Yunghanns & Ors v Yunghanns

[2000] HCATrans 232

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M33 of 1999

B e t w e e n -

DAVID BRIAN YUNGHANNS, WINGARA WINE GROUP PTY LTD and LIGON 211 PTY LTD

Applicants

and

PETER NICHOLAS YUNGHANNS, RENTIERS MACHINERY PTY LTD, RENTIERS PTY LTD
HAVANA PEAK PTY LTD, INDUSTRIAL ENGINEERING PTY LTD, CROXLEA PTY LTD, KREMFOUR PTY LTD, PALASSA PTY LTD and BALLAN PASTORAL CO PTY LTD

First Respondents

MARGARET BRUCE YUNGHANNS

Second Respondent

CANDOORA NO 19 PTY LTD, SUNNYCLIFF ORCHARDS PTY LTD and SUNNYCLIFF INVESTMENTS PTY LTD

Third Respondents

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 MAY 2000, AT 11.54 AM

Copyright in the High Court of Australia

___________________

MR G.T BIGMORE, QC:  If the Court pleases, I appear with my learned friend, MR D.G. COLLINS, on behalf of the applicants.  (instructed by B2B Lawyers)

MR A.J. MYERS, QC:  May it please the Court, I appear with MR B.R. GEDDES, QC, on behalf of the first respondents,  (instructed by Nedovic & Co)

GLEESON CJ:   There is a certificate from the Deputy Registrar to the effect that she has been informed by Middletons Moore & Bevins, solicitors for the second respondent, that the second respondent does not wish to make any submissions in this matter and that she has been informed by the solicitors for the third respondents that the third respondents do not wish to take any active part in this matter and will abide by the Court’s decision.

MR MYERS:   Yes.

GLEESON CJ:   Yes, Mr Bigmore.

MR BIGMORE:   If your Honour pleases.  There are two points we wish to make in oral submissions, your Honours.  Firstly, we say that the fact that the Full Court fell into jurisdictional error is a matter of public importance and, secondly, we say that the interests of justice are served by a grant of special leave because, even today, the husband continues to pursue the loans that were the subject of the 1996 orders.  He does not pursue them in the Family Court, he pursues them in other places and, as a result of that, we have the situation where the findings of the Full Court stand against us.

Now, the first thing we wanted to say was something about jurisdictional error.  The Full Court failed to appreciate, in our submission, the world of difference between wrongly assuming jurisdiction to bind a mother-in-law, as in Reg v Ross-Jones, for example, or unmarried parties, as in the case of DMW v CGW, which is referred to in the judgment or, on the other hand, in refusing to set down for trial an application by parties to a final order for enforcement of that order against another party to the order, because stripped of the Corporations Law proceedings which are passe at best, and stripped of the claims against irrelevant partings, that is exactly what the proceeding was that the court had before it.

There were four statutory demands and, therefore, four underlying loans or, if you like, in one case, debt, rather than loan, that were being pursued by the husband and he is still at large to pursue those loans as a result of the findings.  The difference, of course, between wrongly assuming jurisdiction to deal with a mother-in-law who is not amenable to the jurisdiction of the Family Court, and wrongly assuming, or in the case of DMW, the Supreme Court of New South Wales not having matrimonial causes jurisdiction in relation to someone who had been found to be a child of a legitimate marriage – a legitimate child of the marriage – are quite different from a situation where the Family Court has before it an application under its own section 105 for enforcement of its own orders. The relevant jurisdictional facts we have pressed in our written material, of course, are just those two things.

The Full Court, however, regarded as jurisdictional facts the facts canvassed in reaching the findings about the four alleged loans underlying the four statutory demands.  Their Honours’ reasoning, in this regard, is exposed at page 124 and also 137, but starting with page 124 of the application book.  The particular passage is paragraph  112 of the judgment and we submit that there is misunderstanding inherent in it.  Firstly, her Honour found that, as we contend, we say her Honour was completely right about this, with respect, her Honour found that there was jurisdiction if there was an application to enforce valid orders.  Then the Full Court went on and said:

With respect, that begs the question because it involves an assumption that the proceedings as constituted are proceedings for the breach/enforcement of the 1996 orders merely because that is what they purport to be, and without deciding either that they are truly proceedings of that kind, or even that they are capable of being construed as proceedings of that kind.  Both of those propositions were very much put in issue by the Appellants in the proceedings before her Honour.

