Costar v Rubie

[1991] HCATrans 43

--"itr -!J,"~RSTKillA,iir -~»~~ ... ,

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll3 of 1990

B e t w e e n -

MARYANNE COSTAR

Applicant

and

KEVIN ARTHUR RUBIE

First Respondent

and

MARGARET ROSE RUBIE

Second Respondent

Application for special

leave to appeal

MASON CJ
DEANE J

Costar 1 15/2/91

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 1991, AT 10.49 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:  May it please the Court, I appear

with my learned friend, MR P.L.G. BRERETON, for the

applicant. (instructed by Westgarth Middletons)

MR T.D.F. HUGHES:  May it please the Court, I appear for the

first respondent. (instructed by Westgarth

Middletons)

MR B.J. TAMBERLIN, QC:  May it please the Court, I appear

with my learned friend, MR R.C.P. MATER, for the

second respondent. (instructed by McDonnell Milne

Fowler)

MR HUGHES:  May I hand up to Your Honours four copies of an

outline of our argument to which are annexed the

cases referred to in the outline?

MASON CJ: Yes, thank you, Mr Hughes.

MR HUGHES:  Your Honours, the principal question that arises

proprietary or contractual rights of persons not parties to the marriage.

in this case concerns the jurisdiction of the the

The situation was that there was a family

company in which the shares at the relevant times

were held as to voting shares equally by husband

and wife and, as to non-voting shares, by the

children of the marriage. Eventually, the way the

company shareholding finished up was that the

husband and wife each had 40 per cent of the equity

in the company because two of the three children

transferred their non-voting shares to their

parents in equal shares. That left my client, the
present applicant, as the holder of a 20 per cent

equity in the company but a non-voting equity

which, however, entitled her to share, pro rata, in

the assets of the company on a winding up.

Now, we have set out what we call the effect

of the orders made by the first Full Court, that

the decision of the primary judge. The decision of	is, the Full Court, Your Honours, which reversed
the primary judge was to order that the husband buy
out from the wife her equity in the company. The
substantial effect of the orders made by the first
Full Court reversed that decision and the was first of all to require the husband to exercise
his fiduciary powers as a director of the family
company to procure the sale of the whole of the
company's assets.

The wife had, at the time when the first

Full Court made its orders, actually resigned as a

director. She resigned after the primary judge had

Costar 2 15/2/91

given his judgment and the daughter,	my client,
the applicant, replaced her on the board.	Then
orders 2(b) and 2(c), I do not want to take

Your Honours to them in the application book, I

tnink it is sufficient to summarize them, requires the husband, in the events which have happened, to surrender his fiduciary powers as a director in

relation to the sale of those assets to an agent or

attorney to be appointed in default of agreement

between the husband and the wife by the court.

I should mention that article 76 of the

company's articles, which are not reproduced in the

application book, is a table A article which vests

the power to appoint an attorney or agent in the

directors. Then order 2(e) requires the husband

and the wife, as the only members of the company

entitled to vote at general meetings, to pass a

special resolution to wind it up; whether or not

we would add parenthetically, they believe it to be

in the interests of the company as a whole.

Now, the proposition upon which we found,

Your Honours, to support the main proposition which

is that there was an excess of jurisdiction by

reason of an unwarranted intrusion on third party

rights is set out in paragraph 3 of our outline and

we say that as a member of the company, the

applicant has a right to insist that the directors

manage it in the due and unfettered exercise of

their fiduciary powers. Orders 2(a) and 2(b)

purport to control the exercise by the husband of those powers by requiring him to take steps which

as a director he is not bound to take under the law

or under the company's articles unless he holds the

view that those steps are in the best interests of

the company as a whole, a concept which, of course,

includes consideration of the applicant's

interests.

GAUDRON J: Is the question of excess of jurisdiction by the

first Full Court properly raised in these

proceedings?

MR HUGHES:	Yes.
GAUDRON J:	I understand it is raised in the application but

is it a matter that can be dealt with in the way

that you would seek to deal with it by means of

appeal from the second Full Court?

