W.J.D v T.E.K B10/1997 [1998] HCATrans 118 (17 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B10 of 1997

B e t w e e n -

W.J.D.

Applicant

and

T.E.K.

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 17 APRIL 1998, AT 10.36 AM

Copyright in the High Court of Australia

McHUGH J: You are Mr D?

MR W.J.D: I am, your Honour.

McHUGH J: So you are appearing in person?

MR D: Yes.

MR W.J. HODGES: Your Honour, I appear for the respondent. (instructed by Finemore Walters & Story)

McHUGH J: Yes, Mr D.

MR D: Your Honour, I am here to demonstrate, if the Court wishes, why - I do not require the transcript to proceed with my appeal, but the rest of the information contained in the indexes is straightforward.

McHUGH J: There are a number of problems; some are procedural, others, perhaps, are more difficult. In your material, and I think also on the judgment below, there is reference to the word "assist" in Order 32 rule 15. Does that word appear, because in my copy of the Family Law Rules there is no such word, unless I am working from an out-of-date copy? My copy says, simply:

The appellant is responsible for preparing the appeal papers except in a case where the appeal registrar, in relation to the appeal, is satisfied that it would impose hardship on the appellant to do so.

Am I working from a wrong copy?

MR D: I have got - this is in that index, is it?

KIRBY J: This is the application book. What page are - - -

McHUGH J: I think it says - - -

KIRBY J: I am sorry - - -

MR D: Yes, that is the same one. "Preparation of Appeal Papers", is that the one, your Honour?

KIRBY J: Where is that? What page?

MR D: 23.

McHUGH J: It simply says:

Subject to rule 13 and subrule (2), the appeal registrar must direct, under paragraph 12(1)(g), the appellant to be responsible for preparing the appeal papers.

KIRBY J: Where does it use the word "assist"?

MR D: Yes, that is what I am looking for myself. I say that the assistance would be given subject to the order in 36A rule 2(1)(r).

McHUGH J: That is a different position altogether. That is dispensing with the rules.

MR D: Yes. To assist, I cannot see it there, your Honour.

KIRBY J: You see, in your amended summary of argument at page 41 of the application book you say:

Pursuant to Order 32 Rule 15 an Appeal Registrar has the discretion to assist the appellant to prepare the appeal papers.

Is there anything that says that in terms or are the rules on page 23 of the supplementary book the only things that you can rely on? You draw an inference from the rules, not - the word "assist" is not used, or am I missing it?

McHUGH J: You see, subrule (2), on the same page, says:

If the appeal registrar is satisfied that it would impose hardship on the appellant for the appellant to be responsible for preparing the appeal papers, the appeal registrar may:

(a) prepare the appeal papers.

A question arises as to whether or not that is anything more than a power to do what might be described as "mechanical acts". It hardly seems a wide enough power to authorise a registrar to expend court funds on purchasing transcripts or other documents and, also, it hardly seems wide enough to authorise the registrar to direct some other organisation, such as Auscript, to provide transcripts without payment of fees. These are some of the problems that you face. Is there anything that you would like to say about that?

MR D: Is there not a rule where the registrar may order the production, discovery and that of a document from a party to the proceedings or any other person?

McHUGH J: Maybe he can, but it is not usual - in fact, I am not aware of that power ever being used in that situation. The other problem that you have in this case, it seems to me at the moment, Mr D, is that there is no appeal against any decision of the registrar on this particular point. I appreciate you have made some applications to the registrar, who seems not to have answered your correspondence, according to yourself, but accepting that that is so, the only conclusion is that the registrar has refused to exercise these powers under rule 15. Likewise, the registrar seems to have refused to exercise the power under Order 36A rule 2(1)(r).

There would seem to be no right of appeal against those decisions of the registrar to the Full Court. Undoubtedly, the Full Court itself has got power to dispense with the appeal papers, but this hardly seems an appropriate case on which an appeal could be conducted on that basis. There is a lot evidence here alleging violence on your part, threats, other conduct on your part. The trial judge made adverse findings to you. A court could not decide those issues without having all the evidence in front of it.

So you have to understand that the powers of appellate courts are quite limited in relation to matters of fact. The trial judge sees and hears the witnesses. Justice Rourke saw you, he saw the respondent, he saw the midwife, he saw the other witnesses involved in this particular case and he, in effect, rejected your evidence and accepted the evidence of the other people. It is very difficult to set aside that sort of finding on appeal. I do not say it is impossible but it would be a very rare case indeed where it could be done in a case such as the present. So you would have four or more difficulties in an appeal in any event, but quite apart from that, it seems to me at the moment that a court would not necessarily have to have the transcript if the appeal was to be conducted properly.

MR D: Your Honour, Justice Rourke relied heavily upon the affidavit put in by Dr Geoffrey Leonard Grantham. The information that was put to Dr Grantham by TEK was incorrect.

