Bienstein v Bienstein M98/1999 [2001] HCATrans 118 (28 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M96 to M99 of 1999

B e t w e e n -

TAMARA LEAH BIENSTEIN

Applicant

and

SIMON BIENSTEIN

Respondent

Office of the Registry

Melbourne No M140 of 2000

B e t w e e n -

HELEN BIENSTEIN

Applicant

and

SIMON BIENSTEIN

Respondent

Chamber summonses

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 28 MARCH 2000, AT 4.44 PM

Copyright in the High Court of Australia

___________________

MRS H. BIENSTEIN appeared in person.

HIS HONOUR: Mrs Bienstein, the matter before me today I think is your application of 23 March; is that correct?

MRS BIENSTEIN: There are two - well, I suppose five of them. I think that they were - - -

HIS HONOUR: Yes, but they are all dated, I think, 23 March; is that correct?

MRS BIENSTEIN: That is when they were issued but that is not when I actually lodged them. I lodged them some month or so prior to that, so it took a month to get a hearing date.

HIS HONOUR: Yes, all right. I have read those applications. It is not entirely clear to me precisely what you want me to do, Mrs Bienstein.

MRS BIENSTEIN: Well, what I would like is to have all my hearings proceed in this manner and for all of my material to be centralised in Canberra rather than in Melbourne, to be managed there so that I can refer to all of the materials and cross-refer, because they all really refer to matters stemming from a Family Law cause of action.

HIS HONOUR: Mrs Bienstein, there is no advantage in the papers being in Canberra and, indeed, you are, yourself, in Melbourne. You live in Melbourne, do you not?

MRS BIENSTEIN: Yes.

HIS HONOUR: Well, it is appropriate that the papers be filed and kept in the Melbourne office of the Registry. There is only one Registry but there is an office of it in each capital city and there is an office in Melbourne and that is the appropriate office in which your papers should be filed and where they should be kept and I cannot think of any reason why the papers should be dealt with other than in the usual way, that is, by filing them and keeping them in Melbourne.

MRS BIENSTEIN: Well, there are a number of reasons that I set out in my material why I would like to have them moved to Canberra. I do not want to make this into a whinge session about my experiences in the Registry here. I would like to be able to do it on the basis of the appearance of fairness and the absence of bias in the process.

HIS HONOUR: Mrs Bienstein, you do not have any material before me, I have seen no material that is capable of persuading me that any official of this Court who has been involved in dealing with your affairs has in any way at all been guilty of actual or apparent bias. There is simply no material upon which you could possibly base such a submission.

MRS BIENSTEIN: I wish to base it on the public's perception based, as I put on in my material, on the fact that my complaints are very serious about the Family Court judiciary and the registrars there who are in the same building as the office of the High Court Registry in Melbourne and there would have to be a lot of fraternising between the staff of the two courts. One of my actions is an appeal from Justice Hayne's decision on the basis of actual bias.

HIS HONOUR: No, wait a moment, Mrs Bienstein. You do not have any appeals before this Court. You can only appeal to this Court with a grant of special leave and no grounds - - -

MRS BIENSTEIN: I have two appeals before the Court.

HIS HONOUR: No, listen to me for a moment, please. Listen to me for a moment, please, Mrs Bienstein. You may have described documents that you filed in this Court as notices of appeal, you might think that they are appeals, but there are no appeals as of right to this Court. There is simply no appeal as of right. You have to make an application to a Full Court of this Court before you can appeal to this Court, and that application has to be allowed and a grant of special leave made. So you have no appeals to this Court. You may have applications for special leave to appeal to the Court, but you do not have any appeals or rights of appeal.

MRS BIENSTEIN: Well, may I make my submissions in response to that, please?

HIS HONOUR: Not unless it is relevant to your application today. I need to know for - - -

MRS BIENSTEIN: Well, I feel that it is relevant.

HIS HONOUR: No, please listen to me, Mrs Bienstein. What precisely do you want me to do today? Do you want me to make orders? You wish me to make orders 1 to 4 as set out in your applications; is that so?

MRS BIENSTEIN: Are we talking about the applications for special leave to appeal?

HIS HONOUR: No, I am talking about the documents dated 23 March, which are the applications that - - -

MRS BIENSTEIN: Do you mean the ones that relate to the applications for special leave to appeal from the Family Court or do you mean the ones relating to matter No M140 of 2000, which is a notice of appeal from a single Justice of the High Court.

HIS HONOUR: Well, you have described it as a notice of appeal. In any event I am looking at your application in matter No M140 of 2000.

MRS BIENSTEIN: Yes, that is a notice of appeal pursuant to section - which one was it? I cannot recall the section number, but it is a notice of appeal which is a right in the Judiciary Act. If a single Justice of the High Court makes substantive orders on their own, there is a right of appeal to the Full Court in the High Court.

