Cramer v Davies A20/1996 [1996] HCATrans 319 (15 August 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A20 of 1996

B e t w e e n -

DEBORAH ANNE CRAMER

Applicant

and

ROGER PHILIP DAVIES

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 15 AUGUST 1996, AT 9.31 AM

Copyright in the High Court of Australia

MS B.J. POWELL, QC: May it please the Court, I appear with my learned friend, MS M.A. PERRY, for the applicant. (instructed by Peter Wells)

MR N.W. MORCOMBE, QC: If it please your Honours, your Honours, I appear with MR P.J. HARRIS, for the husband respondent. (instructed by Playfords)

DAWSON J: Ms Powell?

MS POWELL: Your Honours, the special leave questions posed in our summary of argument have a number of aspects to it but it really comes down, we say, to the duties of a court with respect to a particularly vulnerable class of litigants, those who are unrepresented.

GAUDRON J: Why does it come to anything other than a question of procedural fairness.

MS POWELL: Well, it comes to that as well.

KIRBY J: Is it really about costs?

MS POWELL: It is not really about costs, in our submission.

KIRBY J: Why can you not make a fresh application for the custody of the children?

MS POWELL: It is our submission, your Honour, that were the resort simply to be to a fresh application, then the applicant wife would be facing that fresh application from a very disadvantaged position. She would be facing that fresh application from the position of a party who had been determined to have abandoned proceedings at the time of the first application and secondly, of course, she would not be able to point to any changed circumstances such as to justify a change of the original final order and so, in our submission, she would approach such a course from a very disadvantaged position.

DAWSON J: Well, she really could explain her situation, could she not? She would say, "I did not intend to abandon it. I was in an emotional state and I now regret what happened and I ask the court to look at the situation afresh in those changed circumstances".

MS POWELL: But, your Honour, if she did not intend to abandon it then, in our submission, the final orders should never have been made and what we say this leave application is about is the duties of a trial judge to accord her procedural fairness, including the ascertainment of whether, in fact, that she had done that and whether that was her true intention.

GAUDRON J: Well, whether or not it was her intention seems largely irrelevant, is it not? I mean, let us assume for the moment it was her intention at 1.15 pm on the day in question, whether it would continue to be her intention when the proceedings for custody came back on, the substantive proceedings come back, is another matter.

MS POWELL: In our submission, it matters and it matters very much. It matters from her point of view because, we say, that she was disadvantaged in that what happened on 15 December when those final orders were made simply would not have happened had she had representation but more than that, we say that this leave application raises general questions and that is, what should a trial judge do in these circumstances and, more importantly, what are the duties generally of a trial judge outside the criminal context with respect to unrepresented litigants. We say that unrepresented parties, of course - - -

KIRBY J: Whether a litigant is unrepresented or represented, if a judge defines what he or she is dealing with and then, in the absence of a party, redefines the whole proceeding and goes on and deals with something which is different from that which he or she has said is the subject matter of the proceeding, you do not have to be unrepresented. You can be represented or unrepresented but that is just procedurally unfair.

MS POWELL: That is so, your Honour. That, of course, is the notice of proceeding point which we say is very important for this particular case but we say there is the more general question.

DAWSON J: Assuming what has been put to you, this is a case in which there is certainly an arguable case that there was procedural unfairness but why is that a matter which this Court should deal with? The principles are clear enough, are they not, that a party has a right to be heard and what would we be doing by taking this case on appeal?

MS POWELL: What we submit is important is - - -

DAWSON J: Particularly in a situation where the wife can make an application again?

