Pfitzner v Pfitzner

[1988] HCATrans 56

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B69 of 1987

B e t w e e n -

KENNITH NOEL PFITZNER

Applicant

and

DENESE CAROL PFITZNER

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

GAUDRON J

Pfitzner

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 25 MARCH 1988, AT 2.21 PM

Copyright in the High Court of Australia

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MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MR B.N. McGREGOR, for the applicant.

(instructed by P.J. Davis & Associates)

MR F. WILKIE:  May it please the Court, I appear for the

respondent in this matter. (instructed by

Trilby Misso & Company)

BRENNAN J:	Yes, Mr Davies.
MR DAVIES:	Your Honours, there is one preliminary matter.

The applicant seeks an extension of time for making

this application, it having been filed out of time.

I understand that my learned friend has just told me

he does not wish to take any point on that.

BRENNAN J:	How far out of time is it?
MR DAVIES:	About four days, I am told, Your Honour.
BRENNAN J:	I think you can proceed without concerning yourself

on that point.

MR DAVIES:  As Your Honour pleases. Your Honours, it was

common ground in this case before the trial judge, and on appeal, that the liabilities of the parties

exceeded their assets. Your Honours will see that

if you go to the reason for judgment of the

Full Court of the Family Court and, at about page 16

in the middle of the page - it is the last sentence

in that paragraph - His Honour said:

He further found -

that is referring to the trial judge -

and this was ultimately conceded by

counsel for the wife, that the

liabilities of the parties exceeded

their assets.

Your Honours, a substantial liability of the parties

was alone borrowed in Swiss francs, which was due for

repayment on 1 April 1989. The respondent to this

application sought an adjournment from the trial judge

to a date after that date pursuant to section 79(5)

of the Act on the basis that the assets and the

liabilities of the parties could be determined more

clearly after that date.

(Continued on page 3)

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MR DAVIES (continuing):  Up until that date it was said

there was fluctuations in the exchange rate and
there might also be fluctuations in the value of

the assets which were subject to the security

for the foreign currency loan and this could effect

the question whether, on that date, that is
1 April 1989, there would or would not be a net

deficiency after the assets had been sold.

The trial judge refused the applicant's application

for an adjournment on that basis for the

reasons which are set out in the judgment of the

Full Court of the Family Court, commencing at the

bottom of page 16. Your Honours, will see,

His Honour, is quoted there as saying:

Section 79(5) would, it seems to me,

require me to have evidence either that value of the properties would

be likely to increase or the Australian

dollar likely to improve in value

before I could take such a step.

There is no evidence before me in either

of these matters, and, indeed it would

be a considerable gamble, because, for

all one knows, the dollar may well

decline further in value, and so might

the properties, thereby making a greater

shortfall than ever.

He thus -

as the court said -

declined to adjourn the proceedings.

So, His Honour the trial judge's reasoning seemed

to be this. If I could ask Your Honours first

of all perhaps to look at section 79(5) of the

Act, the relevant part of which is paragraph (a).

His Honour the trial judge's reasoning seems then to have been this: t.hat in order to grant an

adjournment pursuant to section 79(5), the court

must be of opinion that there is likely to be

a significant change in the financial circumstances

of the parties or either of them, that is

paragraph (a); s'econdly, that in this case, that

meant that there must be evidence before the

court of a likelihood, either, that the Australian

dollar would improve or that the value of the

properties would improve by 1 April 1989 and thirdly

that there was, in fact,	no evidence before him of
either of those facts·.

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MR DAVIES (continuing):  The Full Court did not conclude,

contrary to the trial judge, that there was evidence

of either of these matters. They proceeded as

the trial judge had, it would seem, on the assumption
that the trial judge was correct and that there

was no evidence of either of these matters. So

they reached their conclusion, which I will come

whether,for an adjournment to be granted pursuant to section 79(5) in this case, there must

to in a moment, in the absence of any such evidence. submission

have been evidence that the value of the assets
of the parties, or one of them, would increase
or decrease, or the value of the liabilities of

the parties of one of them would decrease or increase.

In our respectful submission it must have

been the conclusion - and I will take Your Honours

to what they said in a moment - of the Full Court

that the correct meaning of the section is not
so limited because they describe the view of the
trial judge to that effect as a reading down of
the section. Can I take Your Honours to where
they said that at page 18. I, perhaps, should

read the whole of that paragraph on that page.

