Allesch v Maunz

[2000] HCATrans 14

IN THE HIGH COURT OF AUSTRALIA

Registry  No C15 of 1999

B e t w e e n -

ERNEST FRANZ ALLESCH

Appellant

and

BRIGITTE MAUNZ

Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 FEBRUARY 2000, AT 10.17 AM

Copyright in the High Court of Australia

MR E.F. ALLESCH appeared in person.   I am the appellant.  I am appearing in person.  I have got an assistant with me.  Mr Leahey is going to try and help me to get to the pages if we have to refer to anything.  Is the Court granting me leave for that?

GAUDRON J:   Yes.  Thank you, Mr Allesch.

MR M.D. BROUN, QC:   I appear for the respondent wife, your Honours, and my assistance is my research assistant who is currently my eyes because of my sudden deterioration in my eyesight.  (instructed by Ken Cush & Associates)

GAUDRON J:   Mr Allesch, the right of special leave is confined, as you understand?

MR ALLESCH:   Yes, I understand.

GAUDRON J:   There is no notice of contention by Mr Broun filed in the Court to suggest that the decision could be upheld on grounds other than those given by the majority.  That is correct, Mr Broun, is it not?

MR BROUN:   Well, your Honours, yes, but in the absence of an amended or limited notice of appeal, we did not, as it were, see that there was a call to take the formal step.  Certainly, as our submissions make plain, we say that either Mr Justice Lindenmayer and the trial judge got it right or the majority in the Full Court got it right.

GAUDRON J:   You have not filed a notice of contention.  So at this stage, Mr Allesch, the only grounds that would appear to conform with the limited grant of special leave in your notice of appeal are grounds Nos 9, 12 and 14.  Can you confine your arguments to those grounds?

MR ALLESCH:   Are you talking about the notice of appeal?

GAUDRON J:   Yes.

MR ALLESCH:   Grounds 9, you said?

GAUDRON J:   Ground 9, 12 and 14.

GUMMOW J:   Page 314.

MR ALLESCH:   What about all this, as I contended, that the orders did not become effective?

GAUDRON J:   Which ground do you say that is comprehended in?

MR ALLESCH:   Well, that is ground No 19.  That was actually before the Court for special leave.

GAUDRON J:   Did the majority of the Full Court ‑ ‑ ‑

MR ALLESCH:   The majority of the Full Court accepted this point, I made that quite clear at the time.

GAUDRON J:   They accepted that point?

MR ALLESCH:   Yes.  That was actually the point which ‑ ‑ ‑

GAUDRON J:   But that is not why they refused to make the order in your favour, is it?

MR ALLESCH:   That is right.

GAUDRON J:   Well, I think, at this stage you should confine yourself to grounds 9, 12 and 14.  If Mr Broun wishes to raise anything about ground 19 or relevant to that, you will have an opportunity in reply.

MR ALLESCH:   Well I am at a bit of a loss here because I thought that in fact it was made quite clear by me at the time there, that ground 19, that the orders actually did never come into effect by its own condition imposed on 14 June by ‑ ‑ ‑

GAUDRON J:   And the Full Court found in your favour on that, did it not? Did the majority find ‑ ‑ ‑

MR ALLESCH:   Yes, they did find in my favour.  They said ‑ ‑ ‑

GAUDRON J:   Yes.  You have that point in your favour.  You do not have to argue that.

MR ALLESCH:   I do not have to argue that any more, fine.

GAUDRON J:   Because you have that point in your favour and Mr Broun has not filed a notice of contention challenging it.

MR ALLESCH:   Right, that is what I thought.  Thank you.  So I have to confine myself now to the grounds you just mentioned?

GAUDRON J:   Yes.

MR ALLESCH:   Well, in that case I take you to page 2 of Mr Broun’s submission and that goes to 79(4).  Page 3, line 12 – actually (a) first.

GUMMOW J:   I am sorry.  Could you give that reference again Mr Allesch.

MR ALLESCH:   Page 2 of the submission of Mr Broun, which is (a), where he says:

The Judge declined to take into account as an asset still in existence or as a notional asset the $55,000 the husband had raised on the insurance policy of the parties (A/B 49)

To clarify that point, the amount of money, the $55,000, was used to pay out the mortgage on the Fyshwick property.  It was not used by the appellant for his own purposes, which the court had concluded during the undefended hearing of 14 June.  As to point (b), and I think Mr Broun goes to say:

The money held by Rian Financial Services Pty Limited was not brought to account as an asset (A/B 49)

Now, no money is held by Rian Financial Services Pty Limited.  In fact, money is owed by the appellant in relation to that company.  The company was wound up.

GUMMOW J:   Mr Allesch, all this detail is not the point of grounds 9, 12 and 14.

MR ALLESCH:   Does it not go, really, to that because it says ‑ ‑ ‑?

GUMMOW J:   Just listen to me for a second. 

MR ALLESCH:   Sorry.

GUMMOW J:   I would be helped if you could show me where in your written submissions what passages deal with these grounds 9, 12 and 14.  If we can find them then you can develop them orally.  But, is there any writing that we can start with in where you put your position as to grounds 9, 12 and 14?

GAUDRON J:   Yes, perhaps paragraph 9 on page 2 bears on it to some little extent.  That is page 2 of your written submissions.

MR ALLESCH:   Page 2?

GAUDRON J:   That is the finding of the majority in the Full Court that if there were a re-hearing there was no certainty that it would lead to a different result, which, of course ‑ ‑ ‑

MR ALLESCH:   That is right.  I refer to page 185, is that what you are saying, that paragraph on lines 18, 19:  your Honour found that this matter was re-heard by a fresh application of the criteria set out in section 79, is that the one?

GAUDRON J:   Yes, and that they certainly did; you will see that at page 308 of volume 2 of the appeal book.

MR ALLESCH:   Well, there was evidence actually before on the appeal and there was evidence before the Full Court that goes from page 70 to 83 in the appeal book, and that was the same written evidence which was before the Full Court as well as before Justice Finn when there was an appeal to her original decision, and pages 70 to 81 was never considered by the Full Court at all.

KIRBY J:   Mr Allesch, speaking for myself, the grounds of appeal that you have been directed to are the matters that concern me.  The Full Court majority said that the original application should have succeeded, but there were two matters, at least, that restrained them from setting aside the orders:  one was that they were not convinced that if you had been heard that it would have made any difference; and the other was that you had taken a very long delay in pursuing your rights.  Now, as to the first one, their Honours at page 297 of the appeal book refer to the fact that in support of your application you deposed that there were errors which if corrected were likely to cause a different outcome, and they mention a number of items – the $55,000 and so on.

MR ALLESCH:   Yes.

KIRBY J:   Now, at some stage, I would like to know what those points were, because otherwise, the fact that you were not given a chance to be heard is, as Mr Broun concedes, a procedural unfairness, but it does not lead anywhere, so that is the first point.

So that is the first point and then the second point is an explanation why even though you messed around and took all sorts of other things you did not pursue your rights for the three years.  They are the two matters that concern me because they are the two bases upon which, as I understand it, the majority in the Full Court upheld your procedural objection but said that they would not give you the relief to which that would otherwise lead and I think that is the essence of what you have had your mind directed to in the issues before this Court.

MR ALLESCH:   If I may take you to page 7, there are a whole host of explanations and my explanation would there simply be I had tried personally, whenever there was an opportunity for me to do it health wise, to do it but I was in no position to appear in the Full Court at the time there and I had ‑ ‑ ‑

KIRBY J:   You are now addressing the second issue, that is to say that -may it not be more sensible for you to elaborate what the Full Court record at page 297 of the appeal book, namely how, if only you had been given the opportunity to be heard, this would have effected their outcome because you will remember Mr Broun, in his written submissions, says that because of the procedures of the Family Court you had a full affidavit of your contentions before that court, before Justice Finn ‑ ‑ ‑

MR ALLESCH:   May I just interrupt you there?

KIRBY J:    ‑ ‑ ‑ that she had all of that material and though you were not heard to support or elaborate it or cross‑examine, the net result was about a 50 per cent, 50-50 division and that that is probably what would have happened anyway.  Now, what is your answer to those contentions?

MR ALLESCH:   No, actually, your Honour, the evidence was not before the court because the evidence they claimed have to be before the court was 1994 evidence but not of 1995.

KIRBY J:   Yes, but the 1994 evidence would ‑ ‑ ‑

MR ALLESCH:   The 1994 evidence which was put into court for that hearing ‑ I forget, Justice Smithers – I am not sure now – it was in 1994 a hearing and that was my latest evidence which I had put in that but the case was not settled at that point in time.

KIRBY J:   I realise that, but you had by that time ‑ ‑ ‑

MR ALLESCH:   Before that I had put something in which was not revised before Finn again.  That was the old evidence before her.

KIRBY J:   Well, at some stage you might indicate what were the differences between the property situation in 1994 when the evidence upon which the Full Court acted was put before Justice Finn or before the Family Court and what was the evidence that would have varied that at the time that the Full Court made its determination that there was no utility in interfering with the order that Justice Finn made.  Had you filed further evidence before the Full Court deposing to variations in your property?

MR ALLESCH:   There was additional evidence before the Full Court.  That is why I referred you to page 70 to 83, a whole host of points in that, because that is actual affidavit which went before Justice Finn first with additional information for her and counsel actually argued that before Justice Finn, that there would be a substantial different outcome if all this information were to be reheard on.

KIRBY J:   What is the essence of the difference in the property?  Because what Mr Broun says has a ring of conviction, that in the end what Justice Finn did was really to divide the property fifty‑fifty and after a 29‑year relationship that would seem to be a reasonable division.

MR ALLESCH:   Well, it was not actually fifty‑fifty, your Honour.  The first point ‑ ‑ ‑

KIRBY J:   There was a 5 per cent variation in favour of the wife, but that is really beside the point.

MR ALLESCH:   Well, it is far more than 5 per cent, you see, because if you take the $55,000 which you can see as having used for myself, which in fact was used to pay off the mortgage, then you are already out of kilter in the first place.  Then the second issue, there is money owed by me and additionally there was an income reduction then on my side, because I am not in a position any more to perform my task as I did before then.  In the meanwhile of course, I lost the property on top of it.  I have got no income from that any more, although that was supposed to be for the later life for my retirement.  Now that has gone.  So the whole issue completely changed by that decision and it only changed, if I may say this, not by my flagrant disregard to appear on that day, but there were sound medical reasons.  I did not attend just because I did not want to, flagrant disregard, but ‑ ‑ ‑

GAUDRON J:   That is understood and the Full Court accepted that in your favour.  So in essence you say if there had been a re-hearing, there would have been consideration of your reduced earning ability?

MR ALLESCH:   Earning capacity.

GAUDRON J:   Plus you assert that your wife inherited some property in Germany that was not taken into account.

MR ALLESCH:   That is correct.

GAUDRON J:   You assert that the amount of $55,000 was treated as money available to you when it went to the company.  Is that the essence of it or is there something else?

MR ALLESCH:   That is the income reduction as far as I am concerned, the $55,000, the money which I owed – I cannot think at the moment exactly how ‑ ‑ ‑

GAUDRON J:   That is an amount of $60,000, is it?

MR ALLESCH:   Yes.

GAUDRON J:   That you owed to the company?

MR ALLESCH:   Right.

GAUDRON J:   You say that was not taken into account?

MR ALLESCH:   That was not taken into account either and then there was a valuation difference which was also brought to the attention of the court.

GAUDRON J:   Yes, but the valuation you relied on was before Justice Finn and there was a later one that had been produced by your wife.

MR ALLESCH:   There was two different ones but Justice Finn chose to use the one which suited her instead of – she used the one for the house from the same valuer but refused to use the same valuer ‑ ‑ ‑

GAUDRON J:   Well, the evidence was there anyway.

MR ALLESCH:   The evidence was there.

KIRBY J:   They seem to have recorded that at 297.  They certainly recorded your assertion that there had been a double counting of the $55,000, so they obviously had that in mind.

MR ALLESCH:   Yes.

KIRBY J:   They refer to this amount owing to the company – that is at 297 – so they obviously had that in mind.  They knew that you had had the heart attack and the bypass.  I do not know if they knew about your reduction of earning capacity but common sense would suggest that that would in some cases have an impact on your earning capacity.  So that the three matters that you mention were not, as it were, secrets from the Full Court.  They recorded that you had put these matters to them.

