A Bank & Coleiro - [2011] FamCAFC 157

FAMILY COURT OF AUSTRALIA

A BANK & COLEIRO AND ANOR

[2011] FamCAFC 157

FAMILY LAW - APPEAL – where the Federal Magistrate made an order joining the bank to the property settlement proceedings between the husband and wife – where there was no application before the Federal Magistrate seeking that the bank be joined as a party to the proceedings – where the bank was not given notice of the proposed joinder order, or the opportunity to make submissions in relation to the proposed joinder order – appealable error found – appeal allowed – order set aside.

FAMILY LAW - APPEAL – where the Federal Magistrate made an order which purported to relieve the husband and wife from compliance with the provisions of s 121 of the Family Law Act 1975 (Cth) – where there was no application before the Federal Magistrate seeking such an order – where the Federal Magistrate did not provide the opportunity for the bank to be heard prior to the making of the order – where the Federal Magistrate failed to give reasons for the making of the order – appealable error found – appeal allowed – order set aside.

FAMILY LAW - APPEAL – where the Federal Magistrate made an order that the bank provide further material to the Court – where it was argued that the bank should not have to disclose further material to the Court until the determination of the bank’s application for summary dismissal of the wife’s amended application was determined – appeal allowed – order set aside.

FAMILY LAW - CONTEMPT – in face of the Court – observations made concerning the Federal Magistrate’s use of the contempt procedure against the husband.

Family Law Act 1975 (Cth) s 35, s 112AP, s 121
Family Court Rules 2004 r 6.02, r 21.08
Federal Magistrates Act 1999 (Cth) s 17
Federal Magistrates Court Rules 2001 r 11.01, r 11.02, r 19.01
High Court Rules 2004 r 11.01.2

AGF & LLS (2005) FLC 93-210
Bande & Cade [2011] FamCAFC 93
Bienstein & Bienstein [2001] FamCA 349
Clampett v Attorney-General (Cth) (2009) 260 ALR 462
Coward v Stapleton (1953) 90 CLR 573
Fraser v The Queen [1984] 3 NSWLR 212
Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384
LGM & CAM (Contempt) (2008) FLC 93-355
Lewis v Judge Ogden (1984) 153 CLR 682
Rich v Attorney-Genera for the State of Victoria [1999] VSCA 14
Tate & Tate (2002) FLC 93-107
Wayne & Dillon & Anor [2008] FamCAFC 204
Witham v Holloway (1995) 183 CLR 525

APPELLANT:

A Bank

1ST RESPONDENT:

Ms Coleiro

2ND RESPONDENT:

Mr Coleiro

FILE NUMBER:

PAC

821

2011

APPEAL NUMBER:

2011

DATE DELIVERED:

2 August 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

11 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDERS DATE:

21 April 2011 and 14 June 2011

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC and
Ms Barker

SOLICITOR FOR THE APPELLANT:

DLA Piper Australia

COUNSEL FOR THE 1ST RESPONDENT:

Mr Norrie

SOLICITOR FOR THE 1ST RESPONDENT:

Odtojan & Associates

COUNSEL FOR THE 2ND RESPONDENT:

Ms Ryan

SOLICITOR FOR THE 2ND RESPONDENT:

Ian Harper & Co Specialist Family Lawyers

Orders

(a) There be leave to appeal Order 6 of the orders made on 21 April 2011.
(b)The appeal against that order be allowed.
(c)The order be set aside.
(a) There be leave to appeal Order 5 of the orders made on 14 June 2011.
(b)The appeal against that order be allowed.
(c)The order be set aside.
(a) The appeal against Order 9 of the orders made on 14 June 2011 be
allowed.
(b) The order be set aside.
The hearing of the proceedings between the wife and the husband be continued before a Federal Magistrate other than Federal Magistrate Harman.
There be no order for costs in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by them in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.
The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.

IT IS NOTED that publication of this judgment under the pseudonym A Bank & Coleiro & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 77 of 2011
File Number: PAC 821 of 2011

