Hogg v Roberts [2004] HCATrans 484 (19 November 2004)

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Hogg v Roberts [2004] HCATrans 484 (19 November 2004)

Last Updated: 9 December 2004

[2004] HCATrans 484

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A9 of 2004

B e t w e e n -

DAVID ANDREW HOGG

Applicant

and

CHRISTINE ANNE ROBERTS

Respondent

Application for special leave to appeal

KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 2.17 PM

Copyright in the High Court of Australia

MR D.A. HOGG appeared in person.

MR J.T.W. BIRCHALL: If the Court pleases, I appear for the respondent. (instructed by Di Rosa Lawyers)

KIRBY J: Yes, Mr Hogg.

MR HOGG: Your Honours, I firstly seek an extension of time to lodge this application.

KIRBY J: I think you should just proceed to deal with the merits of the matter because if we are convinced at the end of the argument that there are merits, we will probably cure the problem of time.

MR HOGG: Thank you, your Honour. This matter has Australia-wide ramifications in that it reflects modern changes to the De Facto Relationships Act in South Australia with a flow-on effect throughout the other remaining seven States who have similar but importantly different legislation. It affects up to 14 per cent of existing relationships Australia-wide at this moment and that is a growing number. Following on from the High Court judgment of Evans v Marmont, we have seen a divergence in the attitude into two distinct streams as to largely whether prospective issues would be accommodated in the property resolution stage.

I draw your Honours’ attention to supporting reference document G from the Australian Bureau of Statistics. The fourth paragraph shows that the number of de facto relationships are increasing on an average of 2 per cent every five years. At the last known count it was 10 per cent. However, in Hansard, which I will point your Honours to shortly, that figure is 14 per cent and climbing. When legislative reform occurs that adds to that figure homosexual relationships, that number is expected to increase dramatically.

Supporting reference document H from the Law Council of Australia dated 27 January 1998 titled “A Proposal for Model De Facto Relationships Legislation” highlights a number of appalling inconsistencies between States. I raise these inconsistencies because I say that it is not satisfactory for the Standing Committees of Attorneys-General to continually defer the question of referring powers in relation to de facto relationships to the Commonwealth. There have been a number of instances of non-just and non-equitable outcomes following the divergence of result from de facto property settlements Australia-wide.

KIRBY J: You would understand that in a federal system you are bound to get divergences from one State to the other and you are bound to get legislation which some people will regard as unfair, but that is something courts cannot fix up unless the Constitution is relevant, otherwise it is just up to the Parliaments and their elected members.

MR HOGG: Yes, your Honour, I accept that.

KIRBY J: That is our system of democratic representative government.

MR HOGG: Yes, I appreciate that, your Honour, but I say that in a large number of other fields to do with parenting children, family law, maintenance, custody, guardianship, corporations and I believe succession, the Commonwealth have decided that they are issues that should be best left to the Commonwealth and that we have a problem in that the South Australian De Facto Relationships Act was viewed because of its section 11(1)(d) which includes any “other relevant matters” as initially being very generous in the range of factors that it would accommodate. However, it has been read down in my case to relate strictly to property issues only.

KIRBY J: You have not paid anything from the property to your former partner, have you, the respondent?

MR HOGG: Not yet, your Honour, no. The order from the Full Court at this stage is $40,000.

KIRBY J: That is right. You had a bit of a win in the Full Court.

MR HOGG: I did, your Honour, but a loss in other respects and I will explain that shortly. My problem was that - I penned just a very quick cameo of the background of this. I took a separation package from police in 1996 and, with the agreement of my partner, I applied the separation package to an unusual lifestyle where we valued the time spent with the children above that of income. We set up a household in a very small country town away from the city and this to both of us was a major change of lifestyle.