Then, at page 137, in paragraphs 149 and 150, in paragraph 149, in the middle, their Honours recited the submission that has been consistently made by us, namely, that the question of whether or not there is a breach or contravention of the 1996 orders:

cannot be determined until there has been a full hearing of all of the evidence, so that the true context in which the orders were made and intended to operate, and the true effect of the calling up of any such debts or loans, has been revealed and been the subject of factual findings by the Court.

Your Honours will recall that the situation in this case was that our clients had applied for interlocutory and permanent relief against the husband and a whole lot of other companies because of the alleged breach in contravention of the order.  They sought interlocutory relief.  They convinced her Honour the primary judge that there was a serious question to be tried and that the balance of convenience favoured the grant of injunction.  It was from that decision that the present respondents appealed.  They were successful in the appeal for the reasons that were exposed in paragraph 112 and now in 150, their Honours said:

In our opinion, those questions (with one exception) are all questions of construction of the orders which are capable of being decided on the evidence which was before her Honour without a full and final hearing, and which must be decided at this point in order to determine the jurisdictional facts upon which the issue of jurisdiction to make the interlocutory orders sought by the Respondents depends.

It needs to be borne in mind, in our submission, of course, that the form of the orders that we are talking about, the June 1996 orders, was not clear.  It is not possible, in our submission, to say about those orders that they are immediately clear.

GLEESON CJ:   Were they consent orders?

MR BIGMORE:   They were, yes.  Your Honour, they were agreed to and stated to the court by counsel and they certainly take the form of consent orders ‑ ‑ ‑

GLEESON CJ:   Mr Bigmore, what do you understand to be the point of principle in difference between you and your opponents?

MR BIGMORE:   The jurisdictional facts point.  Our opponents say that the jurisdictional facts included a necessity to find that there had, in fact, been a breach of the orders, or could be a breach of the orders, given certain assumptions.  We say, no.

GLEESON CJ:   You mean that before the power to grant interlocutory relief of the kind sought could be found to exist, the primary judge should have construed the orders, whereas you say, what?

MR BIGMORE:   We say that the primary judge was right to recognise that there were orders and that they were valid, and that they compelled the doing or not doing of certain things, and having identified that, to identify, in the evidence that was available to her at that very early stage, that there was a dispute.  The applicants were seeking to enforce those orders and there was a dispute about whether they were entitled to do so, whether there had been a breach, and so on, what the orders meant.

GLEESON CJ:   You mean, she could simply ask whether there was a fairly arguable case that there was a breach of the orders.

MR BIGMORE:   In our submission, she was right to stop at the point where she identified orders that were valid in 1996, and she had before her an application.  One concedes, of course, that the application was complicated by Corporations Law claims, and so on, so it was not an easy set of applications to digest. But hidden in there, and there is no doubt it is there, were applications for enforcement under section 105 of the Family Law Act.  It is not necessary, in order to found jurisdiction, for that to constitute a matrimonial cause, for there to be more.  It is not necessary that there be a finding that a certain fact existed at all beyond those terms.

The only begging of the question, really, is when one comes to look at the submissions that our opponents made and which were accepted by the Full Court.  They were saying that you do not have jurisdiction unless and until you make findings of contravention or capacity for contravention making some assumptions, recognising the court might assume some things ‑ ‑ ‑

GLEESON CJ:   Where do we most conveniently find the statutory provision that covers the exercise of jurisdiction?

MR BIGMORE:   In our original outline, which your Honours will appreciate was pre-Wakim.  It is at application book 173.

GLEESON CJ:   It goes over to the next page.  Which is the particular one?

