Furnari v Clark & Anor [2004] HCATrans 537 (3 December 2004)

--

Furnari v Clark & Anor [2004] HCATrans 537 (3 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 537

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M231 of 2003

B e t w e e n -

THEODORE FURNARI

Applicant

and

KAREN ELIZABETH CLARK

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 12.02 PM

Copyright in the High Court of Australia

MR T. FURNARI appeared in person.

MR G.A. GLOVER: If the Court pleases, I appear for the second respondent. (instructed by Australian Government Solicitor)

McHUGH J: Yes, Mr Furnari.

MR FURNARI: There is no appearance on the part of the first respondent, although there is an observer who has appeared as counsel for the respondent in the past. I should mention that.

McHUGH J: Yes, very well. We have read your submissions in the application book. Would you proceed with your argument, Mr Furnari, please.

MR FURNARI: Yes, sir. Now, I have to mention that I have provided some extracts of the relevant authorities. I could not get all of the authorities that I have listed in my application. I got most of them off the Internet, and for some reason they had been either transferred or - - -

McHUGH J: Do not worry about that. What you have to show is that this case – it is not sufficient for you to show error, Mr Furnari. You have to show there is something special about this case that warrants the grant of special leave to appeal.

MR FURNARI: Yes. My submissions fall into basically two areas. The first is over bias and prejudice against me on the part of both the judge at first instance and on the part of the majority of the Full Court. The second area falls into the category of errors that were made both by the judge at first instance and by the majority of the Full Court.

McHUGH J: Yes, but we do not sit here as a general court of appeal whose function is to correct errors on the part of intermediate courts of appeal such as the Full Court or the Family Court. There has to be more than error. You have to show there is something special about this case that makes it a case that this Court should take on and hear. There are hundreds of thousands of cases decided every year in Australia. We can only hear 40 or 50 appeals. Now, there has to be something very special about a case before we can take it on.

MR FURNARI: Yes. My submission would be that the specialty aspect, if you like, falls into the clear discrimination and bias shown towards me both by, as I said, the judge at first instance and by the majority of the Full Court.

McHUGH J: Mr Furnari, you begin your argument about bias by remarks made by the Chief Justice on the costs matter, but that does not seem to me to provide any foundation for an inference that the judge would approach this case with a predetermination of the issues, and insofar as you rely on statements in the judgment as evidencing a manifestation of that bias, they seem to be no more than strongly expressed disapproval of you. The majority judges obviously took a dim view of your conduct. They expressed themselves strongly, but it does not demonstrate bias. It demonstrates their reasons.

MR FURNARI: But more than that, your Honours, what I am stating in my application book here is that they clearly ignored the legislation and ignored procedures, and they did so - - -

McHUGH J: No, what they did is they took a different view of it to the dissenting judge. Now, whether they were right or whether the dissenting judge was right, does not raise a special leave question.

MR FURNARI: It does in my opinion, sirs, if they completely ignore the legislation and the procedures as set down by the court.

McHUGH J: They did not completely ignore it. They took what Justice Finn did and they, in effect, explained - or in one case on the issue of credibility, they rejected her view. They said the trial judge was entitled to take a view about your credibility in respect of your knowledge of whether this was spousal maintenance or whatever it was.

MR FURNARI: I do not believe that is correct, sirs, because they did –several of my points are in that they did not give reasons, that is, the Full Court did not give reasons for what they were saying, and that is shown throughout their judgment. If I could refer your Honours to page 111 of the appeal book, in my summary there, paragraph 14 - - -

McHUGH J: Mr Furnari, this was a simple application, and I must confess to be amazed at the length of the judgments in this particular case. It would be hard to imagine a case where the judges have paid more attention to the issues in the case. I think that the judgments run into something like 70 pages or more, do they not?

MR FURNARI: In this particular judgment?

McHUGH J: Yes.

MR FURNARI: The majority of the judgment is the detailed analysis carried out by Justice Finn.

