Wallace v Stelzer

[2014] HCATrans 135

[2014] HCATrans 135

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S317 of 2013

B e t w e e n -

WALLACE

Applicant

and

STELZER

First Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH

Second Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2014, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. RAYMENT, QC:   May it please your Honours, I appear with my learned friend, MR R.W. WASHINGTON, for the applicant.  (instructed by Hall Partners)

MR R.G. LETHBRIDGE, SC:   May it please your Honours, I appear with my learned friend, MS L.J. SPROSTON, for the first respondent.  (instructed by Searle & Associates)

MR R.G. ORR, QC:   May it please your Honours, I appear for the second respondent, the Attorney‑General of the Commonwealth.  (instructed by Australian Government Solicitor)

HAYNE J:   Yes, Mr Rayment.

MR RAYMENT:   Your Honours, we start with the tension that is apparently created by items 8 and 8A of the legislation of 2009.  Do your Honours have the bundle of materials handed up by the Commonwealth?

HAYNE J:   Yes.

MR RAYMENT:   Could I just go to page 10 of it which sets out section 90G as introduced in 2009, commencing in 2010?  If your Honours see subsection (1), it states a set of necessary and sufficient conditions in that subsection – “if, and only if”.  Subparagraph (c), together with subparagraph (ca), was made inapplicable to the subject agreement by item 8.  Yet, by item 8A, subsection (c) in a modified form, was apparently reintroduced.  If one looks down to subsection (1A) which is a curing power, item 8 provided that subparagraph (b) of that would be changed so as to refer only to the item in (b) of subsection (1).

Your Honours, the amending legislation is set out at page 24 of the materials.  Your Honours see that they have distinguished for some reason between an application provision in item 8 and a transitional provision in item 8A.  What the distinction might be is unclear.  In item 8 reference – in subsection (1) – is made to the entire 10 years of agreements between 2000 and 2010.  By sub‑item (6), as your Honours see, 90G(1)(c) and (ca) do not apply. 

Then by item 8A, again there is an apparent statement at the beginning of the section which makes it applicable to some six years of agreements, starting in 2004, without apparent qualification.  Then, sub‑item (2) appears to be designed to make another form of financial agreement valid which complied with the earlier but not the then current law in 2004.  Then sub‑item (3) produces the tension, as it was discussed below.  Paragraph 90G(1)(c) as inserted by this Act applies in relation to the agreement as if the reference in that paragraph included a reference to the advice in sub‑item (2) of this item.

Your Honours, we desire to submit these things:  first, that item 8A is more specific than item 8; secondly, that item 8A was deliberately added by way of amendment to a scheme that was produced in the Senate.  Your Honours will have seen that the Bill was passed in a certain form in the House of Representatives and the whole of item 8A and some additional paragraphs in item 8 were added by way of change to it in the Senate.  It was then passed and re‑passed in the House of Representatives in that form.  That history, we submit, is not irrelevant.  Thirdly, we point to the fact that 8A, as printed in the Bill, is a later section in the Act so that if you come to a rule of last resort, that rule is also applicable to it. 

But it is submitted that for those three reasons on ordinary principles there was no occasion to resort to the supplementary explanatory memorandum which was issued with respect to the 2009 Act after it was passed in the House of Representatives – for the purposes of being passed in the Senate and the House of Representatives.  The Full Court, however, went to it, as your Honours would see at page 109 of the application book, paragraph 61 of the judgment which correctly sets out the relevant parts of the explanatory memorandum. 

HAYNE J:   Let it be assumed that any of these criticisms you would make were well founded.  Why would that, in the circumstances of this case, lead to ultimate success in disturbing the orders made?

MR RAYMENT:   Your Honour, we have sought to deal with that in paragraph 11 of our written outline which is at page 137 of the application book.  We have set out why it is that the result of this case would have been different if the view had been taken that item 8A(3) means what it says and we do not understand from the submissions against us that it is controversial.   

BELL J:   The Full Court reasoned at application book 110, paragraph 67, upon acceptance of an apparent inconsistency if items 8(6) and 8A(3) were to be read literally, that the evident object of item 8A was, as the Court put it:

to offer a solution for parties who after the 2003 amendments commenced, used certificates which operated before –

that date, so parties who were using old precedents.  Their Honours considered that:

the retrospective imposition of an additional requirement would be –

wholly inconsistent with the evident intention.  What is wrong with that approach?

MR RAYMENT:   It appears, first of all, to be a deliberate intention, in our respectful submission.  If you look again at item 8A, it uses the same procedure of restoring a provision otherwise taken away by item 8 – both in sub‑item (3) in relation to section 90G(1)(c) and in sub‑item (6) which refers to 90J(2)(c).  In other words, it was a deliberate choice by the legislature apparently.

BELL J:   An odd choice, one might think.

MR RAYMENT:   An odd choice, an odd choice.

BELL J:   An odd choice given that the intention was to deal with those instances where an earlier form of certificate had been used ‑ ‑ ‑

MR RAYMENT:   Yes.

BELL J:   ‑ ‑ ‑ by imposing a requirement that at the date of those earlier certificates did not exist.

