Pangas v Newjur Pty Limited

[1996] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S77 of 1995

B e t w e e n -

PETER KENNETH PANGAS

Applicant

and

NEWJUR PTY LIMITED

First Respondent

ROSYNNE LANNETTE PANGAS (LORD)

Second Respondent

PETER JONATHAN PANGAS

Third Respondent

JASON CHRISTOPHER PANGAS

Fourth Respondent

WENDY ROBYNNE PALMER

Fifth Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1996, AT 12.36 PM

Copyright in the High Court of Australia

__________________________________

MS C. COMINOS:   I appear for Mr Pangas in this application.  (instructed by Bouris Cominos)

MR G.M. JOHNSTON:   I appear for the second respondent.  (instructed by Miller Goddard)

MS COMINOS:   Your Honours, I must apologise, the points of argument had not been filed and I do have them here, if I can have leave to hand them up to your Honours.

BRENNAN CJ:   Yes.  The Deputy Registrar informs the Court that the second respondent is the only respondent to have entered an appearance to the application, but attempts by the Registry to contact the first, third, fourth and fifth respondents have been to no avail.  Not one of the respondents has informed the Registry whether or not they will be appearing on the application for special leave to appeal.

MS COMINOS:   Your Honour, I can advise you that those respondents did not attend before the Court of Appeal hearing and I understand from an application which Mr Pangas made personally that they did not wish to attend at the Court of Appeal hearing.

GAUDRON J:   Yes, that does not deal with today’s matter.  Have they been served?

GUMMOW J:   Can you prove service?

MS COMINOS:   I understand from Mr Pangas, who initially filed the application, that they have been served.

BRENNAN CJ:   But have you got any proof of that fact?

MS COMINOS:   Your Honour, I will just ask Mr Pangas if he has filed the affidavit of service on those respondents.  If I am permitted to leave the Bar table, he is in Court at the moment.

BRENNAN CJ:   Yes.

MS COMINOS:   Thank you, your Honour. 

BRENNAN CJ:   I think the Deputy Registrar is present.  Has any affidavit been filed, Mr Deputy Registrar?

THE DEPUTY REGISTRAR:   No, it has not, your Honour.

MS COMINOS:   I am very sorry for that delay, your Honours.  Mr Pangas advised me that he was advised by the Court that he was required to serve those respondents and he said that he has complied with the Court’s directions.  I asked him whether he does have an affidavit of service and he is unaware whether or not he does have an affidavit of service.

BRENNAN CJ:   It seems that there is not one and in those circumstances it is difficult to proceed.

MS COMINOS:   Your Honour, it might be appropriate to adjourn the proceedings and that affidavit of service, if there is one, can be filed; if not, the parties again can be contacted to see what view they have.

GUMMOW J:   It is just a question of serving them and proving service.  It is not a question of ascertaining views.

MS COMINOS:   Yes, that is correct, your Honours.

BRENNAN CJ:   What do you have to say, Mr Johnston?

MR JOHNSTON:   Your Honour, I have no prejudice other than as to costs.  I might add - your Honour, may I say something further in relation to costs?

BRENNAN CJ:   Yes.

MR JOHNSTON:   In relation to costs, at 11.45 today I finally received a copy of the submissions as they were filed in the Registry.  On the face of them I am in no better position than the submission I made to your Honours in writing that there is nothing on the face of it that shows either a prima facie - or some matter that this Court would be interested in.  It is simply an argument as to fact between a husband and wife over the approval of a maintenance agreement which has now been enforced by the Supreme Court and, your Honour, these proceedings have always been proceedings between a husband and wife.  The trustee played no part of any active role in the proceedings at first instance, nor in the appeal.  The three other respondents are the children of the husband and the wife who are parties to this appeal and they have played no active role at all.

I only add those matters in relation to the Court’s convenience as to whether or not it is a matter that the Court would ever deal with.  If it please your Honours.

BRENNAN CJ:   Ms Cominos, if there is a prima facie case for the grant of special leave, we would adjourn the matter.  If there is no prima facie case then it would be in the interests of all parties that it be dismissed instanter.