MR HUGHES:  We say that the answer to that question,

Your Honour, is, yes. It may well be that the

applicant would have been entitled to seek

prerogative relief instead of going to the

Full Court on the second Full Court hearing but

bearing in mind what was said by this Court 10 or

Costar 15/2/91

11 years ago in Ex parte Twigg Re Cook, it was

thought that the appropriate course was to apply to

the Full Court, which we have called the second from the failure to give the applicant proper

opportunity of being heard and that that was an

appropriate course to take. Indeed, had we taken

the other course, we might have been between Scylla

and Charybdis. It might have been said that we

should have resorted to internal procedures in the

Family Court rather than seek prerogative relief.

MASON CJ:	What was said in Twigg?	Remind me of it.
MR HUGHES:	What was said in Twigg:	that was a case,

Your Honour, in which Mr Twigg complained of a

denial of natural justice through breach of the

audi alteram partem rule by a primary judge in the

Family Court. He got his prerogative writ but in

the course of the judgments - and I am afraid I

have not brought that case up here - Their Honours

adverted to the desirability of going the other way

if such a complaint was made rather than trouble

this Court with - - -

MASON CJ: That was appealing to the Full Court of the

Family Court.

MR HUGHES:  No, in Twigg v Cook, Mr Twigg sought prerogative

relief in this Court.

MASON CJ:  I realize that but what was the course that this

Court was commending?

MR HUGHES:  To go to the Full Court of the Family Court

first.

MASON CJ:  To appeal from the order made by the single

judge?

MR HUGHES:	Yes.
MASON CJ: Well, this is a rather different situation, is it

not? It is not an appeal that would operate as an

available alternative proceeding here.

MR HUGHES:  It was an application to the Full Family Court

to reconsider the whole matter in the light of the

fact that as a party interested, the applicant, the

present applicant, had not had a proper opportunity

of being heard. As one reads the judgment of the

second Full Court, there was no objection to the course that was taken on jurisdictional grounds.

GAUDRON J: Although the second Full Court did suggest that

it was not appropriate for them to determine these

issues.

Costar	15/2/91
MR HUGHES:	We say that if they said that, with respect,

they were wrong because where an order affecting

the rights of a party or a person who is entitled

to be heard is made in that person's absence, the

court which makes the order has inherent

jurisdiction to set matters right. For that, we

would rely upon the decision of this Court in we have attached to our outline, Your Honours. It

is reported only in the Australian Law Journal

Reports and the Australian Law Reports. We have

attached the ALJR reference. But that case stands

as authority for the proposition that a court, such

as the Family Court, has inherent power to redress

matters where orders affecting the rights of a

person entitled to be heard have been made in that

person's absence.

GAUDRON J: Yes, but this argument is quite independent.

The argument you make about jurisdiction is really

quite independent of the argument about audi

alteram partem. If audi alteram partem succeeds,

you would never get to this argument and it is only

if it fails that you would want to raise this as an

independent ground and, indeed, as I read the

judgments, that is how the second Full Court

perceived these questions as being really somewhat

outside the ambit of the natural justice

application.

MR HUGHES:  With respect, that view is incorrect. One can

analyse the position, I suggest, in this way: if

my client had been given a proper opportunity of

being heard in the proceedings before the first

Full Court, it would have been open to her to challenge the jurisdiction of the first Full Court

to make orders of the kind that were made in their

ultimate order reversing the primary judge.

GAUDRON J:  And assuming you are right on the audi alteram

partem, that right will remain to her.

MR HUGHES:  Yes, indeed, but we are seeking special leave to

appeal for the purpose of obtaining, if special
leave be granted, an order requiring the Full Court
of the Family Court to rehear the whole matter

again including the question of jurisdiction.

GAUDRON J: This, then, would still only arise if you failed

on that?

