DBL v GJL B29/1999 [2000] HCATrans 383 (22 June 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B29 of 1999

B e t w e e n -

DBL

Applicant

and

GJL

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 22 JUNE 2000, AT 12.16 PM

Copyright in the High Court of Australia

DBL appeared in person.

KIRBY J: Mrs L, you are the applicant in these proceedings.

DBL: Yes, I am DBL.

KIRBY J: I have a certificate from the Deputy Registrar informing me that no appearance has been filed on behalf of the respondent. The applicant has filed an affidavit of service depositing to service of the application for special leave to appeal and associated documents on the respondent's solicitors in accordance with Order 69A subrule 4(3)(b) of the Rules of this Court.

You understand that you have 20 minutes to persuade the Court that this is a matter of importance that attracts special leave.

DBL: I do.

KIRBY J: Yes, very well, 20 minutes will start now. What do you have to say?

DBL: I am requesting special leave to appeal an order of the Full Court of the Family Court made on 15 April 1999. I believe there has been a miscarriage of justice in that the order of the Full Court was unfair, unreasoned and unconscionable in the circumstances. In a nutshell, your Honours, this application arises from a costs order made on 23 November 1998 before the honourable Justice Hilton in the Family Court.

At approximately 6.30 pm on the evening of 19 November 1998 my former husband arrived at my front door, demanding my signature on a form to allow our daughter, P, to leave the country the following morning at 10 am on an overseas holiday. My former husband refused to give me any particulars or information relating to who or where P would be staying while she was away. He even refused to give me a copy of the itinerary arranged by the travel agent.

My former husband then informed me that P would be boarding the plane at 10 o'clock the following morning and if she was stopped by the federal police and not allowed to leave the country he would attend the Brisbane Registry of the Family Court with his legal practitioner and seek an urgent ex parte hearing to have the ban lifted.

Later that evening I spoke to Mr John Lewis, a federal police officer at the Brisbane Airport who informed me that the pass alert I arranged in 1996 was still active. The expiry date was 20 April 1999. Mr Lewis assured me that P would not be allowed to leave the country the following morning.

The next morning, being 20 November, I contacted the Brisbane Registry of the Family Court. I explained the circumstances to the registrar who then requested that I fax correspondence to the duty registrar at the Brisbane Registry requesting to be put on notice and served with documents so that I could present to the court to give my reasons for not giving permission at that time for P to leave the country. The registrar also requested that I fax copies of the correspondence to the Southport Magistrates Court and the Beenleigh Magistrates Court.

I understand at approximately 4.50 pm that afternoon my former husband's legal practitioner, Mr Twohill, arrived at my unit to serve me with documents that had been filed in the afternoon at the Brisbane Registry. At that time I was absent from my unit and did not return home until after 9 pm that evening. Mr Twohill also attended the manager's office at the unit complex where I live. He made inquiries there as to my whereabouts. Further, Mr Twohill spoke to my neighbour and made inquiries as to my whereabouts. In addition to this, Mr Twohill was also observed by other tenants peering through the windows of my unit and at the back of my unit in my private courtyard.

KIRBY J: Yes.

DBL: On the Saturday morning I found the legal documents that Mr Twohill had left attached to the security door at the front of my unit. Over that weekend I prepared - can I just take a breath?

KIRBY J: Yes, have a glass of water. Just take your time, you are doing fine. I understand the point you are making.

DBL: Over the weekend I prepared an affidavit which I intended to have signed and filed. I am sorry.

KIRBY J: It is all right. Just take your time. Take a deep breath, you will feel better. There is nothing to be - I know this is very upsetting for you.

DBL: It is just recalling what happened.

KIRBY J: Yes, I realise that. You just take your time and express yourself as you wish.

DBL: Over the weekend, I prepared an affidavit which I intended to have signed and filed in the registry on the Monday morning, 23 November. However, on that day Justice Hilton heard the matter first up after call over. I was not provided with an opportunity to have the affidavit signed or filed in the registry.

Further to that, the Family Court Registry failed to provide me with adequate time to seek legal advice or respond to the application. The fact is, it is near impossible for self-represented litigants to obtain legal advice or even have an affidavit signed over a weekend period.

At the call over that morning, Justice Hilton made the comment to a full court room of barristers and solicitors. He made the statement in a loud, clear voice, "I remember you". Justice Hilton failed to disqualify himself when he ought to have done so. At that time I was appealing an earlier decision made by him.