MR ALLESCH:   But they failed to consider it.

GAUDRON J:   You have to argue, do you not, that their Honours should have considered that rather than simply saying there is no certainty that a re-hearing would lead to a different result.  That must be your point in essence, is it?

MR ALLESCH:   Well, it is not the ‑ ‑ ‑

GAUDRON J:   That must be your point, in essence, is it not?

MR ALLESCH:   Well, if I just made in - has the Full Court not got the power and the duty to conduct an appeal in the widest sense of the term, and in order to arrive at a just and equitable resolution to litigation, in order to do so, the Full Court must decide the rights of the party upon the facts, in accordance with the law as it exists at the time of hearing the appeal?  So I do not think that was done at the time there, they just ‑ ‑ ‑

GAUDRON J:   Well, but you do not say they should have decided the rights of the parties, as such, do you?  You just say they had to decide whether it might have made a different result?

MR ALLESCH:   You could say that, yes.

GAUDRON J:   Yes.

KIRBY J:   But the Full Court has the power, does it not, to exercise the discretions of the primary judge, if it decides that a discretion has miscarried.  Instead of sending the matter back to retrial, in order to save money for the parties, the Full Court can proceed to exercise the discretions which it finds have miscarried, and that is what I took the Full Court to be doing.  Your complaint is that they did it in a telescoped way and that they should have, if they decided that the discretion had miscarried with Justice Finn, decided that they would try to fix it up themselves, rather than send it back to a retrial, is it your contention that they would have needed more information than they had on the application to have the order set aside, is that ‑ ‑ ‑

MR ALLESCH:   That is right.

KIRBY J:   But they do seem to have had the essence of it, and they record it at page 297, the double counting of the mortgage, the sum of $60,000 owed, and they would have known of your - and they record the fact that you had had the myocardial infarction and the triple by-pass.  So they knew all these things and the amount at stake, you see, as Mr Broun points out, this is quite a small total, and therefore you are talking about marginal adjustment of a relatively small sum which you are upset that you were not heard and that is understood, but then they said, “Well, let us look at this practically:  if we reconsider it for ourselves, the amount at stake is so small that the difference is not going to be significant and, therefore, there is no point in sending it back to retrial because the costs of a complete retrial would far outweigh the amount that would be adjusted in the differential adjustment for the parties.”  Any advantage that you would gain would be outweighed by the costs.

MR ALLESCH:   Well, be it as it may, but is that not also a matter of justice involved here, that if a party has not had the opportunity to put their case ‑ ‑ ‑

KIRBY J:   You keep repeating that, and that is accepted, you did have procedural injustice; but judges look to substantial injustice and they do not simply set an order aside because a procedural injustice has occurred, unless it has led somewhere to a real injustice, because slips happen, justice is human, mistakes are made and, therefore, they have to ask, “Did it lead to any real disadvantage to you?”, and the majority held it did not.  That is what you have to overcome.

MR ALLESCH:   Well, if you look at the disparity in itself, in dollars and cents, it is far more than what it appears to be because if you take that really apart, I should have never lost the Fyshwick property then, because if you take the wife’s property, then there was also another issue there – and that one has gone by the wayside in the meanwhile – she had just a settlement, an insurance settlement in the vicinity of approximately $100,000, whatever the final amount was is another story, that somehow conveniently disappeared too.  So if you take the $55,000, take the $100,000 from there, take the property she has over there, well, we are up to a quarter of a million already.  This is a substantial difference, not just – the disparity alone, I think, is a miscarriage in itself.

KIRBY J:   Well that is what you have been asked to address the Court on.  You have really been directed to two issues, that the disparity given that there was a procedural injustice is significant and that the Full Court did not give it the weight that it deserved, if it was proceeding to exercise the discretion for itself, then the second issue is the explanation of the three‑year delay.  But concentrating on that first matter, I know nothing about the $100,000 of your former wife’s insurance settlement.

MR ALLESCH:   It just disappeared.  I do not what happened.  There seems to be no accounting for it anywhere.

KIRBY J:   I do not know what you are talking about.

MR ALLESCH:   She had a back injury which entitled her to a compensation, and all I said, “That is okay”, but at least it should be taken into account.

GAUDRON J:   You have heard what Justice Kirby has put to you but there is also the question whether it was sufficient for the Full Court to say there was no certainty that it would lead to a different result, as distinct from determining for itself whether it might or whether it would lead to a different result.

MR ALLESCH:   In my respectful submission, I would say that it would have led to a very much different result.

GUMMOW J:   Yes.  But what is being put to you is you may not have to jump over such a high hurdle.  You see what I mean?

MR ALLESCH:   Sorry?

GUMMOW J:   It may be enough in law for you to show that the Full Court should have acted by asking itself “Might it lead to a different result? Is it possible?  Is there a real possibility that it will lead to a different result?”

MR ALLESCH:   That is precisely, yes.

GUMMOW J:   Yes.

MR ALLESCH:   That is precisely what I am saying.

GUMMOW J:   It may be that is all you have to show, and may be you do not have to show “would have”, if you see what I mean?  I know you say it would have, but you may taking an extra mile.  Do you see what I mean?

MR ALLESCH:   That is all presumptuous at this point in time.  But the amounts involved in it are not small amounts.  If you consider them in its total, surely then the court would have had to say to themselves, “Well, there is a substantial difference”.  And not just dismiss it and say, “Well, we do not consider it to be”.  Because really, if you look at that issue alone which the Full Court failed to address, if there is a difference, say, of $200,000, it does not matter.  I think it would matter very much.

KIRBY J:   How much was the total property?  Where do we find that?

MR ALLESCH:   Sorry.

KIRBY J:   How much was the total?  In order to work out what the marginal amount is.

MR ALLESCH:   That goes back to her – she goes into details on 10 July on different pages.  Just a moment.

GAUDRON J:   That is Justice Finn you are talking about?

MR ALLESCH:   Yes, Justice Finn.

KIRBY J:   Where do we find that?

MR ALLESCH:   On the 10 July judgment.

GUMMOW J:   $750,000.

KIRBY J:   I notice on page 50 that her Honour says that the wife received a total sum of $125,000 for insurance for the settlement of a personal injuries claim.  So apparently she had that in mind in her reasoning.

MR ALLESCH:   Your Honour, I did not catch that.

KIRBY J:   Page 50 at line 15, her Honour says, in setting out the entitlements to property of the wife, she says:

that her claim for personal injuries against her employer was settled in May 1993 for a total sum of $125,000.00, and that she received a net amount of $95,000.00.

So your statement earlier that the wife did not bring this into account is not correct.

MR ALLESCH:   But Justice Finn did not take that into consideration, that amount.

KIRBY J:   Well, she has mentioned it.

MR ALLESCH:   She mentioned it, that is correct; but she did not take it into consideration because she offset it with the $55,000.

GUMMOW J:   No, no, but she said:

I understand –

the wife’s position:

to be that so much of her damages monies as have been spent by her…..general living expenses.

One has to read the whole of the paragraph starting at line 12 on page 50.

KIRBY J:   As well as that, part of that money would be for pain and suffering and matters which are very personal to the wife.  It is not as if it is just a kitty of money she has got for nothing.  She has got it for having been injured.

MR ALLESCH:   I do not have any issue with that.  The issue I am just saying is if she has that amount of money, why would it not be counted also as part of her assets.

KIRBY J:   It does appear on page 50 that the judge did take it into account.

HAYNE J:   And also at 54, in the last four lines on page 54, it would seem that her Honour included the balance of the wife’s compensation moneys in the property that was to be divided.

MR ALLESCH:   Page 54, and you are saying, which line?

HAYNE J:   The last four lines on the page.

MR ALLESCH:   This is what she says here, to equal part, but in fact it did not come out that way. 

KIRBY J:   Do you contest her Honour’s finding that the net value of all the property of the parties was $735,000?  That is on page 59.  You have been directed to that earlier.  Page 59 line 10.

MR ALLESCH:   You are saying whether I contest that?  Yes, I am.

KIRBY J:   What do you ‑ ‑ ‑

MR ALLESCH:   Because there was a different valuation used for Fyshwick.  There was the $55,000, there was the $60,000, and there was the property in Germany.  That would be a vast difference to this figure here.

KIRBY J:   Did you put before the Full Court the fact – was it the fact that you had lost your job in the interim between the hearing before Justice Finn and the finding and the determination by the Full Court, and did you bring that fact before the Full Court’s attention?

MR ALLESCH:   I think, your Honour, I included that because it is natural - the whole matter has changed as far as I am concerned.  I am not in a position to have the earning capacity I had before the heart attack.

KIRBY J:   Were you employed at the time of the heart attack?

MR ALLESCH:   No, I was running my own business.

KIRBY J:   And did you seek doing that immediately after the heart attack?

MR ALLESCH:   Well I could not look after the business any more; I had to rely on somebody else for the time being and I was sort of struggling along and in reality the income of the property at the time has sustained me.

KIRBY J:   Well you are telling us that now, but was that put before the Full Court?

MR ALLESCH:   That was not only put before the Full Court, but it was also put before Justice Finn, if you go to that aspect there then you find that in Mr Stewart’s submission to her Honour.

McHUGH J:   But it goes beyond that.  I must say, I do not know why you are concentrating on these matters, Mr Allesch.  You start with the proposition that, at the bottom of page 184 to 185 her Honour Justice Finn, on the application for re-hearing said that she was prepared to accept the submissions of your counsel, that if all or some of the evidence, which you now wish to put before the Court, was accepted, then the result of the application may well be substantially different.  So you start with that proposition.  That is in your favour.  So then you have the Full Court saying that the trial judge erred, but they said, in the exercise of their discretion, “We will not give you a further hearing at this stage.”  Now the question is, are they wrong?  At pages 308, 309, they listed a number of reasons.  One of them they said:

There is no certainty that such a course would lead to a different result –

I suppose you would say, it was not a question of it being a certainty, it was a question as to whether you had an arguable case or a real chance of having a different order made.  And then, on page 309, they set out four other matters.  Now, this was a discretionary judgment of their part.  Where is the error?  You have won everywhere except in so far as what appears at pages 308, 309, and if you can persuade this Court they erred there, then, at least as far as I am concerned, you succeed in this appeal, but, it seems to me that the crucial issue for you is to show that at pages 308, 309 contains errors on the part of the majority of the Full Court.

GAUDRON J:   Or contains matters that really should not have been taken into account.  Now, at page 308, you seem to start somewhat in front in that the Full Court says there is no certainty or that there would be a different result, whereas Justice Finn has indicated that there might well have been a different result, although they are talking about different times; they are talking about whether there would be a different result now, I think ‑ ‑ ‑

McHUGH J:   Yes.

GAUDRON J:   - - - rather than at the time when Justice Finn considered the matter.

MR ALLESCH:   Well, I think, even now there would be very much a different result in the whole issue there.  As I said to you already earlier, I personally am of the opinion that the vast difference in dollars and cents we have got here is simply overlooking totally the issue that there is not just $5 or $50 or, let us just say, $50,000 different, which may well be, in that case, “Well, we just forget that”, but ‑ ‑ ‑

McHUGH J:   Even if the orders had been made fifty-fifty it makes a difference of 10 per cent which can be a substantial sum of money.  Even if that is the best you can do, it is still a substantial difference – 10 per cent.

MR ALLESCH:   Correct.

GAUDRON J:   And there is money in a trust account, is there not?

MR ALLESCH:   There is money in a trust account.

GAUDRON J:   Which the Full Court does not seem to have taken into account.

MR ALLESCH:   No.

KIRBY J:   Is not that money merely the proceeds of the sale of the Fyshwick property?

MR ALLESCH:   That is only of proceeds of the Fyshwick property.  The other property is already gone and the proceeds of that have been somewhat reduced.  I do not know how much the respondent has taken from that although I tried repeatedly to stop that by even going back to the Full Court, getting a stay, but they just wanted money.  On that day, actually they had an application made for part release of money which was opposed by me and the Full Court, at that date, declined to give them any money but, again, they started off ‑ ‑ ‑

KIRBY J:   But is the trust account that has been referred to in the papers anything other than the deposit of the proceeds of the sale of the Fyshwick property to await the outcome of this litigation?