MS POWELL: What we say the importance of the question posed, your Honour, is this, that this Court has laid down in very specific terms, the duties of a trial judge with respect to an unrepresented accused in the criminal context. It is our submission that because of the order of the Full Court of the Family Court which has been made in this matter then there exists the possibility that unrepresented parties in the family law context, and we say that the right of a parent to custody of their child is approaching the importance of the liberty of the individual in the criminal context, because of this order, it is our submission that unrepresented parties may, in the future, be - - -

DAWSON J: Ms Powell, that is unrealistic. This case turns on its own facts which are, I hope, unlikely to be repeated but anyway, they are distinct and peculiar to the case. The principle is clear enough. The party has a right to be heard and the judge has a duty to hear them and that principle will stand inviolate against what happened in this case and in this case the wife has a remedy, which does not involve invoking all the machinery of this Court, which is to go back to the court and ask for the relief which she wants.

MS POWELL: But it is our submission that the decision of the Full Court of the Family Court is incorrect and it is our submission that this Court has a duty to correct that decision.

DAWSON J: Now, that is not right. This Court does not have a duty to right every wrong. The duty of this Court is not in the same nature as an appeal court. It is a Court which has a duty to develop and clarify the law and maintain procedural regularity in the courts below and it is upon that latter point which perhaps you should dwell.

MS POWELL: Certainly, your Honour.

GAUDRON J: Is there, Ms Powell, another aspect to the procedural regularity in that the custody appears to have reached a final determination without a consideration of all matters which might be thought to bear on that question?

MS POWELL: Indeed, your Honour, and, of course, there is the special statutory duty upon the trial judge in the context of such a case with respect to the children but final orders were made before the applicant husband's case had even closed.

KIRBY J: Is the jurisprudence of the Family Court that if an order for custody has been made that you have to show a change of circumstances to alter the custody, or is the overriding duty to the welfare of the child enough of a leg-in for you to be able to argue completely afresh on a fresh application for custody?

MS POWELL: Our argument is that the court would have to approach the matter - obviously the jurisprudence is that no custody order is ever final but, of course, there would have to be some change in circumstances.

DAWSON J: I do not know that that is so, is it? I mean, if the circumstances were that she, in an emotional state, had walked out of the hearing or did not resume her place in the hearing, surely that is a circumstance which should be taken into account if she has now recovered her calm and wishes to have the matter reconsidered?

MS POWELL: Your Honour, there was in existence at the time of the walk out, an interim custody order in favour of the husband.

DAWSON J: Yes.

MS POWELL: There was no need for a final order.

DAWSON J: Maybe there was not, but if that was so she does not really suffer any disadvantage in a fresh application.

MS POWELL: The disadvantage she suffers is that the court who hears the fresh application must proceed upon the basis that she abandoned, fully understanding the consequences of that abandonment, making a free choice, chose to abandon the first proceeding at a time when the applicant's case had not even concluded and, of course - - -

KIRBY J: What I cannot understand is how can she abandon something which has been defined to be something entirely different from the custody and the judge indicated very clearly in the transcript what she was dealing with and that was not the custody of the children?

MS POWELL: That is so, your Honour.

KIRBY J: All she could have abandoned was the issue which the judge had defined as the issue before her.

MS POWELL: The intervener's application.

DAWSON J: And ultimately, anyway, the question is the welfare of the children, is it not?

MS POWELL: Indeed. Your Honour, there is another point - - -

DAWSON J: And she could say that was never considered or her point in respect of that was never considered and it would have to be considered. Whatever her contact was, it is still the welfare of the children that is paramount.

MS POWELL: That is so, your Honour, but there is another point whereby she suffers considerable disadvantage and that is that there is provision within the Family Law Act for refusal of the court to receive or hear the application of the vexatious litigant. Now, it may well be that the court would consider that someone who had abandoned proceedings on the first round - - -

DAWSON J: That is fanciful, Ms Powell, if I may say so.

MS POWELL: I beg your pardon?

DAWSON J: That is fanciful. Just because a woman in an emotional state abandons a proceeding or walks out or however you describe it, does not make her a vexatious litigant.

