Hall v Hall

[2016] HCATrans 23

Replacement Transcript

[2016] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2015

B e t w e e n -

HALL

Applicant

and

HALL

Respondent

Application for special leave to appeal

FRENCH CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 FEBRUARY 2016, AT 1.47 PM

Copyright in the High Court of Australia

MS W.A. HARRIS, QC:   Your Honours, if it please the Court, I appear with my learned friends, MS P. KARI and MS S. GORY, for the wife who is the applicant.  (instructed by Barnes Brinsley Shaw Lawyers)

MR S.H. LINDSAY:   If the Court pleases, I appear with my learned friend, MS R.F. GRAY, for the respondent.  (instructed by Jordan & Fowler)

FRENCH CJ:   Yes, Ms Harris.

MS HARRIS:   Your Honours, might I start with a short sketch of the key points which we say engage the section 35A principles here and they fall into two categories:  firstly, the issues of procedural fairness; and, secondly, a misapplication of the correct principles in relation to the construction of section 72 and section 75(2) of the Family Law Act.  The problematic inference drawn by the Full Court is to be found on page 75 of the application book, paragraph 132.  The inference is described in the last sentence of paragraph 132. 

Your Honours see that the wife’s deceased father having expressed a “wish” – not a bequest but a wish – in his will that the family group of companies make an annual payment of $150,000 per annum to the wife, the court, while recognising that that was just a wish and did not bind the executors, inferred that that voluntary payment would be made.  The inference is drawn in crisp terms also at paragraph 152 on page 78.  They said:

The inference from the evidence is that, if requested, the wife would receive the benefit, and we make that finding.

In drawing and relying on this inference, the Full Court decided the appeal on a point that was not advanced at trial, that was not advanced on appeal, on the basis of an inference that was not reasonably available and which could have been definitely negatived by the wife if she had had notice of it by calling evidence at trial. 

Moreover, even if the inference had been properly drawn by the court and the court had been entitled to rely upon it, it could not have led the court to reverse the trial judge on her conclusion that the wife was not able adequately to support herself within the meaning of section 72 or to discharge with retrospective effect the interim spousal maintenance orders that have been made.

FRENCH CJ:   I suppose, Ms Harris, the obvious question is why should this Court interfere in an essentially interlocutory process in already prolonged proceedings in relation to interim orders pending final disposal of the proceedings between husband and wife?

MS HARRIS:   Your Honour, it is true that these orders are interim, although no orders of maintenance have been made.  These orders were originally made in 2013.

FRENCH CJ:   I know.  It has been going on for a long time.

MS HARRIS:   Indeed, your Honour.

GORDON J:   When is the final trial?

MS HARRIS:   It has not been set down, your Honour.

GORDON J:   Can your client make a fresh application?

MS HARRIS:   She could, your Honour, but it would not have retrospective effect.  So that is the point that is made against us.  This Court should not bother with it, notwithstanding the denial of procedural fairness.  Your Honours will not see anything in the respondent’s summary of argument to suggest that this point was raised against the wife in 2013 or in 2014.  This point was not raised against her and if it had been she could have brought along evidence and said either, “I am not prepared to ask” or “I have asked and it has been refused”.  That evidence might have included evidence from the brothers to say, “We will not make this payment”.  There are obvious reasons why they might have declined to make the payment because it would have relieved the husband of the liability under section 72.

Now, your Honour the Chief Justice asks me why this Court should interfere in what is, in effect, an interlocutory order.  It is an interlocutory order in the sense that it is an interim one.  But, as I have just said, the matter has not finally been set down for trial and it engages the principles that have been discussed in cases like Paringa whereby a distinction is drawn between interlocutory matters going to practice and procedure and ones which determine substantive rights.

This decision by the Full Court turned off the wife’s means of support.  The trial judge had found that she was unable to support herself.  The Full Court overturned that finding for one reason and one reason only, that it was able to infer that if the wife asked her brothers for money the brothers would give it.

