Flanagan v Handcock

[2000] HCATrans 443

Office of the Registry
Sydney Nos S42 of 2000

B e t w e e n -

JOHN EDWARD FLANAGAN

Applicant

and

NARELLE IRENE HANDCOCK

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 2000, AT 12.55 PM

Copyright in the High Court of Australia

MR J.E. FLANAGAN appeared in person.

MRS N.I. HANDCOCK appeared in person.

MR FLANAGAN:   In S42 of 2000, your Honour, I apply for special leave to appeal from the whole of the judgment of Finn, Coleman and Chisholm given on 2 March 2000 in the Full Court of the Family Court of Australia.

There are questions of law and general public importance involved in that their Honours Finn, Coleman and Chisholm erred by failing to consider that the trial judge simply gave inappropriate weight to the Judicial Registrar’s orders and an assessment of his judgment rather than fact as established by the leading authorities when arriving at his decision.

Two:  that the trial judge erred in failing to take into account the fact that affidavit material had to be filed with respect to the appeal against the decision of Judicial Registrar Johnston made on 29 January 1999 when arriving at his decision.  This material was subsequently filed on 21 April 1999.

As we have just heard in the previous application, the judgment went against me 1:2 and therefore I believe there was merit in my application to have the funds stayed as requested because I believe there was substance in my application.

McHUGH J:   But what has happened to the 6,000?  Justice Steele increased it to $6,000.  Now, what has happened in respect of that 6,000?  Has it now been paid out?

MR FLANAGAN:   That has now been paid out.

McHUGH J:   Well, it is rather futile, is it not?

KIRBY J:   It is not the same as the last application.  The last application has a continuing relevance.  This application is spent.

McHUGH J:   You see, even if they were wrong, there is now nothing to stay.  We can only make the order that they should have made but, even if you are right – do you follow the point?

MR FLANAGAN:   I follow the point in that regard, your Honour, yes.

McHUGH J:   There is nothing we could stay.  I mean, there is nothing to stay.  The money has gone.

MR FLANAGAN:   But not all the money has gone.

McHUGH J:   What about the 6,000?

MR FLANAGAN:   That has been paid off.

McHUGH J:   That is right.  That is the point.  Well, you continue with your submissions but it just does not seem to me at the moment to be a special leave point.

KIRBY J:   Do you have anything else to say?

MR FLANAGAN:   No, that is all, your Honour.

KIRBY J:   Yes, I would have thought so.

McHUGH J:   Thank you, Mr Flanagan.

In matter No S42 of 2000, we have an application by Mr Flanagan for special leave to appeal against an order of the Full Court refusing to grant leave to appeal against an order which did not stay the whole of an assessment made under the Child Support (Assessment) Act 1989. The application probably does not raise any issue that would warrant the grant of special leave but, in any event, there is now nothing to stay. A grant of special leave to appeal would be futile. The application is refused with costs.

KIRBY J:   May I just add in respect of the order for costs that, although there would be additional costs resulting from the multiple applications which Mr Flanagan has brought, I think the taxing officer of the Court would have to show close attention to ensure against duplication of costs so that costs are not needlessly run up by the fact that we have had before us today a number of applications in the disputes between the parties.

McHUGH J:   Can I add, Mr Flanagan, litigation is something to be avoided.  The great American Judge, Learned Hand, said that litigation was something that he “would fear as much as death or taxes”.  You are just incurring a lot of costs in these applications.  It is depleting your resources. All I can say is that you should give the matter the most careful consideration before you launch further proceedings.

AT 1.00 PM THE MATTER WAS CONCLUDED