MR ALLESCH:   Only whatever is left from the Fyshwick property is there.  Nothing else.

KIRBY J:   Yes, so to the extent that the courts below took into account the Fyshwick property and its value they would take into account what is now in the trust fund waiting the outcome of this case?

MR ALLESCH:   I do not know if they had actually taken this into account because what really was before the Full Court, that would have left me with something around the $200,000 figure.  Now that from $700,000 down to $200,000 when you really ‑ ‑ ‑

KIRBY J:   Well, that might be because of all the costs orders made against you for all the foolish proceedings that you undertook on the way.

MR ALLESCH:   Yes, that may well be the case, your Honour, but say the order of 14 June, surely it could not be said that the court was not aware or that I was in a position to go there.  On the medical evidence before them they should have been realising they should not be going on with this.  Now, if the orders of that would fall, would not also all the costs fall too?  They hinge on that order.

McHUGH J:   No, I am afraid they would not.

MR ALLESCH:   See, the interesting thing there is, if I may just say this to you, the cost matter which is brought up here, Justice O’Ryan, on all three issues – cost, pain, went exactly the opposite way.

KIRBY J:   Yes, but we are hearing the appeal from the Full Court.

MR ALLESCH:   Yes.

KIRBY J:   And therefore it is not a matter of showing whether Justice O’Ryan was correct or not correct.  You have to show that the Full Court was incorrect.  Anyway, the long and short of it is, you say, that on this first point, that is that it would not have made a difference, that the judge with the best knowledge said that it may have made a difference.  Justice Finn on the reapplication was willing to accept that and that by applying the test of certainty, the Full Court has made a mistake and that, therefore, on that first point they have erred.  Is that the essence of your submission?

MR ALLESCH:   That is what I am saying, yes.

KIRBY J:   And that even on the figures of 55 plus 60 plus your earning capacity that there was a real issue to be determined, that it was at least 10 per cent and that instead of doing it in a couple of pages at the end of their judgment, especially, perhaps, in light of the fact it was acknowledged that you had received a procedural injustice, the proper course in the case was to send it back to be reheard by a single judge.  Even though that would involve new costs, at least then you would have your day in court, your chance to put your point of view and it would be determined afresh without the procedural injustice.  So that is the first point, is it?

MR ALLESCH:   That is correct.

KIRBY J:   What about the delay, because their Honours on page 309 set out these very long delays, that once you had, as it were, raised the point you then seemed to take your time and dawdled along to the Full Court?

MR ALLESCH:   If I just may direct your attention to it.

McHUGH J:   Well, you seem to have a blanket answer to that in any event because their Honours say at the top of page 50, “The most relevant matters for our consideration in determining whether to remit the matter are 1 to 4.”  I would have thought that they were not the most relevant matters.  They were certainly relevant matters but if anything was the most relevant matter it was the prospect that you would get more money and their Honours seem to say that these four matters were the most relevant matters for consideration and arguably that is wrong.

MR ALLESCH:   As far as time is concerned, if I may go onto the second issue.  The time it has taken me I have addressed on page 7 to page 8 and when I was before this Court and asking for special leave I was really asked at the time there what the grounds were and I have not addressed all the points in issue at that time, but the main reason actually why I could not get on with this particular case any faster was here in Canberra I was simply not allowed access to my file.  I was thrown out of the house, lost all my files, while I was sick in bed I was thrown out, and then I lost all my files.

I had no access to my clothes, to my files.  I was completely refused access back into the house and, of course, without my personal documents, court copies and documents, I was in no position at all to do anything.  The court was fully aware of that.  Registrar O’Rourke would not allow me access to that and I had actually asked then.  The only time I got access was when I came before Justice O’Ryan and I asked Justice O’Ryan for me to file the appeal EA88 again or reinstate it, would I please get access to my file and he actually provided me access to the file in Sydney and that is how I could put my application books together and commence EA88 application.

GAUDRON J:   But there are two issues with respect to the time issue.  The first is what Justice McHugh put to you, whether it should have been treated as one of the most relevant considerations as distinct from the question whether there might be a different result.  The second is that they were matters really going to whether the appeal should be reinstated, are they not?  They were matters that were considered by Justice O’Ryan.

MR ALLESCH:   But we are just talking about time at the moment, are we not?

GAUDRON J:   Yes.

MR ALLESCH:   And I was just asked to explain the time or the first instance is the heart attack, the slow recovery ‑ ‑ ‑

McHUGH J:   Yes, but, Mr Allesch, you are seeking to explain the delay by reference to matters that appear in your written submissions.

MR ALLESCH:   Yes.

McHUGH J:   But was there any sworn evidence before the Full Court concerning these explanations that you now give, because if there were not, they are not matters we can take into account?

MR ALLESCH:   I did not put it in the form of a sworn evidence.  I beg your pardon, that is not quite correct.

GAUDRON J:   It must have been sworn to before Justice O’Ryan.

MR ALLESCH:   It was actually, yes.  I was actually allowed to substantiate my grounds.  Justice O’Ryan allowed me to get into the witness box and add additional grounds why I was late.  Justice O’Ryan found then when I put all the explanation to him that I have a valid argument here.

McHUGH J:   We do not have the evidence that was before Justice O’Ryan, do we?

MR ALLESCH:   No, it is not included, your Honour.  The only thing which is included is his judgment and his order.  But on the same day he ordered reinstatement when I appeared before him, because the next day I was appearing before the Full Court.  I had appeal 23 and 24 in place and Mr Broun says that this was dismissed.  In fact it was not dismissed.  I withdrew it because I had then the opportunity to go back to the source of the problem.  That is in EA88 of 1995.  So I could actually readdress 14 June, so that is why I took the other two away or I withdrew them.  They were not dismissed.  That is why I appeared on that day before the court.  Of course, unfortunately the matter – the real issues could not be dealt with on the same day because the papers were not before it.  I was just only then allowed that day access to it and started the next day to copy.

KIRBY J:   It has been put to you that those matters which the Full Court majority at page 309 said the most relevant matters for determining whether to send the matter back to be retried were the four factors mentioned there and that they were really matters relevant at the earlier stage of whether you should get a second chance to have this matter before the Full Court and reinstated, which Justice O’Ryan determined in your favour, the suggestion being that therefore they were not the most relevant matters, that that point of the Rubicon had been passed.  What do you say to the proposition that delay would lead to disadvantage to people coming back two or three years later in relitigating matters?  Memories fade, information may not be available.  Secondly, in any case, there is a public interest in having final orders in litigation and that to the extent that you dawdle and amble along and do not prosecute your entitlements quickly, that that is a matter relevant to your being given a second chance three years later.

MR ALLESCH:   Your Honour, does it not also go to the basis of human existence, human dignity and justice?

KIRBY J:   Well, you have passed that point.  It has been found that you did not have procedural fairness at the point of the hearing, so the human dignity issue has passed.  The question is the practical outcome of that.  Courts do not just make orders in a vacuum, they have to deal with the real world, and that is why we are concentrating on:  would it have made a difference and was the delay unexplained and is that relevant?

MR ALLESCH:   Well, if I may put it to you this way.  How can I put in an appeal in any faster than I did, if I have no access to a file?  Now, that, in itself, I think, is very serious because how is one like me, if you are representing yourself and you are not represented by anybody, and you are doing it yourself, and you are not allowed access to the file, how on earth are you going to do it?  If you lost all the property, you lost all your personal copy of court records, how can you conduct it?  So my submission would be that since it was impossible for me, surely, time should not be relevant.

KIRBY J:   I find it difficult to believe that a registrar of the Family Court would not permit you to have access to your file, if you indicated that you wanted it for the purpose of prosecuting an application to reinstate an appeal and to appeal.

MR ALLESCH:   Well, you can see that I have, I put an attachment on the end there of my submission and that was to a transcript part of it and where I say in Attachment A1 ‑ ‑ ‑

KIRBY J:   Is this part of the transcript before Justice O’Ryan?

MR ALLESCH:   That is part of the transcript of Justice  O’Ryan, yes.

KIRBY J:   And is this where you had deposed to the fact that you were denied access to your file?

MR ALLESCH:   That is right.  You see, if you go to, it is page No 4 on the bottom, but it say A1 on top, it is on the end of ‑ ‑ ‑

KIRBY J:   Yes, I have it, the Court has it.

MR ALLESCH:    ‑ ‑ ‑ and it is his Honour:

What do you say, Mr Allesch?

MR ALLESCH:   The point I am trying to make, your Honour, is because I always had difficulties getting access to the files in Canberra because my papers had disappeared, is the file going to stay here in Sydney so that I can get access and copy whatever I require out of this file is the question.

KIRBY J:   Was this after you had been sworn, or was this simply a statement from the bar table?

MR ALLESCH:   That is in the witness box, your Honour.

GUMMOW J:   Anyhow, Justice O’Ryan dealt with these matters of delay at 273 when he reinstated the appeal.

MR ALLESCH:   That is correct.

HAYNE J:   Therefore, the position to which it seems that you may come is that you had an appeal that was regularly on foot, despite its history.  The history, therefore, on this view of the matter, would be put to one side.  You had an appeal.  The Full Court concluded that the trial judge, Justice Finn, should not, in the exercise of her discretion, have proceeded hearing only one side.  It seems, at least ordinarily, that what would follow from that is that Justice Finn’s order would be set aside and either the Full Court would re-exercise the discretion for itself, or it would remit it for a fresh hearing, and that invites attention to where we began.  Are the reasons given by the

Full Court for not taking that course sufficient?  Ought the Full Court to have taken the course it did, only if persuaded that no different result would have been obtained by a judge at first instance; or if persuaded that, given the change in circumstances, it would not be possible, for some reason, to     re-exercise the discretion about division of property?  Now, none of that seems to me to invite attention to the matters of detail with which you have presently been dealing.

MR ALLESCH:   Are you saying that my explanation to this point is not convincing enough to say that at the time ‑ ‑ ‑

HAYNE J:   I am saying nothing, Mr Allesch, except that the real question is: was the Full Court right in what it said at 308 to 309?  That is the area for debate.

GAUDRON J:   Mr Allesch, we think that the issues have been exposed and the Court feels it would like to hear Mr Broun on those issues, reserving to you a right to reply to anything he says.

MR ALLESCH:   May I just put one more point to you.  The other matter which was raised here was the 13 June, the so‑called quasi consented orders.  Now I have signed something, that is correct.  But I signed that under duress, and I make the Court aware of that too.

GAUDRON J:   That was just after you came out of hospital, was it?

MR ALLESCH:   I was already out but I was not crash hot.  You just simply cannot cope, if I may put it that way.

GAUDRON J:   Thank you, Mr Allesch.  Yes, Mr Broun.

MR BROUN:   Your Honours, those consent orders were June 1997, two years after the hearings before Justice Finn.

McHUGH J:   All of them or one of them, Mr Broun?

MR BROUN:   There was - the one lot of consent orders to which Mr Allesch has referred is June 1997.  There had been large numbers of other orders not by consent earlier.  The consent ones, which provided, in effect, the mechanism by which ultimately Fyshwick was sold was some two years after the undefended hearing.

KIRBY J:   Could you just remind me: what was the significance of the consent orders of June 1997, in your submission?

MR BROUN:   They certainly fit in very much with the history of the matter.  Mr Allesch in June 1997 was represented by a well known practitioner.  He consented to an order without any hearing before the court.  It was negotiated and consented to, by which the original orders of Justice Finn which, in effect – I suppose a fair way of putting it is “charged on the Fyshwick property the cash balance” which her Honour calculated as payable to the wife, some $87,000, charged that on the Fyshwick property.  Two years later, that not having been paid and nothing having happened to the Fyshwick property, we were before the court asking, in effect, to have something done to put that charge or those orders of Justice Finn into effect by selling the Fyshwick property, because that seemed to be the only way the money was going to be obtained, and the consent orders were made for the sale of the Fyshwick property.  That was after the appeal had already been deemed to be abandoned and two years later, so that ‑ ‑ ‑

KIRBY J:   I understand all this.  But if you look at the chronology it appears that the judgment of Justice O’Ryan was on 19 May 1998 and, therefore, is this not water under the bridge? All of this would have been a matter relevant to whether the appeal should be reinstated, and I can well understand how it would be put to the judge as a matter why he should not reinstate the appeal.  But once having done so, then that really has been bypassed and the appeal is before the Full Court to be determined on the ordinary principles.

