Neil v Nott

[1994] HCATrans 312

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml00 of 1993

B e t w e e n -

PETER CHRISTISON NEIL

Appellant

and

JAMES HENRY NOTT and BARBARA

ANNE COYNE

Respondents

BRENNAN J
DEANE J
TOOHEY J
GAUDRON J

McHUGH J

Neil(2) 1 6/5/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY. 6 MAY 1994. AT 11.52 AM

Copyright in the High Court of Australia

MR P.C. NEIL: If Your Honours please, I am the appellant

and I appear on my own behalf in this matter.	I am
an officer of the High Court.	I have been on the

roll of the High Court since 1968 but I am not a

litigation lawyer and I am in very unfamiliar

territory, so I do seek your indulgence if I do

make any errors.

BRENNAN J:	We will just take the appearance of your opponent and then you can proceed, Mr Neil.
MR N. MUKHTAR:	May it please the Court, I appear on behalf

of the respondents. (instructed by John x. Smith)

BRENNAN J: Yes, Mr Mukhtar. Mr Neil, you might like to

give us your submissions.

MR NEIL: Here is an outline of my submissions, but it

refers to a number of documents which I will be

handing up to you as I go along, Your Honours.

BRENNAN J:  Mr Neil, do you appreciate that we are concerned

here with the issue that was before the Full Court

of the Supreme Court of Victoria in relation to

your wife's estate?

MR NEIL: That is correct, Your Honour. The basic issue is

outlined in my affidavit for leave to appeal; it

states on affidavit what happened at that hearing.

I must add, Your Honours, that this is the first

occasion that the other side have appeared at any
hearing. They filed affidavits in the supreme

court to obtain probate of my wife's estate.

They state that certain assets, which appear

in the appeal book, was approximately $123,000.

After the limitation period ran out they then filed further affidavits with the court which then revealed that the estate was double the size. The

died of cancer and three months before she died she	application they made to the court was that my wife
was worried about paying our debts. I said to her,
do not worry, I have a policy over your life of
$100,000. I can attend to those if something
happens to you.

That was the understanding on which I

transferred $100,000. If you knew my financial

circumstances at the time - - -

DEANE J: Mr Neil, I do not quite follow. Perhaps I should

not be asking you this but I do not quite follow

Mr Nott's affidavit. Is he saying that the

residential property and the Minns Road property

are owned or were owned by yourself and your wife

as joint tenants. In which case, they would not be

Neil(2) 6/5/94

in the estate or were they owned as tenants in

common, in which case your late wife's half

interest would be - - -

MR NEIL:  My affidavits are accurate, Your Honour. I can

tell this Court quite honestly there are, because

of my objections to Forbes Nicholson acting. It acted as my solicitor since 1987. He still acts

because he still has $5100 dollars in his trust

account, Fitzroy Legal Service - - -

McHUGH J:  It is a matter of record.

DEANE J: Can I just have an answer? Does it appear

somewhere whether they were owned as joint tenants

or as tenants in common.

MR NEIL:  Yes, Your Honour. I can answer your question and

if perhaps I can seek leave to clarify that point.

This particular point was discussed at the meeting

in Forbes Nicholson's office. The situation is

that I have an affidavit with a transcript of what

was actually said at that meeting and I offered to

the Full Court - in the sequence of affidavit, if

you look at the date of affidavits, there were

certain affidavits - - -

DEANE J: But is there not a simple answer; was it joint

tenants or tenants in common?

MR NEIL:  Your Honour, the answer is not simple, because

what happened was this: the discussion was, I

said, "if it was a joint tenancy, it was passed to

AR Devine." Forbes Nicholson said, "I realize

that; I do not know at the moment whether that

would or would not be the case, do I?" I said, "No.

It would not form part of the estate if it was a

joint tenancy." Mr Forbes Nicholson -

TOOHEY J: Mr Neil, could I just ask you this: if you went

down to the Titles Office and searched for title

was a registered proprietor, or two persons were	for these two properties, you would find someone
the registered proprietor, and if there were two,
whether they were joint tenants or tenants in
common.

MR NEIL:	No, Your Honour, you would not.
TOOHEY J:	Would you not?
MR NEIL:	No, Your Honour; this is the slight complication,

if I can explain it very clearly. When we bought

the house, my wife and I - it is our matrimonial

home - I bought it also for the reason to run my

practice from home, because I saw a lot of clients

after hours and I established it in the

Neil(2) 3 6/5/94

Glen Waverley region so that I would have to start from scratch to establish a practice so that I

could draw clients from that area. Now, normally

it would have been put in a joint tenancy, but

because the main purpose also of buying the house

was to establish a legal practice there, I put my

half interest in the name of AR Devine Pty

Limited, of which the well-established trustee

company, Equity Trustees of Melbourne, on which

many distinguished lawyers have sat on that board,

although acted, they actually controlled

AR Devine, so there is no doubt what I am saying

to you today. I can call in the officers of that

company, who will confirm exactly what I am telling

you here today.

So, what happened is that we went to the bank

manager and he said, "Peter, look, if you put your

trust company on the title, even though it is your

matrimonial home, we have to charge you another
1 per cent more in interest rate, even though you
and your family are living there, because you have

put that company also on the title," So I spoke to

the bank manager and I spoke also to Equity

Trustees, and what we decided to do is that the

home would be registered in my wife's name and she

would sign a declaration of trust, saying that she held the property jointly in trust for herself and AR Devine Pty Limited, and Equity Trustees confirm

that from that time - it is about 15 years ago -

the books of the trust show that the trust owns

half the property, and indeed, in the affidavit of

Mr Nott, he acknowledges that, that AR

Devine - - -

TOOHEY J: Well, could I just come back to my earlier

question to you: if you went down to the Titles

Office and searched the title, I take it from what

you have just told us that your wife's would be the

only name on the title.

MR NEIL:  On the title. You would have to then -

TOOHEY J:  I understand what you are saying about a

declaration of trust and the like, but her name

appears as a sole registered proprietor?

MR NEIL: Yes, that is correct, Your Honour.

TOOHEY J: And what about the other property - the Minns - ?

MR NEIL: The Minns Road property stands in our joint names,

Your Honour.

TOOHEY J:  By joint, you mean joint tenants?

MR NEIL: Yes.

Neil(2) 4 6/5/94

DEANE J:	So you now own that?
MR NEIL:	I own that property.  I will hand up the documents

and I will repeat what I said when I got leave to

appeal, is, as I said to you, the trustee has not

paid any of the debts of the estate of our

marriage, and I am left carrying all those debts,

and I am in a situation, if I was to sell up the

property, I cannot even live in the property, I am

living in a caravan on the property, I need the

rental to cover the mortgage on the property, but

outside that there are also joint debts of the

marriage and as I swore in an affidavit, which I

would like to hand up to you again, because there

are injustices here, none of the debts have been

paid of the estate; this is three years later. It

took 10 months to get half the funeral account that

I paid, to get paid by the trustee, even though he

had money in about two to three months of my wife's

death.

