Collins v Collins

[1990] HCATrans 243

19,t	-!.l,,~USTRALIA,,/l'
-~'.»~$-««:<-'-..

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 1 12/10/90

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

Copyright in the High Court of Australia
MR E.W. GILLARD, QC: If it please the Court, I appear with

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.

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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 one with which the parties were

content, it would appear, at least up until

virtually the close of the trial. My question was

did the applicant's counsel complain at any time
before the delivery of judgment by Mr Justice Nygh

of the fact that he had not been given an

opportunity to adduce further evidence or material?

MR GILLARD: Or continue the cross-examination, no.

TOOHEY J: Or continue the cross-examination?

MR GILLARD:  No, Your Honour, we did not.

TOOHEY J: So, in a sense the question of waiver - perhaps

it arises but it is rather more fundamental than

that.

MR GILLARD:	Your Honour, it is our submission that in the circumstances that took place, the defect was so
grave in this case that it went to the very jurisdiction of the court. It was a defect that
could not be waived and we say that one of the
rationales for the audi partem rule is that the court is seized with all relevant facts. Now, His Honour cut us short on the last day, having
warned us, as Your Honours appreciate - - -

DAWSON J: That is hardly putting the full picture, is it?

I mean, you were given time.	You knew exactly when
the axe was going to fall.	It is not unknown in

courts to give parties time in which to present

their case and to require them to present it within

that time.

MR GILLARD:  Yes but, Your Honour, as you are told from day

to day that the case is expected to finish by the

Friday, of course counsel say they are going to do

their best - they are not going to annoy the judge

- and, of course, they aim to do it. But as things

turned out, events occurred on - these events

occurred on a Friday. On the Wednesday and

Thursday, and Friday, certain events occurred which

meant the matter was stood down for an hour on one

occasion; there were documents tendered and the

stage was reached by 4.30 on the last day that my

learned junior was cross-examining the wife's

mother and had not completed and Your Honours, no

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doubt, have read the part of the transcript in the

judgment of what occurred at 4.30.

Now, the Full Court has accepted that she was

an important witness, an essential witness, and

they accepted that the matter had not been

completed and they also accepted that we have been
denied a proper opportunity to place our case

before the court. What the Full Court went on to

say, however, is that because we did not object

either on that Friday at 4.30 or in the intervening

five weeks period leading up to the point where we

made our submissions, that that constituted a

waiver.

TOOHEY J: But Mr Gillard, the consequences are quite

horrifying of this application, at least as it is

framed. It seems to seek not that the matter go

back to the trial judge who heard this matter over

weeks and weeks and weeks but that it go back for a

complete rehearing. Have I understood the notice of

appeal correctly?

MR GILLARD:  Yes, that is correct, Your Honour, yes, that

the proceedings have been so vitiated that by this

failure to permit us to complete - - - ·

TOOHEY J: What, because there was half a day's evidence

that was not afforded to the parties, that the

whole matter should start all over again?

MR GILLARD:  Yes, Your Honour. We say that the defect was

so grave in these circumstances that you just

cannot waive the matter because - - -

DEANE J: What if the extra hours cross-examination produced

nothing at all?

MR GILLARD: Well, Your Honour, the Full Court considered

that and came to the view that you could not

say - - -

DEANE J:	No, but in terms of whether it goes back or not. It would then be apparent that your client, quite
apart from whether he had assented to the course,
had sustained no damage or prejudice whatsoever.

MR GILLARD: Well, Your Honour, that.cannot be denied if

that was to happen but the Full Court did consider

that aspect and said they could not come to the

view that it may not have had some impact on the

final result of the proceedings and then went on to

consider whether there had been a waiver by our

failure and that that is the real point.

Now, Your Honours, the law with respect to

this question, there is very little on it, if I

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can put it that way. Of course, it is well

accepted in the bias field, the other principle of

natural justice, and well established that you can

waive that. There is a long line of authority and

Your Honours are familiar with it. But there is

little authority on this point except there is a

statement in the Divisional Court in England back

in 1971 that you cannot waive a breach such as this

in the circumstances. I refer Your Honours to

Mayes, and I hand copies of that case to
Your Honours. It is Mayes v Mayes, (1971) 1 WLR

679.

Now, Your Honours, what happened there was -

and you can pick this up from the first few lines

of the headnote:

At the hearing before the justices of the

wife's complaint of desertion, after the

wife's advocate had opened her case and the

wife had given evidence, the justices retired.

On their return they dismissed the complaint.

And, if one goes on, the complaint was made that

the wife's counsel had not been given an

opportunity to be heard before they had taken that

step. Now, it was an appeal to the Divisional

Court comprising Sir Jocelyn Simon and

Mr Justice Bagnall.

Now, Your Honours, if one goes over to

page 681, what the court said was that a court, a

tribunal of fact, was entitled to say, "Well, we've

heard enough". However, the court should not

permit that to happen until an opportunity is given

to the plaintiff's counsel, and that is obvious.

And that appears, Your Honours, at page 681,

half-way down. You will see a reference there to

Lord Justice Goddard, and you will see in the last

line, you can return to the jury and say:

'Have you heard enough of this case?' The

judge should even then be careful to say that

the plaintiff's counsel has still the right to

address them if he wishes to do so."

Now, the argument put in this appeal and why

the appeal should not have been allowed was that

the counsel or the advocate appearing for the wife

did not rise to his feet and demand to be heard and

Mr Justice Bagnall treats this at page 682, paragraph B:

I turn then to Mr Cockburn's second

submission that by not asserting the right

Mr Burns must be taken to have waived it. If

I had had to determine this question apart

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from authority, I should for my own part and
on principle have formed the view that the

submission was wrong. It seems to me that

where a court has to act, as all courts have,
in accordance with settled rules or rules of
natural justice and that practice or those

rules give a person a right to be heard, it

must be wrong for the court to proceed to a

decision without positively affording that

right and that it would be wrong for the court

to proceed relying upon the advocate in

question to assert his rights. It seems to

me, though this does not take the matter

further, that this must particularly be so in

a court where it is by no means uncommon for

both complainants and defendants to appear

without benefit of professional advocacy.	But
I am spared from the burden of resting this conclusion on my own view as to the proper

principle to adopt because it seems to me that

if Goddard LJ and his brethren in the Court of

Appeal in Alexander had been asked to answer the question based on Mr Cockburn's second submission which I have now to answer, they

could only have answered it in one way: by

rejecting it.

