Barns v Barns & Ors A39/2001 [2002] HCATrans 175 (19 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A39 of 2001

B e t w e e n -

KATHRYN FAY BARNS

Applicant

and

MALCOLM PHILLIP BARNS

First Respondent

ALICE ELIZABETH BARNS

Second Respondent

MICHELLE LOUISE FISHER and RHIANNA KATE FISHER by their next friend PETER CHARLES SYMES

Third Respondents

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 9.29 AM

Copyright in the High Court of Australia

________________

MR S.W. TILMOUTH, QC: May it please the Court, I appear with my learned friend, MR D.M. HAINES, QC, for the applicant in this matter. (instructed by Bolton Lawyers)

MR D.G.W. HOWARD: May it please the Court, I appear for the second respondent. (instructed by Corsers)

GAUDRON J: Yes. Now, the Senior Registrar has certified that, in the precise details of which I do not have at the moment, but I think - well, certainly, that the first respondent will rely on the submissions of the second respondent and the third respondent does not wish to be represented. I have it here. She certifies that in his capacity as executor of the estate, Mr Malcolm Barns will submit to any order of the Court save as to costs.

She also certifies that she has been informed by von Doussas, solicitor for the first respondent in his personal capacity, that contrary to the statement in paragraph 6 of his summary of argument, Malcolm Barns in his personal capacity will rely on the oral submissions of counsel for the second respondent. She further certifies that she has been informed by Rudall & Rudall, the solicitors for the third respondents, that they will submit to any order of the Court save as to costs.

MR TILMOUTH: Yes, that is my understanding, if the Court pleases.

GAUDRON J: Yes, thank you, Mr Tilmouth.

MR TILMOUTH: May it please the Court. Your Honours, in our submission there are three subject matters which together or alone would justify the grant of special leave.

GAUDRON J: Well, that may be true; certainly prima facie it looks like a special leave matter, but there seems to be this difficulty, Mr Tilmouth: the actual declaration that has been made is a declaration of validity and that is all that has been made.

MR TILMOUTH: Yes.

GAUDRON J: One possible result might be that the agreement is valid but it does not preclude a claim being made. Could I ask, what has happened to the proceedings before Justice Nyland that are referred to at page 114 of the application book?

MR TILMOUTH: Your Honour, they have been adjourned pending the outcome of the special leave application.

GUMMOW J: That is the problem.

GAUDRON J: We were minded to think we might adjourn this pending the outcome of them.

MR TILMOUTH: The problem is, may it please the Court, there is an application before her Honour to strike the entire proceedings out on the basis that the judgment of the Full Court finally disposes of all the subject matter of the litigation.

GAUDRON J: The reasons for decision might, but the order does not.

MR TILMOUTH: That is so and that gets back to the nature of our application in the first place. We never sought, if the Court pleases, a declaration that the mutual wills or the deed were invalid simplicita. What we sought was simply a declaration that they are invalid or ineffective to oust the jurisdiction so as not to enable the Court to make an order under the Act.

Now, what happened was, the Master at first instance, Judge Burley, went a little bit wider, but that was never our basic submission. All we sought were - - -

GAUDRON J: Is there any problem, though, in going back before Justice Nyland and then seeking special leave in respect of her judgment direct to this Court and combining it with this application?

MR TILMOUTH: It could, if the Court pleases, but it would be entirely procedural without substance.

GAUDRON J: You say that, Mr Tilmouth, but unfortunately it has been the experience of this Court, particularly in recent times, that the separation off of a discrete issue often results in an order as a result of which this Court cannot determine completely the matters in issue.

MR TILMOUTH: May it please the Court, the problem was when it came back before Justice Nyland, that the - - -

GUMMOW J: Do we have before us the process that her Honour has before her? What has she, a strike-out - - -

MR TILMOUTH: No, if the Court pleases, you do not.

GUMMOW J: We do not, no. That is what puzzled - - -

MR TILMOUTH: No, but it is the initial application under the Act itself.

