IGS v JLL & Anor M81/1998 [2000] HCATrans 771 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M79, M80, M81 of 1998

B e t w e e n -

IGS

Applicant

and

JLL

First Respondent

WENDY SYLVA, Child Representative

Second Respondent

Office of the Registry

Melbourne No M89 of 1998

B e t w e e n -

IGS

Applicant

and

IC

First Respondent

PHILLIPS FOX (A Firm)

Second Respondent

Office of the Registry

Melbourne No M90 of 1998

B e t w e e n -

IGS

Applicant

and

RJB

Respondent

Office of the Registry

Melbourne No M102 of 1999

B e t w e e n -

IGS

Applicant

and

JLL

Respondent

Office of the Registry

Melbourne No M126 of 1999

B e t w e e n -

IAN GRANT SYKES

Applicant

and

EQUITY TRUSTEES EXECUTORS AND AGENCY CO LTD (Acting in their capacity as executors of the will and estate of YVONNE JEANETTE de SAVERY)

Respondent

Applications for special leave to appeal

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 2.56 PM

Copyright in the High Court of Australia

__________________________

MR I.G. SYKES appeared in person.

MR P.J. COSGRAVE: May it please the Court, I appear for the respondent in the last of those matters. (instructed by Moores Solicitors)

GUMMOW J: Mr Sykes, it appears to us that we should divide the matters up this way. Matters in the list 9, 10 and 11, we would be assisted if you dealt with them consecutively in one passage, as it were. If we allotted you no more than 40 minutes to encompass that, then we will deal with matter No 12, which is the one in which Mr Cosgrave appears as well. So if you could address yourself initially to matters 9, 10 and 11. There are three application books dealing with those. The first one, I think, we would be assisted with would be M102 of 1999. Do you have that book there?

MR SYKES: I have. I will be far less than the time allocated, I think. I only want to make some brief points, so - - -

GUMMOW J: You deal with it as you wish, but if you would deal with the first three as I have indicated, starting with M102.

MR SYKES: Fine. I just want to emphasise - - -

GUMMOW J: Just before you do that, I should indicate that there are no appearances in those three matters for the other side. I should indicate in M102 the Court holds certificates from the Deputy Registrar, first, that she has been informed by Hall and Wilcox, the solicitors for the child representative in the Family Court proceedings, that the child representative does not wish to appear here. She has also been informed by Mahons, solicitors for the respondent in M102, that the respondent does not seek to appear at the hearing and will abide by any order of the Court save as to costs. Then in M79, M80 and M81, again there are certificates to the same effect from the two firms of solicitors, Hall and Wilcox and Mahons. In M90, again there is a certificate from the Deputy Registrar that she has been informed by the respondent to that matter that the respondent does not seek to appear at the hearing and will submit to any order of the Court save as to costs. Now, with that lengthy introduction, if you could start your time from now, Mr Sykes.

MR SYKES: Thank you, Justice Gummow. All I wanted to do in matter 102 of 99 is to refer the Court for emphasis to pages 21 to 29 of the application book.

GUMMOW J: Yes, that is the affidavit.

MR SYKES: That is right. That is just the documents that give rise to the various proceedings that are now coming towards an end, hopefully. But they, of course, are the documents on which the original judge made his interim orders, Judge Frederico, on about 14 November 1996. I would refer to those documents because, first of all, they are basically unsatisfactory. The first document is an affidavit by JLL, a government social worker, who has the care now of my younger daughter, who is a child, as a result of those orders. As you will see if you wish to, on page 30, the substantial matter there has been withdrawn in cross-examination by JLL, so she admits that - - -

GUMMOW J: Where do we see that, on page 30?

MR SYKES: In two places. At line 17 she says, "It is not correct." Later on I ask, "That is wrong, is it not?" and she says "Yes." So she has attributed things to my daughter that my daughter never said. Of course, those things were never tested at any interim hearing at all because no evidence was called.

The next document I would like to draw your attention for emphasis to is the letter - may I name the solicitors involved or may I not? Do I just use their initials perhaps, but it is a solicitor's letter from LS & C, solicitors in Tasmania and it is submitted to the Family Court through another solicitor called MC.

GUMMOW J: Yes.

MR SYKES: Now, normally that would not be evidence in a court. In fact, my understanding, rightly or wrongly, is that private communications between a client, which was in this case my wife, and solicitor remain forever confidential and outside the jurisdiction of a court.

