Singh v Love [2004] HCATrans 538 (3 December 2004)

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Singh v Love [2004] HCATrans 538 (3 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 538

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M75 of 2004

B e t w e e n -

JAGRITI SINGH

Applicant

and

JONATHAN LOVE

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 12.29 PM

Copyright in the High Court of Australia

MS J. SINGH appeared in person.

McHUGH J: Go ahead, Dr Singh.

MS SINGH: The application for special leave to appeal to the Court has come under section 95(a) of the Family Law Act 1975 and my written statements, grounds of appeal as well as summary of argument, base this on section 35A of Judiciary Act 1903 and assertions therein. Is it that both the categories of (a) and (b) are valid to warrant the merit of this case to be heard by the High Court or be intervened by the High Court for a number of reasons. But before we go further, I am.....iterate any of the issues which have already been stated or some arguments which need to be made. I would like to draw the attention of the Full Court to the judgment which has been given in this case on 3 May and this is in the supplementary section of the books which are available to the Judges at page 268 and in relation to the application on - orders given at page 267.

In this judgment of the court below, the court has not allowed - after reading the full judgment of the court below - this judgment is under appeal today. After reading the judgment of the Full Court below and the court below on the judgment of 3 May, has not allowed the validation of the judgment of the trial judge. So this is a significant factor to be noted that the court below has rejected the validation of the judgment of the trial judge and has also dismissed the application in spite of reading the full judgment of the court below and in consequence, the proceedings have become stayed because husband asked for lifting of the order, the stay of proceedings on this case and that order has also been denied. So, in effect, the court below, even though no certificate has been issued - the court below has passed on this case for the High Court to intervene and give judgments on some of the relevant issues in this case for the course to proceed, for the proceedings to continue, otherwise the proceedings in this case cannot continue. So I would like the Court to note this fact.

What has happened in this case is – we will at the moment just look at the case of the dismissal of the appeal and at the case of the trial judge. The Full Court below has dismissed an appeal. By that way they have accepted the judgment of the trial judge. The trial judge, on the day of the final hearing for a case which has come in a completely compliant manner and has gone through all the processes of resolution and discovery and also the determination phases of earlier part and that is why whatever needed to be discovered in this case and whatever conciliation could occur in this case had already gone through in the last two years. In spite of all that, on the day of final trial without any application in front of the court, the trial judge conducted an interim case for directions hearing and gave orders which were clearly irrelevant to the administration of the justice because when the case comes back to the court none of these orders, whether executed or non-executed, will have any relevance to the case. By doing so, the Full Court below as well as the trial judge has dismissed and disregarded or objected to every judgment which has been passed in this course, because as for the case management procedures of the Family Court, the case in the court proceeds by a successive number of successive orders. All these orders are there so as to help the litigants either resolve the issue, to discover all that needs to be discovered and also to narrow down the issues so that only what is truly in dispute comes to the trial.

All this had happened in a compliant manner. There was no application in front of the judge to do anything other than just – and even the documents which her Honour was required to use for the case were listed in the order, what documents her Honour needs to - and in spite of that, her Honour did not use those documents but used some legally invalid documents, and at this stage her Honour created an abuse to the legal system and her Honour has actually invalidated every judgment in this case. The Full Court below by dismissing this has upheld her Honour’s decision and that way invalidated the whole of the Family Court’s case management system and their judgments in this case before.

Question No 2 is, if after this invalidation, maybe the other judges were wrong and maybe this judge was right, so in interests of justice, whatever judgment is correct should be upheld. The question then is, did the Full Court below take into account all the facts and evidence which was presented to the court for coming to this judgment? The answer to that is no. They assumed that one judge is superior to all the other judges in spite of any evidence given in front of them. This assumption is incorrect. This is abusive to legal system and it makes the legal system unable to function properly. It makes it dysfunctional.

Coming back to the history of this case, if the case gets transferred to Magistrates Court, what happens? The case started in the Magistrates Court. It came in a compliant manner for final hearing. On the day of final hearing the case got shifted to Family Court. This was two years ago. Case continued in Family Court. It came in a compliant manner. On the day of final hearing the case got shifted to Magistrates Court. Has the dispute in the amount of property changed from that point to this point? The answer to that is no. The quantum of property under dispute, under issue of maintenance which was in front of the Magistrates Court, is more or less saying that what came to the final trial in the Family Court. This is an abuse of legal system. Other than that, the trial judge has given irrelevant orders. If this abuse of legal system is not arrested by the High Court intervention, then at any time – and section 33B is applied incorrectly - I will come to section 33B in.....and also the judgment where the Full Court refers to section 94, et cetera and also 97(3).

If this was allowed, then at any time, even on the day of final hearing, the case will shift from Family Court to Magistrates Court. In the Magistrates Court, again we could give irrelevant orders and make the case complicated, shift it to the Family Court and this could continue and the case would never be heard. By the very basis of the legal system by which the Family Court has been settled, section 81 is applicable in the court as well as section 97(3). By this section Family Court is obliged to finalise the property matters and to finish the financial relationship after the divorce between the spouses except in the issue of maintenance of the child or spouse because that is required by the family law for that much financial relationship so that the partners do not become financially liable to the society.

So this is the essential duty of this Family Court and this duty it is unable to fulfil any more. So this is why the intervention of High Court is required. Also, I hold today and it is also a well known fact, appeal is a difficult process; appeal is a time consuming process; appeal postpones the case, but this should not allow the very people who are supposed to uphold the integrity of the law court and legal system to abuse that legal system by giving - to have everybody as a human being and to make an error.....is one thing, but to blatantly refuse to obey any of the legal procedures which have been created by the.....or the majority of the judges by themselves; to blatantly refuse to follow the correct legal procedures which are required; to blatantly give illegal orders because this process itself defeats the purpose because it is a very difficult process and this way abuse the legal system; at some point High Court has to intervene to stop this. The very fact that you get thousands of applications that you can deal with and the amount of applications that come to you for incorrect judgment is so high, says that there is a serious issue here which we need to address and address it in a manner that the courts below will be able to function in a more functional manner and not such a dysfunctional manner.

