A v A

[1999] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S37 of 1999

B e t w e e n -

A

Applicant

and

A

First Respondent

SEPARATE REPRESENTATIVE

Second Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1999, AT 12.30 PM

Copyright in the High Court of Australia

MR M.F. LE POER TRENCH:   If the Court pleases, I appear for the respondent in this matter. (instructed by Hill Thompson and Sullivan)

MR A appeared in person:

McHUGH J:   Having regard to the identification of the parties in this, I will order that you be called Mr A during the arguments, so as to protect the anonymity of the children involved in this particular case.

Before you commence Mr A, the Registrar has given me a certificate stating that she has been informed by the Legal Aid Commissioner of New South Wales, representing the second respondent in this matter, that the second respondent does not wish to be represented at the hearing of this matter and will submit to any order, save as to costs.  Yes, Mr A, you might come to the lectern.

MR A:   Yes, I am just getting…..together, I am sorry.

McHUGH J:   How you spend the 20 minutes allotted to you is a matter for yourself, but there are two matters that you should direct your attention to, and that is that the original applications for special leave to appeal was filed almost 11 months out of time and, secondly, it appears that the orders, which are the subject of your application, have been discharged.  In those circumstances, why should the Court grant an extension of time to hear this application?

MR A:   Well, this matter is unusual in itself.  I suppose I should address those two matters, but if, as your Honour has just said, I would like to address the whole thing as an entity; that is the way I have basically put it in my mind and that is the way I would like to do it.

McHUGH J:   Well, it is a matter for you how you spend your 20 minutes, but they seem to me at the moment at least to be key matters in this particular case.

MR A:    They are indeed.

McHUGH J:   It could seldom, if ever, be a proper exercise for a discretion to make an order dispensing with the requirements of Order 69A(3)(1) in a case where orders for - concern children and such a long period of time has elapsed.

MR A:   Okay. Well, I will address that simply. Section73(ii) of the Constitution basically says, this Court has the jurisdiction to hear any matter that it sees fit, if it meets a certain criteria.
‘
McHUGH J: Well, it does not say that at all. Section 73 gives the Court a jurisdiction. That jurisdiction is regulated by the Judiciary Act and the Rules of Court and one of them is Order 69A(3)(1).

MR A:   Yes. As part of that, the way I understand section 73 of the Constitution is that any other Federal Court or court exercising federal jurisdiction. The reason I have asked for this is that section 73, in part, gives me an opportunity to ask for relief. I will address it as your Honour has just raised it.

As you have noticed from the documentation, which I believe you have read, the matter was originally heard before Justice Baker, then the Full Court and then it was sent back to, eventually, Justice Rourke.  Because of actions by the respondent, it says in my documentation, this appeal is predominantly because of Justice Rourke’s actions.

McHUGH J:   Well, see, that is part of the problem that you have.  The original application is filed in respect of the Full Court orders.  Now you seek to rely on material, some of which seems to have come into existence after the date of the Full Court’s order or come into your possession after that date, but material that was not before the Full Court, and this Court does not entertain evidence that was not before the courts below.

MR A:   That is the problem, and that is why I believe this is a constitutional problem.

McHUGH J: But when you talk of a constitutional problem, the jurisdiction under section 73 is against judgments, decrees, orders and sentences of the specified courts. Now, what is the order, decree or judgment against which you seek special leave to appeal?

MR A:   As your Honour has just pointed out, the Full Court’s decision, as you say, 11 and a half months out of date ‑ ‑ ‑

McHUGH J:   Yes, and which is now discharged.

MR A:   Which has been discharged.

McHUGH J:   Well that just makes the whole exercise futile.  We would never grant special leave in those circumstances, even if you were within time.  There is no point.  We can only correct orders ‑ ‑ ‑

MR A:   That is only part of the application why I have made to this Court today; that is not the full jurisdiction – the full reason why I am here.

McHUGH J:   Well, it is not a question of the reason that you are here, Mr A, it is a question as to what is the relevant order, and the only order that you have identified - and I think the only order that you can identify, having regard to your documentation – is the order of the Full Court.

