Young v Jackman

[1993] HCATrans 214

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 199~

B e t w e e n -

GARY MYLECHARANE YOUNG

Applicant

and

PAMELA JILL JACKMAN

STEVEN JAMES JUPP

Respondents

Application for special leave

to appeal

MASON CJ
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 9 AUGUST 1993, AT 12.02 PM

Copyright in the High Court of Australia

Young(2) 1 9/8/93

MR A.J. PHILPOT: If the Court pleases, I appear for the

applicant. (instructed by Williams Palmer Noss)

MR s.o. KALFAS:  May it please the Court, I appear for the

second-named respondent. (instructed by

H.K. Roberts, Crown Solicitor for New South Wales)

MASON CJ: There is no appearance for the first-named

respondent.

MR KALFAS:  No, Your Honour.

MASON CJ: Yes, Mr Philpot?

MR PHILPOT:  Your Honours, the documents and the application

book were filed by the applicant in person prior to

the engagement of my instructing solicitor, and I

shall try to distill the matters as I see them.

I understand the matter came before

Your Honour Justice Gaudron some time ago and came

into this list today pursuant to orders made by

Your Honour.

GAUDRON J:	I do not think that is right.
MR PHILPOT:	I am sorry, Your Honour, I understood that the matter had come before you at some stage.

GAUDRON J: It had come before me, yes.

MASON CJ: It has come before this Court in the normal

course without the benefit of any order by

Justice Gaudron.

MR PHILPOT:  I apologize, Your Honour. Your Honours, the

applicant was found guilty of contempt of court

after a hearing in the Court of Appeal as a trial

court. Your Honours, I would seek to argue on

appeal certain matters arising from the judgment,

particularly the judgment of His Honour

Mr Justice Cripps.

At page 16 of the application book, at lines

255 and following, His Honour recited the evidence

which had been given by the applicant in the

hearing that his reasons for his actions in taking

his son to America in 1980 were to prevent an

apprehended taking of that child to Lebanon by one

Mr Roumanos. His Honour went on, at page 17 of the

application book, to recite that Mr Roumanos had

testified to the Court of Appeal:

that Mr Young may have viewed his -

that is Roumanos' -

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hostility as a threat to -

do so, although he in fact never had any such

intention.

The orders of the original judge,

Mr Justice Kearney, which are recited by

Mr Justice Cripps at page 14 of the application

book, were that the child could be taken out of

Australia to New Zealand at any time.

I would seek to argue on appeal, Your Honours,

that the Court of Appeal ought to have drawn the

inference that from there it would be a very small

step to take that child to Lebanon.

McHUGH J: But how is that a special leave point,

Mr Philpot? This is another application where

there does not seem to be any argument at all that

this is a special leave case.

MR PHILPOT:  Your Honour, in the situation where the Court

of Appeal has sat as a trial court and has

sentenced a man to six months imprisonment, there

is no place that he can go to have the proceedings

reviewed by a higher court than to this Court. It

is in those circumstances - -

McHUGH J: But you have got a bench of three, have you not?

MR PHILPOT:  Yes, Your Honour. Your Honour, my client would

seek the opportunity to at least have these orders,

which affect him so vitally, reviewed by a higher

court even if the matters cannot be said to be of

general importance in the administration of the law

in Australia.

MASON CJ: That is the whole point of it. There is no

appeal to this Court unless this Court comes to the

conclusion that special leave ought to be granted on

the ground that there is a matter of public or

general importance involved. So many applications

are brought here without really a skerrick or

scintilla of suggestion that there is any aspect of

public or general importance involved.

MR PHILPOT:  Your Honour, I would seek to persuade

Your Honours that in a question where a man is

sentenced to a term of imprisonment, the Court

would find the question of general importance, when

this is the only Court to which he can come to have
that reviewed. He has not had the opportunity of

having the finding of the trial court reviewed by

an intermediate court of appeal. It is for that

reason that the matter comes here, Your Honour.

Young(2) 9/8/93

MASON CJ: But you have still got to make out that there is

a matter of public or general importance involved.

It is not enough to say there is no other right of

appeal, and because there is no other right of

appeal.

MR PHILPOT:  Your Honour, I would seek to argue on appeal

that there are errors in the reasoning of the Court

of Appeal; that there are findings of fact which

are perverse in the face of the evidence before

that court.

Your Honours, in those circumstances, I would

ask Your Honours to accept that the matter is one

of general importance by reason of that fact alone.

MASON CJ:	You had better identify very quickly for us what you say these errors are.
MR PHILPOT:	Your Honours, there was a failure to give

adequate consideration to the defence which had

been raised, namely, that he had a belief that it

was necessary to do what he did.

McHUGH J: It was given consideration and rejected.

Justice Cripps did not accept him as a witness of

truth. A more unpromising foundation for a special

leave application would be difficult to imagine.

MR PHILPOT:  Your Honour, I would submit that that finding

though was made in the face of the.evidence which

was before the Court of Appeal. His Honour, in

coming to that finding, relied upon the fact that

he had left the country utilizing a passport
obtained in false names, and His Honour took that

into consideration in finding that his defence was to be rejected and that his true reason was to fly in the face of the orders of the court.

Your Honours, I would submit that that finding

was a perverse one; that the court ought to have

concluded no more than that the procuring of

documents in false names was the means to an end -

no more than a means to an end of achieving what he

believed to be necessary at the time.

The second point I would seek to press upon

Your Honours is that the sentence of six months

imprisonment in relation to the taking of one's own

son is a sentence which is unduly harsh. I would

submit it was open only to the court to consider the issue of the effect of administration of the

law. The sentence was not necessary to give effect

to the orders of the court for the benefit of the

former de facto wife. But His Honour

Mr Justice Cripps adverted to the fact that the

Young(2) 9/8/93

former de facto wife had asked for these

proceedings to continue.

I would submit that where there is authority

such as the previous cases, such as the Mudginberri Meat case, where an ongoing contempt was dealt with

by way of fine rather than imprisonment, that a

sentence of imprisonment after some 12 years,

albeit that delay caused by his departing from

Australia, is one which is unduly harsh and which

the Court would review.

Your Honours, I think, in the nub of it, they

would be the factors which I would seek to argue on

appeal, that the Court of Appeal has given

inadequate weight to those factors and the Court

would not allow a situation, where a man is subject

to the orders which have been made, to exist

without at least the opportunity for that to be

reviewed on appeal.	I think that is the nub of the
matters I wish to put.	May it please the Court.

MASON CJ:  Thank you, Mr Philpot. The Court need not

trouble you, Mr Kalfas.

The Court is not persuaded that the decision of the Court of Appeal is attended with sufficient

doubt to justify the grant of special leave to

appeal.

MR KALFAS:	I would seek an order for costs, Your Honour.
MASON CJ:	You do not oppose costs?
MR PHILPOT:	No, Your Honour.

MASON CJ: The application is refused with costs.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE
Young(2)	9/8/93