There is negotiation between two and an intermediator.

MR BROUN: Could I illustrate first of a case where you have three parties - three litigants in three separate interest. You have a plaintiff for the defendant and a third party, perhaps. You have three. Clearly, the more people you add to the negotiations, all of them keep the privilege. That is clearly established and I think would present no problem. What happens, as a matter of logic or principle, if one brings into the negotiations between two or three parties, another person who is there with his or her own agenda - in fact, most of the deputy registrars are women, I think, in most registries - who goes in with her own agenda, and it is quite clear that the whole purpose of these conferences is to help to reduce the workload of the courts by helping parties to save themselves the cost, the indignities, the embarrassment of full-scale litigation, by reaching a settlement. It is not as if the parties are incapable of negotiating directly. They are, and they do. The registrar goes in with an extra brief. You are there for the court to try to bang their heads together and make them see a bit of sense. You are there to reduce the court load by giving the parties a warning, informally and entirely confidentially, in advance, as to the sort of disasters that may befall them if they go ahead.

BRENNAN CJ: It sounds to me that that is a course of action, if that is what in fact happens, which is entirely unacceptable. The function of such an officer cannot possibly be to bang heads together to save courts work.

MR BROUN: Your Honour, with respect, that is what happens to a large extent. Certainly, over the years, I have been in hundreds of these and that is the general character of many of them.

BRENNAN CJ: Whatever the practice may be, Mr Broun, one can see that there may be a function to perform to assist parties to reach an agreement, but that is in the interests of the parties. If, incidentally, the court is benefited, so be it. But the notion that there is a third party interest to override or affect the interest of the parties to litigation, strikes me as no acceptable proposition.

MR BROUN: Your Honours, I must say a traditional view - indeed, initially when I encountered this, I was personally shocked by it myself. But one has to face that when one looks at parliamentary debates and what is said, it is quite clear that the purpose of the mediation is to save expense to the government, to reduce the burden on the taxpayer of a court system which keeps blowing out and getting bigger and bigger, and to reduce the amount of litigation. The government and the people of Australia, the taxpayers, have an interest in reducing the amount of litigation.

GUMMOW J: There may be ways of achieving that by agencies and instrumentalities that are distinct from a court.

MR BROUN: Indeed, your Honour, and in fact in the area of family law there are a great number of them.

GUMMOW J: And that do not involve the utilisation of officers of a court, some of whom enjoy delegated powers of the court. The use of those persons in what is not a detached and objective operation. That is another question for another day perhaps.

KIRBY J: I do not think this is within the notices that have been given for the challenge to the constitutionality. I do not think this question has been raised. Among all the other matters that have been raised, this one, I do not think - - -

MR BROUN: Your Honours, what I was essentially seeking to do is to say that where the court is providing the conference, it is for the court to say on what terms the conference is to be conducted. The court is saying - and the Parliament seems to have accepted it for a long time - "You must come to this conference. It is one of the things that you are required to do before you can get to your judgment. The Parliament says it's appropriate under section 79(9). We're going to lay down the terms upon which this conference is conducted. One of those is that nobody is going to be afterwards to say what anybody, including the registrar, has said".

BRENNAN CJ: Right, we have understood that.

MR BROUN: Your Honours, the point I tried to set out on pages 15 and 16 of my notes is that essentially this rule is not about privilege or the qualification of privilege. It is a rule about duty. It is imposing an obligation upon the parties and a duty on the parties. It is not something that deals with the privilege from disclosure of material. It says, "You have an obligation to come and what happens behind that closed door is never going to be revealed except in these very qualified and specified circumstances".

Indeed, the most obvious one is violence within the conference and that is a real threat in some cases. So, accordingly the courts have adopted the practice - if there is any indication or allegation that there has been violence, the parties are never in the same room and the registrar goes between them. So that is a real problem in these and perhaps one of the other matters which emphasises the importance of keeping them out of evidentiary issues.

So I have set out on pages 15, 16, 17 what we perceive is the difference between a rule creating a privilege or dealing with a privilege and a rule imposing a duty, which we say this one is. Now, your Honours, there are of course analogous problems. Order 36A rule 4 gives a judicial registrar the same protection and immunity as a judge has, for example. Now, that is done by the rules. It is not in the legislation, but the immunity of the judge is not a matter of the rules.

Your Honours, having put so much of it in writing it is otiose perhaps for me to take your Honours through the details, so may I leave your Honours to look at my written material.