HIS HONOUR: Do not trouble about that at the moment. Just apply your mind to your application of 23 March in M140 of 2000.

MRS BIENSTEIN: Right.

HIS HONOUR: You want me to determine who are and who should be respondents to the appeal - - -

MRS BIENSTEIN: That is right.

HIS HONOUR: - - - and to clarify the rights and responsibilities of each of the parties.

MRS BIENSTEIN: That is right.

HIS HONOUR: Now, do you want to make any submissions in relation to that, why I should make that order?

MRS BIENSTEIN: Yes, yes.

HIS HONOUR: Why should I make those orders?

MRS BIENSTEIN: Well, we need to determine the rights of a respondent who says that he is not participating and who has not filed an appearance in the Court. I have been directed to provide three copies of the appeal books to that respondent and I feel that that is unwarranted and unfair and unjust to me to have to fund those sorts of moneys, et cetera, and to provide that to a respondent who has not appeared and who does not wish to participate. I have sought that this be waived and the Registrar wrote back saying that she might be prepared to allow me to serve just one copy of it and I feel that even that is not an actual determination. It is only a possibility. The second part of it is - - -

HIS HONOUR: Mrs Bienstein, let me tell you Registry officials do not determine who are parties to appeals. It is a matter for you to decide against whom you wish to appeal and if, in fact, parties who should be parties to the appeal have not been joined and served, then the Court can make an order, but otherwise the Court will not intervene. So I am not prepared to make - - -

MRS BIENSTEIN: I am not asking - - -

HIS HONOUR: Listen to me, please, Mrs Bienstein. I am not prepared to make an order as to who should be respondents to this appeal or to this application for special leave. Now, I am not prepared to do that.

MRS BIENSTEIN: Justice Callinan - - -

HIS HONOUR: Yes, Mrs Bienstein.

MRS BIENSTEIN: - - - I think I understand your position and perhaps I did not word that very well, but what I am asking is, if the respondent has not filed an appearance in the High Court, then I seek your order to say that I do not need to expend the money, the time and my energies, on providing service to that person, especially if it is going to be multiple copies of substantial papers.

HIS HONOUR: Mrs Bienstein, you, by initiating the application or the proceedings in this Court, necessarily involve somebody else in it and I am not prepared to make an order that that person not receive whatever the Rules require that person to receive as a result of your instituting proceedings.

I understand what you are saying to me. I am understanding that it is an expense you would prefer not to have, but it is an inevitable consequence of your starting the proceedings in this Court. So, I am not - - -

MRS BIENSTEIN: The order, your Honour, that - in Order 70, which refers to the three copies being served on the respondent, states expressly that that will be the number of copies unless there is a direction or an order contrary to that. I am seeking that order from you, that it be waived; that requirement be waived.

HIS HONOUR: Which rule of Order 70?

MRS BIENSTEIN: I cannot recall, and I do not have the material before me.

HIS HONOUR: But that rule only applies to appeals. You do not have an appeal. You only have an application - - -

MRS BIENSTEIN: But I do, your Honour, and - - -

HIS HONOUR: Now, listen to me. Mrs Bienstein, would you listen to me, please.

MRS BIENSTEIN: Yes, your Honour, I am listening.

HIS HONOUR: You do not have an appeal. You have an application - at best, you may have an application for special leave to appeal - at best. You do not have an appeal.

MRS BIENSTEIN: So, may I respond to that? Last time I asked whether I could respond to that - - -

HIS HONOUR: Yes.

MRS BIENSTEIN: - - - and make submissions in response, you felt that I should not.

HIS HONOUR: Well now, you are quite right. You can say something about that now, if you want to.

MRS BIENSTEIN: Okay. Well, the notice of appeal states - and I will just turn to that - which page is the notice and the notice of motion? Notice of appeal is in volume 3, page 608.

HIS HONOUR: Mrs Bienstein, the rule, I think, that you were referring to is Order 70 rule (14) of the Rules of the Court which provides:

Unless a Justice or the Registrar otherwise orders or directs, the appellant shall file 10 copies of the appeal book . . . and deliver three copies to each respondent - - -

MRS BIENSTEIN: Yes.

HIS HONOUR: Now, that is not a matter that normally comes to this Court.

MRS BIENSTEIN: No, it does not normally but it is - - -

HIS HONOUR: Although a Judge has - listen to me, please. Although a Judge has power to make the order, it is not a matter that should come to this Court and take up a Judge's time. It is a matter for - - -

MRS BIENSTEIN: Well, how else am I going to have it made?

HIS HONOUR: Well, make the application to the Registrar.