A Bank

Appellant

And

Ms Coleiro

1^ST Respondent

And

Mr Coleiro

2^ND Respondent

REASONS FOR JUDGMENT

Bryant CJ

I have had the opportunity of reading the reasons for judgment of Finn and Strickland JJ. I agree with the orders proposed by them allowing the appeals by A Bank (“the bank”) against the various orders made by Harman FM, and I agree with and adopt their reasons.
In addition, I wish to make some observations concerning the Federal Magistrate’s use of the contempt procedure.
Whilst there is no appeal by the husband in relation to the Federal Magistrate’s use of the contempt power, the manner in which his Honour dealt with the husband for contempt in the face of the Court requires some comment.
Section 112AP of the Family Law Act 1975 (Cth) (“the Family Law Act”), the section of the Act under which his Honour purported to charge the husband with contempt, provides that:
(1)Subject to subsection (1A), this section applies to a contempt of a court that:
(a)does not constitute a contravention of an order under this Act; or
…
The exception in s 112AP(1A) does not apply in this case.
Other sub-sections of s 112AP relevant to this matter are as follows:
(3)The applicable Rules of Court may provide for practice and procedure as to charging with contempt and the hearing of the charge.
(4)Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
…
(6)      The court may make an order for:
(a)      punishment on terms;
(b)      suspension of punishment; or
(c)      the giving of security for good behaviour.
(7)Where a person is committed to prison for a term for contempt, the court may order the person's discharge before the expiry of that term.
There is no limit to the term of imprisonment that can be imposed.
Conviction for contempt involving as it does the potential deprivation of the liberty of a person is a serious matter and the process to be followed for convicting and punishing, particularly by imprisonment, is clear. The Federal Magistrates Court Rules 2001, r 19.01 deals with contempt in the face or hearing of Court and says as follows:
(1)If it appears to the Court that a person is guilty of contempt in the face of or in the hearing of the Court, the Court may:
(a)    direct that the person attend before the Court; or
(b)    issue a warrant for the person's arrest.
(2)      When the person attends before the Court, the Court must:
(a)tell the person of the contempt with which the person is charged; and
(b)allow the person to state his or her defence to the charge; and
(c)      after hearing the defence, determine the charge; and
(d)make an order for the punishment or discharge of the person.
(3)The Court may direct that the person be kept in custody or released until the charge is determined.
(4)The Court may direct that the person give security for the person's attendance before the Court to answer the charge.
Section 17 of the Federal Magistrates Act 1999 (Cth) deals with contempt of Court and provides (note omitted):
(1)The Federal Magistrates Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2) Subsection (1) has effect subject to any other Act.
(3)The jurisdiction of the Federal Magistrates Court to punish a contempt of the Federal Magistrates Court committed in the face or hearing of the Federal Magistrates Court may be exercised by the Federal Magistrates Court as constituted at the time of the contempt.
Section 35 of the Family Law Act provides the jurisdictional basis for dealing with contempt in the Family Court and provides:
Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
Similarly, the Family Law Rules 2004, r 21.08 deals with the procedure at a hearing and states:
At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:
(a)      inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c)hear any evidence supporting the allegation;
(d)      ask the respondent to state the response to the allegation;
(e)      hear any evidence for the respondent; and
(f)       determine the case.
For completeness, the High Court Rules 2004 dealing with contempt in the face of the Court at r 11.01.2 sets out the procedure when the alleged contemnor is brought before the Court:
When the alleged contemnor is brought before the Court, the Court shall:
(a)orally inform the alleged contemnor of the contempt charged;
(b)require the alleged contemnor to make his or her defence to that charge;
(c)after hearing the alleged contemnor proceed then or after adjournment to determine the charge; and
(d)make whatever order for the punishment or discharge of the alleged contemnor as is just.
In dealing with contempt under s 112AP which is not for breach of an order two important issues need to be considered. The first is that where there is no breach of an order that would involve civil contempt, the contempt for which the charge is made is criminal contempt. All proceedings for contempt whether civil or criminal must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; Tate & Tate (2002) FLC 93-107.
The contempt power should only be used sparingly and in the most extreme cases and the charge of contempt must specify the nature of the contempt: Lewis v Judge Ogden (1984) 153 CLR 682.
The contempt must be wilful (that is distinct from incidental) but not necessarily contumacious: Bande & Cade [2011] FamCAFC 93.
Where there is power as there is under s 17(3) of the Federal Magistrate’s Act 1999 (Cth) for the Court as constituted at the time of the contempt in the face of the Court to punish that contempt, that power is discretionary. The summary power should however be exercised sparingly and only in serious cases as the exercise of power by the Court so constituted conflicts with the fundamental principles of justice. The exercise of the discretion to conduct a summary hearing by a judge or Magistrate before whom the contempt is said to have occurred is to be exercised quite exceptionally and only where the broader interests of justice so require as such proceedings could be seen to diminish the authority of the Court: Clampett v Attorney-General (Cth) (2009) 260 ALR 462; AGF & LLS (2005) FLC 93-210 at [23]; Fraser v The Queen [1984] 3 NSWLR 212 per Kirby P and McHugh JA at 213, 224-225; Rich v Attorney-General for the State of Victoria [1999] VSCA 14.
In Bienstein & Bienstein [2001] FamCA 349 the Full Court of the Family Court (Ellis, Coleman and Rose JJ) held, in allowing the appeal in part, that the trial Judge erred in finding that the wife was in contempt of Court without first having caused her to be orally informed of the contempt with which she was charged, in not affording her an opportunity to seek an adjournment and in not hearing any evidence and/or submissions she may have wished to adduce and/or make in relation to that charge. The Full Court held that in doing so the trial Judge not only failed to comply with the appropriate procedure for hearing such matters provided for in the Rules of Court, but also failed to apply the principles referred to in Coward v Stapleton (1953) 90 CLR 573. At [27] the Full Court quoted from Coward v Stapleton:
27.Of particular relevance in this appeal is the leading statement of principle so far as contempt proceedings are concerned formulated by the High Court of Australia in Coward v Stapleton.
“It is a well recognised principle of law that no person ought to be punished for contempt of Court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him in: re Pollard; R v Footer; ex parte Isaacs. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kui v Piggott. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the Court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the Court to consider as bearing either upon the charge itself or upon the question of punishment. Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon.” {original emphasis}
(Footnotes omitted)
When sentencing following conviction for contempt of Court, the Court is obliged to have regard to relevant sentencing principles. When dealing with contempt under s 112AP the discretion in relation to penalty for conviction must be exercised with great care: LGM v CAM (Contempt) (2008) FLC 93-355; Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384.
In light of these well established statements of principle and the Rules of the Federal Magistrates Court a fair hearing of the charge of contempt in the face of the Court requires the following steps to be taken:
·    First set out the charge which can be done orally or in writing. However it is essential that the alleged contemnor understands the charge that is being laid.
·    Consider whether it is necessary to take the exceptional step of proceeding to hear the charge or whether the charge should then be adjourned so it can be heard before another judicial officer.
·    To afford the alleged contemnor the opportunity to consider the charge and to adjourn for that purpose if necessary.
·    To give the alleged contemnor the opportunity to state whether he or she pleads guilty or not guilty to the charge.
·    To determine whether the charge requires the alleged contemnor to be held in custody and to hear submissions on the issue.
·    In the event the alleged contemnor pleads not guilty to give him/her the opportunity to present evidence and make submissions relevant to the defence and determination of the charge.
·    Having heard the defence to determine the charge beyond reasonable doubt and if established convict the alleged contemnor.
·    To make an order for punishment if convicted, or discharge if not.
·    If sentencing, to have regard to relevant sentencing principles.
·    To give reasons for the decision to convict and sentence.
It is apparent from the transcript that his Honour failed to comply in almost all respects with the Federal Magistrates Court Rules and with the well established authorities in relation to the manner in which contempt in the face of the Court is to be conducted. However to explain what occurred it is necessary to consider in some detail how the matter unfolded before his Honour.

Hearing on 7 April 2011

Detail about what occurred leading up to this hearing and the evidence given by the husband is set out at paragraphs 72 to 86 inclusive of the Reasons for Judgment of Finn and Strickland JJ. Without having heard evidence but with submissions from the Bar table by the husband, his Honour apparently addressed the husband at the Bar table through the interpreter and said:
HIS HONOUR: Right. Can I ask you, Ms Interpreter, to explain. I want [the husband] to tell me where the $200,050 is; and if he either refuses to tell me or he genuinely no longer has the money, he starts a gaol sentence today. (My emphasis)
THE INTERPRETER: Okay. [The husband] says that he fell sick. He put the money in the back of the car and that when he looked for that, they were no longer there.
HIS HONOUR: Can you ask him is there any money left in any account with [the bank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring his toiletries because he is going into a police cell in about five minutes time? (My emphasis)
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have any money, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until the money is produced. (My emphasis)
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for a very long time. (My emphasis)
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you into custody and put you in a cell. (My emphasis)
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to the witness box, please.
(Transcript, 7 April 2011, pages 9 - 10)
At this stage I observe the husband had not given any sworn evidence and had not been charged with any contempt. Although an injunction had been granted ex parte on 1 April 2011 restraining him from disposing of funds, there was no order to pay any money to the wife. Thus there was no legal basis on which his Honour could have had the husband imprisoned. His comments then, assuming he was aware of this, could only be seen as in terrorem. Such an approach is inconsistent with an obligation to apply the law fairly and to exercise discretion judicially, not arbitrarily.
The husband was then sworn and gave evidence. The evidence given by the husband is set out earlier in the joint judgment of Finn and Strickland JJ at paragraph 77. As a result of the husband’s evidence that he had apparently withdrawn funds originally deposited with the bank his Honour charged the husband with contempt (Transcript, 7 April 2011, pages 10-13). The words his Honour used were:
HIS HONOUR: For now, you are charged with the offence of contempt of court in that you have with full knowledge of the application of [the wife] sought to dispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though, Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you are charged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminal offence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s] application, you allege you have disposed of all of the money that the application sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may take some months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whatever happens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, as in today?
THE INTERPRETER: I can’t do anything; I have said the truth.
HIS HONOUR: Very well. I want to interrupt. [The husband] can leave the witness box for the moment but not the courtroom, because I have some questions for another witness.