On the time limit question, your Honours, we would respectfully adopt the views of the Full Court that, again, the period of seven days is an entirely adequate period when you have regard to the power within the same rule, not the general power to dispense with the rules, but within the same rule itself, Order 36A, seven days is specified, but then rule 6 of the same rules provides for an extension of that time. A judge may extend either before or after, so that it is very much a matter of seven days subject to a question of extension, an extension envisaged by the rule itself.

When your Honours look at the sort of things which the registrar deals with, of which probably consent orders is the most controversial because it is the one that leads to subsequent arguments the most by an enormous margin, the seven days for the vast bulk of the things he does is entirely appropriate. They are normally simple procedural directions or requiring documents to be filed or information to be supplied. In fact the very frequency of consent orders being subsequently attacked does tend to emphasise the undesirability of opening yet another method by which a consent order may be attacked. It is a constant source of litigation, the attacking of consent orders by people who afterwards regret their agreement, and unfortunately that happens perhaps 10 times in a family law matter because of the emotionally charged character of it for every time it happens in any other area of litigation.

Now, your Honours, as to what should happen if your Honours were against my submissions or found Mr Bennett's submissions satisfied your Honours, what happens, in my submission, it is quite clear this just has to go back to the Full Court because we had a very large number of grounds before the Full Court of things that we say miscarried in the trial. They are set out in the appeal book, page 164 on, and I have summarised some of the more important ones of them on page 18. The Full Court did not find it necessary to deal with those issues.

They said it was not necessary to deal with the other grounds. That is to be found in appeal book, page 198 and our full notice of appeal is set out at page 162, so that one has a number of matters that still have to be considered by the Full Court which have not been considered at all and which are quite different points. For example, in this case there was a document, a letter, expressly terminating negotiations some six months, I think, or five months after the Order 24 conference and saying "Anything hitherto discussed is off and the matter was restored and taken back to court". Next, there was the important significance of the large number of drafts that were considered by the parties over the year which elapsed between the Order 24 conference and the consent order being finally made.

KIRBY J: Would you just help me with this. The appeal is basically from an exercise of the rule but if the rule falls, does that not take away the fundamental basis of the appeal?

MR BROUN: It takes away only one basis, your Honours. If we go back then to the Full Court, everything else proceeded on the basis that that evidence was admitted and was before the court. All the other grounds relied upon the material. For example, one of our grounds was that after the trial judge had admitted what happened in the Order 24 conference, we filed a further affidavit, which is referred to in the Full Court's judgment, setting out what the background was from my client's point of view and why he thought the agreement that he signed and was ultimately made the consent order was what he intended and why he thought that that was just and why he was prepared to agree to it because he would not, at that stage, have agreed to what the wife said had been agreed in the Order 24 conference.

His evidence of what occurred in the Order 24 conference had said plainly there was a condition of the whole thing that it had to be in three months. In his affidavit he said the reason for that was because he was going to give up his occupation then in the medical profession to embark upon a different career and he needed the money to do that and he had said in the Order 24 conference, "I have to have the money within that period or it is off". His affidavit makes it plain he would never have signed that final document if it was what the wife says it was meant to be because - - -

TOOHEY J: Well, these are not questions that we are concerned with, surely.

MR BROUN: Of course not. I only raised these, your Honours because, in fact, we submit that Mr Bennett's proposal that our appeal to the Full Court would just be dismissed just cannot be right.

BRENNAN CJ: There is an alternative claim to remit it to the Full Court.

MR BROUN: We would say it has to go back to the Full Court. Now, your Honours as to - - -

BRENNAN CJ: And that is because there are unresolved issues.

MR BROUN: Yes. Your Honour, in fact most of the issues we raised are unresolved because the Full Court only really had to deal - ultimately thought it necessary only to deal with the one. Indeed, some of the others were quite tricky, for example - - -

BRENNAN CJ: We do not need to go into those, Mr Broun.

MR BROUN: Thank you, your Honour. Your Honours, as to the costs of this hearing - obviously the costs in the Full Court, if the matter goes back to the Full Court, the Full Court can adjust their orders. But the costs of this hearing if, your Honours, are against my client, then the question is essentially, "Who should bear the costs of it?" and we would submit that it is really a bit much for my client to be responsible for the costs arising from the overruling of something that has been standing there for 35 years and which Parliament has failed to disallow three times.

TOOHEY J: But your client took his stand on a rule which was under challenge before the Full Court - - -

MR BROUN: We did, your Honour.

TOOHEY J: And if this Court took a different view, why should not the ordinary rules as to costs prevail?