MR HUGHES:  That will arise if we get our foot in the door

if I can use that expression - by recourse to the

audi alteram partem rule. But the question of

jurisdiction is, we submit, hopeful of being viewed

as a separate free-standing question and an

important one because what the first ,Full Court

Costar 15/2/91

did, with respect to them, was to encroach upon

limits that have been set by this Court in relation

to the jurisdiction of the Family Court of

Australia to make orders affecting third party rrghts and interests.

DEANE J: But does not the way you put it, pages 1 and 2,

really reverse things a little bit in that if land

2 stood alone, there would be great force, I would

have thought, in what was put but -

MR HUGHES:  Your Honour means 1 and 2 in the paragraphs of

my treatment?

DEANE J: Yes, I am looking at pages 1 and 2.

MR HUGHES:  Yes, Your Honour.

DEANE J: But 1 and 2 are really only ancillary to 3, that

is, the winding up.

MR HUGHES:  Yes.

DEANE J: Well now, when you come to 3, it is a strange

proposition that you can only vote to wind up a

company if you think it is in the interests of the

company you are killing.	I mean, that is obviously
not an accurate statement.	The statement becomes

accurate over the page where one does look at

oppression and so on.

MR HUGHES:  I accept responsibility for the inaccuracy in

(iii) on page 2. What it was intended to - - -

DEANE J:  I was being a bit humorous, Mr Hughes, I was not

critical.

MR HUGHES:  What it was intended to grasp was the

proposition that when majority shareholders vote to

wind up a company, they must consider the question

of oppression.

DEANE J: Except if you have a family company in which each

of the husband and wife have a 40 per cent
shareholding and the husband and wife each think

that for the purpose of resolving marital

difficulties the company should be wound up, surely

they are fully entitled to wind it up.

MR HUGHES: If "they" think, yes, Your Honour.

DEANE J: Without regard to any interest other than their

own.

MR HUGHES:  But they would always have to bear in mind the

equity position of a minority shareholder who may

say, "Well, I am oppressed. I want this company

Costar 6 15/2/91

carried on. It is profitable; it is a going

concern", and so on.

DEANE J: But the plain fact of it is as shareholders they

would be entitled to wind it up to bring an end to

the marital situation.

MR HUGHES:  Your Honour, they would if they combined freely to exercise their majority power. What this order

does, the order that Your Honour has seized upon

for the purposes of the present discussion, is to

require the husband involuntarily to vote.

DEANE J: Well, let us come to the next stage. Say he had

entered into a contract which he assumed a

contractual obligation to vote in favour of the

winding up. A court could enforce that contract.

MR HUGHES:  Not if it was a contract, the carrying into

effect of which might or would constitute

oppression against the minority shareholder.

DEANE J: But it is a very confined sort of oppression that

is relevant in terms of exercising powers to wind

up attached - or voting rights ..... resolution to

wind up.

MR HUGHES:  The statutory formula is unfairly prejudicial.

That is the main formula which would be relevant in

this case. I think the other part of the formula

is contrary to the interests of the shareholders as

a whole.

DEANE J: But all I am putting to you ultimately, the

question is really whether the Family Court, in the

case of a family company, can order one of the

parties to the marriage to vote for the winding up

of the family company.

MR HUGHES: That question raises a subquestion, if I may say

so, Your Honour: what is a family company? There

are cases in this Court in which this Court has

declared, quite unequivocally, that where the

company in question is wholly beneficially owned by

the husband or where it is his creature, there is

no problem about ordering the husband to exercise his fiduciary power because he is the only person upon whom the exercise of the fiduciary power

impacts.	He is the sole shareholder or he is the
sole beneficial owner of the company.	Or perhaps

there is also the case where the husband and the

wife are the only shareholders and that may be a

case in which, consistently with authority in this

Court, orders of the kind made by the first

Full Court in this case may legitimately be made.

I do not concede that. But this case brings the

Costar 15/2/91

encroachment on third party rights and interests

beyond the permissible boundary.