The third document is on page 27 and that is a document which has been disputed by me and gave rise to another of these actions where I sought to have a person in contempt for putting in a statement which was false. Now, that was never resolved because the matter was thrown out without being heard. That is one of the matters under appeal today. They are all the documents except the documents on pages 28 and 29 where this lady, JLL, who I have never met previously, puts in a report under form 66 to the authorities alleging abuse. So, in other words, if the Court were disposed, there is the possibility of a preposition arising as to whether a government social worker, who is in sort of a position of privilege in relation to my family, can uplift a child anyway. In other words, the State is employing somebody to help my wife over some problems. She gains thereby some information and later uses that. Now, that could well provide a preposition in the High Court at this level that people cannot behave like that anyway, regardless of whether they have acted truthfully or untruthfully. So that is a prepositional thing.

Now, that is all I wish to refer to in that matter. That is the total amount. It is all of origin, but from that origin a great deal of trouble has obviously stemmed to me and I would suggest that the Court would note that there is no representation by my younger daughter today, who is a child. She is just in first year high school and that might suggest something else. But I will leave that. That is all I wish to say, unless there are any questions.

GUMMOW J: How old is your daughter now?

MR SYKES: She is 14. She has completed first year high school. When my wife died she was nine years and one month old. When she was put into care by my wife, pending her death, she was eight years old. That is all I wish to say on that matter.

GUMMOW J: The next one is perhaps M79 or whichever order you wish to take it. The book that has M79 is the first one.

MR SYKES: Yes, that is right.

GUMMOW J: That arises out of the orders of Justice Joske.

MR SYKES: Yes. Really, there is nothing to say there except that the authorities are that a person normally is not declared a vexatious litigant unless they repeat frivolous applications. None of my applications, of course, were repeated. I had a substantial interest in the matter that I argued and, furthermore, I have drawn the Court's attention to the fact that I argued extremely vigorously - in other words, I tended to take every opportunity I could to push my point - because a substantial injustice, in my opinion, is occurring against the estate of my daughter, my child - that is the younger daughter, the other one has grown up - in that JLL, the social worker, was using the funds of my daughter to finance the applications against me. There were two applications she made: one was for custody of the child or residence and so on and the exclusion of myself, in which she succeeded; and the other was to have me declared a vexatious litigant, in which she also succeeded.

Now, in each of those cases, the costs were not awarded to my daughter, they were awarded to the social worker. So, therefore, she was the recipient of substantial gain whereas my daughter bore the costs. Now, that seems to be an area where the High Court might care to spend a moment's reflection because in no case did the JLL social worker say that if she was awarded costs, they would be repaid to my daughter, even though I had raised those points. So one can presume that were the costs to be paid, she would be the one who was the recipient of this gain. I, of course, say that this person, on their own evidence, has given what is totally untrue things and also totally hearsay things because she never knew me from a bar of soap until she saw me in court. So I say a substantial injustice has been done and that is another area where a prepositional thing, which of course is the language of this Court, might result and that may stop the same thing happening somewhere else because, of course, other courts follow on from decisions here. So that is my submission on that.

GUMMOW J: Then M89 and M90 arise from the decisions of Justice Kay and Justice Brown, I think.

MR SYKES: They do. Now, on that, I would like the Court to draw emphasis again on page 29 point 3.15. In this case, I have complained that a large international firm of solicitors has written to the court registrar saying that on a cursory examination my case against their client had little merit and another letter followed saying to keep letters on the court file and they were, as you see from the evidence, kept on the Family Court file. Now, it seems to me that at line 7 and onwards the judgment draws near to one of the points that could have been made, but it never develops it because it says:

It is also important to emphasise that a copy of each of these letters was forwarded to and received by the appellant at the time they were sent to the Court.

Of course that is true. But looking at precedent the Court tends to, in the past, in the judgments that I have read look at the effect on the court itself as to whether the honour is being upheld but, in this case, the person is a litigant in person and much more subject to being browbeaten, perhaps, than a person who is a solicitor's firm, who is used to the fights that go on in litigation. I would say that that is an important point, but it is my way, I think, because really it means that a tiny person who may not really understand what a registrar does, for instance, is sort of looking at a letter being sent to the court by an international firm of solicitors, PF, through an officer, IC, and saying, "Look, goodness me, these people have the power to write to the court officials themselves and to comment on my case and its merits and to have that person put a letter on the court file." And those letters were kept on the court file.

