Batey-Elton & Elton (No 2)
[2008] FamCAFC 202
•5 December 2008
FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON (NO. 2) | [2008] FamCAFC 202 |
| FAMILY LAW - APPEAL – Application by appellant that a non-lawyer appear for her as advocate in respect of her application in a case – Appellant conceded that she is able to present and support her application but anticipated being unable to deal with responses – Appellant does not have medical certificate – Person sought to be her advocate is also a deponent in her application – This was not an extraordinary case whereby a person might be permitted to speak on behalf of a litigant – Application dismissed FAMILY LAW - APPEAL – Appellant asserted that audio recording of Court hearing had been improperly altered – Appellant’s application to listen to and/or purchase an audio copy of the transcript of hearing before trial Judge and to subpoena the National Transcription Service for any original version of the audio recording of the said hearing – Concern about the integrity of material before the Full Court on appeal – However functions of appellate court do not include assisting investigation of conspiracy on the basis of a litigant’s suspicions – Consideration of grounds of appeal concerning bias of the trial Judge – Leave granted in limited terms to appellant to subpoena the National Transcription Service – Leave granted to all parties to listen to audio tapes – Appellant’s application otherwise dismissed – Parts of husband’s response dismissed – Further extension of time granted for filing appeal books |
| APPELLANT: | Ms Batey-Elton |
| RESPONDENT: | Mr Elton |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| APPEAL NUMBER: | NA | 79 | L | of | 2008 |
| DATE DELIVERED: | 5 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Warnick & May JJ |
| HEARING DATE: | 5 December 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 562 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitors |
| INDEPENDENT CHILDREN'S LAWYER | Mr McGregor |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
That time for filing Appeal Books and outlines of argument in support of the appeal be extended to 4 pm 12 January 2009.
That no later than 24 hours prior to the date for the hearing of the appeal, the Respondent, the Independent Children’s Lawyer, and the Trustee in Bankruptcy provide the Appellant with copies of submissions in opposition to the appeal.
That leave be granted to the Appellant to subpoena the National Transcription Service to produce on 19 December 2008, or such later date as the Appeal Registrar may direct, the original unedited audio tapes and/or CDs of the proceedings before Justice Jordan on 13 March 2007, 4 September 2007, 19 February 2008, 15 April 2008 and 20 June 2008 and such further dates as the Appellant shall in writing advise the Respondent, the Official Trustee in Bankruptcy, the Independent Children’s Lawyer and the Appeals Registrar by 4 pm Monday 8 December 2008.
That the Appellant, the Respondent, the Official Trustee in Bankruptcy, Independent Children’s Lawyer, and Mr [B] be granted leave to listen to such audio tapes and/or CDs by arrangement with the Brisbane Registry of Court.
That the Appellant’s Application filed 25 November 2008 otherwise be dismissed.
That paragraphs 1, 2 and 3 of the Husband’s Response filed 27 November 2008 be dismissed.
That the costs of and incidental to the Wife’s Application filed 25 November 2008 and of the hearing before the Court on this day be reserved.
IT IS NOTED:-
That the Court as currently constituted will seek to convene on a day to be arranged in the week commencing 19 January 2009 for hearing of the appeal.
That all parties have leave to rely on the submissions filed in this Application on the hearing of the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: NA 79 L of 2008
File Number: TVF 2250 of 2008
| MS BATEY-ELTON |
Appellant
And
| MR ELTON |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
MAY J:
In relation to the question of the application that Mr B appears for the appellant, Warnick J will give the first judgment.
WARNICK J:
What I am about to say applies only to Ms Batey-Elton’s request that Mr B appear and speak for her as an advocate in respect of the application in a case. It may well be, to the extent today that we deal with any other matters, such as an application to dismiss the appeal or the appeal itself, that we may simply reiterate what I am about to say, or it may not be, but all I wish to do at this stage is make it clear that what I say is limited to representation by Mr B for Ms Batey-Elton in relation to the application about transcript and related matters.
I would not permit Mr B to speak on behalf of Ms Batey-Elton. I would not do so for several reasons. It is the norm, for the very good reasons to which Mr Page referred, that advocates or speakers on behalf of litigants, be legal practitioners who are subject to all of the strictures and obligations that apply to them. Mr B does not fit into that category. It may be that in an extraordinary case a person not in that category might be permitted to speak on behalf of a litigant but, in my view, this is not an extraordinary case. There are several reasons for that as well.
Ms Batey-Elton concedes that she is able, in effect, to present and support her application. What she anticipates not being able to deal with, are responses. We do not yet know whether any response will be called for or whether it will contain any matter of some nature which troubles Ms Batey-Elton.