I observe that whether the charge for contempt “with full knowledge” of the wife’s application could reasonably be made on the evidence must remain doubtful, but for present purposes it is sufficient to observe that contrary to the Federal Magistrates Court Rules and accepted authority his Honour failed to allow the husband an opportunity to plead to the charge, to obtain advice, or to have an opportunity to call evidence in relation to the charge. If it was his Honour’s intention to adjourn the charge to some other time where these things might occur, at this stage at least, no indication of that intent was given. Furthermore it is not apparent that the Federal Magistrate considered whether it was proper for him to determine the charge or more appropriate to adjourn the matter to be heard by another judicial officer.
The Federal Magistrate then had the husband’s friend Mr B called. Part of Mr B’s evidence raised the issue of the husband’s health and in particular his need to take medication for diabetes. The following exchange occurred (Transcript, 7 April 2011, page 17, lines 17-28):
[HIS HONOUR]: And did [the husband] come in with you today?
[MR B]: Yes, I had to bring him over.

[HIS HONOUR]: And as far as you’re aware, does he have his diabetes medication with him?
[MR B]: I’m not sure.

[HIS HONOUR]: If he doesn’t, are you able to go home and get it because he’s about to start serving imprisonment?
[MR B]: He’s going to serve prison?

[HIS HONOUR]: He’s going into gaol right now?
[MR B]: He’s going to gaol?

[HIS HONOUR]: Yes, he is. Are you able to go and get his medication?

Following some cross examination of Mr B at 1.02pm the witness withdrew. His Honour then made orders, which inter alia required compliance with a subpoena issued to the bank by 3.30pm the same day, and added the following notation to other orders made that day (Transcript, 7 April 2011, page 22, lines 26-42):
I note that [the husband] has been formally charged with contempt of court pursuant to section 112AP, and that the hearing of that application is yet to conclude.
Next:
Pending conclusion of the hearing of the above charge, [the husband] is remanded in custody subject to (a) he shall be in custody pending further order of this court; and (b) he shall be released forthwith upon his depositing, or causing to be deposited with this court, a sum paid by bank cheque or cash of not less than $120,000.
Next:
An arrest and commitment warrant is issued in the usual form to the Australian Federal Police and the New South Wales Police to give effect to the above remand.
Other than to say that the hearing was yet to conclude, his Honour gave no indication as to how the charge of contempt would proceed. I observe again that no formal plea had ever been taken from the husband, no opportunity given to obtain legal advice, nor was he given an opportunity to make any submissions about whether he should be remanded in custody or whether bail was appropriate pending the determination of the charge.
Whilst a judicial officer may direct a party be kept in custody pending the determination of the charge (see Federal Magistrates Court Rules, r 19.01 (3)), where the other relevant matters that would suggest that bail would not be appropriate, detention in custody should only be imposed with great caution as a last resort. It is not apparent what factors influenced his Honour because his Honour gave no reasons for refusing bail.
More confusing however is that the order made by his Honour did not purport to be an order simply remanding the husband in custody to await a date when the contempt could be heard. The order made by his Honour appeared to have a substantive nature to it although expressed to be pending the conclusion of the hearing. The order was “he shall be in custody pending further order of this court; and (b) he shall be released forthwith upon his depositing, or causing to be deposited with this court, a sum paid by bank cheque or cash of not less than $120,000”. We observe that at this stage his Honour did not have evidence from the husband that would have enabled him to make a conclusive finding that the husband still had the funds to meet that payment and in particular that he had committed an offence that would entitle his Honour to make such an order.
His Honour contemplated the police would attend and take the husband into custody and to this effect his Honour issued an arrest and commitment warrant.
At 1.45pm on the same day, prior to the husband’s removal by the police, but apparently after the police arrived, the matter was mentioned by a lawyer from the Legal Aid Commission seeking to represent the husband. The following exchange took place between the lawyer and his Honour (Transcript, 7 April 2011, page 25 line 16 – page 26 line 45):
[MS L]: Yes. Thank you, your Honour. Your Honour, there was evidence that I have at hand that I will tender to you in relation to my client’s medical condition, in particular with respect to his capacity to either provide instructions or to have answered questions before you with respect to the dealings before you, your Honour. Your Honour, the report from [Dr X] is clear that our client suffers from dementia and goes further to say that he simply can’t understand objects when presented to him. Your Honour, I also in reading the documents and I am not a medical expert, I understand that my client also suffers from diabetes quite severely and he tells me through the interpreter, with some confusion, your Honour, and given what [Dr X] says, he tells me he hasn’t eaten today and that causes some concern.

HIS HONOUR: I should, in [Ms N’s] defence, who in the circumstances we have tortured, she has withstood it well, did tell me about the dementia.

[MS L]: Yes.

HIS HONOUR: And I have to some extent consciously chosen to balance that against the missing $200,000.

[MS L]: Yes.

HIS HONOUR: Certainly I am concerned if this gentleman needs to eat, obviously I need to let him out of my courtroom. Whether that is someone getting him some food and bringing it to him or not, I don’t know but ‑ ‑ ‑

[MS N]: Your Honour, we are happy to bring in the food if it is going to be of assistance.

HIS HONOUR: Sorry?

[MS N]: We are happy to bring in some food if it is of some assistance.

[MS L]: Your Honour, given his incapacity to perhaps understand, and I have no assurance from my solicitor that the client has any understanding of the severity of what is occurring around him today, perhaps if he were able to sit in the Legal Aid duty room until 3.30 while [Counsel for the wife] makes the inquiries, may be less bewildering to him.