MR BROUN:   Your Honour, may I say, the first part of the appeal, as to whether Justice Finn’s decision was right or wrong, the majority dealt with that on that basis, of saying, on the material before her Honour, on the basis of what had happened up to the date of the hearing before her Honour, the majority thought that there had been error, but, when it then came to a question of the re-exercise of the discretion, then, in our submission ‑ ‑ ‑

GAUDRON J:   Did it, or did it come to a question of whether the appeal should be allowed?

MR BROUN:   Well, your Honour, we came to a question of the appeal being allowed.  The majority says, “Yes, the appeal should be allowed”, that is to say, Justice Finn got it wrong.  Then what do we do ‑ ‑ ‑

GAUDRON J:   They said Justice Finn got it wrong.

MR BROUN:   Yes.

GAUDRON J:   But then what did they say?

MR BROUN:   Well then, both sides - and again Mr Allesch was represented by counsel on that appeal – said, “Please, Full Court, if you come to that view, re-exercise the discretion, do not sent us back for a further hearing.”

GAUDRON J:   But then they did not do that, did they?

MR BROUN:   Yes, they did, your Honour.

GAUDRON J:   Well, no, they did not, because they exercised a discretion as to whether – they saw it as a discretion as to whether to set aside her Honour’s judgment, that is, a discretion as whether to allow the appeal.

MR BROUN:   Yes.

GAUDRON J:   Yes.

GUMMOW J:   They ended up dismissing the appeal.

MR BROUN:   Yes, that is so, but their first step was to say, “Well, looking at the material before her Honour, in our view her Honour got it wrong.”  Then they come to the step that both sides have said to them, “If you come to that conclusion, please exercise the discretion.  Do not sent it back.”

GAUDRON J:   A discretion as to whether or not to set aside the judgment, you are talking about.

MR BROUN:   Yes.

McHUGH J:   But, you see, the orders, for instance, that are set out at page 309 must be wrong, must they not, when they say that the appeal must be dismissed?  That cannot be right.  The appeal had to be allowed.  It might have been proper for their Honours to go on and say, “We reject the application to set aside the orders of 10 August 1995”, but they are two separate things, were there not?

MR BROUN:   They certainly are two separate things, and I think your Honour must be right that they should have upheld the appeal and then dismissed the application.

McHUGH J:   Yes.

MR BROUN:   That it is clear from their judgment that was what they were intending to do, but I think your Honour is right that the form of the order is not correct.

KIRBY J:   Did their Honours record anywhere what you say was the request by both parties that they re-exercised the discretion in the event that an error was shown?

MR BROUN:   I believe it is there somewhere.

KIRBY J:   If that can be found, that may be relevant, or is the transcript of the argument recorded?

MR BROUN:   No, well certainly not in the appeal books and before your Honours and I do not think it has been taken out.  I have no recollection of ever having seen it.

KIRBY J:   Were you there at the time?

MR BROUN:   Yes, your Honour.

KIRBY J:   And do you tell the Court that both sides, being represented by counsel, asked the Full Court, in the event that it came to the conclusion that the matter that miscarried before Justice Finn to re-exercise the discretion and not to send it back to retrial?

MR BROUN:   Certainly that was the joint application, your Honour.  I recall making that submission and request and I recall it being joined in on the other side.  So that, in effect, the Full Court was invited to, if they came to the conclusion the appeal should be allowed, to then exercise their discretion as to what should happen to the application to set aside the original ‑ ‑ ‑

KIRBY J:   I have two difficulties then with that, Mr Broun. 

MR BROUN:   I am sorry, your Honour?

KIRBY J:   First of all, their Honours did not then say “Well, now, we address the question of the evidence as at this stage, i.e. three years later, with new developments, in order to consider the exercise of the discretion properly”.  Secondly, they say the most relevant matters are matters of delay, the caravan has moved on.  They are not the most relevant matters when you come to the question of the re‑exercise of the discretion by the Full Court.  You have to concentrate then on what the merits of the matter are, because that is the point that has not been reached by reason of the error which their Honours have already found.

McHUGH J:   Can I add to what Justice Kirby says.  I can understand if their Honours had said, “By reason of the two years delay it may be difficult now to determine the rights of the parties”, but they do not seem to have approached it in that way.  They approached it on the ground that there had been an unexplained or an inadequately explained failure to prosecute the appeal.  Surely that had nothing to do with whether or not they should re‑open or set aside the orders of 10 August.

MR BROUN:   Your Honours, the traditional approach to the default judgment, using “default” in the sense of a group, and we have to remember here that this was not like a default judgment in that there was no hearing, there was a hearing.  It is not like an undefended hearing in the ordinary sense that there was evidence from only one side.  In fact, there was the evidence of both sides.  So, in the scale of undefended, or default judgments, it is right up the end as near as you can get to being a defended hearing but still falling into what we might call the default category.  So, one looks at the type of proceeding.  One looks at the merits – and I would want to just put to your Honours some submissions on that.

GAUDRON J:   But it does not look as though the Full Court did look to the merits.  That is the difficulty.

MR BROUN:   They did say, and indeed they were addressed on the point, they did say that they were not satisfied that there would be any significant difference if there ‑ ‑ ‑

GAUDRON J:   No, they did not.

McHUGH J:   They said there was no certainty.

MR BROUN:   No certainty.

McHUGH J:   Well, surely that must be wrong in principle.  You do not have to prove as a certainty that they would get a different result.

MR BROUN:   Your Honours, I would certainly accept that certainty is not the test.  But, I suppose there is a vast difference between a probability and a possibility.  I mean, anything is possible.  I would have thought that had the case been defended, and Mr Allesch been available for cross‑examination, the wife would actually probably have done a bit better, but there would have been ‑ ‑ ‑

KIRBY J:   That may be so, but we have to look at it as a matter of principle.  We have only brought this matter up because it is an issue of principle, and otherwise it is just an ordinary discretionary type of matter.  But, if you are in the area of principle, then the application of the certainty test is error.  It is error; and their Honours have applied the wrong criterion in determining whether or not, or how they will re‑exercise the discretion.  If that is so, having concluded that an injustice of a procedural kind has been done, and you are prepared to concede that for the purpose of the argument, their Honours then had a duty to consider what flowed from that, and they have applied the wrong consideration, arguably on both points – the certainty and then the list of matters which they deemed to be the most relevant matters; and they never got to the merits of the question which had been bypassed by reason of the procedural error which they found.

GAUDRON J:   And there is another aspect to it.  They seemed to think that the critical thing was whether the parties could be put back in the position that they were as distinct from whether justice could presently be done between the parties.

McHUGH J:   Could I add to these problems what seems to me to be quite a fundamental matter?  If their Honours were exercising any discretion it was the discretion as to whether they should set aside the orders, but their approach to the matter as appears at the top of page 309 is whether they should remit the matter to another judge and that was not the issue, was it?

MR BROUN:   The appeal they were actually hearing was the appeal from the refusal of Justice Finn to set aside the undefended orders.

McHUGH J:   Yes.

MR BROUN:   It was not an appeal from the undefended orders itself.

McHUGH J:   Exactly, so having found that she had erred in the exercise of her discretion, it was then their discretion to say whether the order should be set aside but unless you read the words “remit the matter” in some strange or an extended sense, they do not seem to be addressing the real issue.  The issue is not whether they should remit the matter to some other judge for hearing but whether they should reopen or set aside the orders of 10 August.

MR BROUN:   It would have been open to the Full Court, in my submission, your Honours to have said, “Justice Finn’s discretion miscarried.  We will send it back to another judge.”

McHUGH J:   To another judge, yes.

MR BROUN:   To review, to rehear that application to set aside.

McHUGH J:   Yes.

MR BROUN:   Your Honours may have looked at the transcript of that hearing before Justice Finn of the application to set aside the judgment.  What ultimately happened there, Mr Allesch was represented but he was not personally present because Dr Doumani’s evidence was that he was not yet in a position nor was sufficiently recovered to take part in contested proceedings.  Unfortunately, Dr Doumani was not available either so it was either a matter of giving the proceedings up or proceeding just without any cross‑examination of anybody on submissions and that is what happened and, for that purpose, in effect, counsel then appearing for the wife said, in effect, “We’ll take the husband’s evidence at its highest point.”  Still he does not get the undefended award set aside.

GAUDRON J:   Yes, but Justice Finn said it may well have made a significant difference.

MR BROUN:   Well, because, in effect, your Honour, the reasons she says that, in our submission is fairly obvious, that it had been the basis upon which the matter had been conducted before her that the husband’s evidence was in his affidavit.

GAUDRON J:   That was the agreed basis.

MR BROUN:   It was to be taken at its highest point so that, in effect, she is saying, “Just on the basis that we assume that there is going to be some significant difference achieved what, nonetheless, do I do about all the delays in the other matters that are relevant to setting aside a judgment entered after a hearing but without the husband being personally present, cross‑examined or the right to cross‑examine or to make submissions?”  So, in our submission, although the Full Court, certainly as a matter of form got it wrong, they were directing attention to the right questions or the right factual considerations.  They were looking at the delay of, really, nearer to three years from when the appeal was filed to when the appeal was heard.  They were looking also – they obviously should look at that.

GAUDRON J:   But what was the relevance of delay at that point and what was its comparative significance in relation to the matters that were permissible to take into account?

MR BROUN:   Well, your Honours, the first problem would have been all the changes that had happened in the position of the parties due to the orders that had been made.

GAUDRON J:   Yes, and that is a particular, if you would like, if you would have it as such.  What is the general consideration which brings that into account?

MR BROUN:   Well, the second one is that in general the principle is not a property matter in the Family Court, that the matter is considered on the basis of the facts as they stand at the date of the hearing.  Now, if there was a re-hearing, we would have been looking at the facts as they stood in 1999 or 2000, not as they had stood five years earlier in 1995.

GAUDRON J:   Yes, and that does not seem to have been addressed, does it?

GUMMOW J:   No.  You see what the Full Court had before it in a way was an interlocutory appeal against the order at 194 which dismissed the husband’s application to reopen.

MR BROUN:    Yes.

GUMMOW J:   Now, the orders that they were setting aside were those orders at 194.  They are orders that would, if reversed, bring about relief in favour of the husband to reopen, but that is all.  Something then would have to happen. 

MR BROUN:    Yes.  I think what your Honour has put must be correct.

GUMMOW J:   The Full Court in hearing this interlocutory appeal then could not enter itself on what would happen if the husband’s application to reopen was successful.

MR BROUN:    Well, except that ‑ ‑ ‑

GUMMOW J:   Are they saying as a matter of discretion that the husband’s appeal should not succeed because even though his application to reopen should have been granted it would have been futile in some way or it was delayed?  They seem to telescope things.  That is what is worrying me.

MR BROUN:    Yes.  Certainly, your Honour.  Perhaps I could put it this way:  I wish their Honours had submitted ‑ ‑ ‑

GUMMOW J:   In those last couple of pages, particularly the sentence:

It is not possible for us to make orders which reinstate the parties back to the position they were in prior to 10 August 1995.

Now, 10 August 1995 is the date of the ‑ ‑ ‑

MR BROUN:   - -  - publication of the orders following the undefended hearing.

GUMMOW J:   Of the original orders?

MR BROUN:    The original orders, yes.

GUMMOW J:   Yes, which were then subject of the setting aside application, which was the subject matter before them ‑ ‑ ‑

MR BROUN:    That is so.

GUMMOW J:   ‑ ‑ ‑ which are the orders of 18 September.  That is what they were seized of.

MR BROUN:    But, your Honours, all of the authorities ‑ ‑ ‑

GUMMOW J:   Well, they seem to have misdirected themselves on page 308 and then they launch off into various consideration.

HAYNE J:   Though their Honours appear to be flirting with ideas of futility.