The next reason is as well one of weight in this consideration, that is, Mr B is a deponent in the very application in which Ms Batey-Elton seeks that he speak, effectively in the role as advocate, and I have in mind the nature of the matters about which he deposes.
Finally, there is no medical certificate supporting what Ms Batey-Elton claims, although the balance of the reasons have application, even if one accepts the position that Ms Batey-Elton feels that she is in, in terms of her capacity to speak to a response.
For all of those reasons I would reject the application that Mr B speak on Ms Batey-Elton’s behalf, but before I conclude I should just say that I acknowledge that Mr McGregor does not oppose Ms Batey-Elton’s request. I took him, from his reasons, to be taking what I might, with no disrespect, call a pragmatic approach and so limited to matters of pragmatism. I would not suggest that that approach was inappropriate, however, there are important matters of principle at large here to which I have already made reference and, in my view, those matters carry the day, so to speak.
COLEMAN J:
For the reasons Warnick J has articulated I too would refuse the application to permit Mr B to speak on behalf of the applicant.
MAY J:
I agree with the reasons of Warnick J and would also refuse the application for Mr B to speak on behalf of the appellant in relation to the application.
RECORDED : NOT TRANSCRIBED
WARNICK J:
The application currently under consideration is that to which I referred earlier in this hearing but which, more specifically now I outline, seeks leave of this Court for the appellant to listen to or purchase an audio copy of the transcript of 13 March - in one sense that has been done, although in another sense Ms Batey-Elton would say not undone or not fully done - and subpoena National Transcription Service for any original version of the audio recording of the said hearing, and any rules handbooks, et cetera, normally in place to ensure the veracity of the audio record and to subpoena an officer of the National Transcription Service, in effect, for any records which are kept of mistakes and inaccuracies in the transcription process.
For myself, in approaching this application, I would have put aside, as of any real significance, some possible technical deficiencies in the grounds of appeal and the position otherwise in relation to the prosecution of that appeal, given Ms Batey-Elton is not legally represented at this time.
I refer to the fact that the grounds of appeal do not specifically refer to difficulties arising either in relation to bias displayed by his Honour, Jordan J and/or the record of the proceedings on 13 March 2007 and there is currently no application to amend the grounds, that I am aware of, and there is no application to adduce further evidence.
For present purposes I also accept that the question of the proceedings and particular matters which Ms Batey-Elton asserts demonstrate bias that occurred on 13 March 2007 were not argued before his Honour, Jordan J when he was requested to disqualify himself on 20 June 2008. However, it is apparent from the material before us, including correspondence and an outline of submissions and the affidavit material in support of the application, that Ms Batey-Elton wishes to raise what transpired on 13 March 2007 and, she says currently, the records in respect of that proceeding are deficient.
However, regarding it as likely that, if there is an appeal, it would involve the issues of what happened on 13 March 2007, by no means convinces me that the applicant ought succeed by any means on the full extent of the application before us today. The primary function of the Appeal Court is to review orders which it is said were made upon appellable error. In that process or function, no doubt the Court should be and is concerned with the integrity of material put before it in support of or in opposition to the appeal, but except in that regard it is not the function of the Appellate Court to otherwise involve itself in aiding or promoting investigative steps of matters such as a conspiracy in some part of the Court's procedures and perhaps, even more so, when those procedures relate to an external contractor.
The question then is, what is before this Court relating to the integrity of the audio and the written transcription of proceedings on 13 March? There are the depositions of Ms Batey-Elton and Mr B. They are untested but there is nothing in them which to me would mean that they were inherently unreliable. On the other hand, there is the material put forward by the respondent husband which again, though untested, contains nothing which, in my view, makes it inherently improbable.
In my view, however, the written transcript, making allowance for subjectivity, and I do not mean by that in any way dishonesty, but the usual degree of human subjectivity, particularly amongst litigants and those supporting litigants, supports what Ms Batey-Elton and Mr B say occurred. There were statements made, though not the same as what they say were made by his Honour, Jordan J, of quite similar purport. That is not to say at all that I express any view on whether they bear the connotations that Ms Batey-Elton and/or Mr B might appear to place on them, and certainly not to say that I express any view as to whether or not they demonstrate bias. I deal with the issue only in the context of, is there any concern raised on the material about its integrity which ought cause this Appeal Court to take the path sought by the applicant. And my answer to that would be that I am not satisfied that there is any such material.
If a litigant citizen is, on whatever basis, persuaded or concerned about conspiracy or some like criminal activity, then that litigant citizen has the same avenues as any other citizen concerned about such a matter. There is no evidence before us that even an inquiry for the sorts of material that Ms Batey-Elton seeks from the National Transcription Service has been made, and I would be hesitant, save to the limited extent to which I will refer, to order that a subpoena issue in such circumstances.