McHUGH J: When you say it was "incorrect" - you see, we have none of this material in front of us, but the fact that you say - - -

MR D: Yes, but I do have evidence to show that what she has said to Dr Grantham is incorrect, and that incorrect information that has been relied upon by Justice Rourke has been detrimental to my daughter, because it severed any contact between my daughter and myself.

McHUGH J: You see, what you have just said now raises the real problem in the case. You, apparently, want to lead further evidence. That presents problems in itself on an appeal.

MR D: Just using Justice Rourke's reasons for judgment, there is already evidence contained within that, that suggested that there was what I see as misrepresentation to the court by TEK.

McHUGH J: You might say that, but the trial judge saw her and he accepted the various evidence. We are starting to get a bit removed from the issues here, but the only question I raise is that in the Full Court, when the discussion took place with you and the Full Court justices, the court was not asked on that occasion to dispense with the appeal papers pursuant to Order 36. The whole discussion seems to have revolved around whether or not the court could order a transcript free.

MR D: I reckon I got cut out of that, in a way.

McHUGH J: Yes. You have to understand, this Court does not sit as a general court of appeal. That is to say, we are not an appeal court that just takes any appeal. Appeals come here by way of special leave. We can only hear some 90 or 80 cases a year, and when you think of all the thousands of cases that are decided around Australia, there has to be something very special about the case. At the moment, there are some difficulties, very considerable difficulties, in the way of seeing this as a special leave case, having regard to some of the matters I have raised with you. All the Justices have read your submissions carefully. Did you prepare them yourself?

MR D: In part.

McHUGH J: Yes. They put the points quite forcefully and well. You have got 20 minutes, of course, to put the thing, but I think we understand your point, but is there anything further that you would like to - - -

MR D: Only that it really relates to my daughter not being able to have contact with her father, which for her would be detrimental of her interests growing up and later on in life.

McHUGH J: It is not conclusive, is it, the orders that were made? They may create some problems for the future but they do not prevent you making a fresh application at some time in the future, do they?

MR D: They do not, according to Justice Rourke's reasons.

McHUGH J: Yes.

MR D: That is why I say that there was - what TEK had done - enough that she has misrepresented to Justice Rourke, because - - -

McHUGH J: I know, but the judge saw her, heard her, and she did have some corroboration, particularly in relation to the hospital incident and other evidence.

MR D: Yes, I understand.

McHUGH J: It is understandable that the judge might prefer her evidence and the evidence of other people; it was their word against yours. Anyway, I have put to you what I regard are some of the problems, from a special leave point of view. So you carry on; you put - unless you have got nothing further that you want to put.

MR D: From the reasons that we given by Justice Rourke and the evidence that he relied upon to make his decision, there has just been incorrect information put to him in affidavits by TEK. What I see is his decision is based on incorrect information. I have got evidence to show that. That is why I do not need the transcript. I am not relying upon the transcript.

McHUGH J: That is the point. The Court of Appeal would want to rely on the transcript. When did - - -

MR D: Yes, but with the fresh evidence - - -

McHUGH J: That is another matter.

MR D: - - - that I wish to put forward, that it is going to substantiate the allegations that I have put to them.

McHUGH J: There is a question as to whether would allow you to raise - lead the fresh evidence. There are all sorts of problems. I need not get into that, because the issues before us are much more limited. Anyway, I think I understand, or I think we understand.

MR D: The issue is on the transcript, that is right, your Honour.

McHUGH J: The issue here before us is whether or not this case requires a grant of special leave to appeal by reason of your claim that the Full Court had a discretion and obligation to order a transcript to be provided when the transcript provider is prepared to provide the transcript without charge upon receipt of an order from the Full Court. That is the issue.

MR D: There is no alternative issue to the Full Court hearing the appeal without a transcript.

McHUGH J: The alternative is whether or not the court could order the matter to proceed without appeal papers. But, you see, for whatever reason, that point was never argued before the Full Court. It is raised by you now but it was never raised in the Full Court.

MR D: I understand.

McHUGH J: Thank you, Mr D.

KIRBY J: Could I just ask you, Mr D, my concern is the same as Justice McHugh has raised. I think hiding behind the point you have brought to the Court is a very significant question, as far as I am concerned, and that is whether, in effect, the Executive Government, by the limitation in provision for legal aid, can effectively close the doors of the courts of this country to indigent litigants. That is a very important question, and a special leave question.

But what Justice McHugh has put to you is that your case is not a good case to bring that up: (a) because the judge who determined the matter seems to have determined it with the advantage of seeing witnesses, and generally appellate courts will not interfere with that, and (b) that you appear to be wanting to raise new evidence, and it would be very rare that that would be allowed in such a case and that therefore your case is not a good vehicle to raise up the issue which is, potentially, a very important question. I just put that in my own words so that if you want to say anything additional to what you have said in answer to Justice McHugh, you can say it now of forever hold your peace.