It was agreed between the two of us that my separation package which represented the value of my secure career as a police officer at that point, some 24 years of my police experience, would be invested in a home for this woman and her two children from a previous relationship. We both agreed and we both discussed this often that the home would remain mine and without challenge from her at all. That was the central plank of my defence to this de facto property resolution and I acted to my detriment in that I applied my resources believing that I was complying with the law at the time, which I was, back in 1995, early 1996, that my decision and the state of the law would give me certainty, that my decision to give up - - -

KIRBY J: There is rarely certainty in the law, given that Parliament can make laws, and you would know that. You would have known that as a policeman.

MR HOGG: I did, your Honour, but - - -

KIRBY J: Can I just ask on the point of the children, the children were your partner’s by a previous relationship, is that correct, or are they your children?

MR HOGG: There are a total of four children: two to her from a previous relationship and two we had together.

KIRBY J: And two of yours. I understand. The two from the previous relationship whilst you were with your partner you treated as your children, is that correct?

MR HOGG: That is correct. They had special needs which I supported.

KIRBY J: Do you still see the children, by the way?

MR HOGG: She made it clear, your Honour, that unless I gave her the house I would never see them again, and she has kept her word.

KIRBY J: There are remedies for that if they are your children. Anyway, that is a different matter. We are dealing with the property at the moment.

MR HOGG: I understand that, your Honour. There were a number of personal damages allegations that were raised in the District Court case that Judge David was good enough to listen to. He discounted most of them but he did use one personal damage allegation as the basis for awarding occupational rent. I was surprised that he would allow a selective admission of personal damages in that forum. That was one of my grounds for appeal to the Supreme Court and it amazed me that the Supreme Court found in my favour but on other grounds, basically that the judge had made a serious error in calculating the entitlement of this woman. To the dollar he just took the value of the property and just cut it clean down the centre. The Supreme Court decided that - - -

KIRBY J: You would understand that nowadays courts, including the Family Court, look not just to the financial input but also to the input that usually women make as carers and homemakers and parents for the children, so that is not all that uncommon.

MR HOGG: I do understand that, your Honour.

KIRBY J: What do you say is the appealable error on the part of the Full Court? You had a win in the Full Court, it was significantly reduced. The order is now only $40,000 and the property has no doubt gone up a bit. You have the property, you are living in the property, you have not made anything over to your former partner, nor your children, nor the children who treated you as their father. You just cannot sort of ignore your responsibilities under that Act unless you can have it set aside.

MR HOGG: Your Honour, if I had the capacity – by giving up my secure specialist career as a police officer, we agreed that I would undertake law studies. For the four years that we were together, I studied my Bachelor of Law at Deakin University and I managed to get three-quarters of the way through. I also ran, as a business partnership with my other partner, a boatbuilding business as a hobby. When she decided that living on Austudy in the country with four children was too hard to do over the duration of the law degree and decided to instead start a new relationship in luxurious accommodation at Flagstaff Hill with someone else, that - - -

KIRBY J: What has happened about your studies?

MR HOGG: Your Honour, I am here because I am unemployed, I am - - -

KIRBY J: You are doing a pretty good job. You should get back to your studies and finish your degree.

MR HOGG: I wish it was that easy, your Honour. The problem is that we encountered difficulties towards the end of the relationship which affected my capacity to study.

KIRBY J: Well, you just have to put this all behind you and sort this out and get on with your studies. If you are three-quarters of the way through - you are a good communicator; you want to get back to Deakin. Anyway, go on with your argument on this case. We cannot solve that problem, but we have to solve this one.

MR HOGG: Okay. I believe that I had given up quite a lot for this relationship. When it ended, I believed, as was the law when we started, that my contribution and my future prospective expectations, my reliance, would be measured and would be weighed in that equation. I believe basically that I would be allowed to continue to live in the house that I bought from the appreciation from the public after 24 years of police service. I thought I could get to keep that house because it has done no more than appreciate in value at a standard investment rate if the money was in the bank. But I was very surprised when it got to trial to find that my partner had suddenly forgotten that she had agreed all that time that the house would remain mine.