MR BROUN: Your Honours have, of course, the Federal Proceedings Costs Act, which would, if this - - -

TOOHEY J: Well, that is consequent upon any order made.

MR BROUN: Yes, that is so. But, your Honours, we would submit that perhaps the responsibility here really falls on the government for not having done something about it. If a rule that they have supported, used and applied for many years is held to be invalid, then really the cost of defending it should more properly fall upon those shoulders than my client's shoulders after the sea of litigation in which he has been involved now for so many years with his ex-wife. We would ask for the Commonwealth to pay everybody's costs. Thank you, your Honours.

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Perhaps if I could deal with the most important issue first, your Honours, and pick up this issue of costs. The Commonwealth of course here appears in response to a section 78B notice to defend constitutional validity. We would seek to discourage the Court from adopting any course to discourage the Attorney from intervening in issues before the Court to be drawn in on the basis of equity put by my learned friend, Mr Broun, a moment ago. Obviously the ordinary appeal costs funds mechanisms would be available in the event that an order for costs followed the event. In our submission, it is not appropriate for the Attorney to be at risk merely because he intervenes in the public interest in response to his obligation to assist the Court and argue for constitutional validity.

Your Honours, we do not intend to be strict applicants of constitutional requirements, but we intervene because - - -

DAWSON J: I am sorry, I did not catch what you said, Mr Solicitor.

MR GRIFFITH: Your Honour, it was prefatory words to say we do not want to be strict in applying rules. However, we intervene here merely because we have been served with a section 78B notice which appears on pages 88 and 89 of the appeal book which raises to us the issue of the validity of section 37A.

DAWSON J: You are not concerned to argue the validity or invalidity of Order 24 rule 1(8)?

MR GRIFFITH: No, your Honour. I will say a couple of words about it, but can I deal with our principal submission first, which is to respond for what we saw was a discrete claim on validity of section 37A. When one turns to the notice of appeal at page 251, the notice of appeal is directed merely to the validity of section 37A. It is not directed, as we read it, at all to the seven day period fixed by Order 36A of the rules. So that, as the Court will see from our submissions, they are directed entirely to the issue that it was within power under section 37A for a time limit to be fixed. In effect, it is only my learned friend's submissions today which seems to make the attack not so much the fact that there is a power to fix a time - that was how we read his notice of appeal and the section 78B notice - but the fact that seven days is too short. He says fourteen is all right, seven is not.

Our submission is that that is not open to my learned friend to argue that before the Court because that is not his ground of appeal and also it is not his ground of notice. But, we would submit, in any event, seven days, although on the short end of what might be regarded as a common rule in respect of matters of this sort must, we submit, clearly be regarded as within power. If it was a matter of minutes, that might be another issue, but we submit that there can be no difficulty about seven days and, indeed, we submit, it has got nothing to do with my learned friend's complaint here because, when one looks at the judgment at first instance, one sees at page 100 the judge dealt with the issue on the basis that it may be an application for the court to proceed on its own motion under section 37A(10) or it might be an application to apply out of time under subsection (9), and at page 149 the judge makes it clear that he is prepared to make the order without deciding under which he acts.

So, we would submit, your Honours, it is just not an issue in this case as to whether there is a time limit, whether it is a time limit which, at law, is capable of being extended, which it is, or whether the judge here acted under that section rather than the separate power under subsection (10) to act on the court's own motion. So, our principal submission is that the way this appeal is constituted, there is no occasion at all for the Court to become involved in what seems to be the essence of my learned friend's point saying seven days is too short, 14 days is too long, but we do submit formally that if that is his point, then it is not a point which gives rise to constitutional invalidity of either the section enabling the time to be fixed or the order which does fix the time.

BRENNAN CJ: Can it be regarded as an attack on the constitutional validity pro tanto? In other words, although the words are expressed in terms of a general power to fix, but they go too far.

MR GRIFFITH: Your Honour, our submission is that one cannot postulate to say, "Just looking at the section on its own without an order, you could fix 10 minutes as the time. That would be constitutionally impermissible, therefore, the section cannot support that." We submit that that is not the issue here. The issue here, if I my friend can get to it, is seven days and we would submit, your Honour, that seven days cannot cross any constitutional barrier and we would submit in any event, even if regarded as inappropriately short, the capacity to extend the time, as well as for the court to act under its own motion, avoids any constitutional difficulty.

BRENNAN CJ: The other way perhaps of looking at it is that you succeed in defending 37A and the rules simply fails on Mr Bennett's argument as an erroneous exercise of power.

