U v K S235/2000 [2001] HCATrans 245 (1 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S235 of 2000

B e t w e e n -

U

Applicant

and

K

Respondent

Application for special leave to appeal

GLEESON CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 JUNE, 2001, AT 12.04 PM

Copyright in the High Court of Australia

MR U appeared in person.

MR M.F. LE POER TRENCH: If the Court pleases, I appear for the respondent. (instructed by Hill Thompson and Sullivan)

GLEESON CJ: Yes.

MR U It is central to our judiciary that litigants must be allowed to make - judiciaries must be allowed to make the decisions on the facts that are clear and cogent. The mere perception of a bias or an error of law has been held to be sufficient grounds to have that particular ruling overturned. One of the major difficulties faced by a self-litigant is the approach judges take in such matters is complex and quite unique, as the one I am faced with.

I refer specifically to Rourke J here on that point and also refer to Johnson v Johnson and the Gillard principles in mind and how they are unrepresented and unjust in the in the children and the self-litigant, considering the court's "one strike" policy that they utilise. But, that was not the worst thing to happen in this matter. I did not appeal Rourke J's decision to the Full Court because he erred in law, I appealed it to this Court because of the very special circumstances, because he acted contrary to the law.

Having a judge act in disregard of the laws of the land to support one party to the proceedings is a betrayal of trust that everyone expects of them. Then, further, to pollute my respect for the judiciary, a separate representative and her instructing solicitor made their feelings quite clear that the judge on the day had acted unsatisfactorily. After Rourke J refused my every attempt to show proof of my claims about the conduct of the respondents the separate representative went out of her way to do her job, I believe, and inspected documents that are contested. She then had to come back and inform me that everything I had been saying about the medical files was actually true.

The difficulty I faced is being able to get that before a competent jurisdiction in the sense that I have not ever been allowed to present those documents. I initially tried before Rourke J, however, everything I tried before him was overturned. In fact, it took me four years, after two years of trying through several judges to get the documents even before the Full Court. I said to his Honour at the time that they must be concerned if courts below have been lied to or have been deceived as it must surely affect the decisions that are required to be able to make a competent decision about the ability of the children and what is required for them.

When I took it back after it being said that I cannot do it here because of the conditions, I went back to Justice Rose. He clearly understood the implications of what I had to say and had no hesitation in listing the matter for hearing, however, Justice Moss was a slightly different matter. Here was a man so incensed by what I had to say about Rourke J that he declared, in effect, judges are above the law. You can imagine the emotive feelings of a respected and revered judge, as he is, to say that a judge is above the law.

Unfortunately, that was not the worst. The worst was yet to come. Unfortunately, Coleman J did not act any differently that Rourke J, he refused to look at documents, he did not give me an opportunity, but then I really did not honestly expect that. It was a mistake of mine to say that to the Chief Justice but I have said so and I stand by those decisions. I realised I was not going to get a fair hearing. As Justice Kay points out, himself, it makes no difference that Justice Coleman chose not to look at the evidence on its merits to the matter now before you. It is impossible to bring to the attention of the courts a chain of events that have taken place which transcends one jurisdiction into another.

If you are not allowed to build up a case - I think in.....and Stead it was actually said if you cannot present your evidence and your reasons for so then it is very difficult to get anywhere. I found that to be the case in this matter. To be denied any hope of having a matter heard without prejudice or being manipulated and deceived, as has happened many times previously, is nothing but a dream. Unfortunately, that is the case. I have tried time and time to get evidence presented but every stage has been objected to by the respondents.

I asked the court specifically to look at documents, being Dr Gaudry's report, pages 2, 3, et cetera. Unfortunately, the Chief Justice chose at no time to give any or sufficient reasons why he chose not to comment. I am sorry, I have said that all wrong. He did not give any reasons in his judgment why they were insufficient to suggest the fact that the sexual assault that allegedly happened was not fabricated. He did not comment on it anywhere, although he knew full well that that was the most important part of the argument before him.

I asked his Honour to ensure that I have the correct pages before him. I asked him to refer to the documents. I wanted to ensure that he saw the same pages I was referring to. He denied me that opportunity. When judges selectively choose the information they will discuss and not discuss, respectfully, it is impossible for me to be able to stand here and say to you today he has done something wrong because I cannot. He did not. He did not comment about those documents at all. They are not in his judgment.

If the Chief Justice is concerned about the integrity of his jurisdiction why did he not make a comment about Rourke J and the conduct he had been involved with and Justice Moss' comments. It is impossible for a self-litigant to be able to stand and argue a matter when it has already been preconceived that you are guilty. There is nothing you do - you can win and that is what the fundamental problem with Gillard and Johnson v Johnson, which I will address in just a moment.