I do not want to weary Your Honours on a

special leave application by citing slabs from

cases, but we have sought to encapsulate in

paragraph 4(a) and 4(b) of our submissions what we

say the relevant proposition in this area, as

applied to this case, is. It was in Reg v Dovey;

Ex parte Ross that Mr Justice Gibbs, as His Honour

then was, said that there would be an air of

unreality in appealing to principles of fiduciary

duty - fiduciary duties of directors, where the

husband was the sole controller, the only person

beneficially entitled to the equity in the company.

But one of the principal statements on which we would rely can be taken from the judgment of

Your Honour the Chief Justice in Ascot Investments

v Harper, 148 CLR 337, at page 358. It is a very

short passage and it really states the principle to

which we would appeal. Your Honour said:

No provision of the Family Law Act

empowers the Family Court to make orders of

the kind in question otherwise than in
accordance with the settled principles of law

governing the exercise by directors of a

discretion to approve or refuse registration

of a transfer of shares, except perhaps in the
exceptional case where it is shown that the

company is simply the creature of the husband

and no such case was made out here.

That was a case in which other directors of the

family company, not parties to the marriage, were

purportedly ordered to register a transfer.

DEANE J: But would it not be the fact, Mr Hughes, that

there is nothing in it from your client's point of

view to attack orders 2(a), 2(b) and 2(c) if 2(e)

were to stand in that all you would be doing would

be to ensure that the liquidator got a commission

as well as the auctioneer or agent?

MR HUGHES: Well, of course, if this concept of appointing

an agent to sell all the company's property before a winding up order is put in place - is allowed to operate, I suppose the agent or attorney will get a

commission too.

DEANE J: Yes. But if 2(e) stood and 2(a), 2(b) and 2(c)

went, you would be adding the liquidator's

commission to the agent's commission.

MR HUGHES:  Yes. Your Honour, the attack that we make on

orders 2(a) and 2(b) is, in a sense, collateral and

designed to throw up the point of principle.

Costar	15/2/91
DEANE J:	But what I am trying to convey is that if 2(a),

2(b) and 2(c) stood alone, the case would be a

different one as I see it. It may not make any

difference between success and failure.

MR HUGHES:  Yes. We say that the authorities in this Court

do not go to the length of permitting the Family

Court of Australia indirectly to wind up a company

where a person not a party to the marriage is the

beneficial holder, as in this case, of a

substantial, albeit non-voting equity in the

company.

As to the audi alteram partem aspect of the case, we deal with that at pages 4 and 5, over to

page 6 of our outline, and there is really nothing

I can usefully add to what we have said in the outline beyond saying this that, in our respectful

submission, the second Full Court reversed the

onus. Clearly, the applicant had a right to be

heard and the second Full Court dealt with the

matter by stating, in effect, that she had to show that she did not have notice and they said she was

put on inquiry but we would say, quite clearly,

being put on inquiry is not a substitute for

adequate and proper notice.

GAUDRON J:  So far this has proceeded, Mr Hughes, on the

assumption that her rights were adversely affected.

MR HUGHES:	Yes.
GAUDRON J:	But I do not understand you to have argued that

that is so, just to have made the assumption. She

was a minority shareholder entitled to participate

in dividends and capital which she remained

entitled to do despite the order.

MR HUGHES:  She was a non-voting shareholder, not entitled

to dividends but entitled to capital on a winding

up.

GAUDRON J: Yes. Well, we have got a winding up and she is

getting her entitlement.

MR HUGHES:  Yes. But we say that as a non-voting

shareholder - I am sorry, when I said "not entitled

to dividends", I think I am wrong.

DEANE J: If she is not entitled to dividends, you should be

having a party instead of seeking a -

MR HUGHES:  Yes. I am sorry, she is entitled to dividends

in the discretion of the directors. But, with

respect to Your Honour Justice Gaudron, we have not

simply made that assumption. We have endeavoured

Costar 9 15/2/91

to articulate the proposition in paragraph 3 of our

submissions.

GAUDRON J: Again, that comes back to what Justice Deane put

to you and that is, in truth, there may be

substance in what you put there absent order 2(e).