HIS HONOUR: It may be.

[MS L]: Than being taken downstairs.

HIS HONOUR: I am happy to (1) suspend and temporarily withdraw the commitment warrant previously issued by me pending further order; (2) [the husband] is not to leave the building until these proceedings have been concluded today.

[MS L]: Thank you, your Honour. Your Honour, if I can anticipate the 3.30 listing. It may be, and I will make some inquiries, I will be asking for a case guardian to be appointed.

HIS HONOUR: No, I think – I had turned my mind to but hadn’t bothered saying it out loud, but that is clearly going to need to happen if there is a suggestion of dementia. It’s just an issue of who it might be. One of the reasons I had [the husband’s] friend come in, besides the forensic value of his evidence to the proceedings, was in the hope that he might be a likely candidate but he is not.

[MS L]: No, and I wouldn’t – from what I have read ‑ ‑ ‑

HIS HONOUR: We will be finding somebody else.

[MS L]: ‑ ‑ ‑ in my instructing solicitor’s notes I would ask for – we will make inquiries in respect of a public appointed ‑ ‑ ‑

HIS HONOUR: It will need to be somebody else. If you – and I appreciate you probably aren’t going to have an answer from anyone within that timeframe.

[MS L]: No, but I will make some inquiries.

HIS HONOUR: If you could contact the Guardianship Protective Commission, all the usual suspects, that is clearly going to have to happen.

[MS L]: Thank you, your Honour.

HIS HONOUR: But there is a very real issue about the fact that in full knowledge of these proceedings the relief sought and then ultimately in full knowledge of injunctions made by me $200,000 has gone walkies and that is certainly not going to - health issues aside be swept away today. (My emphasis)

I observe that the evidence revealed only the husband’s knowledge of the initial application and orders sought. There was no evidence that the husband disposed of money after the service of the injunctions made on 1 April 2011. The evidence indicated he withdrew money from the bank during March. The charge put to him was “that you have with full knowledge of the application of [the wife] sought to dispose of or conceal the funds the subject of those proceedings” (Transcript 7 April 2011, page 12, lines 24-25). (My emphasis)
The matter was adjourned at 1.53pm and resumed again before his Honour at 3.45pm. After questioning an officer of the bank on the telephone his Honour appears to have accepted that the proceeds of sale of the house which had previously been thought to be in Term Deposits had been withdrawn.
The Legal Aid lawyer for the husband submitted that the evidence was not complete and the following exchange occurred (Transcript, 7 April 2011, page 35 line 15 - page 37 line 7):
HIS HONOUR: I still can’t help but feel [the husband] is going to gaol till he comes up with a hundred and twenty grand.

[MS L]: Well, how do you propose – sorry, your Honour – I withdraw that. Your Honour, my application to the court is that [the husband] be released at this point in time. I understand, from the documents that I’ve seen, that you have put the appropriate restrains in place. My further application ‑ ‑ ‑

HIS HONOUR: Bit late; he had already spent it.

[MS L]: Sorry?

HIS HONOUR: It’s a bit late; he had already spent it – or withdrawn it.

[MS L]: Well, something has happened to it. Your Honour, my further application is that ‑ ‑ ‑

HIS HONOUR: [The husband’s] version is he had it all – 200,000 bucks in cash in the back of his car and someone took it.

[MS L]: My client has dementia. His evidence may well be that. Whether or not he has the capacity to give that evidence, understand what that evidence is, being able to count to $200,000 or remember what he did last week – the only report before you is from a medical practitioner that says that he can’t remember the time, the date or anything else. He has given evidence – and I wasn’t here at the time – and all I would say in respect of his evidence is that you would have to treat that with some caution until such time as you had some further medical evidence that could assist the court as to whether he has the capacity to give any evidence, or have any recollection of those events. I’ve not endeavoured to take instructions from [the husband] because ‑ ‑ ‑

HIS HONOUR: No, no, appropriately so.

[MS L]: ‑ ‑ ‑ I formed the view that [the husband], firstly, couldn’t hear me and, secondly, couldn’t really follow what I was asking him in relation to these matters, your Honour. Your Honour, the evidence from [Dr X] is that he can’t recall – my client cannot recall the day, date or month. He is unable to remember simple objects when presented to him. And in that doctor’s opinion, he suffers from dementia. Given that there is an assessment now before you with exhibit 1, in respect of my client’s limitations and his diagnosis of dementia, I would ask the court to treat cautiously anything that my client has already said to the court, with respect to what he recalls, if he has any such recollection, and whether that recollection is a true recollection of anything that occurred at a point in time in the last week. My understanding of dementia would be that that would be something that may be outside his either competence or a capacity to give you any evidence about. I understand ‑ ‑ ‑

HIS HONOUR: We will get [Dr X] on the phone because I have some concern that the only action [the husband] has taken about coming to court today is to, A, show up, and, B, go and see his doctor yesterday to get a one-sentence report. I’ve got the number here.

[MS L]: Sorry, your Honour. Can I also say in relation to that, [the husband] has endeavoured to see [Mr H] who was known to you. [Mr H] has applied for a grant of Legal Aid and that was refused. I’ve spoken to [Mr H] today. And [Mr H] is willing to take [the husband] back if he was subject to a grant of Legal Aid. So to say that the only thing that my client has done is talk to [Dr X] is – or obtain a report from [Dr X] is, in my submission, not the case, your Honour.

HIS HONOUR: They’ve got an after-hours number; …

COURT OFFICER: Your Honour, it goes to an after-hours home visit service.

HIS HONOUR: That’s useful.

[MS L]: Your Honour, my submission in respect of what ought to occur today, respectfully, is that the court has open to it the option of asking that a case guardian be appointed in this matter. Your Honour has already satisfied himself with respect to my client’s friend and I think, before lunch, you had said that you weren’t satisfied that he was a suitable person. Your Honour, that brings us to regulation 6-11 of the rules where it is possible for the court to request that the Attorney-General nominate, in writing, a case guardian. I’ve used the luncheon adjournment to make an approach to the Guardianship Tribunal. They say that they – whilst not familiar with family law – and I think these cases are a little bit unusual, your Honour ‑ ‑ ‑

HIS HONOUR: Before I go down that path, I want some better evidence from [Dr X].

[MS L]: Yes, and I accept that, your Honour.
HIS HONOUR: He makes the assertion; I want to know a lot more detail than that before I do it.

[MS L]: Yes.

