IM v MKR

[2007] HCATrans 545

[2007] HCATrans 545

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M75 of 2007

B e t w e e n -

IM

Applicant

and

MKR

Respondent

Summons

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON WEDNESDAY, 19 SEPTEMBER 2007, AT 10.48 AM

Copyright in the High Court of Australia

IM appeared in person.

HIS HONOUR:   Thank you, Mr M.  You are the applicant on a summons seeking to have added to your written case some additional material and the additional material I understand you want to have added to the written case is, in effect, material that you wanted to put before the Full Court of the Family Court and which the Full Court of the Family Court would not receive, is that right?

IM:   You have it in a nutshell, sir.

HIS HONOUR:   Yes.  Now, the question then becomes one of timing, Mr M, more than anything, that is, when it is appropriate to consider whether the Court should have that material.  Can I explain what I mean step by step so that we all understand what has happened.  The Rules of this Court describe how applications for special leave to appeal are to be made.  They make particular rules about unrepresented applicants and those rules are in rule 41.10.  They say that an unrepresented applicant must file his written case and his written case must take a certain form.  Do you understand that?

IM:   Yes, sir.

HIS HONOUR:   What then happens is that the Court, or two Justices, consider which path the case takes.

IM:   Yes, sir, I understand.

HIS HONOUR:   Either it is dismissed or it is then served on the other side and we then see what happens.  You understand that so far?

IM:   I am understanding it.

HIS HONOUR:   So far so good?

IM:   Yes, sir, we are on the same page.

HIS HONOUR:   Right.  Now, the question is whether these additional materials, which are the material you wanted to put in front of the Full Court of the Family Court and they said you could not, should be available to the Justices who are deciding which path this case should take?

IM:   Which had been sought - if I may, your Honour - it had been sought at the time of filing the written case to the annexure ‑ ‑ ‑

HIS HONOUR:   Yes, I understand, you wanted to put them in.

IM:   If I may draw your Honour’s attention to the section of the rules – I cannot recall the number – regarding summary submissions.  Again, sir, like you have just pointed out in regard to written case, there is no identification that annexures could be attached to a summary submission.

HIS HONOUR:   No, there is not, that is right.

IM:   Hence my position.  It is only at the production of the books for the appeal that it is clearly identified that a Form 18, if I may take out the difference by its name, they are both Form 18s, have the ability for annexures to be added to them.

HIS HONOUR:   That is right.

IM:   Hence my position that, although my Form 18 has a different name and requires leave of the Court to be served before it is served, it cannot be deduced properly whether or not leave should be granted until a proper deduction of the matters can be made on a probability basis rather than a proof beyond doubt.  Now, the issues I have had with the Family Court are, they are continuously, in my opinion – I am, of course, biased as to what I am wanting to do – put a level of beyond doubt on any applications for leave rather than on the grounds of probability and then justiciability of the matter to be heard.

HIS HONOUR:   Can I bring you back.  The only question is whether these documents, these annexures – can I call them that, do you understand?

IM:   Yes, I have them in both terms.

HIS HONOUR:   Whether it is appropriate that they go forward with the written case which determines which path you take.  Now, if you go down the path where the papers are to be served, then would be the time to consider whether annexures are necessary.  This first preliminary stage of written case is a stage of deciding which path you go down and the rules are struck in a way that get you to put on your written case, and you are right, put on your written without annexures.  Then if you go down one path, then the question of annexures arises.  So it is a question of timing.

IM:   So, save a reapplication of the matter we have before us today, or your Honour has before him today, would it be worth or more appropriate that there be a stay on this hearing until such time that that decision was made, even though my argument is a proper decision on leave cannot be made without the additional evidence.

HIS HONOUR:   I understand that.  The proper course, I think, would be to adjourn off your application until we know which path your case is going.

IM:   That still leaves the question open in my mind, sir, as to whether or not the decision on leave can be properly made considering there are some – if I may refer to my notes – if I recall correctly as I cannot see my notes immediately, sir, there are some 13 or 14 references to the additional material within my written case as simple references to the additional material.