The Chief Justice's own department has said that less than 20 per cent of people in Australia that have used his jurisdiction have any real confidence in the Family Law Court's practices and procedures and the judgments given, so, automatically, we are behind the eight ball for being a self-litigant. I went before that court with a set of facts to prove, forever optimistic that maybe someone really does care about what my children and the judiciary should deserve. Unfortunately, I had not been able to do that, to date.

When you hear stories about your eldest son - his school is falling apart, failing to hand in five out of seven school assignments I cannot do a thing about it. I am not allowed to. The courts have denied those opportunities. I was told by Justice McHugh when we were here last time to come back if relief was not found. Well, you are hearing my argument and you have read the documents. I hope they create some sort of concern about what has happened here. I can point out to you that the Chief Justice was never going to give me a hearing when you look at what was said at 25, 13. There was not any discussion about whether we should have another hearing or whether they should exercise their own discretion. He just automatically exercised his discretion, so I could not even debate that issue with him. I respectfully think that he had already decided what was going on.

I can tell you that the Chief Justice himself says, "It seems that later the wife was told of events that might have given her cause to believe that she was sexually assaulted". Clearly, there seems to be a fundamental and significant difference between the hypothetical "might" and the definitive "I was" in her affidavit signed before Justice Baker. I can also refer your Honours to the fact, uncontested, that she gave two different stories to the court expert about this which we know to be fabricated. I can also tell your Honours that the Chief Justice's referral at page 25, 25 was contrary to what was relied on by the respondent before the honourable Justice Baker.

If it is in the best interests of the children to hear evidence, why are the respondents continually objecting to me presenting evidence that should have been there in the first place, that we all know was not allowed to be because of actions by the respondents. Why it was necessary for the Chief Justice to extrapolate evidence at 26, 8 to unjustly infer a fact that no one - which has pointed to previously of my knowing about a particular something events or situation in the house when he knew full well I lived in that house for 10 years, and, yet, no one else brought that matter up but he introduced it into his judgment. As the Chief Justice full well knew he should not - I am sorry, I missed that one.

CALLINAN J: How old are the children, now, Mr U?

MR U They are 14, 12 and 10, effectively. I can only say that if anyone believes I present a passionate argument, as every justice who has heard this matter, as anyone who has looked at it - of a fraud about - concerning the court, the conduct before the courts, then surely someone at some stage must look at the evidence and that is why I am basically, in my orders that I am seeking, asking for an evidentiary hearing of some description where we can sit down, have a look at the evidence and maybe that judge might say, "Well, I do not agree with you" but until that happens, which it has not, this matter will not go away because there has been a huge amount of trouble with respect to what is happening to the courts, let alone my children.

I can refer your Honours to page 27, 15 where Justice Kay raises the issue of my failure to be able to present evidence and that is remarkable about it; he even acknowledged that fact, but in Johnson v Johnson it says, and I quote. "Such an application is not the occasion for a punishment of a party for its mistake or for its delay in making the application". So, the Chief Justice is telling me that because they have done something that I have not been allowed to prove because of actions because of what the respondents have done and the courts have been involved with, my children and I have to be punished for it. Effectively, we are losing our contact.

Her Honour in her dissenting judgment in CDJ said at 55, "a hearing conducted in accordance with procedures that allows the parties to put their case". I have never been allowed to. It has been objected to. It has been denied. Yet I have never been able to argue the matter. I have put it in my affidavit form but I have not been allowed to cross-examine or present other supporting evidence, knowing full well that I am not allowed access to that until I can present it because they are confidential documents, but his Honour knew that when he made this judgment.

If these things are not important, then how can they really and truly honestly say they are making a decision in the best interests of the children? Again, in Johnson v Johnson, and I quote from Stead v State Government which relied on Jones v National Coal Board.

"There is one thing to which everyone in this country is entitled, and that is a fair trial -

It is amazing that it has taken me four years to get a document that the Chief Justice refused to comment on, but, apparently, that is my concern because we are the ones who are being prejudiced. A sane and reasonable person would have been able to make a decision about, "Well, if you have not been allowed to get that evidence maybe we should look at why". Justice Kay raises another very clear point that being success of any difference to the outcome of information. I tried to go before Rourke J with the whole lot. I presented all the documents that I could. I subpoenaed all the information that I knew existed which I did not know at the time of the hearing because of the respondents withholding evidence, but, categorically, I was denied every opportunity of a fair hearing.