Now, that, in my opinion, browbeats the litigant in person. So that is an aspect that is not discussed in any of the judgments and, of course, the solicitor firm, it would never be relevant. But in this case it is and I say that the High Court could well consider that as one of the prongs of the arguments in favour of not sending letters commenting on litigation. I mean, the ideas of usurping judgment and all that, they are common and they have already been decided in other judgments. So that point was not developed by their Honours in the judgment but it was mentioned that it was important, and I agree with that. So I say that the firm, PF, and the individual, IC, was not entitled to browbeat me at all by sending me a letter saying that he had powers that he did not.

Also, just on ordinary precedent which I have given from Borrie and Lowe, he was not, of course, entitled to write to a court official either and comment on my case. That is not allowed, in my opinion, and if it was, there would be no end to what people could write. Courts are open, and they have been for years, and also I comment, too, on the reply of the firm, PF, and the person, IC, that they have mentioned cases that are, in my opinion, quite clearly irrelevant to this case. These are not cases like Derryn Hinch's case and so on where the press have been involved and publication has taken place. These are direct approaches to the court and the judges through a senior court official and cannot lead to confidence in the state of justice in the Family Court or anywhere else. That is enough for me to say on that. You will be more familiar than me on those matters.

Now, if there are no questions, does that draw me to the next one?

GUMMOW J: Yes, that draws a line until the last matter, I think. So Mr Cosgrave had better come to the Bar table, I think.

MR SYKES: Yes, then I will go on.

GUMMOW J: Now, what would you like to say about the Supreme Court litigation?

MR SYKES: There is one matter. Of course, the contempt - there are two contempt matters and I dealt with the first one, IC, and the other one is RJB, the person who wrote that fax which carries on its date and source is on the document itself and there I only wish to draw your attention to one thing, and basically that is that in this case there is the potential not the clash of laws but the conflict of courts because what the court knows from this judgment is as follows: they know, of course, there is a dispute on the truthfulness of Mr B's fax, but that was never argued and, of course, the first point I make is that the Family Court did not follow their own procedures as set out at all. Mr B was never asked whether he stood by those statements according to the rules or not.

But the court knows one other important thing too, and that is that in the following year, 1997, that is after the judgment where Mr B's fax was used, Mr B commenced an action against the estate of my daughter to claim moneys from her. That action is still current pending these matters. So if it is true - the court does not know - that Mr B manipulated one court to deprive a child of its father who is likely to try and protect the daughter's interests in money, and then sued her for money, that would be, if it were true, a use or manipulation of two lines of courts by the one person. Therefore, I say it is very important for the Family Court to have established whether those things were right or not, and therefore a contempt matter is relevant and, secondly, it is doubly relevant because there was no other court in which I could really commence a relevant action. That was the only law that I could see open to challenge this matter. We know, also, that Mr B never appeared in the substantial hearings at all to justify what he had written and signed and sent by fax to the various solicitors.

So, in other words, the court has been forced by its two lines of authority, which of course you decide on, to take a gamble as to whether one person is telling the truth or another person is, without actually having any evidence or any sort of decision in an ordinary legal way. We have a document, the document is being used, and of course I say that the person, Mr B, having won that section, assisted by his own document which was damaging to me, then goes on to make a claim against the assets of my daughter who is weakened by the fact she has nobody who knows anything about the family situation to help her. So that is the submission on - - -

GUMMOW J: What do you say, Mr Sykes, about the application for leave to appeal from the Victorian Court of Appeal on the property matter?

MR SYKES: On the property matter - I have not got to that one.

GUMMOW J: That is M126.

MR SYKES: Yes, that is right. That will finish - - -

GUMMOW J: That is the one in which Mr Cosgrave is appearing for the Trustee company.

MR SYKES: Fine. Again, I have only got general points, because I think I have made my substantive points in writing. But I say that I had a marriage as defined by the United Nations Convention on the Rights of the Child to which Australia is a signatory because it was for life. It has ended because my common law wife died. It was voluntarily entered into and it was exclusive, both male and female parties, although a separation occurred - some dispute on that - in 1986.