GORDON J:   You put it as a procedural fairness question.

MS HARRIS:   Yes.

GORDON J:   When you read the exchanges between Justice Thackray, application book 211 and following, there is a discussion, so it seems, between the judge there and counsel about the $150,000.  Is it a procedural fairness question or is it a lack of factual basis for drawing the inference?

MS HARRIS:   No, your Honour, it is a procedural fairness question and might I explain why.  This exchange and all of the ones that are similar went to the point, which was actually raised by the respondent.  The point that was actually raised by the respondent was the wife should fail because she has not brought forward evidence of having asked for the money.  She should fail because she has not brought forward that evidence.  So your Honours see the grounds of appeal at application book 61.  Down the bottom of the page the relevant grounds of appeal are set out.  The only two that are relevant in this regard are 7.1:

The wife’s duty of disclosure and failure to call evidence –

and 7.3:

The limited knowledge of the wife’s entitlements pursuant to her late father’s will –

The exchanges that your Honour refers to – and I cannot go through them all now ‑ but your Honour will see that they are solely directed to the question why she did not call evidence about this matter, ground 7.1.  It was directed towards a submission ‑ which is neatly encapsulated, if I might say – in the respondent’s summary of argument in this Court.  Your Honours will see that at application book 148.  In paragraphs 13 to 14, it is put against us that ground 7.3:

referred to the “limited knowledge of the wife’s entitlements” pursuant to the Will as a matter to which the Judge gave no consideration.

The question that was put was that she had entitlements that she had not given evidence about.  She had not given evidence.  She had not brought forward evidence which could allow the court to determine what those entitlements were.  That was the way it was put.  The burden of the submission which is encapsulated in the exchange which is quoted in footnote 34, is that the husband contended that the order must be discharged in circumstances where the wife had not chased up her assets – where she had not brought forward evidence that she had chased up her assets.

There were numerous problems with that submission and it was rejected by the Full Court, in this very appeal, at paragraphs 77 to 78.  It was also a submission that was directly antithetical to the inference which the Full Court actually drew.  If the submission is the wife should fail because of a dearth of evidence – which is the submission that was put – how can the husband succeed by the drawing of an inference that there was plenty of evidence upon which it could be concluded that the wife would receive a benefit.  It was logically antithetical to the argument which had been put.

So, the respondent is actually very careful in the summary of argument not to say, “I put this issue, I invited the court to draw this inference”.  What he says is the relevant factual issue on which the inference is based was clearly raised at first instance and on appeal.  Presumably by that, it is meant the $150,000 precatory which – and that is true.  That $150,000 was raised at first instance on appeal.  At first instance it was said she is entitled to this.  Notwithstanding that it is a wish, it is expressed as a wish, she is entitled to it. 

Now, the will which was exposed in the affidavit of Mr Shaw was a complete answer to that.  She clearly was not entitled to it.  The evidence certainly could not have allowed the trial judge to find that she was entitled to the money.  On appeal, the argument changed a little bit and the argument was, the wife should fail because she has not brought forward evidence that she has chased this up.  As Mr O’Shannessy, who I believe was acting for the respondent’s husband, told the court in that footnoted passage:

Or put another way, your Honour, it cannot be that those circumstances and no evidence of attempt to do anything about it – I won’t use the term ‘get in or chase up’ – simply doesn’t matter.  We say, your Honour, that – and if it does not matter, then I concede this appeal must fail.  And we rest on this”. 

So, the only submission that was put was that the trial judge ought to have discharged the maintenance order because the wife had not brought forward evidence that she had asked the brothers for the money and it was clear that she had not done that.  What I am putting to your Honours perhaps appears most clearly from paragraph 8.2 of the respondent’s summary at paragraph 146.  Your Honours see there at the bottom of that paragraph:

The Full Court held that the wife was:-

8.2.1   able to seek the payment . . . 