So, the issue in this discussion on

10 October, which is on the tape and I have the

tape recordings here, which I can hand up; there

are two hours of tapes here, but I have taken out

in a sworn affidavit the part that the actual

discussion - I can swear to the truth of it,

because I had a tape recording.

DEANE J:  You are really getting away from the point.

Justice Tadgell refused your application for

extension of time on the ground that the
application under the Administration and Probate

Act was misconceived, and that you were really

concerned to fight about what the assets were in

your wife's estate rather than apply for an order

in your favour from the estate.	Do you follow what
I am saying to you?

MR NEIL:	I am following what you are saying, Your Honour.
DEANE J: What was it, so far as you are aware, that led

Justice Tadgell to conclude that it was not a

genuine application for provision in your favour

from your wife's estate?

MR NEIL:  Your Honour, can I hand up the affidavit because

what happened at that hearing is in affidavit form.

It was put before the Court when the Court granted me leave to appeal.

DEANE J: Except there is a problem in this Court about our

receiving further evidence on an appeal, Mr Neil.

MR NEIL:  This is evidence that has already been before the

Court. It has already been before Your Honour.

Neil(2) 5 6/5/94

DEANE J:  The position i~ different on a leave application,

but I do not think anything turns on that. What I

was just asking you was what was it, so far as you

understand the proceedings before Justice Tadgell,

that led him to think that all you wanted to do was fight about what the assets were rather than make a real application for provision from your wife's

estate?

MR NEIL:  Your Honour, I made a real application. I went

before the court with a real application.	I do not
understand his line of reasoning at all.

DEANE J: That answers my question, thank you.

MR NEIL:  I do not understand because when you make an

application to the court for further provision that

is exactly what the application is to the court.

The situation is I would like to hand up the law to

Your Honour. I have given Your Honours a list of

authorities, and if Your Honour looks very clearly

at the Act, what it says is when you apply for a

grant of administration you have to file an

affidavit stating that these assets that you are

requesting the court to allow you to administer are

true and correct. In fact, the Act says - am I

allowed to pass Acts up?

BRENNAN J: Yes, if necessary, but I think we probably have

some provisions of the Administration and Probate

Act already. What sections are they?

MR NEIL:  So that I do not digress, Your Honour, the

situation was - if I can go back to what actually happened at the meeting - the trustee has deposed,

actually lied in his affidavit. What he says was,

and it is in his affidavit, at page 199 line 25:

There was, however, no doubt that the

property, to the extent that half of its value

was to go to estate, did form part of the assets of the estate and that Mr Neil was well

aware of that fact at the time.

What I am saying to Your Honours is that that

statement is false.	If you look at it logically as
a lawyer - - -

DEANE J:  But that has nothing to do with what is now before

the Court.

MR NEIL:  Your Honour, it is the reason. He said that I

knew that when I applied for probate of the estate

I knew that they should have included the

matrimonial property as part of my wife's estate,

but that is incorrect. The discussion on the tape

shows that what I have sworn. I have sworn that

Neil(2) 6 6/5/94

Forbes Nicholson said that I have not looked at the documentation of the trust, even though the

property was held jointly, to know whether it was

held as joint tenants or tenants in common.	It
would make a significant difference naturally.	I
have no answer to that one either.	I do not know

if the declaration of trust might tell us something

about that. Does the declaration of trust state

whether it is a joint tenancy or a joint tenancy in

common?

TOOHEY J: Could I ask you this, Mr Neil. Taking the worst

view of it from your point of view, does the

administrator of the estate recognize that this

company, that you have told us about, has a half

interest in - - -

MR NEIL: Yes, Your Honour, he has sworn to that.

TOOHEY J: Yes.

MR NEIL: But, the issue then goes if he acknowledges that,

is it held as tenancy in common or joint tenants

because the answer to that question produces a

different result. My answer about the

documentation term, you will have to ask

Equity Trustees. They both know there was a

declaration of trust, they thought all documents

were passed on to his firm, that is James Nott's

firm - he is my accountant - when they took over

the running of A.R. Devine, and even if they cannot

find it they have got sufficient - I was then

interrupted by Forbes Nicholson, "When was the

documents entered into?" "Fourteen years ago."

"Fourteen years ago, now let us see," he says.	I
said, "When the property was purchased, 1977."
"Yes, about the time of the purchase?"	"Yes, that

would be right." It was entered into at the time

the trustees were acting for A.R. Devine, in

effect.

So, the whole issue, he told me he had to

decide whether this property formed part of my

wife's estate.

TOOHEY J: No, not the property - - -

MR NEIL:  The matrimonial property, yes.

TOOHEY J: No, whether a half share.

MR NEIL: Yes.

TOOHEY J: Not the property.

MR NEIL: But, Your Honour, then again there is another

interesting question, and I will have to seek your

Neil(2) 7 6/5/94

advice and guidance. One of the things I have done
- under the Administration and Probate Act there

are probate rules, and I went and complained, as it

is seen in the affidavit, to the - - -

TOOHEY J:  Mr Neil, it is very difficult to follow this, but

we are dealing with an application or your

complaint that you were refused an extension of

time in which to apply for provision out of your

wife's estate - - -

MR NEIL: Yes, Your Honour, that is correct.

TOOHEY J: 

Now, on your view, the matrimonial home did not

belong to the estate at all? Is that what you are
putting -

MR NEIL: 

Your Honour, I said to him that we had to - - -

TOOHEY J: No, could you just tell me, is that what your

case is?

MR NEIL: 

Your Honour, I thought perhaps it might be a

tenancy in common, but I agreed with him that we

would have to look at the documentation done at the

time.

TOOHEY J: All right. Well, if it was a tenancy in

common then -

MR NEIL: It passes on to -

TOOHEY J:  You are looking for provision out of an estate

which included a half interest in the matrimonial

home?

MR NEIL: Yes, Your Honour, but can I answer Your Honour's

question? That would be the end of it - I thought

too, so following your line of argument - that now
the situation would be corrected and half the

property would go into the estate. But, under the

probate rules, through the Register of Probates, we
forced another statement out of the trustees, and
in that statement - the administrator's statement -
the trustees now claim that the whole of the
property at 442 Springvale Road forms part of the
estate. I have got the administrator's statement

here filed in the probate office. So, I am at a

loss, the position keeps on changing. Am I allowed

to hand that up to the Court, Your Honour, to prove
the truth of the statement that I am making to the

Court because when you ••.. probate they can - - -

GAUDRON J: The only real question before this Court today

is whether Mr Justice Tadgell was right or wrong.

MR NEIL: That is correct, Your Honour.

Neil(2) 8 6/5/94

GAUDRON J: In categorizing your application as a sham, in

effect, or misconceived.

MR NEIL:  I am unemployed. I have not practised as a

solicitor since 1987, when I suffered a nervous

breakdown. My wife, once I had a nervous

breakdown, handled all my affairs, signed all my
cheques, all my financial affairs. That was
probably the reason, when she was dying, that she
appointed - because I had not recovered at that

time - that she appointed my accountant, and

Mrs Coyne, his goddaughter of one of my children,

as trustee and not myself at the time.