DAWSON J: But it must depend on the facts and it cannot be

a universal proposition that the rules of natural

justice cannot be waived because bias is one of the

aspects of the rules of natural justice and it can

be waived.

MR GILLARD:  Yes. Well, I do not deny that, Your Honour,

but the point I am making here is that is well

established but there is no well-established line

that we have been able to find that says that the

audi partem rule can necessarily be waived. Now,

that is a little bit different from saying, "Well,

I don't particularly want notice" or "I don't ask for notice" or being told "Well, you've got so far

to go" and you say, "Well, I don't wish to go any

further" and that type of thing - - -

DAWSON J: But you have to take the facts into consideration

and this case, which went for a considerable length

of time, where counsel were constantly reminded

that a time limit was being imposed, and they

allowed the case to go - or they would have allowed

the case to go beyond the time limit had not it

been imposed, and then did not complain, it is

natural that they did not complain because they

knew in advance that this was going to be the

consequence.

MR GILLARD: But, Your Honour, things occurred which - as

counsel often do and invariable do say, "Well, we

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expect to be able to finish by that day" but as
things turned out, near the end things went wrong,

time was taken up - they had to be stood down for a

while and then there was an interpreter problem and

then there was a tender of documents - until you

reach the point that 4.30 on that Friday it had not

been completed.

Now, we submit that in a court situation that

the duty is upon the court to ensure that natural

justice is accorded to the parties and as the

Full Court said - - -

TOOHEY J: But what does that mean? It does not mean that

they have an unbridled right to cross-examine days

on end or call evidence that is irrelevant or ask

questions - - -

MR GILLARD:  No, I respectfully agree with all that,

Your Honour.

TOOHEY J: Those sort of matters must be within the control

of the court to a large extent.

MR GILLARD: Yes, I do not deny any of that, Your Honour.

What I am saying is that if the matter has not been

completed and there is still further evidence to be

placed before the court then, we submit, the duty
is upon the court to ensure that the parties are

given the full opportunity to continue to the end,

subject - - -

DEANE J: But that is partly for the parties. I mean, here

it started on the basis that the judge said that

there could be nine days, was it not - - -?

MR GILLARD: Yes.

DEANE J:  - - - for completion of evidence and addresses.

He was assured that that would be ample time, that

the evidence would finish, what was it, on the next

Monday?

MR GILLARD: Yes.
DEANE J:	The parties were left to arrange their priorities.

It went from Monday to Tuesday, Tuesday to

Wednesday, and so on, and come Friday, without

objection from either side, the judge enforced not

what he had indicated but what he had indicated
with the concurrence and support of the clients

plus four days.

MR GILLARD: Yes, but - - -

DEANE J:  And the submission is that the absence of

complaint is not a critical factor in those

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circumstances, that the judge is to say, "No", even

though no complaint is made, "I don't think they

can properly present their case in the time they

agreed to plus", whatever portion of time, "two

days"?

MR GILLARD:  Yes. But, Your Honour, we say that it is

absolutely important and vital, subject to proper

control, that the parties be given the full

opportunity to place the matters before the court.

DEANE J: Well, looking at this case, on the first of those

nine days and reading what was said, I simply
cannot see that taking into account the

considerations of the administration of justice,

the parties were not given an over-generous

opportunity for putting their case.

MR GILLARD:  Yes, but, Your Honour, all we can say to that

is that events occurred in that second week which

meant that the matter was prolonged and that there

were periods when the matter was stood down on that

Wednesday and Thursday, other things intruded - - -

DEANE J: But, Mr Gillard, what do they take from the extra

four days? Half a day?

MR GILLARD: Well, they take up, Your Honour, some time.

DEANE J: Well then, let us change the four days to

three-and-a-half days.

MR GILLARD:  Yes. But, Your Honour, the fact was that, as we

say, it was accepted by the Full Court that all the

evidence had not been completed and they were not

prepared to say that the other evidence that could

have been placed before the court in the form of

the cross-examination of the wife's mother may not

have had some impact on the decision.

DEANE J: Well, perhaps the Full Court of the Family Court

needs to take a new look at limiting the length of

these types of proceedings.

MR GILLARD:  Yes. Well, Your Honour, I do not dispute that

there are ways and means of achieving that and the

profession seeks to comply with timetables but

things do happen in the course of trials that mean

it just goes further than anticipated and, rest

assured, counsel usually do their best to not

antagonize the judge for obvious reasons. What

happened here was, Your Honours, that time did run

out and we say the point in time when we were a

little bit short.

TOOHEY J: But on your argument,. had the additional time

been afforded and then counsel decided that some

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further witness was material or some person who had

given evidence should be recalled for further

cross-examination, that, again, the judge should

accede to that otherwise he is denying natural

justice.

MR GILLARD:  No, with respect, Your Honour, the question of

recalling witnesses and the like is a matter for

the judge. He would have to be persuaded that it

was in the interest of justice.

TOOHEY J: All right, well let us discard that illustration

and assume that counsel decided that there was

another witness.	On that basis, the judge, as it
were, loses control of the proceedings.	He is
entirely in the hands of counsel.