MR A:   I believe I have also included a plethora of evidence in relation to Justice Rouke’s rulings.

McHUGH J:   I appreciate that you have and it seems to me that evidence should never have been put before us; it is a matter after the date of the Full Court order.

MR A:   This application is, in my view – and the reason I have filed it is because of what Justice Rourke did.

McHUGH J:   I appreciate that, but if you have remedies in relation to that, then you have got remedies in relation to that, but they are not by way of a special leave application against the orders of the Full Court.  Your orders would seem to me to be an appeal against Justice Rourke’s order, or perhaps some other relief that ‑ ‑ ‑

MR A:   The special circumstances are, the simple fact is, there was no opportunity of me having a fair hearing before Justice Rourke’s court.  Now in his words, he says the words himself ‑ ‑ ‑

McHUGH J:   Yes, but that is not the order that is the subject ‑ ‑ ‑

MR A:   If I have no confidence – if a self-litigant especially, has no confidence in the family law jurisdiction, where can you turn?  There is only this avenue left?

McHUGH J:   Well, the point is that you will have to go to the Full Court first, then you may have a right to bring an application up here, but your application is concerned with the original orders of the Full Court, made as long ago as 2 April 1998, and they are now discharged.  They are of no legal effect whatever, except as an historical event.  They have been discharged.

MR A:   My application before your Honour is predominantly, as I have stated, because of Justice Rourke’s decision.

McHUGH J:   Well, I appreciate you say that.

MR A:   Seeking leave from this Court, I am asking the opportunity to have that matter reviewed, because of the way that it happened.  Now when a superior court justice walks into a court and has already made up his mind before he walks in those doors, it is impossible to have a fair hearing.  If you have no confidence in the Family Law Court, then there is no avenue to turn to.  This Court, I understood, was - I want to believe, is that it is there to protect people such as me.

McHUGH J:   It does justice according to law.

MR A:   Justice according to the law, but, to date, and before Justice Rourke, and before the Full Court and before Justice Baker, I think my documentation raises the matters that are of concern.  The simple fact that a self-litigant cannot get a fair hearing should be of concern to this Court, with respect.

McHUGH J:   Well, it is when it is the case, and this Court has never hesitated to intervene in an appropriate case, but I have put to you on a number of occasions and you have not answered it, that the order that is the subject of this special leave application is that of the Full Court, it is 11 months out of time that you have brought your application and added to that is the fact that those orders have been discharged.

MR A:   Well I considered, when I put this application together, there was the two reasons why I came here; not only the Full Court’s, but Justice Rourke’s actions.

McHUGH J: Yes, well if you have filed an application just after Justice Rourke’s order had been made, I would very much doubt whether any judge of this Court would have granted special leave to appeal against that order; you would have been told to go to the Full Court. And section 95 of the Family Law Act directs that appeals are to be to the Full Court of the Family Law Court.

MR A:   But it also says that you do not have to go to the Full Court.

McHUGH J:   Where does it say that?

MR A:   Well it says – I do not have a copy of it – but does it not say that appeal does lie to the High Court if permission is granted from the Family Law Court?

McHUGH J:   By a certificate of the Family Law Court itself.

MR A:   But it does not state that you cannot.

McHUGH J:   Well, I think it does, does it not?  It says:

Notwithstanding anything contained in any other Act –

They are the opening words of section 95, if I remember correctly. Yes:

Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except –

(a)  by special leave of the High Court; or
(b)  upon a certificate of a Full Court – - -

MR A:   I am sorry, you said, special leave of the High Court?

McHUGH J:   That is so.

MR A:   I am here.

McHUGH J:   Yes I know, but your application is not before us, and what I was saying to you earlier is that you would not be granted special leave by this Court – at least not in my opinion – direct from a trial judge.  You would be told to go to the Full Court first and then, if you failed there, we would consider your application from the Full Court.  Otherwise this Court would just become a vehicle for hearing appeals from single judges of the ‑ ‑ ‑

MR A:   Well that may be, but, with respect, your Honour, how often – and to my mind I have not found anywhere, anywhere, in any court room, in any decision, where a justice has done what Justice Rourke has done.  This is certainly a very unique matter.  There is nothing like it.  Unless it is being deliberately with hidden from the public’s view, there is no other matter where a judge of the superior court has walked in, predetermined and then set about systematically to deny an applicant, such as me, as it was, an opportunity to be heard.

