Fairbairn v Radecki [2021] HCATrans 166 (15 October 2021)

Last Updated: 15 October 2021

[2021] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S2 of 2021

B e t w e e n -

FAIRBAIRN

Applicant

and

RADECKI

Respondent

Application for special leave to appeal

KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND MELBOURNE

ON FRIDAY, 15 OCTOBER 2021, AT 11.29 AM

Copyright in the High Court of Australia
KEANE J: In accordance with the Court’s protocol when sitting remotely, I will announce the appearances for the parties.

MR B.W. WALKER, SC appears with MR G. LEVICK for the applicant. (instructed by Powe & White Family Lawyers)

MR J. T. GLEESON, SC appears with MR G.M. GOULD and MS D.M. FORRESTER for the respondent. (instructed by Attwaters Solicitors)

KEANE J: Yes, Mr Walker.

MR WALKER: May it please the Court. We appear as your Honours understand on the instructions of the New South Wales Trustee and Guardian, whose role in the proceedings as case guardian is brought about by the unfortunate decline in the cognitive capacity of our client, the applicant. That decline is so severe as to have produced the need for that appointment of the Trustee. Its severity extends, as your Honours understand from the reasons below, to an incapacity to make and be responsible for decisions, including decisions concerning the disposition of property.

One of the issues which, in our submission, renders this a proper case for this Court to take up, is the allied consideration of the extent to which that proven incapacity with respect to matters of property and, for that matter, their own personal care, should also be regarded as having the possibility ‑ and I stress, the possibility ‑ of significance for the question, intimate and personal as it must always be, of the end or the breakdown of the de facto relationship. I have said “end or breakdown” because the provisions to which I am about to come are provisions which are not exactly pellucid in the relation between those two concepts, although there obviously is a considerable and substantial connection.

This is also against the background of what might be, depending upon the outcome, either the contrast or comparison with a state of de jure marriage, where the concept of irretrievable breakdown – for example, that which section 48 of the Family Law Act posits with respect to the prerequisites for divorce – obviously antedates, precedes, the ending of the marriage which is brought about by divorce.

Of course, marriage is a status that appertains to – but may not entirely constitute – a relationship and thus, the irretrievable breakdown of what might be regarded as the marital relationship is that which must precede the ending of the status, according with that relationship by the divorce.

Whether, and to what extent, there is any analogy to be drawn between that well‑known creature of the law of marriage and that not so well‑known creature of the law – but very well known to society – namely the so‑called de facto marriage, or de facto relationship, is another of the reasons why, in our submission, this is a case ripe for the Court’s appellate attention.

GORDON J: Mr Walker, before you come to the provisions, this Court looked at least at that aspect of the question in Stanford in relation to marriage.

MR WALKER: Yes.

GORDON J: And, is it your position that, consistent with the referrals from the State that marriage, and the provisions in relation to marriage, are different, both in their text and operation, as distinct from those that relate to de facto’s relationships?

MR WALKER: They are certainly different in text. I have said either contrast or comparison because, in our submission, there must be some commonality – both positions of course describe what can fairly and properly be called a relationship – but the question as to whether there is a similarity in the aspect of the relationship that confers a status is, with respect, unexplored, either in this Court or really anywhere.

GORDON J: Is your submission really to say that breakdown means something sufficient to justify the Court’s intervention?

MR WALKER: Ultimately and functionally, yes. Your Honour anticipates a point to which I am happy to come immediate. If by reason of the incapacity it were held that the incapable party to a de facto relationship was incapable of forming the kind of intention that one or both of the parties to such a relationship may hold in order to demonstrate components of the conclusion breakdown, then, of course, in a case such as the present where the respondent’s protestations are that he has no such intention, and if they be accepted, there is no capacity for the applicant to have such an intention, the possibility of what might be called a blocking of access to a very salutary jurisdiction of the Family Court would be brought about by what I will call “judicial glossing” of the broad terms, breakdown and perhaps end, which are found in the jurisdictional provisions to which I am about to come.

Now, that is a functional or purposive reason why, in our submission, it is important for this Court to consider the question. This case provides what, unfortunately, is likely to be a far from unique set of facts, as we age but our bodies do not remain in the same order as we would like them to be with increasing age ‑ ‑ ‑

GORDON J: Could I ask one more question before you come to the provisions and that is this: is this an appropriate vehicle in circumstances where a trustee could have gone to the Supreme Court and got appropriate relief in the Supreme Court? I ask that for this reason. If the facts had been reversed and there was property of a de facto relationship but the female had or owned property, then one can understand the blocking idea to which you have just referred.