MR GRIFFITH: Your Honour, that really gets us to a similar point of order 24 and that we are here on the constitutional point and we did not see that there was a non-constitutional point under the order until we read his submissions and heard my learned friend and that is something new and we cannot say necessarily we would have appeared on that if it had been presented as a non-constitutional issue, but, similarly, we would deal, if I could turn now to - - -

BRENNAN CJ: Do you want to say anything about that approach to it?

MR GRIFFITH: Your Honour, we say seven days is appropriate and would be within the rule-making power, particularly in the case of a consent order, but even in a non-consent order because of the fact that that does give a time in which parties may consider their position and lodge a notice of appeal. The notice just has to be a bare notice, your Honours. It does not have to have the full supporting material, perhaps, of an application for special leave in this Court, and there is the capacity of the court both to act on its own motion and to extend the time as may be seen from the fact that it was exercised freely here without the judge finding it even necessary to refer to which was the source of power and we submit, your Honour, that that capacity of flexible operation is just how rules work.

It cannot have the result that one can say because you had to do things perhaps twice as fast as what you might in the Federal Court, therefore, you are acting to the extent beyond the rule-making power supporting the rule, but, your Honour, that is to draw us into something which we did not intend to. I have no instructions so far as my instructions to intervene are concerned and it just seems to be making what seem to be commonsense propositions which we would say have no particular relevance to the issue that my learned friend, Mr Bennett, is pursuing on this appeal.

Turning to Order 24, my learned friend, in effect, has done the same thing because he makes a Harris v Caladine proposition as a supporting argument in respect of Order 24. We would suppose he does not have to do that in this case but, if he does, once more he seems to be shut out from it because that is a new constitutional point upon which we do not have notice; we would be happy to deal with it if we thought it was necessary, but the States do not have notice either, but we do not wish to shut my learned friend out by technicality in a way which would affect the result of the case, but we would invite the Court not to have regard to that aspect of his argument if otherwise the Court is able to dispose of the matter, and in that case it would not seem necessary for appropriate notices to be given, and that to be made a matter of separate attention to the Court in a subsequent hearing.

Dealing with the issue of Order 24, we do point out to the Court, and we say it is not a matter of privilage, a matter of substance that the scheme of the Evidence Act, which operates on and after 18 April 1995, but which does not apply to this matter, indicates an appropriate scheme for dealing with issues of this sort which we say since 18 April would apply in this very situation.

GUMMOW J: But not in all courts, though.

MR GRIFFITH: No, but can I take the Court to the line of reasoning whereby we say it applies here? Section 8 provides that:

This Act does not affect the operation of the provisions of any other Act, other than -

particular sections of the Judiciary Act. And says:

This Act does not affect the operation of regulations that:

(a) are made under an Act other than this Act; and

(b) are in force on the commencement of this section.

So, we submit that the consequence of that is that this Act would affect the operation of rules of court and would prevail in respect of them.

GUMMOW J: Does not one have to start section 4? It does not apply in a State court nor, indeed, a State court exercising federal jurisdiction.

MR GRIFFITH: Your Honour, I was dealing with the Family Court for the purpose of these submissions.

GUMMOW J: Yes, but the order speaks to courts at large.

MR GRIFFITH: Your Honour, I am not dealing with that aspect of - - -

GUMMOW J: I see.

MR GRIFFITH: Your Honour, on that aspect, we would say the original regulation-making power under section 123 may have supported an order directed to other courts, if affected by a regulation. That is the point made in exchange by Justice Dawson. But the rule-making power would seem to be a power of a different order. Your Honours, we do not wish to be drawn into the issue before the Court as to the validity of Order 24, because we do not intervene on that issue. But one can see that if the Court regarded it as relevant to deciding the particular issue that my learned friend, Mr Bennett, argues, to determine whether or not the rule could apply to evidence in a different court, one can see an obvious difficulty as to it being supported by the rule-making power. Your Honours, that is not a matter on which the Attorney-General wishes to make submissions either way. But we do wish to say that, so far as the bringing of evidence on a matter of where there has been a conclusion of an agreement as a result of, if one likes, without prejudice discussions, then we say that the leading of evidence with respect to settlement negotiations, leading to the conclusion of that agreement is a matter determined, including in the Family Court now, since April last year, of the provisions of the Evidence Act. Section 56 provides for the basic rule, which says:

Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

We, of course, adopt the position that in a case where it is sought to lead evidence which is relevant, including in the Family Court, there is an entitlement under this provision to do so.

