Bradshaw v Bradshaw [2004] HCATrans 115 (6 April 2004)

--

Bradshaw v Bradshaw [2004] HCATrans 115 (6 April 2004)

Last Updated: 13 April 2004

[2004] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S478 of 2003

B e t w e e n -

PETER JOHN BRADSHAW

Applicant

and

JANE LOUISE BRADSHAW

Respondent

Summons

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 6 APRIL 2004, AT 2.15 PM

Copyright in the High Court of Australia

MR D. KNAGGS: I appear for the applicant. (instructed by Douglas Knaggs)

MR J.R. LONGWORTH: Your Honour, I appear for the respondent. (instructed by Dettmann & Dettmann)

HIS HONOUR: Mr Knaggs, there were two time limits that were missed, as I understand it. One by one day.

MR KNAGGS: Yes.

HIS HONOUR: What was the period by which the other limit was missed?

MR KNAGGS: The six months limit which brought about the deemed abandonment was missed by the six days between 4 March, when the abandonment was deemed to have taken place, and 10 March, when Mr Bradshaw went in to file his amended application for special leave and learned for the first time of the abandonment from Ms Carlsund and was told a letter was on the way to him advising him of it.

HIS HONOUR: Who prepared the amended application for special leave?

MR KNAGGS: Your Honour, the application for special leave I prepared, or I gave Mr Bradshaw a new ground 1, handwritten. Other than that, essentially, yes, I prepared the application in the sense that I took over an application prepared by somebody else and changed essentially the first ground.

HIS HONOUR: Are these applications for relief from the failure to comply with the relevant time limits accompanied by some kind of undertaking to proceed with expedition if the relief is given?

MR KNAGGS: Yes, I do give that undertaking and so does my client, your Honour.

HIS HONOUR: Well, the usual consequence of bringing somebody such as the respondent and her lawyer here to have to deal with an application of this kind would be that your client would have to pay their costs of this application.

MR KNAGGS: Yes.

HIS HONOUR: Is your application accompanied by an offer to pay that?

MR KNAGGS: Yes, your Honour.

HIS HONOUR: Now, I underline the word “pay”. I see your client, according to the evidence, has had a large number of orders for costs made against him and he does not seem to have paid any of them.

MR KNAGGS: No, he has not, your Honour. Mind you, he seeks that they all be reversed, but I have explained to him that there is no stay on the costs.

HIS HONOUR: I will have to hear what Mr Longworth has to say about all this, but if I were minded to grant the extensions of time, is there any reason why they should not be granted conditionally upon your client actually paying the costs of these applications, that is to say the applications for extension of time, before the application is taken to be reinstated?

MR KNAGGS: There is no reason why he would not ask that, your Honour. Your Honour, the point is, of course, that either your Honour would need to quantify the costs, or the parties would have to agree, and we would not want to be in the position where we are told that the costs are 3,000 or 4,000 more than we assess them at.

HIS HONOUR: Costs agreed or assessed.

MR KNAGGS: Yes.

HIS HONOUR: What I have in mind, subject to what Mr Longworth has to say, is that it would be absolutely unthinkable that his client should be out of pocket in any respect in relation to having to resist these applications.

MR KNAGGS: Yes. Could I put to your Honour that, if the order were along the lines, depending on what your Honour decides, that my client pay, say, $2,500 immediately, that should be enough, in my submission, to reinstate the appeal, because we do not want it waiting until there is a taxation, if it goes that far, with the - - -

HIS HONOUR: Why not? The costs could be quantified by Mr Longworth and assessed within a matter of a couple of weeks, could they not – probably within a matter of days?

MR KNAGGS: If it were expedited, yes, your Honour.

HIS HONOUR: What I have in contemplation is fixing a time limit within which your client would have to pay the costs assessed or agreed and payment of that within that time limit would be a condition of the reinstatement of the application.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: If you did not pay the money, the application would just be deemed to be abandoned.

MR KNAGGS: Yes, your Honour, I understand.

