Djs v LJT

[2002] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B95 of 2001

B e t w e e n -

DJS

Applicant

and

LJT

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 19 MARCH 2002, AT 1.40 PM

Copyright in the High Court of Australia

MR C.J. CARRIGAN:   May it please the Court, I appear on behalf of the applicant, with my learned junior, MR D.H. KATTER.  (instructed by Madden & Co)

MR J.S. DOUGLAS, QC:   May it please the Court, I appear on behalf of the respondent, with my learned friend, MS J. BRASCH.(instructed by Women’s Legal Service Inc)

KIRBY J:   Yes, Mr Carrigan.

MR CARRIGAN:   May it please the Court, this application raises the following special points:  firstly, whether the Full Court of the Family Court’s latest formulation of guidelines for trial judges in the case of Re F: Litigant in person guidelines, (2001) FLC 93-072, has compromised the impartiality and neutrality of the trial judge. The second issue on which special leave is sought is whether those guidelines in Re F, with respect to children’s issues pursuant to section 68F(2) of the Family Law Act, oblige the trial judge to conduct a trial which is strictly adversary, requiring full presentation of all factual matters and full cross‑examination of all issues or, alternatively, whether the court should proceed pursuant to section 97(3) of the Act and pursuant to Order 4, rule 4 of the Family Law Rules, “proceed without undue formality and ensure the proceedings are not protracted by adopting such an approach.”

In respect of the first of those issues, that is, the formulation of the guidelines ‑ ‑ ‑

HAYNE J:   Would we ever get to those?

MR CARRIGAN:   Yes.

HAYNE J:   Let it be assumed that you got leave, would not the first question be whether there was error shown in the court directing as it has, in effect, that the matter go back for a retrial?

MR CARRIGAN:   Yes.

HAYNE J:   Why would we ever get to the way in which this particular trial occurred?

MR CARRIGAN:   Because, your Honour, the Full Court proceeded really on a two‑step process to get to that point.  In our submission it decided, having reviewed what happened before the trial judge, it then went on to consider the application for fresh evidence and the first step it embarked upon was to determine the question of procedural fairness, whether that had occurred.

HAYNE J:   Where you have litigants, one of whom at trial was in person, and what has happened is that there is an order for retrial of the issues, the fear I have is that we are left having a considerable picnic to determine questions of law but really there are some real litigants out there. Mr Carrigan, why should they not go back, have the matter litigated and determined?

MR CARRIGAN:   For two reasons.  One is, as I was submitting, that if there has been no procedural unfairness in the first place, why go back?  We submit that that is really one of the issues that involves a special leave application so that if that is successful and it is found that the guidelines which we submit were considered were improperly formulated and that a lesser onus was on the trial judge in the first place, there would be procedural fairness at the trial and there would be no reason for a retrial to consider fresh issues.

HAYNE J:   At the end of the day, what order do we make?  You pitch it at this level of guidelines.  The one thing we are not going to do is make a declaration guidelines are good, bad or indifferent in the form in which they are.  If you got leave, what order would you get?  The one you want is that the decision of the trial judge stand.

MR CARRIGAN:   Yes.

HAYNE J:   What assistance is that to the law if we do that?

MR CARRIGAN:   On the basis that in the Full Court’s consideration of this matter it found ‑ it really determined that the trial judge has performed, in our submission, to a level that was not satisfactory and that was because the Full Court had in their minds at the time the obligations that are placed on a trial judge in the case of Re F to which I have referred to.  We say in a consideration of going beyond today of Re F, the onus that is placed on a trial judge, in the reformulated guidelines in that case, is stated too highly that it impinges upon the judge’s neutrality and impartiality and that if the court going beyond today accepted that and found what we submit, that there was in fact a proper hearing in accordance with the obligations of a trial judge, then there is firstly two consequences that flow from that.

One involves the guidelines themselves in that, we submit, quite frankly, there would be an overstated in terms of the obligations on the trial judge.  That would be determined, we would say, for the benefit of all litigants.

HAYNE J:   Can you give me your best example of overstatement?  You say the guidelines are overstated.  What is the best and highest that you put it at?

MR CARRIGAN:   Yes. your Honour.  The case Re F (2001) FLC 93-072, your Honour, at page 88,278, right‑hand column, paragraph 251 towards three‑quarters of the way down the page, they say:

We would add a further guideline in the following terms:

“Where the interests of justice and the circumstances of the case require it, a judge may ‑

and then there are a number of points. 

It is our submission that each of those points impinge upon the impartiality and the neutrality of a judge.  For example, taking the questioning of witnesses, while a judge will question a witness it is submitted that the intention of this is that ‑ ‑ ‑

HAYNE J:   I am just having a bad dose of conscience about my days as a trial judge, I am afraid, Mr Carrigan.

MR CARRIGAN:   That is one.  If your Honour is asking me for the best example, probably if I go to the fourth bullet point, and this would be the highest that I would see it.  It says:

·    suggest procedural steps that may be taken by a party ‑

In my submission, that is really requiring the trial judge to enter the arena to advise a litigant in person, and if we take the subject of the present appeal, to really advise the present appellant, “Look, there are issues of domestic violence that have been erased.  They are inadequate.  You should go out and get some more affidavits.  I will adjourn the trial for two days or three days or until tomorrow morning.”  In my submission, that amounts to giving of legal advice.  It affects the impartiality of the judge and certainly in the perception of other parties, particularly represented parties, a judge advising a party particularly in the course of a trial to adopt procedural steps that could be taken, has to be legal advice, has to be shown favouring one party as against the other, and in my submission, really goes against the injunction that the Full Court itself stated in Re F.