But getting back to other things that were not

included in the estate, which I have complained

about in my affidavits. It was not just - - -

BRENNAN J: Before you get to that, Mr Neil, could I just

ask you this.

MR NEIL: Yes, sorry, Your Honour.

BRENNAN J: You applied to Mr Justice Tadgell for an

extension of time in which to make your claim under

the Act. Is that so?

MR NEIL: Yes, Your Honour.

BRENNAN J:  Now, did you tell the judge why you wanted that

extension of time?

MR NEIL: Yes, Your Honour.

BRENNAN J: And did you tell him why you had not made the

application earlier?

MR NEIL: Yes, Your Honour.

BRENNAN J: What was the reason that you gave him for not

making the application earlier?

MR NEIL:  Because I had been deceived as to the value of the

assets of the estate. I thought, as a result of

the discussion at Forbes Nicholson's office, that

he had decided that the matrimonial home did not

form part of the estate, and therefore was not

included in the assets of my wife's estate. And he

filed an affidavit not including the matrimonial

home.

BRENNAN J: Is this the affidavit of Mr Nott dated

30 October 1991, which you are speaking about? The

first affidavit in the application book.

MR NEIL:	Yes, Your Honour.	It is on page 1, Your Honour.
Neil(2)	9  6/5/94

BRENNAN J:  Now, you say that was what you were told first

what was in that affidavit. '

MR NEIL:  Yes, Your Honour.

BRENNAN J: Then you were given some further information,

which you say made you understand that the estate

was a different size.

MR NEIL: Yes, Your Honour.

BRENNAN J: Is that the affidavit that is at page 5?

MR NEIL:  Your Honour, he has then filed an affidavit in the

court, page - yes, Your Honour, the affidavit is

dated 21 July, but I did not receive that

until - - -

BRENNAN J:  You did not receive it until some time later.

MR NEIL:  I have sworn the date on which I received it. It

was not in July, Your Honour, it was a month or so

later.

BRENNAN J:  Now, was it because of the difference in the

assets revealed by those two affidavits that you

wanted your extension of time.

MR NEIL:  Yes, Your Honour, as I have deposed in my

affidavit. Immediately I became aware of it I

immediately applied.

BRENNAN J:  I think we understand that and unless you can

build on it, Mr Neil, it would be appropriate for

us to see what Mr Mukhtar has to say about it.

MR NEIL:	So I can go on -
BRENNAN J:	No doubt you can go on and tell us all about the

estate because you will understand that our concern

is solely with the decision made by the primary

judge and confirmed by the Full Court that you

should not have time extended.

MR NEIL: Yes, Your Honour.

BRENNAN J:  That is our only concern. We cannot touch the

question of whether this asset or that should be in

the estate.

MR NEIL:  Can I draw Your Honour's attention to another item

that he put in the estate. He put down

superannuation and salary entitlements of $5700.

BRENNAN J: And that ballooned out to $23,000 in the second

affidavit.

Neil(2) 10 NEIL 6/5/94

MR NEIL: Yes, Your Honour. At a meeting in James Nott's

office three weeks before - it was in September
1991, I had raised with him - I knew that my wife

had about six months long service leave coming from

the hospital. She was Assistant Director of

Nursing at the Royal Children's Hospital and during our married life she had not taken her long service

leave. I did not know what the legal position was.

I said to James Nott, "Is there money owing from

that? Can you please inquire". And when he filed

this affidavit and only put down $5700, I was

deceived. I did not know that it was $23,000. It

is only when he took these other court proceedings
over the $100,000 policy that that then was
revealed.

Also, the situation on Homeform is that he has sworn in his affidavit, which I have referred you

to before, that the reason why he has not included

any moneys owed by any of our family trusts is that

they have really got no assets at all. That is why

he has not included anything owing from any of the

trusts. But in a statement to me at that meeting

he said that - going back over the tape, he did say

that Homeform had assets. When I was alerted,

something starts to go wrong and you start to look

at things a lot closer. I then started to say,

"What is the situation, I wonder, about Homeform." Then, on a bit of research I found that my

wife, while she was managing all our affairs, had

advanced money to Homeform. He had not included

the money.	Homeform has got three blocks of land
in Seymour.	He says they are unsaleable, but it

was a recession and they will get sold eventually.

He had not included that in it, and that affects me

because he has not paid any of the debts of the

estate. Those are assets that could be applied to

paying the joint debts of the estate.

BRENNAN J: Mr Neil, I think you are going into the question

of what the size of the estate is and what should

be included in the estate.

MR NEIL:  Your Honour, have you read the decision of

Nassi.m's case, the decision of

Mr Justice Nicholson?

BRENNAN J: The question that you have to address is not

what should be in the estate but whether there was

any reason given by you which would justify an

extension of the time for making the application.

Now as I understand your case it is, look at

the two affidavits, you can see the difference

between the two lots of assets and that difference

Neil(2) 11 6/5/94

explains why I did not make the application

earlier.

MR NEIL: Yes, Your Honour, there is some case authority as

saying, Your Honour, if the assets of the estate

are not large, the Court will not even entertain an

application. What I am pointing out, Your Honour,

is that there is a cost in going to Court and once

I started to become aware that he had deceived the

probate office - you know there is an onus - he is

a chartered accountant.	He is not just an ordinary
person off the street.	He must have known that the
affidavit was false. His explanation is he just	signed what was put in front of him by
Forbes Nicholson.

Your Honour, I will be guided by your

guidance, but I think what you are saying is that

you want to hear from the other side.

BRENNAN J: You have an opportunity to reply. But you

understand that what we have to do is try to focus

upon the issue for our determination. We cannot

decide what assets should or should not be included

in the estate. We cannot decide the truth or

otherwise of any allegations that are made. All we

can look at is whether there was some justification

for the application that you made for, as you say,

an extension of time, or whether Justice Tadgell

was right to say that your application was

misconceived.

Now if the application before Justice Tadgell

was an application for an extension of time and the

reason which you advanced was the difference

between those two affidavits then you have said, I

would have thought, all that you need to say. We

are not trying to shut you off, but if that is all

you need to say, good advocacy suggests you sit

down.

MR NEIL: Yes, Your Honour. Can I just point out to the

Court, there is a decision which is listed amongst

the case authorities, Nassim's case which deals with this particular point. It is a decision -

BRENNAN J: Give us the reference to that. What is the

decision?

MR NEIL:  Do you have the list of authorities, Your Honour,

that I have given to the Court?

BRENNAN J:  No doubt there is a list of authorities here.

(1984) VR, is that right?

MR NEIL:  It is a decision of Mr Justice Nicholson who is

now Chief Judge of the Family Court; where he was

Neil(2) 12 6/5/94

faced with the same situation. It was subsequently

found that the statement of assets and liabilities

given to the probate office to obtain probate was

wrong. I think it was three years later, from

memory, when the other parties realized that they

were wrong and then applied to the Court.