MS POWELL: I would pose this question to your Honour: If, in fact, the abandonment of her proceedings in an emotional state, if what she did could be characterised as abandonment, is sufficient to ground a fresh application then, in our submission, it should have been sufficient to ground a granting of a retrial by the Full Court.

DAWSON J: That may be so.

MS POWELL: And in our submission, the procedural fairness that she has been denied has placed her in a disadvantaged situation and she is entitled to - - -

DAWSON J: Well, that is the point. Assuming procedural unfairness, and you have a good argument there, is that a sufficient reason for this Court to take the matter up when she may make a fresh application and the real issue, which is the welfare of the children, may be determined on the basis of both being present?

KIRBY J: You have one other argument, as I understand your submissions, in relation to the getting into the court and that is that when the judge redefined the issue, she then made orders without giving reasons for the orders that she made or explaining why she was warranted to redefine the issues that she was dealing with in the absence of the party.

MS POWELL: Yes, your Honour.

KIRBY J: So that you have got the procedural fairness point, you have got the point concerning the lack of reasons, you have got what you say is the point concerning unrepresented litigants and the manner in which these problems are to be dealt with and the overriding obligation to the welfare of the child which should have guided her Honour, so that they are your points, I think.

MS POWELL: They are.

KIRBY J: The question is whether they are enough to counterbalance your facility which is not always available in procedural fairness cases of simply going off and starting again but you say, at a disadvantage.

MS POWELL: We say that the matter of importance is that this case illustrates not just that it is a case of procedural fairness but it, in fact, demonstrates how a denial of procedural fairness can affect not only the administration of justice but the appearance of justice, because we say to an outsider - - -

DAWSON J: Is this sort of thing a frequent occurrence in the Family Court?

MS POWELL: I cannot answer that, your Honour.

KIRBY J: I suppose upset is a frequent occurrence. Upset and emotion where children are involved are frequent occurrences.

MS POWELL: If it is not frequent, in my submission, there is a real possibility that it could happen again and, of course, with - - -

DAWSON J: You say it is more likely to happen again if it has happened once.

MS POWELL: Indeed, and, your Honour, with reducing legal aid there may well be less representation in these jurisdictions and more opportunity for it to occur. But we say that to the outsider it really would appear that the judge and counsel for the opposing parties and other parties are really capable of taking advantage of that unrepresented status and, in fact, shut the applicant out of court and the case concluded in a way which simply would not have happened had she been represented. It is not hard to imagine what would have happened had she had a lawyer.

The lawyer would have sought to find out what her real instructions were. Even if he or she could not obtain those instructions there is no doubt she would have had somebody representing her when the court resumed. An application for an adjournment may have been made. That might have been successful, that might not have been successful but there is one thing which would not have happened and that is that final orders would not have been made and it is our submission that this case is important because that is the outside perception of what happened here and that, indeed, is a very important matter. The opposing lawyer could not simply have stood up and purported to tell the judge that the wife had withdrawn her proceedings completely and we say, therefore, there is certainly this perception of the administration of justice which is very much affected by what happened in this case.

From her point of view, of course, there are all the matters that the court has raised already, the matter of lack of proper notice. She had no way of knowing that on that occasion there would be final orders made against her and she would have had no way of knowing that, of course, an order for costs would have been the consequence of what she did during that luncheon adjournment. It is our submission that when one looks at what this Court has said the duty of a trial judge is in the criminal context, not only directed toward the issue of fair trial but directed towards the perception of justice from the outsider's point of view, then this case becomes the vehicle for a very important statement to be made by this Court with respect to the duties of a judge outside that context.

Obviously, as I think I have already said, when an individual's liberty is at stake there is a special emphasis on fairness but custody, of course, is an equally important matter. We say that it is incumbent upon all judges, upon learning that an unrepresented party is intending or planning to take a step in proceedings which will seriously affect his or her rights, that a judge has a duty to satisfy him or herself that that party understands the consequences and, in fact, is making a proper choice. We say that that is so important from the litigant's point of view, so important from the perception of the administration of justice that, in fact, this Court should determine that matter.