McHUGH J:   Well that is an ascertain you make and that is a matter for argument.

MR A:   That is an ascertain I make and I think are his words.  It is a matter for argument, but his words, my application was insuperable.  He stated, in his words, as you have got a copy of, that I was trying to get behind their orders.  Now he had determined that I was not going to win.  Now, if I take that matter to the Full Court, the discretionary judgment under the Wollongong principles is fine, that may be the case, but, in this particular matter, it is not a discretionary judgment at all.  Justice Rourke chose to ignore the law.  The law says he was supposed to be fair and unbiased.  He ignored that responsibility.

Now, in my documentation, you have read some of it too, he has a responsibility as – I believe the term was – “a corporator”.  They include positions such as yours as a responsibility to an oath of office as in a judicial office, section 32 of the Crimes Act.  He had a responsibility, but he ignored that.  There is no one else who can really sit in judgment, in my respectful submission, on Justice Rourke.  The Family Law Court will not do that.  Their past procedures and actions have certainly made that very clear.  When you have got Chief Justice Nicholson in his stated court address in 1998, dismissed out of hand the independent inquiry as to how his court and actions were happening, just, “No we do not have a problem”, there is no such thing as a fair opportunity for a litigant such as me.

McHUGH J:   Well if you made that ascertain.  The legislature does not accept it.  The Family Law Court is there as a Full Court.  It allows appeals day after day from judges of the Family Court, its own judges, and that is the place that you have a remedy, if you have a remedy.

MR A:   If I have a remedy for the general decision.  I am also, as my document has clearly said, I am appealing against - to this Court, because of Justice Rourke’s.  If this Court does not determine – and if I understand what your Honour is saying that it does not have the capacity or the desire to rule on whether Justice Rourke has broken the law, then ‑ ‑ ‑

McHUGH J:   It is not a question either of capacity or desire; it is a question of proper procedure, and the proper procedure, if you have a complaint against the judgment of Justice Rourke, is to go to the Full Court of the Family Court.

MR A:   On a ruling?

McHUGH J:   Well you would be appealing against the order discharging the earlier orders.  That would be my understanding.
MR A:   If I was to apply for a writ of certiorari - I cannot pronounce that word; I have tried many times – basically, the judgments I have read have all determined that the fact that if there is a fraud, et cetera, et cetera, then there is a very good reason that the courts might grant that. Now again, it seems to me there is an issue here that the credibility of a self-litigant, who cannot get a fair hearing, cannot come to the High Court and ask for relief, as in the way I see section 73 stating, then, I can go back to the Full Court. They will deny me, because they are going to protect one of their own, and I say that with all respect; I do not mean to say that they would do that. I am just saying that, in this present situation they can avoid the issue. The simple fact is, you have got Justice Rourke, who has made a decision, biased, he broke the law, and no one cares, and if I cannot come to this

Court for relief, to even respectfully inquire, then what do we have justice for.  That is all I have to say, your Honour.

McHUGH J:   Yes, thank you.

MR A:   I am sorry I wasted my time.

McHUGH J:   The application for special leave to appeal in this matter was filed on 23 March 1999 and sought leave to appeal against orders of the Full Court of the Family Court, orders which were substantially concerned with the applicant having contact with his children and which were entered on 2 April 1998.  The special leave application was therefore filed 11 months out of time and could not proceed without an order dispensing with the provisions of Order 69A rule 3(1).  Furthermore, the orders, the subject of the application, have since been discharged. 

It would be futile to extend the time for applying for leave to appeal against those orders.  The application is therefore dismissed and must be dismissed with costs.

Adjourn the Court until 2 o'clock.

AT 12.49 PM THE MATTER WAS CONCLUDED