MR GILLARD: Well, he does and he does not, Your Honour. In

the end he is the one who does control it and he

can indicate by appropriate observation whether he

is being assisted in any way by the evidence or the

cross-examination and, indeed, many a time we have

been told that by experienced trial judges that,

"I'm not being assisted, Mr Gillard, get on with
something else.", not only in trials but in appeal

courts. But the thing is that I am· not saying

that, what I am saying is we did reach a point at

4.30 on that day when the evidence had not been

completed, we were cross-examining the wife, and

the Full Court has accepted that at that point in

time we had not completed the case.

Now, we say one of the rationales of the

natural justice principle is that the court should

be apprised of all relevant material to enable it

to make a proper decision and there is some

authority for that and, indeed, if one goes back

through history, if one goes back even to the

ancient Greeks, that was the rationale of the

principle so far as they were concerned; not so

much a question of fair play, a question of

ensuring everything that was relevant was before

the court.

Now, Your Honours, we did not complain on that

Friday and then His Honour adjourned it for a

period of five weeks to enable written submissions to be submitted to the court and spoken to, and we

did not complain then, but we submit, Your Honour,

that the court had quite clearly indicated at the

time that it was not going to hear any more

evidence.

Now, Your Honours, could I just go back to

what Sir Jocelyn Simon said in - - -

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DAWSON J: There are other ways you could have got the

evidence in if you had wanted to. For example,

there was no reason why you could not have applied

to put it on affidavit, is there?

MR GILLARD: Well, no, we were in the process of

cross-examining the wife, Your Honour.

TOOHEY J:  No, but the evidence of the translators. Was

that not another ground of complaint?

MR GILLARD:  Yes, there were some problems with the

translators too, Your Honour.

DAWSON J:  It was only to complete that cross-examination

that you sought to - - -

MR GILLARD:  Well, in the end that is what the Full Court

said was the most significant point and that is

correct, that - - -

DAWSON J: Well, apart from that, if you had wanted to call

any other evidence, you could put that on

affidavit.

MR GILLARD:  Yes, I accept that, Your Honour. There were

three bases or three pieces - - -

DAWSON J:  And you had been cross-examining her for how

long, that particular witness?

MR GILLARD:  Two hours on that day, Your Honour. There were

problems with interpreters and the like, as I

understand it. But could I just go back to what

Sir Jocelyn Simon said in this case. At the bottom

of page 683, at paragraph G - having said that the

principle about calling a halt to proceedings by

the tribunal was subject to the rule that you

should give the opportunity to be heard, he then

addresses this question:

The second question is: assuming that

the advocate had the right to address the

court before they came to a final conclusion,
should the initiative have come from the court
or should the advocate have claimed his right?

Mr Cockburn relied on the words I have just cited from Hobbs, "It is obvious and

elementary that he had such a right, if he

thought it worthwhile to claim it." But the facts of the case before him and was

certainly not addressing his mind to any
general principle, still less to the specific

point before us today. In my view, the matter is disposed of ..... Moreover, such a conclusion

is consonant with general convenience; it is

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more conducive to a proper forensic atmosphere

that the invitation should come from the
court - that the court should say, "We do not

think there is anything in this case but do

you wish to address us before we come to a

conclusion?"

Well now, Your Honours, he then states obiter, at page 684, the matter we are coming to and which we

put to this Court:

The conclusion makes the third question

irrelevant, namely, whether, assuming that

there is a right to address the court, it can

be waived. But I am inclined to think that

the general principle is that a rule of

natural justice which goes to the very basis

of judicature (as I think this does) cannot be

waived. You cannot by waiver convert a

nullity into a validity.

And there was an order for a rehearing.

Now, the textbook writers, Your Honours - and

I refer Your Honours to what is said in de Smith,

4th Edition.	I hand copies of that to
Your Honours.

DEANE J: But does not one have to be a little bit more

precise and identify what has been waived? I mean,

the starting point here was assent to a timetable.

Now, if true assent to that timetable remained

throughout the whole of the proceedings, one never
reaches the stage of waiver in that both sides have

assented to a timetable and controlling the

evidence they will present. Now, in this case is

not what is involved the question whether what was

waived was the withdrawal of assent?

MR GILLARD:  No, Your Honour.

DEANE J: Because that is what His Honour was left with, the

impression that neither side was cavilling about

adherence to the timetable to which they had

agreed.

MR GILLARD: Well, Your Honour, any agreement to that

timetable must be subject to an implied term that

conditions may change. And that is the point,
conditions did change to the point where the

parties could not satisfy that timetable.

TOOHEY J: But no one then sought to vary the timetable?

MR GILLARD: Well, Your Honour, it is the question of doing

your best, to complete a case and not antagonize

the judges or the judge and the point was

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unfortunately reached at 4.30 on that Friday that

there was still further time to go and we would
respectfully submit that in a superior court the
duties rest upon the judge to ensure, subject to

the controls that Your Honours put to me, to ensure

that the parties are given a full opportunity to

properly present their case.

Now, we submit that this defect is so fundamental that it goes to the very jurisdiction

and -

DEANE J: What if the counsel on the other side came along

and said, "I gave up half an hour of

cross-examination of X and an hour's

cross-examination of Y because of this timetable to

which both sides agreed and the constraints it

placed upon us." Would that be a good ground of

appeal against the decision?

MR GILLARD:  No, I do not think it would, Your Honour.

DEANE J: Well then, if that is so why was it not incumbent

upon counsel for your client to say, "I'm giving up
some questions because of the constraints of the

timetable to which I've agreed but I'm now

withdrawing my agreement to that timetable."?

MR GILLARD: It was not done, Your Honour, and, as I say,

all I can say is that conditions changed to the

point where we ran out of time on the Friday.

DEANE J:  But what you are really saying is it was not done

by a good counsel for good reasons.

MR GILLARD:  Maybe, maybe not, Your Honour.

DEANE J:  Yes. I am putting you in a difficult position. I

withdraw that comment, Mr Gillard.