HIS HONOUR: And if I adjourn it, it’s going to be a very brief time ‑ ‑ ‑

His Honour then decided to “release” the husband and the following exchange took place (Transcript, 7 April 2011, page 37, lines 10-30):
HIS HONOUR: I’m going to release [the husband] on condition that he appear on the next occasion and that he present 120,000 bucks or he goes to gaol next time. I don’t believe for one second his story, or his friend’s story about 200 grand in the back of the car; not for one second. I would slot him for perjury now, if somebody could produce a $20 note that shows he was lying. But I’m just unimpressed that he is served with an application, and two working days later, banks the cheque and proceeds to withdraw it by telephone banking – whether he did it or somebody else – but he must have given them the details for telephone banking after 1 March because that’s when he set up the account, as it would appear, a new customer of [the bank].

And the moment he is able to do that, within the space of eight working days the money has gone; in just enough time for it to all be gone before the first return date. So that’s the course I will take. It’s just an issue of how long. But he goes to gaol next time unless he brings 120 grand in cash, because until he can prove otherwise I’m not buying his story. (My emphasis)

[MS L]: Thank you, your Honour. Your Honour ‑ ‑ ‑

HIS HONOUR: And [Dr X] is going to have to produce – send him off to see someone a bit more experienced than a GP who can give me a report of more than one sentence – or two sentences; I apologise.

I observe in relation to the lines in bold that his Honour appears to have pre determined the husband’s guilt in relation to the contempt without taking a plea or hearing any evidence, and with an apparent reversal of the onus of proof.
His Honour then released the husband on terms that included an order that:
(d)[The husband] shall deposit with the registrar of this court, no later than 9.30 am on 21 April 2011, the sum of $120,000.
(e)[The husband] shall report, on a daily basis, to [W] Police Station.
I pause to observe that order (d) if breached would render the husband liable for a contravention of the order in circumstances where there had been raised serious doubts about the husband’s mental status and capacity to both give evidence and take part in the proceedings without a Guardian appointed. No doubt his Honour was frustrated with the inaccuracies in the documents produced by the bank, and the husband’s evidence of the lost funds, but the passage to which I have referred and the order made by his Honour indicate that his Honour did not accord the husband (doubtful though he may have been about the veracity of his evidence) the most basic procedural fairness in accordance with the Federal Magistrates Court Rules and established authority. Nor do I consider that the notations themselves to the orders, no doubt intended as shorthand reasons, provide an adequate basis for the orders made by his Honour. There were no proper findings and the whole basis upon which the remand and his Honour’s further comments about gaoling the husband if he did not provide the funds were arbitrary in nature.
His Honour concluded the substantive part of the proceedings by this exchange directly to the husband (Transcript ,7 April 2011, page 40, lines 5-16):
HIS HONOUR: Now, Ms Interpreter, can I ask you just to interpret some very brief things. [The husband], we’re letting you go home. But you need to be back here in two weeks’ time on 21 April. There are a number of other things you need to do in the meantime that [Ms L] will explain to you. But the two important things you need to be conscious of is that you need to go to [W] Police Station every day to report so that I know that you haven’t left. And you need to bring $120,000 with you to court on 21 April or you will be going straight to gaol, not passing go, not collecting $200. Because I am not believing your story at all about the money being taken from your car, and if you don’t have money here bring your toiletries you won’t be leaving next time. I am deadly serious you will be in gaol this time in a fortnight if that money isn’t here. Thank you. [Ms L], and to the rest of your team, thank you for the assistance. (My emphasis)
From this exchange the impartial observer in the back of the Court could not have concluded other than that his Honour had already determined the husband’s guilt and that unless he provided $120,000.00 on the 21 April 2011 he was to be gaoled.
Such an outcome as described by his Honour could not properly have occurred without a full hearing of the charge of contempt, appropriate findings, a conviction and appropriate sentencing.

Hearing on 21 April 2011, 10.10am

When the matter came on before his Honour he sought advice and was advised that the husband did not pay the sum of $120,000.00 but had otherwise complied with his Honour’s orders that he daily attend the W Police Station. His Honour said (Transcript 21 April 2011, page 2, lines 38- 46):
HIS HONOUR: No, no. If you say that has happened, I accept that from you. I did make very clear to [the husband] today, though, that he brings 120 grand or he brings his toiletries because he starts his sentence today if the money is not here.
[MR H]: HE says he doesn’t have the money.
HIS HONOUR: Then I have already taken that evidence and made very clear to him I don’t believe it. I have already convicted him. If he doesn’t come up with the money, he starts his sentence today. (My emphasis)
It is not apparent what the sentence was or that the husband had been properly convicted of any contempt.
Counsel made submissions about the defence to the contempt charge but his Honour responded (Transcript, 21 April 2011, page 3, lines 10-11):
HIS HONOUR: Well, if that’s so, he will have to deal with Conlan J about that, because I dealt with it last time. It’s a done deal. Does [the husband] get a pension?
Upon being informed that the husband received a pension his Honour said (Transcript 21 April 2011, page 3 lines 31--34):
HIS HONOUR: And [the husband] will find himself entirely deprived of the balance of that account and I will be garnisheeing his pension, and he will be starting his sentence …

Counsel for the wife then sought to draw his Honour’s attention to a Family Court authority dealing with contempt but his Honour ultimately said at (Transcript, 21 April 2011, page 4, lines 35-40):
HIS HONOUR: But as I said, [Mr H], I need to stand the matter in the list. [The husband] is not to leave the registry because I hear what you say in relation to the findings that could or should be made, but I have already made them. He has already been convicted. He has already been sentenced. I suspended it on the last occasion. The suspension ends today. I made very clear the 120 is here, because I don’t believe he doesn’t have it. (My emphasis)
As I have already indicated there had been no formal plea to the charge, no evidence, no findings, no conviction, no sentence imposed. His Honour concluded the morning’s proceeding by indicating to Counsel for the husband (Transcript, 21 April 2011, page 5, lines 13-15):
HIS HONOUR: … [the husband] is going to sit in jail until we find the answer to it, because there are consequences in life, and he is about to find out what one of them is …

Resumption of hearing on 21 April 2011, 12.53pm

When the matter returned before his Honour at 12.53pm, some initial comments by his Honour suggested that he had changed his mind about gaoling the husband. Counsel for the wife urged his Honour to deal with the substantive proceedings, make an order for payment and then if it was not complied with to continue contempt proceedings at that point. His Honour then replied (Transcript, 21 April 2011, page 7 line 30 – page 8 line 2):
HIS HONOUR: Yes. No, well, I’m not suggesting it’s forgotten. I’m just suggesting that, I think, certainly, part of my reasons and part of the logic for taking the course I did on the last occasion and, certainly, then suspending the sentence to – and requiring payment as a condition, was exactly that.

