KAS v Das

[2002] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M93 of 1999

B e t w e e n -

KAS

Applicant

and

DAS

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 12.43 PM

Copyright in the High Court of Australia

MR S appeared in person.

McHUGH J:   I will call you Mr S because of the need to protect the names.  So, if you would proceed, Mr S.

MR S:   This case, your Honours, I have appealed about 106 grounds of appeal and it happens that when I been preparing summary of argument I find that something corruption in my file in the Family Court.  I give yesterday some correspondence between me and the Registry about that corruption because I feel some document submitted by me was not before Justice Joske before his decision.

That corruption I show that it was really severe but nobody want investigate the matter.  I awaiting this and I awaiting the same times that they changed the rule that if I wanted to ask some or I make something, they refuse the time.  Then I also ask it, you have to deal with me with the old system.  This two reasons make for me ‑ I confused.  I cannot make the submission and the Registrar says that I have to come to the Court to ask leave to do that or to leave to adjourn the matter to the next sitting.

Then I went that day to do that.  I do not want to discuss without summary of submission in that day but the Court enforced me to proceed without written submission and also did not want to hear me about the corruption of the file and they gave me ‑ ‑ ‑

McHUGH J:   But what did the corruption of the file that you alleged have to do with the appeal?

MR S:   Yes, but because I give submission, written submission, because they said no time for me to make submission in the end.  I have to make written submission and after they reply on me and I reply for them.  All this was somewhere and for that they filed after to give them under one number and also, Justice Joske asked Mr Mulvany ‑ was child representative – to give his submission.

I know that there was another number for his submission before.  Then something happen that many, many submission was somewhere that had to give to the judge after they put in this…..book and the other things that I wanted to make some modification or some addition.  For that they have you passed the time.  I say that they reduce the time, two weeks or one week, that I have to make this change but they said, “No, we can’t accept this now.  You have to come and ask leave” because I do not know.  I, when I make submission for the old system of grounds or the new one with addition and I need only one or two days to do.  Even I ask it one or two days to answer.  Then they enforce me to deal with the matter without written submission and in two hours instead of one day.

McHUGH J:   Yes, I know, but what the Court said is you had plenty of time.  Mr Mulvany got up and he made a submission, opposed the adjournment.  The correspondence between you and the Registrar was there.  You knew your case was on for hearing.  You knew you had days.  You, yourself, concede in your written submissions that you were trying to cut it down from – you got it down to 40 pages, I think.

MR S:   Yes, it was problem for me, yes. 

McHUGH J:   Yes.

MR S:   Yes, but now that happen.  I need one day even.  They have ‑ not finish in one day.  They can agree about that and the next day I do because I already have but I do not know, I confuse, which one.  I need that leave before I do that.  I need the leave.  Then I proceed for the matter in two hours instead of one day and I forget yesterday to give that schedule.  It was one day for me.  Here, in this paper – I do not know, it is late now to give you but because I mention in my submission, written submissions, that I will give ‑ that they give me one day instead of, but they give me two hours only and they cover only the adding grounds.  They covered only the adding grounds.  Even if I have not written submission they have to address all of them without the written submission but not ignore them all and especially they have a very serious matter.  For example, they have denial of natural justice.  I wanted to interview the child representative because he change the order in the last moment and without a discussion and why, I do not know.  Who forced him to do that, I do not know.

In general, the Court takes the child representative order as court order, exactly words by words.  We did not discuss this in seven days, this matter, but in the last moment he gave another order.  For that I wanted to interview him why he did that and why that order.  I also asked that they ask the children in chambers.  There is system for that because the child representative did not make as the children want or wishes.  Against the wishes of the children and there is another thing.  There is report; it is called duty report from Ms Katz two years before the trial and was without properly investigation she did this for interim order for interim contact.

In the end they said, “Forget about all the things before.  Write a new affidavit and we do new report” and the new report by Mr Ur;omo it was ignored at all by Mr Joske and as the Full Court said, he has the right to take the old one and reject the new one and which especially made for the trial because in the new one the children wanted more time.  They wanted many things, to come to me and so on.  For that I do not know.