MR GILLARD: Yes. Well, Your Honour, as I say, I do not

dispute the bias rule. There is no doubt about that. There is a ton of authority and the	textbooks all recognize it. But when you go to
what I have just handed to you from de Smith which
was the 4th Edition of 1980, it talks about the
"Effects of Breach of the Rule" and that is "The
Right to a Hearing", as Your Honours will see from
the top of that page.

Depending on the circumstances of the case, a

decision reached or proceedings conducted in

breach of the audi alteram partem rule will be

reviewable by means -

and they refer to the various means.

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DAWSON J: But all this has an unreality when the nature of

the hearing has been agreed upon.

MR GILLARD: Well, except, with respect, Your Honour,

whatever we say as counsel - and if I might say so
with respect - we do our best - of course we do -

and when judges ask us to comply, of course we do.

We do not want to antagonize the judges or annoy

them for obvious reasons.

TOOHEY J:  You must have a pretty fearsome lot of judges

in your courts, Mr Gillard. I have never found that

it deterred counsel in the slightest.

MR GILLARD: Well, we say as respectfully as we can that we

do not want to be too annoying. But any agreement

to a timetable, and let us be frank about it, we

are all notoriously bad judges of that, must be

subject to changed circumstances and that is what

happened here and we were placed in a situation

where the case was stood down for a while; there

were translator problems; they had to get an

interpreter in; there were tendering of documents

that took an extra hour and all that type of thing.

Now, we say that we had reached the point on that

Friday at 4.30 and we had run out of time.

Now, we submit that in a superior court it is

a matter for the judge and the judge should not, in

our submission, cut counsel short if there is

relevant admissible evidence to be placed before

the court.

DAWSON J:  I am not sure about that. If the judge felt he

was going to be assisted no further by this line of

investigation -

MR GILLARD: Well, he could say that.

DAWSON J: Well, he does not have to say so if no one has

challenged the agreed times.

MR GILLARD: But, Your Honour, one would expect a trial

judge to tell you that and that is one way

experienced trial judges - - -

DAWSON J:  Why? What was the occasion for him doing so?

MR GILLARD:  You can be told, "You're wasting the court's

time. Let's get on to something else." Now, the

fact is -

DAWSON J:	No, no, at the time when the time limit came down, when the red light shone, if the judge had
felt - in a jurisdiction where that happens, if the
judges feel they are going to be assisted by

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further argument, they allow it, but if not, the

red light has its effect.

MR GILLARD:	Yes. Well, I do not dispute that, Your Honour, and I do not dispute that a judge has control and
he can ensure that irrelevant material is kept out and he can ensure that we do not waste time but
that is not what happened. At 4.30 the judge said,
"You've got three more questions" and that was it. this evidence" or, "Please, Mr Hodgson, tell me: what do you want to call - what do you want to ask
this woman about? What topics of evidence. I
won't be assisted by that and, quite frankly,
haven't you finished?"  Now, he never gave him that
option and he just stopped him short.

TOOHEY J: Well, you say "stopped him short" but really what he was saying was, "Consistent with the arrangement

that we've made and has been in force for some

time, time is up." Now, if no one then is heard to

complain that the arrangement which has made is

being adhered to, it seems to me that you do not

even get to a waiver point.

MR GILLARD:  Yes. Well, Your Honour, all I can say is that

it was apparent that the point had not been reached

when stumps were drawn as to the complete evidence.

DAWSON J: Well, I think we appreciate the point.

DEANE J: And, of course, when the three questions came up,

counsel said, "Three; I was going to ask for three

questions, Your Honour."

MR GILLARD:	Yes.
DEANE J:	"I may have to think very carefully about them",

though it does not read in context -

MR GILLARD:  No, I do not know that one could literally take

that as an indication that there were only going to
be three questions.	I think he was going along

with what the judge was saying.

DEANE J:  I think that is a fair enough answer, Mr Gillard,

yes.

MR GILLARD: Well, Your Honours, could I just go then to

page 242 in de Smith, the second paragraph there,

talking about whether it is null and void:

There remain unsolved problems,

attributable either to the fact that a void

act is not necessarily null and void for all

purposes, or alternatively to nagging doubts

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whether breach of natural justice really does

render an order or determination void.

And then if one goes further down, you will see the

author says:

Three other problems can be singled out.

First, can breach of the rule ever be waived?

As we have already indicated, failure or

neglect to take advantage of an opportunity to

be heard or to insist on one's rights at a

hearing is not a waiver of breach of the rule;
the question of such waiver arises only if
adequate notice and a fair opportunity to be
heard are not afforded. In a few cases the
courts have held that failure to give due

notice is immaterial if in fact the person

affected has a proper opportunity to be heard.

These suggest that minor aspects of the rule

may be impliedly waived.

And there is a reference down there to

Sir Jocelyn Simon's dictum, at footnote 77, in

Mayes v Mayes.

Now, as we say, Sir William Wade, in his book

seems to accept that you can waive the audi partem

rule. He quotes the reference to Lord Denning in a

case where he seemed to think that you could without

referring to any authority. So - - -

TOOHEY J:  But you must be able to waive it in some

respects. I mean, if a person is denied a hearing

altogether then that is one thing, if a person is

denied the opportunity to present some aspect of

evidence, then you would need to look at the facts

of the case and freely conclude one way or the

other.

MR GILLARD:  Yes. Well, we would be saying that the true

rule is that if there is such a fundamental breach

that goes to the very jurisdiction of the

proceedings and affects the decision in the sense

of the court being deprived of some of the

evidence, that in those circumstances - - -

DAWSON J:  I do not want to prolong this but you are not

complaining about - you only complain about a
waiving of the breach of the audi partem rule.

There is no breach here, that is the point.

MR GILLARD: Well, we would submit that there is and that is

how we put the matter, that there was a breach by

the fact that we were denied the opportunity of

finally presenting all the evidence and that is how

we put it.

Collins 15 12/10/90

DEANE J: Mr Gillard, if that is a convenient time, the

Court will adjourn now until 2 o'clock.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

DEANE J: Yes, Mr Gillard?

