Tryon & Anor v Clutterbuck & Ors

[2011] HCATrans 133

[2011] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S288 of 2010

B e t w e e n -

MS TRYON AND MR TRYON

Applicant

and

MR CLUTTERBUCK

First Respondent

INDEPENDENT CHILDREN’S LAWYER

Second Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Third Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2011, AT 11.31 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   May it please the Court, I appear with MR R.P. BATTLEY for the applicants.  (instructed by Browns The Family Lawyers)

MR U. COUSTAS:    May it please the Court, I appear for the first respondent.  (instructed by Lexington Law Group)

MS D.L. WARD:   May it please the Court, your Honour, I appear for the second respondent.  (instructed by Legal Aid NSW)

MR H.C. BURMESTER, QC:   May it please the Court, I appear for the third respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Bellanto.

MR BELLANTO:   If your Honour pleases.  At the heart of this application is the fundamental principle of fair treatment by a decision‑maker and the procedures to ensure it is achieved.  Fair treatment, we submit, includes the right to a lawyer.  The Family Law Rules provide that a lawyer be present at the hearing in the court, but the Rules and the Act are silent on legal representation before a 62G inquiry.  A 62G inquiry is the result of a direction by the court that a family consultant prepare a report on such matters relevant to the proceedings as the court thinks desirable.

There are two criteria, in particular, under section 35A of the Judiciary Act, relevant to this application:  firstly, a question of law as to the nature of an inquiry by a family consultant; and, secondly, a matter of public importance as it has wide implications for Australia concerning parenting proceedings under Part VII of the Family Law Act. 

Regrettably, 46 out of 100 marriages end in divorce and 49.3 per cent of divorces involve children.  Parenting proceedings involve precious rights that are in the balance and are very often conducted in an atmosphere of high emotion and acrimony.  The importance of the matter is underscored by the court below inviting the Attorney to intervene in the appeal below, noting that without such intervention the potential for an application for special leave to the High Court would appear considerable.  The court also foreshadowed possible legislative amendments for clarification and the reference for that, your Honours, is at application book 45, line 40 and in the preliminary judgment in the court below on 23 April 2010 at paragraphs 25 and 30. 

There are two orders of relevance made by the trial judge, Justice Stevenson, of relevance here:  firstly, the 62G order of October 2008 directing a family consultant to give a report and the terms of that report are set out at application book 18/1 to 13; secondly, the order in April 2009 ordering attendance of the applicants, as required by the family consultant, in the absence of their legal representatives.  The first error by the court below, we submit, was to find that the role of the family consultant was that of an expert preparing a written report relying on his or her expertise.  This view was endorsed by the third respondent at application book 55/15. 

Our point is that the family consultant is conducting an inquiry and making decisions for the following reasons.  The parties were interviewed through a question and answer process.  Their competing interests are assessed.  Judgments are made on demeanour and responses to questions.  Fourthly, the former section 62 and 62A provided for court counsellors to conduct an interview to endeavour to resolve differences and secondly, to furnish a report to the court.  There is nothing in new Part VII which effectively changes this import.  Owen J in Edwardes v Kyle said that:

Procedural fairness is primarily concerned with the way in which the investigator gathers information and, in particular, the way in which he or she interacts with parties likely to be affected in the process.

The family consultant is conducting an inquiry then proffering a recommendation, whereas the expert prepares an opinion exposing his or her reasoning to scrutiny.  The expert does not interview the parties, but here the parties were ordered to attend before the family consultant to be interviewed.  These functions and observations by Owen J do not sit well with Makita v Sprowles where the Court said:

The prime duty of experts . . . is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusion.

In other words, to provide a basis for the reasoning process and for the conclusion reached.

FRENCH CJ:   You accept, do you, that submissions may be made to the court as to whether all or part of a family consultant’s report should be received and the weight that should be given to it and that the family consultant can be cross‑examined on the report?

MR BELLANTO:   We accept that to a point, your Honour the Chief Justice.  The problem is that under the rules the judge can prevent cross‑examination of the expert or limit cross‑examination, and we will be coming to that point in due course in the course of these oral submissions.  Significantly, the second respondent does not endorse the expert tag as found by the court below and endorsed by the third respondent.  We will argue that if leave is given the family consultant is a decision‑maker and, as such, is required to apply the rules of procedural fairness.  This is so even if the second respondent is correct and that the decision of the family consultant is not typically an administrative function.