MRS BIENSTEIN: I have and the Registrar says that she might - - -

HIS HONOUR: Well, I am not prepared to make any different order from what the Registrar makes.

MRS BIENSTEIN: Well, the Registrar has not made an order - has refused to make an order, has - - -

HIS HONOUR: Well, you apply again to the Registrar and the Registrar may or may not make an order but I am not prepared to interfere.

MRS BIENSTEIN: I am trying to find - - -

HIS HONOUR: Now, can you go back, please, to your application dated 23 March in matter M140 of 2000, please.

MRS BIENSTEIN: Yes, I am there, your Honour. I am looking for the notice of appeal.

HIS HONOUR: No, do not trouble about that at the moment. I am not prepared - - -

MRS BIENSTEIN: Well - - -

HIS HONOUR: Listen to me, Mrs Bienstein, please. I am not prepared to make order with respect - - -

MRS BIENSTEIN: I understand that.

HIS HONOUR: - - - to delivery of copies of the record or the appeal book.

MRS BIENSTEIN: Okay. I heard that, your Honour, and - - -

HIS HONOUR: Now, are there any - what other - - -

MRS BIENSTEIN: - - - I will do as you direct, which is to make a new application to the Registrar. However, you said a little while ago that it was appropriate for me to respond to your assertion that I do not have an appeal.

HIS HONOUR: Well, I have dealt with that matter now because I - - -

MRS BIENSTEIN: But I have not actually got to that.

HIS HONOUR: No, listen to me, please. I have drawn your attention to Order 70 rule (14) - - -

MRS BIENSTEIN: That is right.

HIS HONOUR: - - - which deals with appeals and for present purpose I am proceeding, rightly or wrongly, upon the basis that you may have an appeal.

MRS BIENSTEIN: Okay.

HIS HONOUR: Now, on that basis you can make an application to the Registrar and the Registrar may or may not relieve you from strict compliance with Order 70 rule (14). Now, what other rights and responsibilities of the parties do you want clarified? I am looking at paragraph 1 of your application.

MRS BIENSTEIN: Yes. The other matter is in as far as the respondent in his relationship with the Court staff, do the staff of the Court, the Registry in Melbourne or any other office of the Registry, have a relationship where they can contact the respondent and provide information about these proceedings to him directly? Does he exist if he has not appeared here, in other words? Because this has happened and I do not feel that that is right, unless it was to settle - I am talking about the settling of the index and the draft index - settled index, et cetera.

There was no appointment made to settle the index, but, despite that, the Registrar sent the settled index to the respondent, who has not appeared here. When I asked why an appointment was not made to settle the index, the response was that because the respondent was not taking part there was not any need to have that appointment to settle the index and I am also concerned that that caused an inordinate delay in the settling of the index. The other part is that if the respondent, who has not appeared, corresponds with the Registrar, is the Registrar obliged to ask him to send the correspondence also to me as the other party?

HIS HONOUR: Mrs Bienstein, you cannot come to the High Court and ask me questions. Now, if you want particular relief, you tell me what relief you want and you make submissions in support - - -

MRS BIENSTEIN: Yes, yes.

HIS HONOUR: - - - of your application, but you cannot ask me questions.

MRS BIENSTEIN: All right. You ask me to say what I - - -

HIS HONOUR: Now, I will help you - I will help you as much as I - - -

MRS BIENSTEIN: - - - what else I need - - -

HIS HONOUR: Listen to me. I will help you as much as I can, but you cannot interrogate me. Now, do you have an application? What other orders - - -

MRS BIENSTEIN: Yes.

HIS HONOUR: - - - or relief do you want me to make?

MRS BIENSTEIN: I wish to have it clarified that the Registry and the Registrar and other staff here do not have an appearance here from the respondent and, therefore, they are not to communicate with him directly about the case, that that has to be left for me to do. If he wishes to have things sent to him or wishes to make submissions to the Court here, then he has to appear first.

HIS HONOUR: I am not prepared to make an order in relation to communications by the Registry with the respondent. Now, what other relief do you want?

MRS BIENSTEIN: The second paragraph asks:

To determine whether Simon Bienstein's communications with the High Court in the appealed proceedings and the resultant Certificate, which the Registrar gave to the presiding Judge, should be included in the appeal books or be otherwise made available to the appellant and to the Full Court.

HIS HONOUR: Well, I determine that against you.

MRS BIENSTEIN: Thank you. All right, No 3 is the one that we started with, really:

That, in order to promote Constitutional requirements to maintain public confidence in the Court's process, to ensure that the interests of justice are not only served but that they are publicly seen to be served, and for administrative convenience:

a) These proceedings be removed from the Melbourne Office into the Principal Office of the High Court Registry -

which is really an application for change of venue.