Their Honours say:

The granting or refusing of an adjournment

is, of course, discretionary, and it is usually

only in very special circumstances that an
appeal Court would interfere with the exercise

of that discretion. In addition to its inherent

power, this Court has a discretion, in the

circumstances set out therein, to adjourn proceedings pursuant to s.79(5). I would not read down the provisions of that section

in the manner in which the learned Trial Judge

did in this case and to which I have already

referred. It would appear to me that, having

regard to the ongoing trading operations of

there being a significant change in the financial

the husband, there is a real likelihood of

circumstances of the parties. By April 1989,

the offshore loan would be due for payment
and the actual amount payable clarified.
That being so, the Court would then, in my

view, be better placed to make an order which

is more likely to do justice as between the

parties than an order that the Court could
make either at the date of the hearing or

now.

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MR DAVIES (continuing):

This is particularly so when one has regard
to the alternative orders which were otherwise

open to the learned Trial Judge, none of which,

of the property dispute.	in my view, would result in a just determination
Your Honours, in our respectful submission,

what the Full Court must have concluded in saying that

is that "likely" in section 79(5) (a) meant ":_:,ossible".

Because there was no evidence of any probable future change in the Australian dollar, or in the value of the assets, and perhaps there could not have been

any such evidence, there was no probability of any

such change.

Now, in our respectful submission, our submission

on an appeal, if leave were granted, would be that

although "likely" in some contexts may mean''possible"

the ordinary meaning of the word is"probable". That

is the meaning given in the Shorter Oxford English Dictionary

and in the Macquarie Dictionary and really in

interpretation of other statutory pt:mzisfons, and I

could give Your Honours a reference to at least one of

those.

DEANE J: What.,do you mean by "probable": more likely than

not?

MR DAVIES:	Yes, I do.
DEANE J:	So "likely" means "more likely than nott?

MR DAVIES:  Yes, Your Honour. It means a probability rather

than - by "probability" I am saying'inore likely than

not''. "Possibility" I am using in its ordinary sense.

Your Honours, in any event, in our respectful

submission, what that meaning is - whether it does

mean "possible" or "probable" - is a question of

Court's discretion under section 79(5). In our	importance because it involves the width of the
respectful submission, that must be an important
question.

Your Honours, the only other matter which I

should mention is that - - -

BRENNAN J:  It is linked with the notion of significance of

the change, though, is it not, Mr Davies?

MR DAVIES:  It is, Your Honour, and it may be, of course, that

that supports our view that it means "probable".

In other words, the fact that there has to be a

significant change linked with "likely" would indicate
that there is some greater degree than a possibility

needed for the change in the financial circumstances,

as well as that change being a substantial change.

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BRENNAN J:  Would it not be right to say that in a situation

such as the present where the financial circumstances

of the parties depend chiefly on two issues, namely,

the value of property and the volatility of the
foreign exchange market, that the prospect of the
Court reasonably coming to an affirmative conclusion
under paragraph (a) depends upon the nature of
the issues and the possibility of adducing evidence

with respect to them.

MR DAVIES:  Well, in a sense it depends on those but, of

course, whether in fact there is a likelihood,

in our respectful submission, depends upon there

being some evidence from which that likelihood

could be inferred. Now, the Full Court accepted

in this case that there was no such evidence and

as I said earlier it may be that there could not

have been evidence of the future likelihood, for

example, of currency fluctuations; maybe one cannot

give that sort of evidence. But, in our respectful

submission, in this case there was no evidence

and there is clearly a view expressed by the

Full Court of the Family Court in the absence of

such evidence which would indicate that they have

taken the view that likely means no more than a

possibility.

BRENNAN J:  But if one applies it to the circumstances of

this case, it is demonstrable, is it not, mathematically,
that if there was a significant change in the exchange

rate between Swiss francs and Australian dollars

between now and 1 April 1989, that would be productive

of a significant change in the financial circumstances

of the parties.

MR DAVIES:	Yes.
BRENNAN J:	And if that fact is not itself susceptible of

evidence, how do we then come to the conclusion

that a view expressed by the Court as to the likelihood

of it is an unreasonable one. (Continued on page 7)

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MR DAVIES:  In our respectful submission, you come to that

conclusion because there is no evidence. The view

of the likelihood of that happening in the absence

of evidence must simply be a guess. It cannot be

anything more than a guess. It must be simply a

guess and, consequently, an unreasonable one.

of discretion. ButI did not want to trouble

Of course, in this case - and I did not want to enter
into the exercise of discretion, of course - to the
extent that the primary judge's decision was an

exercise of discretion, this decision of the

Your Honours with that because we were not suggesting

that there was a misstatement of the principles upon

which a discretion should be interfered with, but

simply a misapplication of the principles in this

case. So I was not really advancing that as an

important question of law.