MR WALKER: Yes, there is obviously a difference when the question arises with respect to property which is, as it were, the property of both in some way or other, law or in equity, but rather, we have in mind that the occupation of the Buchanan property by the respondent may well, of course, constitute a position which would render the proceedings in question the proceedings that not only can be but therefore ought to be brought under section 90SM, that is, for the alteration of property interests.

And so my answer to Justice Gordon’s question is that this is an appropriate vehicle, because there are possibilities not yet determined, because there has not yet been a substantive application heard, which would mean, no, there was not a clearly available wholly sufficient recourse to the Supreme Court, that is, a jurisdiction in which what might be called the legal, and arguably beneficial, complete ownership of the Buchanan property by the applicant, would see her able to overcome, with judicial support, opposition by the respondent to it being realised and its proceeds applied for, as we would put it, knowing their substantive argument about this, her benefit.

EDELMAN J: Mr Walker, given the matters that you have mentioned, are the consequences of this decision far greater for your client in the sense of the Public Trustee, rather than the applicant herself?

MR WALKER: There is no question that, in terms of understanding the position that my client the Trustee ought, contentiously, be considering in each and every separate case according to its own circumstances, there are far‑reaching implications of a decision one way or the other, including the decision as is presently held by the Full Court, which of course is not true of any particular party to a de facto relationship. That, in our submission, adds to rather than detracts from the appropriateness of the case for a grant of special leave. As I was saying ‑ ‑ ‑

EDELMAN J: But it may raise a question, though, as to who ought to bear any costs of the application or any appeal.

MR WALKER: It does the raise that question, your Honour, yes. And this Court has a well‑understood discretion to condition special leave appropriately according to the circumstances of the case. I cannot and would not say that this is not, in the sense that Justice Edelman has raised, a test case which is institutionally significant to that officer of the State who is given the stewardship of incapable persons’ affairs. That bespeaks general public importance which we urge in favour of special leave. It also bespeaks, as it were, the unattractive arbitrariness of leaving open the contingency of an adverse costs order against an individual who happens to be involved in that kind of test case. I accept all of that.

KEANE J: I suppose, Mr Walker, what Justice Edelman is getting at is whether you are in a position to get instructions in relation to any conditions the Court might impose on a grant of special leave in relation to the costs, both of the applicant and of the respondent.

MR WALKER: Your Honour, I am sure I am in a position, but I know I am not immediately able to do so because, I am sorry, I do not have knowledge myself of the level of authority.....administration. However, what I have said is that there is an undoubted power for your Honours to impose such a condition if it were to assist, I would put in train the steps to have signified our position as soon as possible. That, of course, is necessary, bearing in mind that the imposition of a condition requires fulfilment, which in turn requires acceptance of that condition in order for an order for special leave to operate in favour of the.....

KEANE J: Thanks, Mr Walker.

MR WALKER: Your Honours, the reason why this case presents usefully in terms of the human relationship in question for special leave because of its likelihood of being fairly characteristic of problems that will arise from time to time, perhaps more or less continually, is that the special expenses of the special form of accommodation and care that our declining physical and mental health can require is, as your Honours know, notoriously considerable.

As your Honours also know, the conversion of a residential property which has provided a home and the location for home services while one is healthy enough to enjoy being at home, by liquidation and its proceeds being applied towards the provision of special care, is an extremely common social phenomenon likely to continue and almost certainly to increase as the population of aging persons with incapacity problems increases.

It is for those reasons that the conflict which is surely common ground, as a matter of fact, between the parties to the relationship in this case comes down, alas, to the question of money. That is, the realisation of the applicant’s property in which the respondent is living, in order to produce the funds so that a refundable accommodation deposit.....where refundable speaking everything I need to say about it – can be paid, rather a non‑refundable daily accommodation payment being made.

As your Honours know, at first instance the date of the ending, I should say the breakdown of the relationship was held factually, as your Honours will see at first instance paragraph 158, to be no later than the date when the respondent proposed to my Trustee client that the applicant’s superannuation be resorted to as a financial resource in the first instance to meet those daily accommodation payments.

Your Honours also know that, in a way which is likely to be characteristic but is more relevant here for the substantive application if any could be made, there is of course the next generation, the children of one of the parties. Very commonly, the children of a marriage of one of the parties to the unmarried relationship are involved in these questions of property.