MR RAYMENT:   Yes.  My client is in this position.  He had what was, on its face at the time, an unenforceable and void financial agreement.  Then this legislation sought to deal with the matter and it dealt with the matter in a way that did not catch, we submit, this matter, if you read it literally.  We submit, with respect, that particularly with retrospective legislation, unless a clear intention is made evident by the statute to deal with this agreement so as to validate it, then both Maxwell and, for that matter, section 7 of the Interpretation Act as it currently stands, supports the view that the legislation is ineffective for the purpose.

BELL J:   In endeavouring to read legislation to give it some harmonious operation, why would one favour as the dominant provision a construction that produces an apparently capricious result?

MR RAYMENT:   Because, we submit, the language is intractable.

BELL J:   Yes.

MR RAYMENT:   That is how we seek to put it.  For good or bad, the way the Commonwealth has done this, in our respectful submission, is not the best way they could have done it.

HAYNE J:   With the consequence that the agreement your client made ‑ ‑ ‑

MR RAYMENT:   Was not validated.

HAYNE J:   ‑ ‑ ‑ is one which he is not bound to abide.

MR RAYMENT:   Yes, yes, and was not bound at the time under the existing law.  Either under the new law or under the old law you get the same result, as it were.

HAYNE J:   It is an awkward submission to have to put, is it not, that the agreement the applicant freely made could not be enforced?

MR RAYMENT:   Well, with respect ‑ ‑ ‑

HAYNE J:   But there we are, that is the position in which you find yourself, is it not, Mr Rayment?

MR RAYMENT:   Your Honour, yes, it is.  But, with respect, this is an agreement that ousted jurisdiction of the Court.  It needs specific statutory approval before it is enforceable.

KIEFEL J:   The approach taken by the Full Court did achieve a workable operation of the various provisions, did it not?

MR RAYMENT:   It did, it did.

KIEFEL J:   In that sense, the approach of the Full Court was perfectly orthodox.

MR RAYMENT:   Well, it was orthodox except for the three reasons I just put, really.

KIEFEL J:   Unless you are a literalist.

MR RAYMENT:   If you are a literalist – if you pay attention to the fact that this is the last word, as it were, in the statute – if you pay attention to the two other matters to which I referred that one is more specific than the other – it operates, we submit, on its ordinary reading by way of exception to what it is provided in item 8.  That is how we seek to put it.

HAYNE J:   The arguments you advance at the moment are entirely questions of construction.

MR RAYMENT:   They are.  Then, your Honours, if, nevertheless, the Full Court’s decision on the construction point is right we come to, as it were, the other limb of this application which your Honours have noticed raises the question whether this is not only an interference with the jurisdiction of the Family Court but also an impermissible one, that it is an interference, in our respectful submission.

HAYNE J:   How?

MR RAYMENT:   Appears from the fact that there is a wholesale ouster of the jurisdiction to alter property interests, a matter which was enlivened before the Family Court at the time.  In other words, this was a pending case in which the issue was what were the relevant property interests of the husband and wife – or former husband and wife – in their respective property?  The substance of the legislation brings about an ouster of that head of jurisdiction so that the Family Court is directed not to exercise its jurisdiction in a pending case so as to make a property order. 

We respectfully submit that arguably impermissibly interferes with the jurisdiction of the Family Court.  It does so in a very substantial way by wholly removing the jurisdiction of the court.  That seeks to accept that the underlying rights of the parties might be affected validly by otherwise valid federal legislation but we submit that nevertheless the jurisdiction of the court is impermissibly interfered with.

KIEFEL J:   Part 8A has for a long time – or always – provided for jurisdiction with respect to financial settlements between the parties, has it not, and for the court to be able to determine whether or not requirements relating to binding financial arrangements have been met?

MR RAYMENT:   It depends really whether you look at it, as it were, in the last few years or right back to the beginning of last century. 

KIEFEL J:   Yes. 

MR RAYMENT:   This form of agreement was wholly void ‑ ‑ ‑

KIEFEL J:   I think the Full Court discussed the history of the latter, yes.

MR RAYMENT:   This form of agreement was wholly void.  Then there were cases here about 87(1)(k) of the old Matrimonial Causes Act which, as it were, opened the door for validation of such agreements.  To say that there is, as it were, a public policy in favour of them would be, we respectfully submit, to turn the law on its head.

KIEFEL J:   But the 2009 amendments gave the court discretion in relation to ‑ ‑ ‑

MR RAYMENT:   Yes.

KIEFEL J:   Jurisdiction has not been ousted, it has simply been given, if anything, a broader discretion to determine whether or not the requirements as they are now set have been met.

MR RAYMENT:   Looking at the matter from my client’s point of view, he had a pending application for a property order and the jurisdiction to make that order wholly went by reason of the effect of the legislation.  So there was no longer a power to do anything in that application.  There was a different set of, as it were, goalposts set up by the legislation and, we submit, that impermissibly interfered with jurisdiction in the pending case. That is how we seek to put it, if your Honours please.

HAYNE J:   Thank you, Mr Rayment.  We need not trouble you, Mr Lethbridge or Mr Orr.

In our opinion there is no reason to doubt the correctness of the conclusions reached by the Full Court of the Family Court of Australia.  Special leave to appeal is refused with costs.

The Court will adjourn to reconstitute.

AT 9.46 AM THE MATTER WAS CONCLUDED