Northern Territory of Aus v GPAO

[1997] HCATrans 313

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D172 of 1997

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Appellant

and

G.P.A.O. (Father)

First Respondent

J.A.W. (Mother)

Second Respondent

SEPARATE REPRESENTATIVE

Third Respondent

Directions Hearing

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN AND ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 5 NOVEMBER 1997, AT 2.59 PM

Copyright in the High Court of Australia

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory:  I appear in this matter, your Honour.  (instructed by the Solicitor for the Northern Territory)

MR G.P.A.O:  I appear in person, your Honour.

MR G. GRIFFITH, QC, Solicitor‑General for the Commonwealth:  If your Honour pleases, I appear with MR E. WILLHEIM for the Attorney-General of the Commonwealth intervening, I think in this case, your Honour, under section 91 of the Family Law Act. It seems it is not a constitutional issue.  (instructed by the Australian Government Solicitor)

HER HONOUR:   Firstly, I would propose, unless there is any objection, to make a non-publication order with respect to the identity of the first respondent and to order that he will be referred to in the transcript as Mr O.  Is there any objection - it might be easier if I start here in Canberra, Mr Solicitor?

MR GRIFFITH:   None, your Honour.

HER HONOUR:   Any objection, Mr Solicitor for the Northern Territory?  What do you say, Mr O?

MR O:   I have no objection at all, your Honour.

HER HONOUR:   Thank you.  The first question, I suppose, is to ascertain whether the notice of appeal has been served on the other respondents.  Mr Solicitor for the Northern Territory?

MR PAULING:   Yes, the first respondent, the second respondent and the third respondent, which is a separate representative and the intervener were all served with the application for special leave and all supporting documents on 6 September 1996.  The only appearance entered was on behalf of the first respondent on 24 October 1996 and I understand the notice of appeal to have been formally served in respect of that matter, that is, on the first respondent.  There has not been appearances for the - - -

HER HONOUR:   Has there been service of the notice of appeal?

MR PAULING:   Yes, that has been served on the first respondent but not on the other respondents as they did not appear in respect of the special leave application when we served that upon them.

HER HONOUR:   Have they been served with the grant of special leave?

MR PAULING:   Only the first respondent, your Honour.

HER HONOUR:   They have an interest in the proceedings, do they not?

MR PAULING:   Do you mean the second respondent and the separate representative?

HER HONOUR:   Yes.

MR PAULING:   They may have, your Honour.  They have not expressed an interest in the proceedings.  In a legal sense, they have an interest in the proceedings.

HER HONOUR:   Do they not have to be served?

MR PAULING:   Well, not as I understand it.  That once being served with the application for special leave, if they did not respond to that it may not be necessary - - -

HER HONOUR:   They may be working on the assumption that there was no grant of special leave.

MR PAULING:   They may be, your Honour, that is true.  There would not be any difficulty, as I understand it, in affecting service of all those documents, including a letter informing of the grant of special leave.  But as I understand the way in which it was approached, was that the only person who had showed any interest in the outcome of this legal question was, in fact, the first respondent.

HER HONOUR:   Yes, thank you.  Now, perhaps I can ask this of Adelaide.  Mr O, do you intend to participate in the hearing of the appeal on this matter?

MR O:   Your Honour, I personally feel that I do not have the necessary training to participate.  I have no legal training at all, your Honour, and my understanding is that this is a legal issue.  So, I do not honestly see how I can participate under the current circumstances.

HER HONOUR:   Yes.  Do you wish to be legally represented at the hearing of the appeal?

MR O:   I do indeed, your Honour.

HER HONOUR:   Is there some reason why you are not legally represented at the moment?

MR O:   There is, your Honour.  There seems to be some disagreement with regard to the amount of funding - the amount of costs so far incurred.  I do not know a lot more about it beyond that, your Honour, other than due to the shortfall of funding, my counsel has now ceased to act on my behalf.

HER HONOUR:   That relates, does it, to the proceedings in the special leave application or to the proceedings in the Family Court?

MR O:   My understanding is it relates to the proceedings in the Full Court, your Honour, in the Family Court, yes, your Honour.

HER HONOUR:   No application was made with respect to costs at the special leave application however?

MR O:   I honestly do not know, your Honour.  My only understanding is that at the conclusion of the Full Court hearing there was an order made with regard to reasonable costs and that is where the disagreement has occurred, that the costs so far incurred in some areas are seen as being not reasonable, your Honour.

