Tratnik v Riordan and Partners

[2005] HCATrans 56

[2005] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M1 of 2003

B e t w e e n -

JAMIE TRATNIK

Applicant

and

RIORDAN AND PARTNERS LAWYERS

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 11.49 AM

Copyright in the High Court of Australia

MR J. TRATNIK appeared in person. 

GUMMOW J:   The Court holds a certificate from the Deputy Registrar that she has been informed by Riordan and Partners, the respondents in this application, that the respondent does not propose to take any active part in the proceedings.  Yes, Mr Tratnik.

MR TRATNIK:   Thank you, your Honours.  I was actually going to inform you about Riordan and Partners not coming today, and I am not sure if you are actually aware that they have actually changed their name from Riordan and Partners to Riordan and Hume Lawyers.  I do not know if that has any effect on this matter.

GUMMOW J:   No, it does not.

MR TRATNIK:   Okay, basically it is difficult to cover six and half years of a dispute with legal practitioners from 1998 in 20 minutes, your Honours, let alone with this matter beginning in 1993 when I was forced to recover my son from Argentina after my wife took him to Argentina for a three month holiday, and refused to return him.  Before I start, your Honours, is there anything you would like to have clarified?

GUMMOW J:   There was a consent order in June 1998, was there not?

MR TRATNIK:   That is correct.

GUMMOW J:   And a lot of this disputation and trouble flows from your dissatisfaction, as you see it, with what happened at that time.

MR TRATNIK:   Dissatisfaction, yes.

GUMMOW J:   With your lawyers.

MR TRATNIK:   Yes, that is correct.  A lot of that has happened from this, and because of my application filed in September 1998, I was raising a lot of the costing conduct issues which had resulted from that hearing and from the representation from April 1998 to June 1998.  Therefore, it has raised a lot of significant matters, which I have been asking the courts to deal with over a number of years.  Should I ‑ ‑ ‑

GUMMOW J:   What we have before us is this application in respect of a decision of the Full Court in December 2002, so I think what you had better focus on in your oral submissions is what you say are the errors in the treatment of the matter by the Full Court in their judgment, I think, which is quite a detailed one.  It appears at page 131 and following of the book.

MR TRATNIK:   That is correct.  A lot of the information in the judgment basically relates around that application, which has been filed in September 1998.  Has my time started, your Honour?

GUMMOW J:   Yes.

MR TRATNIK:   It has.  Okay, well basically, the issue before the Court is this cause of action concerning one specific order which is an order from Justice Carter on 11 June 2002 which has been appealed against and that has been paragraph (1) and paragraph (2).  Paragraph (1) is fixing the matter for trial when that was severely premature for her to do so because of the fact that there were certain circumstances involved with that, which I will cover.  The second order is that the applicant:

be restrained from filing any further documents . . . save for any subpoenae or case management documents.

This was performed specifically in relation to my notification of an urgent amendment to my application and changed circumstances in the matter in relation to the claims to the court for that application.

I also believe that her Honour made those orders on the basis of her being still biased in relation to a previous matter which had happened back in 1999, or actually, her Honour was involved with the orders of 11 June 1998 and I basically had Justice Carter disqualified on 14 December 1999 and the orders that are being appealed against happened on 11 June 2002, three years after she disqualified herself.

Basically, these orders are, I feel, a significant denial of a litigant’s legal entitlements and are contrary to the Family Law Act 1975 under Order 9 rule 5 and rule 6. I will refer to those matters a little bit further in this matter which basically supports my claims and my filed written submissions which I also seek to rely on. Order 9 rule 5 of the
Family Law Act basically states amendment by a party and that says:

A party who has filed and served a document may amend the document without the leave of the court or the consent of any other party to the proceedings at any time before a date is fixed for the hearing of the proceedings.

And that is what I had actually done.  I had actually tried to amend the document and advised her Honour that I was going to do that because of changed circumstances, which were raised from ‑ ‑ ‑

GUMMOW J:   You have read us Order 9 rule 5, and the Full Court set it out and then they went on to discuss it at page 139 paragraph 25.

MR TRATNIK:   Yes.

GUMMOW J:   And then they decided against granting you leave which you needed to agitate a complaint about an interlocutory order.

MR TRATNIK:   Basically, what they were trying to raise in that issue was that my application was specifically in relation to having the Family Court’s disciplining legal practitioners such as barristers and solicitors for fraudulent conduct within the Family Courts.  Now, I did not ask them to discipline them in relation to trying to remove their practicing certificate from them.  What I asked them to do was to deal with the matter, because it happened in their court, as a matter of urgency which I feel falls under the categories of contempt of court or blatant disregard of the court respect and I feel that the Family Courts have an obligation to litigants and to the courts themselves to uphold justice and refer these matters for investigation to the Federal Police or the Attorney‑General’s Department.

So basically, that was my request to them to follow this matter up, uphold justice and to refer the matters through to the Attorney‑General’s Department or the Federal Police for proper investigation, because they fraudulently altered consent orders within the Family Court system, and during an adjournment.  That adjournment was actually caused due to the fact that the solicitors had suppressed evidence from the Family Courts and from myself and they had fabricated affidavit material and let me sign that material on the basis that it was false.  I would not be making these allegations if I did not have facts to prove that. 

