Harrington v Lowe

[1995] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S39 of 1995

B e t w e e n -

MAUREEN FRANCIS HARRINGTON

Applicant

and

KEVIN GRAHAM LOWE

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 24 NOVEMBER 1995, AT 10.20 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear with my learned friend, MR G. RICHARDSON, for the applicant.  (instructed by Keddies)

MR M.D. BROUN, QC:   I appear for the respondent, your Honours.  (instructed by Adrian Twigg & Co)

BRENNAN CJ:   We will hear from Mr Broun first, Mr Bennett.

MR BENNETT:   If the Court pleases.

MR BROUN: Your Honours, the essential character of an order to conference under Order 24 of the Family Law Rules is that the statute requires it to occur. That is section 79(9) of the Family Law Act which, effectively, says you cannot have a property order made unless there is an Order 24 conference held first.  So, the first feature is that, effectively, it is compulsory.

Order 24 of the rules then gives effect to section 79(9) by saying this is what is to happen and this is how that statutory requirement is to be given effect to. Now, it is therefore different from, in basic character as the Full Court has held, an ordinary negotiation where parties who have some dispute endeavour to negotiate with each other to reach a compromise.

BRENNAN CJ: Section 79(9) does not make it different.

MR BROUN:   Your Honour, it does in this sense, that it is a negotiation but a negotiation that is required as a prerequisite of getting a hearing.

BRENNAN CJ:   That is right.

TOOHEY J:   All that means is that a conference shall take place.  Nothing in the section defines the nature of the conference or the implications to be drawn from it or the results of it.

MR BROUN:   Your Honour, it is then a matter, I suppose, of policy.  If the parties cannot have a hearing without such a conference and if, indeed, the court provides a registrar to assist in the conference, then the rules should specify what the impact of that conference is.

BRENNAN CJ:   Patently, the purpose of a conference is to reach an agreement.

MR BROUN:   Indeed, your Honour, yes, or to see whether an agreement may be reached.

BRENNAN CJ:   Yet, on your argument, the rules have been enacted in such a way as to preclude a court discovering whether an agreement has been reached.

MR BROUN:   No, your Honour, not at all.  No, I would not accept that.  Your Honours, if we look, for example, at the case the Full Court referred to at some length of Johnston, during the course of the conference a document is written out and signed and, indeed, during the course of that same day orders were made in accordance with that document.  Clear, then, that agreement was reached and what it was.

If one looks at the ordinary situation in an Order 24 conference as in fact happened here, during the course of the conference there is discussion on many points; there is agreement on principle; everybody goes off to draft something to give effect to that agreement or, perhaps, to negotiate further.  Now, in this case, of course, there were a whole stack of individual terms which were not even discussed in the Order 24 conference but which were negotiated and agreed at a later time and, in fact, the drafting of the document, as we have endeavoured to show in our chronology, took a year and involved, at one stage, my client saying, “All deals are off.  That’s the end of negotiations; we’re not interested in further settlement discussions” and that was some four or five months after the Order 24 conference.

Then there are further proposals put forward.  There are terms signed by my client; then the wife changes the terms again and submits it back and we sign it.  Eventually, it goes to a registrar.  Now, it has gone through a whole stack of events between that occasion when they met with the registrar and when they finally had a document that they were both prepared to sign.  Some of the terms, in fact, for example, how the medical records were to be disposed of, how the medical equipment of the practice was to be divided up, they were matters that were the subject of extensive negotiations.  So that one has a very difficult set of factual circumstances here because of the amount of negotiation that goes on but the basic point remains, of course, that when the parties left the conference they did not have a concluded agreement.

BRENNAN CJ:   They may not have had a concluded agreement but they had an agreement as to some matters which were then to be reduced into a form which gave effect to that agreement.

MR BROUN:   Indeed, your Honour.

BRENNAN CJ:   The finding of the primary judge was that what was ultimately produced was inconsistent with the agreement reached at the conference.

MR BROUN:   Your Honour, that was the finding of the primary judge.

BRENNAN CJ:   Then, what you are saying is that Order 24 prevents the court discovering whether the document that ultimately emerges is or is not in accordance with the agreement that is reached at a conference that was held for the purpose of reaching an agreement.

MR BROUN:   Your Honour, yes, that is indeed so and it has to be so.

BRENNAN CJ:   Well, why is it not a special leave point?

MR BROUN:   If your Honours feel it is, I suppose there is not much I can do about it but - - -

DAWSON J:   You can argue against it.  The Family Court is bound by the rules of evidence, is it not?

MR BROUN:   Indeed, your Honour, yes.

DAWSON J:   How can you have a rule of court dispensing with them?

MR BROUN:   It is not, in our submission, a rule of court about evidence.  It is a rule of court about how and on what terms these conferences are to be conducted. 

DAWSON J:   Yes, but what it purports to do is to bind the court in proceedings in the court as to what it can receive evidence of and what it cannot.

MR BROUN:   Indeed, yes, your Honour.

DAWSON J:   Is that not inconsistent with the court being bound by the rules of evidence?