HER HONOUR:   Thank you.  Perhaps I can inquire of the Solicitor‑General for the Northern Territory in that regard.

MR PAULING:   Your Honour, when the application for special leave was put forward, the Northern Territory agreed to pay the reasonable costs of the first respondent’s counsel and solicitors.  There is ‑ ‑ ‑

HER HONOUR:   The reasonable costs of what?

MR PAULING:   Of the special leave application.  That was agreed that there be payment of reasonable costs of that application.  An account was rendered that was considered unreasonable for that purpose, that is if limited to the special leave, and that dispute as to costs has not been resolved and it seems unlikely to be resolved.  The costs that were asked for were more appropriate to a complete hearing of the appeal, not just a special leave application, and the costs that were sought were not regarded in the slightest as reasonable.  So we have an on-going dispute in that respect, your Honour.

HER HONOUR:   Mr Solicitor, it seems you have the practical interest in this matter, rather than the first respondent, as matters have transpired.  Is there any reason why you should not undertake to pay the costs of the special leave application and of the appeal for the first respondent on a solicitor and client basis?

MR PAULING:   Yes, there are very substantial reasons.  I mean, it is mainly related to quantum, but the proposition that is being put to us at the moment as to what costs would be involved in running the appeal are incapable of being accepted.  As I understand it, it is not suggested that by having those costs taxed or subject to taxation, that we could reach agreement.  The fee basis that is put to us is simply not acceptable.  I appreciate that we have the real interest in the matter and, as a government, we ought often to have to provide for the provision of a proper contradictor, as we did, for example, in Re Marion, but we are in such serious dispute in this matter that its resolution, otherwise than by obtaining a contradictor in some other form, will be difficult to resolve.

HER HONOUR:   Do you accept that it would be appropriate to give an undertaking with respect to the costs in any event?

MR PAULING:   Ultimately, yes.  I think our argument is about quantum, not principle.  That is the difficulty we have is a matter of quantum, not of principle.

HER HONOUR:   Yes. 

MR PAULING:   It may be necessary that we engage on behalf of one of the parties another counsel able to argue the point ‑ ‑ ‑

HER HONOUR:   I do not know that you have - have you any right to do that?  It is really a question of - you have no right to do that as such.

MR PAULING:   Perhaps we could put it forward as a proposition to Mr O.  As he is not longer represented by his former solicitors, it may be that he would be happy with a suggestion that some senior counsel might represent the legal argument that is to be advanced in this matter.  As I understand it, from a practical point of view, after the Full Court decision, the particular file in question was forwarded to the Family Court in South Australia.  Whether or not Mr O has had access to that file or not I do not know.  But it is not as if there is currently a situation where the Northern Territory is holding on to the information and keeping it from the Family Court.  In obedience to what the Full Court said, we have complied with the order made but then appealed on the principle that the order ought not to have been made in the first place.  To that extent, it is difficult to see that the first respondent has a live interest in the matter.

HER HONOUR:   He has a legal interest in the matter.

MR PAULING:   Yes, he does, your Honour.  It just so happened that this question arose in this particular case but, quite frankly, what has been proposed to us is that to give an undertaking that we would be responsible for the legal costs of special leave and the appeal is being interpreted as an open-ended offer to charge anything at all and that is not acceptable.  There seems to be a fundamental difference of opinion as to what the word “reasonable” means.  So, that is the situation we are left in.

HER HONOUR:   Do you accept that it is reasonable that  the costs be paid on a solicitor and client basis and taxed on that basis if not agreed?

MR PAULING:   Yes, I would have to say that, but one needs to be defining what it is that the work is about; what it is that the first respondent has to do in the matter.  The legal points are rather narrow points - two quite narrow legal points - but I do not accept it to be reasonable that whoever managed to be briefed in the matter thought it necessary to range over every matter that is touched upon in the judgments and so on.  There are points to come to quite quickly and narrowly and my clients are merely concerned that costs are ballooning out in an uncontrolled way.  I would have to say that if they were not agreed and they were to be taxed, then that taxation would be pursued, as you might imagine, and there would be a question then arising as to who would, if anybody, pay the shortfall.  But I can only make an observation that that is a possible outcome if the current trends continue.

HER HONOUR:   Yes.  Thank you, Mr Solicitor.  Perhaps I can direct some questions to Mr O in Adelaide.  Mr O, you have heard what has been discussed between me and the Solicitor-General for the Northern Territory.  Does that affect your position in any way, Mr O?