Section 131 deals with exclusions - not a matter of privilege, a matter of exclusions - and that indicates that evidence of settlement negotiations are to be excluded as are documents prepared for that purpose. That is section 131(1)(a) and (b) of the Evidence Act. There are exceptions to subsection (1) and we would refer particularly to paragraph (f) and also incidentally to paragraph (g). Paragraph (f) would seem, by its terms, to cover the sort of situation which is made the subject matter of the appeal to the Court in this matter. So our submission is that section 131 does apply a regime, which in a situation of this sort were it to arise after the relevant date of 18 April 1995, would enable the evidence to be received. Having said that, it is our submission that that is a - - -

DAWSON J: Does (f) apply or does (g) apply, Mr Solicitor.

MR GRIFFITH: Your Honour (f) or (g); we think perhaps (f), but (f) or (g).

KIRBY J: What are we to make of this, given that this does not apply to the present proceedings? Are you simply alerting us to the fact that - - -

MR GRIFFITH: We are alerting the Court to the fact that in as much as this is a special leave application, it is one which would seem to be confined to matters arising relevantly before the coming into force of the Evidence Act provisions, but we would also say that this outcome of section 131 applying, is, the Attorney would submit, an appropriate outcome to issues such as this sort, but dealing with the particular matter before the Court, the Attorney does not desire to make submissions as to the particular validity of the terms of Order 24, but we do, in an attempt to assist the Court, refer to the fact that there is a dispensation power, both under Order 4 rule 1 and perhaps more aptly under rule 2, which would enable the appropriate result consistently with the policy of section 131 to be obtained by an exercise of the power under either Order 4 rule 1 or rule 2, and we would suggest that that mechanism would remain appropriate in this case - - -

GUMMOW J: Does your charter permit you to go so far as to indicate a position on this question? If one were looking at section 123 and starting afresh and looking at section 121 of the Evidence Act afresh, could an order be made under section 123 of the Family Law Act which was inconsistent with 131(1)(f) or (g)?

MR GRIFFITH: Could one be made now with - - -

GUMMOW J: Yes, looking to the future.

MR GRIFFITH: Your Honour, I am not quite sure where my charter is but I am sure it is not far along enough to say I have a charter to say this. So, my response would be just an attempt to assist your Honour by responding to the question but we would suppose that section 8 would be the applicable provision there, if there were a statutory provision.

GUMMOW J: Section 8?

MR GRIFFITH: Of the Evidence Act. Your Honour, the difference here is, and that is why I referred to section 8, is that it does not save rules, so that because it is a rule here, it is an inconsistency, then the rule will not prevail. Your Honours, the point has been made that this is a matter of a rule of the court and the comment your Honour Justice Gummow made with respect to whether or not section 46 of the Acts Interpretation Act would apply to the court as an authority perhaps is an apt one for consideration, although we would suppose not for decision in this matter, but that really affects the aspects of my charter to intervene because, this being a rule of the Court, the Attorney would certainly have a view and ordinarily say what could be said to protect validity were it a legislation or a regulation but it is a rule of the court.

KIRBY J: Could you give me again the point you made concerning the dispensation power? First of all the order and then the significance of it.

MR GRIFFITH: Your Honour, what we say is that if there is an obvious result to avoid an injustice that could be avoided if section 131 were to apply by the application of the exceptions to paragraphs (f) and (g) and which was appropriate to be avoided were there no effective legislative inhibition that was valid preventing that happening, one could, without determining the validity of Order 24, exercise a dispensing power under Order 4 rule 1 or 2 - perhaps 2 would be more apt - to obtain the result that the evidence could be lead, notwithstanding the blanket prohibition of Order 24 rule 1(8).

KIRBY J: Was that run in the trial in this case, or argued before the Full Court?

MR GRIFFITH: Your Honour, as we understand it, before the primary judge that was unnecessary because the primary judge admitted the evidence, and as we read the judgments on appeal that was not a matter which was considered as a separate mechanism to get to the result of admitting the evidence. So, the point we make is - - -

KIRBY J: Do you use it in any way to support the constitutionality of the rule when one has regard to section 79A?

MR GRIFFITH: Your Honour, perhaps there is a circle here, because we suggested as a way to avoid determining the constitutional validity of the rule, because one can get to a result which avoids the injustice. So, your Honour, if this issue is regarded as one to avoid the injustice, it must be the operation of the rules will enable this evidence to be admitted. We say this enables it to - - -

TOOHEY J: You could only do that if it went back and either the Full Court or the primary judge so ruled, and that might - if it was the primary judge - might initiate a further chain of appeals.

