Collins v Collins - [1990] HCATrans 243

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S76 of 1990
B e t w e e n -
DAVID JOHN COLLINS

Applicant

and
MEI YU COLLINS

Respondent

Application for special leave
to appeal

DEANE J

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Collins

12/10/90

AT SYDNEY ON FRIDAY, 12 OCTOBER 1990, AT 12.25 PM

my learned friend, MR T.L.P. HODGSON, for the
applicant. (instructed by Marshall Marks Kennedy)

MR D.M.J. BENNETT, QC:

May it please the Court, I appear

with my learned friend, MR R.C.P. MATER, for the
respondent. (instructed by Landerer & Co)

DEANE J: Mr Gillard?

MR GILLARD:

We wish to argue three points of law.

The

first point we wish to argue is that a litigant who
is being denied a full opportunity to present his
case by being stopped in adducing all the evidence
cannot waive the audi partem rule in those

circumstances by failing to seek more time. And,
of course, that involves two issues here: one,
does the law permit a waiver in circumstances such
as that and, secondly, was there a waiver in this
case?
The second point of law we wish to argue

relates to the question of the application of 75(2)
factors in an application for property settlement
under section 79 of the Family Law Act.
Your Honours, 75(2) is a head that is to be taken
into account when an application is made for
property under section 79 and the question is what
is the proper approach, and we are saying here that
the approach that the learned trial judge adopted
and which was accepted by the Full Court was wrong.
The third point, Your Honours, is this, that

we submit that in the circumstances, the husband
was denied natural justice by the trial judge
failing to consider the husband's submissions on
the question of costs.

TOOHEY J: Mr Gillard, did the applicant's counsel complain

at any time prior to the delivery of judgment by

Mr Justice Nygh - - -?

MR GILLARD:

No, Your Honour.

TOOHEY J: Well, I do not know whether I should finish the

question.

MR GILLARD:

I am sorry, with respect to what, costs or the

first complaint?

TOOHEY J: Well, it seems to be a sort of a blanket denial.

We can ..... anything.

MR GILLARD:	No, Your Honour, I should correct that.
TOOHEY J:	As to the timetable imposed by His Honour.

Collins

12/10/90

MR GILLARD:

Yes. Well, as Your Honours no doubt

appreciate, the timetable, I think, required us to
have our submissions in by the Monday. We, in fact,

were late. We put them in by the Friday.

TOOHEY J:

No, no, I am not talking about the question of

costs. I am talking about the timetable that was
imposed by His Honour in regard to the hearing of
the matter was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collins v Collins

Details

AGLC: Collins v Collins [1990] HCATrans 243
Case: [1990] HCATrans 243
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, Mr Collins, sought to challenge decisions made in family law proceedings concerning property settlement and costs. The respondent was Mrs Collins.

The High Court was required to determine three principal legal issues. First, whether a litigant who is denied a full opportunity to present their case, by being prevented from adducing all available evidence, can waive the *audi alteram partem* rule by failing to seek more time. This involved considering whether such a waiver is legally permissible and, if so, whether it occurred in this instance. Secondly, the Court was asked to consider the proper approach to applying the factors enumerated in section 75(2) of the *Family Law Act* in property settlement applications under section 79 of that Act. Thirdly, the applicant argued that he was denied natural justice by the trial judge's failure to consider his submissions on the question of costs.

In relation to the first issue, the applicant's counsel argued that the denial of a full opportunity to present evidence was a fundamental defect that could not be waived. The Court questioned whether the applicant had, in fact, complained about the timetable or the restriction on adducing evidence prior to judgment. The applicant's counsel conceded that no such complaint was made, but maintained that the defect was so grave as to go to the jurisdiction of the court and therefore could not be waived. The Court noted that parties are often given time limits to present their cases. The second and third issues, concerning the application of section 75(2) factors and the denial of natural justice on costs, were also raised by the applicant.

Orders