MR BIGMORE: Yes, it does. Section 105 starts at the bottom of 174. We have set out the other provisions in order to explain the words “decrees” and “any court having jurisdiction under this Act”. There is no doubt, in our submission, that the orders of June 1996 answer the description of “decrees”, and that it was available to our clients, as the interveners, the son, effectively, to seek enforcement of the orders against the husband. We abandon any attempt at enforcement of those orders against ‑ ‑ ‑

GLEESON CJ:   Was the complaint about what the trial judge did that she granted interlocutory injunctions to enforce the decrees without deciding for herself what the decrees meant?

MR BIGMORE:   No, your Honour.  The complaint that our learned friends made to the Full Court about her Honour was that she should have determined the jurisdictional question first.  That was the principal complaint.  It is no longer relevant to determine whether or not she should or should not have granted interlocutory relief.  We do not complain about what the Full Court did with that because the events that have occurred since have rendered it unnecessary to seek any further interlocutory relief in relation to these particular matters.  Those statutory demands have gone.  But, of course, we still seek the necessary relief to restrain the husband from pursuing the underlying loans.

What the Full Court did was to take our interlocutory applications and deal with them as I have just said, and then to call in the Form 7s, as they are called apparently, applications for permanent relief, and dismiss them for want of jurisdiction.  That is what we now complain about.  It is the fact that we have not had an opportunity to open, let alone close, our case in relation to the claim for permanent relief.  We have not had a chance to lead evidence about the proper construction of the order given that it might be doubtful in terms.  We have not had an opportunity to lead evidence about what the husband’s activities were, to our knowledge.  We have not obtained discovery.  We are in no position now, as a result of the findings of the Full Court, to allege that the order means what we say it means, namely that the Wingara Wine group, which was the underlying family asset, should be protected by those orders.  That was the underlying intention behind them.

So, all that has been denied us, and that is because the Full Court decided it lacked jurisdiction when it could so easily have simply said, “There is not a serious question on this material”, which is what you would normally find in an appeal from an interlocutory order of that nature once the evidence was analysed and was found wanting.  So, that is all that is left that we complain about but it is very important because we are confronted with the findings; they do not go away simply because the court found it had no jurisdiction.  They are still findings and the fact remains that the husband pursues the interest on one of the loans.

One of the points the Full Court made was that there was nothing to suggest the husband was causing a company to pursue a loan, a very substantial loan, against Wingara.  However, the statutory demand claimed a year’s interest, one and a half million dollars, on that loan, and the statutory demand spoke of the period from just after the 1996 orders onwards, and that claim persists and the interest continues.  So that, the husband, we say, very much pursues a claim which is covered by the order but the Full Court has found that such a claim is not covered by the order.  That is why we put McKenzie v Rees in the materials, simply to support the proposition that interet goes with the debt and if an order of a court says that thou must not enforce the debt, then it follows that the person should not be able to claim the interest on the debt and enforce that claim.

That may be a matter for construction after having regard to the full factual matrix, and we certainly concede that, but it is the lack of an opportunity to present the full factual matrix which concerns us.  If special leave is granted and the appeal allowed, then the matter goes back to the Family Court, not for interlocutory proceedings, but for final – well, yes, it goes back for interlocutory processes, but it goes back, ultimately, for a final hearing as to whether or not we can establish that, at the date of issue of this application, the husband was in breach of the orders.  Then, if the court found so, then we would seek the appropriate remedy.

CALLINAN J:   Which of the orders, at first instance, do you seek to maintain?  They start at page 61, I think.

MR BIGMORE:   Yes.  I understand that, your Honour.  We did say in our supplementary submission that we no longer seek to maintain those orders.

CALLINAN J:   Any of those orders.  None of them.

MR BIGMORE:   No.  We seek to maintain the proceeding, not the orders that were made on an interlocutory basis.