Before we proceed any further, I will reiterate that first to cover up this legislative conflict within the proceedings and the way that property matters can no more longer be concluded below, High Court needs to intervene and give some information - sort the matter out and that is why under section 35A High Court needs to intervene. In this particular case High Court also needs to intervene because it needs to give some guidelines for interim orders which the court below has the power to give but have no relevance to administration of justice. Please note here that it is not a point of discretion where anything has happened, it is an order which is totally irrelevant to administration of justice. Also in this case, by dismissing the appeal the court below has created a legislative conflict within section 33B itself so that it damages the integrity of this section. For any legislation to be valid legislation it has to be an integrated legislation, so in this case also the High Court needs to intervene to resolve the issue on section 33B.

At this point I will also refer your Honours to section 94A, 94AA and 94AAA which the court below has used to somehow create a simile which does not exist to section 33B and the respondent also repeats the arguments of the Full Court at page 247 whereby he.....part of the reasons for judgment of the Court below claims that section 94(1) has some specific provisions which prohibit the right of appeal in this case if they read it along with section 33B(8). I would like you to refer to those sections at the end of the supplementary book which are pages 297 to 301. If you read through section 94, 94AA, 94AAA there is nothing in the sections which prohibits the right to appeal. In fact, section 94 gives various sections under which it can be appealed.

However, what section 94 does do and what section 94(1); AA and AAA have, if you look at section 94(2)(C) and (2)(E) as well as section 94AA(3) and section 94AAA(9) and (11), these sections require the judges of the appeal division to take into account the standard rules of the court and follow the conditions imposed by these rules for a judgment without oral hearing. The judgment which was given by the Full Court below was a judgment given without oral hearing. If these judges do want to create a similarity between this and see what this requires, these sections require them to follow the standard rules, apply the standard rules of the court. If they were to apply standard rules of the court for judging the appeal issue on section 33B, they would find the standard of the rules of the court require them to follow Order 8, rule 6 of the Family Court and this is given at page 273 in the supplementary book. According to their own assessment as well as according to the court below, the transfer of the appeal under section 33B cannot be justified under these rules because this transfer does not follow these rules.

So if they were to apply these rules to themselves and their own judgment, they would not be able to accept section 33B; apply section 33B in this case and they would not be able to uphold section 33B(8) which they have upheld. So for some reason, they state something which actually negates their own judgment. This is not a solitary example of a contradictory judgment in this case. They also quote a judgment in which they say that we should not allow – if every successive judgment was to be appealed or changed over so the successive judgment was to change a previous judgment, it would create the kind of conflict which would make it very difficult for courts to come to a final conclusion.

Now, what the trial judge has done is exactly this. She has opposed all the previous judgments without any cause rendering the court unable to continue with the case. So, if this argument was to be actually applied on the case that they were judging, they would have upheld my appeal. So their application is wrong but I have nobody to say it is wrong so what I have the ability to say to you is by saying that their application is correct and by also saying that these judgments are correct, they create a logical flaw with something which is logically not allowed, which is the basis of our legal system. So they create a logical fallacy so it is a disallowed situation. That way, it is not acceptable and High Court now has to resolve the issue in one way or the other so that a finally acceptable situation can come out of it. Logical fallacies cannot be allowed to exist.

So, in this case also in.....section 97(3) which says that the cases in this case should not be protracted and they say that this is a statutory requirement in their judgment which the trial judge should have taken into account and because by not taking into account and by shifting the case to a Magistrates Court, she had made it protracted and this is against a statutory requirement of section 97(3) but then they ignore it afterwards because they obviously – there is a conflict because they do not know within section 33B who to give superiority of – whether it should be 33B(8) or 33B(6). The majority of the judges in this case, as is noted by the new rules, prefer to go by section 33B(6) which is of course – but then it is – in this particular case, this issue still stays unresolved. So now it is for High Court to decide whether section 33B needs to be reframed so that this logical fallacy does not come into it and the legislation has the integrity which is required for a law but if not, then the High Court has to come up with some other resolution so that this conflict can be removed.

At this point in time, because I do not know if I may run out of time, I will tackle the issue of cost. In the issue of cost I will say the same thing. It is not clear that even if the appeals were not put into the place and the court case had gone to another court in August, it would have been resolved at all because it would have been in exactly the same situation where we were in the beginning of the case. All of the documents would be irrelevant. We would need to be refiling them, they would have to rehear everything and the case would sort of start in the same situation, so we do not know where it would be. So there is no comparison whether the appeal gets prosecuted or does not get prosecuted my situation will be any better financially.

On the other hand, the fact that some of the irregularities and confusion in this case had been created by the respondent’s lawyers is a serious issue so they should hold the burden of cost. Thirdly is that because the judgment of the trial judge is irrelevant to the administration of justice in case this has to be appealed because this creates abuse of the legal system in spite of the postponement, the costs should not be awarded against me but if the Court is of considerable opinion costs should be awarded to me
for preparation of all the documents and other sundry costs in the case. Thank you, Your Honours.

McHUGH J: Thank you, Dr Singh.

The Court is of the view that this application raises no arguable case of error in the reasons of the Full Court of the Family Court which reveal any point suitable to a grant of special leave to appeal. Accordingly, the application must be refused with costs.

AT 12.49 PM THE MATTER WAS CONCLUDED