She minimised her liability under the business, she denied any involvement in that process and could not produce receipts for items of expenditure. What she did was to, in a very clever way and a very calculating way, exploit the delays in the proceedings. I am sorry to go into this, but she started off by saying very quickly that she had done some work in the garden. As a result, Judge David held that in the absence of any evidence or photographs or corroborative evidence or expert evidence that it probably increased the value of the house by one sixth. Then, because it had probably increased the value of the house, she was then a part-owner of the house and I was then required to pay her occupational rent for the privilege of living in the house that I had only just bought. Because they dragged out the trial process for up to three years and looking at Arnold v Dalton, they then held that I was responsible for paying her parenting contribution for that three-year period between separation and trial. So all of these issues combined to take away the house that I bought at the beginning of the relationship.

What I am saying, your Honours, is that I had a legitimate expectation that the law would treat me justly and fairly. What has happened with the De Facto Relationships Act (SA) is that by implementing it retroactively against vulnerable and trusting people, which the Parliament of South Australia recognised they had a duty of care to protect, the retroactive element of that implementation exploits that very vulnerability and trust that Parliament is attempting to protect.

KIRBY J: That might be, Mr Hogg. I do not know whether you did constitutional law in your law course but if you did, you would know that so far as the States are concerned, there is no relevant constitutional inhibition on their enacting laws through their Parliaments which have a retroactive operation. That is done quite commonly.

MR HOGG: Yes, your Honour, I understand that. The explanation they gave in Hansard was that it was a public interest issue.

KIRBY J: There were a lot of vulnerable people in the community who had given their all and then the relationship breaks down, and that is what the law seeks to protect.

MR HOGG: There are notably a lot of women whose contribution went for years unacknowledged and unappreciated and that was the basis for the creation of this Act, to try and bring about some equity in the investment that they had put in, to allowing normally the male to increase his asset base. What I am saying here is that if I had known that she would be challenging me for my home and that an oral cohabitation agreement was not going to be worth anything, then I would have committed it to writing. We would have gotten a certificated agreement immediately. The point was that our relationship started a year before the De Facto Relationships Act came in. Both of us accepted the risk. We agreed that we would not commit it to writing, we would not certificate it, we would continue it in the oral form.

KIRBY J: You would have known enough from your law course to know that your agreement cannot stand against the clear words of a valid statute made by Parliament. What private people agree between themselves cannot override the law of the land. That is something you would have known as a policeman too.

MR HOGG: Thank you, your Honour. What I believed was going to happen the whole time was that I would see a just and equitable outcome and I did not realise there were degrees of just and equitable outcomes depending on what your State De Facto Relationships Act says is appropriate. At the outset of this matter I attempted to negotiate within the shadow of the law but there was no shadow available. Every judgment that was available was family law based or New South Wales Act based. There was one judgment that in fact supported my position that I admit I only just became aware of a couple of days ago simply because it took a long time for it to be made available through the internet. That was supporting reference document M which held that prospective interests were of value. This was a woman who had been left at the altar. When finally he got his separation from his wife and his property settlement, he decided to go in a different direction. So she complained that she had given up her – I am talking about paragraph 24, your Honours, which is page 5 of that document, which matches me exactly:

The Plaintiff had only ever worked in the Public Service. She understood the importance of the security of tenure of that employment. Even though she was unhappy at work I do not accept that she would have given up that security were she not encouraged in the view that she now had security of a different, but adequate, type from her relationship with the Defendant. I find that in changing her position in relation to her secure employment she accepted and believed that she could rely upon her relationship with the Defendant into the future and that the Defendant encouraged her in that regard.

This is the District Court of South Australia at the very moment that I am starting my defence.

So it shows that at least Judge Anderson from the District Court shared my view that my prospective and future ramifications and my contribution to the family would be measured appropriately. When we started with - - -

KIRBY J: As these orders go, you know, $40,000 is not a very big order.

MR HOGG: It might be a day’s work to my friend, your Honour, but to me the documents you have in your hand is a week’s worth of Austudy allowance.