[COUNSEL FOR THE WIFE]: Yes.

HIS HONOUR: I guess that will remain a live issue.

[COUNSEL FOR THE WIFE]: Yes.

HIS HONOUR: But I just don’t see – I suppose, being blunt, I don’t particularly want to see the Sunday Telegraph with a banner headline about the nasty Federal Magistrate who caused an elderly deaf man to get beaten in jail, when it’s not achieving a purpose. If it achieved a purpose, well, he can cop the beating. But it’s not going to achieve a purpose. So I think, certainly, that would be the course. But it’s an issue, then, of – I think, you wouldn’t have had the opportunity, yet – I haven’t look at the file, but you – no, you have, sorry. You filed a response, [Mr H]. (My emphasis)

His Honour was ultimately persuaded by Counsel for the husband that he should dispense with the order requiring him to attend at the police station every day. Counsel for the wife indicated to his Honour that her client was sufficiently protected by the injunctive orders and a restraint on the husband from leaving the country and did not require the husband to report to the police station. His Honour’s response was (Transcript, 21 April 2011, page 12, line 39):
HIS HONOUR: Certainly. Very well, and we can bury that as well.
His Honour then made an order dispensing with reporting to the police at all.
What his Honour did with the contempt application itself is not clear as it is not mentioned.

Hearing on 14 June 2011

On 14 June 2011 the matter was again listed before his Honour when the bank appeared by Counsel in relation to orders joining it as a party. The circumstances described at paragraphs [92]-[98] of the Reasons of Finn and Strickland JJ indicate that most of the submissions on that day were taken up with the bank’s issues however for present purposes there was an exchange between his Honour and Counsel for the bank, Ms B (Transcript, 14 June 2011, page 8 line 34 - page 9 line 25):
HIS HONOUR: And if they don’t, there’s nothing produced and there’s a subpoena outstanding and I’m entitled to arrest the managing director of [the bank] right now because they have had three months to comply with the subpoena and have chosen not to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they do and they’ve got this man arrested and put in custody.

[MS B]: Your Honour, may I take umbrage and say [the bank] did not get [the husband] arrested. As I understand, that was your Honour’s bench warrant.

HIS HONOUR: They did because I made a finding based on accepting the accuracy and validity of the documents produced as business records by [the bank] and accurate faithful representations of the transactions which had occurred to find that [the husband’s] evidence was fanciful and not to be accepted and accordingly he had lied under oath and he was charged with contempt and arrested. If [the bank] had thought to produce the documents which, at my instigation, not [the bank’s], four hours later were produced, and the concession made that the documents we have sent are completely inaccurate, he wouldn’t have been arrested. I detained him, I deprived him, in terms of talking about rights of private citizens, of his right of liberty. He was retained in custody for four hours until that happened caused by the document [the bank] [the husband] produced which was clearly false. I don’t say false to suggest meaningfully so but it was false and I would have thought it’s a matter of real concern to [the bank] to have produced something that tells me how the hell that happened.
…
[MS B]: … I would secondly simply reiterate, as I must in order to discharge my duty to my client, in saying [the bank] did not cause [the husband] to be arrested. Your Honour, there is a chain of reasoning certainly in your Honour’s decision to issue an arrest warrant to [the husband] but I would simply say, to protect my client’s interests, [the bank] did not cause that to occur.

HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and imprisoned him. (My emphasis)

That statement by his Honour is startling because as I have previously observed, it is obvious no proper procedure to arrive at a conviction and imprisonment had taken place. However it accords with the order that his Honour made, which had the character of punishment for contempt rather than a remand until the contempt could be heard. If that is so, it needs no further comment to demonstrate the clear and unambiguous failure to comply with the Federal Magistrates Court Rules, established authority and basic tenets of procedural fairness. The admission from his Honour that he had convicted and imprisoned the husband reveals that he failed:
·    to allow the husband to plead to the charge;
·    to afford the husband an opportunity to get advice or be heard;
·    to allow the husband to call evidence in relation to the charge;
·    to make findings on the evidence to determine whether the charge was proven beyond reasonable doubt;
·    to make a formal conviction;
·    to properly sentence;
·    to give reasons.
Judges have significant powers which must be exercised judicially. In particular, the deprivation of the liberty of an individual is something not to be treated lightly by ignoring Rules and procedural fairness or by being used as a weapon with which to threaten a party as a means of seeking to achieve an end.
I am conscious that no appeal by the husband was brought against his asserted conviction (and that his capacity to conduct proceedings still remains uncertain) and that there is no contradicter to support the manner in which the Federal Magistrate conducted the proceedings. Accepting those caveats however the transcript itself makes clear the flaws in the process adopted by the Federal Magistrate.
The wider interests of public confidence in the administration of justice and expectation that judicial officers will not act arbitrarily, has caused me to take the unusual step of commenting on the process adopted by his Honour in relation to the contempt charge against the husband, absent an appeal against his orders.

Finn & Strickland JJ

Introduction

On 27 June 2011 A Bank (“the bank”) filed a Notice of Appeal against:
·an order (Order 6) made by Harman FM on 21 April 2011 joining the bank as a party to property settlement proceedings between Ms Coleiro (“the wife”) and Mr Coleiro (“the husband”) (“the joinder order”); and
·an order (Order 9) also made by Harman FM on 14 June 2011 which purported to relieve the husband and wife from compliance with the provisions of s 121 of the Family Law Act 1975 (Cth) (“the Act”) (“the s 121 order”) (section 121 prohibits the publication of the identification of parties to, witnesses in, or other persons associated with, proceedings under the Act).
Also on 27 June 2011 the bank filed an Application in an Appeal in which orders were sought for an extension of time to appeal the joinder order made on 21 April 2011, and for the expedition of the hearing of the appeals against that order and the order relating to s 121. To the extent that the appeal against the joinder order required leave to appeal, such leave was sought in the Notice of Appeal.
As the determination of the appeals against both orders was considered urgent, they were listed for hearing before this Full Court on 30 June 2011. It was, however, necessary on that day to adjourn the hearing until 11 July 2011 in order to give both the wife and the husband adequate time to prepare their cases as respondents to the appeals.
Despite the adjournment, we were able on 30 June 2011 to make orders extending the time for the bank to appeal the joinder order, and staying the s 121 order until the determination of the appeal against that order. We were able to make these orders because there was no opposition to them by the respondents and they were clearly necessary.
At the adjourned hearing on 11 July 2011, the respondent wife opposed the appeal against the joinder order, and sought to maintain that order. However, she did not seek to maintain the order relating to s 121. No submissions were made on behalf of the respondent husband seeking to maintain that order. It will therefore only be necessary for us to deal briefly in due course with the challenge to that order.
In relation to the husband, it needs to be explained that his ultimate position as put by his Counsel was that he did not oppose the appeals which are determined by this decision; certainly no submissions were made on his behalf in support of, or in opposition to, the appeals.
Also at the adjourned hearing on 11 July 2011, the bank was given leave, without opposition, to amend its Notice of Appeal, to include an appeal against another of the orders made by Harman FM on 14 June 2011, being an order (Order 5) which required the bank to file certain material prior to the resumption on 11 August 2011 of the presently adjourned property settlement proceedings in the Federal Magistrates Court. The order was also stayed pending the determination of the appeal.
This decision is therefore primarily concerned with the appeal against the order for joinder of the bank, which was made in the absence of, and without notice to the bank, and in the absence of an application by either the husband or the wife for such an order or indeed for any order against the bank.
It should, however, be mentioned that an amended application was filed on behalf of the wife on or about 6 July 2011 seeking an order joining the bank as a party to the property settlement proceedings between herself and the husband (while at the same time naming the bank as a second respondent to those proceedings) and seeking by the way of alternative relief certain orders against the bank.
The history or course of the proceedings in which the three orders now appealed were made, is somewhat unusual. Accordingly, it is necessary for us to refer in some detail to that history at the outset of these reasons, although it will be necessary to revisit some of that history when discussing the grounds of appeal.