Now, the applicant in the history of this matter did not commence the action in the Supreme Court, the one that you are now concerned with, first. He commenced an action under the Administration and Probate Act 1975 which allows the court to award moneys to, say, a husband who has been left bereft of money and has to raise a daughter or something like that on the grounds he was not married. Now, I took the view that the court would ignore that particular clause on the basis that it is discriminatory. That would rest on the type of decision of the Tasmanian homosexual case where there was a decision by the United Nations court that certain legislation in Tasmania was invalid because it was discriminatory. Of course, it is no reason to expect why somebody should be discriminated against, providing they have carried on a marriage consistent with the definition of marriage. I give you a copy of that definition anyway in the papers.

That application was refused, so this applicant then proceeded to issue the current statement of claim so that if the matter ever went any further, the applicant here could argue that he has tried every available source that he can think of. In other words, one was refused, and he then proceeded on the basis of the documents that you have. I gave the Court some papers to say - - -

GUMMOW J: But you initiated the action in the Supreme Court we are concerned with, did you not?

MR SYKES: Yes, I did indeed, yes, after I failed in the probate one. It is the same action but it just had to be done a different way, so I had to redraft the statement of claim. I gave you some papers just to say that these discriminations are now widespread because approximately 27 per cent of all births in 1996 at the date of the census were in fact without marriage and that is rising steeply from almost nothing when the Family Court started. Also I have given papers to say that a third of men now will not marry and that the two-thirds that do, half can expect a divorce. The offspring production now from 200 adults is 119 children. That means the society is imploding, which is a very unusual thing. It has never happened before. One generation it goes down to 60 per cent, 36 per cent two generations, 22 per cent in three, and 13 per cent in four generations. They are very exceptional figures.

That means the matter is important. That is all that that matter is raised for, and also that the idea that one section of the community should be discriminated against, there is now a very vast number of people there because ex-nuptial births are still rising rapidly and can be expected to reach at least a third of all births. So that is the point I make there, that the discrimination is widespread. It is just not an isolated example at all.

Now, the final thing I wanted to emphasise was the exhibit O in this matter. I gave you a copy of that. Basically, this coupling was really basically partly evidence in writing and exhibit O was a document discovered by the respondent and remembered by the applicant and continues to be acted on as one child who is in first year high school now is not raised, and that document basically said that the agreement was between two people to have and raise children. That is in the writing of my late wife and that has not been disputed by anybody either. Now, I say that contract is not finished. So therefore, if the Court was of a mind, it could say, as a matter of public policy or whatever - or of contract, indeed, without public policy - it could say that that takes precedence over everything else. Otherwise, what happens is that people like myself and people like my daughter are then forced on to the State for charity for assistance, which is perhaps unnecessary in a family that had already provided enough money to buy a family home and things like that. So that is what I have used there.

Now, I have a separate argument, too, here, and that is that we have a case which really says IGS or Ian Sykes against Equity Trustees, but basically even that is challengeable in the sense that my younger daughter's financial interests are absolutely diametrically opposed to my adult offspring on the grounds that they will benefit much more if they receive their inheritance in total now, without being diminished by the fact that my younger daughter is not yet raised. In other words, normally she would get a share of resources that we had saved to educate her and so on, and I sought to look after that through an opal collection that I handed over. In evidence, it is clear that I had handed it over and my wife had written to somebody saying that "Ian gave me these", but she did not say why. But she said not to tell me.

But I say then the respondent seeks to represent all the offspring by only what can be called a numerical majority of right because my younger daughter certainly does not agree with her getting less than she should and she is the weakest member in this litigation and she is the one I am supposed to be protecting. So if a proposition exists in couplings that these must first raise children and, secondly, look after the other partner for life, then what the applicant seeks, either in whole or part, might be able to be granted, and that is the family home for life, administration of an educational trust under his control, re opals that he had handed to his wife, and some money, however specified. So, such questions, I say, arise from the idea of marriage itself, otherwise that institution is weakened even further.