Overlooking what I referred to as technical circumstances relating to the grounds of appeal and the arguments raised on appeal to which I earlier referred, and regarding as likely to be before any Appeal Court, if an appeal proceeds, the issue that Ms Batey-Elton is concerned about in relation to 13 March 2007, namely, that the comments of his Honour, Jordan J on 13 March 2007 indicate bias, I would permit a subpoena to issue to the National Transcription Service for the production of the original, unedited recording of the proceedings on 13 March 2007 and any other proceedings over which his Honour, Jordan J presided.
The purpose of that would be, if the Appeal Court was persuaded that there were appropriate grounds of appeal and perhaps an application to adduce further evidence, the audio would be available to pursue an argument that, when the tone of anything that was said was taken into account, there would be a concern about bias or prejudice. In other words, the reason for which I would permit a subpoena of that limited degree is not to support an investigation of a conspiracy but to enable appropriate material relating to the sort of argument that it appears Ms Batey-Elton wishes to pursue, to be before the Appeal Court.
I would otherwise dismiss the application that is before us for reasons that I have given and particularly having regard to the searching breadth of the requested subpoena to an officer of National Transcription Service for any records relating to alleged or proven mistakes or anomalies in the recording system. Such a request, in my view, goes well beyond what I think appropriate, but also must be at or even beyond the very limits of the purposes of the investigation which Ms Batey-Elton apparently wishes to embark upon.
COLEMAN J:
For the reasons Warnick J has articulated I too would grant relief only in the limited terms outlined by his Honour. I would otherwise, for the same reasons as his Honour has explained, dismiss the balance of the application.
MAY J:
I agree with the reasons of Warnick J, I would make orders in similar terms to that of his Honour.
RECORDED : NOT TRANSCRIBED
WARNICK J:
I would myself include the word "unedited" simply because I do not know and do not think the Court knows what practices the National Transcription Service has in relation to editing or not editing. For example, we all will have frequently seen transcripts where there are in brackets some indication that a judgment has been delivered or that something else has occurred which is inaudible, et cetera, and it is for those reasons that I include the term "unedited", not because it implies, in my view, in any conspiratorial way there is editing, but as I say I would include the word for the purpose of ensuring that if there is legitimate and proper editing, such an edited version is not what is supplied, but rather the unedited version.
COLEMAN J:
I agree. I am not entirely clear as to whether Warnick J in his reasons for judgment used the expression "original unedited", but perhaps to address Mr Page's concern and for the reasons his Honour has expanded on in terms of the use of the word "unedited" perhaps the order could say "original unedited", but I respectfully endorse his Honour's observations that the order should make clear that whatever the primary record was that is what the Full Court should have before it pursuant to the order we propose making.
RECORDED : NOT TRANSCRIBED
MAY J:
I agree with the reasons for judgment of Warnick J and I would make the same order.
RECORDED : NOT TRANSCRIBED
COLEMAN J:
Broadly speaking, 19 December for production, 10 December for your appeal books and the material you want to rely upon.
RECORDED : NOT TRANSCRIBED
10 January.
RECORDED : NOT TRANSCRIBED
MAY J:
Coleman J can I tell you that I think 10 January next year is a Saturday, perhaps we should say 9 January.
COLEMAN J:
Either that or the following Monday.
RECORDED : NOT TRANSCRIBED
MAY J:
It seems the general view is that perhaps the dates that Mr Page mentioned might form part of the order with some allowance to give the appellant until 5 pm on Monday to add to that list.
RECORDED : NOT TRANSCRIBED
COLEMAN J:
I suppose the first order that we make is that:
ORDERS DELIVERED
Note that the Court as currently constituted will seek to convene on a day to be arranged in the week commencing 19 January 2008 [sic] for the hearing of the- - -
RECORDED : NOT TRANSCRIBED
2009 for the hearing of the appeal.
Direct that no later than 24 hours prior to the date fixed for hearing of the appeal the respondent and/or the ICL provide the appellant with copies of submissions in opposition to the appeal.
RECORDED : NOT TRANSCRIBED
MR PAGE: Your Honour, can I just ask you to add one date to the subpoenaed documents.
COLEMAN J: Yes.
MR PAGE: You ended with 15 April. There is another date, 20 June 2008 identified by the Full Court in their judgment.
COLEMAN J: I am indebted to you. I just worked off paragraph 30, but- - -
MR PAGE: I think it's there- - -
COLEMAN J: Well, that is the date his Honour gave judgment so clearly that would be- - -
MR PAGE: Yes.
RECORDED : NOT TRANSCRIBED
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 15 December 2008
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