As well as this there were other judges on duty that morning who could have heard the matter or the matter could have been heard later that day or even the next day. There was no real urgency about this trip. The school year had not finished, although the Family Court viewed that it was. I understand the Family Court's philosophy is that the child's welfare is paramount. However, in all of these circumstances, I consider my child's welfare was put at considerable risk.

CALLINAN J: Where is your daughter now, Mrs L?

DBL: She has returned home from the trip.

CALLINAN J: She is back?

DBL: She did not have a very nice holiday but that was because it was not prepared properly.

CALLINAN J: But she is back with you?

DBL: Yes. Nothing happened to her.

CALLINAN J: Yes.

DBL: Justice Hilton accepted material from the legally represented party that had not been served in accordance with the practice directions of the Family Court. Do you want me to direct you to where that is in the - - -

KIRBY J: I think we are familiar. I have noted up the papers myself and I know where it all is. Mainly it is on page 27 of the application book.

DBL: Okay. As well, P was 15 years old, not 16 as stated by Justice Hilton in his reasons for judgment. That day Justice Hilton made an order that the pass alert ban be lifted to enable P to leave the country the following Wednesday. She was not leaving until the Wednesday so my point I am making is there was no urgency that the matter had to be heard that morning because I was refused to prepare a case, prepare my documents for the court. This was also P's second overseas holiday since the property settlement in 1994.

Later that morning I filed an application to have these orders stayed. This application was heard that afternoon before Justice Hilton. He denied me a stay of orders and subsequently made another order that I pay the respondent's costs. That is the order that I was to appeal to the Full Court of the Family Court on 15 April.

KIRBY J: Can I explain to you, if I may, what, from the point of view of this Court, are the impediments in your way? The first is that this is what we would classify in the law as a procedural order and it is very difficult to get an application for special leave up on such a matter because hundreds and hundreds and hundreds of them are made every day in the courts of Australia and some people can misuse applications in such cases. I am not saying you do, but that is the reason so that is problem number one.

Problem number two is that it is a costs order and the restraint that exists in ordinary procedural orders is doubly restrained in costs orders because otherwise you are chasing costs and they just mount up and the third problem is that if you look at what happened, you turned up and you are upset and you asked for an adjournment and then Mr Twohill, I think it is, said he was prepared to do so, so long as the costs were paid and you said, "I will accept that". So, at least arguably on the basis of the transcript, you accepted the application for adjournment. Now, they are the three problems you face.

DBL: I understand what you are saying but my point that I am making is that - can I continue with my - - -

KIRBY J: Yes. You take your own course but you only have 20 minutes as you understand.

DBL: Yes. On the 15th, my former husband and his legal practitioner turned up at the Full Court of the Family Court unannounced. No material had been filed by the respondent or his legal practitioner in accordance with the practice directions so the point I am making is that I am continually being sandbagged. I think that that is a term that has been used and the legal practitioner had an opportunity to file documents in the court and he chose not to. However, he turned up and was invited - he did not ask, he was invited by the Full Court - - -

KIRBY J: But it was a day when the proceedings were returned before the court and you were upset from what had happened on the previous day, I think.

DBL: The previous day was not relevant to what was being heard. It was an urgent spousal maintenance.

KIRBY J: Yes, but you said you did not want to go on with it because you were too upset from what had happened on the previous day.

DBL: I was, because I suffer from a disorder.

KIRBY J: Well, I can understand that. You were upset but he said, "Look, it's listed today. I've turned up". The normal order that is made by a court if a party wants an adjournment is that they have to pay the costs.

DBL: I hear what you are saying, but I do not think that that is appropriate under the circumstances.

KIRBY J: It is not set in stone. It is not inflexible. Courts have a discretion. They can make a different order but that is the normal order and we are faced with a situation that you are seeking to lift up into the highest Court in Australia a case concerning a challenge to just a procedural order in relation to costs in respect of a day where you said, "I accept that".

DBL: I hear what you are saying. I accepted it because I had to get away. That was better than - I could not present my case on the day.

KIRBY J: I know that.

DBL: What I am saying is that it is a miscarriage of justice because there is a set of rules for legal practitioners and there is a set for self represented - - -

KIRBY J: Not as far as I am concerned. Everybody comes to a court in which I sit, and I am sure Justice Callinan, equal and that is a very important principle for me, so there is no different set of rule at all.