We are not talking about giving an unrepresented person extra or additional rights over and above those of the represented, we say there is a duty to ensure that there is no disadvantage to the unrepresented. It is no answer, we submit, to say that she can simply come back again because she comes back from a position behind the eight ball where she should never have been in the first place.

DAWSON J: I must say I do not understand it, but then I do not appreciate the subtleties of the Family Court, but if the welfare of the children is the paramount consideration, it seems to me that she would not be at any disadvantage. If the welfare of the children is that they be with her, that is it.

MS POWELL: Your Honour, any trial judge would obviously approach a matter of a fresh application for custody, having regard to what had occurred already. It is not as if the sheet is blank and it starts all over again.

DAWSON J: It may be that what she did indicates that the welfare of the children is better with the father. I do not know, but one cannot eradicate that. Let us not get into this argument anyway.

MS POWELL: That is something which obviously could be raised in any retrial.

KIRBY J: You say that the realities are that after almost a year there has to be an order taking the custody away from the father and that that would require the persuasion of a judge from a position that should never have arisen in the first place.

MS POWELL: Indeed, and I cannot put it any better than that, your Honour.

DAWSON J: But that is a situation which will arise anyway. Whatever caused it, if one is considering the welfare of the children that must be paramount, but however, let us not pursue this.

MS POWELL: Indeed, your Honour. We say that, in fact, the legal issues raised by this application are discrete, would require only short oral argument if leave were granted. Indeed, there may not be anything more that could be put than has been put in this application. We say that, at the reasons contained in our summary of argument, the decision of the Full Court sets a precedent which ought not to be permitted to stand. We say the case raises issues beyond those arising on its own facts affecting both the appearance of justice and fair administration of justice and we say that it has rendered an injustice to the applicant which ought to be remedied by this Court, if the Court pleases.

DAWSON J: Thank you, Ms Powell. Mr Morcombe?

MR MORCOMBE: If it pleases your Honours, could I first indicate that the separate representative who represented the children before the learned trial judge in the Full Court is not appearing today but has asked me to indicate that he supports my submissions in respect of resisting this application for special leave.

GAUDRON J: I do not know that that is a terribly regular way of doing things? I mean, in a case like this where things have already gone patently wrong, I just do not find that an acceptable way of counsel dealing with issues where ultimately the welfare of the children is concerned. I do not find that an acceptable way for a separate representative to behave.

KIRBY J: I agree with her Honour.

MR MORCOMBE: Indeed, your Honour. I regret that your Honours feel that way. His absence today is caused by a lack of funding. It is legally aided and the separate representative is approaching the cap which has been placed on legal aid and it is a question of how those moneys are spent and I can assure your Honours it is not out of any disrespect to your Honours that he does not appear today.

GAUDRON J: It is not a question of disrespect to this Court, it is a question of the appearance of the separate representative as a separate representative, as somebody separate from and independent of the parties.

MR MORCOMBE: I understand that, your Honour.

GAUDRON J: I am sure even if there is a lack of funding there is some other way for the matter to be dealt with, by way of a letter to the registrar, for example, but if there is a question of funding - is there such a thing as a separate representative in any event?

DAWSON J: And the proper way to put a submission is to appear to put the submission.

MR MORCOMBE: If your Honours please. Your Honours, the second point I would make, which I hope is a little more successful, is that it is our submission that this is a facts case. We say there is no general principle here. The facts have been considered by the Full Court, very carefully, and we say there is no matter of general principle. The question here is what should her Honour have done? Is this Court to say that her Honour was wrong in certain aspects of what she did and one needs to bear in mind that this custody application by the husband had been on foot for 19 months.

KIRBY J: Yes, but it was not on on the day in which the orders were made. What was on there was an entirely different matter that her Honour had defined.