HIS HONOUR: Mr Longworth, I have an impression, from reading the papers, that the interests of your client might be best served by getting this matter brought to finality as soon as possible - - -

MR LONGWORTH: Certainly.

HIS HONOUR: - - - and a finality which does not include a possibility of further applications for extension of time.

MR LONGWORTH: That is correct, your Honour. My client would wish me to impress upon you the matters that are already in the written submissions.

HIS HONOUR: Well, I know that one of the things you say is the application is hopeless.

MR LONGWORTH: That is correct.

HIS HONOUR: Well, it may be found to be hopeless when the application comes on for hearing, but I am a little reluctant in circumstances where there has been a failure to comply with the time limit in relation to filing the application by one day and a failure to file the necessary documents to prevent a deemed abandonment in circumstances of a change of lawyers.

MR LONGWORTH: Your Honour, I would say two things to that and that is I am not really concerned about the one day element. I am more concerned that we stand here today in circumstances where the applicant is conscious that he has passed a time limit and we still do not have served a draft summary of argument or draft notice of appeal. That could have been brought today and that could have been brought with the submissions, but we do not have them at this minute.

HIS HONOUR: Well, I would have thought you could say something even stronger, Mr Longworth: we still do not have filed any clear explanation of why there was default in complying with the time limits.

MR LONGWORTH: There were two points and that was the second. I would say that there is absolutely no explanation given that could satisfy this Court. There is a third point, and that is the point that is towards the back of the submissions, that costs is only one remedy. There is a real concern to my client at the degree to which this litigation has taken over what is quite an unremarkable matter and quite a difficult matter.

HIS HONOUR: Let us take two matters in respect of which your client is entitled to protection. First of all, she needs to be secured against the possibility that she is out of pocket at all in relation to today’s application.

MR LONGWORTH: Yes.

HIS HONOUR: Mr Knaggs concedes that his client not only should bear the costs of today’s application, but it is not unreasonable if there be a condition imposed that he actually pay the costs before the appeal is treated as reinstated. Would it be sufficient to secure that aspect of your client’s interests if I were to make it a condition of the reinstatement of his application that he bear the costs of this application, that the costs be agreed or assessed, that any necessary procedure to assess the costs in the absence of agreement be expedited, and that he pay the costs agreed or assessed within 14 days of their being agreed or assessed as a condition of the reinstatement of his application?

MR LONGWORTH: Is your Honour contemplating that as an indemnity costs order?

HIS HONOUR: I do not see why not.

MR LONGWORTH: Then that would secure that element of my client’s concern.

HIS HONOUR: I will see what Mr Knaggs has to say about that, but that is my contemplation. There is a second aspect of your client’s interests that have to be protected. Would your client’s interests also be furthered if I made an order that the hearing of the application for special leave to appeal, once it is reinstated, be expedited?

MR LONGWORTH: Could I just take instructions, your Honour? My instructions are to consent to that, your Honour.

HIS HONOUR: Well, as I say, I have an impression, just from reading the papers, that your client’s interests lie in having this matter brought to a head and the application for special leave dealt with on its merits as soon as possible.

MR LONGWORTH: Your Honour, could I just raise one other issue before you hear from Mr Knaggs, and that is an application that perhaps the proceedings or the description of them be anonymised. I note that they are in their full nature here. Whilst it is difficult to discern, it is possible to interpret the grounds or the orders sought by Mr Bradshaw to affect children orders currently in existence in the lower court.

HIS HONOUR: Were they anonymised in the Family Court?

MR LONGWORTH: No, they were not.

HIS HONOUR: But then there is a prohibition on publication of proceedings in the Family Court, is that right?

MR LONGWORTH: There is, your Honour, and previous proceedings that Mr Bradshaw has brought related to those proceedings were anonymised. I have the reference here.

HIS HONOUR: What, in this Court?

MR LONGWORTH: In this Court. I have a copy of the transcript.

HIS HONOUR: Well, I have no problem about that, but I will see what Mr Knaggs has to say about it.

MR LONGWORTH: Thank you, your Honour.

HIS HONOUR: What do you say about that anonymity matter, Mr Knaggs?