Against that background, in our submission, one sees that the critical jurisdictional provisions, perhaps start sensibly with section 90SM, which stipulates that a property settlement proceeding by de facto parties can be commenced after breakdown of the relationship. Under subsection 44(5) of the Act, a different expression is used for what is called the period within which such an application may be made, at least in its first form, namely two years after the end of the de facto relationship.

It is no doubt in that latter context that one sees in paragraph 90RD(2)(d) that, among the declarations within the Court’s power to make declarations as to when a de facto relationship ended, I need to draw to attention as one of the matters that may or may not involve.....in this or later cases concerning the statutory terms that the notion of breakdown does not appear to arise in terms of those declarations that can be made. As your Honours would expect, that does not present a difficulty so far as concerns binding findings of a breakdown, as opposed to, if it be different, an end of a relationship.

The next obvious point to go to is the role which, on any part and side of the argument, is considerable, of section 4AA’s definition of “de facto relationship”. Now, a de facto relationship includes, substantively, in paragraph (1)(c) of that definition, the conclusion:

having regard to all the circumstances of their relationship –

that the people in question:

have a relationship as a couple living together on a genuine domestic basis.

It is, with respect, in the contrasting or comparable position of a formal marriage, a legal marriage, easy to see why there is a revulsion at the notion that the relationship ends or breaks down because a beloved wife has to go into care, or a beloved husband is required to be looked after in special facilities which amount to, on any view of it factually, the couple no longer living together. In other words, we accept that with respect to irretrievable breakdown for a marriage, the exigencies which may divide people who would wish otherwise to be together cannot possibly sensibly be regarded as producing the conclusion of an irretrievable breakdown of a relationship.

The ancillary provisions, with respect to sections 48 and 49 for irretrievable breakdown of a marriage, and intentional unilateral separation, of course, speaks loudly in that regard. But there are no such provisions in relation to de facto relationship, and there is what might be called the open‑ended non‑exhaustive and case‑specific circumstantially‑weighed set of factors, not exhaustive, I stress, in subsection (2) of section 4AA’s definition of de facto relationship, and they speak in terms that do not require, one way or the other, a position to be taken in either a particular relationship or in relationships generally, what happens when there can no longer be any concept of living together on a genuine domestic basis by reason of the separation such as one sees factually in this case. Now, in this case ‑ ‑ ‑

GORDON J: It is a matter of construction though, Mr Walker, (2)(b) may say otherwise.

MR WALKER: Your Honour is, with great respect, entirely right. (2)(b):

the nature and extent of their common residence ‑

it is not alone in that regard – the same is true with (c), (d), (e), (f), in particular – and one cannot but wonder just how far the ramifications of (i) will go.

The phenomenon interrupted during COVID of physically separated spouses, de facto or otherwise, visiting each other is obviously part of the public aspects of a relationship. So, we accept that the facts that this case throws up do not, as it were, come any way near a lay down misère as to breakdown – that would be absurd – it was not argued in that fashion.

But with the conflict concerning access to property, with the special and important consideration of the trustee’s responsibility for property questions, then, in our submission, there does arise a set of questions – all
focused on quite typical and important social phenomena to do with de facto relationships and access to property in times of need – that render this case an appropriate one for the Court to grant special leave. May it please the Court.

KEANE J: Thank you, Mr Walker. Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honour, and good morning. Could I deal with the matter in three stages, firstly, to indicate why it is an inappropriate vehicle for Mr Walker’s questions. Secondly, to show that the proposed grounds of appeal, apart from being complex, contradictory and otherwise suffering defects, do not raise special leave questions. And, thirdly, to deal with the question of any conditions upon the grant of leave.

Your Honours, as to vehicle, Mr Walker has made much this morning about a possible difference between breakdown and end of the marriage and that is in the written submissions as well. Can we be perfectly clear, no such argument was advanced in either court below, considered by either court below as a matter of law, nor is it shown how it would affect any finding of fact.

Your Honours can see that because at page 8 of the book, the actual order by the primary judge, which was under appeal, was made pursuant to section 90RD in terms that the relationship had broken down. Section 90RD, amongst other places, is in the book at page 91, and that is a power to make “declarations” about whether a “relationship existed, or never existed”.

