Bradshaw v Bradshaw

[2004] HCATrans 359

[2004] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S478 of 2003

B e t w e e n -

PETER JOHN BRADSHAW

Applicant

and

JANE LOUISE BRADSHAW

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 14 SEPTEMBER 2004, AT 2.35 PM

Copyright in the High Court of Australia

MR M. D. BROUN, QC:   If the Court pleases, I appear with MR G. PESCE for the applicant.  (instructed by Douglas Knaggs)

MS J.E. KNOX:   May it please the Court, I appear for the respondent.  (instructed by Dettmann & Dettmann)

GLEESON CJ:   Yes, Mr Broun.

MR BROUN:   The main thrust of the point we seek to raise is the question which one would have thought had been settled a long time ago, namely, the circumstances in which an appeal court may interfere with a discretionary judgment of a lower court.  The test of whether it appears to be outside the generous ambit within which reasonable minds may disagree or whether it is manifestly unjust – years ago, of course, that meant that that sort of ground very seldom ever succeeded.  It has, however, become one of the most successful grounds and it tends to get put into every notice of appeal in the Family Court about property matters and it very often succeeds. 

Now, what seems to have happened is a dropping of the test – well, whatever the test is and, unfortunately, there is little appellate guidance in it – a dropping of the test from what used to be called the “good heavens” test.  Did one look at the result of what the trial judge had done and did one feel as a result of that, “Good heavens, something must have gone wrong here”.  Now, what it has turned into now is not so much a test of, “Does this result, as it were, provide a shock?”  What it has turned into is a test of, “Do we, the members of the appeal court or a majority of us, think that it was outside the ambit?”

Now, all the Full Court has done in this case – and it is all they usually do – is just to say, “We think it was and we think the result should have been, or we substitute our own discretion of so much” ‑ ‑ ‑

GLEESON CJ:   Are you addressing this to the part of the reasons commencing on page 107?

MR BROUN:   Yes, that is it, your Honour, that is the general passage.  Now, your Honours, the question is, was there, on the face of it, any reasonable basis for the Full Court to say this is just outside the generous ambit of discretion?

McHUGH J:   But that is not the question in this Court, Mr Broun.

MR BROUN:   No, of course not.

McHUGH J:   You are seeking a special leave application.  You have to show that there is something special about this case.  What is special about this case?  What is the principle that you want us to say, just to repeat House v The King?  Is this not just a disguised attempt to run another appeal?  There is no point of principle involved in this case.

MR BROUN:    Well, I am, of course, somewhat discouraged to hear your Honour say so, but the question is that there has, in fact, as this case makes obvious, I think, been a drop in that test.  It is not the high test that House v The King suggests.

GLEESON CJ:   The test that the court applied in this case is stated in the first sentence of paragraph 58. 

MR BROUN:   It is correct.  I have no doubt that it is a correct statement.  I accept that.  But, your Honour, the point I am seeking to make is that one may use the formula “the right principle”, but then, because there is no, as it were, standard of application of that test, whatever the majority of the Full Court thinks is the way to go becomes the answer. 

McHUGH J:   That is the problem.  That is why I said there is no special leave point in the case.  You concede in paragraph 58 the court states the right test.  You say they did not apply it properly.  That only means that you just want another appeal.  There is no special leave point. 

MR BROUN:   Your Honour, I do want to try to pitch this a bit more than that.  May I just illustrate the sort of ‑ ‑ ‑

McHUGH J:   I mean, what would we do?  We say, “Well, that got it right in terms of stating the principle, but they got it wrong in the facts of this case”?  That is not special.  There is nothing special. 

MR BROUN:   Well, your Honours, the hope is ‑ ‑ ‑

McHUGH J:   Let me say this straight.  The profession has to understand that the times that we will exercise what we call the visitorial jurisdiction are becoming less and less.  There are so many special leave applications being filed that next year we have doubled the number of days to hear special leave applications.  That means less days to hear appeals.  We cannot be dealing with questions of fact.  Cases have to finish in the intermediate courts of appeal, and the profession has to understand that. 

MR BROUN:   Your Honour, the point I was going to make is that if one looked at what the trial judge did, it looks, on the face of it, very reasonable.  He fixed an adjustment of 23 per cent of the present assets.  Now, that actually calculates to being 20 per cent of this vested interest that the wife had, which was not going to become available to her during her mother’s lifetime.  But, in effect, an asset worth nearly 600,000 – the trial judge has said, “Well, I am going to make an adjustment for that for 20 per cent of it only”, and, on the face of it, that does not seem to be something totally unreasonable or outside a reasonable discretion. 

Now, what is happening is that the Full Court of the Family Court, particularly constituted with particular judges, has adopted a practice of stating the principle and then applying it in a way which, in effect, means “If we do not like it, we will change it”.  We are, in effect, getting rid of the House v The King test and it has become not a matter of “Good heavens” but a matter of “Oh, that was a bit low.  We ought to bump that up a bit, or we ought to change that a bit”, which makes, in effect ‑ ‑ ‑

McHUGH J:   That would be completely wrong of the court to do that, having regard to the House v The King test, but what is it going to lead to?  Do we just simply say House v The King is the law, or what was said in De Angelis is the law, apply it next time?  They do not apply it.  What do we do?  Have another appeal?  We can only take about 40 cases a year now because of the large number of special leave applications.  We cannot get involved in facts.  We have to preserve our jurisdiction, our appellate jurisdiction, for important questions of law that go beyond any particular case and have significance for the nation. 

MR BROUN:   Well, if your Honours were not able to put a more clear or more defined test other than House v The King, which has become, with respect, now almost meaningless, if your Honours are not in a position to think that that could be done in a case such as this, then I would have to concede we do not have a general point. 

GLEESON CJ:   There is a practical test that is often applied of whether the House v The King test has been applied.  If the alteration to the exercise of discretion that the appellate court made can be described as “mere fiddling”, then that indicates that they have not applied proper House v The King principles, but you are not suggesting that here. 

MR BROUN:   No.  No, it was a very big adjustment in proportion to the assets of the parties. 

GLEESON CJ:   That indicates that they thought that the primary judge went substantially wrong. 

MR BROUN:   Yes, certainly, but what we would seek to argue is that really their test has been not, “Was that a decision for which reasons can be shown and is within the ambit of discretion?”, their test has become, in

effect, “Would we have done that?”, which is, of course, the totally wrong test. 

McHUGH J:   The natural inclination of appellate judges, including Judges of this Court, is that they would like to correct error whenever they can, but we have to be practical about these things, Mr Broun.  We just cannot listen to appeals on questions of fact, and it seems to me that is all it is.  I read your submissions carefully, several times.  I read the material in the book and the other supplementary application book.  It just seems to me a pure question of fact.  This is a decision that I may or may not have agreed with, if I were sitting in the Full Court’s position, but it does not seem to me to be any higher than that. 

MR BROUN:   Well, your Honours, the other point we have sought to raise really is only in support of that one ‑ ‑ ‑

McHUGH J:   Well, it does not get off the ground, does it, because the fact is that the court said it did not – although it reversed the judge on that, it did not take any notice of it. 

MR BROUN:   I have to concede it is not a strong point.  Unless there are any other matters I can assist your Honours with, those are our submissions. 

GLEESON CJ:   We do not need to hear you, Mrs Knox.

We are of the view that this case does not raise an issue suitable to a grant of special leave to appeal and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

The Court will adjourn until 10.15 am on Tuesday, 28 September in Canberra.

AT 2.45 PM THE MATTER WAS CONCLUDED