McHUGH J: Exactly, but the majority judges have read that judgment and then they deal with the principal matters. In fact, they were prepared, I think, to throw your case out on the basis of delay and other matters purely on discretionary grounds.

MR FURNARI: They do so based on the bias and prejudices they had, not based on the facts. Now, on that page that I referred your Honours’ attention to, there are similar examples given where – they make false statements, for example, in paragraph 15, page 111.

McHUGH J: Yes, well, that is their view. They say:

There was ample material before her Honour that would have justified adverse findings as to the credit of the husband.

MR FURNARI: I am sorry, paragraph 15?

McHUGH J: I am looking at page 29, paragraph 15.

MR FURNARI: I am sorry, I referred your Honours’ attention to page 111 of the application book.

McHUGH J: I see, yes.

MR FURNARI: Paragraph 15. Now, they there say that I was relying on one part. That is clearly false, as both the transcript bears out and the analysis of Justice Finn points out. She has included that part of the transcript in her analysis, because it clearly shows that what the majority of the Full Court are saying is untrue, and that section appears on pages 68 and 69 of the application book in the section of Justice Finn’s analysis.

McHUGH J: Yes, but Mr Furnari, you are getting down to the detail and arguing about matters that are peculiar to this particular litigation between you and the respondents. These are not matters that will attract a grant of special leave. We cannot be concerned with matters like that. We just do not have the time or the resources to deal with these sorts of issues. This sort of case has to finish in the intermediate courts of appeal, right or wrong, unless you can point to something that warrants the grant of special leave. Every losing litigant complains that the judges got it wrong.

MR FURNARI: Not every litigant, though, can prove that, sir. Based on the analysis that has been done and the material that I have shown, I believe I have clearly shown that the majority of the Full Court and the judge at first instance were clearly wrong based on facts, based on legislation and procedures. They completely ignored the legislation, they completely ignored the procedures and they completely ignored the facts.

McHUGH J: Yes.

MR FURNARI: Any decision based on anything other than the facts and the legislation cannot stand. They say in their judgment – again at page 111, the example, paragraph 17, I give the example where they state that:

Because Finn J considered that the appeal was entitled to succeed on the grounds stated by her, she did not consider all of the other grounds of appeal in detail. We find it unnecessary to do so as we are satisfied that they have no substance.

Now, they state there – they make a statement, they do not back it up with anything whatsoever.

McHUGH J: No, but they form a conclusion about it. I mean, these are busy judges.

MR FURNARI: I appreciate that.

McHUGH J: If people put on a large number of grounds, it is common enough if the judge forms the opinion that there is no substance in them to make that sort of conclusory statement. In the United States courts it is done all the time, and it is done less so in this country, but if people - you had numerous grounds of appeal, did you not?

MR FURNARI: I did.

HAYNE J: You had 29, I think, is that right?

MR FURNARI: That is correct, yes.

HAYNE J: That is a remarkable number of assignments of error.

MR FURNARI: Some of those were duplicated, if you like, a rephrasing of the material, I would have to say. If I could refer your Honours to paragraph 14 of page 111 of the application book, where I give another example of the, I contend, clear bias and prejudice against me. Now, they say there at about line 9:

...she regarded him as having lied to the Court and she disbelieved his evidence. Once she formed this view, we do not think that she was obliged to consider each application in any detail because it was obvious that they all had to fail.

Now, they state there - what they are actually is, well, she did not have to – in their opinion, no judge should look at the facts if they do not like the person that is trying to present those facts.

HAYNE J: That is not what is being said there, Mr Furnari.

MR FURNARI: That is exactly what is being said.

HAYNE J: That may be the way in which you read it but it is not what is being said.

MR FURNARI: It clearly says there:

each application in any detail because it was obvious that they all had to fail.

They do not give any explanation as to why they had to fail. They do not give any explanation why - - -

HAYNE J: Because the trial judge did not accept the evidence you gave. That is the reason expressed.

