Olsthoorn v Collins

[2003] HCATrans 636

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P44 of 2002

B e t w e e n -

QUIRINUS PETER WILLIAM OLSTHOORN

Applicant

and

MARY HAIR COLLINS

Respondent

Application for extension of time

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 3 APRIL 2003, AT 2.14 PM

Copyright in the High Court of Australia

MR Q.P.W. OLSTHOORN appeared in person.

HIS HONOUR:   I have read your submissions as they are contained in the affidavit.  I have read all the papers in your special leave application.  My practice is to give parties no more than 10 minutes for this sort of application and certainly never more than the 20 minutes allotted for special leave applications.  Do you want to put any oral submissions in support of the application?

MR OLSTHOORN:   Only very brief ones?

HIS HONOUR:   Yes.

MR OLSTHOORN:   First of all, in regard to the certificate of deemed abandonment, I have no reasonable excuse to offer, apart from the fact that I totally misread the Rules and I substituted the six‑month rule for the 28‑day rule.  Everything else that I could say on that would be facile.

HIS HONOUR:   Yes.

MR OLSTHOORN: That is that part. The more relevant part is that I do believe, having now, unfortunately, considerable experience, this section 117 issue is one of considerable public import. It is probably something that a litigant in person would be facing every day in a Family Court in this country and having researched as far as I can the Full Court judgments, they give me no confidence whatsoever. There is not a single leading case that is a bellwether of how this issue should be treated and my belief is that the decision of Parliament as in section 117(1), that as far as possible each party bear their own costs, should have primacy of issue over the other sections ‑ ‑ ‑

HIS HONOUR:   That is difficult to justify, given that subsection (1) is introduced by the words, “Subject to subsection (2)”.

MR OLSTHOORN:   Certainly, and subsection (2) leads to – from (a) to (f) gives quite specific instances where a substitution should apply and I have no difficulty with any of these.  These are generally issues of malfeasance or malice or, you know, things where things are done incorrectly.  Section (g) which is – the Family Law Act is littered with that same phrase – gives this wide discretionary clause.  Now, I appreciate in an issue as – I will not say “delicate” but is difficult to quantify as family law a discretion needs to be applied in many cases, but I argue that if this discretion is applied then reasons must be given for that application.

Now, in my case, it is issues of costs. There are two possible sections or two possible parts of 117 which could be applied to making the judgment as to the costs. It is either (g), in which case there are no reasons whatsoever given by the trial judge for application of that, or section 117C which is the issue of offers made by each party. Now, we both certainly made offers. We ended up with a judgment where the trial judge awarded an amount greater than the other side which was subsequently almost completely reversed on appeal, or substantially modified on appeal, and when it actually came to the nitty-gritty of the case, the amount that actually I paid out was almost identical to my initial offer.

Now, the trial judge made various errors which were pointed out by the Full Court.  One of them was to make a fixed‑sum argument which should not be really applied in any issue and, secondly, at the pre-trial hearing on 13 April – and the transcripts are available – on the second last page there is almost a direct warning that I would be paying costs.  Now, in Family Court issues, there are no winners, there are only losers and there is always ‑ ‑ ‑

HIS HONOUR:   Yes, but what you have to bear in mind is that there has to be something special about your case.  The subject matter of costs is almost a hopeless subject matter for a special leave application, speaking generally.  The Court has in the past granted leave, but there has been some important point of principle involved.  But, secondly, you are dealing with a discretionary judgment and it is very difficult to succeed on an appeal and it is not a matter that this Court would ordinarily touch.

MR OLSTHOORN:   I am sorry, I did not quite hear the first part, but, first of all, the issue of costs was already extensively modified by the Full Court from me bearing all the costs to me bearing only half the costs. Again, the Full Court also gave no reasons at all for why they made that decision. The trial judge gave no reasons and the section 117 application – I am sorry.