CALLINAN J:   Is there a formulation anywhere of precisely what you do seek now.  It is in your ‑ ‑ ‑

MR BIGMORE:   Yes, there is.  We have prepared an amended draft notice of appeal, but while that is going up, I can point out that the draft notice which is contained in the application book at page 163 and following sets out, on page 168, the relief - or the alternative orders that we seek, so that we recognise in paragraph 3.1 that the interlocutory and final applications are not to continue in so far as they involve any parties other than our clients, on the one hand, and the husband on the other.

CALLINAN J:   In substance, then, what are the interlocutory applications against the husband that you would wish to pursue?

MR BIGMORE:   There are none.  I am sorry, your Honour, that is not quite true.  Obviously, if the matter goes back to the Family Court, we would seek discovery and so on in the ordinary course.  But that, we would naturally seek from a judge at first instance in the Family Court.

CALLINAN J:   All right, well, which of the final applications against the husband – what are the applications for final relief?

MR BIGMORE: They do not appear conveniently in the application book but they were claims to punish the husband under section 105 for breach, or contravention, of the ’96 orders.

CALLINAN J:   I just want to be clear about this.  What precisely will be the matter that you would want a trial on to get final relief if the matter were to go back to a single justice of the Family Court?

MR BIGMORE:   Your Honour, there are four loans.  When one analyses the Full Court’s reasons, one can identify them as statutory demands, Nos 6, 10, 11 and 12.  I appreciate that may be cryptic, but those are the ones that we particularly complain about.  We say the husband has caused entities controlled by him to make demands in relation to those four loans.

CALLINAN J:   All you want a trial of, then, is something in the nature of contempt proceedings against the husband by the Family Court.  Is that right?

MR BIGMORE:   Yes, your Honour.

CALLINAN J:   There is no claim for any financial relief.

MR BIGMORE:   No.  If the Court stops the husband from enforcing these four loans, or causing them to be enforced through the entities concerned that he controls, then we will sustain a great deal of financial relief.

CALLINAN J:   That is an injunction, is it not?  You want an injunction.

MR BIGMORE:   A permanent injunction restraining him from pursuing those particular loans.

CALLINAN J:   Where is the formulation of that?  That seems a little different from what you told me before when you ‑ ‑ ‑

MR BIGMORE:   Yes.  The formulation of that is contained in the Form 7 which resides still in the Family Court.  We have not reproduced it but we could easily set out ‑ ‑ ‑

CALLINAN J:   Well, Mr Bigmore, I am sorry, I do not know what relief the Family Court would be asked to grant if you were to succeed on an appeal here.

MR BIGMORE:   A permanent injunction and punishment for having breached the orders in June 1996 by causing entities controlled by him to call up loans owed by Wingara and Ligon.

CALLINAN J:   All right.  So, it is a punitive order which – is there provision for that under the Act ‑ ‑ ‑

MR BIGMORE: Section 105, yes.

GLEESON CJ:   But you want a permanent injunction restraining him from calling up loans.

MR BIGMORE:   Those particular loans, yes.  The order already restrains him from calling up loans.  We say these are loans which answer the description of the order and because he will not stop, we want him stopped by a particular order.

GLEESON CJ:   What is it about the decision of the Full Court that stops you seeking that relief?

MR BIGMORE:   The fact that they have found, in the course of denying themselves jurisdiction, that these particular four loans do not answer the description of loans within the meaning of the order as they have construed it, without reference to the whole factual matrix.

GLEESON CJ:   Now, they have placed a construction on the order which is binding unless set aside in some way.  What was it about the proceedings before the Full Court that deprived you of an opportunity to fully engage in an argument about the meaning of the orders?

MR BIGMORE:   They dismissed our application for interlocutory relief on appeal from her Honour the primary judge, and then called in the permanent applications, the Form 7s, as I have called them, and dismissed them as well.  They found that there were not sufficient facts to show a breach of the orders at the interlocutory stage on the small amount of interlocutory evidence there was, so we could not have an injunction any more – the primary judge was wrong in that regard ‑ then they said, “But because we cannot find any facts which constitute a contravention of the order, we do not have jurisdiction, so your permanent applications have to go as well”.

CALLINAN J:   Was there any application, at that stage, to adduce evidence to the Full Family Court?