MR FURNARI: No, sir, that is incorrect. That is incorrect, sir. If you read that statement again, it says:

Once she formed this view, we do not think that she was obliged to consider each application in any detail –

in other words, okay, she has formed the view that she does not like the applicant, therefore she is going to ignore any - - -

McHUGH J: Not that she does not like the applicant. The trial judge did not believe you. Now, you might find that hard to take, but she saw you and she did not accept your evidence.

MR FURNARI: No, my point, sir, is that even though she may not have believed me on one or two points, that does not oblige her. That does not relieve her of the obligation at looking at the other facts. Let us assume there were ten facts and she did not believe me on one or two. It does not remove her obligations to look at the other eight facts.

McHUGH J: They are not talking about obligations. They are talking about each application in any detail. I mean, once she rejected you on a fundamental point, could your case succeed?

MR FURNARI: If anybody looks at the facts and legislation, yes, sir, the applications would succeed, as was pointed out by the detailed analysis of Justice Finn. Now, that analysis covered both the legislation and the procedures that should have been followed. The majority of the Full Court ignored both the legislation and the procedures.

McHUGH J: As I said to you earlier, Mr Furnari, it is not a question as to whether the trial judge was right, whether Justice Finn was right or whether the majority in the Full Court was right. You have to show us there is something special about this case.

MR FURNARI: Well, the speciality is - - -

McHUGH J: Every litigant is arguing that the trial judge or the Court of Appeal got it wrong. That is not sufficient to warrant a grant of special leave.

MR FURNARI: It can be clearly shown, your Honours, that that is exactly what happened. On any reading of the facts, the majority of the Full Court ignored legislation, ignored procedures, ignored the facts. They based their decision not on the procedures, not on the legislation or the facts, but on their biased view of the applicant. That cannot – as can be referred to the authorities that I give, for example, in House v The King, which I am sure you are all very well familiar with - and to paraphrase:

If the judge . . . allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed, and the appellate court makes on its own discretion in substitution for his if it has the materials for doing so.

Further on:

if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise a discretion which the law reposes in the court of first instance.

And, of course, in relation to the bias and prejudice, your Honours will be well aware of the authorities that I have stated in my appeal book there on page 113, R v Watson.

The other questions that arise in my view from the application are: did both the judge at first instance and the majority of the Full Court fail to carry out and discharge their duties to the parties? I believe that they did. Did both the judge at first instance and the majority of the Full Court
disregard relevant legislation? I believe that they did. Has there been prejudice and bias against the applicant by both the judge at first instance and by the majority of the Full Court? Again, I believe there was. Was there error on the part of the judge at first instance and was there error on the part of the majority of the Full Court? I believe there was in both cases.

Also the question needs to be raised: did the decisions of both the primary judge and the majority of the Full Court miscarry? I believe that they did. Can it be shown from the facts and the analysis? That is correct. If I could refer your Honours’ attention to page 80 of the appeal book, lines 19 to 25. Justice Finn states there clearly – he says:

in the overall interests of justice, the husband should be granted leave to appeal her Honour’s order in so far as it dismissed the husband’s Form 64 application, allow the appeal against, and set aside, that order.

Also on page 82 of the appeal book – sorry, the application book, at lines 1 to 19, her Honour states that the appeal should succeed based on the errors that were made and the injustice. In fact, he says down there at line 14 the:

substantial injustice may well be occasioned to the husband –

and finally on page 85 of the application book, lines 1 to 13, her Honour states the errors that were present, and again there at about line 8 she states:

having regard to the fact that the substantive rights of the husband are in issue, he ought be granted leave to appeal the order, with the appeal being granted and the order set aside.

Now, any reading of both the transcript and the judgment can clearly come to the conclusion that errors were made and, in fact, bias and prejudice was shown against the appellant. That is the issue, the core issue, why we are here today. That can be summed up in one word, and that word is justice, justice to the parties, and I believe the analysis that was done by Justice Finn is in some detail and I really cannot expand on that too greatly apart from what I have been trying to say to you this morning, and I thank you for your time.