HIS HONOUR:   But the reasons seem to me to be plain enough.  It is a nine‑page judgment, which is quite long for a costs judgment.  They make it reasonably plain the grounds that they are acting on.  But even if they are wrong, this Court does not grant special leave simply because a case is wrong or is arguably wrong.  There are tens of thousands of cases heard every year in Australia.  This Court can only hear 50 to 60 and there has to be something truly special or exceptional about the case before we will grant leave.

MR OLSTHOORN:   Then I would suggest that we introduce the matter which is in my application of the two areas that the Australian Law Review Commission reported on in 1997 and 1995 where, particularly in 1997, they suggested there should be major changes to the application of this section 117.

HIS HONOUR:   That may be, but it has really nothing to do with this Court.  Whatever they say about the section or whether it should be reformed is nothing to do with us.  We are not there as a legislature.  We have to apply the law and apply the law as it stands.

MR OLSTHOORN:   In regard to that, my argument is that the law applied at the lower levels of court are directed by what the Full Court decisions are.  The Full Court decisions give one no particular guidance.  For instance, there is a recent case of Green v Browne ‑ ‑ ‑

HIS HONOUR:   But that is a good thing.  That is a very good thing because this is a discretionary judgment and discretions can be properly exercised although two judges come to opposite conclusions on identical sets of facts.  Nevertheless, you cannot say that one or both is in error.  That is the nature of a discretionary judgment.  There is a discretion to weigh up various factors and they will strike different judges differently.

MR OLSTHOORN:   If there is a discretionary judgment, then it is a matter, which I think is discussed in various areas of law, that the judge must give adequate reasons for that decision. There were no reasons given at all by the trial judge of why he made the decision. Did he use section 117(2)(g) or did he use 117(c)? He does not even mention it, and neither does the Full Court explore that area. They, again, have made simply an adjustment, sure, but I do not see what basis the justices made it on. I mean, it is not – well, it is obviously to some extent my personal thing. Section 117 is a very loose cannon in the Family Law Act and it needs ‑ ‑ ‑

HIS HONOUR:   It may be, but I have to tell you, having studied the paper, your prospects of getting special leave seem to me to be very low and, indeed, I do not think you have any prospects of getting special leave.  That is a significant matter in determining whether or not this discretion should be exercised in your favour.  It will do you no good to be given special leave if you are going to incur costs in filing an application book and the costs of a hearing if your application is going to ultimately fail.  It would only mean that you will have suffered the inconvenience and stress of litigation.  I have to tell you I have the read the materials and I do not think you have any reasonable prospect of getting special leave to appeal.

It is obviously a matter that you feel strongly about, but I really do not think that you have any real prospects.  Certainly, on the material, I would not grant you special leave to appeal and, although I may be wrong, I do not think any other members of the Court would.  I do not think that the case really concerns anything much more than your own personal situation.

MR OLSTHOORN:   I have tried very hard to not make it my personal situation. It is to say that section 117 is being used as a threat towards litigants to abandon cases or settle cases where the matter should be adjudicated but not simply forced down a particular venue.

HIS HONOUR:   Yes, but, Mr Olsthoorn, we do not sit here as some sort of judicial ombudsman.  We are here to decide cases and we cannot look at all the cases that come before the Family Court and review them and tick this one or cross that one.  We decide concrete cases between parties and in the course of doing so sometimes we declare the law in such a way that applies to the nation.  In fact, ordinarily that is the only reason we grant special leave. 

But given the reasoning in your case, this decision to this Full Court is no precedent for anything and one of the reasons for it is it does not attempt to state the principles in any great detail.  In fact, it is almost impossible to do so except on a case by case basis.  Different cases come up.  They have different sets of facts.  One judge says no offer was made, or an offer was made, should have been taken and he did not disclose this or she did not disclose that.  These are value judgments which you just cannot formulate in advance.

MR OLSTHOORN:   I can only reiterate my major sincere objection to both the trial and the Full Court process is that the only discretion – if discretion is applied, then reasons should be given as to why that decision has been made and that is what is not available.

HIS HONOUR:   I understand what you say but the Full Court did – I mean you had significant success in the Full Court.