And if your Honours could have regard to subsection (2)(a), and particularly (2)(d), that is the power the primary judge relied upon, particularly the power to declare when the relationship ended. The primary judge said no later than 25 May 2018. So, the primary judge treated breakdown and end as the same creature, and no issue was raised about that in the appeal court.

Further, if your Honours have the separate bundle we have provided of materials, section 90UD(1), makes clear that breakdown and end are the same thing because it says:

If:

(a) after the breakdown of a de facto relationship, the parties to the former de facto relationship make a written agreement –

and so on, then provisions apply. So, we would ask your Honours not to regard this case as suitable to explore any such difference between breakdown and end.

The related point is that Mr Walker has said there is an interesting question of whether breakdown of a de jure marriage informs breakdown of a de facto relationship. Again, you will see no exploration of that question in the judgments below, because it was never raised. And, in particular, the Full Court judgment that we defend on page.....of the book, when it sets out the legal test, bases itself upon cases dealing with de facto relationships, and in no way draws any analogy with de jure marriage. That is the first set of reasons why it is an unsuitable vehicle.

Your Honours, the second set of reasons concerns the question raised by Justice Gordon, which is why cannot the Trustee do what it wishes to do under State law? And these proceedings with respect to the Trustee have been wholly misconceived from the outset, because the Trustee has powers, admittedly subject to NCAT review, to deal with the property of the applicant, and we have given your Honours in the supplementary materials at pages 20 and following, sections 57, 64, and 83 of the State statute.

Now, what seems to have gone wrong, your Honours, as can be seen on page 10 of the book, in the primary judge’s reasons, is that at paragraph 7 the Trustee determined to sell the house, and instead of exercising that power of sale and subjecting itself to NCAT review or Supreme Court review, paragraph 9, the Trustee seemed to have acted upon a basis that if the relationship is still on foot it can bring such proceedings, but once there is a breakdown it needs to be under the federal system.

Now, that is simply wrong, as a proposition of law, there is no qualification upon the State powers that they can only be exercised in some but not other circumstances. So that really brings me to this point, what this unfortunate case is about are two matters that need to be kept separate. One is whether the relationship has broken down, it is clear my client’s position is it has not, and the findings are he continues to engage in the relationship to the extent possible in the change of circumstances.

A separate question is a financial dispute between my client on the one hand and the Trustee on the other hand, and perhaps the applicant’s children, and the question is simply which resources should be used to pay for the applicant’s care, and in which order? Now, that is a dispute, it is an unfortunate dispute, and one might really think it should be resolved not through the jurisdiction of this Court but through mediation, quite frankly, and if not, the provisions of State law which are available. But the fact that there is such a dispute does not constitute a breakdown of the relationship.

Your Honours, the next matter is that you have heard little this morning of what the Full Court actually did when it found error in the primary judge and that would be the subject of any such appeal. If your Honours could go please to page 57, the appeal court accurately identified three questions. The first was the notion of objective imputation of intention to separate. That question the Trustee correctly conceded was an error made by the primary judge. That is at paragraph 38. So that question went away.

The second question in 25 was, was it proper to infer an intention in fact on behalf of my client to separate? You will see from paragraph 40 that that is the way the Trustee ran the appeal below, and what the court did, first at 41, is to say that is not a fair reading of the finding, but in any event, at 42 through to 53, looking at the critical facts, one could not infer an actual intention to separate.

But the Full Court did not stop there. The third of the points it identified at paragraph 25 was, irrespective of intention, did the evidence show they were not in a de facto relationship by that date and the reasoning of the Full Court on that question are the same matters that appear at paragraphs 42 through to 53, which the court has drawn upon in paragraph 55 to say that there was no relevant change of substance so as to amount to a breakdown.

As a matter of law, the test which the Full Court is applying in those paragraphs is about as favourable to the Trustee as it could be. You will see in paragraph 43 there is language of incompatibility, similar language in paragraph 49. At paragraph 52 there needs to be more than the applicant’s mental incapacity.

So, what the Full Court did, applying the test – which was simply this, irrespective of your intention, Mr Respondent, was your actual conduct so incompatible with the factors which had made this a de facto relationship that the court should regard that relationship as broken down. The Full Court found, as a matter of fact, that that test was not satisfied by the Trustee.

One can see some support for that factual finding – a jury finding – because if the Court looks at paragraph 42, the six points of the primary judge, the first point is in fact perhaps the key factual point the primary judge relied upon – that on a date, that happens to be 25 May, that is the date the primary judge seized upon, the respondent suggested that the applicant’s superannuation funds be used in the first instance to pay the DAP rather than the sale of the home, and the reason for that, at least on the respondent’s side, as can be seen from paragraph 57, was that it reflected her wishes in her January 2016 will about which there was no question raised.