HIS HONOUR: No, I am not prepared to make that order.

MRS BIENSTEIN: That:

Actions be taken to resolve the protracted Family Law dispute expeditiously and according to law - - -

HIS HONOUR: What actions? What actions are you talking about?

MRS BIENSTEIN: Well, the actions would be to have a hearing of the appeal listed urgently because there is no way that I can pursue my rights or my daughter's rights under Family Law within the Family Law jurisdiction. They refuse to file and to hear my applications and even though it is now a further several months since the removal hearing on 1 December, I still have no orders, no determinations from the Family Court.

HIS HONOUR: I cannot make an order at this stage in relation to the disposition of proceedings in the Family Court. I am not - - -

MRS BIENSTEIN: No.

HIS HONOUR: I am not prepared to make that order. Now, what is the next one you want?

MRS BIENSTEIN: Well, the order that I am asking, or direction that I am asking is that the hearing of this appeal be listed as a matter of urgency so that we can, in some way, resolve the underlying Family Law dispute which I wish to have removed completely into the High Court.

HIS HONOUR: No, the matter will not be removed into the High Court. The only matters that are removed into the High Court are matters that involve a constitutional issue, essentially, and this - - -

MRS BIENSTEIN: Your Honour, my matters involve a huge number of constitutional issues.

HIS HONOUR: No.

MRS BIENSTEIN: The matter was before - the application for removal was before Justice Hayne on 1 December.

HIS HONOUR: And even then it is discretionary. Now, I am not - - -

MRS BIENSTEIN: I realise that, your Honour.

HIS HONOUR: Now, I am not prepared to make any order that the proceedings in the Family Court be moved into this Court and I am not prepared - - -

MRS BIENSTEIN: I am not asking for that, your Honour.

HIS HONOUR: And I am not prepared to make any order, indeed assuming I even could make any such order, with respect to the progress or the proceedings in the Family Court.

MRS BIENSTEIN: All right, but I am not asking for that at this stage. I am asking that the High Court list this appeal as a matter of urgency.

HIS HONOUR: Well, there is no sufficient basis upon which I could do that. I am not prepared to give your application priority over the others that are pending in this Court. It will have to wait its course.

MRS BIENSTEIN: Well, are you aware of the reasons for the urgency?

HIS HONOUR: Yes, I have read your papers.

MRS BIENSTEIN: So you are aware that my daughter is disabled, that I am on the pension.

HIS HONOUR: Yes, you say that in your application. There are many people in disadvantaged circumstances with proceedings in the Family Court and, indeed, in other courts who are entitled to have their cases heard.

MRS BIENSTEIN: But are you aware, your Honour - - -

HIS HONOUR: No, it is my order - - -

MRS BIENSTEIN: - - - that I have been without maintenance since April 1998.

HIS HONOUR: Mrs Bienstein, I am not prepared to make an order for expedition. I have read your material and it does not provide any sufficient basis for doing that, for your case to be given priority over others. Now, I have looked at - - -

MRS BIENSTEIN: Well - - -

HIS HONOUR: No, Mrs Bienstein, we - listen to me, please.

MRS BIENSTEIN: I do not know whether your Honour is aware of the full extent of the need for expedition.

HIS HONOUR: Would you listen to me, please? Mrs Bienstein, would you listen to me, please? We are a very busy Court. We are a final appellate Court.

MRS BIENSTEIN: Yes.

HIS HONOUR: We do not involve ourselves in procedural matters. Now, you have made an application to this Court, four applications to this Court, which have taken very considerable amount of the Court's time already, both while sitting here and in reading the materials beforehand. I am not going to entertain applications at length which have absolutely no prospect of success, and it is no good you arguing with me - - -

MRS BIENSTEIN: What application do you say has no prospect of success?

HIS HONOUR: It is no good you arguing with me and it is no good you asking me questions.

MRS BIENSTEIN: I wish to know which application you think has no - - -

HIS HONOUR: The application in M140 filed on 23 March. Most of the orders - - -

MRS BIENSTEIN: An application for change of venue, why do you say has no prospect of success?

HIS HONOUR: Most of the orders - well I have dismissed that. I have told you and I do not intend to be interrogated by you. Now is there anything further you want to say in support of the application in M140 filed on 23 March?

MRS BIENSTEIN: The next part, which is paragraph 4:

That Court processes and procedures be adapted to take full account of the appellant's disabilities -

that is my disabilities -

of the interests and disabilities of the adult daughter Tamara Leah Bienstein (Tamara) of the parties' marriage - - -

HIS HONOUR: Yes, I have read it, Mrs Bienstein.