MR O:   It certainly does, your Honour.  My position, I am sure the Solicitor is aware, it was actually the case between my ex-partner and myself which brought this on, the Family Court case which brought this on, and without there being any representation for myself in this matter there is effectively no representation for the judgment of the Full Court of the Family Court.

HER HONOUR:   That is correct.

MR O:   So, basically, I am it, and I just feel that that leaves one enormous section of this unrepresented; one very relevant part of this unrepresented.

HER HONOUR:   The Solicitor-General is prepared to undertake to pay your costs of the special leave application and of the appeal on a

solicitor/client basis, to be taxed in default of agreement.  Does that enable you to be legally represented?

MR O:   Your Honour, as I say, I have no legal training.  The things you have just said to me are absolutely meaningless to me.  I do not really understand what it is that is being said.  That is all.  The taxed part and the solicitor/client basis and so on, I do not really know what that means, your Honour.

HER HONOUR:   It would mean that if the solicitors could not agree as to what was reasonable in regard to their dealings with each other and in regard to your solicitor’s dealings with you and in regard to the preparation of the matter and appearance in Court for the matter, that the Registrar of this Court would determine what is the reasonable fee.

MR O:   Do I get any time to make this decision, your Honour?  I am sorry about this.  My understanding is that the shortfall is actually quite substantial, your Honour, and I am looking to bring this to a conclusion that is a just conclusion.  The funding side of it really is not directly related to me, I would think, your Honour, but the continuation of this through the High Court, as I said, to a conclusion, to me is essential and I would need to do that in as satisfactory a way as I possibly can.  I feel, because of the history of this which - I mean, this has effectively run for about two years since the file was originally subpoenaed.  I think, because of that, the history of this matter, I cannot help feeling that those who have represented me so far are the ones best equipped to continue representation, your Honour.  The argument simply seems to be a financial one now and not directly related to the legal argument.

HER HONOUR:   How long would it take you to communicate with those who have represented you on what has been put to you today?

MR O:   I would say I could possibly get back to your Honour, tomorrow, unless that is too long.

HER HONOUR:   No, that is sufficient.  Thank you, Mr O.  Perhaps I could hear from the Solicitor‑General for the Commonwealth.

MR GRIFFITH: Your Honour, the Attorney‑General for the Commonwealth did intervene down below. The present Attorney-General, who was not the then Attorney-General, has made a decision to intervene to appear on this appeal, as I mentioned, pursuant to section 91 of the Family Law Act, there to our view not being a constitutional issue alive for this appeal. 

Your Honour, as to what would be the particular position of the Attorney, the Attorney has not resolved that yet.  It may well be supposed, your Honour, that as to the answers to the questions, the Attorney might propose answers to the opposite of what are proposed by the appellant, but not necessarily on the grounds stated down below.  We could not indicate, your Honour, perhaps if that is helpful, that there would be any necessary co-incidence of interest of the Attorney’s submissions with that of Mr O.  There may or may not be on some issues.

The other thing, your Honour, we would suppose that it would be necessary to serve a notice of the appeal on all the parties down below.  We do not need one ourselves because we have sufficient notice.

HER HONOUR:   It looks as though there are difficulties in this matter in the way of this matter proceeding as listed in December, do there not?

MR GRIFFITH:   Yes, your Honour.  We were just doing a count and there is not even four clear weeks for submissions of those parties who are there, let alone the representation issue.  We are ready, your Honour, whenever it is ordered, but as an intervener at the moment, it looks like there is a way to go.

HER HONOUR:   Thank you.  Mr Solicitor for the Northern Territory, do you have anything to say as to whether or not the matter can proceed as listed in December?

MR PAULING:   Yes, I can answer Mr O’s question.  It is within my knowledge that the senior counsel who appeared for him below is not available on the date on which the matter was listed and would not be available until February, March of next year.  So there would be that difficulty if Mr O went away now to ring up.  That is the answer he would get, that is that Mr McDonald is not available.  I was not proposing to appear in this matter myself because Dr Griffith and I are otherwise engaged on 1 December, but that would not matter, but I agree that there is too short a time now in which to serve the documents and seek to have written submissions prepared if you were going to set a timetable of that sort.  Is that what you had in mind, may I ask your Honour, to set out a time when the appellant ‑ ‑ ‑

HER HONOUR:   Could I ask you this:  are there two or three issues in this appeal?