KIRBY J: I realise it depends on the person concerned, but you have given nothing to your former partner and she has the care of the children. She has had for some years now on her own and - - -

MR HOGG: I had an opportunity, your Honour, to re-enter police. I had an opportunity to be a law teacher. She has - - -

KIRBY J: Yes, I realise that. It is water under the bridge really.

MR HOGG: Personal damages have arisen where she has said to me, “I’ll stop you from having a capacity to repay me on a weekly basis. I will stop your re-employment prospects because I want the house”. She carried out those threats and the threats were successful.

KIRBY J: Even if that were so, she does not have the house but you have to find $40,000 which is only a proportion of the house. You had a big win in the Full Court.

MR HOGG: Your Honour, I know this is hard to understand. Unless you live on Austudy for a fortnight, it is very difficult to appreciate this, but if it was $5,000 I would still be here today. The problem is, your Honour, that I am on Austudy allowance, I am unemployable, I do not have alternative qualifications. I was in a very, very vulnerable position when I entered the relationship. She agreed the house would remain mine and there would not be any problems with it. I believe the principles of estoppel were valid, that I could rely on those. I believe that oral contract law was valid, I could rely on that, and I trusted her.

KIRBY J: I know all this and we have read the written submissions and your time is up now. Is there any last matter that you wanted to say? You know the rules here.

MR HOGG: I do, your Honour. I believe, your Honour, that jurisdictional error is the absence of natural justice. When you have a number of judges consistently making major mistakes in reading of the evidence, where at the end the Full Bench of the Supreme Court, all three of them make the same common mistake, then I say, your Honour, that the De
Facto Relationships Act in this State is not being considered in an appropriate forum, that - - -

KIRBY J: I think you have already said that. We have read the written submissions, so we know what your case is. Thank you very much, Mr Hogg.

MR HOGG: Thank you, your Honour.

KIRBY J: The Court does not need your assistance, Mr Birchall.

The applicant, Mr David Hogg, seeks to challenge a judgment of the Full Court of the Supreme Court of South Australia. That judgment varied the orders of the primary judge, Judge David, in the District Court of South Australia, made under the De Facto Relationships Act 1996 (SA) (“the Act”). The latter orders were made in proceedings brought by Ms Christine Roberts, the former domestic partner of the applicant, on her own behalf and on behalf of the two children of the relationship.

The substantial asset of the relationship was a property in Goolwa in the State of South Australia. This had been purchased by the partners in joint names. The trial judge found that this property was worth $140,000; that both parties during the relationship had been in receipt of government benefits; that both had contributed to the asset, including Ms Roberts by homemaking and parenting contributions. The trial judge ordered the applicant to pay Ms Roberts $56,000. That sum was reduced by the Full Court to $40,000. The applicant continues to live in the property at Goolwa. He asserts that Ms Roberts is entitled to no order under the Act. Certainly, he has made no payment to her under the Act.

The applicant’s first complaint is against the substance of the Act and its alleged unfairness and retroactive operation. This is not a complaint that this Court can address, so long as the Act is valid. The second complaint is that the Act is invalid as inconsistent with the federal power over matrimonial causes and the parenting of children. There is no merit in this contention. The Act governs State law matters, which are left over from the regulation of valid federal laws.

The third and fourth complaints complain of the injustice and inequity of the Supreme Court’s order. That order represented a partial victory for the applicant and was not unjust; it was an order open to the Full Court.

The fifth and sixth complaints allege injustice in the Supreme Court’s failure to finally resolve matters between the parties and making what are called “fundamental errors of fact”. The Full Court’s orders were indeed final, subject to this application, so far as the rights and duties of the parties under the Act were concerned. Those orders will now be confirmed. They must be obeyed. They may be enforced.

Although the applicant was out of time, the Court will deal with the matter on the merits, because of the fact that he is unrepresented. The application should be dismissed with costs.

Mr Hogg, do not forget what I told you. The Court will now adjourn.

AT 2.43 PM THE MATTER WAS CONCLUDED