I feel that the Family Courts, and any law court, have an obligation to ensure that these things do not happen.  Now, Order 9 rule 6, amendments by the court and leave to amend a filed document states:

At any time, the court, or a Registrar, may give a party leave to amend a document that has been filed, even if the effect is:
(a) To add or substitute a claim arising after the commencement of the proceedings or (b) To substitute or add another person as a party to the proceedings.

Those orders from Justice Carter are basically in specific contravention of these sections, and this was also a denial from the Full Court of the Family Court, stating in their judgment that my wife was not a party to the proceedings, however, the application was made under file ML11231 of 1993, which my wife was a party to and that is the same file that started with Riordan and Partners in this complaint.  It was the file that they were associated with in this lawsuit.

Now, page 6 and page 7 of the application book, this matter also concerns a subsequent unnecessary order from Justice Carter which was made on 2 July 2002, and that was in effect of her Honour fixing the date for a hearing, which was 21 days after 11 June, which was, I feel, in breach of the guidelines under making an appeal because you normally have 28 days to be able to do that.  Basically, that order states:

That the husband’s application filed 28 June 2002 be dismissed.

Her Honour makes court notes and says that:

In so far as a stay is sought pursuant to O32A r5A no application seeking leave to appeal has been instituted.

I advised her Honour on the day that I was actually going to – I was going to file an application to appeal her orders.  I advised her that I was going to do that within the timeframes allowed by the court.  She disregarded that and basically, she says that:

Otherwise the application was filed in contravention of the orders made 11 June 2002.

Now, I also feel that these orders basically should not apply because of the fact that her Honour disqualified herself back on 14 December 1999, at a request from me, in relation to being biased and prejudiced.

Now, it is the applicant’s submission that the order be deemed invalid as her Honour should have duly disqualified herself from hearing the matter on 14 March 2002 when I initially advised her that the matter – that she had disqualified herself from ‑ ‑ ‑

GUMMOW J:   That is not a matter the Full Court was dealing with, Mr Tratnik, is it?

MR TRATNIK:   That they were dealing with?

GUMMOW J:   Yes.

MR TRATNIK:   Yes, they were.  They were dealing with the fact that she should have disqualified herself and they - in their judgment they basically stated they see no ‑ ‑ ‑

GUMMOW J:   They were dealing with orders made on 11 June 2002.

MR TRATNIK:   That is correct, and the orders were that her Honour actually made orders in relation to this matter.  She has been hearing this matter, making decisions in relation to it after she disqualified herself back on 14 December 1999.  She heard the matter back on 14 March 2002, making decisions in relation to this matter as well, and even though I had informed her Honour that she had disqualified herself, she informed me that she would investigate the matter and she had made a costs order in relation to – on 14 March 2002, but had actually reserved those costs on the basis that it was improper for her to do any orders because of the fact that she has previously disqualified herself and ‑ ‑ ‑

GUMMOW J:   The Full Court dealt with these complaints about her Honour’s attitude at paragraphs 19 and 20, did it not, on page 137?

MR TRATNIK:   That is correct.  I do not agree with what ‑ ‑ ‑

GUMMOW J:   They said it was “a busy day” and so on and so forth.

MR TRATNIK:   But, your Honour, that does not excuse the reason why my application for an amendment should be denied and specific reasons why I have been restrained from filing an amended application when significant issues have arisen from a judgment of the Legal Profession Tribunal on 16 May 2002 in relation to these specific concerns.

Now, the applicant basically informed her Honour of this application filed on 2 July and in the hearing before her this day, that I was preparing an appeal of her orders of 11 June 2002, which she disregarded. The scheduled hearing was fixed for 3 July and was only 21 days from the hearing and breached my right of appeal within 28 days as permitted under Order 32 rule 2 of the Family Law Act, time limits for appeals, and that states that:

An appeal shall be instituted:

(a)      not later than one month after the day on which the decree appealed from was made -

Basically, the other issues today as a result of the severe denial from Justice Carter and some of the other judges who were actually hearing the matter - Justice Mushin heard this matter on 21 August 1998 in relation to property proceedings or the collection of property proceedings, and ‑ ‑ ‑

GUMMOW J:   What are the current custody arrangements for the child?

MR TRATNIK:   My former wife was given custody of my son.  I see my son every second week from Friday after school till Monday I take him to school, and I see him on the following Thursday for four hours.  For me that is not sufficient ‑ ‑ ‑

GUMMOW J:   What age is he now?  What age is the child?

MR TRATNIK:   He is 12 years old, 13.  But the fact is that there was a severe miscarriage of justice on 11 June 2002 in relation to the practitioner’s conduct and what these practitioners did was they fraudulently altered those court documents after I signed them and then they induced the judge, Justice Carter, who was oblivious to this as I was, they induced her to accept these orders and to process them as original court documents.

I have done my own investigations on this matter because of the Family Courts have – some of the judges, a lot of contradictions there.  Some judges are saying that they would take action against it, which was Justice Mushin back on 21 August, and also Justice Carter had denied any involvement with it saying that she would not investigate it whatsoever, she has no power.  I feel that that is incorrect.  I feel the Family Courts have an obligation to investigate some of these matters and refer them on to someone who can properly prosecute them or investigate them.