MR GRIFFITH: It might, your Honour, but it would be on an interlocutory basis, but, your Honour, there cannot be much doubt as to how the primary judge would deal with it when one considers how he dealt with the basic issue. But, your Honours, we are not here to die in a ditch on this. We are here to be helpful. And, as it is just on lunchtime perhaps that is the limit of our capacity to assist. If the Court pleases.

BRENNAN CJ: Mr Bennett, do you have anything in reply?

MR BENNETT: I would expect to be about 10 minutes. I do not know if your Honours would prefer to hear me now or at 2.15.

BRENNAN CJ: The Court will adjourn till 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: Your Honour, if my leader has not withdrawn instructions over lunch-time, may I make a short observation with leave on the seven day issue, the one that we say was not included in the notices but which has been raised by the Court in its inquiries. Could I take the Order 36A. I too have the old print of the Act, so it is on page 6,651. As the Court is aware, there is some limited delegation to registrars under Order 36A rule 2 and many of those orders are merely ordinary procedural ones, although one or two of them have a slightly larger content, but by and large, including the case it would seem here under paragraph (n) on the next page to make orders which have been agreed upon by the parties, there is a limited delegation of power to registrars.

Now, the delegation of power to judicial registrars is dealt with under rule 3 and that is a lot wider because it can run to matters such as custody procedures and various other rules down to paragraph (zb) on two pages over, so there is quite significant jurisdiction there which, of course, was the subject matter basically of Harris v Caladine. Of course the judicial registrars have all the powers of the registrars as well, but when one deals with the prescribed time limits in relation to rule 5, one can see, firstly, for those matters under the registrars rule 5(2) it is a seven day period, but in respect of decisions of judicial registrars there is a dichotomy created between those cases where the judicial registrar is merely exercising the power of a registrar at seven days and in other cases, that is, the extended powers that a judicial registrar has over a registrar, it is one month, the usual 28 days or whatever days are in the month.

It does seem on the face of the rules, we would submit, that there is a rational reason to have what might be called an unusually short time, because of the nature, it seems, of the more limited delegation to the registrar being almost entirely of the narrower matters of exercise of jurisdiction which might otherwise be regarded as exercise of judicial jurisdiction.

We refer to that difference to indicate that it is not an arbitrary fixing of a very reduced time, by inference, one would suppose, by the argument put against it, to preclude the right of appeal being exercised, but merely, in the case of what, for the most part is interlocutory or non-contentious orders such as a registrar might make, power to dispense with substituted service et cetera. One can see that it might be thought that there is an interest in the efficacy of the litigation process not to have too open-ended an appeal provision, but in the more substantial exercise of jurisdiction judicial registrars, 28 days. We draw that difference to the Court to indicate that there does seem to be a distinction made in the operation, and it is not a case of all registrars and judicial registrars so limited. Judicial registrars, in the exercise of their function, separate from registrars, do have the one month period. If the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Bennett.

MR BENNETT: If the Court pleases. Your Honour Justice Gummow put to my learned friend that there may be a real question about severability under the Acts Interpretation Act. While we did not include that in our submissions I would respectfully adopt what your Honour put to my learned friend.

There is a statement in the - which does not seem to be supported by authority - CCH commentary on the Acts Interpretation Act at paragraph 27,127 which says that, in relation to section 15A, which is the corresponding provision in relation to Acts of Parliament saying that they can be severed and read down., the effect of the section is to reverse the common law presumption that a statute is to operate as a whole. There is the line of early cases suggesting that may be of value.

GUMMOW J: There is a House of Lord's case in the last 10 years on it - the name of which I forget - on the common law rule.

MR BENNETT: Yes. Your Honours, secondly, my learned friend referred a great deal to history and I do not propose to take your Honours to history at all but I do hand to your Honours copies of a decision of this Court in Rodgers v Rodgers [1964] HCA 25; (1964) 114 CLR 608, a decision under the Matrimonial Causes Act, where the position independently of this rule, but in the context of family law litigation, was referred to and, in the judgment of the Court at page 614 there is a two sentence passage which indicates a general attitude consistent with that being put by the appellant in this case. If your Honours go to page 614, about 10 lines from the bottom of the page, adjacent to the word "parties" in the left-hand margin:

That husband and wife who are parties to a subsisting cause in the Matrimonial Causes jurisdiction, or, who contemplate such proceedings, should be able to negotiate with a view to reconciliation or as to what financial provision should be made for one party freely and without fear that -

and these are the words we stress -

failing agreement, what is said or done by them may later be used in evidence is, in our view, not open to question.