MR BIGMORE:   Yes, we maintained our submissions throughout, that the matter should be remitted so that the full amount of evidence could be put.  That was that paragraph 149 at page 137 ‑ ‑ ‑

CALLINAN J:   No, that is a different question.  There is a section, is there not, of the Family Law Act, which empowers the Family Court to receive evidence, the Full Family Court?  Is there such a section?

MR BIGMORE:   There probably is.  Even, your Honour, admitting that the Full Family Court could have received such evidence ‑ ‑ ‑

CALLINAN J:   Was any application made, or was there no opportunity to make such an application?

MR BIGMORE:   There was no opportunity.  The court said it did not have jurisdiction, so there was no point adducing any further evidence.  The position we adopted throughout, as I pointed out at paragraph 149, is that we contended the matter should be put in the list for trail so that we could adduce our evidence.  I am conscious of the time, your Honour.

CALLINAN J:   Is this the only way you can enforce an order under the Family Law Act by making an application under section 105?

MR BIGMORE:   Yes.  There is one other section dealing with contempt, but we did not rely on that ‑ ‑ ‑

CALLINAN J:   Apart from that?

MR BIGMORE:   Yes ‑ ‑ ‑

CALLINAN J:   So that, even if you have an order of the court, you cannot enforce it without a further order under 105, is that what you are saying?

MR BIGMORE:   It depends on the wording of the order.  There are, no doubt, many other execution processes that one can proceed with administratively but, unfortunately, the orders in June 1996 were not of that character.  The issue arose as to whether or not loans included these four loans.  The husband said, “No, they do not, so I will press on”.  The son said, “Yes, they do, we would like you restrained”.

GLEESON CJ:   Yes, thank you, Mr Bigmore.  Yes, Mr Myers.

MR MYERS:   If your Honours please, the application appears to have changed a great deal this morning and I trust that I deal with it directly.  Your Honour the Chief Justice, with respect, correctly identified what is the issue of principle, namely, whether the trial judge, or the judge at first instance, should have construed the orders in determining whether she ought to have granted interlocutory injunctions.  That question of construction of the orders certainly went to an issue or jurisdiction.  Now, your Honours have not been taken to the order itself but I shall do so.  The paragraph of the order that was most in question is paragraph 13, page 84 of the application book.  It says:

That the husband do all things necessary and sign all documents to ensure that any entity in which he has an interest (direct or indirect, beneficially or otherwise) shall not through any inter-company or other loan accounts or otherwise call in any loan owing by Ligon and/or Wingara which has an adverse effect on the operation of Wingara.

The first issue that arose is whether the order precludes calling in a loan which is not owing by Ligon and/or Wingara.  Most of these loans were not loans owing by Ligon and/or Wingara.  So, her Honour declined to consider that question of construction and simply granted interlocutory orders ‑ ‑ ‑

GLEESON CJ:   Where do we find her looking at the question?

MR MYERS:   She did not look at the question of construction, your Honour.  She was urged to do so and she did not.  The Full Court, by contrast, said, just following the passage which my learned friend referred your Honours to at page 137 of the application book, that one should look at the terms of the order to see whether one should proceed to grant interlocutory injunctions or not, remembering that this case was to be consigned to the complex cases list which, I think was no contest, would have meant that the interlocutory orders governed things for at least two years.

CALLINAN J:   Mr Myers, was there any attempt by your opponent to put any evidence before the court to raise a prima facie case of the existence of a loan owed by Ligon or Wingara?

MR MYERS:   Yes, there were loans that were owed by Ligon or Wingara but that raised another issue.  May I direct your Honour’s attention to page 138 of the application book because the Full Court there summarised the issues of construction?  They say, first of all, “All Debts or only ‘Loans’” and they decide that this order deals only with loans.  Then they, at page 141, ask the question:

“Loans” Only to Ligon and/or Wingara, or to any entity within the Wingara Wines Group?