Now, I do not think there is really any necessity to pester you any more on those issues. But they are fundamental issues and they are important issues. They will have a bearing on what happens elsewhere in not just one case but a large number of cases and it is on those grounds that I have pestered the High Court to see if it wishes to consider the basis of marriage and what might happen. I say, too, that the High Court has considerable power to do that if it wants to. I have argued, of course, on the religious basis of the Constitution but that is only one basis. I say that the Court is not constrained by what is written in the Constitution any more than it is constrained by if somebody breaches the Constitution and it is not rectified, and the latter point, you could say, well, we do have an air force, yet the Constitution allows only a standing army and a navy. Also the Constitution requires the currency to be backed in gold, and that has not been so for quite a while.

Now, those things do not vitiate or overcome the Constitution at all. So I say that, really, the Court is entitled to look at these sort of Albert Venn Dicey definitions of what the Constitution might be and he says basically that you cannot write down the powers that the High Court or the Supreme Court of the land has. Of course, in my opinion, that is right. You cannot, because you cannot say what issue is going to come up, what change will take place and so on. The argument against that could be that you say, well, okay, if some fundamental changes occur we can alter the Constitution by a referendum and, of course, there are examples of that happening already. But I say that the High Court is not constrained by what is written. It is entitled to go further if it so wishes, but for a reason.

The next point I make is that under international law Australia signed in 1990 the Convention of the Rights of a Child which place parents, not people who provide the best education or whatever it is for the child, as the prime parties. Now, your previous decisions have been that if Australia signs a convention, then we are not bound by it any more than England is, but of course Europe and America take the opposite view, that their citizens are immediately bound. I have put a - - -

GUMMOW J: That is not quite right in the case of the United States, is it? It has to go through the Senate.

MR SYKES: I think that is right. I think it might. But I think that the basis - - -

GUMMOW J: Not just the President; it has to be ratified by the Senate.

MR SYKES: By the Senate, yes, but America basically has the idea that it does follow what the United Nations says. Now, I have taken a very moderate view that if we - the Court has not decided what happens when a major change in legislation happens subsequently, so in this case we have 1990 we signed the agreement on the rights of the child, but in 1996, on 11 June, we adopted a completely Act and a lot of the pages that I have given you, you just notice if you look at each paragraph the new section, the new section, the new section, they have completely altered the Act against what Australia signed. Now, if the High Court were to take the view that that is correct, that would mean international treaties that Australia sign have no meaning. So I say I have an arguable point there, even if you do not alter the earlier precedents that we are not bound until the things are ratified by Parliament. So they are the basis of the submissions at High Court level. Thank you.

GUMMOW J: Yes, thank you, My Sykes. Now, Mr Cosgrave, are you content to rely on your written submissions?

MR COSGRAVE: I am, your Honour.

GUMMOW J: Yes, very well. We will take a short adjournment.

AT 3.30 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.44 PM:

GUMMOW J: The applications which are made to this Court today are found in four application books. What we are about to say refers to the applications in the three application books respecting litigation in the Family Court of Australia. Serious allegations were made there against the applicant. In particular in his oral submissions this afternoon he referred us to a form 66 document dated 16 October 1996. The applicant strenuously denied these allegations. Nevertheless, the Full Court determined that it was in the best interests of the applicant's child that the applicant be deprived of contact with her. The applications which are now before us arise out of that result but are specifically directed to aspects of the litigation which, in law, are largely, if not wholly, subsidiary. There is no substance in the constitutional points that are sought to be raised, namely those concerning section 116 of the Constitution, the position respecting international treaties and the voidness of the Family Law Act (Cth). With respect to the remaining grounds in the various applications, there are no reasonable prospects of success in any appeal to this Court. Accordingly, special leave is refused and applications Nos M79, 80, 81, 89 and 90 of 1998 and M102 of 1999 are dismissed.

The remaining application, No M126 of 1999, is brought in respect of a judgment of the Court of Appeal of Victoria delivered on 25 November 1999. That Court held that the trial judge in the Supreme Court had made no error of fact or law in deciding that the oral agreement alleged by the applicant had not been made and that no grounds respecting estoppel, resulting or constructive trust were made out. The Court of Appeal also rejected the claim, independently of the alleged agreement, to a life interest in what, in the litigation, was identified as the Rupert Street property. There are no prospects of success in establishing error by the Court of Appeal in the disposition of that appeal. Accordingly, special leave is refused and application No M126 of 1999 is dismissed. Having regard to the written submissions, it is dismissed with costs.

The Court will now adjourn until Monday, 5 February 2001, at 3 pm at Canberra.

AT 3.47 PM THE MATTER WAS CONCLUDED