GUMMOW J: I am sorry, could you say that again?

MR TILMOUTH: What is before her Honour is the initial application itself but what happened - if the Court pleases, if I can invite your Honours to go to page 80 of the application book, and this, by the way, is where we submit a number of errors crystallise. The respondents pointed to paragraphs 122 to 124 of the judgment of the Full Court, submitted to her Honour it could not be clearer and sought on notice of motion an order dismissing the entire application, that is, the entire proceedings. Her Honour heard argument about that and adjourned it only because of the application for special leave to appeal.

Now, in my submission, a single judge reading those three paragraphs on their own would be bound by the decision of the Full Court as it stands.

GAUDRON J: I would have thought so, myself, and I would have thought it was simply a matter of having the proceedings dismissed, appealing - seeking special leave direct from that order and then this Court could entertain both applications together, and I say, prima facie, subject only to what Mr Howard has to say, I think it would be our opinion that special leave should be granted in respect of both matters. Is there any - - -

GUMMOW J: Yes.

MR TILMOUTH: Yes, there is, if the Court pleases. Can I take your Honours to page 83 of the application book where the order, as far as it went, stands. Your Honours will see the declaration was made as per the judgment of Justice Lander in 2.1 and the court adjourned the application of costs because when it came on for judgment I submitted that the court had not dealt with the issue of the estate, so the court adjourned the matter.

The parties then put in written submissions to the Full Court. We asked the Full Court to make an order dismissing the entire proceedings if it was of the view that its judgment had encompassed both the question of public policy, the mutual wills and the estate. Subsequently, although this does not appear in the application book, the Full Court declined to make any further order except that it made no order as to costs because the claim was on behalf of the infant children.

So, your Honours, we did all we could to bring this to a head. We subsequently applied to the Full Court for an order dismissing the entire action and it declined to make any further order. We have done everything we can, if the Court pleases, to, as it were, bring it all to a head.

GAUDRON J: Perhaps it would come to a further head before Justice Nyland when she read the transcripts of our remarks.

MR TILMOUTH: Yes. All she could do, if the Court pleases, was just simply look at page 80, regard herself as bound and make an order dismissing the entire proceeding.

GUMMOW J: Yes, well, we would think that, but - - -

GUMMOW J: How soon can it be restored before Justice Nyland?

MR TILMOUTH: I do not know whether her Honour is sitting at the moment or whether she is in criminal or civil but one would imagine, provided she is not on leave, that could be done within a matter of weeks or a month or so.

GAUDRON J: Would it take that long? It would not take that long, would it?

MR TILMOUTH: It just depends on her Honour's list, basically. I simply do not know if she is in criminal or sitting in civil.

GAUDRON J: We could re-list this matter by a videolink on two days notice.

MR TILMOUTH: That would be greatly appreciated, if the Court pleases. Your Honours, may I add this, with respect. I understand what the Court is putting but this procedure, although fairly short, does add another layer of costs, in our submission, and - - -

GAUDRON J: Unfortunately, the procedure which was adopted at the beginning leads to that result but I can well foresee a much larger layer of costs if, at the end of the day, this Court cannot dispose of the matter and I can see one possibility on which that would be so.

MR TILMOUTH: Yes. Of course, if the Court favoured our view in the end, it could make a final order. It could simply say that the - - -

GAUDRON J: On one view it might favour your view but come to the conclusion that the appeal must be dismissed.

MR TILMOUTH: Quite, I understand that and that would, finally, dispose of everything, of course.

GAUDRON J: No, it would not, it might leave you to exposed to costs in this Court.

MR TILMOUTH: I suppose that is always true.

GAUDRON J: Or a Full Bench of this Court might well say given the limited nature of the matter, special leave should be revoked.

MR TILMOUTH: If the Court is concerned by the order being perfected as indicated, then I understand that, if the Court pleases. In our submission, it is really, with respect, a matter of form rather than substance.

GAUDRON J: That may be true but under the Constitution the appeal is from judgments, decrees and orders, not the reasons for decision.