MR OLSTHOORN:   Certainly.

HIS HONOUR:   The court set out various grounds of the trial judge.  There is a total of nearly 14 pages of reasoning, which you would no doubt say is not reasoning, but ‑ ‑ ‑

MR OLSTHOORN:   No, sorry, not in regard to the actual property award.  My argument is only in regard to the costs.

HIS HONOUR:   Yes, I understand that, and I am really talking about the costs order that was given on 23 April 2002.  In paragraph 22 they set out the matter that the trial judge took into account.  They took into account in paragraph 23 that his Honour said he had regard to “sub‑paragraphs (c), (e) and (f)” and so on and in paragraph 28 they said “the trial Judge took into account the offers made by the parties”.  Now, somebody else might write a more extensive judgment and a clearer judgment, but this Court cannot be granting special leave to determine whether or not the reasons of a particular judge or a particular Full Court are as extensive as they ought to be.

As I said to you, we can only take 53 to 60 cases a year and that includes major constitutional cases, major appellate cases that declare the law for the nation, and every losing litigant is aggrieved and we hear – I think there are nearly 500 applications for special leave to appeal this year and realistically only about 12 to 15 per cent of them have any real chance of being accepted and they are only the tip of the iceberg of all the cases that are decided throughout the nation.

If I thought that you had any arguable chance of getting special leave to appeal, I would grant this extension of time so that you could have your day in court.  But I really think that rejecting this application is doing you a favour in terms of costs, stress and worry.  You have to go to the expense – it maybe small – of putting on applications books; your wife may again turn up with Queen’s Counsel; you get an order for costs against you and you have to pay those costs; and it is for an application that I think cannot succeed.  Now, I have studied your papers.  I think I have made my views reasonably plain to you.  Is there anything further that you want to put to me? 

MR OLSTHOORN:   No, I accept your view.  I mean, I accept it and obviously ‑ ‑ ‑

HIS HONOUR:   Yes, I understand. 

MR OLSTHOORN:   ‑ ‑ ‑ it will be abandoned, but I regret that – as I said, this issue is something that many other people will be facing up with because it is, in my view, used to some extent for administrative convenience of the court to minimise the amount of litigation – and I appreciate that that must occur, just like it does at the High Court.  But it is also, as I said, the way it was applied to me in this specific instance led to a conduct of a trial which was conducted in a way it should not have been conducted, because of what were perceived to be threats.  That is really – you know, I am just sort of closing argument ‑ ‑ ‑

HIS HONOUR:   Yes, I understand. 

MR OLSTHOORN:   ‑ ‑ ‑ because the position has to be made.  It is my regret that this very important section – not important in, sort of, you know, major social conduct, but certainly it is a daily event for people – is not to be reviewed, and it is something that is obviously of interest to the public because, as I have said, the Australian Law Review Commission on two occasions has spent a lot of time on it. 

HIS HONOUR:   Yes.  Well, costs sections are very important sections really, because at the end of the day, and particularly in family law matters, they cut into the funds available to be divided between the former husband and wife.  But is there anything further that you want to say?

MR OLSTHOORN:   I have not further legal argument.  I mean, what I have given you is purely an emotional argument; it is not a legal recourse.  I cannot recommend to you ‑ ‑ ‑

HIS HONOUR:   No, it is not emotional and you have conducted yourself with restraint, if you do not mind me saying so.  Understandably many people who come to this Court representing themselves, who feel they have been done an injustice, can become very emotional and I certainly have not seen any sign of that in what you have put to us.