They have agreed that they take Ms Katz.  Even his Honour Joske said for me when I wanted two years ‑ to interview Ms Katz they not give me but they give me in the trial and I insist that she come because I know that her report is not correct but it is against me that she came but this wrong technically but I wanted to interview her and Mr Joske said, “This is a duty report and a duty report is duty report and we can’t judge here about duty report why she did not investigate properly”.  He, by himself, as he said but after that he takes this point and he take all which in this report which he said is duty report and duty report not less or more than duty report.  He take this and forget the family report of which for Mr Urlini.  This is have to correct it by the Full Court but they said no.  He has a right to take which he wants and so on.

Also, in my submission, in which I said I have doubts as my submission was before his Honour because I analysed all the witness and there is a contradiction in there.  I feel that he has no chance to read them and another point also is interpose one witness.  I was against this interpose because I was not prepared for her in that day but they enforced me to do that and the same time there is two rules.  There was one for me rules and for the other sides rules because they have very…..solicitor.

McHUGH J:   Yes, but you have to show that there is something about the Full Court judgment that is wrong.  Now, in your application you rely on numerous sub‑grounds and you group them under, I think, 14 arguments.

MR S:   Yes, but I say that this, as I did not give in the evidence grounds but I said if there is grounds about natural justice or contradiction or something have the Full Court to address but they ignore that.  I said they ignored the hundred ‑ ‑ ‑

McHUGH J:   Yes, but you see an appeal court does not have to address every argument and they do not have to hear parties for as long as they want to address.  There is no denial of natural justice because a time limit is put on you.  The United States Supreme Court only allows half an hour to hear people for an appeal, half an hour.

MR S:   But I want to urge this point.  His Honour Joske did the opposite.  If the wife said that she had difficulties with the homework of Josephine and so on but in the report he said in his decision that the wife show the ability to deal with the children.  This is very important because there is very big difference between the level which I would give the children in many, many fields:  in language, in mathematics, in science, in computers, in geography, in politics, in everything and the wife.  I showed the wife all the reasons and ‑ she is Polish but as happens I do not know, she do not have to be – I do not know Catholic or Orthodox, I do not know what is the reason until now what happened for now, I do not know, until now ‑ ‑ ‑

McHUGH J:   Like all these ‑ ‑ ‑

MR S:   But I not argue about that now.  I said if she said I have difficulties with the children’s education or homework or helping and the judge has said the opposite in his decision.

McHUGH J:   Yes, but you have to address the reasons of the Full Court.  You keep wanting to talk about Justice Joske, but you have to show that there is some error by the ‑ ‑ ‑

MR S:   Yes.  I said I show the Full Court this contradiction and they said it is nothing and you make big deal about this point and when I said about the interposal they said also answer me as for refusing the costs for that.  It is not for refusing the costs that we lose the injustice, lose the justice and I said there is also rules for me about the time, about how I give the things.  I give this for the Full Court but they did not address.

I do not understand why until now these questions and why take the opposite, for example, why he concentrate about this violence which is not true and all the pages of the judgment about this violence which is from her affidavit which is perjury and concentrate on it and they said also in every line they said “in police statement”, “in police statement” even if it is not police statement.  It is her statement to the police which in Magistrate Court I said, but when we said in police statement shows that the police was not involved.  Was no police involvement in my case at all, no medical, no ‑ ‑ ‑

McHUGH J:   No, but your wife had given a statement to the police, to the constable.

MR S:   Yes, but I mean that we cannot use ‑ I am…..and logical and so on and use that language for computer to be intelligent computer but I am very sensitive of the language.  It is the same and so on but when you need some ‑ in every page five or six shall be the…..but concentrate on the level of education, the level of what they will lose, the children, how they lost their relatives.  They have 13 cousins and ‑ ‑ ‑

McHUGH J:   I know, but the judge – some things he found in your favour.  For example, he said that you were much better qualified.  You had a very impressive list of qualifications but he came to the view that on the whole the children were better off with their mother.