MR MORCOMBE: With respect, your Honour, that is not factually correct. The fact is that the only matter listed on 4 October for hearing in the week commencing 11 December was the custody application and on 4 October there was no application by the Minister to be heard. The Full Court dealt with this. The Full Court came to the conclusion after reviewing the appeal books that, in fact, her Honour was seized of all matters on that day - - -

KIRBY J: She seized of it. The jurisdiction is there but I am referring to the statement:

We are dealing at the moment with an application by the Department.....for an extension of interviews with the two children. Now, that is the only application which is before me at the moment.

That is what her Honour said and then suddenly, because the mother got upset and left, being an unrepresented person, the whole nature of the proceedings were redefined and final custody and guardianship were ordered. It is very irregular, in my respectful opinion, at the moment.

MR MORCOMBE: Your Honour, at that particular point when she said that, that was what she was dealing with but the Full Court found at page 38 point 1:

it is clear to us that at all times, her Honour had before her and was seized of the fact that the substantive applications filed in relation to custody and access, were at all times before her Honour, in respect of which her Honour was required to make a decision.

The wife has not ever filed an affidavit saying, "I was not aware".

KIRBY J: She has the transcript of what the judge said was the matter only which she was dealing with.

MR MORCOMBE: And my explanation for that, your Honour, with respect, was that at that precise moment that was the application with which she was dealing because they were the relevant witnesses.

KIRBY J: But is not the reality, or does it not appear, at least subject to full argument, that the reality is that the wife got upset, left, and advantage was taken of the fact that an unrepresented litigant had left, to deal with the whole matter, to treat it as abandoned, to make final orders and orders larger than could be made in the circumstances and only the last point was corrected by the Full Court.

GAUDRON J: And without any reasons being given as to why that was for the welfare of the children.

MR MORCOMBE: With respect, your Honour, her Honour specifically addressed the welfare of the children during the discussion after the luncheon adjournment. Her Honour specifically referred to a number of occasions about the distressed state of the children, about her Honour's perceived need to make an order and the support of the separate rep was, therefore, that. Her Honour referred to the emotional abuse of these children by the wife after the adjournment - - -

GAUDRON J: Without hearing the wife's case. I mean, that is another example of what I would have thought was a most irregular proceeding.

MR MORCOMBE: Can I pose this question, your Honour. What is a trial judge to do if a litigant walks out? Should a trial judge in this situation refuse to make any orders if a litigant - - -

GAUDRON J: They were unnecessary at that stage. They were unnecessary. It was unnecessary to make any order other than to retain the status quo and to have the matter called on, the custody application called on. Her Honour had indicated that it was unlikely that she was even going to be able to decide the facts or FCS application that day.

KIRBY J: You can get the registrar to write and say - I agree with you. An unrepresented litigant or represented cannot veto the determination of a matter by a court but the proper course, it seems to me at the moment, is you give notice to that party that on a certain day this matter will be dealt with and if they do not turn up then, on notice, it can be dealt with but here, it appears that the definition of what was before her Honour was reorganised and, in the absence of a party, advantage was taken of that absence to make orders which affected the welfare of the child and which were made in the absence of hearing the case of the person, a mother, who was affected.

MR MORCOMBE: Your Honour, can I suggest that we are really getting into a discussion about the facts of the matter because, with respect, I disagree with what you say. We say it is clear that on 4 October when the date for 11 December was set, the only matter that was still on foot were the two custody applications; one by the husband and one by the wife. Now, can I take my discussion a little further? I posed the question, "What is one to do if a litigant walks out?" Can I ask the further questions, "What is one to do if there has been an application before the court for a next friend to be appointed for the wife, the application is made by the wife's solicitor and the wife's solicitor then withdraws that application?" Is it then a matter which the judge should pursue, of her own volition to question the - - -

GAUDRON J: I do not understand that application. I do not understand that application. What is the nature of such an application?