MS COMINOS:   Thank you, your Honour.

BRENNAN CJ:   Do you think you could very briefly tell us what you say is the prima facie case for special leave?

MS COMINOS:   Yes, certainly, your Honour.  The prima facie case relates on, firstly, the point - if, your Honours, I could hand up these submissions, that might be of assistance.

BRENNAN CJ:   Yes, you could hand them up but we do not want to spend a lengthy time on this if there is no substance in there. 

GUMMOW J:   There is an additional evidence point.  There does not seem to be much in that.  It is not truly fresh evidence, and anyway the principles are well settled.

MS COMINOS: Your Honour, the first point is the Court of Appeal erred in ruling that the additional evidence which Mr Pangas wanted to file in his affidavit sworn 28 April 1995 should not be received since the strict requirements of section 75A(8) of the Supreme Court Act were not satisfied.  Your Honour, I do enclose a copy of the affidavit sworn by Mr Pangas on 28 April 1995 but for convenience, your Honour, I will just refer you to the salient points.  Firstly, your Honour, Mrs Lord has subsequently remarried and lives in New Zealand with her new husband.

BRENNAN CJ:   What is the question of special leave?

MS COMINOS:   The question is, your Honour, that the Court of Appeal erred in not allowing Mr Pangas to file this additional evidence in the exceptional circumstances of this case.

BRENNAN CJ:   Why should that command a grant of special leave?

MS COMINOS:   Your Honour, I would submit it is a point of public importance as to when a court should grant an appellant or an applicant leave to file additional affidavit material.  I understand that is not usual, but I would submit in this case there are exceptional circumstances.

BRENNAN CJ:   It may be that in this case there are, maybe there are not, but where is the special leave point that requires consideration by the High Court of Australia?

MS COMINOS:   The point, your Honours, is in what circumstances will or should a court grant leave to file additional evidence on appeal which was not filed in the court below.

GAUDRON J:   The principles relating to that are well established.

MS COMINOS:   Yes.  Your Honour, the other point is that Mr Pangas appeared unrepresented before the court when the section 87 deed was approved and in his affidavit on ‑ ‑ ‑

GUMMOW J:   But he did not seek to set it aside.

MS COMINOS:   No, that is right, your Honour.

GUMMOW J:   But he now seeks to do so?

MS COMINOS:   Yes, that is correct, your Honour.

GUMMOW J:   Here?  He did not seek to do so before the primary judge in the Equity Division.

MS COMINOS:   No, that is correct, your Honour, and the point is as to when, if Mr Pangas in the exceptional circumstances did not seek to set the section 87 deed aside, whether or not now he can do so.

BRENNAN CJ:   The answer to that is obvious.

MS COMINOS:   Your Honour, the third point is that Mr Pangas swore an affidavit on 19 October - this is point 13 - which contained material evidence which was rejected by his Honour and not read in the hearing as it was not filed and served within the time specified by his Honour Justice Santow on 8 October.  In other words, Mr Pangas did not comply with the timetable.  The reasons for that, according to Mr Pangas in his affidavit, are that ‑ ‑ ‑

GUMMOW J:   But what did the Court of Appeal say about this?  Was it agitated at the Court of Appeal?

MS COMINOS:   Your Honour, I do not think the point was raised in the notice of appeal directly before the Court of Appeal.

GUMMOW J:   One cannot really go up the appellate ladder and put new wheels on the cart.

MS COMINOS:   Yes, your Honour.  The point that Mr Pangas has in respect of the case is that the wife had promised the three children the sum of $100,000 on signing a document in respect of the Cremorne property.  The trustee had advised the children that the Cremorne property was worth 300,000 and the trustee was advised by his Honour Mr Justice Santow to give the children funds to obtain legal advice.  Mr Pangas says the trustee did not give any funds to the children.  After the proceedings the wife immediately sold the property for $2 million and the children were precluded from inheriting the property leaving the children without a home and that the wife has not given the children the 100,000 promised.  Your Honours, the trustee commenced the proceedings ‑ ‑ ‑

BRENNAN CJ:   Now we are really getting into a series of factual propositions that do not sound to me at all like special leave points.