They say, loans only to Ligon and/or Wingara, because that is what the order says.  Then, page 143, they ask the question:

“Loans” Only Existing at the Date of the Orders, or Future Loans?

and they said, on its natural construction, the order refers only to loans existing at the date of the order and that eliminated all possible loans. 

Now, there was another issue, which my friend has not adverted to, and some of the loans that he would wish to now deal with in some hearing at some later time are loans which are owed to persons who are not parties to the proceedings before the Family Court.

If your Honours look at the heading of the action, Havana Peak, Industrial Engineering, Croxlea, Kremfour, Palassa, Ballan Pastoral, Candoora No 19, Sunnycliff Orchards and Sunnycliff Investments, were not parties, in any sense, in the Family Court proceedings.  The husband and wife were the parties and then there were joined as interveners, the son, David, Wingara Wine Group, Ligon, and perhaps another company, yes, Rentiers Machinery.  So that her Honour would not even accept that she could not make orders binding persons who were not parties to the proceedings.  Before you today, as I understand what my learned friend is putting, if your Honours will go to pages 85 and 86 of the application book, my note was that he said that he wants to enforce four loans, 6, 10, 11 and 12 ‑ ‑ ‑

GLEESON CJ:   Mr Myers, is it the case that the critical part of the primary judge’s reasoning, or lack of reasoning, appears on pages 41 and 42?

MR MYERS:   Yes.

GLEESON CJ:   She says, on the top of 41:

The respondents continue to maintain that paragraph 13…..relates only to Wingara and Ligon and –

there is no reference –

to sums owing by other entities.

MR MYERS:   Yes, that ‑ ‑ ‑

GLEESON CJ:   Well, a possible point of view is that a response to that proposition is, “Of course.”  Now, where do we find her Honour disagreeing with that response or giving some reason?

MR MYERS:   We do not, your Honour.  As far as I can determine, in her Honour’s reasons, she simply did not deal with the issue.  She accepted the proposition which is put before your Honours ‑ and this is what my learned friend, in substance, said ‑ that the Family Court could have granted an interlocutory order if there was a contention that what was sought to be restrained was in breach of the terms of the order without examining the terms of the order.

GLEESON CJ:   Now, just let us assume for the moment that the approach taken by the primary judge in relation to that problem was clearly erroneous.  As I understand it, one of the complaints that your opponent now makes is that the way in which the Full Court dealt with that went further than was necessary or appropriate to reverse the error made by the primary judge and resulted in a decision that forecloses them, as it were, forever, from having any opportunity to litigate this issue.

MR MYERS:   Your Honour, I, too, understood it from my learned friend’s oral submissions.  I confess that I did not understand it before he got to his feet.  We say that there is no vice in the Full Court’s decision, if it has that effect, and I cannot think for the moment why it does not, although it is not a matter that I came prepared to deal with, but assuming it has that effect, one has to ask whether the decision was wrong or attended with any sufficient doubt.  When one looks at the terms of the order, one can see that what it is that is sought to be done to prevent the calling up of these loans is not, in truth, an enforcement of the order, because it is plainly outside the four corners of the order however it is construed.

GLEESON CJ:   What alternative point of view is there to that expressed at the top of page 41?

MR MYERS:   In my respectful submission, there is none, if I am understanding your Honour’s question correctly.  The order itself simply refers to those loans, and yet there was an order made, an interlocutory order, by her Honour affecting all sorts of other transactions, notwithstanding the argument was put to her.

CALLINAN J:   Mr Myers, is there an arguable case that the applicant would have put on more evidence had the applicant known that his application was going to be finally determined?

MR MYERS:   Well, your Honour, the matter was before the learned judge at first instance over four days and there was ‑ ‑ ‑

CALLINAN J:   Yes, but you would know, Mr Myers, that what one produces to obtain interlocutory relief would be far different in many cases from what one will produce when the matter comes for trial.

MR MYERS:   But the argument before the Full Court was exactly the same as the argument that was put before the learned trial judge, and that much appears from the Full Court’s reasons itself.  There was no application before the Full Court to adduce any further evidence – none at all.