MR PAULING:   It seems to me two.  One is whether the general terms of the Family Law Act are sufficient to be truly inconsistent with the provisions of the Community Welfare Act.  That is a matter of statutory interpretation,

not a matter of power.  I agree with Dr Griffith that there is no constitutional issue here.  The second concerns the Commonwealth Evidence Act and whether or not it applies before the actual adducing of evidence in a case, whether it applies to pre-trial procedure.  In that issue the Commonwealth and the Northern Territory were ad idem before the Full Court and the Commonwealth was a contradictor of the Northern Territory position on the first issue.

HER HONOUR:   What about the application - the construction of the Evidence Act?  Is that not in issue, whether or not the general rules of evidence override particular confidentiality provisions?

MR PAULING:   Yes, that is the second point that I alluded to, sorry, it is part of that point.  It could be seen as a third and separate question because, from the Commonwealth point of view, if the provisions of the Commonwealth Evidence Act, the broad provisions were sufficient to overcome confidentiality provisions in other Commonwealth legislation, that would be an undesired outcome.

HER HONOUR:   Yes.  They are the only three matters as you see it that are raised?

MR PAULING:   Yes.

HER HONOUR:   Thank you.  Perhaps I could then ask Mr O what he thinks of the position.  The suggestion is that this matter cannot proceed as listed in December, that it should go over to some later date.

MR O:   I would be happy to agree to that, your Honour.

HER HONOUR:   I think it is necessary, as well as that, that there be some liaison between you and your legal representatives as to the proposal that was made and to request some liaison between you and perhaps your legal representatives, if they are prepared to act to that extent, and the Solicitor‑General’s Office in the Northern Territory as to the question whether, on the basis of an undertaking to pay your costs of the application for special leave to appeal and of the appeal on a solicitor/client basis, to be taxed if necessary, they are prepared to act in the matter and, if not, whether you are prepared on those terms to seek other representation.  Do you understand that?

MR O:   Your Honour, vaguely.  If those who have represented me prior to this in this case were not prepared to accept the solicitor/client basis of payment, then yes, I would choose to find an alternate means of representation.

HER HONOUR:   Yes, I understand that.  Thank you, Mr O. 

In the circumstances, Mr Solicitor for the Northern Territory, I think the matter must be taken out of the list for December and stood over to a date to be fixed and that the following directions should be given, namely, that you serve the notice of appeal on the other respondents to the proceedings in the Full Court; that you obtain and provide to Mr O or his legal representatives as nominated by him a transcript of today’s proceedings; that you take such steps to liaise with Mr O or his legal representatives as may be necessary to clarify the position; and as well, that you report to the Registrar on the steps taken within 21 days.  Would that seem appropriate, Mr Solicitor?

MR PAULING:   There was only one thing I would add.  In your discussion of an undertaking to pay the costs, I do ask that the word “reasonable” be included.

HER HONOUR:   Well, costs on a solicitor/client basis.  If that cannot be agreed, it will then be for the Registrar to determine what is reasonable.  Costs on a solicitor/client basis naturally involve the concept of “reasonable”, do they not?

MR PAULING:   I will concede that, your Honour.

HER HONOUR:   And it will be a question, if you cannot agree on that basis, for the Registrar to determine what is reasonable, having regard to his vast knowledge of taxing matters.  Is that accepted?

MR PAULING:   Yes, your Honour.

HER HONOUR:   Yes, thank you.  Well, you will attend to the transcript, will you, for Mr O?

MR PAULING:   Yes, we will. 

HER HONOUR:   Is there anything else, Mr Solicitor for the Commonwealth?

MR GRIFFITH:    Just to flag a possibility, your Honour.  This is a matter which will be before the Full Court on a grant of special leave and we understood Mr Pauling to say that he doubts that Mr O has a live interest, I think, apparently because he already has access to the documents.  I do not know whether that raises a possibility that it may well be that there is not a live point to proceed to judgment.  It might be that it could be a matter for

the Court to consider to revoke special leave.  It is just my learned friend’s reference to Mr O not having a live interest, when we are busy trying to work out representation for him, flags in my mind the issue of whether there is a live issue on the appeal.

HER HONOUR:   Yes.  Well, that is a matter that can be raised when the matter is listed.  In those circumstances, I think the Court will adjourn.

AT 3.32 PM THE MATTER WAS ADJOURNED