I applied straight away and

Mr Justice Nicholson did extend the time. The

other cases which have been before this Court

before, people have applied 10 years, 14 years - if

you go through those Commonwealth Law Report High

Court cases, some people have applied years after

and still gotten an extension of time.

But, good advocacy, I will follow your advice,

Your Honour, and sit down to hear the reply of my

learned friend.

MR MUKHTAR:  May it please the Court, I seek to hand up to

the bench the written outline of submissions on

behalf of the respondent.

Your Honours, before embarking on oral

argument, may I refer the Court to page references

in the appeal book which ought remove any factual

doubt about the nature of the interest in the

matrimonial home and in the Minns property, as it

has been called. The fact is, as I hope to

demonstrate in a moment, the matrimonial home was

under the sole registered proprietorship of

Mrs Neil. The Minns Road property was subject to a

joint tenancy.

It may be concluded, without any further

argument one would think, that therefore, unless

there had been an inter vivos disposition by

Mrs Neil of her joint interest in Minns Road, which

there had not, then Mr Neil obtains total ownership
of the Minns Road property, by reason of the

survivorship.

TOOHEY J: Well, he accepts that.
MR MUKHTAR:	Now the page references in the appeal book, and

I must acknowledge that it is not a fact which was

explicitly made clear at the right time, are as

follows: first at page 6 of the appeal book,

Your Honours, line 3, there is the statement on

oath by the executor that:

I have identified the following debts that are secured against the testatrix's residential property at 442 Springvale Road -

One then turns the page to page 7, line 8, and

there, the executor stated:

Neil(2) 13 6/5/94

In December, 1972 the Testatrix and the
Husband purchased a property at Minns Road,

Melton -

Now, neither of those two references categorize in

satisfactory legal terms the nature of the

interest, but if one goes to page 26 of the appeal

book, the Court will there see a section of an

affidavit, which was prepared by Mrs Neil in her

lifetime, which is exhibited to a family court

affidavit, where she says at line 6:

I am the sole registered proprietor of the

matrimonial home at 442 Springvale Road,

Glen Waverley -

And then one goes to line 14, and there it is

deposed:

The husband and I are the joint proprietors of another property at 5 Minns Road, Melton -

TOOHEY J:	I am not sure what point you are trying to make.
MR MUKHTAR:	Clarifying the factual question Your Honour put

to Mr Neil, which I -

TOOHEY J: Well, as far as the Minns Road property is

concerned, that is a matter of title; as far as the

Springvale Road property is concerned, it is also a matter of title that Mrs Neil was the sole

registered proprietor, but there is an argument

that in fact she held as trustee as to one half for

this company and then a further question as to

whether, if there was such a trust, the parties

were joint tenants or tenants in common, although

it is a bit hard to see how they would be joint

tenants.

MR MUKHTAR: Yes, indeed. Your Honour, I am not identifying

the nature of Mrs Neil's interest for any purposes
for the resistance of the appeal.	How Mr Neil has

sought to put or challenge the executor's conduct

or impeach the inventory of the assets, is to

somehow say, as we apprehend it, he is somehow

entitled, whether as beneficiary or at law, to half

of the matrimonial home. If that is not persisted

with or if I and those who have had to adjudicate

this beforehand have misunderstood the application,

I say no more about it, but without labouring it, if the nature of Mrs Neil's interest in the

property becomes relevant, and I submit it should
not, then it ought be understood that the evidence

before the Court is that she is the sole registered

proprietor, and there are assertions from the bar

table and •..•• references to the materials to a

trust, and one cannot satisfactorily conclude

Neil(2) 14 6/5/94

really whether it performs any grounds for the

allegation of deprival of some estate in the land.

DEANE J: But if we assume that she is the sole registered

proprietor, it would make the ultimate application

a much stronger one, if she was the sole registered

proprietor of the matrimonial home.

MR MUKHTAR:	It would mean, as the executor has said, that the matrimonial home incontrovertibly forms part of
her estate. Whether it means - I have commenced
that proposition badly. Whether that conclusion
means, therefore, that grounds are made out that
there is inadequate support is another - I am
sorry, Your Honour.
DEANE J:	I did not suggest that. I said it would make it a

stronger one. If the whole matrimonial home was

part of the estate, the application would obviously

be a stronger one than if only half the matrimonial

home.

MR MUKHTAR:  Yes, Your Honour. May I add, hopefully not

captiously, that the court ultimately, in

determining a Part IV application, has regard to

the net value. What the executor tried to do in

his affidavit was to explain that there were

burdens on the matrimonial property which really

meant that the net value of the land upon

realization would be nil, at least insufficient to

satisfy a prospective applicant under Part IV.

DEANE J:  It is very hard to work out what that affidavit is

meaning. I must confess I puzzled over it for a

long, long time.

MR MUKHTAR:  Your Honour, I think the Court would be

entitled to make that criticism of the affidavit.

DEANE J: But do not take time on it.

MR MUKHTAR:  Now, Your Honour, before presenting - - -

DEANE J: Is not the only question here, whether

Justice Tadgell was correct in saying this application was misconceived?

MR MUKHTAR:  Your Honour, that is how, if I may say so, how

the question has been attenuated in the course of

discussion between Bench and Mr Neil. If the Court

had evidence before it that by reason of some

misconception by Mr Justice Tadgell, or otherwise

by reason of some other judicial mistreatment, if I

could use that phrase compendiously,

Mr Justice Tadgell did not understand that what was

before him was an application for an extension of

Neil(2) 15 6/5/94

time, then that might be the beginnings of a

challenge to a discretionary judgment.

DEANE J: But he said, and he has made it quite clear, the

basis of his refusal is that in his opinion the

application is misconceived. Now, do you say the

application is misconceived, because it appears to

me it obviously is not.

MR MUKHTAR:  The institution of an application for leave to

commence a proceeding out of time is not

misconceived. That is not what His Honour meant.

DEANE J: No.

MR MUKHTAR: 

On a fair reading of His Honour's reasons for

decision, what His Honour is saying is the way the
case was presented to him, whether intended or
otherwise, the way the case was presented to him

was a challenge to the way that the executor had

prepared the inventory to the assets of the estate.

DEANE J: 

No doubt it was much the way Mr Neil went on

today, in that he is wanting to challenge

everything about everything. But the real question

is, was this an application for an extension of

time so that a husband could apply for provision

out of his wife's estate, which included the whole

of the matrimonial home. Now, how could it be said

that that application is misconceived?

MR MUKHTAR:  Your Honour, the application per se, it is

submitted with respect, is not misconceived.

DEANE J: And even as Justice Gaudron reminds me it was only

half the matrimonial home, it just cannot be said

that the application is misconceived.

MR MUKHTAR:  Your Honour, it is submitted that the answer to

Your Honour's question is as follows: if a

litigant seeks an extension of time within which to

make a part for application, but the evidence

before the court is not pertinent to that

application but is pertinent to an impeachment of

the executor's conduct, then the primary judge was

entitled to say despite the nature of the

application, it fell to be decided on what was put

before His Honour. I can see Your Honour wants to

ask me a question, but may I just finish this

answer. If that does not satisfy an appellate

court, then the comfort this Court should have is

that in any event His Honour went on to explicitly

say that the application ought not succeed.