Now, basically, this is where it further involved the orders the Full Court of the Family Court on 2 December 2002, error in their decision and misapplying precedents and also refusing to deal with the complex constitutional and, I say, public interest matters which can affect any litigant that comes into the courts and it affects any other barrister or solicitor on the opposition if these people continue to act fraudulently like this.  So I think it is in the interests of everyone and in the interests of justice that something be done about it. 

I have been fighting this for six years, and my application got misplaced in the Family Courts for about two and a half years for some unknown reason and then I followed it up and then they made a hearing date for me on 7 February 2002 after I started investigating the matter further. During this time the Legal Profession Tribunal were going through the issues as well, and they identified that the issues of concern in my application to them were the same as what happened with the Family Courts, so they stayed those proceedings and mentioned a number of constitutional issues stating that under section 33 of the Family Law Act and under section 109 of the Australian Constitution, that the Family Courts have an obligation to deal with these matters.

Now, your Honours, this raises various other extraordinary matters which I believe need special leave to appeal to be granted and directly associated with the appeal and the ramifications it had from the barristers’ and solicitors’ associated conduct.  Now, the word “associated” is a very strong word and I think that needs to be determined by the Full Court in relation to these matters because of the fact that the practitioners represented me in my Family Court proceedings for custody.  They acted illegally.  The matter was instituted against them, it had the same file number.  The opposition – my barrister was Ian Mawson and my solicitor was Emma Mawson from Riordan and Partners – she is the daughter of Ian – and the practitioner on the other side was Barbara Phelan, who conspired with my barrister to fraudulently alter these documents.

There is documented evidence in that to state that she had added those clauses in without me knowing and then discussed the matter with my barrister at a later stage and he approved those additions without my consent, without my knowledge, and my solicitor was there at the time as well.  And I can remember the situation because I was in court when she actually came in after I signed the documents, much after, and they agreed to these, and then they induced the judge to accept it.

Now, basically, I believe that that has a fundamental impact on the orders of Justice Carter that I have been refused to apply to the courts under Order 38 rule 36, which basically states that a person can sue a legal practitioner for costs and conduct, and it specifically states in that section that misconduct is one of the significant areas that you can claim on, and those are some of the areas that I wish to amend my application in, where I am being denied those rights under the Family Law Act.

HAYNE J:   The three alterations, Mr Tratnik, to which you are referring, are those on page 85, are they not?

MR TRATNIK:   On page 85, that is correct, your Honour.  As you can see ‑ ‑ ‑

HAYNE J:   The three alterations are firstly, limiting access on Father’s Day further by adding from 10 am to 5 pm.

MR TRATNIK:   That is correct.

HAYNE J:   Secondly, adding access not otherwise provided for by telephone on Tuesdays.

MR TRATNIK:   That is correct.

HAYNE J:   And thirdly, the notation of the intention of your former wife concerning going to Argentina.

MR TRATNIK:   That the parties acknowledge that the wife intends to take the child to Argentina in the future for a holiday.

HAYNE J:   Yes.

MR TRATNIK:   Sorry, for a holiday in the future, and the husband intends to co‑operate with this, if given notice.  Apparently later on, something had happened and when Barbara Phelan came into the courtroom, discussed the matter with my barrister, he told her not to put that section on, from what I have been gathering over the years, and they crossed it out.  Now, obviously from 10 am to 5 pm on Father’s Day is not detrimental to me.  However, people should not be adding things into consent orders without someone knowing.

Secondly, because of the fact that this is a major impact on my amended application request, I feel that no one should be adding anything into consent orders.  There are no initials or anything like that from me to acknowledge this, and I was never advised of these additions whatsoever and you can see it is plainly clear that it says at section (f):

by telephone each Tuesday between 6:00-6:30pm.

GUMMOW J:   The red light is on, Mr Tratnik.  Is there anything else you wish to say in summing up?

MR TRATNIK:   I had a lot more that I did want to cover, and obviously you cannot cover this much of a complex matter in 20 minutes.  Your Honours, I feel that by suggesting and telling your Honours that the most important public interest matters in this amended application request should justify the overruling of Justice Carter’s orders on 11 June 2002 and also the Full Court hearing of this matter on 2 December 2002.

GUMMOW J:   Thank you.  We will take a short adjournment.

AT 12.11 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.18 PM:  

GUMMOW J:   The applicant, Mr Tratnik, seeks special leave to appeal to this Court against the refusal of the Full Court of the Family Court of Australia to grant him leave to appeal against certain interlocutory orders made by a single judge of that court.  The questions about the extent of the Family Court’s associated jurisdiction, which the Full Court touched upon, and as to which we express no view, would not conveniently fall for consideration were leave to be granted to appeal to this Court.  Whether, as the applicant contended, the primary judge erred in making the orders she did, presents no other question suitable for a grant of special leave by this Court. 

Accordingly, the application for special leave is refused. 

AT 12.20 PM THE MATTER WAS CONCLUDED