HIS HONOUR:   I understand that, yes.  Your written case says – and forgive me if I abbreviate it too much – but your written case is, look, I wanted to put additional material to the Full Court.  They would not let me do it.  I thought and still think, you would say, the additional material was very important and they would not let me put it.

IM:   That is it in a nutshell, sir.

HIS HONOUR:   That is the nutshell of your case, is it not?

IM:   That is the nutshell of the case in regard to the additional material.  As to the other issues, because this case is a combination of four matters and there is a fifth issue being brought up which is whether or not leave was required in the Family Court in the first place due to the way, the nature and the practice of making the order that was made.

HIS HONOUR:   I understand that.

IM:   And the reasoning why the Full Court claimed that the additional material was irrelevant.

HIS HONOUR:   I do not want to cut you off, but ‑ ‑ ‑

IM:   Sir, I can understand your position.

HIS HONOUR:   The question is one of timing.  The written case is intended to be the basis upon which two Justices of the Court decide which path your case is to take.

IM:   Yes, sir.

HIS HONOUR:   We do not need the additional material for that purpose.  We know that you say there was material that you wanted to put before the Full Court of the Family Court which they would not let you put before them and that is your complaint.  Now, that complaint may be good, it may be bad, I do not know.  I have not formed any view about that yet, but that is the essence of your complaint, is it not, or one of them?

IM:   That is one of the five issues, yes, sir.

HIS HONOUR:   There are other complaints, yes.  Now, which path the case takes will be decided at a later time, but we do not need the additional material to do it.  The appropriate course would be, I think, simply to adjourn your application to a date to be fixed, allowing this path decision to be made.

IM:   In regard to the book of additional material, if I may call it a book, which it obviously is, I agree with your Honour, but if I may continue with the other issues I have or other items I have put within the orders sought here today, sir.

HIS HONOUR:   Yes.

IM:   If I can refer you to the summons.  Item 4 and item 3 your Honour could see no problem with those?  I could have, admittedly, just written a letter to the Court.  They are just a formality, sir.

HIS HONOUR:   They are formalities.  Those are just correcting – if they are not typos, they are the next best things to typos, is that it?

IM:   Yes.

HIS HONOUR:   Yes, I understand that.

IM:   I apologise for the error, sir.

HIS HONOUR:   If that is the worst that happens at sea, I think we will be all right.

IM:   There is a lot worse than that in there, sir.  The spelling is probably the worst.  Sir, in regard to 2b, that order is in actual fact in that additional evidence, therefore I do not see any point in continuing on that one.  In regard to the order of 3 March, being 2a, sir, I do seek that for the Court deciding the leave issue they accept a copy of – and I am granted leave to place on the file a copy of those orders.

HIS HONOUR:   Why do we need the actual piece of paper as distinct from the piece of information?  We have the piece of information, have we not?  Do we need the actual ‑ ‑ ‑

IM:   Well, the information is contradictory, sir.  If you return to the reasons for judgment for both Justice Carter, Chief Justice Bryant and the Full Court, they claim those orders were made in February. 

HIS HONOUR:   I do not think your case is going to turn on the precise date, is it, Mr M?

IM:   The date of the making of this order, being order 11 of 3 March, is the only reason why the additional evidence sought to be relied on was refused by the Full Court because they claim that the transcript of 3 March was irrelevant.

HIS HONOUR:   I do not think we are going to be ‑ ‑ ‑

IM:   Sir, I can hear you and I would have no objection to an adjournment to a time to be set.  I do note that there has been no notice of appearance given by the other party either for the first application or this application.

HIS HONOUR:   No.

IM:   Therefore I wonder – and I apologise if I am in error – but I wonder if I may seek a hearing as if the matter is to be undefended and in an expedient ‑ ‑ ‑

HIS HONOUR:   No.

IM:   No, sir?

HIS HONOUR:   No.

IM:   I can only but try, sir.

HIS HONOUR:   I understand that.

IM:   I am glad to see you smile, sir.  It has been a hectic morning, has it not?

HIS HONOUR:   The only order I will make is that your application is adjourned to a date to be fixed.  Thank you.

IM:   Thank you, sir, very much for your time.

HIS HONOUR:   Adjourn the Court.

AT 11.02 AM THE MATTER WAS CONCLUDED