So, even there, the need to have without prejudice communication in matrimonial causes litigation uses the words "failing agreement".

Thirdly, my learned friend referred to the conflict between two policies: the policy of the confidentiality of the settlement procedures and the more general policy and he suggested that there would be a serious inhibition if parties had to be told that there were exceptions to the Order 24 privilege. One only has to ask the question in relation to the exception we pose to see how little effect it would have. If the registrar were bound, for example, to say to people at the beginning of an Order 24 conference, you must appreciate that there is one exception to the fact that these proceedings cannot be used and that is, if one of you makes a mistake in relation to the order which is subsequently made, you can look at what is said here for the purpose of resolving that problem. That is hardly going to inhibit anyone's discussion.

Fourthly, my learned friend referred - - -

KIRBY J: I wonder about that. People often repent agreements and, in this area, freely and without fear, people should be able to have agreements and reopening them seems to me to present a lot of practical problems, especially where passions run high in this area. But in the end it does not really touch the question of the power and the meaning of the rule and I am not sure that all this talk about what is convenient, or what should be, is going to resolve this appeal.

MR BENNETT: No, your Honour, that problem has been present in the law of rectification throughout but it has not stopped the Equity Court developing the principles of the law of rectification, nor has there been a floodgate of rectification applications. It is something which is required by justice in the occasional case where there is a genuine mistake and, indeed, if one generalises it for rectification, the law of common mistake has not seriously inhibited the sanctity of contract although Professor Shatwell may have had a different view - - -

KIRBY J: I do not think it goes to any point, but this is an area where people have very strong feelings and that tends to undermine the sanctity of their contracts. Anyway, I really do not think it touches the question of power and interpretation of the rule.

MR BENNETT: Yes. Your Honour, the fourth matter concerns Taylor v Guttilla. Two of the justices put it, as my friend says, on the basis of proportionality. There is a question as to whether proportionality is the appropriate test in the area of ultra vires of delegated legislation but if it be the appropriate test, we would submit it would apply here. My learned friend referred in relation to Taylor v Guttilla to the failure to overrule of the previous case. As I put in-chief, there is an enormous difference in principle between the rule under attack in the earlier case and the rule under attack in Taylor v Guttilla, the earlier rule was simply a timing rule in relation to waiver of privilege.

There is a discussion of the distinction and I will not take your Honours to it, but at page 367 in the bottom third of the page in the judgement of Chief Justice King, there is a very convenient discussion of the distinction between the two situations. Fifthly, my learned friend referred to Order 23 rule 5. That rule certainly has a higher objective than the present rule but it is probably also invalid, but its validity is of no relevance in the present case.

One could imagine, for example, what does one do if a child at such a conference says to the judge, "I have made up the story about my father sexually abusing me, because for this reason or that reason, but I propose to stick to that story." Is that something that can never be given in evidence? It seems quite extraordinary, but that is not a matter which needs to be decided today. Sixthly, my learned friend referred to section 121. That is in relation to confidentiality. That section is limited to disclosures which identify the parties. It does not apply to other disclosures. Seventhly, my friend referred to the words "necessary or convenient" in section 123. We would submit they are really no wider than the words "necessary or expedient". In any event, the relevant word is the word "procedure".

TOOHEY J: Mr Bennett, could I just ask you in relation to that section, if one took the view the order in question, Order 24, rule 1(8), was not necessarily invalid in its general operation but that in so far as it ran foul of section 79A it could not prevail against that section, what sort of order would be appropriate in those circumstances? Would it be a declaration of invalidity or a declaration of invalidity limited to inconsistency between the rule and section 79A, or how would you suggest one would express it?

MR BENNETT: A declaration of partial invalidity, your Honour. It would be invalid to the extent that "it has the effect that" and that would achieve a result in this case. As I said, my client is indifferent to whether one does it that way or invalidates the whole rule.

GUMMOW J: On the question of section 123, do you place any force on the phrase "not inconsistent"?

MR BENNETT: I do not need to, your Honour, because those words would be implied in any event.

GUMMOW J: Yes, but do you say there is a lack of consistency between 79 and 79A?