But the real gravamen of your client's complaint is

order 2(e).

MR HUGHES:  And as to 2(e), we say that even before

section 320 of the Companies Code was enacted which

specifically articulates the ground upon which the
actions of majority shareholders may be impugned as

oppressive, it was recognized and, indeed, a

leading case in this Court is Peters' American

Delicacy in the immediate pre-war years, that even shareholders, majority shareholders, cannot exercise their majority rights altogether without regard to the interests of minority shareholders.

That was an equitable principle which, I suppose, can be said as being articulated in a form in

section 320 of the Companies Code. That is the way

I would seek to answer Your Honour.

GAUDRON J: Well, do you not have to go a little further and

establish, in effect, oppression of your client by

the sale?

MR HUGHES:  Not in this Court, with respect. I am in the

position of a - - -

GAUDRON J:  To show that the interests are affected, if you

look just at 2(e)? Put aside (a), (b) and (c).

MR HUGHES:  In the hearing before the primary judge the

applicant articulated her case by saying that she

wished to participate in the carrying on of the

business which was, as the evidence apparently

showed, a profitable business.	She was able to
contribute to the workings of the company.	She had
done so.	When the case came to the first
Full Court, the dissentient judge,

Mr Justice Baker, took the view that as 60 per cent

of the equity holders in the company wanted the

company to continue, it was not for the court to

override the majority wishes in the exercise of a

jurisdiction under section 79 of the Family Law

Act.

We submit that in the absence of having had a

proper opportunity of being heard, the applicant is

entitled to her day in court to make good before

the Full Court of the Family Court what she wishes
to make good in relation to the future fate of this

company. Those are the reasons why we say, in this
rather unusual case, special leave is warranted,

beyond saying this, that the attack or the adverse

Costar 10 15/2/91

findings on credit made by the Full Court of the

Family Court cannot affect the question of

jurisdiction - the bare question of jurisdiction.

GAUDRON J:-Nor can they affect the bare question of

entitlement to be heard and entitlement to notice.

MR HUGHES:  No. Those are the submissions we wish to make,

Your Honours.

MASON CJ: Thank you, Mr Hughes. Yes, Mr Hughes.

MR HUGHES:  Your Honours, the first respondent adopts the

submissions of the applicant and wishes to add

nothing further.

MASON CJ:  Thank you. Mr Tamberlin?

MR TAMBERLIN:  Yes, if the Court pleases, I would like to

hand up an outline which deals basically with the

natural justice point and then I will come to the

jurisdiction point subsequently.

Your Honours, perhaps the most salient feature

of this matter is the sequence of events which are

set out on pages 2 and 3 in the .outline.

Basically, the principal matter is that the court

found unanimously that by 21 February 1989, which

was the second day of the hearing before the Family

Court on the first appeal, that the applicant was

aware of the nature of the wife's appeal from

Mr Justice Nygh. Thereafter, she waited a period

of six months - allowed a period of six months to

go by and then she did nothing after

Mr Justice Nygh's judgment which was delivered on

8 August 1989 and thereafter there was a special

leave application to the High Court lodged. She

did nothing in relation to that. And that special

leave application was refused. Thereafter, she

waited a further four months before starting

proceedings to reopen the matter before the Full

Family Court.

Now, in those circumstances, accepting the findings of the Full Family Court, we would submit,

there has clearly been a standing by in relation

certainly to- well, both questions really, the

question of jurisdiction and also in relation to

the question of an opportunity to be heard. Had

she made an application shortly after

21 February 1989 before asking the Full Family

Court to reopen the matter, so that she could come

in, now knowing of the orders which were being

sought, then the appeal to the Full Family Court

might have been dealt with on a different basis and

the leave application was allowed to go by but she

elected to rest, as it were, on her rights and

Costar 11 15/2/91

leave this matter to be raised until about a year

after she first became aware of the matter. And,

of course, Your Honours will have noticed there is

a finding that the members of the court unanimously

formed the view that she was not frank, open and

truthful to the court in relation to her

understanding of the orders being sought by the

wife in relation to the winding up.