McHUGH J: Thank you, Mr Furnari. The Court need not hear you, Mr Glover.

This is an application for special leave to appeal against an order of the Full Court of the Family Court of Australia refusing the applicant leave to appeal against orders of a judge of the Family Court. Those orders were concerned with proceedings under the Child Support (Assessment) Acts. In the proceedings before the primary judge, the applicant sought to have credited against his child support liability sums of money that the primary judge accepted were spousal maintenance payments.

This Court is not a general Court of Appeal whose primary function is to correct errors on the part of intermediate Courts of Appeal such as the Full Court of the Family Court. Its principal function is to determine constitutional cases and to hear appeals on important questions of law that affect the community at a national or State level. Since the amendments to the Judiciary Act in 1984, no appeal can be brought to this Court unless the Court is of opinion that there is something sufficiently special about the case to justify the Court hearing an appeal against an order of the intermediate court.

As Justice Dawson pointed out in Morris’s Case [1987] HCA 50; (1987) 163 CLR 454 at 475, a prima facie case of error is not sufficient to attract a grant of special leave to appeal. In addition to an arguable case of error, there must be something special about the case that makes it sufficiently important to warrant the grant of leave. The case may be special because it concerns a question of law or of public importance or because different courts have expressed different opinions concerning the state of the law determinative of the case. In some exceptional cases it may be special because the administration of justice, either generally or in the particular case, necessitates a grant of special leave, although the issue in the case raises no question of public importance or difference in judicial decisions.

In the present case the dissenting judge in the Full Court was of opinion that leave to appeal should be granted in the interests of justice to the applicant on several grounds. The majority judges did not think any of those grounds warranted the grant of leave to appeal. None of the grounds upon which the learned judges of the Full Court disagreed raise any question of law or fact that would warrant the grant of special leave to appeal. They are concerned with specific matters peculiar to the litigation between the applicant and the respondent. Moreover, of their nature they are unlikely to arise again. Whether or not the majority judges were correct in refusing leave, there is nothing special about the case that would warrant this Court granting special leave to appeal against the order of the Full Court.

The applicant also claims that by reason of a past decision on a costs matter, one of the majority justices was biased and prejudiced against him. He claims that the reasons of the majority justices, which are contained in a joint judgment, show that the bias or prejudice continued in the appeal. In our view, there is no substance in this contention. The course taken and the remarks made by the judge in the costs matter provide no basis for inferring that he would not consider the application for leave to appeal on its merits, nor do any statements in the joint judgment demonstrate that judgment was given against the applicant because of a pre-existing bias rather than what the majority judges saw as lack of legal merit in his application.

The fact that they may have made an error, as Mr Furnari claims, in their reasons does not itself demonstrate bias. The majority justices obviously took a dim view of the applicant’s conduct. What the applicant claims is evidence of bias is no more than sometimes strongly expressed reasons that the majority justices gave for dismissing the application for leave to appeal to the Full Court. Nor in our view is there matter involved in or arising out of the case that suggests that the community’s or the parties’ interest in the proper administration of justice requires the grant of special leave to appeal.

An application for special leave to appeal against an order of the Full Court therefore cannot succeed. However, the application was made about two weeks out of time. The second respondent does not oppose an extension of time for filing an application out of time, even though, it seems on a reading of the papers, that the applicant has not sought that extension. In the circumstances, although there is no explanation by the applicant of the delay in filing his application, it is proper to grant an extension of time.

Accordingly, the proper orders are:

1. The time for making an application is extended until the date of the filing of the application, which I think was on 1 September 2003.

2. The application for special leave to appeal is dismissed and must be dismissed with costs.

I have a certificate from the Registrar that she has been informed by Peter Falconer & Associates, solicitors for the first respondent, that the first respondent submits to any order of the Court save as to costs.

AT 12.29 PM THE MATTER WAS CONCLUDED