So, what the Full Court has said is, for the respondent to make a suggestion that one pool of the applicant’s assets be used ahead of another to meet her care costs, consistent with her will, is not a position so unreasonable, so capricious – not a position even arguably constituting financial abuse as could raise incompatibility with the continuation of the relationship.

So, your Honours, when close regard is paid to the actual appeal below, the issues that were raised – and then, what would come to this Court – we would submit in the end, it is a case on the facts because the appeal court has applied the correct test. I should say one other thing your Honours ‑ ‑ ‑

EDELMAN J: Mr Gleeson, you have referred a few times to the test that the Full Court has applied. It is not entirely clear to me what emerges from the reasons of the Full Court as any anchoring basis for what actually is a de facto relationship, and in particular whether a relationship that is built upon one footing that moves to a completely different footing remains a de facto relationship.

MR GLEESON: Thank you, your Honour. The test ‑ ‑ ‑

EDELMAN J: I should also add, if there is not anything that anchors that notion, how would one then weigh the factors to (a) through to (i) in section 4AA?

MR GLEESON: Your Honour, we would submit that the anchoring factors of the test are found between paragraphs 29 and 35 of the Full Court, and they really proceed through two stages. The first is that intention to end the relationship, if formed and acted upon, is one way in which a relationship could break down. Not the only way, but one way in which it could break down.

Then, critically, if we are not in intention territory, which is our case, 34 and 35, following the reasoning in Clarence, say that one focuses upon the indicia in section 4AA as they manifested themselves in this relationship, and one asks, having regard to such changes as have occurred, whether it still sufficiently meets the test of continuation of that relationship.

Now, in applying that test, one obviously needs to look at what has changed and what has stayed the same, and one needs to look at what external circumstances of necessity require certain matters to change. That being the anchoring text, what the Full Court, we submit correctly, did at paragraph 42 was to say they are the six factors which the Trustee seizes upon to say that, in addition to the applicant’s incapacity, there was a breakdown, we will analyse each of those factors through a prism of incompatibility.

It is almost as if one is drawing an analogy with the repudiation of a contract, that there can be cases where your conduct, objectively, is so incompatible with the continued performance of the obligations and the enjoyments of the benefits of a contract, that the law deems you to have repudiated whatever was in your head. It is that type of test which the Full Court, we submit, has applied. It is a stringent test, and it is one which, as we submit, is quite favourable to the Trustee.

EDELMAN J: So, Mr Gleeson, is your answer then that if the parties are in, or were in, clearly a de facto relationship, and that particular relationship ends, and a new relationship is formed, which might also be characterised as de facto, but it is on a completely different basis, has the relationship broken down in those circumstances? So, for example, partners living together in a relationship of genuine love and mutual affection, where the love and mutual affection breaks down but they decide to remain living together, looking after children, cohabiting, living interdependent lives.

MR GLEESON: Your Honour, it is going to be ultimately a jury question, for the reasons expressed by Justice Fitzgerald in the Lynam decision at paragraph 28, one will have to look at what has changed, what has remained the same, what new elements have come in. But, of course, at one extreme, there would be the case – perhaps the unlikely one – where you can say, on the facts, there is a true breakdown of the relationship, number one, and the formation of something so different in its substratum that is a new de facto relationship, number two. If that were right, that would be breakdown of one, we say it would be end of one, there would be jurisdiction to alter the property interests under one.

Whether it would be exercised as a matter of discretion is of course another matter. But, what is important here is that the findings of the Full Court which you have heard little about in writing or even this morning, have very carefully analysed each and every one of the changes – alleged changes – and then also, if your Honours look for instance at paragraph 51, looked at the matters of continuity, including that the respondent was meeting the charge:

from his own resources and visited [her] often and regularly.

And so, they are the matters of continuity. Your Honours I did just want to say in terms of the grounds of appeal, we respectfully submit the Court
should be very slow to allow an appeal with the prolix seven grounds, none of which seem to capture, really, anything Mr Walker has put this morning and some of which are quite wrong.