MR BENNETT: Yes, that is my submission a, your Honour, the first submission in my written submissions. Eighthly, my learned friend referred to three cases in the Family Court, Johnston, Borninkhof and Gray. We simply point out that in none of those cases was there an issue as to the validity of the rule. The only question in those cases was its construction. Ninthly, my learned friend referred to the private international law analogy. I dealt in-chief with the difference which applies there, but may I just remind your Honours that if one takes the test used by my learned friend, Mr Nygh, in his book on conflict of laws, which is on the page referred to by my learned friend in it, that test would be sufficient for my purposes in this case. At page 254 of the sixth edition of "Conflict of Laws in Australia" my learned friend says this at the middle of the page:

The distinction between substance and procedure in matters concerning evidence has been defined as distinction between rules which prescribe what facts must be proved and the rules which prescribe how these facts ought to be proved.

We would submit a rule which says what facts may not be proved is in the first, not the second of those categories.

KIRBY J: Speaking for myself, I do not think it is to be encouraged that he should be referred to as your friend because he was writing here in an entirely different capacity.

MR BENNETT: Yes, that is probably so, your Honour.

GUMMOW J: The procedure in this universal discourse has to be read in relation to Chapter III I think and I have mentioned Davison's Case and there is a passage in 90 CLR 369 where the Court says:

An extreme example of a function that may be given to courts as an incident of judicial power.....is that of making procedural rules of court.

It goes on to discuss that and emphasises the procedural nature of it.

MR BENNETT: Yes, we would so submit, your Honour. Certainly there were some rules of evidence which are procedural, and I gave examples of those in-chief, but this is not one of those rules.

Your Honours, in relation to the order to be made, I have considered what my learned friend has said about that and we would concede that the matter has to go back to the Full Court; it is unfortunate, but there are matters that were not dealt with and it is hard to see how that can be avoided. But if it goes back, of course, the order should make it clear that the Full Court would also still have to deal with part of our cross appeal, which has not arisen in this Court, and which it did not deal with.

KIRBY J: Well you say that, but I understood the Full Court to have said that it is not a real cross appeal at all, because you were not challenging a decree.

MR BENNETT: Well there may be a question as to whether it is a cross appeal or notice of contention, but that would be a matter for the Full Court when it went back to it. It is ground 4 of our cross appeal on page 173 which, as I said, perhaps should strictly be a notice of contention, but that is a procedural matter for the Full Court. We would only ask that the Court does not make an order which prevents it dealing with that by its form.

KIRBY J: Is there a procedure in the Full Family Court for notices of contention or not? I rather assumed that you put on a cross appeal, because there was not such a proceeding?

MR BENNETT: Yes, my learned friend says that in practice what one does is what we did, but there is no procedure for notice of contention.

In relation to costs, we would simply submit that there is no reason why the ordinary order should not be made. We do call in aid the goose and the gander rule, because my learned friend before the Full Court made very extensive submissions as to why costs should follow the event, notwithstanding the other aspects of this case and he succeeded in persuading that court.

In relation to the submissions of the Solicitor-General, there are only two matters I wanted to mention: the first was that the section 78 notice at page 89 does raise the ground which was argued and that is ground 4 on page 89.

KIRBY J: But his point is more fundamental, that it is not in your notice of appeal to this Court.

MR BENNETT: Yes, well the notice of appeal, we have submitted, is not a matter for him, your Honour; it is a matter more for my learned friend who has not raised it. The Solicitor-General is entitled to complain about a section 78B notice, which we say does make the point, but is not, we would submit, entitled to complain about notice of appeal.

The other matter concerns the Evidence Act and we would simply say this. There is a serious doubt in the construction of section 8 as to whether it would or would not override the relevant rule, but whether it does or it does not, at the end of the day it grants a discretion, and granting a discretion cannot solve the problem in this case. If the rule is invalid, it does not save it to say that there is a discretion as to whether it is applied or not. One can imagine in the Harris v Caladine aspect, that one might say a discretion may save something from invalidity, but where one is away from the Harris v Caladine aspect and dealing with the ultra vires aspect, the existence of a discretion, we would submit, can make no difference.

DAWSON J: But how does that work? I mean, if it was ultra vires in its inception, it cannot be reinstated by the Evidence Act, can it?

MR BENNETT: No, your Honour, we would submit that as well.

DAWSON J: It is irrelevant.

MR BENNETT: I took it, your Honour, as a revocation of special leave submission, that my friend was submitting that because there is now the Evidence Act, that special leave should be revoked and we should all go home and it is really that that I am dealing with.

DAWSON J: It is a matter of interest, nothing more than that.

MR BENNETT: Well, that is what we would submit, your Honour, and I am content to leave it on that basis. May it please the Court.

BRENNAN CJ: Thank you, Mr Bennett. The Court will consider its decision in this matter and adjourn to a date to be fixed.

AT 2.36 PM THE MATTER WAS ADJOURNED