MR OLSTHOORN:   It, for me is an issue is that – I am speaking in broad terms now….. – the Family Law Act is obviously – there are only losers, some lose more than others; there are no winners walk out of this place.  But I am not of a mind to be marching down the streets with banners and doing those sort of things.  I felt that this was an area that had been applied to me.  If I could get a more concise definition of how this would be applied in general in the Family Law Act, I would be – I sound as if I am giving myself a medal, but, you know, I would feel that I have done something for the – you know, to me the amount of money in this case – we have not even had a taxation; it is next week – I do not think the amount of money is very great.  It was the issue itself ‑ ‑ ‑

HIS HONOUR:   No.  Well, you pointed that out in your documentation, that even if you succeeded your financial benefit was not going to be all that great in the ‑ ‑ ‑

MR OLSTHOORN:   No, it is not very great at all and it probably might be $8,000 or $10,000 at the outside ‑ ‑ ‑

HIS HONOUR:   Yes.

MR OLSTHOORN:   ‑ ‑ ‑ and that would probably be subject to appeals as well, depending on how the registrar deals with it.  That really was not the issue.  It was ‑ ‑ ‑

HIS HONOUR:  No, I understand.  If there is nothing further, then perhaps you might - I will give a formal judgment in the matter now, thank you.

MR OLSTHOORN:   Thank you.

HIS HONOUR:   The applicant, Mr Quirinus Olsthoorn, seeks leave to extend time for filing documents in his application for special leave, an application that by reason of delay is deemed abandoned by a certificate that was issued on 28 February 2003.

In his special leave application the applicant seeks leave to appeal from part of a costs judgment made by the Full Court of the Family Court of Australia on 23 April 2002.  The application for special leave to appeal was filed on 15 May 2002, although a typed document dated 21 May 2002 is in the file and may have been filed at a later stage.

The applicant’s summary of argument under the Rules was required to be filed on 12 June 2002 but was not filed until 25 October 2002.  The failure to file that document was a breach of Order 69A rule 6(1) which states that:

The applicant shall, within 28 days after filing an application, file and serve a summary of argument and a draft notice of appeal ‑

In accordance with Order 69A rule 13, the application was deemed to be abandoned on 15 November 2002 as the applicant had not completed all steps, including filing the application books, by that day.  In a letter of 28 February 2003, the Deputy Registrar informed the applicant that in response to a request by the respondent she had issued a Certificate of Deemed Abandonment under that rule.

In support of the summons for an extension of time is an affidavit dated 10 March 2003 by the applicant.  In his affidavit he acknowledges, as he did quite frankly here today, that he filed his summary of argument late.  He says he did not fully read the paragraph of the letter from the Deputy Registrar dated 16 May 2002 which explained the filing timetable.  In his affidavit he says that the only excuse he can offer is that he was under very great stress at the time, as a litigant in person.  Today he conceded that he did not have a reasonable excuse.

Although the applicant does not refer to the power by which this Court might retrospectively extend the time for filing materials, Order 60 rule 6 provides the source of this power.  Order 60 rule 6 states that:

A Court or Justice may enlarge or abridge the time appointed by these Rules . . . for doing an act upon such terms, if any, as the justice of the case requires.

Subrule (2) of rule 6 of that Order states that a Justice may enlarge the time even though the application is not made until after the expiration of the time for doing the act.

The object of Order 60 rule 6 is to ensure that the Rules of the Court which fix times for the doing of acts do not become instruments of injustice.  However, as I pointed out in Gallo v Dawson (1990) 64 ALJR 458, the grant of an extension of time under this rule is not automatic. In that case I referred to a statement by the Judicial Committee in the Privy Council in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12, and I quote:

The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.

The discretion to extend time, therefore, is given for the sole purpose of enabling the Court to do justice between the parties.  In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of an application for extension of time.

When the application is for an extension of time in which to file an appeal, it is necessary to consider the prospects of the applicant succeeding in the appeal:  see, for example, Hughes v National Trustees Executors & Agency Company of Australasia Ltd [1978] VR 257 at 263‑264, and Byrnes v Grigg [1967] VR 871 at 872. Further, as I pointed out in Gallo, it is also necessary to bear in mind in such an application that upon the expiry of the time for appealing the respondent has a vested right to retain the judgment unless the application for extension is granted.