MR BROUN:   Yes, yes, and, indeed ‑ ‑ ‑

HAYNE J:   And not grasping, at least on one view of their Honours’ reasons, that that is what is the relevant question, that only if persuaded that reopening the orders of Justice Finn would be futile could they properly refuse to allow the appeal, set aside the order below and ‑ ‑ ‑

MR BROUN:    Well, your Honour, with respect, we would say, no, that is not the law, that one of the relevant factors to consider is the likelihood or otherwise of a different result being achieved, but even if it was thought that there was a prima facie defence, that is to say that the case would have gone absolutely the other way, it is still a matter of discretion having regard to the entire factors and the entire history, including delay and other matters, whether the default judgment should be set aside.

GAUDRON J:   Is that right, Mr Broun?  Here you have what is procedural unfairness.  True it is that in this Court there is a decision to the effect that a failure to accord procedural fairness will not result in an order setting aside whatever resulted from it if a re-hearing must inevitably lead to the same result.  Why is that not the question that the Full Court should have asked itself in this case?  Would it inevitably have led to the same result, as distinct from ‑ ‑ ‑

GUMMOW J:   Turning it the other way round.

GAUDRON J:   Yes.  Can we say it must have led to a different result?

MR BROUN:   Your Honours, could I deal with that in two parts.  First of all, the likelihood or otherwise of a different result, I would like to give your Honours some references there, because what Mr Allesch has put to the Court, with respect, I think is not quite right. 

GUMMOW J:   We have to grapple with the principle though.

MR BROUN:   Yes.  The matter of principle, in my submission, a court could say, “Of course.  Had he been there, of course.  Had he cross‑examined, of course.  If he’d led this evidence, the result would have been different”, but in fact that problem was entirely the result of his own doing.  He had plenty of notice.  He should have come along.  He really was just messing the court around.  The court had to take a stand.

GAUDRON J:   That is not what they said.  In fact, that is what Justice Finn said and the Full Court did not adopt that.

MR BROUN:   The majority of the Full Court did not.  Mr Justice Lindenmayer thought that Justice Finn had got it right in the first place.

GAUDRON J:   Yes.  You have no notice of contention on to argue that.

MR BROUN:   Yes.  Your Honours, the weighing up of the discretion involves the balancing of a number of factors.  One does not say, “Well, that one’s conclusive or that one’s conclusive”.

GAUDRON J:   Well, is it?  That is really what we are asking you to address, Mr Broun.  What is the matter that activates the discretion one way or another?  Is it just whatever one thinks is a fair thing on the day?  Plainly not.  Is it whatever is a fair thing in all the circumstances?  If it is, then all the circumstances have to be examined.

MR BROUN:   That is so.

GAUDRON J:   That is what was not examined because their Honours did not examine whether there would have been a different result.  They satisfied themselves by saying that there was no certainty.  So, if that is the test, that is what they did not do.  But again the question is:  is that the real test?  Is the real test whether a re-hearing would be futile, whether at a re-hearing justice could not be done, which might be the same thing, or at a re-hearing – just concentrate on those two for the moment.

MR BROUN:   Your Honours, in our submissions we have put before your Honours a number of cases dealing with what we might put under the general category of default judgments, though, as we say, this one is just a default judgment.  But all of them talk about a number of factors to be considered.  That is to say, one has to weigh up a balance of a whole lot of factors and there is no single one that is conclusive.  We would put to your Honour that that is the general trend of all of the authorities.

McHUGH J:   That may be so.  But I have to tell you that a point that seems to me to be fateful from your point of view is point (iv).  I cannot see and you will have to explain to me how point (iv) on 309 has anything to do with the exercise of discretion.  The facts are:

during that period of delay a number of costs orders have been made against the husband in favour of the wife, which orders should not now be set aside and which the wife is entitled to have satisfied.

What has that got ‑ ‑ ‑

MR BROUN:   That does call for an explanation.

McHUGH J:   It certainly does.

MR BROUN:   A family law practitioner knows what it means but it calls for an explanation.  Costs orders on interlocutory stages are just generally not made, except in the situation where one party has been in default.  So what it means is that there have been a whole stack of occasions enumerated in the chronology, and referred to in Justice O’Ryan’s judgment, and partially in the Full Court’s judgment, when the husband was in default orders and directions and costs orders were made against him.

McHUGH J:   Perhaps, but how could they be set aside?  Even if the appeal is allowed, they are orders he has to pay.  And what has it to do with it anyway?  If you allow the appeal you are not going to set aside those orders.  He still has to pay the costs.

MR BROUN:   True.  Well at least, that would be our submission, that he still has to pay them anyway.

McHUGH J:   I know.  The appellant seems to say to the contrary but it seems to me to be bread and butter stuff.

MR BROUN:   But your Honours, what it is, is part of the pattern of disregarding court directions and orders which ‑ ‑ ‑

HAYNE J:   But does this reveal, Mr Broun, that the Full Court has approached the question of whether to set aside Justice Finn’s order on a basis that includes questions of disciplining parties for the better and more efficient conduct of litigation?

MR BROUN:   I would not put it that way, your Honour, although that certainly comes into it.  The court ‑ ‑ ‑

HAYNE J:   How is that a legitimate consideration?

MR BROUN:   Well it certainly becomes so, your Honour, because all courts, at first instance, are now under enormous fiscal pressure to get through work and get things done and to reduce delays.

GAUDRON J:   The overriding principle is to do justice according to the law.

MR BROUN:   I would be very happy if your Honours would put that in big print in some judgment.

KIRBY J:   That is already there.

MR BROUN:   In practice, at the coalface, there is very great pressure on the Bench to get through cases and to keep the list moving and to reduce delays.

McHUGH J:   In JRL we said something about this.

KIRBY J:   Yes.  The unanimous opinion of - the Court said in both decisions there that the ultimate obligation was justice.  So if you want it in black and white, it is there.

MR BROUN:   I keep referring to that in some situations, your Honour.  No, the point, apart from the actual pressure on the first instance judges, the other point is that there is a great burden on the respondent party.  Their life is on hold until these matters are dealt with.  Now, Mrs Allesch, for example - Ms Maunz, having reverted to her maiden name - is still now involved in litigation that has been, in effect, a dominating controlling factor in her getting on with her life since 1993, when these proceedings commenced. 

Now your Honours, six and a half years is a very long time to have pieces of litigation going on, not with great gaps in periods when nothing happened.  There has been more or less constant strife, constant litigation, constant applications for seven years - I am sorry, six and a half years.  When the Full Court had it, it was somewhat less, but nonetheless the consequences to the respondent party are horrendous and the court must, in my submission, be zealous to protect the interests of both parties.

McHUGH J:   Yes, I can understand that, Mr Broun, but what did their Honours mean in point (iv) where they say “which orders should not now be set aside, and which the wife is entitled to have satisfied”?

MR BROUN:   Your Honours, I am not too sure.  In fact, it does not seem - when I read that I did not quite understand what the point of that was at all, though I understand the point of the first part of it, namely the costs orders indicate a default in following directions.

McHUGH J:   Yes.

MR BROUN:   But as to the rest, I must say, it went over my head.  Certainly, your Honours, if I had been drafting the Full Court’s judgment for them I think I might have done a bit better, but we are nonetheless left with what they have done, but the question is, is there substantially the right decision reached?  We would submit that when you look at the long history of the matter after the application before Justice Finn to set aside the default judgment, and you look at that in ‑ ‑ ‑

GAUDRON J:   Well, why is that relevant once the appeal is reinstated?  Why would you not simply confine yourself, at that point, to delay between reinstatement and decision and conduct of the appeal.

MR BROUN:   Your Honours, because as to the first part of the appeal, did Justice Finn get it wrong?  Of course, irrelevant; I agree with that, no problem.  But, when you come to the position, then, of the Full Court re‑exercising the discretion, the next three years after Justice Finn’s order must be considered to be relevant and it would be ‑ ‑ ‑

GAUDRON J:   Well I do not know why.  It is true they may be relevant, but I want you to tell me why?  Is it relevant to determine whether justice can now be done or is it relevant to something else, and if it is relevant to something else, what is it?

MR BROUN:   Your Honour, certainly it is relevant to the question of can justice between the parties now be done; that is to say, in the search for perfect justice for Mr Allesch, will we do a terrible injustice to Ms Maunz?

GAUDRON J:   Yes.  But that does not seem to have been addressed, as such.

MR BROUN:   But, secondly, it is one of the discretionary factors that all of the judgments on setting aside default judgments deal with, may really ‑ ‑ ‑

GAUDRON J:   Yes, but why?

MR BROUN:   Whether the person, who has said to the court, “Please set aside this judgment you entered against me”, has acted zealously in the protection of his rights ‑ ‑ ‑

GAUDRON J:   But why is that relevant?  Even in the case of default judgments?  Can you identify some principle that makes that relevant?  Some consideration, some – I know everybody says it is, but I am asking why?

MR BROUN:   Well, your Honour, I would put it on at least two bases:  first of all that it goes to the question of whether the person seeking an indulgence from the court has gone to sleep on his rights or has actively pursued them and the general principle of law is that a court is more indulgent to somebody who has been active in the pursuit of their rights and has pushed the barrow forward rather than somebody who has been dilatory, but, secondly also, the long period of delay must go to the general principle of the public interest in having cases come to an end, that litigation should finish.  There does not seem to be a statute of limitations on applications to set aside ‑ ‑ ‑

GAUDRON J:   Well, then that raises questions as to whether those precise considerations are relevant in precisely the same way in the context of the issues involved in family law proceedings, as distinct from objective rights and liabilities, and in light of the various procedures that exist under the Family Law Act for a reconsideration of matters.

MR BROUN:   Your Honour, there are some very big differences, in my submission, about a family law proceeding, as distinct from what we might take as a more typical example of a commercial or common law type action.  First of all, it is not a matter of one side winning or losing, it is simply a matter of how the available cake is to be divided, so that there is not a matter of a win or a loss, was there a defence available, was there not a defence available, it is a question simply of how big the slices are.  Secondly, and in this case, apart from the fifty-fifty, there was, in fact, the adjustment of only 5 per cent, which was a very small adjustment when you have a woman on one side who has permanent injuries for which she has received some compensation and is only employable part-time, on the one hand, and, on the other hand, a man who has always conducted his own business successfully and profitably up to that point.  Those factors alone, one would have thought, would generally call for something more than a 5 per cent adjustment, but, anyway, fairly minimal.

GAUDRON J:   That is beside the point.  Please confine yourself to the issues that have been identified.

MR BROUN:   But the other aspect of a family law proceeding which is particularly important, in our submission, is that the parties are roughly equal.  One does not have the sort of common factor that occurs in other sorts of litigation where one of the parties is a public fund or an insurance company or a large enterprise; they are both necessarily just individuals.  The third thing, perhaps, of great importance is that the costs of the litigation diminish the pie for division, that is the costs of the litigation eat into what is to be divided, so that, in effect, an injustice is done to both parties by adopting a course of conduct of litigation which allows the costs to get out of hand, so that courts have to do something to try to limit the litigation.

GAUDRON J:   Yes.  Well, we are talking, Mr Broun, about what it is that makes delay a relevant consideration, and what it is, particularly in relation to the Family Law Act, and not simply a relevant consideration, what would make it the most relevant consideration or one of the most relevant considerations?

MR BROUN:   Well, your Honours, the majority of the Full Court thought in this case it was the most relevant consideration but, in any matter of the exercise of discretion, different judges will put different weight on different factors but all of the relevant factors should at least be considered.  But, your Honours, delay means, in family law matters, particularly increased costs on both sides or at least in this case on Ms Maunz’s side and, secondly, it means that their lives are, as it were, put on hold, that there is litigation dominating the personal lives of these people.  They are not given the clean break and set off to enjoy or not, as the case may be, the rest of their days.  They are still tied down with uncertainties of litigation for years.

McHUGH J:   Well, Mr Broun, the matters that you are putting seem to me to be very relevant matters, but it does not seem to be the way the Full Court has expressed itself.  That is the problem.

MR BROUN:   Your Honours, the manner of expression I would prefer not to, perhaps, have to defend too vigorously.  The question is, rather, have they, in fact, directed attention to matters that are of some relevance and is their exercise of discretion within the broad ambit of decisions where reasonable disagreement is possible, because that is what it is, a discretionary judgment, and it is a discretionary judgment that is of a peculiarly difficult kind.