MR BROUN:   No, your Honour, because what it does is to give a special ‑ ‑ ‑

DAWSON J:   Not only bind the Family Court but other courts as well.

MR BROUN:   It certainly purports to do so.

DAWSON J:   That is wildly beyond power, is it not?

MR BROUN:   Your Honour, our submission is no because the whole purpose of the rule is to encourage people to go into those conferences - - -

DAWSON J:   That may be the purpose but the effect of the rule is to impose a different rule of evidence on the court, and on other courts if it is a valid rule.

MR BROUN:   I suppose, your Honour, it is a matter of characterising the rule.  In our submission, it is a rule relating to the nature of the conference rather than a rule relating to the law of evidence.

TOOHEY J:   But the complaint is not really that the rule operates to protect admissions made and concessions given in the course of the conference, one can understand a rule that provides to that effect.  The real complaint is that the parties, having reached an agreement at the conference, the terms upon which they reached agreement are not available for the purpose of deciding whether the document truly reflected their agreement.

MR BROUN:   That is so, your Honour, yes.

TOOHEY J:   It is a fairly narrow complaint, as I understand it; not one that would seek to bring down the rule in its entirety.  Well, perhaps, it might but one can see the policy of the rule in relation to ordinary negotiations.

MR BROUN:   Indeed, your Honour, but the special character here, we would put, is really the compulsory element in it.

DAWSON J:   You can provide for a conference in that way but, of course, it requires legislation.  That is the point.  The legislation is deficient, perhaps, in your view, but you cannot do these things by rules of court.

MR BROUN:   Your Honour, it is essentially a matter for your Honours’ judgment as to - - -

DAWSON J:   Of course, that is the answer that is put against you anyway.

MR BROUN:   Yes.  It is a matter of judgment, I suppose, as to whether this is a rule about a conference or a rule about evidence and if it is a rule about conference and what happens at that conference and what the limitations of it are, then the purpose is not so much to cut down evidence as to give a special character or a special, as it were, cone of silence over the matter.

TOOHEY J:   But it has the consequence, does it not, Mr Broun, that if the parties leave the conference, having reached some sort of agreement, if that agreement is not reduced to writing, there is no way in which the making of the agreement can ever be established.

MR BROUN:   That is so, your Honour, but may I add that even if they had reached an oral agreement and one could prove that oral agreement, that does not get an order made because one can still - it is fairly clear in Family Law practice - go to a court and say, “Well, I agreed to that last week but I don’t agree to it now” and the order does not get made.  The whole point, perhaps, is that the contract made or agreement made at the Order 24 conference is not binding on anybody until it gets made an order.

DAWSON J:   Why should that be so?  Why should not negotiations - there is nothing said about it in the Act - be conducted on a “without prejudice” basis?  But once an agreement is made, then evidence can be given of it.  That is the law which applies to most people.

MR BROUN:   In order to make an order though, the court still has to be satisfied that the order is just.  Now, in practice, what that means - that is section 79(2) - is that if a party comes along to the court and says, “Well, I did agree to this but” - or, perhaps may dispute whether they agreed to it or not - “on reflection, it is not a just order”, then the whole matter has to be ‑ ‑ ‑

DAWSON J:   That is another thing.  That merely means that the agreement between the parties does not automatically become an order of the court.

MR BROUN:   Indeed, your Honour.

DAWSON J:   In arriving at what the agreement of the parties was, arising out of the conference, the ordinary rules are quite sufficient to cover the situation.

MR BROUN:   Your Honour, may I draw your Honours’ attention to the somewhat strange factual matters in this case?

DAWSON J:   No, they do not have anything to do with it.

BRENNAN CJ:   You can, if you wish, Mr Broun, but really, you have had a fair indication now of the problems that seem to confront the argument you wish to put.

MR BROUN:   Indeed, your Honour, yes.

BRENNAN CJ:   Well now, that is of great instruction for those who are going to conduct an appeal before this Court.

MR BROUN:   Indeed, yes.  Thank you, your Honour.  I would perhaps - well, your Honours have no doubt seen the rest of our written submissions.  Thank you.

BRENNAN CJ:   Special leave will be granted in this case.

MR BENNETT:   Would your Honours be prepared to give an indication that if the Court lists permit it, this is a matter deserving of some expedition?  It is a matter which is a family law matter which has - - -

BRENNAN CJ:   Why, Mr Bennett?

MR BENNETT:   Your Honour, it is a family law matter which has been going for some time where the result of the court’s order may not be to finally determine the disputes between the parties.  It is a very short point which - - -

DAWSON J:   It is only about money, Mr Bennett.

MR BENNETT:   It is only about money.  It would only take half a day or less, your Honours.

BRENNAN CJ:   That may be so.  Mr Bennett, we have heard what you have to say but I must say that having regard to the state of the lists of the Court at the moment and the expected state of the lists of the Court by the beginning of next year, I can give you no assurance that there will be any priority accorded to this case.

MR BENNETT:   If your Honour pleases.

AT 10.32 AM THE MATTER WAS CONCLUDED