MR MORCOMBE: We say it is inherent in the application that the wife is saying, "I need someone else to make decisions for me and instruct the solicitor".

GAUDRON J: Well, if that is the case, one might well think you would show a little bit of tolerance to the situation that had developed in the luncheon adjournment. That itself would indicate a reason for having notice given.

MR MORCOMBE: I agree with your Honour and can I take it further and point out - - -

GAUDRON J: But that is not what happened. No notice was given to the wife after the luncheon adjournment that the matter was now progressing to the custody stage.

MR MORCOMBE: Your Honour, can I suggest that is a counsel of perfection. After this learned trial judge had heard evidence in this for nine days, she had been seized of the custody matter from its inception. The custody matter had been on foot for 17 months. She had heard the nine days of evidence and part way through the wife walks out for whatever reason. Now, in my submission, it is a question of balance as to what a trial judge does in that situation. It may be, looking back at the transcript, one could say well, perhaps to ensure that everything is proper, she should have adjourned it, I would have adjourned it, but is that to say that her Honour's course that she took was, in fact, wrong.

DAWSON J: What difference does the presence of the separate representative of the children make? I mean, after all, one is concerned with the welfare of the children.

MR MORCOMBE: Can I address that as regards the learned trial judge in the Full Court and not this morning, your Honour?

DAWSON J: Yes, very well.

MR MORCOMBE: The presence of the separate rep was crucial, in my submission, because it was the separate rep who, prior to 11 December, asked the court to change the interim custody arrangements. That application was initially adjourned but eventually an order was made changing interim custody in favour of the father. In my submission, the Family Court litigants are just as entitled to some finality and certainty to get on with their lives as are any other litigants and to have adjourned this particular case on 15 December, in light of the history of the matter which has been recounted by the Full Court, in my submission, would further disrupt the stable family life that the husband was trying to create for these two girls.

KIRBY J: I do not think anybody underestimates the difficulty of the case or the difficulty facing the learned judge but it does seem, at least at the moment to me on my understanding of the facts, that the judge acted in a somewhat precipitate way and I myself have dealt often with unrepresented litigants. It is not an easy thing to do but it is when the law is tested, because it is easy to deal with lawyers but it is not so easy to deal with unrepresented litigants, especially when they walk out but it is important that the law should always maintain a high standard of procedural fairness. It seems here, at least arguably, that there were not maintained.

DAWSON J: I suppose you would say that in this situation it is quite different because whereas one is one is concerned with the welfare of the litigants on either side in ordinary litigation, one is not really concerned with that in this sort of litigation, one is concerned with the welfare of the children. The children were represented and in the circumstances the judge followed the submissions of those who represented the children.

GAUDRON J: Is that right though? Had the separate representative put a case at that stage?

MR MORCOMBE: Yes, after lunch the separate rep invited her Honour to make the orders in favour of the husband. That was the separate rep's position.

GAUDRON J: But had not put any evidence or had not opened a separate case for them and the husband had not concluded his case.

MR MORCOMBE: Certainly. The separate rep had put his position prior to 11 December at a time when the wife was represented because on 11 December when they all came back before her Honour to fight out this custody issue, she was represented and it was only the day before that she ceased to be represented and then came in by herself. So, it was not as though this articulate, intelligent woman was totally unrepresented. She had been at the commencement of that 11 December and she was for several days thereafter.

Your Honours, the issues that are raised in this application really raise the question of what should the judge have done where the wife did not come back to make any further submissions, the issue of her psychiatric ability to understand, et cetera - - -

GAUDRON J: Let us be precise about this. A legal representative appeared some little time later. What was the date?

MR MORCOMBE: The 21st.

GAUDRON J: On the day the matter was next listed, apparently without knowledge that there had been final orders made.

MR MORCOMBE: Well, that would be stretching credence, can I suggest, if a practitioner was instructed to appear on the 21st and had been told by the wife about what had gone on in the week of the 11th during her presence, it would seem amazing that that practitioner would not make inquiries about what had happened.