McHUGH J:   Well, if your only ground was that they must have got it wrong, that their decision was so unreasonable that no court exercising its discretion could have reached the conclusion, I think I would agree with you, but they have expressed their reasons.  The question is whether they have given proper reasons, taking into account matters that they should have taken into account or ‑ ‑ ‑

MR BROUN:   Well, your Honours, can I just briefly give your Honours some additional references to Mr Allesch’s ground 9 and the question of what the Full Court, I would concede, wrongly have said there was no certainty that there would be a different result and I would put to your Honours that it was fairly obvious that what they meant was the probability is it is going to be somewhere in the broad ball park, it is that it is going to be roughly in that area.  There were four points.

McHUGH J:   But is there not another point about that, that they dismiss it, in effect?  There is a factor altogether, that is the question of a changed result is dismissed altogether and then they say the most relevant factors are the four that they set out.  As you said earlier, there are all these circumstances to be weighed and the question of the chance of a different result is one of them to be weighed.

MR BROUN:   Yes.

McHUGH J:   But they just seem to brush it to one side, in effect.

MR BROUN:   Well, your Honours, perhaps, again, it is a matter of practice.  The result looked so obvious of a fifty‑fifty split with a 75(2) adjustment of some kind in favour of the wife because of the different earning capacities of the parties, that that looked such an obvious and reasonable result that one would expect that they would not spend much time on it but, certainly, the judgment gives the impression that they were not giving it any great or particular weight, but the way it is expressed is unfortunate but, in my submission, what they are, in fact, saying, and it is fairly obvious, is, “Look, this result is in the ball park.  This is the sort of thing one would expect.”

McHUGH J:   But, really, would you?  When Justice Finn made her order she was dealing with a husband whom one might have expected would continue to earn money at much the same rate as he had in the past, but we now know that he is incapacitated and that his earning capacity is greatly reduced.

MR BROUN:   I would not accept that we know that, your Honour.

McHUGH J:   Yes.

MR BROUN:   It is certainly put forward that his days of hard physical labour may have been reduced but he was a man running his own engineering fabrication business and, presumably, a labourer can be hired and, indeed, labourers were hired in the business before.  It may affect the profitability but not his overall ability to run the business.

Your Honours, I would just like to run through the four points that Mr Allesch referred to in respect of his ground 9 which your Honours may be assisted by some additional references.  As to that question of the valuation, what Mr Allesch had put before the court was a valuation of 1993 of $300,000.  His valuation was 2 September 1994 and it was not a valuation.  It was a market appraisal which says between X and Y.  The trial judge preferred a full formal valuation prepared of 12 April 1985, the sort of things your Honour really would expect.  Mr Allesch, incidentally, refers to these points ‑ ‑ ‑

McHUGH J:   It does not really matter now though, does it?  The house has been sold and if there was a re-hearing ‑ ‑ ‑

MR BROUN:   No, no.  It does matter, your Honour.

McHUGH J:   Does it?

MR BROUN:   And if we go back that valuation question was about the Fyshwick property which was not the subject of an order for sale originally.  It was merely security for the cash balance adjustment.  It was the most valuable property but what the wife got was the former matrimonial home, less valuable than Fyshwick, blocks of land at Batemans Bay of relatively less value and a cash adjustment of, I think, $87,000.  The $87,000 was the subject of an order that if he did not pay, in effect, recourse could then be had to the Fyshwick property but it was not till two years later that the Fyshwick property, in fact, was the subject of anything – brought it to sale.

McHUGH J:   I understand all that, but the point I was putting to you is that you, having lost on the correctness of Justice Finn’s order and one issue being whether you might get a different result now if you had a re-hearing, the fact that there were competing valuations is of no account, is it, because the property has been sold?

MR BROUN:   Yes, it has been sold years later.

McHUGH J:   Yes.

MR BROUN:   Well, then, the next one was the alleged German property.  If your Honours look at the annexed document that Mr Allesch attaches about that to his affidavit which appears at page - it is, in fact, what the wife identified to the trial judge as a will of her parents but it is, in fact, in a document dated 19 March 1974, 20 years beforehand, and no translation was ever put before the court except for the general identification of it.  It does not identify that there was anything attached.

McHUGH J:   Do you know what page that is, Mr Broun?

MR BROUN:   Your Honour will find a reference in the transcript at 107 and the document itself is at appeal book 80 but the transcript reference is 107 where the court comments on the fact that it is untranslated and Miss Maunz’s ‑ ‑ ‑

GAUDRON J:   That may have something to do with Mr Allesch not having been present.  He may have intended to cross‑examine about that.

MR BROUN:   Well, your Honours, a 1974 will is not very cogent evidence to suggest that there is property in Germany in 1995, but, indeed, he may have intended to ask a question about that.

GAUDRON J:   Yes.

MR BROUN:   But then the ‑ ‑ ‑

GAUDRON J:   I take it your client is referred to at page 81, line 2, is she?  “Brigitte Allesch ‑ ‑ ‑”

MR BROUN:   They are just a continuation of the will, your Honour.

GAUDRON J:   Yes, but she is referred to in it.

MR BROUN:   Yes.  The evidence is that the wife’s mother is still alive.  Your Honour, the next one was Mr Allesch referring to debts of the Rian company, and he refers to that in his affidavit at appeal book 84 along with the other points. 

Even at page 84 in applying to set aside the judgment he does not give any detail of how those debts of a limited liability company came home to roost to him, or what the origin of them was, or what he was doing about them.  It was just a bald assertion that he had debts arising from that of a nominated amount.

McHUGH J:   It is page 74, not 84, Mr Broun.

MR BROUN:   Page 74; sorry, your Honours, yes.  Then, the fourth one was the $55,000.  Now, in fact, the trial judge did not take that into account as an asset for division.  She accepted that it had been borrowed, but in the absence of any evidence that it was still available she did not adopt it as a current asset at all, and that is - I think the reference I have noted is appeal book 48.  So that those four points, in our submission, which Mr Allesch has put forward as his substantial matters on that ground, really there is no substance in any of them, in our submission.  There is certainly no evidence to support them and, in our submission, when the Full Court says, “We are not satisfied that there would be any certainty”, I think what I would submit is they are politely saying, “Look, the result here is going to be more or less in this area anyway”, except, of course, that since then a whole lot of water has gone under the bridge.

McHUGH J:   At page 48, Justice Finn said that she would not include the sum of $55,000 as the current property of the parties, however she would:

prefer to have regard to this sum of $55,000.00 which the husband would have appear to have had the benefit of since 1991 –

His point is, well, that is not right, that was used to discharge the mortgage.

MR BROUN:   Yes.  Her Honour, in respect of the section 75(2) adjustment, seems to have said that she was going to refer to or keep in mind that unexplained disappearance of the $55,000.  A bank account in credit in the name of the Rian company, and also, of course, the respective earning capacity of the two parties, but the respective earning capacity of the parties would have been more than enough to explain the 5 per cent adjustment.

GAUDRON J:   Yes, but again that is water under the bridge.

MR BROUN:   Yes.

GAUDRON J:   The question is the situation, is it not, when Mr Allesch asked to have the order set aside.

MR BROUN:   Yes.  That is, your Honours, if I might put it this way, the first part of the question that the Full Court had, and on that we lost.  But then on the second part, namely, what does the Full Court then do, having regard to the fact that by then there was something like four years gone by, what does the Full Court then do.  In the history of the matter, having regard not only to the history of what had happened since, but reading that history of what had happened since in the light of what had happened before, the trial judge, they said, could perhaps have overlooked the non‑appearance of the husband, on not just the final hearing but on the date when she had directed it be listed to see whether it was still undefended.

The trial judge could perhaps have overlooked the fact that he did not pick up a telephone and engage a lawyer to go along on either of those occasions.  The judge could perhaps have accepted there was an explanation for those failures and the fact that he was nonetheless still able to send a registered letter to the registrar and get a medical certificate at the early stages but, when they came to look at what happened afterwards, including non‑appearances on appeals, various default applications, a whole further history of litigation, looking at the whole five years of horror altogether, in my submission, the only answer is that there would be a terrible injustice to inflict yet more litigation on this unfortunate woman.

KIRBY J:   Mr Broun, accepting that that is a very difficult question and that we just have to consider it, if the Court is of the view and notwithstanding what you have put and given what it sees as errors in the exercise of discretion by the Full Court, what in your submission are the correct orders that should then be made?  They would seem to be to allow the appeal to this Court, to set aside the orders of the Full Court, to order that the matter be remitted to a single judge of the Family Court in order that the matter of the property entitlements of the parties should be redetermined at a hearing at which both sides would then be heard and on evidence which was then up to date and before them and one would hope efficiently and expeditiously put before the single judge.  Are they not the correct ways of dealing with it?

MR BROUN:   Your Honour, I would submit strongly no, that would not be the correct thing to do.  If your Honours are of the view that the Full Court erred, then the question would be somebody – this Court, the Full Court, a single judge – should reconsider the exercise of the discretion on the question of:  should the default judgment be set aside?

McHUGH J:   Yes, that must be right.

GAUDRON J:   And prima facie one would think that would be a Full Court.

McHUGH J:   Or this Court.

MR BROUN:   Your Honours, as to whether it should be this Court or the Full Court, we on behalf of the wife would welcome whatever is the shortest, quickest and cheapest, which would seem to be, although your Honours may not agree with this, for this Court to exercise the discretion.

KIRBY J:   If we have to exercise the discretion, in a case where (a) it is conceded that the appellant did not have the opportunity to be heard at first instance, and (b) where Justice Finn herself has conceded that it might have affected the orders, why would we not simply set it aside and then have them send the matter back to be dealt with by a single judge on the substantive matter instead of having more skirmishing on the procedural questions?

MR BROUN:   Well, your Honour, first of all, we would ‑ ‑ ‑

KIRBY J:   Then at least both sides would be heard, both parties would put up-to-date evidence and the matter could then be dealt with in a way that was conclusive.

MR BROUN:   Your Honours, hopes of a ‑ ‑ ‑

KIRBY J:   Why would one not do that?  I mean, the right to be heard is a very fundamental principle of legal systems.

MR BROUN:   But it can be lost by failure to turn up.

KIRBY J:   It can be lost, but if one takes the view that that is the way to resolve this matter, why would one not take that course?

MR BROUN:   Well, your Honours, first of all, looking at Justice Finn’s comments about being prepared to accept at that hearing that the setting aside of the orders may lead to a different result, your Honours have to read that in the context of the way the case was conducted before her, namely that the husband was not there again for cross-examination and in order to get the matter disposed of, the position was adopted that the husband’s case be taken at its highest point, but as I have indicated to your Honours the four points really do not amount to anything.

KIRBY J:   But if that was good enough to be agreed for the purpose of Justice Finn and was on the basis on which he was invited to deal with it, that was good enough for your side at that stage, why should you be given a chance, as it were, to withdraw that?  Why should we not simply accept that that is the way it ought to have been approached and ought now to be approached, and approaching it in that way, not with the test of certainly which was adopted by the majority in the Full Court, simply send the matter back to be redetermined at first instance?

MR BROUN:   We would say, then, your Honour, even if there was going to be a substantial – the distinct possibility, let us put it that way, that there may well be a difference, nonetheless, when one then looks at the five years that have gone by since and the history of that five years, that would outweigh any injustice to the husband and the hardship to the wife in that situation would far outweigh any hardship to him.  It really is a matter of ‑ ‑ ‑

GAUDRON J:   Well, we have no evidence of that.

MR BROUN:   Well, your Honour, there ‑ ‑ ‑

GAUDRON J:   We have no evidence of that.

MR BROUN:   Well, I suppose that is one of the problems.  Your Honours, in fact ‑ ‑ ‑

GAUDRON J:   And indeed, would it not be the case that if the question came to be determined whether the discretion to set aside the judgment should be exercised, it would have to be exercised on current material?

MR BROUN:   I think that is right, your Honour, and would ‑ ‑ ‑

GAUDRON J:   And that this Court cannot - - -

MR BROUN:   Yes, your Honour, and also, of course, your Honours do not have in the appeal book here all of the material that was before even the Full Court, because ‑ ‑ ‑

KIRBY J:   But that is on the question of whether we can exercise the discretion to dispose of the matter  ‑ ‑ ‑

MR BROUN:   Yes.