The principles applicable in an application for an extension of time in which to file an appeal are also applicable to an application for an extension of time in which to file an application for special leave to appeal.  Accordingly, upon the issue of the certificate of abandonment, the respondent had a vested right to retain the judgment of the Full Court so far as it was in her favour.  Before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice to the applicant.  The applicant will suffer no injustice if his application for special leave was bound to fail in any event.

The first difficulty which faced the applicant is, as he himself concedes, he has no satisfactory explanation for failing to comply with the timetable.  However, if there was nothing else in the case, I would not regard this matter as itself decisive against the application.  What is more important in the case is whether the applicant has any realistic prospect of obtaining special leave to appeal.

Not only would it be wrong in principle to grant the extension if the application for special leave had no reasonable prospect of success, but the applicant would be put to unnecessary expense in pursuing an application that was doomed to fail. Moreover, although on that hypothesis the respondent would obtain a costs order in her favour, section 117 of the Family Law Act 1975 (Cth) having no operation in this Court, the respondent might incur other costs that were not recoverable on a party‑and‑party basis. In addition, both parties would be forced to suffer the stress and inconvenience that would necessarily accompany further litigation between them. So I turn to the question whether the special leave application has any reasonable prospect of success.

Special leave to appeal against the decision of an intermediate court of appeal is not granted by this Court merely because it is arguable that the decision of that court is erroneous.  To warrant the grant of leave there must be something special about the case, some exceptional feature that sets it apart from other cases decided by intermediate appellate courts.  The present case concerns leave to appeal against a decision concerning part of a costs order.  So it is an application to appeal against a discretionary order concerning the costs of the proceedings.

The grounds for appealing against a discretionary order are limited.  The principles on which an appellate court intervenes in respect of discretionary orders are well settled and, as I have indicated, the grounds for intervention are limited.  Before the Court would grant special leave to appeal against such an order there would need to be something truly exceptional about the case.  The time of this Court, as the nation’s ultimate appellate tribunal and constitutional umpire, cannot be taken up in deciding ordinary cases between litigants.  The workload of the Court makes it impossible to hear appeals against every judgment of an intermediate appellate court.  That is why the special leave procedure was introduced in 1984, to enable the Court to distinguish between those cases which were sufficiently special to come before the Court and those decisions of intermediate courts of appeal that were not so special.

Furthermore, an order as to who should pay the costs of litigation between parties is not a matter that would ordinarily itself attract the grant of special leave to appeal.  Occasionally in the past, the Court has granted leave in a matter concerned with costs but only where the case concerns some important point of principle.  Cachia v Hanes (1994) 179 CLR 403 is an illustration, but there the issue was whether costs in the New South Wales Supreme Court Rules included compensation for the time spent by a litigant who was not a lawyer in preparing his case. That was a point of general importance going beyond the interests of the particular parties.

In his summary of argument the applicant submits that there are seven reasons why special leave should be granted. To understand these reasons it is necessary to refer to section 117 of the Family Law Act which governs costs in proceedings under the Act.  Subsection (1) provides that:

Subject to subsection (2) and section 118, each party to proceedings under this Act shall bear his or her own costs.

Subsection (2), however, provides that:

If . . . the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs . . . as the court considers just.

Section 117(2A) then declares that:

In considering what order (if any) should be made under subsection (2), the court shall have regard to –

the matters set out in paragraphs (a) to (g) in subsection (2A).

It is plain enough, therefore, unless the Family Court considers there are circumstances that justify it in doing so, ordinarily each party shall bear his or her own costs.  But the court has a complete discretion under subsection (2) to award costs where it considers it is just to do so.  Subsection (2A) directs the court to have regard to various matters.  It is arguable whether that subsection exhausts the matters that the court can take into account.  The terms of paragraph (g) – that the court shall have regard to “such other matters as the court considers relevant” – would indicate that it is exhaustive.  On the other hand, the opening words of subsection (2A) are simply that “the court shall have regard to”.  It does not say the court shall only have regard to those matters.  However, for the purposes of this application it is unnecessary to say anything further about the matter.