DEANE J: But His Honour makes clear that that is said by

the way, and is not the ground of his refusal.

Neil(2) 16 6/5/94

MR MUKHTAR: It might be irresistible, respectfully

irresistible, to identify phraseology here and

there in His Honour's judgment, but it is

respectfully submitted that an examination of the

whole judgment reveals that His Honour, at least

conscientiously, considered the application

although did not explicate his reasons. That leads

to another possible question that may be put to me

about the extent or the amplitude of the reasons.

GAUDRON J:	Did that matter? I mean, here you have a husband for whom no provision is made by the
will - - -
MR MUKHTAR:	Would you forgive me for interrupting?

GAUDRON J: Yes.

MR MUKHTAR: That is not so.

GAUDRON J: Apart from the reference to the joint tenancy.

MR MUKHTAR:  I hope Your Honour does not mind me

interrupting you. Unfortunately, the appeal book

prepared by Mr Neil did not have the will and I had
hoped at the appropriate time to put that before

the Court because -

TOOHEY J:  The will has been pleaded.

MR MUKHTAR:  The will is there. If I could just suspend the

question put to me and, whilst I am on the matter,

refer you to clause 6 of the will. That does not

positively confer, but I put it so there will be no

misapprehension.

GAUDRON J: There is no provision made by the will for the

husband.

MR MUKHTAR:	Yes, Your Honour.
GAUDRON J: So far as was then known, at least half of the

matrimonial home had passed under the will and away

from the husband.

MR MUKHTAR:  No, Your Honour. At death, subject to any

claims by any beneficiaries under this supposed

trust, the whole title passed to the estate.

GAUDRON J: Very well, the whole title. But let us look to

the time before Mr Justice Tadgell. It was clear,

was it not, that no provision had been made by the

will for the husband?

MR MUKHTAR:	I will say presumably, Your Honour, yes. not being captious, the material - - -	I am
Neil(2)	17	6/5/94

GAUDRON J:	But if it were not clear then the very least that His Honour should have done was found out what
provision was made by the will before saying that
it was misconceived.
TOOHEY J:	I do not understand why you cavil at answering

the question that nothing passed under the will.	I
mean, what could have passed under the will?

MR MUKHTAR:  Your Honour, I had hoped I was not cavilling.

What I was trying to establish with a precision

which seems to be lacking in the documents so far

is that it cannot be said that what Mr Neil stood

to gain was a half interest in the matrimonial

home.

TOOHEY J: That was not the question you were asked. The

question was simply whether the will made any

provision for Mr Nail, and the answer to that must

be no.

MR MUKHTAR:  The answer is no.

TOOHEY J: No, full stop. There is no qualification or

anything else. It is simply the answer is no.

MR MUKHTAR:  The answer is no, and what I was putting

to - - -

TOOHEY J: There is another question as to what constituted

the estate, of course, and so far as the will as a

document is concerned no benefit passed to Mr Neil

under it.

MR MUKHTAR: 

Yes, that is right, but the Court cannot ignore

the testamentary statement by the testatrix that
the property at Minns Road she regards as adequate.

That is a subjective view and I accept that.

TOOHEY J: That is a different thing altogether. That is an

explanation for why nothing passed under the will.

MR MUKHTAR:  I accept that totally. Cavilling as I was, and

perhaps retracting as I should, it ought not be

concluded - - -

GAUDRON J: The question I am really coming to is in

circumstances, albeit it is not entirely clear what

was before Mr Justice Tadgell, but in circumstances

in which we must assume that he knew or ought to

have known that nothing passed to the husband under

the will, and that the husband was shut out for one

reason or another from full enjoyment of the

matrimonial home, one would have thought it was not

possible without further inquiry to say that the

application was misconceived, that there must

Neil(2) 18 6/5/94

inevitably be a wrong basis for the decision if no

further inquiry is made.

MR MUKHTAR:  Yes. Your Honour, I do not think my submission

will gain strength by repetition, but may I seek to

re-articulate it with the following proposition?

Whilst an application of this nature might agitate

not ordinarily fall in a hostile, commercial type	in a primary judge's mind considerations that would
dispute, there is only so far that the primary
judge can go on the evidence before him.

GAUDRON J: What more did he need than that the will made no

provision for the husband, and that at least half

the matrimonial home had passed under the will?

MR MUKHTAR:  He needed two things, Your Honour: first, a

cogent explanation for the delay; and, secondly,

some evidence which would lead, at least as a

matter of impression, for the court to conclude

that the prospective Part IV claim had real

substance, beyond mere assertion about a challenge

to the inventory of the estate.

GAUDRON J: His Honour said he did not rely on the failure

to give an explanation, but the explanation, it

seems, is the uncertainty as to what was passing

under the will, in any event, and as to prospects,

since the matrimonial home has not gone away, one

would think that at least there is an arguable case

for provision in circumstances in which a person is

unemployed and, apparently, although it is not

clear that this was before Mr Justice Tadgell, in

ill health.

MR MUKHTAR:  I will state, without developing, my response

to that observation. The first is, the question on

a prospective Part IV application is whether the

applicant has been deprived of the adequate

maintenance and support to which he is accustomed.

Therefore the mere identification of a half

interest in a property heavily mortgaged, of

itself, does not establish the appropriateness of

provision to be made, that is my first answer.

And the second answer is, with the most

unfeigned respect, the Court is overlooking that

despite the brevity of the reason, His Honour has

actively considered in any event the merits of the

extension of time. "Misconceived" is a powerful

word and it agitates - - -

BRENNAN J:  It is used with reference to what follows in

that paragraph, is it not? In other words, what

His Honour is saying is that the issues as to a

declaration of what is in the wife's estate, as to

assets and liabilities and the liability of the

Neil(2) 19 6/5/94

estate to contribute to certain debts is not the

subject for determination on an application for an

extension of time for a family provision.

I am not suggesting that His Honour was wrong

in saying that, all I am saying is the way I read

His Honour's use of the word "misconceived" he is

using it in reference to the manner of the

presentation of argument by Mr Neil before him.

But the question still remains, none the less,

whether or not His Honour was justified in saying,	nevertheless, in his opinion, the application
should fail, and that, in the circumstances to
which Justice Gaudron has called your attention.

MR MUKHTAR:  Yes indeed.

BRENNAN J: And if the cogent reason advanced is that there

was a change in the assets and liabilities revealed

in the second affidavit, is that not a reason which

was sufficiently cogent to grant an extension of

time, limited in period.

MR MUKHTAR:  If I may say so, the question deserves a

careful answer. As a matter of law, a prospective

applicant deserves an extension of time where there

is evidence that the executors have acted in a way

to conceal the true magnitude of the estate and, as

a matter of impression at least, the applicant

looks to have a deserving case for further

maintenance and support.

BRENNAN J: 

Why do you have to introduce a notion of

concealing? An executor might act perfectly
honestly, but realize that the mistake has been

made in the original affidavit and is now in a

position to disclose. That is all that you need,

surely.