MR TILMOUTH: That is absolutely true, I accept that.

GAUDRON J: We think we should hear from Mr Howard at this stage, Mr Tilmouth.

MR TILMOUTH: May it please the Court.

GAUDRON J: Yes, Mr Howard.

MR HOWARD: Your Honour, I understand the point that you are making. It would seem to me to be desirable to have these procedural issues resolved rather than proceed in an incomplete fashion so that once the application came on in proper order then it could be argued in full, as I would wish.

GAUDRON J: Yes. We, of course, have not heard you to say special leave should not be granted in any event.

MR HOWARD: No, I am happy to - - -

GAUDRON J: - - - defer that?

MR HOWARD: Deal with that - yes. If you wish - - -

GAUDRON J: Do you want to deal with that now? You could deal with that now, or defer it, as you wish.

MR HOWARD: I do not know whether there would then arise the difficulty, having made the submissions, where your Honours would then go because, as I understood what your Honours were saying, you might be still be wishing to send the matter back to Justice Nyland, in which case the matter would come up again.

GAUDRON J: What is proposed is that this matter be adjourned until 3 May which is, I think, a fortnight away, to enable the parties to go back before Justice Nyland with the transcript of what was said today and if Justice Nyland were to dismiss the application, on your motion I take it, we would then entertain an application for special leave from that decision as well as from this, for the sake of completeness.

GUMMOW J: And do that on 3 May; so they would be yoked together and we would look at them on 3 May.

MR HOWARD: With respect, that seems to me to be the preferable course so that the matter can be finally disposed of.

GAUDRON J: Yes, and the only question which would then arise is whether you wish to make submissions today that special leave should be refused in any event, or you would prefer to defer that to 3 May ?

MR HOWARD: I think it is better to defer it and deal with both matters at the same time, with respect.

GAUDRON J: Yes, thank you. Is 3 May convenient for you?

MR HOWARD: Yes, your Honour, I do not know about my learned friend?

MR TILMOUTH: Your Honours, may I be heard on the date? Your Honours, apart from not being convenient to me - I am interstate and not near a videolink either - I am not confident we could get it on in time. Would it be asking too much for the next available special leave date after that?

GAUDRON J: No, not really.

MR TILMOUTH: Could I ask where those special leave sittings would be held, your Honour?

GAUDRON J: They will be held by video.

MR TILMOUTH: From Canberra?

GAUDRON J: From Canberra by video.

MR TILMOUTH: I see, maybe I can - I am interstate near Canberra, your Honour, so maybe I can move around that on 3 May.

GUMMOW J: When you say move around, does that mean - - -

MR TILMOUTH: I am actually sitting in a case at Jervis Bay, if your Honours want to be specific, but Canberra is within arm's length.

GAUDRON J: Yes. Well, do you think you could manage that?

MR TILMOUTH: I think so, if the Court pleases.

GUMMOW J: We can adjust the listing, to some extent, to accommodate you, in terms of time on that day.

GAUDRON J: Early or late?

MR TILMOUTH: I think early, if the Court pleases. Is that a Friday, could I ask?

GUMMOW J: Yes, two weeks today.

MR TILMOUTH: Any time that day I can make do, I am sure.

GAUDRON J: We will put it first in the list anyway, so it would be 9.30 Canberra time, 9.00 o'clock Adelaide time.

MR TILMOUTH: I am obliged to the Court, that would be helpful, thank you.

GAUDRON J: You would have no difficulty taking a transcript of today's proceedings off the Internet, would you?

MR TILMOUTH: No, not in the ordinary course, your Honours, it is usually available fairly quickly.

GAUDRON J: I think the best course at this stage is simply to adjourn the matter until 9.30 am Canberra time, 9.00 am Adelaide time, on 3 May.

MR TILMOUTH: May it please the Court.

GAUDRON J: Yes, thank you, Mr Tilmouth.

AT 9.46 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 3 MAY 2002