KIRBY J:    ‑ ‑ ‑ but on the question of whether or not we could exercise the discretion which has miscarried in the Full Court because they addressed their mind to certainty and to considerations of delay which, at least arguably, had been by-passed by Justice O’Ryan’s order, we would be able to do that, would we not?

MR BROUN:   Except that your Honours do not have all of the material that was before the Full Court, for example ‑ ‑ ‑

KIRBY J:   The notion of sending this matter back to the Full Court to determine again what has miscarried in the Full Court seems a horrendous one.

MR BROUN:   Yes, I would think your Honours should go back to a single judge to determine the question of should the default judgment be set aside, on up-to-date evidence, and with a complete picture of the present position.  That would be by submission, your Honours.

KIRBY J:   Well, on the footing that (a), the Full Court has concluded, I think correctly, that it ought to have been set aside, and (b), that Justice Finn concluded that there were substantial issues on the basis of which there would be some different order, it just seems that you are interposing a step which is a pointless step in the path of getting the parties to a hearing on the merits, which is the whole argument that the appellant has never had.

MR BROUN:   Your Honours, it is just that the prospect of putting before a single judge the 1995 position, and everything that has happened since on the question of what orders should be made now, it is just going to be so much like trying to unscramble eggs ‑ ‑ ‑

GAUDRON J:   No, it is not.  You seem to be having the same approach as the Full Court, and it is inconsistent with your answer to me.  One of the reasons advanced by the Full Court for not allowing the appeal, or perhaps for not exercising the discretion, was that it was impossible to put the parties back in the position they were when the order was made, but you said to me, just a little moment ago, that if it came to a question of exercising the discretion, it would have to be done on the basis of the position of the parties as at today ‑ ‑ ‑

MR BROUN:   That is right, your Honour.

GAUDRON J:   - - -and those two positions are not compatible.

MR BROUN:   No, they are compatible, your Honour, because in considering the position now, one of the matters that the Court would have to consider is how we got to that present position ‑ ‑ ‑

GAUDRON J:   Well that is obvious.

MR BROUN:   - - -which involves a review of the last five years of the Allesch and Maunz misfortunes.

GAUDRON J:   Well that could be ascertained fairly quickly, by looking at the court file, I should imagine.

MR BROUN:   I think your Honour is a bit optimistic, but certainly, it can be done, but the thought of the amount of additional work and additional costs, there is going to be very little left of the fortune of these parties by the time all this litigation is over, and that is one of the things, of course, that the Family Court tries to avoid, to stop parties spending a fortune on issues that really may not amount to much, and this is, in fact, the worst case I can bring to mind, because we really have, perhaps 5 per cent is the subject of dispute, and I would have thought that could not be, but far more than that has been spent in costs since that order was made.  It is as it we are playing a sort of game of double bluff, as it were; can Ms Maunz be induced to give up, but to give up to what?  There is still no application before the Court by Mr Allesch as to what he says should have been done with the property, or what the order he says should have been made, except his original application.

GAUDRON J:   He has not had that chance, in one sense.

MR BROUN:   Well, he had the chance on the application to set aside; he could then have said to the Court, I would contend, on the evidence if it were properly presented, the result would be X, but he has never done that.  So that the Court has never known what he contended – the Court still does not know – the result would be, so that one could look at what his contention is and see is it rational and, if it was rational, what it weighs up to or amounts to in comparison to what has been going on now for five years.

KIRBY J:   Well, I saw that you said that in your written submissions, but today he did say that what he was contending was that in the property adjustment there ought to be taken into account three considerations:  the double counting for the mortgage; the amount of the debt, $60,000; and the fact that since his myocardial infarction bypass his earning capacity is reduced.  Now, they would appear to be three matters that, if they were placed before a judge disposing of the property entitlements of the parties to a marriage, would be taken into account.

MR BROUN:   Your Honour, yes, the effect of his medical condition on his earning capacity certainly.  The other two I would have thought the evidence was already fairly clear on, that there was not a double counting and there was not the other matter of which he complains.

KIRBY J:   Well, there has never been a determination on the merits of that.  The Full Court majority notes that contention, but they do not deal with it and they simply concentrated their attention on whether the matter should be remitted and then without saying why, except by reference to what they asserted was the most important matters, namely time delay, and without addressing at all the issues of the merits of the contentions they said, “No, we will not remit it.”  You see this is the unsatisfactory feature.  He did not get the hearing at first instance and he did not get so much of a hearing as was necessary to exercise the discretion properly in the Full Court. 

So it seems to me the choice that we have to make is either to send it back to the Full Court to re‑exercise the discretion properly or, if we can properly cut the Gordian knot, send it back to a judge at first instance, if this is a proper course, in order that the matter will come to the nub of the issue between the parties.

MR BROUN:   Yes.  Well, your Honour, those two, my submission would be that the more correct one would be to send it back to the Full Court for the re‑exercise of the discretion.

KIRBY J:   Well, that is the more correct one but it does have what you were very properly referring to as the horrendous consequence of yet another step in this ghastly litigation.

MR BROUN:   Well, your Honours, it is a matter of a choice between evils and my assessment of trying to run the case again from the beginning is that that is not a very attractive alternative.  It would be a very long, difficult and hard piece of litigation to conduct and very expensive, but, your Honour, I have been wrong about many things.  Maybe I am wrong about that, but that is essentially a matter, I suppose, of judgment.  I say that the better course for Mrs Maunz would be to adopt the more proper course of going back to the Full Court and say, “Well, the High Court has said you have got these things wrong.  Do it again.”

KIRBY J:   Well, at least that might be that then in the Full Court there would be proper attention paid to the re‑exercise of the discretion as on up‑to‑date evidence which it is said this Court cannot receive and which is then determined by the Full Court of the Family Court on the evidence that is then available.

MR BROUN:   Yes, yes.

KIRBY J:   And it may not then have to go back to a primary judge.

MR BROUN:   Well, we would hope so, your Honours.  Your Honours, during the course of my submissions, the written ones, we have put in what seemed to be the relevant cases on the various issues that have arisen and if I was to direct your Honours’ attention particularly to one, which is perhaps the one on the facts closest to this and which has the comments that perhaps your Honours may find the most useful.  It is Shocked v Goldschmidt, which is referred to in our submissions on page 7, and that was a case where the plaintiff knew of the dates fixed for hearing; tried to get a lawyer; could not get a lawyer, then did nothing; a long hearing; judgment entered against her; she applies to set it aside and the trial judge set it aside but the Court of Appeal set that aside and reaffirmed the original undefended hearing.

It does discuss at some length the authorities and the principles involved in the way that your Honours may find of assistance.  I have otherwise tried to analyse the cases under the various headings and as to the question of the Full Court looking at things that had happened since the original hearing, I have dealt with that in the last three and a half pages of our submissions.  But I would, perhaps, add there that Mr Allesch was, of course, the appellant before the Full Court.  He put all the material before the Full Court as to what had happened since.  We did not object to it.  The Full Court accepted it at Mr Allesch’s invitation so the Full Court was seized of it, in effect, by invitation of Mr Allesch and his lawyers without us making any application to bring that before the court, but of course we accepted that it was an appropriate thing to do.

KIRBY J:   Mr Broun, in the event that the Court allows the appeal on the footing that there has been an error in the exercise of the discretion in the Full Court, why would the Court not make the usual order as to costs?

MR BROUN:   Your Honours, in my submission, that would depend ultimately whether the game was worth the candle, whether the whole piece of enormous panapoly of the law has been about peanuts, as we strongly submit that it has been.

Now if it has all be an absolute waste of everybody’s time, even though Mr Allesch wins, in our submission he ought not to get his costs of it, so it should abide, in effect, the final outcome of the proceedings, or be a matter that your Honours referred back to the Full Court to deal with after the final outcome of the proceedings.

KIRBY J:   We could not allow the Full Court to dispose of our costs.  We have to make that on our own responsibility, surely.

MR BROUN:   Well then, in that case, your Honours, I would ask your Honours to reserve it to be dealt with on, perhaps ‑ ‑ ‑

GAUDRON J:   Well, we note that Mr Allesch is unrepresented in that regard.

MR BROUN:   Your Honours, I would also refer to page 297 where the Full Court refers to the fact that Mr Allesch as the appellant was the one who had to inform the court what was going on, but he had not, in fact, filed any material with the court after September 1994.  Now, unless there is any ‑ ‑ ‑

KIRBY J:   I did not quite understand that.  Do you say that before the Full Court he had not filed any material?

MR BROUN:   That is so, yes.  But Mr Justice O’Ryan’s judgment was before the Full Court so that the Full Court had, from Mr Justice O’Ryan’s judgment, details of what had happened since.

KIRBY J:   Was that treated by the parties as stating evidentiary material upon which the Full Court was invited to act or not?

MR BROUN:   It was before the Full Court and certainly both sides made submissions referring to it.  There was no suggestion from anybody that regard should not be paid to it.  It was in the appeal papers.  The Full Court was invited to use it.

KIRBY J:   Did your side take a point before the Full Court that, for the purpose of the exercising of the discretion of the Full Court, there was no up to date sworn evidence before the Full Court, further evidence, upon which their Honours could proceed properly to exercise their discretion or ‑ ‑ ‑

MR BROUN:   I think that was referred to but the Full Court certainly – it was so much a point, as referred to, and the Full Court noted it in their judgment, that he had not ‑ ‑ ‑

KIRBY J:   I thought you told us that both parties invited the Full Court to exercise the discretion and, if so, on what basis could it - - -

MR BROUN:   The way we put it, your Honours, both sides invited the Full Court to re‑exercise the discretion.  Mr Allesch’s side was content with what had been done to that point.  We also referred to Mr Justice O’Ryan’s judgment as to events that had happened since.  Unless there are any other matters I can assist your Honours with, what I have put in writing, there is no point in going through a second time.

GAUDRON J:   Thank you, Mr Broun. 

MR BROUN:   I should also say, your Honours, that I regret that in the chronology that is there, some of the appeal book references are not to the appeal book in this current appeal.  I am very sorry, I had not noticed until a couple of days ago.  We have not brought the references up to date to the appeal books before your Honours.  So, in looking at the chronology, your Honours should safely ignore the references to appeal books because they are not the right ones.  My apologies for that, your Honours.

GAUDRON J:   Thank you, Mr Broun.  Yes, Mr Allesch.

MR ALLESCH:   Could I just take you to page 8 of the written submission and ask you to change on line 31 where it says to see appeal book page 99, it should actually read 275.  There is one more which is on page 2 and that is on the sixth line.  Where it says appeal book pages 718, that should of course read 70 to 85.  I would of course ask the Court on the point of readmitting it back to the Full Court, I would ask the Court rather than sending it back to the Full Court to make a decision and just see it cannot be disposed of, because I have very little confidence going back there again to this court whether I am going to get a fair hearing or not, because up until now I thought that, although the ultimate obligation is justice, justice in itself seemed to have eluded me somehow.  If it can be disposed of some other way, as I put to you earlier, I have already submitted that the orders, because of my appeal to Justice Finn on 24 August actually never came into effect, the orders simply by their own construction failed to be activated.  All that happened thereafter, in my submission, is that there was no order in place to do whatever has been done.

McHUGH J:   That cannot be right, Mr Allesch.  Order 1 of the orders made on 10 July said that they would:

take effect at the expiration of seven days from the date of service upon –

you –

of a sealed copy of these orders and…..judgment –

So they took effect seven – and by your own chronology, it was served on you.  Those documents were served on you on 17 August, so they took effect.  The fact that you applied to set them aside did not stop them from operating.  They operated.

MR ALLESCH:   Your Honour, if I may just put you to this point here, on page 40 in the appeal book, lines 1 to 7, her Honour said in that:

no real injustice would be done to the husband if I were to proceed to hear and determine the wife’s application, and then to allow a short period of time to elapse after service of the orders on the husband in which he could apply to have the orders set aside ‑ ‑ ‑

McHUGH J:   Yes, but the orders operate.

MR ALLESCH:   After service.  What I am saying is, your Honour, if I may ‑ ‑ ‑

McHUGH J:   I understand what you are saying.  What I am saying to you is that the order that is set out at page 61 of the book says in order 1:

That these orders (other than order 11) take effect at the expiration of seven days from the date of service –

So they took effect seven days from 24 August.