MR D: No, I do, thank you.

KIRBY J: Do you think you have responded sufficiently to that point?

MR D: I think so, your Honour.

KIRBY J: Yes, very well. Thank you.

McHUGH J: Yes. Yes, thank you, Mr D. We need not hear from you, Mr Hodges.

The applicant seeks special leave to appeal against the refusal of the Full Court of the Family Court of Australia to allow his appeal to proceed in the absence of the appeal papers required by Order 32 of the Family Law Rules. He contends that the application gives rise to two special leave questions. First, in circumstances where a party suffers financial hardship, and when the transcript provider has agreed to provide the transcript without charge upon receipt of an order in the Family Court, does the Family Court have the discretion and obligation to order a transcript to be provided for an appeal to the Full Court of the Family Court so as to allow compliance with Order 32 rule 13 of the Family Law Rules. Second, alternatively, can an appeal to the Full Court of the Family Court proceed in the absence of compliance with Order 32 rule 13 of the Family Law Rules where it is demonstrated that reference to the transcript is unnecessary.

Where a party would suffer hardship in preparing the appeal papers, Order 32 rule 15(1) of the Family Law Rules gives the Registrar power to prepare the appeal papers. But that power does not seem wide enough to authorise the Registrar to use Court funds to purchase or, for that matter, to order a transcript. In any event, in the present case, the Registrar must be taken to have refused to exercise the power conferred on him by Order 32 rule 15. There is no right of appeal against such a refusal. See Zabaneh v Zabaneh (1991) FLC 92-239. Consequently, the Full Court could not have entertained an appeal against the refusal of the exercise of discretion by the Registrar under Order 32 rule 15, nor in the proceedings in the Full Court was the case conducted on the basis that the applicant was appealing against a wrongful exercise of discretion.

Order 36A rule 2(1)(r) also gives the Registrar power to make an order exempting a party from complying with the Rules. Again, in so far as that rule is relevant, the Registrar must be taken to have refused to exercise that power.

In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.

Whether the case was one for a direction dispensing with the appeal papers in accordance with the power conferred by Order 32 rule 14 was not discussed in the Full Court but, given the nature of the evidence before the trial judge, it seems impossible to think that the case was one for such a direction. Furthermore, no question was raised in the Full Court whether the Full Court could order a transcript provider to provide a transcript free of charge.

In these circumstances, the case is not a suitable vehicle for determining the questions that the applicant now seeks to raise. Nor does it give rise to any question of general principle sufficient to attract the grant of special leave. In my view, the application for special leave to appeal should be refused.

KIRBY J: In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:

1. Waive strict compliance with its rules relating to the filing of transcript in an appeal;

2. Order the provision of a transcript by Auscript if that were required in the interests of justice;

3. Dispense with filing of appeal papers in a formal sense; or

4. Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules, Rule 15(2).]

Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. Clune v Watson (1982) Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Chapter III of the Constitution.

However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed. That wish demonstrates that it would be impossible for the Full Court to hear the applicant's appeal without the trial transcript. Nothing which the Court says today prevents the applicant from pursuing such other rights as he may have under the Family Law Act 1975 (Cth).

I agree with the order proposed by Justice McHugh.

CALLINAN J: I agree that the application should be dismissed for the reasons given by his Honour Justice McHugh.

McHUGH J: The order of the Court will be application dismissed.

MR HODGES: I make an application for costs.

McHUGH J: Mr D, Mr Hodges is asking for an order for costs. Have you any reasons to put why that should not be made?

MR D: I do not own any assets, your Honour. I rely upon unemployment benefits as well as - - -

KIRBY J: Is there not a provision in the Family Law Act that normally costs are not ordered in Family Law disputes? I do not know whether that is confined to the Family Court. Perhaps Mr Hodges can help us.

MR HODGES: Section 117 is a provision which each party pay their own costs in a normal situation. But this - - -

KIRBY J: I understood - I may be wrong - but the practice of this Court in special leave matters in Family Law cases has been to apply that section. The normal rule is reversed and is ordinarily that the parties pay their own costs. I may be wrong.

MR HODGES: I am not aware of that practice, your Honour.

McHUGH J: I must say I am not aware of it either. I think there have been orders made in Family Law cases.

MR HODGES: The respondent has been brought to the Court to respond to a leave application which had no merit in the first place.

CALLINAN J: Are you an undischarged bankrupt?

MR D: I am no longer bankrupt, yes, that is correct.

CALLINAN J: You are no longer bankrupt?

MR D: No.

McHUGH J: I am afraid the application will have to be dismissed with costs, Mr D. Thank you very much for your assistance.

AT 11.03 AM THE MATTER WAS CONCLUDE