MR MUKHTAR: 

The circumstances in which the Court might

allow an extension of time by reason of an

understatement of assets, if I could put it that

way, are not necessarily confined to concealment;

it is just the way it has been put by Mr Neil. One

could conceive of some negligent conduct, possibly

some statutory misbehavior, but the way it is put,

and it is put vehemently in the materials and no

less vehemently today, is that the executors were

dishonest and that is how it is put. So that is

the answer to the proposition that Your Honour put

to me, but - - -

BRENNAN J: It is very understandable that a judge should

react that way when the submission is made in terms

of tapping the integrity of those who are putting forward the affidavit, but the fact none the less

Neil(2) 20 6/5/94

remains, does it not, that there was a
significant - it may not have been a great - but a

significant disparity between the first and the

second's revelation of assets, and that second

revelation was a short time before the application

for extension was made.

MR MUKHTAR:	Your Honour, my response to that proposition is that, on the materials before the primary judge,
and the further materials before the Full Court, it
is tolerably clear that Mr Neil, despite what the
executor said initially, was well aware of the magnitude of the estate of his late wife, indeed the gravamen of his complaint is that he is trying
to tell the executors of the presence or existence
of other assets which they had overlooked. It is
submitted, and I do not wish to be unkind to conviction; he cannot be heard to say he did not
know the estate was bigger than that represented by
the executors. He knew more than the executors. Now there are page references in the appeal book
where he identifies a property at Seymour in
Victoria; a property in New Zealand. He knew about
his late wife's superannuation entitlements. He
knew, it seems, a lot more about this putative trust on the family home and in totality, when this
Court comes to consider whether there had been a
case of non-disclosure, I will mutually call it,
was there an act of non-disclosure? If there was
evidence he knew about it anyway, then there has,
on the relevant principles governing this appeal, not been a miscarriage of justice in any event.
DEANE J:	But the primary judge did not decide it on that

basis. He decided on the basis that the

application was misconceived. His only reference

to explanations he expressly said, that is only by

the way.

MR MUKHTAR:  Your Honour, I do not wish to be heard to be

submitting His Honour decided in the way that I

have just spoken. What I am - - -

DEANE J:	If you look at the appeal book for page 134 to 139, you have in outline a very strong case for
provision. You have a case which says the
matrimonial home was involved, the wife's assets
were accumulated during marriage, "I am in my
financial difficulties because of things that
happened during marriage and the fact that no
provision has been made."

MR MUKHTAR:  Yes. Your Honour has identified the material,

and the outline described - - -

Neil(2) 21 6/5/94

DEANE J: That is the material that was before the primary

judge.

MR MUKHTAR:  Indeed. If one were to ignore, for

convenience, all that the primary judge had to say

about misconception, ignore the challenge being

made to the inventory of the estate, then the

question for this Court is, it is respectfully

submitted, did His Honour err to a degree that

makes him plainly wrong in deciding, as a

discretionary matter, that the explanation lacked
conviction, that is to say the relevant explanation

being why it took so long to apply.

What I am trying to introduce, Your Honour, in

an inductive way is that the material that was

before His Honour not only would satisfy a

reasonable primary judge that the explanation for

delay is not good enough, but in any event that the

application on its ultimate merits, as a matter of

impression, was also attendant with doubt.

Your Honour, I have to put this submission

very carefully. This honourable Court looks

clinically at reasons, as it must do. What I

respectfully submit is that in the nature and

manner in which this case was presented, His Honour

ought not be exposed merely by having said

something briefly, as amounting to having

misapprehended the nature of the application before

him.

BRENNAN J: That may be the very problem though, may it not?

In other words, one can understand that His Honour

may have been misled into a consideration of issues
which had nothing to do with an application for an

extension of time, but there was still an

application for extension of time before him, and
if he was misled by the nature of the advocacy,

that does not necessarily lead to the conclusion

that his order has to be upheld, rather it might

indicate the contrary.

McHUGH J: That is what I see as the critical issue in the

case. I must say I read His Honour's statement

about misconception by reference to the words

"having heard what Mr Neil has submitted", and my

reading of it is that Mr Neil never really got on

the wicket at all so far as His Honour was

concerned, and the argument just went off at a

tangent. It was never directed to the real issue.

But even if that is so, the question then arises as

to whether, there being an application before the court, the judge was bound to go further and look

at the matter more widely than - - -

Neil(2) 22 6/5/94

MR MUKHTAR: Help out a bit maybe, if I could put it that

way.

McHUGH J: Yes.

MR MUKHTAR:  Your Honour, I think I said a while ago that

some beneficence may be required, depending on the

Court, when it comes to dealing with applications

of this sort, although, of course it is a

substantial statutory time limit. If the Court was

seeking to isolate the treatment of the Part IV

application, then the question that now presents

itself is: was His Honour plainly wrong? And,

even if he was, even if we had decided differently,

has there been a miscarriage of justice? Perhaps

it is to that that I can now turn to try and

advance - - -

GAUDRON J:  Why would we ask that?

MR MUKHTAR: It is a discretionary judgment.

GAUDRON J: Special leave has been granted, has it not?

MR MUKHTAR:  Yes.

GAUDRON J: Yes. If His Honour was wrong, His Honour was

wrong. And the Full Court. If there was an error,

there was an error. If they proceeded on wrong principles, they proceeded on wrong principles.

Why do we look to whether there is any what you

call miscarriage of justice?

MR MUKHTAR:  It depends on the basis upon which the Court is

invited to reverse the decision below. If the

Court is being invited to reverse it on the grounds

there had been some vitiating factor, like a

failure to afford natural justice, or a deprivation

of due process, then of course that is an attack

which undermines the whole judgment, and no

occasion arises for conventional considerations of

discretionary judgment. But if the attack is, as I

submit it appropriately should be viewed as along

the orthodox attack of· a discretionary judgment,

then - - -

GAUDRON J:  There are limited bases on which you can attack

a discretionary judgment.

MR MUKHTAR:  Yes, certainly.

GAUDRON J: Fundamentally they boil down to error of

principle, failure to understand what it is that

has to be done. That is the basis upon which it is

attacked, and it is attacked on the basis that

there was a failure of principle, the effect of

which is that there was no decision at all.

Neil(2) 23 6/5/94

MR MUKHTAR:  I might have misunderstood Your Honour, but r

thought what was being put to me was special leave

having been granted, this matter now is transformed

from a discretionary matter to -

GAUDRON J: The question I am asking is why we would

consider whether there has been a miscarriage of justice. If there has been an error of the kind

been a miscarriage of justice. that vitiates a discretionary judgment, there has

MR MUKHTAR:  I am sorry, Your Honour. If the character of

the error vitiates the judgment then, of course, it - - -

GAUDRON J: Well, there is no other sort of error that will

ground an attack on a discretionary judgment.

MR MUKHTAR:  Yes. Your Honour, the submission I was

endeavouring to put was that there was no

misconception by the primary judge of what was

before him, and his reasons, brief as they are,

show that. If the Court will look into any other element of his judgment to show it to be wrong or

attended with sufficient doubt, then the Court must

then look to see if there has been a substantial

injustice.