MR ALLESCH:   If I may rectify that for you, because then you have to go back and say “after service” on page 40.  That was the judgment.

McHUGH J:   It may have been the judgment but it is the orders that speak.

MR ALLESCH:   Are not the orders supposed to follow what the judgment says?  There is one word missing in that order and that is the word “after”, a word that is clearly stated on page 40 and on the actual orders you have it missing.

GAUDRON J:   But that order is not the subject of this appeal.  The terms of that order do not bear on this appeal and you cannot appeal from that order in these proceedings.

MR ALLESCH:   Well, in any case, the point is, your Honour, that the word there changed on the actual order, the word “after” is missing.

McHUGH J:   But it makes no difference whether it is missing or not.  I do not think it is, Mr Allesch, but even at page 40, what the judge is saying is that she is going to allow a short time to elapse and then that will give you an opportunity to have the order set aside.  That does not mean that they do not start to operate.

MR ALLESCH:   But are they not clear enough in its condition that they say become effective after service, seven days after service.  Well, they have never come into effect.

McHUGH J:   They come into effect the moment that that time period is up.

MR ALLESCH:   But the time period was not up because I did everything in the seven days.

McHUGH J:   Yes, but that is not what the judgment said and it is not what the orders say.

MR ALLESCH:   Well, this is why I referred you back to number 40 of her judgment on page 40.  It clearly says it and on page 60 again it says the same thing on line 20 to 22, “seven days after service on the husband”.

McHUGH J:   Yes, that is right.  The orders will “come into operation” only “seven days after service” on you.

MR ALLESCH:   So you do not actually count the day of service.  You count seven days thereafter.

McHUGH J:   I appreciate that.

GAUDRON J:   Yes.  Nobody is suggesting that your application to have the orders set aside was not competent.

MR ALLESCH:   I am sorry, your Honour.

GAUDRON J:   Nobody is suggesting that your application to have the orders set aside was not properly before Justice Finn.  That would be the only relevance of that.

MR ALLESCH:   My submission actually is that the orders never did come into effect.

McHUGH J:   But they did, they came into effect according to their term.  All that the judgment says, and all that the order permitted, was for you to make an application to set aside orders that were in effect.  There would be nothing to set aside.  There would be no point in giving you the right to make an application to set aside if they were in operation.  They were in operation.  Anyway, as Justice Gaudron points out, it really has nothing to do with this appeal.

GUMMOW J:   This case is all about the order at page 194, that is what starts this case off.  That is to say that your application to reopen be dismissed, and that is what was found in the appeal of the Full Court and that has now come here.

MR ALLESCH:   You also will find that there is a reference ‑ ‑ ‑

GUMMOW J:   That is why - you should just concentrate on it, Mr Allesch, because you are in reply - one is assisted by knowing what you want to say on the hypothesis that you are successful in this Court, as to what consequential orders should be made after allowing your appeal; what should then happen?  Now Mr Broun says it should go back to the Full Court.  Do you want to say anything more in opposition to that?

MR ALLESCH:   Yes.

GUMMOW J:   Well you better tell us.

MR ALLESCH:   Well, this has been in the Full Court already, and I think that, when it was before the Full Court there was the opportunity there for the Full Court to rectify what went wrong in the first place.

GUMMOW J:   But I think all the Full Court could have done was to operate on this order at page 194.  I do not think they could have gone ahead to have a rehearing themselves.

MR ALLESCH:   What would have prevented that?

GUMMOW J:   Because there was no appeal competent in that form.  The only thing they had was whether this order at page 194 was correct.

MR ALLESCH:   Well, could ‑ ‑ ‑

GUMMOW J:   That is what it seems to me.

MR ALLESCH:   Well, I was of the opinion that the Full Court was in a position either to just simply say, “Okay, we will save any further arguments on this whole issue, and we say this is the case, and we do whatever we are going to do”, but nothing was addressed.  The Full Court simply just said, “Well ‑ ‑ ‑

GAUDRON J:   You should not repeat what you have said earlier, yes.  We are aware what the Full Court did and did not do.

MR ALLESCH:   Right.  My argument simply would be – my submission, your Honour, is that I would oppose that it goes back to the Full Court.  I would suggest that the honourable Court should make a decision.

GAUDRON J:   Well, it may well depend on what is the proper test to be applied.  If the proper test is whether at the time it comes to exercise the discretion, justice can be done between the parties, then we have not got that material and we cannot receive that material.  This Court can only operate on what was in the Full Court.  So that is the difficulty you face in that area.

MR ALLESCH:   So you are saying to me that you are in no position to actually come to any decision here.  It would have to go back again to the Full Court?

GAUDRON J:   Well, if that is the test ‑ ‑ ‑

MR ALLESCH:   That is the test that – but you have not concluded at this point in time?

GAUDRON J:   That is right.

MR ALLESCH:   You have not concluded at this point in time.

GAUDRON J:   Yes.

MR ALLESCH:   Well, my submission simply is that I would prefer it not to go back in the strongest terms possible.  I have very little confidence that I would get a ‑ ‑ ‑

GAUDRON J:   Well, you have said that, yes.

MR ALLESCH:   Okay.  I would like to ‑ on the basis the disparity, if you could actually read the counts submission on page 113, 115 and 114 of the appeals book, they go to the heart of the matter.

KIRBY J:   This was your then counsel, was it?

MR ALLESCH:   That is counsel appearing at the hearing of 6 September 1995.

GAUDRON J:   What was that hearing?  Was that before Justice O’Rourke?

MR ALLESCH:   That was to try and set the ‑ ‑ ‑

GUMMOW J:   That is the reopening application.

MR ALLESCH:   That is to try and set it aside.

GUMMOW J:   Your application to reopen.

GAUDRON J:   Yes, before Justice Finn.

GUMMOW J:   Yes.

MR ALLESCH:   Before Justice Finn.

GUMMOW J:   Which founded the order which led to the appeal.

MR ALLESCH:   It has, of course, altered the procedural difficulties there in that area, I submit.

GAUDRON J:   Now, what page was that, I am sorry?

McHUGH J:   Page 113.

MR ALLESCH:   Pages 113, 115.

GAUDRON J:   Yes.

MR ALLESCH:   It just carries on from to 124.

GAUDRON J:   Yes, thank you.

MR ALLESCH:   That should address the basis of the argument for the disparity because it was put to her Honour at that time to – and if you evaluate that, you can see that there is an enormous amount of difference.

KIRBY J:   You say it is an enormous amount of difference.  Mr Broun says that even if it were taken into account to its fullest it is only 5 per cent of the – that the adjustment would only be 5 per cent, and having regard to the delay and the very small amount at stake, the realities and the practicalities, you should not succeed.

MR ALLESCH:   This is why I referred you to these pages, because there is detailed information in there on how counsel put it at the time there, and saying, “Well, there is this figure of 55, there is the figure of 60,000, there is this property under section 79A, and there is the inability of the husband, and the future inability.”

KIRBY J:   Can I ask you this:  the primary judge divided it 55:45, what do you say as a result of all of this information, and if it had been taken into account, is the best that you could have hoped for in the division of the property of 29 years of marriage?

MR ALLESCH:   In any event, I should not have lost the Fyshwick property; that is the first one.  And, if you take that all into account ‑ ‑ ‑

KIRBY J:   That was the matrimonial home, was it not?

McHUGH J:   No.

KIRBY J:   Oh, that was an investment property.

GAUDRON J:   It was his factory.

MR ALLESCH:   The matrimonial home was already gone, anyway.  On this point, I never got the opportunity, had it been done properly, to pay out the wife in the first place and retain that, instead of being thrown out when you are ill, and pay her off some way.  But all that was not an option because I was not given that option.  I was just simply turfed out in the lawn there, and that is it; here you are, do what you will.  This is why I raise the issues of the international human rights and the unconstitutional issue.  I think that in the year 2000, now, and the turn of it into another millennium, and it is almost like we have taken a step back in time to zero again and start off ‑ ‑ ‑

KIRBY J:   I think you are going backwards in your argument.  We are focusing you on what you thought would be the sort of difference.  You said that you believed that as a result of having an opportunity to be heard and to cross‑examine and to ask questions and make submissions, you would have held entirely unencumbered the Fyshwick property.

MR ALLESCH:   If everything was taken into account properly as it should be, it would end up at least 30:70; 30 for the other side because there is other amounts and property there, and 70 should be staying there.

KIRBY J:   So it is a variation from 45 to 70.

MR ALLESCH:   Which is a variation from 45 roughly – I am talking in rough terms – 25 per cent.

KIRBY J:   There is still a question of whether, having to take into regard all of the costs that are being run up, including in this Court, possibly a future Full Court case, and possibly then a future trial at first instance, the margin of difference is worth the cost.  However, that is for you to consider, I suppose.

MR ALLESCH:   I understand that the cost matter is a difficult matter, your Honour, but my submission would be, why should I be penalised when I have undertaken what is required of me?  I have not just flagrantly disregarded the court.  I informed the court.  I told them what the problem is.

KIRBY J:   Again you are going back to that point and that point is not disputed.

MR ALLESCH:   Yes, to that point.  If I had not done that, I would say “Yes, okay, he flagrantly disregarded – the court was never told”.  But the court was told.  There was oral evidence before the court by the manager of the registry advising on 1 May the court ‑ ‑ ‑

KIRBY J:   We have been through all this.  This is not in issue.

GAUDRON J:   That is not in issue.

MR ALLESCH:   I am just saying, if you look at the whole issue, why should I, when I have tried to do the right thing and tried to participate at all relevant times too?

GAUDRON J:   Well now, I think as Justice Gummow put to you, you should come back.  You have said all you wish to say about the form of order, if you succeed.

MR ALLESCH:   Right.

GAUDRON J:   And you were dealing with disparity, and I think we were well seized of that before.  Is there any other point that you need to address in your reply, bearing in mind what you have said at the beginning and that you have only got to deal with what Mr Broun has put today.

MR ALLESCH:   Yes, and that goes back to the actual time again.  Justice O’Ryan was satisfied that I have actually participated at all relevant times ‑ ‑ ‑

GUMMOW J:   Yes, we have seen that page, 273 I think.

MR ALLESCH:   - - -not because it was put by Mr Broun that ‑ ‑ ‑

GUMMOW J:   No, but I put it to him, at page 273 of the appeal book.

MR ALLESCH:   - - -that I had not participated and just chose to appear whenever it suited me; that was simply not the case.  To sum it all up, I would respectfully submit that the Full Court had an opportunity at that time there, without going to the additional expense once again, if the cost is so much on the mind of the Family Court, to stop it there and then and do something about it, but they have done nothing; they just simply put it all down to time.  When Justice Finn rejected it, the same problem, she put it down to time, she was not prepared to wait, and two and a half years later the Full Court goes to the same, and says time again.  Now time seems to be of relevance.  The question here is, under section 79 or the inherent power of the court, is there a time limit on me?

GAUDRON J:   Well, yes, that perhaps is the question, and how it is relevant.

MR ALLESCH:   How it is relevant?

GAUDRON J:   Yes.

MR ALLESCH:   Whether it is relevant to the case at all, or whether it is not relevant.

GAUDRON J:   We are seized of that; we understand that is really one of the core issues in the case.

MR ALLESCH:   Right.  I think I have addressed the substantial matters which I felt.

GAUDRON J:   Yes.

MR ALLESCH:   Of course, I would like to see that I am not sent back, but ‑ ‑ ‑

GAUDRON J:   Yes, well we understand that.  Thank you, Mr Allesch.

MR BROUN:   Your Honours, I find I inadvertently misinformed your Honours about one matter.  Before the Full Court, Mr Allesch was in person.  Certainly my recollection is that there was clear agreement that the Full Court was to re-exercise the discretion, but, having heard Mr Allesch this morning, I am not entirely clear as to how well he understood that, so that I thought I should draw that to your Honours’ attention.  And, your Honours, to the references that Mr Allesch gave about his counsel before Justice Finn on the set-aside application, his counsel made some further relevant comments at page 157 in the appeal book, line 30 – that is particularly on the valuation question.

GAUDRON J:   Yes, thank you.  The Court will consider its decision in this matter and will adjourn until 10.15 am tomorrow.

AT 12.42 PM THE MATTER WAS ADJOURNED