MRS BIENSTEIN:

of the appellant's responsibilities as full-time carer of and General Power of Attorney for that disabled adult daughter, and for the need for expeditious resolution according to law of the protracted Family Law disputes, and in particular:

a) That the appellant be at liberty to file documents in the Principal Registry of the High Court without the need for personal appearance at any Office of the Registry, and by having the documents delivered by post or otherwise either directly to the Canberra Office or to another Office for internal forwarding to the Principal Registry:

b) That hearings proceed by video link and/or by telephone conference as circumstances require.

HIS HONOUR: Yes, well I have told you that I am not prepared to make any different order with respect to the filing and holding of the papers in your matters, such that they be held or filed in Canberra, and accordingly I am not prepared to make any order of the kind that you seek in paragraph 4.

MRS BIENSTEIN: Well, the other order that I seek is that I should not have to come out here to file papers that I should be allowed to file those by post. Now there is no requirement in the Rules or practice directions that I need to come out here personally, but it seems to be a matter for the Registry whether they require it or not, and since it is very difficult for me to have to leave home and come out here, I would like an express order or direction to say that I do not need to present myself in person, that I can send things in by mail.

HIS HONOUR: No, I am not prepared to make an order in that regard.

MRS BIENSTEIN: Even though it seems onerous for me to have to come in?

HIS HONOUR: It is onerous, Mrs Bienstein, for everybody who seeks - - -

MRS BIENSTEIN: Far more so in my situation when I am caring for a disabled - - -

HIS HONOUR: No, there are many people in disadvantaged situations; I am not prepared to make that order. Now, I therefore - - -

MRS BIENSTEIN: Could you clarify for me that it is a requirement of the High Court - - -

HIS HONOUR: No, I told you, do not ask me questions; you cannot interrogate me.

MRS BIENSTEIN: But there is nothing in the Rules to say that that is so.

HIS HONOUR: I do not propose to make any order, Mrs Bienstein. I dismiss your application of 23 March 2001 in M140 of 2000. Now, M96 of 1999, you got - - -

MRS BIENSTEIN: Yes.

HIS HONOUR: - - - an application which is in almost identical terms to the one with which I have just dealt, is that not so?

MRS BIENSTEIN: Not quite, your Honour, because this refers to an application for special leave to appeal from Family Court Full Court decisions. Now, I should explain - - -

HIS HONOUR: But you seek the same sorts of orders in this matter as in M140; is that right?

MRS BIENSTEIN: Yes. If you will just allow me to explain the part about parties. If you will notice that the head of the document says "Tamara Leah Bienstein Applicant" against "Simon Bienstein Respondent".

HIS HONOUR: Yes.

MRS BIENSTEIN: Tamara Leah Bienstein is a disabled child of the marriage. Family Law does not require her, at any event, to become party to proceedings for her maintenance if a parent does it in her place. I had been forced into an abuse of process situation whereby Tamara was forced to relitigate matters for her own maintenance after I had already established that she was entitled to it and, therefore, there were a number of applications and a number of appeals taken in the proceedings in Tamara's name.

When I went to initiate the application for special leave to appeal, I was told that I was not allowed to do that in my name, that it had to be done in the name of the parties who are parties at the appeal being - that took place in the Family Court. I now wish to change that to be myself as applicant, so that Tamara can be left completely out of the proceedings. Now, I have obviously an interest in this and I think I should have been allowed to be party in the first place as the applicant and I would like to remedy that situation now.

HIS HONOUR: Yes, but I cannot make that order today, Mrs Bienstein. If you want to make an application to be joined as a party in your daughter's appeal - - -

MRS BIENSTEIN: No, to replace Tamara as the party, as the applicant. Now, under the Rules that can be done in several ways. I have not cited the Rules here, but that can be done in several ways.

HIS HONOUR: Tamara is an adult child - how old is she Mrs Bienstein?

MRS BIENSTEIN: Twenty-two.

HIS HONOUR: What are her disabilities?

MRS BIENSTEIN: She is completely bed-bound. She is unable to do anything for herself, including washing herself, or talking to people. Most of the time she has not the energy and is in severe pain and I am her full-time carer. The Family Court has accepted all of this - - -

HIS HONOUR: The Family Court has - - -

MRS BIENSTEIN: - - - and I have made reference to where you can find all this in the papers before you.

HIS HONOUR: Yes. Well now, did you, in Tamara's name, using her power of attorney, make an application on her behalf to the Family Court?

MRS BIENSTEIN: No. The Family Law provisions are that an application for maintenance or anything else for the benefit of a child of the marriage, whether they are adult or not, can be made by a parent and it is the policy to avoid having a child in direct conflict on opposite sides of a matter in any application.

HIS HONOUR: I understand - - -

MRS BIENSTEIN: I made the application for Tamara as a parent, not as power of attorney. I made the application which sought arrears of maintenance enforcement and ongoing maintenance for education and disability periods.