DBL: Well, how come a practitioner can get right of appearance when they do not follow the rules?

KIRBY J: They study for years and they have to take lots of examinations and they have to conform to requirements of character and reputation and then they are admitted to become a legal practitioner.

DBL: Can I continue?

KIRBY J: Yes.

DBL: No material had been filed by the respondent or his legal practitioner in accordance with the practice directions, Order 32 rule 16B, a copy of which I have supplied to the Court. I refer to the photocopy of correspondence from Susan Gardiner, the northern regional appeal registrar of the Full Court of the Family Court dated 9 March 1999. This correspondence verifies that Mr Twohill was provided with practice directions regarding the filing of an argument and list of authorities.

I requested an adjournment on that day because I was very unwell. I was to undergo major surgery the following Monday at the Mater Hospital in Brisbane. Furthermore, I had also represented myself the previous day at a hearing of an application for urgent spousal maintenance. In addition to this, it had also been my past experience that I would not receive a fair and just hearing due to the unreasonable and improper conduct of the respondent and his legal practitioner.

On 15 April the Full Court did grant me an adjournment and subsequently made an order that I pay the respondent costs thrown away by reason of adjournment, assessed at $500. The Full Court invited the legal practitioner to apply for costs thrown away, even though no material had been filed by the respondent or his legal practitioner.

It is my understanding that the Family Court of Australia makes rules and regulations so that individuals like myself can access the court system with confidence as to what is going to happen in the courtroom next.

On 15 April 1999 the Full Court of the Family Court discriminated against a self-represented litigant. In effect, Mr Twohill, the respondent's legal practitioner, abused the court's rules, regulations and process which caused me a substantial injustice. I refer to the research report No 20, Litigants in Person in the Family Court of Australia. This is a most recent report by the Family Court of Australia published earlier this year.

KIRBY J: I have seen that report.

DBL: It was conducted by Professor John Dewar and Cate Banks, both of the Faculty of Law, Griffith University, and Barry Smith from the Family Court of Australia. In particular, I refer the Court to page 3 and at paragraph 2 at the introduction and the acknowledgments. The Family Court of Australia released research findings in December 1998:

into the effects of legal aid cuts on the FCA and its litigants. One of the findings of that research was that 35% of Family Court matters (including defended hearings, duty matters and directions hearings, but excluding appeals) involved at least one party who was unrepresented. That research also canvassed the views of judges and registrars, by questionnaire, as to the effects of the lack of representation on the unrepresented party, the other (represented) party, the Court itself and (where relevant) the subject child of the proceedings. In brief, the research indicated a significant degree of concern amongst judges and registrars as to the effects of self-representation, and in particular that it caused injustice, usually (though not exclusively) to the un-represented party, and that it added considerably to the burdens on the Court.

I refer to the Service Charter of the Family Court of Australia and, in particulars, pages 2 and 3 where the Family Court states that litigants have a right to:

fair and helpful assistance

have their privacy respected

have information about -

litigants -

kept confidential unless the law requires otherwise

a fair and just hearing in a safe environment

timely decisions by the Court

access to some information on -

the litigant's file. Further, that litigants:

have a responsibility to:

comply with any directions, orders and decrees of the Court

give full and frank information

co-operate with any requests or directions of Court staff

behave courteously and peaceably in and around the Court

pay fees for some Court proceedings, subject to -

the litigant's-

financial position.

I refer to the Family Court Service Brochure, Appeals Procedures, and in particular at the top of page 13 marked "Summary Information". I also refer to the copy of the Family Court Rules (1984) Order 32, Rule16B "Summary of argument and list of authorities". You are required to file and serve a summary of your argument and list of authorities.

KIRBY J: Yes, we know. We know all this. I do not really think this helps us. I presented to you the three problems that stand in your way. I am familiar generally with the material you are putting before us but you have to address your mind and your attention - you are obviously an intelligent woman - to the three problems that have been presented. One is courts do not interfere in practice and procedural decisions unless you can show a clear error of fact, law or principle.

DBL: I feel that I have in the fact that they did not file any documents. However, the legal practitioner assumed right of appearance that day. He had no right to do that.

KIRBY J: But he was there in proceedings, representing your former husband. The proceedings were listed that day.