MR S:   What I said because I said also the mother is capable to help with them.

McHUGH J:   And you yourself seem to say she was a good mother.  You said, did you not, that she was a good mother.

MR S:   I cannot say “bad mother” or “good mother” because when you take me as extreme point, I said “good mother” what mean “good mother”.  Good mother, of course, as mother but they need the father also.  I was like mother and father because she has five children, every two years a child.  I was with the other children in the time of her birth and give birth and after babies nursing.  I was for them everything except giving birth and feeding from my breast.  I take them to school.  I take them from school for medical, doctors and ‑ ‑ ‑

McHUGH J:   I know.  Mr S, it is a very sad case and all these cases are but your time is up and we have read your submissions and we have listened to you today, but your time is up.  I will have to give a short judgment.

MR S:   Yes.  I say that there is natural justice.  I complain in my grounds about many things important and the Full Court did not address.

McHUGH J:   I understand that.  Now, if you would take your seat, I will give a short judgment in respect of the matter.

In this matter, the applicant seeks special leave to appeal against an order of the Full Court of the Family Court.  That court dismissed his appeal against orders made by a judge of the Family Court, Justice Joske.  The principal orders made by Justice Joske were that the respondent wife have sole parental responsibility for the long‑term and day‑to‑day issues concerning the care, welfare and development of the children of the marriage between the applicant and the respondent.  Justice Joske made a number of adverse findings against the applicant.  He said that, where there was a conflict in the evidence between the husband and the wife, he preferred the evidence given by the wife unless he made a specific finding to the contrary.

In this Court, the applicant is unrepresented.  However, he is highly educated.  At the time of the marriage in 1983, he held the position of an associate professor of mathematics.  He conducted his own case before the primary judge, Justice Joske, and before the Full Court.  He appears to be reasonably well versed in the legal rules that apply to his case.

The applicant appealed to the Full Court on 106 grounds.  At the hearing he applied to add some further grounds.  When the appeal was called on for hearing, the applicant sought an adjournment for about seven days to file a written summary.  The summary should have been filed before the hearing.  The applicant claims in his submissions today that there was some misunderstanding between him and the registrar.  He thought that he would be able to apply for an adjournment.  In fact, he applied for an adjournment, but the court refused the adjournment.  However, the applicant had ample opportunity to file his summary and he had notice of the hearing.  The refusal of the adjournment by itself would not warrant the grant of special leave to appeal.

However, after the hearing commenced and at about 11 o’clock on the day of the hearing, the Full Court, through the Chief Justice, told the applicant that it would only give him two hours to present his oral argument.  At the conclusion of the argument, the Chief Justice who gave the leading judgment of the Full Court said that there was no substance, in his view, in the added grounds of appeal.  His Honour also seems to have taken the same view about most of the other grounds.  In fact, the Chief Justice said that the fact that he did not refer to a particular ground did not mean that he had not had regard to it or that it had substance but, rather, the contrary.

The Chief Justice, however, gave his reasons for rejecting seven or, I think, Mr S says that he gave reasons for rejecting eight grounds of appeal.  But, be that as it may, in his application for special leave to appeal the applicant challenges the Full Court’s decision on numerous grounds which are grouped under 14 arguments.  Many of those arguments allege some form of a denial of natural justice in imposing time limits, refusing adjournments or failing to deal with every ground or argument relied on.  Behind many of the arguments is the idea that a party is denied natural justice unless the party is given time to put whatever submissions or questions to witnesses that the party wishes to put.  However, the rules of natural justice or procedural fairness, as it is often called, are flexible.  Imposing time limits is not inconsistent with the rules of natural justice.  Nor is it inconsistent with those rules for a court or a tribunal to refuse to hear argument on matters that the Court thinks do not have substance.

None of the grounds relied on, in our view, warrant the grant of special leave to appeal by this Court.  On the materials that are before this Court, there is no reason to doubt the correctness of the order of the Full Court.  Accordingly, in what is a rather sad case, the application is dismissed.

Adjourn the Court, please.

AT 1.10 PM THE MATTER WAS CONCLUDED