MR GILLARD:  Your Honours, if I could perhaps just finalize

the argument in relation to the audi point, that we

just wish to emphasize that although there was a

time limit it was a time limit that was somewhat

imposed by the court in somewhat forceful language

and, secondly, that conditions did change near the
end of that second week.

Your Honours, so far as the cost matter is

concerned, if I could briefly just put this to

Your Honours. A timetable was set for submissions

on costs. The husband's submission should have

been in by 9 June. Unfortunately, they were not,

they were filed on 16 June but not brought to the

trial judge's attention, and he handed down

judgment on the following Monday and, accordingly,

the judge did not take into account those

submissions and he ordered the husband to pay the

wife's costs.

TOOHEY J: Mr Gillard, I do not understand why an

application was not made immediately to the judge

to reconsider the matter.

MR GILLARD:  Yes. Well, I have asked those questions too,

Your Honour. As I understand it, there was a

notice of appeal already in with respect to the

original judgment and, secondly, that rightly or

wrongly a view was taken that he was functus

officio. Now, I do not -

TOOHEY J:	It is hard to know that until you have made your approach.
MR GILLARD:	Made your approach, yes. Well, Your Honour, I do not wish to say any more with respect to that
point.

Now, Your Honours, could I take Your Honours

to the third point and this relates to the question

of the property application and how a trial judge

should use what is called the 75(2) factors. Could

Collins 16 12/10/90

I take Your Honours to section 79 of the Act.

Your Honours, section 79(1) sets out the courts jurisdiction:

In proceedings with respect to the property of

the parties to a marriage or either of them,

the court may make such order as it thinks fit
altering the interests of the parties in the
property, including an order for a

settlement -

et cetera. And Your Honours will see that the

words are "as it considers appropriate altering the

interests of the parties", so it is a wide

discretion.

If one then goes over to section 79(2),

Your Honours will see what the requirements are for

an order to be made:

The court shall not make an order under this

section unless it is satisfied that, in all

the circumstances, it is just and equitable to

make the order.

So, Your Honours will see there is a wide

discretion given but the court shall not make an
order unless it is satisfied that it is just and

equitable.

Now, then section 79(4) dictates or indicates

what the court should take into account as relevant

matters:

In considering what order (if any) should be

made under this section in proceedings with

respect to any property of the parties to a marriage or either of them, the court shall

take into account -

and then follows what is known as the contribution

factors:

(a) the financial contribution made directly
or	indirectly .....

(b) the contribution (other than a financial

contribution) made directly or

indirectly ...•. to the acquisition,

conservation or improvement of any of the

property .....

(c) the contribution made by a party to the

marriage to the welfare of the family -

including -

the capacity of homemaker or parent.

Collins 17 12/10/90

Now, what happens in practice, Your Honours,

is this: in an application for property, the court

determines what the property is of both parties; it
determines the value of those properties or does

its best to value those properties; and it then

considers the (a), (b) and (c) factors, the

contribution facts. And then having reached that

point, the court will pause and end up with a
certain result and then the court will go on to

consider the other factors and you will see, for example, (d), (e), (f) and (g). Now, the one we are concerned with is (e):

the matters referred to in sub-section 75(2)

so far as they are relevant -

now, you immediately go back to section 75 and

section 75 follows on from section 74, and perhaps

I should say this to Your Honours: section 72 to

section 75 are concerned with spousal maintenance

and section 72 gives the right of a spouse to

maintenance, and that is either spouse and that

person who is seeking maintenance must establish

that there is a need and that that need cannot be

met by that person. Then you see section 74:

the court may make such order as it thinks

proper for the provision of maintenance -

and then section 75(1) says:

In exercising jurisdiction under section 74,

the court shall take into account only the

matters referred to in sub-section (2).

So, in other words, you have got an application for

spousal maintenance. The court may make such

order as it thinks appropriate and takes into

account section 75(2) factors.

Now, it then sets out various matters like the

age and state of health of the parties, the income,

property and financial resources, et cetera, and

whether a party has support of a child or has to

look after a child, right through to (o).

Now, Your Honours, what this point raises in

this case and what our special leave point is, is

when should section 75(2) factors be applied in a

section 79 application? And perhaps to make that

point clear, it might be appropriate if I take

Your Honours to what the trial judge did and

demonstrate the approach that he took.

TOOHEY J: Well, the trial judge, as I understand it, took

the view that the contribution of the parties_ were

Collins 18 12/10/90

more or less reflected in their proprietary

interests in the various assets that they held.

MR GILLARD: Well, he got very close to that, that is right,

and he got to $1. 6 million. And then he said, "I

will look at the 75(2) factors" and he then

identified three 75(2) factors and he then came up

and said there should be a further adjustment of $1

million for the wife. That appears at page 45 in

the application book.

Now, at page 45 of the application book Your Honours will see that at the top of that page

His Honour says:

The upshot is that the wife will receive

by way of contribution -

and he then lists what it is and it comes to about

$1.6 million. He then says:

Section 75(2) Factors:

In determining whether a further

adjustment is required by reasons of

section 75(2) factors, I have taken the

following paragraphs of that sub-section into

account as being of particular relevance in

this case.

And the first one he refers to is section 75(2)(b).

Section 75(2)(b) says:

the income, property and financial resources

of each of the parties and the physical and

mental capacity of each of them for

appropriate gainful employment.

Now, his first point is that the husband has in his

possession resources in excess of $12 million. He

then goes on to say that so far as the $1.6 million

that the wife was entitled to under the

contribution factors, there may be some doubts

about whether she can get her hands on a certain

portion of it. And if Your Honours go down to the

bottom of page 47, after considering the

$1.6 million she has, he then says:

The result is that the wife will have assets

readily available to her of approximately

$1,237,000.

And he then asserts that:

The wife will have a limited capacity to

support herself.	The husband has no need for
any employment.