GAUDRON J:

I do not have any information about the state of play -

it is said, page 31 of the supplementary appeal book. I mean, it is just to say that the position you put is not axiomatic by any means, that - - -

MR MORCOMBE: Your Honour, can I suggest that really highlights my second point that I made initially. This is a facts case.

KIRBY J: But all procedural fairness cases are facts cases. You have to understand the way - we do not have to understand the full nine days but we do have to understand those crucial moments when the applicant walked out of the Court and orders were made in her absence. She is, after all, a mother and this is a matter of the greatest importance, not only for the children but also to the mother and being a mother, it seems to me, or a father gives a person a special entitlement to have their point of view heard by the court before final orders for custody are made. I mean, that goes back to biblical times.

MR MORCOMBE: I could not challenge that, your Honour.

DAWSON J: You said she had the opportunity.

MR MORCOMBE: She did have the opportunity and not only that, she now has a further opportunity under section 65 of the current Act. The door is not closed to her. The question is, what would this Court say as a matter of principle on this issue? In my submission, there is nothing new to be said. Your Honours say to me, "This is the principle, Mr Morcombe, and it did not happen". Well, I accept the principle is there, it is there already, nothing new needs to be said. The question is, do the facts - - -

GAUDRON J: Well, maybe people need to be reminded of it. I mean, if that is the principle and if it did not happen then it seems, both at first instance and on appeal, it escaped attention.

MR MORCOMBE: Well, your Honour, it then comes back to whether there has, in fact, been a breach of those principles. It is our submission that on the facts there has not for the reasons that are covered in my outline that I have previously filed. We say on the facts there has been no breach. We go further, we say that the principles are already enshrined. There is no need to draw a distinction between the criminal law on the one land and the Family Court on the other. Everyone has the right to procedural fairness and, in our submission, her Honour did not overlook those principles. She herself addressed the question of the best interests of the children.

GAUDRON J: Could you help me with one thing: was it clear on 15 December, that the matter was going to be adjourned until 21 December?

MR MORCOMBE: I am not aware of that.

GAUDRON J: Well, it was certainly clear on 15 December that her Honour considered it likely that she would not finish with the Department's application on that day.

MR MORCOMBE: Yes, the transcript of the final day of the 15th finishes at page 29 of the supplementary materials - - -

GAUDRON J: In which her Honour says that it was going to be adjourned until 21 December.

MR MORCOMBE: Yes.

GAUDRON J: Perhaps it is sufficient if I ask this. I take it it was clear, but I may be wrong in this, that the parties were going to be into court on 15 December but not on the 16th?

MR MORCOMBE: I think that is correct, your Honour.

GAUDRON J: Yes, and perhaps not on the 17th? Perhaps the 17th was a Saturday or something like that.

MR MORCOMBE: Well, Thursday was the 21st, so the 16th would have been the Saturday.

GAUDRON J: Yes.

MR MORCOMBE: Your Honour, I think also, one of the reasons for the adjournment was that the Minister was going to give further instructions to those representing him and that was one of the reasons for the adjournment, I think.

GAUDRON J: And that was clear earlier in the day?

MR MORCOMBE: No, I think that was clear after lunch when counsel for the Minister said, "I would want to take some further instructions" because her Honour was still debating at that point whether she was going to continue to involve the Minister in further investigations as a result of the allegations made by the wife.

Your Honours, in summary, can I say this is a facts case. There is no new principle to be set. The Full Court has reviewed the facts and said there has been no breach of procedural fairness. The arguments put to your Honours have already been put to the Full Court on the question of whether the facts breached the principles and, in my submission, special leave should not be granted.

DAWSON J: Thank you, Mr Morcombe. We need not trouble you, Ms Powell. There will be a grant of special leave in this case.

AT 10.10 AM THE MATTER WAS CONCLUDED