8.2.2.  had not done so –

Pausing there, they were the matters that were agitated and they are the matters that are the subject of the transcript references that your Honour refers me to - the fact that she was able to seek the money and she had not done it and the point was because she has not done it, she should fail because she has not effectively discharged the burden showing that she cannot support herself.

The third one is the problematic one which was not agitated at all either at trial or on appeal.  Had she done so she would have received that benefit.  That submission was not put.  Not only was it not put it was positively eschewed by counsel for the respondent.  In several passages that we have footnoted at page ‑ ‑ ‑

FRENCH CJ:   Page 91 did you say?

MS HARRIS:   Your Honour, I am trying to find the reference without going to my notes. 

GORDON J:   The inference – I think, are you looking for the paragraphs dealing with the inferences?  They are 133 at 75 and then 152 and 153 at 78.

MS HARRIS:   Yes.  That inference was never put, it was not argued and it was not put.  It was positively eschewed.  The page number is 195 of the application book.  At this point, Mr O’Shannessy, for the husband, is struggling with a submission based on Jones v Dunkel that because she has not brought forward the evidence the court should draw some unnamed inference against her.  So, at line 16 Justice Aldridge says, well, what is the inference: 

So, you’re suggesting the court could draw an inference that because she hasn’t said – asked her brother’s for money, that if asked they would have given her whatever she wanted?

MR O’SHANNESSY:   No.  You can’t go that far, your Honour.  With – I’m not submitting that far.

So, it was positively eschewed.  But, in a sense, your Honours ‑ ‑ ‑

GORDON J:   Assume for the moment that that hurdle is right.  What is the next line, dealing with Mr O’Shannessy’s submission, which is:

It goes this far, your Honour.

In a sense he outlines the limits of it and that is that had that evidence been given it would not support the proposition she cannot support herself.  That evidence relates, does it not, to the ability to call on the $150,000?

MS HARRIS:   No, your Honour, the predicate of the submission was not that the evidence exists.  The inference drawn by the Full Court was the evidence exists that she will get the money.  His point was there is no evidence and you see the submission that it is relevant to again at line 36:

the only evidence being that she is on good terms with them and there being no evidence at all or any explanation.

Again, your Honour, if the law is that you do not have to chase up your own assets, this point fails and I make that concession.  That was what was being put.  That submission would have been irrelevant if his primary submission or any submission was the evidence already gets me there.  The evidence already shows that she is entitled to the money.

GORDON J:   So, is the special leave application limited merely – I do not say that in a derogatory sense – to his ability to draw the inference, or do you also have a statutory construction question?

MS HARRIS:   I have a statutory construction question but, your Honours, might I just remind your Honours that we are talking about the appeal here and this Court has repeatedly said that a party is not permitted to raise on appeal, and an appeal court is not permitted to determine a matter, based on something that has not been run below and could have been met with evidence.  Now, it cannot be gainsaid, with respect, that this matter was not raised before the trial judge.  The 150,000 was, in the sense of its being characterised as an entitlement.  It clearly was not an entitlement.

So there the matter rested until the Full Court said, well, we agree it is not an entitlement, it is only a voluntary payment, but if she asks she will get it.  So the problem lies in what happened before the trial judge because it is at that point she could have brought forward the evidence to definitively negative the inference and make it impossible for it to be drawn against her.  Now, your Honour asked me about questions of principle.  These are equally important, if not more so.  Section 72 is at application book 99 and that provides a right of a spouse to maintenance, provides:

A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately –

Then we turn the page -

having regard to any relevant matter referred to in subsection 75(2).