MR KNAGGS: The applicant does not seek it, but he does not have any objection if it is reported as B v B or - - -

HIS HONOUR: All right. I will direct that – let me just speak to the Deputy Registrar about this. Do the proceedings in this Court involve the custody of children?

MR LONGWORTH: The order in the lower court by his Honour Justice Chisholm was a residence order for one of the children. The application that Mr Bradshaw has filed seeks – and I think I am quoting it correctly – a stay of all orders in the Family Court. Now, that could be interpreted as seeking to stay a residence order and a contact order in relation to the children.

HIS HONOUR: Is that right, Mr Knaggs, it is an application made in relation to Justice Chisholm’s residence and contact orders?

MR KNAGGS: Your Honour, yes, Justice Chisholm is the judge below who dealt with property and residency on the same day.

HIS HONOUR: But I am just trying to find out whether, in terms of the practice direction, these proceedings before this Court involve the custody of children.

MR KNAGGS: Your Honour, I would say no. Mr Longworth is right that the applicant seeks stays of all orders that the judge made, but because he only seeks to overturn orders relating to property, no court, I respectfully submit, would give a stay on an order that is not even appealed from. So that probably I should concede that the application means all property orders stayed and not the residency order stayed, and my client nods to that.

HIS HONOUR: So your application to this Court, including the grounds of appeal that you would pursue if you were granted special leave to appeal, do not seek to affect the orders made by Justice Chisholm in respect of the custody of the children?

MR KNAGGS: No, my client instructs me that they do not.

HIS HONOUR: Are you content with that, Mr Longworth?

MR LONGWORTH: I am instructed we are content with that, your Honour.

HIS HONOUR: All right, thank you.

MR KNAGGS: Your Honour, I have served an affidavit this morning and some further submissions. Would you mind if I simply placed them with the file for completeness, having served them, as part of the proceedings?

HIS HONOUR: Yes, certainly. Mr Knaggs, in relation to the matter of costs, I have said that it seems to me as a matter of principle that the respondent should not be out of pocket as a result of having been brought along here to have to deal with these applications. Is there any reason why the order for costs that I should not make should not be for indemnity costs?

MR KNAGGS: I will discuss that with my client, your Honour. Your Honour, my client just asks me to confirm that we are only
talking about the costs of today’s application and, therefore, we do not object to indemnity costs.

HIS HONOUR: We are talking about the costs of the applications that are before the Court today.

MR KNAGGS: Yes, indeed.

HIS HONOUR: That is an application to extend time for filing the application for special leave to appeal and an application to reinstate the application that has been deemed to be abandoned.

MR KNAGGS: Yes, they are the two applications, your Honour.

HIS HONOUR: Subject to the condition that I am about to announce, I will extend time for filing the application for special leave to appeal until 4.00 pm this afternoon and I will order that the application deemed to have been abandoned be reinstated. The applicant must pay the respondent’s costs of both applications on an indemnity basis.

The condition to which I referred is this. It is a condition of the reinstatement of the application for special leave to appeal deemed to have been abandoned that the applicant shall actually have paid the costs the subject of the order that I have just made. Those costs may be agreed between the parties or their respective solicitors within seven days of today, and if not so agreed, are to be assessed. The proceedings for assessment are to be expedited. Once the costs have been agreed or, if necessary, assessed, the amount of the costs is to be paid by the applicant within 14 days of such agreement or assessment, and it is a condition of the reinstatement of the application for special leave to appeal that such payment be made within the time that I have specified.

If that condition is complied with and the application for special leave to appeal is reinstated, then I direct that the hearing of the application for special leave to appeal be expedited.

Is there anything else, Mr Knaggs, Mr Longworth?

MR KNAGGS: Your Honour, you see that the applicant desires to file an amended application for special leave because he has tightened up paragraph 1 mainly.

HIS HONOUR: Well, he has until 4 o’clock this afternoon to do that.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: Because I have only extended the time for filing the application until 4 o’clock this afternoon. I will adjourn.

AT 2.35 PM THE MATTER WAS CONCLUDED