CALLINAN J:   But did the Full Court give notice that it intended to determine the matter finally, in order to enable consideration to be given by the parties to what they would do?

MR MYERS:   Your Honour, I do not know the answer to that question.  I did not appear in the Full Court and there is nothing in these materials which indicates whether that was so or not, and if I may say so again, and perhaps there is a bit of cavilling in this, if I had known what argument was going to be put here today, then I should certainly have investigated that matter.

CALLINAN J:   That might make it a different case, might it not?

MR MYERS:   It might, your Honour, but then that would be a complaint about ‑ ‑ ‑

GLEESON CJ:   Denial of natural justice.

MR MYERS:   Whether there was a fair hearing in the Full Court.

CALLINAN J:   Exactly.

MR MYERS:   With respect, there is nothing to suggest that.

CALLINAN J:   I do not think there is anything in the grounds about that, is there, or an ‑ ‑ ‑

MR MYERS:   No, there is not.  The case before the learned trial judge was very simple.  You have to construe the orders to see whether what is being sought is even within the paddock, as it were, of the order, and her Honour said, “No, I do not have to.  There is an application for interlocutory relief and I will grant it”.  The Full Court reconsidered that

matter and construed the orders.  In my respectful submission, it was plainly correct in doing so, and the Full Court was plainly correct, in my respectful submission, in referring to Ross-Jones in which this Court directed the Family Court not to determine interlocutory matters which, in effect, grant the substantive relief without being sure that there is a jurisdictional basis.  Your Honours, I have strayed a long way from what I had intended to say.  Because of the arguments that have been put, I do not think I need to add anything.  If your Honours please.

GLEESON CJ:   Yes, Mr Bigmore.  Mr Bigmore, can I ask you this question, relating to the order at page 84, paragraph 13?  What else could it possibly mean other than what appears in the proposition at the top of page 41?

MR BIGMORE:   Yes.  We have conceded that ground before we came here, your Honour.  The four statutory demands and underlying loans that I spoke of are what is left.  They are loans to Wingara or Ligon.  The rest, we give up on.

CALLINAN J:   They have to be loans owing by Ligon or Wingara; not to, owing by.

MR BIGMORE:   Yes, owing by.  They were loans owing by Wingara or Ligon.

CALLINAN J:   The Full Court said that they had to be loans that were extant, as it were, at the time of the making of the order.  Is that right?

MR BIGMORE:   Yes, but with respect, we ‑ ‑ ‑

CALLINAN J:   Did you have any evidence before the primary judge of those loans, and as loans owing at the time when order 13 was made?

MR BIGMORE:   I did not appear either.  I did not appear before the primary judge or in the Full Court, but I do remember seeing quite a deal of accounting evidence, and so on, in the appeal book.

CALLINAN J:   But leaving aside any question of jurisdiction, unless there were evidence - assuming everything in your favour, unless there were some evidence of such loans existing at the time of the order, you could not have got an interlocutory relief, could you?

MR BIGMORE:   Well, with respect, what we said was that the loans that are referred to are loans no matter when, and there was evidence in two cases, and we have specified those in the application for special leave.  In one case, there was evidence that a loan had been assigned to the person, Palassa, issuing the statutory demand.

GLEESON CJ:   But that is an issue that was dealt with, that is the issue of when the loans were made, was dealt with by the Full Court.

MR BIGMORE:   Yes.  It did not make a finding as to when the loan was made in that case.

GLEESON CJ:   Mr Bigmore, assuming that clause 13 is given a literal construction, and why a clause in a consent order drafted by senior counsel should not be given a literal construction is a question that I would find difficult, does the order made by the Full Court prevent you, in future, enforcing order 13?

MR BIGMORE:   Yes, it does.  It prevents us enforcing order 13 in relation to two statutory demands.  The one I mentioned where there had been an assignment of the loan.  Our contention is that the loan predated the June ’96 orders, but the assignment postdated the ’96 orders, so the order must have been intended to address the loan rather than ‑ ‑ ‑

GLEESON CJ:   But that is just an argument of construction that you lost in the Full Court.