Collins 19 12/10/90

So, that is the section 75(2)(b) factor. He says it

is relevant because the husband has more than she

has and when you analyse it my 1.6 gets down to 1.2

and the wife has a limited capacity to earn; the

husband does not need to be employed.

Then the next factor is the section 75(2)(c)

factor and section 75(2)(c) is in these terms:

whether either party has the care or control

of a child of the marriage who has not
attained the age of 18 years.

Now, the wife had the custody of the child. The child was nine-and-a-half to 10 at that point in

time. There was an order made for maintenance for

that child, a fairly substantial order, but

His Honour then dealt with it in this way at

page 48:

The wife will have the care and control of Andrew for a considerable period of time. The husband is not likely to show much interest in him having regard to his past conduct. The

husband on the other hand has no such

responsibilities.

So, he asserts that, and then (g), which is:

where the parties have separated or the

marriage has been dissolved, a standard of

living that in all the circumstances is

reasonable -

so the third thing is a standard of living.

His Honour makes this point:

The parties during the marriage enjoyed a

substantial standard of living. Since

separation that of the wife has diminished

sharply but the husband has continued in the

former lifestyle as witnessed by the residence

in Hunters Hill, the acquisition of luxury

cars and vessels etc.

So, His Honour has identified three factors

out of section 75(2). He states that they are

relevant and he then ends up by saying this:

Taking those matters into account I have come to the conclusion that a further

adjustment should be made in favour of the

wife of $1,000,000.

Now, we submit that one, in applying section 75(2)

in a property application, should first of all

Collins 20 12/10/90

consider whether or not those factors should be

taken into account in this property application.

TOOHEY J:  I am sorry, do you mean as a matter of law or on

the facts of the case? I mean, the section

dictates that you have regard to them.

MR GILLARD:  Yes, I am sorry, yes. That one should ask that

first question whether, on the facts and

circumstances of this case, should any of those

factors be taken into account on an application for

property, and it is not just a question of saying,

"I look at section 75(2) and the wife has less than

the husband, and they lived a good life and,

secondly, the wife has got to look after the child

and therefore they must apply". Now, we submit

that the first question that has to be asked,

whether you apply these or not, is whether there is

some need or requirement that has to be satisfied

by an order for property.

TOOHEY J:  Why do you say that? Where does the section

speak of need?

MR GILLARD: Well, Your Honour, we say that comes about

because of the reference back to section 75(2),

that that is concerned with the maintenance aspect

under the Family Law Act and that the - - -

TOOHEY J: But that is not the way it works, is it? I do

not pretend to know much about this Act but I

thought that what 79(4) did was, instead of

repeating all the factors that appear in the

maintenance section - I think it is 72 - simply

incorporated them by reference. So, the court

looks at those matters in deciding what is an

adequate property settlement.

MR GILLARD: Well, Your Honour, the answer to what Your

Honour puts, in our submission, lies in what is

meant by the phrase "so far·as they are relevant".

Now, we submit that you have got to consider

whether any of the section 75(2) factors are

relevant to this particular property claim and it

is an over-simplification to merely say, "Well, the

husband does have more money than the wife", and

that probably would happen in most cases, or a lot

of cases, "and therefore there should be an

adjustment."

TOOHEY J: No, I do not think that is the way it was done

though, was it? I think the judge was saying,

"Well, the parties made various contributions which

are reflected in their proprietary interests.

Now, I am required to see whether what the wife has

in all the circumstances is a standard of living

that is reasonable" and that has regard, no doubt,

Collins 21 12/10/90

to the way in which they lived before and he awards
the million dollars to give effect to that and

other considerations.

MR GILLARD:  Yes, and we say that that is an over-simplistic

and wrong approach. Your Honours must bear in mind

that there is a maintenance path, 72 to 75, and if

it is necessary for the husband to pay maintenance

for reasons such as standard of living and the

like, then there is an onus, of course, on the

spouse claiming to show that that person cannot go

and get employment to meet that need.

Now, we have here, with section 79 where you

are talking about property which you do not vary,

that in the circumstances of this case why should

there be a component in the property for the 75(2)

factors. Now, we say that the first step must be

that the court must consider whether there is some

need or requirement which should be satisfied as

being just and equitable in a property order.

TOOHEY J: Yes, but, I mean, this is the way that the judge

went about it and maybe that is open to criticism

but he could, as the Full Court suggested, have.

applied section 85, set aside the $12 million

disposition, brought that back into account and

probably end up with the same result anyhow.

MR GILLARD:  Yes. No, our complaint, Your Honour, is this,

that we are saying that what the trial judge did

and what the Full Court said was right is

incorrect, it is wrong, and we say that, indeed,

the earlier cases in the Full Family Court

proceeded on an assumption that when you reach this
point you were looking for some need or requirement basis. Usually there was a child involved and that

it was appropriate that because there was a child

involved and the wife had the custody of the child,
that she should get a little bit more property to
enable her to, say, buy a house or something like that. Now, we say that one should not - - -

DAWSON J: When you look at standard of living, I suppose

you could say there is a need to maintain a

standard of living but you cannot really talk about

it in the circumstances of this case as a need or

requirement.

MR GILLARD:	But, Your Honour, we submit that when you are looking at property something must trigger off the
application of 75(2) just other than that literally
they apply. And that is what he did here, he said
DAWSON J:	Why?

Collins 22 12/10/90

MR GILLARD: Well, because otherwise, Your Honour, it cannot

satisfy, in our submission, the test of what is

just and equitable. In the end result, we say that

there are two aspects that he must consider. He

must consider, "Why should I apply these in this

case?" and secondly, "Is it just and equitable that

I should apply them in this case?"

DAWSON J: Yes.

TOOHEY J:  I am just having difficulty with that submission.

I may misunderstand section 75(2) but it looks to

me as a sort of check list - - -

MR GILLARD: It is.