MS COMINOS:   Yes, your Honours.  The trustee commenced the proceedings, and it sought that it be left as co‑owner of the property with the wife.  Mr Pangas says that at no time was he aware that the trustee would not be proceeding with the case and at the hearing the trustee did not read any of the approximately 10 affidavits which he had filed against the wife but, instead, chose to read affidavits which he had filed against Mr Pangas.  Because the ‑ ‑ ‑

BRENNAN CJ:   Ms Cominos, you have an allocated time for the application of special leave ‑ ‑ ‑

MS COMINOS:   Yes, I am sorry.

BRENNAN CJ:    ‑ ‑ ‑ but the time of this Court is very valuable, and we really need to understand whether you have any special leave point at all.  Thus far, there has been no sign of it.  Now, if you can perhaps produce what you might regard as your strongest special leave point in order to see whether we have to adjourn this application.

MS COMINOS:   Yes, your Honour.

BRENNAN CJ:   Because if you cannot demonstrate a strong special leave point, then mercy indicates what the order should be.

MS COMINOS:   Yes, thank you, your Honour.  Well, the point, your Honour, is that the trustee who commenced the proceedings did not proceed with the proceedings, and then Mr Pangas was not given much time to prepare for them, and that is why he sought leave to put on additional evidence on the appeal.  The other point, your Honour, is that Mr Pangas appeared unrepresented before the Family Court when the section 87 deed was approved on 2 May as he did not have funds and, in addition, his legal aide application was refused.

BRENNAN CJ:   Is that your best special leave point?

MS COMINOS:   No, no, your Honour, I am getting to ‑ ‑ ‑

BRENNAN CJ:   Well, then, give us now your best special leave point.

MS COMINOS:   Well, your Honour, my point is that Mr Pangas signed the section 87 agreement, it appears from the transcript, firstly - that was before Justice Santow - he was not represented; secondly, the judge formed the view in March when the deed first came before him that it was not a proper deed.  The solicitor who appeared for Mr Pangas on 5 March, when the deed was not approved, advised the court that in his opinion the deed was not a proper deed and it was not a proper arrangement.  On 2 May, Ms Simpson, who appeared for the wife on that occasion, advised the court

that she was unable to advise Mrs Pangas of Mr Pangas’ financial position, therefore should not say to the court that it was a proper deed.  Mrs Lord also said at the hearing ‑ ‑ ‑

BRENNAN CJ:   Is this your best special point now?

MS COMINOS:   Yes, your Honour - that although the property was to be put in her name, she never considered that - that she had considered that the children would get it when she died, which is Mr Pangas’ point; that at all times, although the wife was supposed to have the property, once it died it would go to the children.

BRENNAN CJ:   Was that your best special leave point?

MS COMINOS:   No, your Honour, my best special leave point is the ‑ ‑ ‑

BRENNAN CJ:   Well, please tell it to us, Ms Cominos.

MS COMINOS:   Yes, certainly.

BRENNAN CJ:   Is this it now?

MS COMINOS:   Yes, this is it now, your Honour.  The point is that Mrs Lord, in her evidence, states that she suffers from traumatic amnesia, and Dr John Roberts, in his report dated 12 July 1995, states:

On general principles, if the court is satisfied that Mrs Lord has a condition, and if the court is satisfied that a symptom of this conditions is amnesia, it would be extremely difficult, if not impossible, for the court to make an assessment as to the reliability of evidence given by such a person since confabulation is a feature of the amnesic states, whether the amnesia is organic or emotional in origin.

So, your Honours, on that point, the court erred in preferring Mrs Lord’s evidence to Mr Pangas.  That is my point, your Honour.

BRENNAN CJ:   Yes.  There is no question which warrants a grant of special leave in this case.  Special leave will be refused.

MR JOHNSTON:   We seek an order for costs, if your Honour pleases.

BRENNAN CJ:   Have you anything to say about that, Ms Cominos?

MS COMINOS:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs of the second respondent.

AT 12.51 PM THE MATTER WAS CONCLUDED