The only potentially relevant matter is to be found at application book 102, (2)(b):

the income, property and financial resources of each of the parties –

Now, the Full Court does not say so but it must be taken to have characterised this as a financial resource of the wife.  It could not do so.  Even if the inference was open, it could not do so, for this reason.  It cannot become a financial resource which is available to fill a need on the part of the wife unless she takes the step, which it is common ground she had not taken, that is, to ask for the money.  She had to ask for the money before she could get it and the Full Court did not inquire as to whether she was prepared to ask for the money, let alone whether the corporation was prepared to give it to her, were able to give it to her, in the sense of being financially able to do it, able to do that consistently with relevant director’s duties, able to do that in a timely way so as to fulfil her immediate needs for spousal maintenance ‑ ‑ ‑

GORDON J:   So what is the identified error in the question of statutory construction?

MS HARRIS:   The characterisation of this as a financial resource.

FRENCH CJ:   Are you saying it is an implicit characterisation?

MS HARRIS:   It must be, your Honour, because they do not say ‑ ‑ ‑

FRENCH CJ:   Well, there is the chapeau, of course, at 72 - “reasonably unable to do so”, “party unable to support herself or himself”.  These factors are not exhaustive of that criterion, are they?

MS HARRIS:   No, your Honour, but whether we call it a financial resource or not, upholding the Full Court’s judgment will result in a seismic shift in the way spousal maintenance orders occur in this country because the first thing someone will do – the respondent husband will do, or the respondent wife will do, is say, well, your parents like you and they have supported you in the past, if you were in financial need you could ask your parents for money, could you not? 

Now, according to the Full Court’s reasoning, that is determinative of the application and it shifts the statutory obligations.  What section 72 sets up is a statutory obligation on the other party to the marriage if they have the means to do so.  What the Full Court did was shift that statutory responsibility, take away that right, and impose it on the brothers.

That is the error, your Honour, that they were not permitted by the terms of the statute to simply hope that the brothers would come to the party and to effectively force the wife’s hand to ask them to support her when the statutory obligation is on the husband.  Now, the Full Court did not turn its mind to any of these questions.  It did not address them at all.  But your Honours can see immediately what the implications are for spousal maintenance orders - applications in the future.

If what is permitted is a far‑reaching inquiry or a wide‑ranging inquiry into who might you ask to support you if I do not make this order or if the husband will not supply your financial need, that would turn this statute on its head.  What the statute sets up is a right where those two statutory criteria are met.  The Full Court did not engage with any of those questions.  It did not engage with the question whether the payment would actually meet her needs because it did not even ask what they were.

FRENCH CJ:   I think your time is up, Ms Harris, thank you.

MS HARRIS:   As the Court pleases.

FRENCH CJ:   Yes, Mr Lindsay.

MR LINDSAY:   Yes.  If your Honour pleases, it is our submission that contrary to what my learned friend has put to you that all the Full Court had to say in this matter has ramifications and significance for the parties alone and not for any other litigants in the Family Court.  May I commence with a matter your Honour the Chief Justice raised early in my friend’s submissions and it is the circumstance that the order of the Full Court is interlocutory.  That is conceded by the applicant unsurprisingly, but it is an interlocutory order, your Honour, discharging an interim order in the trial court.

Faced with that difficulty, what the applicant says in her reply is that the orders whilst interlocutory are not merely procedural but affect substantive rights.  We say respectfully not so, and clearly not so, your Honour.  The interim order can be revived.  The statute clearly facilitates that.  The Full Court order discharging the interim order was made under section 83(1)(c) of the Act.  That is referred to, if your Honour pleases at application book 105.

Can I indicate to the Court that the statutory scheme in respect of the powers of the Court in this area was – the legislation appears in the application book but there is a gap in that, your Honours.  Section 80 for some reason does not appear.  I gave my learned friend’s instructors notice this morning that we would be drawing the Court’s attention to the terms of section 80 which is the section the Full Court relied upon and so, your Honour, the order was made under 83(1)(c).  The Full Court came to the view that there was just cause to discharge the interim spousal maintenance order.  That appears at application book 77, if the Court pleases, paragraph 149 of the reasons.