I proved my case. The proof was accepted of the - there were medical experts called and the husband's medical expert said, "Yes, on the papers, Tamara is severely disabled and is suffering several different disabilities". The need is there. The disability has been proven over and over with a huge amount of evidence - - -

HIS HONOUR: What happened - listen - - -

MRS BIENSTEIN: - - - but the judge decided not to allow me to have any relief according to law because she decided that I was not a good enough person and that the husband would provide voluntarily and any orders at all would be an unwarranted intrusion into his life. That was the basis on which she refused to make the orders and then prevented me from taking any further action against any person.

HIS HONOUR: Did you appeal - was there an appeal against that to the Full Family Court?

MRS BIENSTEIN: Yes, there was.

HIS HONOUR: What happened there?

MRS BIENSTEIN: Well, the appeal established that I had a right to the maintenance and that there has to be a rehearing, not by that judge, and the Chief Justice of the Family Court refuses to list that rehearing, just as he refuses to relist any other application that I may have. That is why it is a matter of extreme urgency that I have a forum in which I can pursue my rights and my daughter's rights under law. The last time we appeared in the Family Court I was thrown in a cell and tortured and the appeal from that is now before the Family Court and they will not hand down a judgment. The matters here are not frivolous in any way. They are extremely serious matters that need to be looked at carefully by the High Court.

HIS HONOUR: Yes, that will be done if and when the substantive matters that you have filed come on for hearing before this Court - before a Full Court of this Court.

MRS BIENSTEIN: That is right.

HIS HONOUR: But, Mrs Bienstein - - -

MRS BIENSTEIN: I cannot pursue my rights in the Family Court and that is why it is of such incredible urgency that the appeal M140 of 2000 be heard. It - it is based on a huge number of constitutional issues.

HIS HONOUR: Mrs Bienstein, I have told you, I am not prepared to order expedition for it. Now - - -

MRS BIENSTEIN: Even though you have now heard - - -

HIS HONOUR: Yes.

MRS BIENSTEIN: - - - a whole host of different - - -

HIS HONOUR: No, I have - - -

MRS BIENSTEIN: - - - the reasons why there is urgency.

HIS HONOUR: I have dealt with that matter. Now, I want you to apply yourself to M96 of 1999, which is in your daughter's name - - -

MRS BIENSTEIN: Yes.

HIS HONOUR: - - - and you seek an order - - -

MRS BIENSTEIN: And I seek to be made applicant instead of her, so I want a change of applicant.

HIS HONOUR: Well, I am not prepared to make that order at this stage.

MRS BIENSTEIN: All right. Well, at what stage can I have that order made, then?

HIS HONOUR: Well, I am not saying that you can have it at any stage.

MRS BIENSTEIN: Well, I do not understand what - - -

HIS HONOUR: It may be - it may be - it may be that when your main application in M96 comes on before the Court, you may be able to persuade the Court then that you should be a party, but I am not prepared to make that order sitting as a single Justice.

MRS BIENSTEIN: Right, I accept that. So I will proceed in her name and make that application once the application for special leave is actually before the Court, the Full Court.

HIS HONOUR: Yes. Yes, do that, Mrs Bienstein.

MRS BIENSTEIN: Okay, I accept that. I understand it. Let me put on my glasses to see what else I asked for in there.

HIS HONOUR: I think you wanted the same order in each of 97 and 98.

MRS BIENSTEIN: Yes, that is correct, yes.

HIS HONOUR: Well, do the same thing there.

MRS BIENSTEIN: Now, the other part of - sorry?

HIS HONOUR: Do the same thing in those other applications, in those other matters.

MRS BIENSTEIN: Well, what I am asking also is that those four applications should be amalgamated into one application. They all address one combined Full Court - Family Full Court judgment that - - -

HIS HONOUR: Well, what about I make an order - what about I make an order that those four matters all be heard together when they are to be dealt with?

MRS BIENSTEIN: Yes, but I want more than just to be heard together. I do not want to have to do all the documentation separately for each one. I want to do one combined appeal, notice of appeal, one combined - what is the word for it - application for special leave and one combined list of arguments and authorities.

HIS HONOUR: Mrs Bienstein, I am prepared to make an order for the consolidation of matters M96 of 1999 to M99 of 1999. So I will make an order for consolidation and that will involve only one set of books, as you request, one set of outlines and, generally speaking, compliance as if there were only one application. But you should be clear that in making that order I am not saying, and you should not understand that, you have a right of appeal to the Full Court. Do you understand that?

MRS BIENSTEIN: I understand that, your Honour.

HIS HONOUR: That is a matter that you are going to have to argue to the Full Court.