DBL: He did not follow procedure. It is like here, if I did not follow the documents, I would not be given a right of appearance.

KIRBY J: It would be within the discretion of the court to waive that procedure. After all, he had turned up. Somebody has to pay for that.

DBL: But I am saying that he erred. I am saying that the Full Court erred in their decision to do that.

KIRBY J: I know you say that but you have to show a very substantial case to get this Court interested in such a matter, especially a matter relating to costs, for the reason that I have explained to you.

DBL: I refer to the judgment of the High Court in Dietrich and that has already been talked about this morning in the Court.

KIRBY J: Yes, we are very familiar with Dietrich but that relates to criminal trials.

DBL: Is not the due process of law, is there a different set between criminal and civil?

KIRBY J: There is a special holding of this Court in relation to criminal trials.

DBL: My experience is that the rules, there is a double standard and I have spoken to Justice Ellis about this.

KIRBY J: The decision in Dietrich has led to a drift of funds from what used to be more in family law to criminal law, simply because in criminal cases, people stand at risk of losing their freedom, liberty, being locked up.

DBL: I am saying to you that I did not get a fair and just hearing.

KIRBY J: I realise that.

DBL: And that is because the procedure - I followed the rules and regulations but it appears that nobody else did and I am saying to you that that is not just and fair and that is in breach of the due process of law. I mean, that is the very foundation that the law is - - -

CALLINAN J: Mrs L, what document do you say should have been filed by Mr Twohill?

DBL: An appearance, a list of authorities, his argument. There is nothing there and yet I had to pay their costs for the day.

CALLINAN J: But you agreed to pay their costs.

DBL: I was not well that day.

CALLINAN J: You agreed to pay their costs.

DBL: I know, but you are putting that on me and I said upfront to the judge, "I am not well". I had proof of it, I had medical - and I am saying to you I think that they were being very unreasonable. I have had other appeals before Justice Ellis and I won the appeal. My husband did not have to pay my costs and that is what I am saying to you.

KIRBY J: Yes, we have read all that in the application book and I can understand, in a general way, why you think it was unreasonable.

DBL: I am saying there is a double standard.

KIRBY J: That may be so, but we have to look at it from the point of view is there sufficient to give special leave to appeal to this Court in a case where you agreed to the order.

DBL: I did not agree to it.

KIRBY J: That makes it very difficult.

DBL: I agreed to it in part because I was not well.

KIRBY J: The words in the application book are:

I will accept that.

DBL: What page is that on?

KIRBY J: Page 27 line 12.

DBL: I think I also said - I went on to go something and then I closed my mouth because I had been caught in that - - -

KIRBY J: And Justice Ellis said:

I am sorry. I didn't catch the last word you said.

You went on:

Well, I would be grateful for the three months - for that time to pay - to make the payment, I would be more than grateful, if you could allow me that much time.

DBL: The point I am making is that I was not well. I told him up front and I have backed up what I have said. It is not just me that is being - there is over 35 per cent, that research report backs up my argument that there are things happening in the Family Court that are not appropriate and that is where I am coming from.

KIRBY J: Thank you very much.

This is an application for special leave to appeal. It has been heard in the absence of the respondent; but service upon him was proved. The application comes from an order made by the Full Court of the Family Court of Australia (Justices Ellis, Finn and Joske). By their order, their Honours required that the applicant pay certain legal costs. The costs order was limited to $500. It was made when, at the last minute, the applicant sought adjournment of the hearing of a proceeding in the Full Court. The adjournment was agreed to by the legal representative present in court for the applicant's former husband. However, he agreed on the basis that the costs "thrown away" would have to be paid by the applicant. This would be a normal order made in such circumstances. The applicant, on one view of the transcript, accepted that basis for the adjournment and asked time within which to pay the sum. But even if she did not accept the basis for the adjournment, the order would be an ordinary one made in such circumstances and in no way exceptional. As I explained to the applicant, appellate courts will not intervene in such matters except for reasons of principle, proved error of law or fact. Appellate courts are especially reluctant to do so in cases involving no more than further costs because, otherwise, the costs of the appellate process chase the costs of the order under question. No sufficient reason has been shown to warrant the intervention of this Court. Accordingly, special leave is refused.

The Court will now adjourn until Tuesday, 27 June 2000 in Sydney at 2 pm.

AT 12.39 PM THE MATTER WAS CONCLUDED