We say that Part VIII of the Act contains ample power for the Court to restore her entitlements.  We say, of course, they ought not.  If the interim application were brought, if these matters that the applicant relies upon as being matters she was not able to put to the court, if indeed she had put them to the court, or if she puts them to the court on some subsequent interim application which she is perfectly entitled to bring, we say they would fail.

Your Honour, I wanted to take the Court, if I may, to section 80 of the Act.  It describes the general powers of the Court under Part VIII.  It is in fact where the power to make any interim order at all is found, if the Court pleases.  It is in paragraph 1(h).  That is the provenance of the order in the first place.  Can I respectfully draw the Court’s attention to paragraph 1(k).  That provides power to:

make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice –

So the order is discharged because of just cause under section 83(1)(c).  It can be revived, if necessary to do justice, under section 80(1)(k).  Of course, your Honour, that is in addition to the breadth of the terms of section 72 itself and section 74, which empowers the Court in maintenance proceedings to make such order as it considers proper.

The submission of the applicant made in her written submissions and repeated by my learned friend before your Honours today that the order can only operate prospectively is, with respect, simply not so.  We say in relation to this particular interlocutory order, your Honour, that no substantive rights have been abrogated at all.  In our respectful submission, it is an interlocutory order and is plainly unsuitable for the grant of special leave for the usual reasons that interlocutory orders are often unsuitable.  If your Honour pleases, to deal with the procedural fairness point, may I very quickly summarise the relevant sequence?

FRENCH CJ:   Do we know anything about the timeframe to a final trial, by the way?

MR LINDSAY:   I cannot assist your Honour with that, other than to say that there are outstanding pre‑trial issues, particularly as they relate to the production of documents from third parties.  The Family Court’s attitude, can I indicate, your Honour, is that the trial date will not be fixed until those interlocutory applications are determined.  There may be some apprehension on the part of the Court of course that, as with earlier interlocutory applications where the wife’s brothers were obliged to produce the will, that was a matter that went to the Full Court as well before the will was produced.  There is some apprehension, if I may speak on behalf of the Court.

FRENCH CJ:   You cannot do that, can you?

MR LINDSAY:   Well, insofar as it has intimated these matters, your Honour, in the context of hearing ‑ ‑ ‑

FRENCH CJ:   Anyway, at this stage there is no timeframe within which ‑ ‑ ‑

MR LINDSAY:   There is no timeframe.

FRENCH CJ:   ‑ ‑ ‑ we can say that a trial would be expected to occur.

MR LINDSAY:   I am unable to assist your Honour.

GORDON J:   Neither party has asked.

MR LINDSAY:   No, if your Honour pleases, but I do not want to take your Honour into the thickets of Family Court litigation in that respect.  But the short answer with respect to your Honour’s question is it is not the case that neither party has asked for that trial date to be allocated.  Your Honour, in relation to the sequence of events, it may be necessary just to revisit these matters briefly to shed some light upon what ‑ ‑ ‑

GORDON J:   What is the nub of it?  Is your position that there was no denial of procedural fairness?

MR LINDSAY:   That is certainly the case, your Honour.  It emerges ‑ ‑ ‑

GORDON J:   What is the high‑water mark of that submission?

MR LINDSAY:   The high‑water mark of that submission, your Honour, is the passage in the Full Court transcript which begins at page 211 of the court book.  Can I draw your Honour’s attention to this circumstance, that before the wife’s counsel makes any submissions at all to the court, Justice Thackray outlines the matter that the court wants to be addressed on.  The first of the four matters he seeks is submissions in relation to the significance of the $150,000 annual payment to the wife under the terms of the will.

Can I make this submission respectfully to the Court, that much of the wife’s energy has been devoted, in an attempt to delineate what was a very straightforward application on behalf of the husband, firstly before her Honour Justice Dawe in December 2013 – that was when there was no will at all.  There was no will at all before the court but the husband raised matters relating to the possibility that there would be provisions in that will which would assist the wife.  By March of 2014, the court did not have the will.  The wife’s family was still refusing to deal with that. 