It was not until the second day after he had made his judgment that it was found out that he had already predetermined these issues. In his judgment he very clearly said my situation, as you may have read, was insuperable. There is no ambiguity, you either can or you cannot. With "insuperable", you cannot. I did not have a chance. The thrust of my argument is crucial to the ability to be able to present a document. If facts are inconsistent, as her Honour says in Gronow, incontrovertibly established by the evidence.

There is a clear contradiction that she relied on a document that they knew to be false. If you look at what the information does the Full Court's original decision in 1998 would be a good two-thirds smaller than it actually was. If everything around this fabricated assault was removed, Justice Baker's would have been a good quarter smaller than it was. Justice Kay, himself, acknowledges that I failed to get the evidence before the courts. As I referred to the one-strike policy, it is impossible to be able to have any consideration about what happened.

As to rehearing this matter which they rely solely on Coleman J's judgment, who relied solely on Rourke J's judgment, who relied solely on the Full Court's judgment, estoppel or res judicata. Weaver is very clear in that. The only way you can get past this situation is to be able to prove a fraud. With all respect, the Chief Justice knows full well, if you cannot get the evidence before someone to review it, if you cannot present a case you have got no chance. It is what happened here. I was not allowed to present evidence. It was denied.

Having read the material last night I realised that it is not what is said, it is what is not said that carries so much weight these days. As his Honour said, fraud - just the mere fact that I say a fraud happened towards the court about the court - you understand what I am saying, I am sorry. But, if I am not allowed an opportunity to present the case, it is not my jurisdiction, it is his problem. If he wants to conduct and let the management of that Family Court judiciary carry on the way he does that is his prerogative but when it affects my children and what has happened to me it becomes my responsibility as well.

Johnson v Johnson - and with respect to Gillard are very good judgments. They are really quite good. I think they are good but they do not go far enough. I believe it is very clear when they referred to Johnson v Johnson on page 9 of the book that I have:

To attempt to clarify the substance in submissions of unrepresented parties -

Well, they have been clarified many times but they have never been allowed to shown to be the case. Respectfully, this is where I think Johnson v Johnson falls down. If they are clarified by the person in charge then it must be allowed to be reviewed. Now, if we had have done this before Rourke J - I am sorry - if we had have allowed this to be done before Rourke J it would have been finished two years ago, but it has never been allowed. Fundamentally, that is it, your Honour.

GLEESON CJ: This is an application for leave to appeal against a decision of the Full Court of the Family Court given on 22 August 2000. What was before the Full Court of the Family Court was an appeal against orders of Justice Moss dismissing an application by the present applicant for leave to appeal out of time against orders that had been made by Justice Rourke.

There is a long history by way of background in these proceedings and that history includes, as appears from paragraph 4 of the reasons for judgment of the Chief Justice of the Family Court in the present case, a certain finding about an assault on the present respondent and a conclusion that because there was thought to be a possibility that the present applicant was responsible, that had certain consequences in relation to risks associated with unsupervised contact with the children of the applicant and the respondent.

The present appeal has nothing to do with the merits of such a conclusion and this Court expresses no opinion about that. We are concerned with a discretionary decision made by the Full Court of the Family Court in relation to an application for leave to appeal out of time against certain orders made by a justice of the court and also a discretionary decision made in the course of dealing with that application concerning the admissibility of certain new evidence upon which the applicant sought to rely.

In relation to the admissibility of evidence, Chief Justice Nicholson at paragraph 22 of his reasons for judgment said:

I therefore would not admit the further evidence although it is obvious that this Court examined that evidence for the purposes of determining that issue as to whether it should be admitted.

The word "therefore" in that paragraph is a reference back to the preceding reasons that the Chief Justice gave for declining to admit the evidence. Justice Kay, who agreed with the Chief Justice, said at paragraph 25:

In this case the evidence was already the subject matter of an attempt to bring it in before Rourke J and to bring it in before Coleman J. Had it been admitted before Moss J it could not possibly have made any difference to the outcome of the proceedings before his Honour. For those additional reasons I would not admit the further evidence -

Those observations also were made following the examination of the evidence referred to in paragraph 22 of the reasons of the Chief Justice.

No error of principle in the exercise of the discretion of the Full Court of the Family Court has been shown sufficient to warrant a conclusion that there are sufficient prospects of success to justify a grant of special leave to appeal to this Court. The application is dismissed with costs.

We will adjourn to reconstitute.

AT 12.28 PM THE MATTER WAS CONCLUDED