TOOHEY J:  - - - that the judge goes through. Now, in

respect of some of the paragraphs you may say,

"Well, that is quite irrelevant. The next

paragraph: that doesn't cause me to make any

alteration to the amount that I have in mind.	Now,
I come to the question of standard of living.

Having regard to the amount that's available, the

way in which the parties lived, I propose to add a

further sum of X." What is wrong with that?

MR GILLARD:  Your Honour, we submit that he should, before

he comes to that point, come to the view that it is

just and equitable to allow a sum for property,

whether it be a piece of property or a sum of money

as property.

DAWSON J: That is putting the cart before the horse because the very factors are listed in 75(2) which may make

it just and equitable.

MR GILLARD:  Yes, but the thing, Your Honour, is this, that

we say that when you look at the approach in this

case it is all very simple, it is just that they

literally apply and then he chooses a figure which

is just about unexaminable. I mean, we can assert

it is too much and somebody might say it is not

enough, and we reach the point where it is hard to

measure the figure against what he is applying.

TOOHEY J:  I agree, and the moment you say that, it seems to

me, you rob the case of any character of a special

leave matter.

MR GILLARD:  Your Honour, our special leave point is that we

say that that approach is wrong and that the court

should pose some questions ahead of applying the

75(2): Why are they there? What is their object?

Why are they there in a property concept? Now,

they were not there in the old Act. Mind you, the

old Act just said you make an order which is just

Collins 23 12/10/90

and equitable. It did not specify anything. This

specifies. This has been there since day one.

DAWSON J: They are there in order that the judge will not

miss something in determining what is just and

equitable.

MR GILLARD:  Yes, and they say you should take into account

those factors so far as they are relevant.

DAWSON J: If they are relevant, yes.

MR GILLARD:	Now, relevant to what? Relevant, literally?
DAWSON J:	To justice and equity.

MR GILLARD:  Yes. I accept that, Your Honour. Relevant to

this property claim so far as is just and

equitable. Now, it is just not a question of

saying, as the trial judge did in our respectful

submission, "She's got less than him; she's going

to look after the boy for the next six years and,

secondly, they had a good standard of living;

therefore, $1 million."

TOOHEY J:	Is it the amount that you are complaining about?
MR GILLARD:	We are complaining about both, Your Honour.
TOOHEY J:	I imagine you might be but
MR GILLARD:	Yes, we are definitely complaining about the

million.

TOOHEY J:  But the· Full Court thought that that was not an

amount which should be interfered with.

MR GILLARD:  No, I accept that that is so and we have got to

come back to the approach. Is the approach the

correct approach? And we say that is too

simplistic, you have got to ask yourself a question

ahead. the years that you do the (a), (b) and (c) Now, as I say, it has been accepted over	approach; you reach a point and then the earlier
cases then said, "Well, is there some maintenance or need requirement?"

DAWSON J:  Why do you say "maintenance"?

MR GILLARD: That is what they said, Your Honour, because

they had to determine why 75(2) was there. Why is

it there? And the object is to introduce the

maintenance factors.	Now, the Full Court said that
a number of times.	Though in the course of

argument before the Full Court in this case they

said perhaps that was unnecessary because 75(2)

Collins 24 12/10/90

goes a little bit wider than maintenance and need

factors. There are other factors in there.

Now, what they have now done is just said to

the judges, "Well, look, if they literally apply
here then you may award a sum to satisfy that
requirement. Don't worry about going via the

maintenance provision, 72 to 75." Now, we say

that those provisions must be taken into account so
far as they are relevant to a property claim. And

why are they relevant to the property claim? Why,

in these circumstances, should you get some more

money by way of property? Why should not you go

and get your maintenance when you - - -?

TOOHEY J:	You mean if the judge had made an order that in addition to the property settlement the husband
pays $75,000 a year by way of maintenance, that
would have been all right?
MR GILLARD:	Yes, because that is subject to variation and

that is subject to remarriage, it is subject to

getting jobs, it is subject to a variety of things.

Once you make a property - - -

DAWSON J: Well, is your point really this is maintenance

dressed up in the guise of a property settlement?

MR GILLARD:  Yes, and that is why you have got to ask

yourself why do you apply the 75(2) factors.

Nobody seems to have ever grappled with the phrase

"so far as they are relevant" except now, of

course, they are saying if they literally apply.

DEANE J: Except if you look at the 75(2) factors, they

cover everything really.

MR GILLARD:  They do.

DEANE J: Which means it is a convenient list of headings.

MR GILLARD:	Yes, to consider
DEANE J: For property as well as maintenance.
MR GILLARD:	It is when you look at the property aspect.

Now, it has been accepted that you do not award

maintenance under the guise of property although it

cannot be disputed that you may have sufficient

property to maintain yourself anyway and there will

be an overlap. Now, that cannot be denied.

DAWSON J:	Why can you not say, "This is not an appropriate case for a maintenance order. This is an
appropriate case, taking into account all these
factors, for a division of property and no
maintenance order? Why can you not do that?

Collins 25 12/10/90

MR GILLARD:  Yes, but the thing is that -

DAWSON J: "Whereas, if there was not that property

available, I would have to make a maintenance

order".

MR GILLARD:  Yes, that is quite correct, in this sense, that

the earlier courts did say that you might reach a

point, because of the property order on

contribution, there is no necessity to go to

maintenance or, indeed, add anything for the

maintenance factor, the 75(2) factor. But the

point is we say there has got to be some question

asked and considered by the court before it applies

the 75(2) factors and we say that that question

must be, "Well, is there some need or requirement

that is just and equitable in this case that should

be answered by a piece of property?" The classic

examples in the past have been where you have got a

wife with a child; she has not got enough under

contribution to provide a house but it is just and

equitable in those circumstances, she ought to have

some more property to buy a house.	Now, that is a
classic example.