That was a matter that was subsequently dealt with by the Full Court and that is referred to in the Full Court’s reasons, if the Court pleases.  We say, your Honour, that from the outset, the significance of the $150,000 annual allocation to the wife – that is the language of the will itself – the significance of that is put in its entirety.  In other words, it is the fact that the father has made explicit provision in his will for a gift to the wife - again that is the language of the will, of a capital sum.  He has then made specific provision for an annual entitlement to be paid pending her receipt of that – and there are certain triggering events that the will speaks of. 

It is that circumstance, your Honour, taken together with the circumstance that, at the December 2013 hearing, the wife had not even inquired about the terms of the will.  The date of death was 2009.  December 2013, the hearing is conducted upon the basis that the wife’s position is, “I do not know what is in the will because I have never asked”.

By March 2014, if the Court pleases, that position has changed.  The court is at least favoured with the account by the testator’s solicitor of the terms of the will.  He has filed an affidavit.  Still at that stage when the matter is argued before her Honour Justice Dawe in March 2014, the wife has made no request under the will of her brothers for any form of payment.  As far as the brothers are concerned, your Honour, all that is produced from them – all that the wife seeks to produce before the Full Court and it is introduced in to the caucus of material before the Full Court with the consent of the husband – is a letter from the brothers, from the executor brother, saying that in terms of the payment of the moneys that the father asked them to make in these explicit provisions of the will – that is a matter for the V Group.

He does not say he will not pay it.  So, at that stage, your Honours, when her Honour Justice Dawe is dealing with the matter in March 2014, we at least have the clause in front of us.  We know what the father has attempted to do in terms of providing for his daughter when he died in 2009.  But the wife is content for the matter to proceed upon the basis of the court knowing she has made no request for her payment and the court knowing that the brothers, knowing that the terms of that provision are now before the court, they do not take a position one way or the other.

GORDON J:   But counsel appearing for the husband did, according to the transcript at page 195, which is the part that Ms Harris took us to when it was put by Justice Aldridge that the inference could be drawn - not very dissimilar from what was ultimately drawn, he said “No, I wouldn’t go that far”.

MR LINDSAY:   Your Honour, may I answer your Honour’s question this way?  One of the matters that was agitated by the husband’s counsel before her Honour Justice Dawe was the Jones v Dunkel point.  It was put that the failure of the wife to say anything about the will at all in December and then her failure to even ask whether her brothers would pay her the sums under the will justified a Jones v Dunkel inference, and the Full Court, in our respectful submission, quite rightly rejected that submission.

That is the concession that Mr O’Shannessy is making there, that the Jones v Dunkel inference cannot be taken that far, but of course, your Honour, when the court get to the point of drawing the inferences, and they do that in some detail in the presence of the wife’s counsel when he is on his feet, it is not a matter of a Jones v Dunkel inference.  The court draws the inferences, if the Court pleases, from the evidence. 

It begins, if the Court pleases, at page 214 of the application book.  His Honour Justice Strickland at about point 3 on the page, after Mr Ackmann has told his Honour that the wife cannot compel a payment, his Honour says:

She was told she could not compel payment.  What you’re being asked is why shouldn’t she ask her brothers, “Why haven’t you respected our late father’s wishes?”

Mr Ackmann at about the middle of the page, your Honours:

Point well taken, your Honour.  She could have done that to close what I would respectfully say was the last gate that was left slightly ajar but there is no reason on the balance of probabilities to suggest in the light of the history of this matter that it would be forthcoming.

So, your Honour, the wife in the context of the lack of information that she has provided to the court on her entitlements is content to leave it to the court to draw the inferences, and the inferences that the court draws are explicated by them in some detail by both Mr Justice Strickland and Justice Aldridge.