The second and third respondents appear to be inconsistent in their description and function of the family consultant.  The second respondent concedes that procedural fairness is relevant to the inquiry and has not made any reference to the description “expert”, as used by the court below, whereas ‑ ‑ ‑

HAYNE J:   Assume for the purposes of argument that all of those submissions are right, why does that entail a right to legal representation?

MR BELLANTO:   The problem is, your Honour, that the family consultant under – because the rules - a substantial part of the Evidence Act is excluded.  The family consultant can receive information, hearsay, opinion, that sort of thing and prepare a report on matters that may well be unable to be tested by cross‑examination at the trial level.  Take, for example, a husband and wife have five children.  They separate in an atmosphere of disharmony.  In the wife’s affidavit she asserts certain misconduct by the husband that she has been told about by a friend.  That goes into the affidavit and the family consultant may well ask the husband some questions about it, but no one is able to verify or scrutinise what the questions are, how they are asked, what the demeanour of the husband was.

The family consultant then reaches a conclusion adverse to the husband based upon the view he or she forms in relation to that material in the affidavit.  Firstly, there may be no cross‑examination permitted.  Secondly, because there is no transcript there are no notes and there is no lawyer present there is no transparency and there is no way of satisfactorily attacking – if it be the approach taken – that evidence.  So that is the problem. 

The absence of a lawyer, the absence of a transcript, the absence of a record makes it almost impossible to have any basis to attack what may well be unfounded allegations and assertions which could form the basis of a recommendation and which, if accepted, will of course have serious repercussions on the interests of the child.

The question your Honour Justice Hayne asked, why should a lawyer be present, well, we say that it would assist the family consultant to prepare an accurate, responsible and reliable report for the assistance of the trial.  There were three good reasons, which I may proffer in this context.  First of all, section 69ZT, as I indicated to your Honour Justice Hayne, excludes large sections of the Evidence Act.  It excludes sections relating to hearsay, opinion, admissions, tendency and coincidence, et cetera.

Secondly, the family consultant has access to the affidavit material, which may contain inadmissible evidence, and, of course, once the family consultant receives this information, receives this affidavit material, even if it be subsequently rejected or not admitted views can be formed which are very difficult to erase or detect.

Thirdly, the inquiry conducted by the family consultant could suffer, from the reasons identified by Justice Heydon in Kirk where his Honour referred to difficulties that may arise where specialist tribunals or inquiries are set up which may overlook fundamental matters of fairness.  They can become over‑enthusiastic about vindicating the purposes for which they were set up and could lead to distorted opinions. 

The question of representation needs also to be considered, we would submit with respect, in the light of the decision in which your Honour the Chief Justice was presiding, the case of WABZ, and there that was a question arising where there may be circumstances where a decision to disallow representation was considered in relation to 427(6) of the Migration Act.

The court in that case referred to a number of criteria which were relevant and do have some application in the present context, that is the applicant’s capacity to understand the nature of the proceedings and issue for determination; the applicant’s ability to communicate in English; the legal and factual complexity of the case and the importance of the decisions to the applicant’s liberty or welfare and we can read into that the effect on children. 

The reasons for a lawyer being present also include, as we mentioned earlier, the need for transparency to ensure the appearance of fairness, the absence of a proper record of the inquiry, to guard against questions which may be normally within section 41 of the Evidence Act and prohibited, questions based on stereotypes such as sex, race, culture, ethnicity, to guard against questions that may reflect inexperience or bias, questions that assume a fact that is in dispute and so forth.

The remedy identified by the court below is not satisfactory and the remedy, as your Honour the Chief Justice just noted, that the court below said was appropriate was for cross‑examination of the family consultant.  Section 69ZX provides the court with the power to limit or refuse cross‑examination.  So the position can be that a party could find him or herself the subject of an unfair inquiry without legal representation and being denied the opportunity to cross‑examine the author of a report.

FRENCH CJ:   But any issue of procedural fairness informing the question of the need for cross‑examination would be a matter put to the court in the exercise of its discretion.

MR BELLANTO:   Yes.

FRENCH CJ:   I mean there is no bar against cross‑examination.  It is a matter in the control of the court, is it not?