So, we would submit, in those circumstances

she had an opportunity to be heard; she was

apprised of the - she was aware of what the wife

was appealing on before the first Full Family Court

and she could have summoned that court back again

to make any submission she wished to make.

DEANE J:  Mr Tamberlin, what were the grounds advanced in

the September 1989 application for leave to appeal

to this Court?

MR TAMBERLIN:  Your Honour, I was not on that application.

I am not aware of them. But the decision before

the first Full Court really turned on valuation

principles and I think the issue was whether the

company ought to be wound up or whether it should

be allowed to continue.

MASON CJ:  That certainly is my recollection of it. I do

not think questions of jurisdiction were raised.

MR TAMBERLIN:  No, I do not think they were raised,

Your Honour, on that occasion, on the first leave

application, no, certainly not.

DEANE J: It seems I should have addressed the question to

the other members of the bench, Mr Tamberlin.

MR HUGHES:  Can I help you, Your Honours.

MASON CJ: Well, seeing you were not present on that

application I am sure we will get a good deal of

help from you, Mr Hughes.

MR HUGHES:  Based upon a look at the special leave book,

Your Honour.

MASON CJ: Well, can you tell us?

MR HUGHES:	I can tell you, Your Honour, but if I may say so, without disrespect to anyone who appeared in
the application, it was confined solely to questions of valuation and no jurisdictional
question crossed anyone's mind.  Now, I do not know
whether that is for or against me.

MASON CJ:  I do not think it is for you, Mr Hughes. I mean,

one would have thought that if jurisdictional

Costar 12 15/2/91

questions had been raised then there would have

been some debate about them and they would have

been identified at that stage.

MR HUGHES: -well, her husband was the only person in command

of the ship on our side at that stage.

DEANE J:  But it must be relevant if your client stood by

allowing the parties to fight in this Court in

relation to valuation about questions which, on

what she asserts, were simply irrelevant.

MR HUGHES:  Your Honour, the extent to which she was

apprised of what was going on at the special leave

stage is not elucidated by the evidence.

DEANE J:	I see.
MR TAMBERLIN:	Your Honour, she did stand by and she did not

raise the jurisdictional question for about a year

and she did not raise the audi alteram partem

question for about a year. In those circumstances,

Your Honour, we would submit that that is a

sufficient ground for refusing special leave.

In relation to the jurisdictional question, we

are concerned here with a family company which is

really holding property of the family. One might

have thought in a case like this the two parties

were at loggerheads and it might be a situation where it is clearly just and equitable that the

company might be wound up in those circumstances.

As the Full Court point out at page 139 of the

application book, where they refer to Dovey and

Ascot, the company was in complete control of the

husband and the wife. They had all the voting

shares, of course, and the daughter had 20 per cent

non-voting shares. And reference is made there to

Re Dovey, and we would submit that the quotation at

page 139 from Mr Justice Gibbs' judgment, with whom

Your Honour the Chief Justice agreed, is apposite

in this case.

The orders which are made here, of course, are

against the parties and not against the company and

we would submit that Your Honour Mr Justice Deane's

example of a contract being directed to be

enforced - specifically enforced, if the husband

had entered into a contract is apposite in this

context. But this case did concern, that is the

Dovey case, an exercise of voting power and at

line 10, it is said there:

there is no jurisdiction in the Family Court

to restrain a third party (even a family

company) from dealing with its own property,

Costar 13 15/2/91

and no jurisdiction to achieve that object by

restraining a husband, in his capacity as a

director or shareholder, from exercising his
voting power as such in a particular way.