Your Honour will see perhaps encapsulating all of the matters at page 214 and following on from that exchange with Mr Ackmann, Mr Ackmann has put that on balance of probabilities the money will not be forthcoming.  His Honour says “Why?” - or both of their Honours say “Why”, and his Honour Mr Justice Strickland says “What’s in the history” of the matter that would suggest otherwise, and as they go on to put to Mr Ackmann and as they explicate in their judgment, the matters were firstly, the fact that the wife had done nothing to bring her entitlement pursuant to the will to the attention of the court, failure of the brothers once that had been done to say they were not going to pay her, the good relationship between the brothers and the wife instantiated by the information in the wife’s financial documents that they had in recent time replaced two late model luxury motor cars with two other late model luxury motor cars, and the expression of the wishes by the father itself.

It was not a matter of a Jones v Dunkel inference.  With respect to Mr O’Shannessy he was wrong in putting that.  It was an inference drawn on the evidence.  All that we say my learned friend is asking the Court to do today is to suggest that another inference should be drawn.  With respect, we say that there is some degree of impertinence in that submission in this sense that – and it arises from what we have put, if the Court pleases, at paragraph 20 of our submission ab 149. 

The reason that there is no evidence before the court about a request by the wife and, as it were, a knock back from the brothers is not because she was not given an opportunity to do that, it is because she made no request.  It is not evidence of a request that she was not entitled to put before the court.  There was no evidence to put before the court because she had not made it. 

What she wants, in our respectful submission, is an opportunity to carry out certain acts which may constitute evidence.  So, in our submission, when the Full Court draws inferences about what will happen if she does make a request she then says let me put up evidence about that now which is to say let me make the request now that my strategy of asking you to deal with the matter upon the basis of no light being shed upon this matter has failed. 

Your Honour, can I also draw the Court’s attention to the circumstance that at AB 225 the applicant’s counsel conceded that if error were found, that is the error the court found in the fact that the relevant matter was not addressed at all by her Honour in her judgment, if error were found that the discretion should be re‑exercised by the Full Court.  It is at AB 225.  In the middle of the page Mr Ackmann agrees with the husband’s counsel that that would be done in those circumstances. 

So, your Honour, that was the opportunity for the wife through Mr Ackmann to cavil about having no chance to make a request and no

chance to give evidence.  She did not do that through her counsel, your Honour, and in our submission because the submission would have sounded hollow in terms of the way in which she chose to conduct the litigation in respect of this important issue of her resource. 

Your Honours, can I just make one other matter before I leave the question of the interim nature of the Family Court order, interlocutory nature of the Full Court order?  It is not just that the Court is being invited to, in the middle of lengthy Family Court proceedings, revisit an interim order which can, in any event, be reagitated before the Family Court, but it is an order that was only partially discharged, if the Court pleases, and that appears from application book at page 53, paragraph 36. 

Because of concessions the husband made before her Honour Justice Dawe and because the wife’s use of the home entailed his payment of the significant mortgage that attached to that property – it is paragraph 36 which begins at the bottom of page 52 but goes to the top of page 53.  The order that was discharged was the cash amount, as it were, of $2,500 per week, computing at $10,833 a month. 

But as the Full Court note, and drawing attention to her Honour’s own notation of this in her judgment, the total payment then in the light of his payment of mortgage, rates and taxes and school fees, was an amount of $28,000 per month.  I only mention that, your Honours, just to put the unusual nature of the invitation that is being extended to the Court in respect of an ‑ ‑ ‑

FRENCH CJ:   Yes, thank you, Mr Lindsay, your time is up.

MR LINDSAY:   ‑ ‑ ‑ in some further context.  Thank you.

FRENCH CJ:   Yes, Ms Harris.

MS HARRIS:   A couple of points, your Honour.  It is not to the point whether there is ample power to restore the order.  As it happens, the sections to which my learned friend has taken you go no way to showing that a fresh application could be made with retrospective effect back to December 2013. none of the provisions that you were taken to show that.  The particular one which related to the revival of orders pertained to suspended orders, not discharged orders, so there is no power just to revive a discharged order.