It might even be said in this case that

because the wife has to look after the child for,

say, another six years before he really becomes

self-sufficient, until he turns 16, she loses her

independence so therefore it is appropriate, in

these circumstances, to allow a small sum of
property to cover the fact that she has got to

support the child; not the financial side of it but

the fact that she has got to support the child by

being there.

TOOHEY J: Mr Gillard,. could I just put this to you: 79(4)

speaks primarily of the financial contribution of

the parties.

MR GILLARD:  Yes, well, all types.

TOOHEY J: Primarily, at least in a listing sense. I do not

mean necessarily in order of importance. But it

then refers to the matters contained in

section 75(2). Section 75(2) has a whole list of

matters, one of which is, in paragraph (b):

the income, property and financial resources

of each of the parties -

Why does that not entitle the trial judge to say,

"Well, there is $12 million which the husband

disposed of so that the wife couldn't get her hands

on it" and that money is available to him? There

is no - - -

Collins 26 12/10/90

MR GILLARD: Yes, there was no dispute on that, Your Honour.

TOOHEY J: No. "Well, that is a sum which if it was still

within his" - - -

MR GILLARD: Grasp.

TOOHEY J: Well, it is within his grasp. It still belonged

to him legally-" would have affected the order

that we have made under 79(4) before we even get to

referring back to 75(2)."

MR GILLARD:	No, with respect, it was always accepted, for the purpose of the trial, it was to be treated as
his property. In other words, the fact that it was
in the new wife's hands was irrelevant. So, it was always treated - - -

TOOHEY J: Well then, your complaint is that from a sum of

$12 million the wife ought not to have been

awarded - or there was no basis upon which she

could receive $1 million.

MR GILLARD: That is so. In order words, having got to

$1.6 million, he then had to decide was he going to

go down a periodic maintenance path or was he going to go - the other side said, "No, we want you to go

down the 75(2) factor path." Now, the point that I

am making here is that that is a very simplistic

approach to say, "Well, literally, he's got more

than she has" - it was a five-year marriage - "he's

got more than she has, therefore". I mean, I could

give you examples:  let us take an example of the

secretary who marries a millionaire and within six

months it is all over. There is no child. She can

go back to work. But he has got squillions; she

has got nothing. Now, surely, it would not be,

"Well, they lived very well for six months and he

has got more than she has therefore"? Now, it must

be bound up with what is just and equitable.

TOOHEY J:  Why not?

MR GILLARD:  It must be bound up with something.

TOOHEY J: But it may be just and equitable in those

circumstances and it is a question of whether it

was just and equitable here. The trial judge said

it was; the Full Court thought it was. What is the

special leave point involved?

MR GILLARD: Well, the special leave point, Your Honour, is

that at no stage did he pose the question before he

started on this exercise, "Should we apply 75(2)

factors in this property claim?" And we say the

trigger is, "Show some need or requirement that

should be satisfied by a property claim and it is

Collins 27 12/10/90

property. 11 just and equitable that you should get a piece of

Now, as I say, the cases up to 1985 seem to

suggest that was a good way of going and then all

of a sudden we now have this situation and it is

just about unexaminable.	You cannot seize on
anything.	I mean, there is $1 million there and I

suppose you might say, "Well, if you allowed

$30,000 for looking after the boy for an extra few

years, how do you test how much you give for the

difference in their assets?" And yet it was a

five-year marriage. Well, six, I am sorry, five or

six. And then, they lived a good standard of

living. You just cannot test it. It is very hard

standing up before a Full Court and saying, "It's

too much" and being told "Perhaps it's not enough."

I suppose I could say like you used to do in the

injury/damages claims, "You will get $150,000 a

year gross out of that if you invest it at

15 per cent and perhaps I test it that way.	A net
$75,000 to cover these three matters."

Now, we say the court must, otherwise you will

be very much at the mercy of the trial judge as to

how much he thinks should be given for 75(2)

factors and we say that there has got to be a first

question and we say the first question is, "Well,

is there a need of some sort that should be

satisfied by a property order and is it just and

equitable that that need should be satisfied in

this way?" And if that be so, at least you can

seize on to something and at least, perhaps, you

can examine it.

Now, as I say, that seemed to be the attitude

of the court, and if I could very quickly just

refer Your Honour to a few early cases, but the

modern approach is definitely the one that is in

this case.

TOOHEY J: Well then, let us not falsify it by earlier

decisions.	I mean, it is either right or it is
wrong.

MR GILLARD:  Yes, with respect, that is so. I mean, we did

refer the Full Court to these earlier decisions and

they seemed to have ignored them although, as I

say, Mr Justice Fogarty said, "Well, perhaps we are

wrong in confining it back in those days to a need

maintenance component" because that it what they
were called, "need maintenance factors", but we

submit that you have got to look at the object of

the section. Why is in the section 79? It is in

there, in our submission, to take into account

matters that are more relevant to maintenance and

therefore it is appropriate that you should have a

Collins 28 12/10/90

little bit more property over and above your

contribution to satisfy that.

Now, Your Honours, that is the point we make.

The trial judge never posed those questions.	The
Full Court said he does not have to.	As long as

they are literally relevant, then good experienced

trial judges can handle it and they can make their

own determination. Now, we submit that that is the

wrong approach and that the point of law is what is

the proper construction of section 79(4)(e) in its

application in a property case and that is the

point we wish to argue, Your Honours.

DEANE J:  The Court need not trouble you, Mr Bennett.

The Court considers that the correctness of the actual decision of the Full Court of the Family

Court that the appeal to it be dismissed is not

attended by sufficient doubt to warrant the grant
of special leave to appeal to this Court.

Accordingly, the application for special leave to

appeal is refused.

MR GILLARD: If the Court pleases.

MR BENNETT:	I seek an order for costs, Your Honour.
MR GILLARD:	I cannot object to that, Your Honour.
DEANE J:	The application is refused with costs.

AT 2.35 PM THE MATTER WAS ADJOURNED SINE DIE

Collins 29 12/10/90