MRS BIENSTEIN: I do understand that, your Honour, that is fine.

HIS HONOUR: So I will make that order for consolidation of those four matters.

MRS BIENSTEIN: I should point out in all fairness that the Registrar did consolidate it into one book but she still required separate applications within the one book for each of the matters, and I found that very arduous to do.

HIS HONOUR: I will make an order consolidating the four matters so that you will only have to have one outline and, generally speaking, you will only have to deal with the four matters as if they were one.

MRS BIENSTEIN: Yes. I am not saying this to irritate your Honour. I know that you have already said that you would not make any order for expedition of any of this, but I would draw your attention if I could to the affidavit in matter M140 of 2000, paragraph 4 - - -

HIS HONOUR: I will look at that. Yes, I have read that.

MRS BIENSTEIN: - - - where I actually point to specific pages of materials before the Court to show that I am not just saying that it has been established that maintenance - disability maintenance has been - the right to it has been established both at first instance and at appeal. This really is a matter of enormous urgency and that I would like very much for you to take those materials away and look at them and see whether you do not really believe that there should be some expedition of these appeals - of these applications.

HIS HONOUR: Mrs Bienstein, what I suggest you do is when everything is ready, when all your material is ready in all of these matters, you approach the Registry to see whether the Registry can give you as early a date as they possibly can and, if you are not satisfied with that date, then you can renew your application to this Court.

MRS BIENSTEIN: Could I just say that appeal books in M140 of 2000 had been lodged more than a month ago. There were minor changes like page numbering that needed changing, and yet it still has not been set down for a hearing and I am very concerned about that.

HIS HONOUR: Mrs Bienstein, let me tell you that this Court, apart from hearing all the appeals and applications that it has to hear, has more than 400 applications for special leave to deal with every year as well as write considered judgments, and the Registry staff are all under very considerable pressure keeping up with the load. I cannot make an order and I am not prepared to make an order that would disrupt their organisation is affairs. A month in the circumstances is not an unduly long period. There are many other people in the queue and there are many other people who regard themselves as very disadvantaged and their affairs have to be dealt with by the Registry as well.

MRS BIENSTEIN: I am not complaining that it has not been heard yet. My complaint is - - -

HIS HONOUR: No, I understand that.

MRS BIENSTEIN: - - - that it has not even been listed yet.

HIS HONOUR: Well, I understand that but, as I say, when everything that has been attended to has been attended to, I suggest you approach the Registry. I think you will find then that the Registry will list the matter as soon as it can be listed, reasonably listed. If that is too far in the future, then you can renew your application to this Court.

MRS BIENSTEIN: But could I just make a distinction between the two matters here?

HIS HONOUR: Yes, certainly.

MRS BIENSTEIN: The appeal M140 and the special - the application for special to leave to appeal.

HIS HONOUR: Yes.

MRS BIENSTEIN: I do not want to have the appeal which is ready to be delayed because I have not completed a different application yet.

HIS HONOUR: No. Well, what I have done, I have only ordered consolidation in the matters, in the 90s.

MRS BIENSTEIN: Yes.

HIS HONOUR: I think M96 to 99.

MRS BIENSTEIN: Yes.

HIS HONOUR: I did not make any order consolidating M140 with those matters.

MRS BIENSTEIN: Yes. So that should be listed when it is ready and that is ready, so the listing should be attended to now.

HIS HONOUR: Yes. So you approach the Registry - - -

MRS BIENSTEIN: Yes.

HIS HONOUR: - - - and see whether they can give you a listing.

MRS BIENSTEIN: Yes.

HIS HONOUR: They will at least be able to give you some indication, I think, of when you will be listed.

MRS BIENSTEIN: I was told that the Chief Justice attends to the listing of appeals rather than the Registry.

HIS HONOUR: You are right. Ultimately, the Chief Justice does.

MRS BIENSTEIN: So I would just like to make sure that the Chief Justice has that before him for listing.

HIS HONOUR: Well, he does that in consultation with Registry officials, but generally - - -

MRS BIENSTEIN: Yes, but if he is not aware of it, he will not be able to do that either.

HIS HONOUR: No. Well, no, generally speaking, the Registry officials deal with the matters and the Chief Justice would concur in that and deal with the matters in the order in which they come in. Sometimes people can be given some expedition by the Registry.

MRS BIENSTEIN: Yes, I am told that that is at the discretion of the Court.

HIS HONOUR: And sometimes the matter has to come to a Judge or to a number of Justices to make orders for expedition, but you have not reached that stage yet.

MRS BIENSTEIN: For - - -

HIS HONOUR: As I say, you approach the Registry who, in consultation with the Chief Justice, will consider the listing of your matter, together with other matters.