MR BIGMORE:   Yes, that, and the other one is the interest point.

GLEESON CJ:   Which is also an argument – is that an argument that you lost in the Full Court?

MR BIGMORE:   Yes.

GLEESON CJ:   Okay, so, you lost some arguments about the construction of clause 13 but, subject to that, there is nothing to stop you enforcing clause 13 if it were contravened in the future.

MR BIGMORE:   Well, no, not if there were future contraventions, no.

CALLINAN J:   But, Mr Bigmore, was the first matter based upon an argument of construction?  I thought you had told us that there was a factual issue as to when the assignment occurred.  Is that right?  That is what you did - you said words to that effect ‑ ‑ ‑

MR BIGMORE:   I did not quite catch your Honour’s words, I am sorry.

CALLINAN J:   Was there a factual issue raised by you, or by the other side, as to when the assignment of one of the loans occurred?

MR BIGMORE:   Yes ‑ ‑ ‑

CALLINAN J:   That is, as to whether it was before or after the making of the order, because that seems to me to be a factual issue and not an issue of construction.  I just want to know the answer.

MR BIGMORE:   I am not sure of the answer, your Honour.  I think, from my reading of the materials, that there was an issue about when the assignment took place, but I am not sure.  What we say, your Honours, certainly, we lost at the interlocutory level because of the way the court viewed the proper construction of the orders.  They took a literal approach.  Our contention has been that the proper way to construe the orders, because they are not clear on their face, they do have difficulties of construction about them, on their face, the proper way is to construe them having regard to the entire factual matrix which includes the bases for the agreement between the parties beforehand.

The husband, in the Supreme Court now, alleges that the underlying agreements which gave rise to these consent orders means something else and can be enforced by him in a certain way.  The wife, in those same proceedings, says – that is the Yunghanns Case that is in the materials – she says that the Family Court orders stand in the way of that.  The husband is benefited by the Full Court’s denial of its own jurisdiction.

CALLINAN J:   Was order 13 a final order?

MR BIGMORE:   Yes.

CALLINAN J:   Well, no other court can now amend it.  It can only be amended on an appeal.

MR BIGMORE:   That is right ‑ ‑ ‑

CALLINAN J:   So, factual matters, the only factual issues that can be raised in relation to it are not as to what it means, but as to whether it has been breached in some way, or not.

MR BIGMORE:   Yes, and factual matters can be adduced, with respect, and that is why we cite ‑ ‑ ‑

CALLINAN J:   But only in respect of that, not in respect of what the meaning of the order is or the factual matrix in which it was formulated.  It cannot have evidence of those.

MR BIGMORE:   When it becomes a question of whether it is the loan or the interest on the loan as well, then that is a question that can only be resolved by having a look at all the factual matters that would aid in the construction of the order.

CALLINAN J:   That sounds to me like an attempt to amend the order.

MR BIGMORE:   With respect, your Honour, it is not.  The word “loan”, we would say, on McKenzie v Rees, includes the interest on it.

CALLINAN J:   Well, that is a matter of construction of the order.

MR BIGMORE:   Yes.

CALLINAN J:   Not of a matter of deciding some factual question.

MR BIGMORE:   But the order will mean one thing if the underlying factual matrix was that the purpose of the order was to protect the asset, the Wingara Wine Group.  If, on the other hand, the Court found that that was not the purpose of the order, well, it might mean just as has been found.  Our contention throughout has been that the underlying purpose has to be taken into account.  That purpose can be discerned from the objective analysis of the facts.  Now, Mr Justice Gillard, in the Yunghanns Case we have included in the material, has said just that, in relation to the Supreme Court proceeding that is going on.

GLEESON CJ:   Yes, thank you, Mr Bigmore.

MR BIGMORE:   If your Honour pleases.

GLEESON CJ:   The Court is of the view that there are insufficient prospects of disturbing the ultimate orders made by the Full Court in the present matter to warrant a grant of special leave to appeal.  The application is dismissed with costs.

AT 12.37 PM THE MATTER WAS CONCLUDED