The wife has been denied the money since December 2013 by effect of the Full Court’s order and in circumstances where there is no trial date, I am instructed that valuations of property are not anywhere near being done.  The trial is a way off.  In those circumstances, where the trial judge found that the wife had a need which she was not able to meet herself and the husband had the means to meet that need, that should have been the end of the matter.

Now, when my learned friend goes to issues of procedural fairness, your Honours will see that - your Honour Justice Gordon said what is the high‑water mark of the submission?  If the respondent were to succeed on that submission he had to take you to something in the proceedings before the trial judge to show that the wife had an opportunity to lead evidence before the trial judge that would have negatived this inference.  The inference was not raised before the trial judge.  The availability of the inference was not raised.  No evidence was led.  She could have dealt with it definitively at that point.

Now, I do not need to remind this Court of course of Water Board v Moustakas and like cases that say it is fundamental that a party must be heard before a point is determined against them, and that did not occur here.  Picking through the transcript for passages which could on one view with the value of hindsight be conceivably - could conceivably point to an inference being contemplated, do not help.

If that is the high‑water mark, your Honour, it falls well, well short of showing that this matter was put and put fairly and put in a way that it could have been addressed by the wife, by saying, I have not asked and the evidence would show that I would not get it.  That is what she was entitled to do.

Now, the other thing our learned friends do not do is engage with the matter of principle that I took the Court to.  The question of what a financial resource is does not even need to have the label “financial resource”.  Can the court take into account the potential availability of a gift not yet asked for, but the potential availability of a gift?  Can the court effectively oblige the wife to go cap in hand to her brothers and say, my father wanted you to give me $150,000, give me the $150,000?  In those circumstances, the court is substituting the party to the marriage, who is the one liable under section 72 to support the wife if she cannot support herself, or some stranger to the marriage who the wife is effectively obliged to prevail upon.

Now, it is significant, as our friends emphasise repeatedly, the wife had not asked, she had not asked for the money.  Now, in circumstances where she had not asked for the money, the possibility of her brothers giving it to her remained theoretical.  It was not available to fill her need, the need which had been found by the trial judge, and the Full Court do not even address that in their reasons.  They do not say how that money will be available to fill her need, they just say, if she asks, she will get it.

On the very last point that was raised by our learned friends in relation to the partial discharge of the order, our learned friend’s client did not ask the court to discharge that part of the order so the entirety of the order with respect to spousal maintenance which was in issue was discharged by the Full Court on the basis of this inference.  If the Court please.

FRENCH CJ:   Thank you, Ms Harris.

Yes, we are of the opinion there should be a grant of special leave in this matter.  I can take you to the draft notice of appeal which I think appears at page 86 of the application book.  The grounds should be confined to ground 2 – 2.1 and 2.2 – and 3 with 3.1.  Grounds 3.2 and 3.3 seem to be argumentative and I do not see any real point, Ms Harris, in having those included in your notice of appeal.

MS HARRIS:   As your Honour pleases.

FRENCH CJ:   We would not grant leave in respect of ground 4.  So, on the draft notice of appeal at 86, special leave will be granted in relation to ground 2, ground 3 to the extent of 3.1, and that is the extent of it.

MS HARRIS:   Might I just clarify ground 3.3, your Honour, which goes to the matter of legal principle as opposed to the inference?  Is your Honour intending to exclude that ground?  Ground 3.3 is intended to go to the question of the meaning of the statute, as it were, and whether this could constitute a financial resource.

FRENCH CJ:   Yes, all right, we will leave 3.3 in.

MS HARRIS:   As your Honour pleases.

FRENCH CJ:   Yes, all right.  Thank you.  There will be a timetable available to you in relation to submissions.

MR LINDSAY:   If the Court pleases.

AT 2.36 PM THE MATTER WAS CONCLUDED