GAUDRON J: Well, I do not follow your argument at all. I

would have thought one might come to view that

there is - one might either identify an error of

principle or one might, in this case, say, "The

result is so manifestly out of keeping with the

statutory provision that there must have been an

error, albeit that one cannot identify it." But,

in either case that is a question of error and the

miscarriage of justice considerations do not seem

to have any bearing on the issue.

MR MUKHTAR: Perhaps I could move on to - - -

GAUDRON J:  I am sorry, I want to know how you are putting

this miscarriage of justice.

McHUGH J: Can I ask you this? Whatever course the argument

may have taken, at least the affidavit in support

seemed to raise the real issue that the judge

should have determined. The judge does not really

seem to have looked at those issues.

MR MUKHTAR:  Yes, Your Honour1 the substantial affidavit at

page 39 of the appeal book did not address the

issue.

MC HUGH J: It was the one at 134.

Neil(2) 24 6/5/94

MR MUKHTAR:	And then, paragraph 1 of the affidavit at 136. So, if the Court were to seek to isolate the
totality of the evidence put before the Court
justifying an extension of time, one has it at page 134 and then at paragraph 1 of page 136.

If one looks at page 134 there is an assertion

at 3(a) that he was mislead. Then there is, at

page 136, so the Full Court rightly concluded, an

irreconcilable excuse that he did not know.

Perhaps I could direct this to Your Honour

Justice Gaudron. When one comes to examine what

His Honour said, that is all that was before him. The evidence was meagre and the primary judge who

is having to consider a substantive statutory time

limit, was entitled to reject it, as he did.

McHUGH J: But the judge really did not direct himself at

all to the issues raised, particularly at page 134.

It does not get a mention from beginning to end,

does it, in his judgment? I have great sympathy

for the trial judge because, having seen Mr Neil on

the special leave application and again here, he

wants to argue about all sorts of matters without

directing his argument to the critical issue in the

particular case. That is what happened before

Justice Tadgell, but the fact is that his affidavit

did raise a real issue and it was not dealt with.

MR MUKHTAR:  Your Honour, his affidavit raised it, that is

true, but that is all it did; it did not provide,

as an applicant must, evidence to satisfy a judge that there were grounds for an extension of time.

The mere assertion that one was misled, without further elaboration, I submit - - -

BRENNAN J: Were the executor's affidavits before the trial

judge?

MR MUKHTAR:  Yes, Your Honour, so Mr Neil has said in

another affidavit and, as my clients were not

represented on the day, I am assuming they were.

BRENNAN J: Well, assuming that to be so, is Mr Neil's

affidavit saying, "I was misled against the two

affidavits which reveal a disparity in assets"?

Now, does not that suggest that it would be worthy

of judicial consideration and mention?

MR MUKHTAR:  Your Honour, yes it does, but what occurred,

unavoidably, it is submitted, was that it became

worthy of judicial consideration after a proper	characterization of the pertinence of the evidence
which was an attack on the inventory of the assets. And that is how His Honour viewed it. 'His Honour
is saying, "I have this assertion about
non-disclosure, but I look at the material and

Neil(2) 25 6/5/94

although it is called non-disclosure, what it

really is is an attack on the inventory prepared by

the executor". His Honour went on to say, "Well

you can seek, Mr Neil, declaratory relief", as he

still can do.

McHUGH J:  But that would not help him. I mean, if it is

part of the estate, he wants to make a claim

against it; if it does not belong to the estate,

but belongs to him, well, he has got other

remedies, but surely he is entitled to make a claim

against the estate, is he not? I mean, you have

got a case of a person who is penniless, had to

borrow $135 to file a summons in the particular

case, living in a caravan and he gets nothing under

his wife's will, unemployed or virtually so,

probably unemployable.

MR MUKHTAR:  Your Honour, I would not dare venture into

giving a countervailing presentation of
unmeritorious facts regarding Mr Neil's part, but

the affidavit reveals that really there was a

lifetime of not conserving assets and the

insolvency of the estates - - -

McHUGH J:  That is right. He may have been refused an order

on that basis. But this is a question of whether

he should have been given an opportunity to make an

application, that is all it is.

MR MUKHTAR:  Your Honour, perhaps I should - I can just

detect that I might have exhausted either the

Court's patience or the strength of my clients' case, but if Your Honour - - -

McHUGH J:  No, you have been very helpful.

BRENNAN J: Not the former.

MR MUKHTAR:  If Your Honour intended to say he was not given

the opportunity then, Your Honour, I would have to

earnestly submit, more earnestly than so far, that that is not so. He was definitely given an

opportunity. All material was put before the court

and he was given an opportunity to argue his case.

To say that the judge did not dedicate enough of his reasoning to it does not ipso facto mean he

was not given the opportunity. So if I may, just

with that exception, say that the Court ought not

conclude that he was judicially mistreated in that

sense.	He was given a fair go, if I can put it
that way.

McHUGH J: But he did have that material in his affidavit,

and the judge does not deal with it. I know what

Neil(2) 26 6/5/94

you say. You say it is only an assertion. Well, I

am not sure that it is - - -

MR MUKHTAR: Forgive me for interrupting. His Honour does

deal with it, but in its proper context, namely a
challenge to the estate. But if he is wrong about

that, as His Honour said, there is insufficient

evidence to justify the extension of time.

BRENNAN J:  I mean, the real problem is whether or not,

having regard to all the ways in which it was

obviously put to His Honour, there was, none the

less, a substratum which demanded an exercise of

the discretion in favour of extending the time. Is

that not what it comes to? And you say no there is

not, because there is not enough shown.

MR MUKHTAR:  Your Honour, I hope it is not disrespectful if

I say that is tendentiously put to me. That is so.

The real question is whether the reasons for

judgment disclose a misconception about the

application before His Honour by His Honour -

BRENNAN J: · That is an ambiguous term, perhaps, because the

application before His Honour consisted in part of

the written material and in part of what might

fairly be regarded as a farrago of submissions by

Mr Neil in the course of oral presentation. If

His Honour's judgment was directed to the latter,

that is utterly understandable, but the question

remains whether the former was one which had to be

addressed in some way which gave some significant

reason for refusing the relief sought.

MR MUKHTAR:  Your Honour, I do not think I could

meaningfully or seriously contradict that

proposition. The question is: has it occurred?

BRENNAN J: Yes.

MR MUKHTAR:	I think I have said all I want to say.
BRENNAN J: What you would invite us to do, I take it, is to

read the material to see whether or not that

conclusion is justified?

MR MUKHTAR: That is so, Your Honour, yes.

BRENNAN J: Yes, that is understandable.

DEANE J:  Mr Mukhtar, can I divert you for one moment.

Could I just get the dates. The grant of probate was when?

MR MUKHTAR:  On 27 November 1991, Your Honour; see page 3 of the appeal book.

Neil(2) 27 6/5/94

DEANE J: No, I am content if you tell me. That means the

time for bringing the application expired when?