The commencement of the proceedings between the husband and the wife

On 25 February 2011 the wife filed an application against the husband in the Federal Magistrates Court at Parramatta seeking final property settlement orders (including an order that the husband pay her $100,000.00) and interim orders which would restrain the husband from dealing with the proceeds of the sale of “the family home … sold on or about the end of January 2010”, and which would require the provision by the husband to the wife’s solicitor of all documents relating to that sale, and also require the deposit of the sale proceeds in an account in the joint names of the parties.
It appears from a notation in orders subsequently made by Harman FM on 1 April 2011, that the husband was served with the wife’s initiating application on 26 February 2011.
On 15 March 2011 an Application in a Case was filed on behalf of the wife again seeking orders that the husband be restrained from dealing with the net proceeds of the sale of the home; that the net proceeds be deposited in a joint account; that “… the conveyancing solicitors [C] and [S] … provide the wife’s solicitors [with] all documents in respect of the sale …”; and that the matter be heard ex-parte.

The hearing on 1 April 2011

The wife’s applications for interim restraining and other orders (as contained in the applications filed on 25 February 2011 and 15 March 2011) came before Harman FM on 1 April 2011. The wife was represented. There was no appearance by, or on behalf, of the husband. However, the Federal Magistrate noted in his orders made that day that the wife’s initiating application and supporting affidavit had been personally served on the husband on 26 February 2011 and bore the listing date of that day (1 April 2011), and he declared that that application would proceed on that day on an undefended basis, and that the application filed on 15 March 2011 would proceed on an ex-parte basis.
The Federal Magistrate then made orders restraining the husband from dealing with the proceeds of the home and requiring that such proceeds be deposited in a bank account in the name of both parties. He adjourned the proceedings for further interim hearing on 7 April 2011 and made orders for the personal attendance of the husband on that adjourned date, together with orders which foreshadowed an arrest warrant if he did not attend, and orders restraining him from leaving Australia. Leave was given to the wife’s solicitor to issue subpoenas.