MRS BIENSTEIN: Yes. I should also point out that since my application that you are - applications that you are looking at today I have another appeal pending in the Court as well and I just want to make sure that the Registry does not simply make the M140 appeal wait until the other matter is again ready to proceed.

HIS HONOUR: No, the matters will be dealt with, as and when they are ready, in the ordinary order, Mrs Bienstein.

MRS BIENSTEIN: Right. As long as there is not any delay so that they do not all have to come together.

HIS HONOUR: No. No, I am sure nobody is setting out to delay you. Well, Mrs Bienstein, I think that - - -

MRS BIENSTEIN: I certainly hope you are right.

HIS HONOUR: I do not think there is anything more I can do for you today. You are clear about what I have ordered and what - - -

MRS BIENSTEIN: Yes, I think - I will just say back to you what I understand you have said.

HIS HONOUR: Yes.

MRS BIENSTEIN: That you order that the matters in the special leave to appeal application be consolidated.

HIS HONOUR: M96 to 99 be consolidated and treated as if - - -

MRS BIENSTEIN: Yes, so that one set of applications - - -

HIS HONOUR: - - - they were one matter, yes.

MRS BIENSTEIN: Right. That I can make my application for change of applicant at the time of hearing of that application for special leave to appeal.

HIS HONOUR: Well, I am saying that you can renew your application then that you have just made to me in that respect.

MRS BIENSTEIN: Right, because you are not prepared to do that as sitting as a single Justice.

HIS HONOUR: Yes, that is right.

MRS BIENSTEIN: That in matter M140 I should approach the Registrar to look at the listing of it in conjunction with the Chief Justice.

HIS HONOUR: Yes. I am not making any order expect dismissing your application.

MRS BIENSTEIN: No, you are just - you are just saying that I should proceed in that way and that - - -

HIS HONOUR: I am giving you some advice about that, Mrs Bienstein, yes.

MRS BIENSTEIN: Thank you.

HIS HONOUR: Yes, all right. I do not - - -

MRS BIENSTEIN: And that you are not prepared to do anything else on the application.

HIS HONOUR: I will not make any order. I have to dismiss the application, I am afraid, M140.

MRS BIENSTEIN: M140 application is dismissed. Could I just - - -

HIS HONOUR: But when I dismiss that, I am only dismissing the application in M140 dated 23 March.

MRS BIENSTEIN: I understand.

HIS HONOUR: I am not dismissing - - -

MRS BIENSTEIN: I do understand that.

HIS HONOUR: - - -application M140 itself.

MRS BIENSTEIN: I do understand that. I have another - can I ask you a question about the third matter that is not in here, which was - - -

HIS HONOUR: Well, ask the question and I will see whether I can answer it.

MRS BIENSTEIN: You were very much against me asking you questions before; that is why I asked that first. The matter was filed as a Canberra matter, but it is being managed in Melbourne against my wishes.

HIS HONOUR: Yes.

MRS BIENSTEIN: And I wish to know whether there is any power - I asked the Registrar whether there was any power for her to have made the decision to manage it here rather than in Canberra, and I have had no response to that. Could you tell me whether there is any power, to your knowledge, of the Registrar to decide to manage it here rather than letting it proceed in Canberra?

HIS HONOUR: No, but what I will tell you is that matters will be dealt with according to the ordinary administrative procedure, which in your case means that your material should be filed in Melbourne, the papers held in Melbourne, and that the matter should be administered in the Melbourne office of the High Court Registry.

MRS BIENSTEIN: Even if the matter is a Canberra matter?

HIS HONOUR: Yes.

MRS BIENSTEIN: It is an appeal instituted in Canberra.

HIS HONOUR: This is the High Court of Australia, Mrs Bienstein.

MRS BIENSTEIN: I do understand that, your Honour.

HIS HONOUR: There is only one Registry, but it has a number of different offices - - -

MRS BIENSTEIN: I do understand that.

HIS HONOUR: - - - and one office is in Melbourne and it is administratively convenient that your matter be administered in Melbourne, and that is what will continue.

MRS BIENSTEIN: That is what will continue, all right. If I have concerns about unnecessary delays, is it appropriate for me to make a further application of a similar nature to what I have done here, providing the evidence that there are - - -

HIS HONOUR: Well, you can apply, but you will get nowhere unless you have very cogent evidence to persuade the Court.

MRS BIENSTEIN: All right. I will do it that way in future.

HIS HONOUR: Right.

MRS BIENSTEIN: If the necessity arises.

HIS HONOUR: Nothing further, then, Mrs Bienstein?

MRS BIENSTEIN: Thank you, very much.

HIS HONOUR: Yes, thank you.

AT 5.36 PM THE MATTER WAS CONCLUDED