BRENNAN J:	Yes.
MR DAVIES:	Your Honours, the only other matter which perhaps

I should mention, and that is because the Full Court

also referred to an inherent power - they refer to

that in the fourth and fifth lines on page 18,

and it would appear as an alternative basis for

granting an adjournment in the last paragraph on

page 18; and to the extent that the decision was

founded on that alternative basis it is our respectful

submission that the Family Court has no such inherent

power, that its jurisdiction and powers are defined
by statute and it consequently has those powers,

and only those powers which its Act and rules give it.

BRENNAN J:  What operation can you give to the opening words

at 79(5)?

MR DAVIES:  There are other provisions whereby the Court can

grant an adjournment in proceedings under this Act.

In fact, there are other provisions in section 79

itself. Section 79(1B), for example, refers to

adjournment of proceedings, but it is not suggested

that any of those other adjournment provisions, and

there are in other sections of the Act provisions

with respect to adjournment, but it is not suggested,

as we understand it, that any of those other provisions

is relevant to the adjournment granted here.

(Continued on page 8)

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BRENNAN J:	Yes.
MR DAVIES:	They are our submissions, may it please the

Court.

BRENNAN J:  We need·not trouble you, Mr Wilkie.

This is an application for special leave

to appeal against an order of adjournment made
by the Full Court of the Family Court of Australia

in proceedings between a husband and wife with

respect to the property .. af parties -from a marriage. the applications ·of both husband and wife.

His Honour found that although the assets of the

parties were substantial and their liabilities

which included loans made in Swiss francs were

also substantial and exceeded the value of the

assets) His Honour refused to make an order

under section 79(5) of the FAMILY LAW ACT 1975,

saying:

Section 79(5) would, it seems to me, require me to have evidence either that value of the properties would be likely to increase or the Australian dollar

likely to improve in value before I

could take such a step. There is no

evidence before me in either of these

matters, and, indeed it would be a

considerable gamble, because, for all
one knows, the dollar may well decline

further in value, and so might the

properties, thereby making a greater

shortfall than ever.

In the Full Court, Mr Justice Ellis said with , the concurrence of other members of the Court, inter alia,that he would not read down the

provisions of section 79(5) in the manner in

which the learned trial judge did in that case.

The applicant now seeks special leave to

appeal to consider the interpretation of
section 79(5), and in particular, the meaning of

the word "likely" and the necessity for evidence

to establish likelihood under that subsection.

However·, Mr Justice Ellis, in expressing the view

of the Full Court, said also this:

In my view, the Trial Judge erred

in the appellate sense in not adjourning
the applications to a date in April 1989,
either under the inherent power of
the Court or pursuant to the provisions

of section 79(5).

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It is, in my view, an undoubted power of the

Court to adjourn and that that power is inherent

in addition to whatever statutory power might

be conferred. In those circumstance~ by a reliance

upon the inherent power of the Court, His Honour

envoked a power which it is not possible in

proceedings in this Court now adequately to overhaul.

For that reason I would refuse the application for special leave to appeal

DEANE J:	I agree.
GAUDRON J:	I agree also.
BRENNAN J:	The application for special leave is therefore

refused.

1:1R WILKIE:  May it please the Court, I seek an order for

costs on behalf of the respondent.

MR DAVIES:  We cannot say anything about that, Your Honour.

BRENNAN J: Yes, is there any provision in the FAMILY LAW ACT

which touches the question of an award of costs?

1:1R WILKIE:  Yes, section 117, Your Honour. I should inform

the Court, that it is a matter for consideration

of the Court that my client is legally aided.

BRENNAN J: Is there anything you wish to say further

in support of your application?

1:1R WILKIE:	No, Your Honour.
BRENNAN J:	Mr Wilkie, the Court does not think this is

an appropriate case for the making of an order

as to costs. No order will therefore be made.

1:1R WILKIE:	As the Court pleases.
BRENNAN J:	The Court will now adjourn.
AT 2.42 PM THE COURT WAS ADJOURNED SINE DIE

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