However, it is not right to say that the order

sought by the wife and made by the learned

judge in the present case prevents the company

from dealing with its own property. The order
is not directed to the company and does not

bind it. It is true that the practical effect

of the injunction will be that there will be

no sale, but that will be because the husband,

who controls the company, is prevented from

exercising his control in such a way as to

bring about a sale -

So that there is an exercise of control by a

husband; he is a director, it is in his capacity

as a director and, we would submit, in this case

the argument that the Family Court, when dealing

with a company such as this, under the Family Law
Act is not empowered to require the husband to vote with the wife for the winding up of the company is

clearly incorrect.

Again, in Ascot Investments, at page 140, line

17, on the next page, Mr Justice Gibbs said:

"The orders made against Ascot Investments,

and against the directors, imposed on them a

duty which they did not owe under the general

law, and which was inconsistent with the

Memorandum and Articles of Association which bound the husband as a shareholder in that

company. They gave to the wife rights, not

merely against the husband, but against third

parties who were not proved to have been
parties to a sham or device .....

To say this is not to cast any doubt on the power of the Family Court to make orders against the husband himself.

Then at the foot of the page: 

If it is proved that in truth he has it within

his power to procure the registration of the

transfer, and he does not do so, he will be in

breach of the order."

And in registering a transfer or exercising a

discretion, he is exercising a duty as a director

and complying with what the court order is

requiring him to do.

So, in our submission, Your Honours, we would

submit that there is no substance in ·the

Costar 14 15/2/91

jurisdiction argument. The court was clearly correct below and special leave should not be

granted. Although it cannot decide anything on the

jurisdictional question, we draw particular

aftention to the findings in relation to the

applicant's evidence and the secondary matter

relating to the standing by and not raising the

matter. It is, as it were, the applicant retaining

an argument, letting proceedings go ahead before

the Full Court and this Court and keeping in

reserve an argument - one assumes had been properly

advised or if she were properly advised, it was

appropriate to have raised that argument well

before the special leave application before this

Court and that sort of conduct should be taken into account by the Court in considering whether to

grant special leave. If the Court pleases.

MASON CJ:	Yes, Mr Hughes?
MR HUGHES:	Your Honour, as to the submission which seems to

found alternatively on delay and waiver, first of

in my learned friend's submissions to the Court -
that the orders in question have not been acted on.

all, the fact is - this is not really grappled with a firm conclusion or any conclusion to be formed that the applicant was aware of the substance of the matters being advanced in the special leave

application.

The difficulty, with respect, that my learned

friend in his argument has perhaps avoided is that
when one comes to look at the approach taken in the
leading judgment in the second Full Court, it

reverses the onus. Mr Justice Strauss says, "I am

not satisfied that the applicant did not know at
all material times since the service of the notice

of appeal or shortly thereafter that the wife in

substance sought the same relief as that which had

been sought by her before Mr Justice Nygh." That

is putting it the wrong way round when one comes to

consider the audi alteram partem rule.

My learned friend places some reliance on the

fact that there is a positive finding that by 20 or

21 February the applicant was aware of the

substance of the order sought by the wife. It is a

little late in the day, one would have thought or

venture to suggest to rely on the fact that on the

last day of the hearing, the last day of a two-day

hearing or even on the first day of a two-day
hearing the applicant knew something about the

substance of the case. Those are the submissions

we would make in reply to Your Honours.

MASON CJ:  Thank you, Mr Hughes.

Costar 15 15/2/91

Notwithstanding what has been said by

Mr Hughes, QC, for the applicant, in view of the

long history of the litigation in this case between

the husband and the wife, litigation of which the

present applicant, their daughter, has at all times

been aware, we do not consider that it would be

consistent with the administration of justice to

when the critical orders of the Full Court now

grant special leave to appeal so as to enable the

applicant to question the orders made by the

sought to be challenged were the subject of an

unsuccessful application for special leave to this

Court on 13 October 1989.	The application is
therefore refused.

MR TAMBERLIN:	We ask for costs?
MR HUGHES:	I cannot oppose that, Your Honour.
MASON CJ:	The application is refused with costs.

AT 11.35 AM THE MATTER WAS ADJOURNED SINE DIE

Costar 16 15/2/91