As I indicated, the applicant has listed seven reasons why special leave should be granted.  Reason 1 is “the merits of this specific matter and that none of the usual tests appear to apply”.  These reasons are not ones that would warrant the grant of special leave.  They are no more than an argument that, on the facts of this particular case, the court should not have made the order that it did.  The court’s reasons show, in my view, that it thought that the conduct of the applicant warranted the making of an order.  Whether that view is right or wrong, however, is not a ground for special leave to appeal.

The second reason given is “the wide variance of Full Court decisions in the area of section 117 of the Family Law Act”.  It seems from what the applicant has said to me today that different judges are reaching different conclusions on reasonably similar factual situations.  But, if that is the case, those decisions are the natural consequence of discretionary judgments which must take into account a wide variety of factors which different judges will weigh differently.  It is a recognition of this factor that makes it so difficult to appeal against a discretionary judgment.  As I pointed out in argument, the fact that two judges came to opposite conclusions on identical facts does not mean that one, or, for that matter, both of them, has or have erred.  Accordingly, this reason is not a ground for special leave to appeal.

Reason 3 is the “serious criticisms of this section by the Australian Law Review – it should be Reform – Commission on two occasions in 1995 and 1997”.  However, the fact that this section has been criticised by the Law Reform Commission is not a ground that can concern this Court.

Reason 4 is the “need for guidance on section 117(2) to the Family Court”. This ground, however, misconceives the jurisdiction of this Court which must decide concrete cases between concrete parties. In the course of deciding such cases, the Court often lays down general rules conditioned on the facts of the particular case which are applicable in other cases. But the Court’s function is not to act as a form of judicial ombudsman surveying decisions of courts and giving advisory opinions to those courts. The Court’s exercise of judicial power is concerned with the application of law to the concrete facts of particular cases.

Reason 5 is that “costs in the Family Court jurisdiction should not be used as a threat or as an inducement to settle on an unfair basis”.  Nobody would dispute that to do so would be an error and, if it was done by a court, would be a blatant misuse of the judicial function.  However, there is nothing in the judgment of the Full Court which suggests that that is the case here.  For that reason, it is not a ground that would attract the grant of special leave.

Reason 6 is that “costs in this jurisdiction should be a matter of serious misconduct by a party”.  That ground, however, could not succeed.  Paragraph (a), for instance, refers to the fact that the court shall have regard to:

The financial circumstances of each of the parties –

Paragraph (e) of subsection (2A) states that the court shall have regard to:

whether any party to the proceedings has been wholly unsuccessful in the proceedings;

So although questions of serious misconduct will play an important part in determining who should pay the costs, that fact is by no means exhaustive of the matters that ought to be taken into account by the Family Court.

Reason 7 is that this is “an issue of import in view of the increasing number of self‑represented litigants making unintended errors or where the other party invites litigation by unreasonable initial demands”.  However, this is not a matter that goes to the special leave function of the Court, which is concerned with the special nature of the legal issues.

Accordingly, in my view, the application for special leave has no reasonable prospects of succeeding.  That being so, it would not be right in principle to extend the time for filing documents in the application.  To do so would have the result of divesting, at least on a conditional basis, the judgment that the respondent now has in her favour.  As I have already indicated, it is not in the long‑term interests of the applicant to extend the time for filing documents who, in my view, would ultimately be facing an order for the costs of the special leave application.

For those reasons, in my view the Court should not grant the extension of time sought.  I would dismiss the application. 

I should have noted at the beginning that the Registrar has certified that the respondent did not intend to appear at the hearing and would rely on the document which she had filed in Court.

Accordingly, the application is dismissed.  The Rules of Court require that, in an application such as this, the applicant must pay the costs if he or she is successful.  It follows, a fortiori, that when the applicant is unsuccessful that person must pay the costs of the application, although it seems unlikely in this case that they will be very great.  Accordingly, the application is dismissed with costs. 

Adjourn the Court, please.

AT 2.58 PM THE MATTER WAS CONCLUDED