MR BELLANTO:   Of course, but the Act provides for there not to be, at the discretion of the court, cross‑examination.  The effects of the cases or the results of the various cases on this seem to say that administrative bodies and lay tribunals are, in general, free to exclude lawyers.  But the circumstances of the particular case may be such that a refusal to allow legal representation may constitute a denial of natural justice or procedural fairness.  There is a well‑known passage, of course, that your Honours would be aware of, by Drummond J in Li Shi Ping and also your Honour the Chief Justice referred to those matters in WABZ.

There seem to be forces converging on the need for further clarification of the hearing rule in relation to procedural fairness and there are three points we would like to make here.  First of all the authors of Judicial Review and Administrative Action, Aronson, Dyer and Groves, stated at page 403:

What is, and will probably always be, in doubt is its scope of application and the procedures it entails.

At 404 the authors appear to urge this Court to provide further guidance.  Secondly, your Honour the Chief Justice has said that there is little doubt that the norms of procedural fairness reach well beyond the confines of the courtroom in judicial proceedings or judicial review of administrative decisions.  Your Honour was delivering the Sir Anthony Mason lecture last year at the Melbourne Law School and said:

They are important societal values applicable to any form of official decision‑making which can affect individual interests.  I do not think it too bold to say that the notion of procedural fairness would be widely regarded within the Australian community as indispensable to justice.

We submit in the present application ‑ ‑ ‑

FRENCH CJ:   I think that is a fairly blunt instrument in this case.

MR BELLANTO:   Well, your Honour also said that:

If the notion of a ‘fair go’ means anything in this context, it must mean that before a decision is made affecting a person’s interests, they should have a right to be heard by an impartial decision‑maker.

We would include in that, of course, a lawyer being present to provide the necessary information that might be relevant at any given stage.  An example of what can happen, which may well go uncorrected, is the case of Cook, which has been referred to in the submissions.  Although Cook did not pronounce upon the right to legal representation, the leading judgment of Gibbs J accepted that – as his Honour then was – legal advice was necessary and appropriate.

It is a short step forward to the lawyer being present, we would submit, at a section 62 – as it then was – interview.  But the problem that Cook throws up is that there was a dispute as to what occurred at the inquiry.  There was a dispute between what Mr Twigg said was the advice he gave his client and what she said, according to the court.  There was a factual conflict thrown up as to what the Tribunal recorded as having been said and what the parties said they said.  So the question for determination is whether procedural fairness applies to a section 62G inquiry. 

The second respondent concedes this at application book 50 and we would submit that in this context this Court has demonstrated a strong and consistent commitment to determining the scope of procedural fairness according to the broad principles of general application penetrating into areas where the courts were reluctant beforehand to tread and the cases of Annetts v McCann and Saeed are well known.

At present, we submit, there is an unexplained limitation on the reach, scope and application of procedural fairness and this case provides an opportunity for the Court to further expand the common law in this area and to provide clear guidance and to address what Sir Gerard Brennan said in Kioa - the chameleon character of procedural fairness.

The different approach between the second respondent and the third respondent highlights the need for guidance and there is an obvious problem with the present state of the law in this area because the order appealed from, made in October 2008, imposed a prohibition on legal representation at the 62G inquiry.  This blanket prohibition would appear to be in breach of the common law, as expounded in cases such as Li Shi Ping where it was accepted that in some circumstances representation would be necessary.  Our submission in this application is that this is a classic example of

representation being important to guard against the difficulties that may arise for the reasons we have earlier announced.

FRENCH CJ:   Mr Bellanto, your time is up.

MR BELLANTO:   Thank you, your Honour.

FRENCH CJ:   We will not need to call on the respondents.

The applicants contend that the directions made by the trial judge infringed their right to legal representation before a family consultant and, in so doing, offended against the requirements of procedural fairness.  It may be assumed that the requirements of procedural fairness apply in the preparation by a family consultant of a report to the court.  That does not mean that legal representation at the appointment with the family consultant is part of the content of the requirement.  The family consultant preparing the report, subject to the control of the court, may be cross‑examined on it by legal representatives of the applicants.  The trial judge is not bound by the conclusions or recommendations offered in the family consultant’s report.

In our opinion, the decision of the Full Court is not attended with sufficient doubt to warrant the grant of special leave.  Special leave will be refused.  The applicants are to pay the second respondent’s costs of the application.

AT 11.52 AM THE MATTER WAS CONCLUDED