MR MUKHTAR:  On 27 May 1992.

DEANE J: And the notice of motion was filed?

MR MUKHTAR:  I think we should say that the application was

heard and dismissed - I am sorry, Your Honour, I

withdraw that.

DEANE J:	The notice of motion seems to be 21/7/92.
MR MUKHTAR:	28 September, 1992.

DEANE J: Is that right?

MR MUKHTAR:  Yes, Your Honour.

TOOHEY J: That is, following the filing of the second

affidavit.

MR MUKHTAR:  I think I should be sure about this before -

yes, it is page 134. Before then no application

had been instituted and His Honour - - -

DEANE J:  I see, yes. I am sorry, what was the date of the

application again?

MR MUKHTAR:	28 September 1992.
DEANE J:	So it was four months and a day out of time.
MR MUKHTAR:	Would it help if I said, Your Honour, His Honour Mr Justice Tadgell heard and dismissed
the application on 5 October 1992 and the Full
Court heard and refused leave to appeal on
27 November 1992.

DEANE J: Thank you.

MR MUKHTAR:  Your Honours, may I seek an indulgence? Whilst

I acknowledge that Mr Neil might not be called upon

to be held to the contents of his notice of appeal,

and whilst some freedom might be given to identify

the true ground of appeal, if it exists,

nevertheless I am duty bound to submit that the

grounds of appeal at page 258 really at their best

only in an oratorical sense get anywhere close to

the question as Justice Brennan put to me as

decisive of this appeal.

The grounds of appeal (1) to (7) amount to the

ground of judicial mistreatment and whilst maybe an
indigent or ignorant person might be assisted and

the formulation of the truer ground of appeal, I am

bound to say, hopefully not unkindly, that Mr Neil

Neil(2) 28 6/5/94

is neither ignorant - he has been a solicitor for

many years - and the materials filed suggest an

understanding of the legal process. There is not

in the notice of appeal, for which presumably

special leave was given, the presentation of an

attack along the lines that have occurred today.

May I state, without developing, that if the Court

were to, as I submit it should, confine itself to

the grounds of appeal, there is not a particle of

evidence before this Court to establish any of

those grounds.

GAUDRON J: Ground 2 is coming close to what is the

complaint, at least before Mr Justice Tadgell.

MR MUKHTAR:  Your Honour, it has the air of an association

with it but fairly read, that seems to attack a

denial of natural justice based upon the failure to

give reasons and on that there is a body of law to which I have referred to in my outline and which I
shall not trouble the Court with. If the question

was, did His Honour give adequate reasons, my

submission is, and I will state without developing

it, the obligation to give reasons is established

as part of the common law of Australia but the
reasons ought be viewed as commensurate with the
nature of the application and the circumstances of

the case.

This Court, it is respectfully submitted,

ought not expect elaborate reasons, but merely the

statement of the decisive consideration, which is

what His Honour did and what the Full Court did.

Just for completeness, Your Honour, the cases

in support of that proposition are in the outline

of submissions and I shall not trouble the Court

with them. Your Honour, I think I might have been

a bit fast, yes, perhaps ground 7, which I have

described as oratorical, might, if an appellant

Court wanted to do so, view that as accommodating

the ground that seems to have been distilled out of
submissions this morning.	I have made the

submission and I do not wish to take that ground

any further.

Your Honours, I am conscious of the time and I

think what I should say is that I would not intend
to introduce any other contentions beyond those set

out in the outline of submissions. There is

nothing new I have to say. I am ready, willing and

I think able, to develop any of those submissions.

BRENNAN J: They are fairly familiar submissions, I think,

are they not, that you have made?

Neil(2)	29	6/5/94
MR MUKHTAR:	Your Honour, that concludes the submissions for the respondents.	May it please the Court.
BRENNAN J:	Thank you, Mr Mukhtar.	Mr Neil, do you wish to

say anything in response, and you understand that

it is only matters which are relevant that we need

to hear from you about?

MR NEIL:  Yes, Your Honour, and I will be very brief. It

was alleged that my grounds of appeal do not show

sufficient grounds, but I did file a long and

lengthy affidavit which covered every one of those

grounds and it was from page 83 to 117 with

annexures. All the case law was mentioned in my

affidavit in the application for leave to appeal.

I do understand and I apologize to the Court.

I do not want to go on about the Legge case,

Your Honour, but there is a reluctance in our profession, even in myself, to believe ill of other

legal practitioners, but there has been a major

case decided in New South Wales - I tried to get a

copy of it - involving the partners of Baker and

McKenzie.

GAUDRON J: What has that got to do with it?

MR NEIL: What I am saying is that the allegations that I

have made - there	is still my solicitor who has
acted against me.	I am backed up by a tape, and I
do not make those	allegations lightly.

BRENNAN J:  Mr Neil, you have heard the argument. You have

heard the discussion from the Bench. Not once has

that subject been raised because it is irrelevant

to our present consideration.

MR NEIL: Yes, Your Honour, but I would have made a

submission that under Smith v NSW Bar Association

decision made by this honourable Court that that

evidence should have been admitted in the Full

Court, but you have advised me a good advocate does

not carry on and I am following your advice.

There is only one final thing, Your Honour, amongst the case submissions. This came out of an

article of Mr Justice Black, Chief Justice of the

Federal Court, who fortunately wrote an article on

these types of issues and it was in the Victorian

Bar News. He pointed out a passage in Meek v

Fleming which said:

Where a party deliberately misleads the court in a material matter, and that deception has

probably tipped the scale in his favour (or

even, as I think, where it may reasonably have

done so), it would be wrong to allow him to

Neil(2) 30 6/5/94

retain the judgment thus unfairly procured.

Finis litium is a desirable object, but it

must not be sought by so great a sacrifice of

justice which is and must remain the supreme

object. Moreover, to allow the victor to keep

the spoils so unworthily obtained would be an

encouragement to such behaviour, and do even

greater harm than the multiplication of

trials.

On the date, Your Honour, as I pointed out in my

affidavit, the affidavit disclosing the assets in

the estate was sworn on 17 July. It was not served

on me until 16 September, and I acted promptly,

and - yes, it is in my affidavit on page 134:

(b) that it now appears from a further affidavit of James Henry Nott sworn on

the 21st July 1992 and only served on me

on the 16th September 1992 that the net

value of my late wife's estate may be

approximately double the assets

previously disclosed.

And on my application, this affidavit that you have

got there is an:

Affidavit of Peter Christison Neil in support

of application for an extension of time in

which to apply for provision out of estate -

In fact, I swore that affidavit 12 days later,

after I was aware that the assets were not right.

So I did act promptly, Your Honour, and I think

that is a consideration, that once you become aware

of something you do have to act promptly.

I thank you for your indulgence, Your Honour; I will follow your advise and not go on with the

case law, because they are contained in the

submissions. Thank you, Your Honour.

BRENNAN J:  Thank you, Mr Neil. The Court will consider its

decision in this matter.

AT 1.18 PM THE MATTER WAS ADJOURNED SINE DIE

Neil(2) 31 6/5/94