Could I take your Honours back a couple of pages in that judgment to page 88,276, at paragraph 224, about three‑quarters of the way down the page, your Honours will see the paragraph starting:

We do not disagree with the formulation of the Full Court in Johnson as to the reasons why it is usually undesirable for the judge to give legal advice –

et cetera, but it is really the next sentence that is critical, in our submissions:

We do, however, think that there can be circumstances where the requirement to conduct a fair trial requires a Judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.

It is our submission ‑ ‑ ‑

KIRBY J:   Yes, but the basic problem was that the wife’s position was that by reason of her being unrepresented and having the particular medical condition that was talked of, that she was not really able to represent herself.

MR CARRIGAN:   I accept the full force of what your Honour has said.  The Full Court went further, in my submission, in considering procedural fairness ‑ ‑ ‑

KIRBY J:   But my point is that if, in fact, in the particular circumstances of this case, this is the basis on which the Full Court reached its conclusion then whatever one’s view might be about the guidelines in their generality, this really would not be an appropriate vehicle in which to examine them because what has happened is that the particular circumstances have warranted the Full Court’s conclusion and the matter has been sent back to retrial, it is not as if your client will not have the opportunity, as it were, on an even playing field to represent his position at the retrial.

MR CARRIGAN:   Yes.

KIRBY J:   What is the error that would cause this Court to intervene?

MR CARRIGAN:   I do not mean to indicate to the Court that this was the only basis upon which the matter was sent back for trial, I am saying there were two bases, this was one.  The second ‑ ‑ ‑

KIRBY J:   It seems to be your special leave point, if I could say so.

MR CARRIGAN:   Yes, that is so, but just to clarify where the applicant is, we say there are really two points.  One was the use of the guidelines in determining procedural fairness.  The second matter, the court then considered the content and the nature of the further evidence and found that if that had been adduced at trial it may have had an effect on the result.  We say that those two considerations have to be considered in combination which led to really the final result of the matter being sent back to trial.  We say that if, on the first point, the procedural fairness, the guidelines are reviewed, it is found that the Full Court was, if I could say, too onerous or placed too high an obligation on the trial judge and that he had in fact met the obligations, particularly as they were in the previous judgment of the Full Court in Johnson v Johnson, that there was no procedural fairness, then the obligation was always on the litigant in person to produce and adduce their own evidence.  They failed to do that.  There being procedural fairness, there is no reason to remit the matter to trial so you do get a result on ‑ ‑ ‑

KIRBY J:   In terms of principle, which is what this Court must be concerned with, especially in relation, I believe, to a specialist court such as the Family Court, this Court in CDJ v VAJ had recently visited the issues of general principle so that we have that and therefore it seems to me you are really confined to the Litigant in person guidelines’ point, but if you take the view that in the special circumstances of this case and the respondent’s found disability that led to the problem of appreciating her position, then this is not really an appropriate case because what has been concluded and what has been ordered is within the facts.

MR CARRIGAN:   Certainly, the applicants do not take issue with the exercise of the discretion in terms of section 93A(2), save for this, that part of that section ‑ and I think your Honours have that section as part of the respondent’s material that was handed up to you.  If you look at section 93A(2), it is submitted that that section involves two limbs and the first limb is:

in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose ‑

and if I just stop there for a moment, I say the Full Court did that and that is where the guidelines point arises.  The second limb being, if I go down to:

and in its discretion, to receive further evidence upon questions of fact, which evidence –

et cetera.  In terms of applying section 93A(2), it does involve, in our submission, that regard be had to the evidence in the proceedings is set out below.  That is what the structure of the Full Court judgment did.  Having referred to the application, it then really dealt with the evidence below and how the respondent, before this Court, was dealt with, determined that there was procedural unfairness, then went on to consider the fresh evidence and to determine that that evidence should be admitted and the matter should go

back for a retrial.  We say it is really in the first of those matters that the error has occurred.  I have really set out already the basis upon which we say the error occurred and really cannot assist your Honours any further with that point.

KIRBY J:   Yes.  Is there anything else that you wish to say.

MR CARRIGAN:   No, your Honour.

KIRBY J:   Thank you.  Mr Douglas, the Court does not need your assistance.

The Court is not convinced that any error has been shown in the reasons of the Full Court of the Family Court requiring the intervention of this Court.  That court had before it the then recent decision of this Court in CDJ v DAJ (1999) 197 CLR 172. It applied that authority accurately and no reason is shown for this Court’s intervention. The orders of the Full Court required rehearing of the matter before a single judge. In our view, in the circumstances, no miscarriage is shown. The case is therefore not one for the consideration of the Litigants in Person Guidelines. Special leave to appeal is accordingly refused and it must be refused with costs.

The Court will now adjourn for the succeeding applications.

AT 1.56 PM THE MATTER WAS CONCLUDED