For example, ground one, you applied the “incorrect principle” – which principle? Ground two; “intention” was “irrelevant” – well, it was at least relevant because that was the case the trustee ran. Ground three, perhaps, is getting close to Mr Walker’s point, but does not really capture it. Ground four, the court did look at the 4AA factors. Ground 5 is an evidence ground, without the identifying the evidence overlooked. Ground 6, the test must be “objective” – the court did apply an objective test, and so on. So, nothing in those grounds really captures the special leave question, we would submit.

Your Honours, finally, if the Court were minded to grant leave, we submit it should be on the most stringent of conditions, that the Trustee meet the costs of both applicant and respondent of the application and of the appeal, and the trustee, as representative of the applicant, not seek to disturb the limited costs protection which the respondent has received in the court below, which are the orders at page 66, paragraphs 5 and 6, and the Trustee for the applicant not seek any costs order in respect of the first instance proceedings where the costs are currently reserved in the applicant’s favour, that is page 41, for the obvious reason that this is about the Trustee seeking to establish a principle which it considers important across many cases.

We say it is a totally inappropriate vehicle, but neither the respondent, nor, indeed, the diminishing resources of the applicant should be burdened with the Trustee’s litigious endeavours, especially if the Trustee is permitted to raise new arguments. May it please the Court.

KEANE J: Thanks, Mr Gleeson. Anything in reply, Mr Walker?

MR WALKER: Briefly, your Honours. In our submission, this is not an attempt materially to alter the core of the argument which concerned the approach taken to detecting and adjudicating a breakdown. My friend is right, with respect, that the theme of some supposed difference, subtle or otherwise, between breakdown and end is not fully manifest at any stage of the litigation.

We have drawn to attention the fact that the statute is, with respect, by no means all one way with respect to an equivalence. We have in mind in particular that, unlike a legal marriage, a de facto relationship is found by reason of circumstantial and particular aspects of the dealings between two individuals and, in this case, as your Honours know, it had to do with the intent, mutually held, to keep their pre‑existing property quite separate, one from the other.

It is that aspect of matters which, as your Honours know, led to the reasoning which culminated in the first instance paragraph 158, to which reference has been made by both of us, and which was the subject of the Full Court’s overturning, that is disagreement, concerning the conclusions to be drawn, in the Full Court’s in particular paragraph 43.

That is, in our submission, a sufficient demonstration that there were issues joined below which had been considered in the reasons below, which are right for consideration by this Court concerning the way in which a breakdown is to be concluded where the important bases, one might call them the structure of a relationship, have been quite removed, not only by circumstances but it would appear also by intention, bearing in mind the claim to the benefit of the Buchanan property owned by the applicant that the respondent so stridently makes by his various opposition to it being realised for her benefit.

EDELMAN J: Mr Walker, is that not really a single ground of appeal?

MR WALKER: Yes. Your Honour anticipates me. Everything, with respect, my learned friend for once has somewhat temperately said about the proposed grounds of appeal is correct. They are really not in proper shape. There is just one ground and it ought to be articulated by reference to the removal of the substrate of the relationship from being living together on a bona fide domestic basis with a clear understanding as to the separation of property to the removal of all of those elements of the substrate and, in particular and tellingly, the last of them.

Your Honours, we have nothing to say against the obviously appropriate submissions my friend has put about the Trustee’s institutional interest in the application and any appeal with respect to the imposition of a condition. With respect, the submissions have real merit. May it please the Court.

KEANE J: The Court will adjourn briefly to consider the course it will take in this matter. Adjourn the Court please.

AT 12.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.25 PM:

KEANE J: There will be a grant of special leave in this matter. Mr Walker, leave will be granted to appeal in respect of the ground of appeal as refined and adumbrated by you in reply. We will have to rely upon you to conform to the spirit in which the grant is made.

MR WALKER: Yes, may it please your Honour.

KEANE J: In terms of formulating the grant of leave, leave is granted on the condition that the New South Wales Trustee and Guardian pay the costs of both parties of this application and of the appeal and that the New South Wales Trustee and Guardian not seek to disturb the orders for costs made by the Full Court in the order of 11 December 2020. How long do you anticipate the case will take to hear, Mr Walker?

MR WALKER: Less than one day, your Honour.

KEANE J: Mr Gleeson.

MR GLEESON: I would have thought one day, your Honour.

KEANE J: Very well. On that footing then, there will be a grant of special leave in this case subject to the conditions as to costs that I have indicated. Adjourn the Court please until 12.30 pm.

AT 12.27 PM THE MATTER WAS CONCLUDED