The hearing on 7 April 2011

When the matter came before Harman FM on 7 April 2011, Counsel appeared for the wife and the husband appeared without legal representation but with an interpreter.
Through the interpreter the husband confirmed to the Federal Magistrate that he had sold the home, and that the solicitors who had acted on the file were [C] and [S]. In response to a further question from his Honour as to whether the solicitors still held the money paid by the purchasers, the husband through the interpreter said “yes”. Counsel for the wife then informed his Honour that her client’s understanding was that the money had been deposited in one or more financial institutions, and asked for the matter to be stood down so she could have discussions with the husband through the interpreter.
When the matter resumed some two hours later a duty lawyer appeared for the husband. Counsel for the wife then explained to the court that material subpoenaed from the bank (which became Exhibit “M1”) revealed that on 1 March 2011 two accounts had been opened with the bank, one with an account number ending in “117” and the other ending in “079”; that on the same day the settlement sum of $200,050.00 had been put into the account with the number ending “117”; and that during March there had been several transactions from the account with the number ending “117” into the other account and then from the accounts into a term deposit for which there were no statements.
After some discussion between the Federal Magistrate and Counsel for the wife concerning the bank material during which Counsel suggested that more material was needed from the bank, the following exchange took place between his Honour and the duty lawyer appearing for the husband:
HIS HONOUR: You have come into the matter very recently. Of the $200,050, have you had an opportunity, or if not, could you have an opportunity to find out where that all is or what has occurred to it? Because certainly ‑ ‑ ‑
[MS N]: Your Honour, my concern at the moment is that [the husband] firstly has trouble hearing, and secondly, that he also has dementia. And I do have some concerns about his capacity to instruct me at the moment.
HIS HONOUR: Certainly.
[MS N]: I have attempted to seek instructions from him in relation to the money and all he has been able to tell me is that he no longer has the money. I am ‑ ‑ ‑
(Transcript, 7 April 2011, page 9)
The Federal Magistrate then interrupted and himself addressed the husband through the interpreter:
HIS HONOUR: Right. Can I ask you, Ms Interpreter, to explain. I want [the husband] to tell me where the $200,050 is; and if he either refuses to tell me or he genuinely no longer has the money, he starts a gaol sentence today.
THE INTERPRETER: Okay. [The husband] says that he fell sick. He put the money in the back of the car and that when he looked for that, they were no longer there.
HIS HONOUR: Can you ask him is there any money left in any account with [the bank]?
THE INTERPRETER: Okay. All I have left is about $3000.
HIS HONOUR: Then can you ask him is there somebody who can bring his toiletries because he is going into a police cell in about five minutes time?
THE INTERPRETER: Okay. Sir, [the husband] insists he doesn’t have any money, okay? No, I don’t have anybody.
HIS HONOUR: Then can you please tell him he will be going to gaol until the money is produced.
THE INTERPRETER: I don’t have any money. Somebody stole the money.
HIS HONOUR: Then can you please tell [the husband] he will be in gaol for a very long time.
THE INTERPRETER: I don’t have any money.
HIS HONOUR: I am getting the police here now. They are going to take you into custody and put you in a cell.
THE INTERPRETER: Okay. I can’t do anything about it.
HIS HONOUR: Very well. While we are waiting for them, you need to go to the witness box, please.
(Transcript, 7 April 2011, pages 9-10)
After the interpreter had been affirmed and the husband sworn, and the usual formalities of name and address attended to, the Federal Magistrate continued his questioning of the husband:
HIS HONOUR: Now, sir, you were served with an application on 26 October 2011(sic). Do you remember that ‑ ‑ ‑
THE INTERPRETER: Sorry, 2011?
HIS HONOUR: Yes. So 26 February 2011.
THE INTERPRETER: Yes, he is nodding.
HIS HONOUR: And that application sought certain orders by [the wife] about the house that has now been sold.
THE INTERPRETER: Yes.
HIS HONOUR: Now after you received that application, the sale of that house at [D] finished, it was sold. Do you agree with that?
THE INTERPRETER: I had to sell it because I didn’t have any more money to pay.
HIS HONOUR: But it was sold or the sale completed after 26 February. Do you agree with that?
THE INTERPRETER: I sold the house before I received the papers.
HIS HONOUR: On 1 March, you deposited a sum of $200,050 with [the bank]. Do you remember that?
THE INTERPRETER: Yes.
THE WITNESS: Yes.
HIS HONOUR: At around that time, you had opened three accounts with the [the bank]?
THE INTERPRETER: Yes.
HIS HONOUR: And after those –that money was deposited to your account on 1 March, you would appear to have withdrawn nearly all of it.
THE INTERPRETER: Yes.
HIS HONOUR: A number of those withdrawals occurred by telephone banking.
THE INTERPRETER: No, it’s not through the telephone, no; I went to the bank.
HIS HONOUR: So if your bank statements say that you had made withdrawals by telephone banking, that’s not correct?
THE INTERPRETER: No, it’s not by telephone.
HIS HONOUR: Now a number of the transactions say “funds transferred to term deposit.” Do you have a term deposit with the [bank]?
THE INTERPRETER: No, I haven’t got an account, a term account.
HIS HONOUR: Then before we proceed any further, can I make very clear to you what is occurring. If I could ask you to translate that, please.
THE INTERPRETER: Yes, I did have an account there but I closed.
HIS HONOUR: You were under oath to tell me the truth.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: And [Counsel] who appears for your wife is going to make some further inquiries during the course of the day to get documents from [the bank].
THE INTERPRETER: She can do so.
HIS HONOUR: And if those – if documents are produced by [the bank] that show that any of the answers you give me are not correct, you will be charged with perjury.
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: For now, you are charged with the offence of contempt of court in that you have with full knowledge of the application of [the wife] sought to dispose of or conceal the funds the subject of those proceedings.
THE INTERPRETER: I hid them behind the seat of the car.
HIS HONOUR: If you could just interpret that, please, though, Ms Interpreter.
THE INTERPRETER: I took them out to get a farm.
HIS HONOUR: Very well. Do you understand, [the husband], that you are charged with a criminal offence?
THE INTERPRETER: I’m saying the truth.
HIS HONOUR: Do you understand that you are charged with a criminal offence?
THE INTERPRETER: I don’t understand.
HIS HONOUR: You – after you were served with [the wife’s] application, you allege you have disposed of all of the money that the application sought to divide between you and [the wife].
THE INTERPRETER: No, it’s not true, I did not do it for that.
HIS HONOUR: And until the matter is dealt with to finality, which may take some months, you will be held in custody in gaol.
THE INTERPRETER: I can’t do anything; I have said the truth, whatever happens.
HIS HONOUR: Do you understand that you will very shortly be going to gaol, as in today?
THE INTERPRETER: I can’t do anything; I have said the truth.
HIS HONOUR: Very well. I want to interrupt. [The husband] can leave the witness box for the moment but not the courtroom, because I have some questions for another witness.
(Transcript, 7 April 2011, pages 10-13)

At this point the Federal Magistrate required a Mr B, who was apparently a friend of the husband and was in the vicinity of the court, to go into the witness box and give evidence on the basis that he was “under subpoena” about what he knew regarding the husband’s dealings with the bank accounts. We will later refer to the substance of Mr B’s evidence.
The Federal Magistrate then indicated (at about 1:00 pm) that he proposed to adjourn the proceedings until 3:30 pm that day. He directed that the bank be notified that full compliance was required by that time or the bank must explain their non-compliance. He then made orders extending the time for compliance to 3:30 pm that day and for the production of further documents by the bank. He also made the following notations and directions in relation to the contempt charge against the husband:
I note that [the husband] has been formally charged with contempt of court pursuant to section 112AP, and that the hearing of that application is yet to conclude.
Next:
Pending conclusion of the hearing of the above charge, [the husband] is remanded in custody subject to (a) he shall be in custody pending further order of this court; and (b) he shall be released forthwith upon his depositing, or causing to be deposited with this court, a sum paid by bank cheque or cash of not less than $120,000.
Next:
An arrest and commitment warrant is issued in the usual form to the Australian Federal Police and the New South Wales Police to give effect to the above remand.
(Transcript, 7 April 2011, page 22)
These directions were shortly followed by the following exchanges:
HIS HONOUR: [Counsel for the wife], if you could go and speak to [the bank].
[COUNSEL FOR THE WIFE]: Certainly, your Honour.
HIS HONOUR: Perhaps also let them know that one of their customers is staying in custody until they produce the documents.
[COUNSEL FOR THE WIFE]: Certainly.
HIS HONOUR: That wouldn’t look good on their advertising. That would be appreciated …
(Transcript, 7 April 2011, page 23)
The transcript then reveals that about half an hour after these exchanges, the hearing resumed with Counsel (apparently instructed on a duty lawyer basis by legal aid) appearing on behalf of the husband in order to tender a doctor’s report to the effect that the husband suffers from dementia and to inform the Federal Magistrate that the husband had so far not eaten that day, and to ask that he be permitted to wait in the legal aid duty room (rather than the cells) pending the resumed hearing. The Federal Magistrate then suspended the commitment warrant pending further order. There followed some discussion between his Honour and Counsel about the need for a case guardian to be appointed for the husband before the matter was again adjourned.
When the matter resumed shortly after 3:30 pm with the same counsel who had earlier appeared for the husband continuing to appear, Counsel for the wife advised the Federal Magistrate that enquires had been made of the manager of the relevant bank branch and that an officer from the bank could be contacted by telephone. That was then done, and a discussion ensued between the Federal Magistrate and a Mr S from the bank (who was not in fact sworn or affirmed as a witness). Again we will refer later to the thrust of Mr S’s advice to the Court concerning the bank’s records.
After the telephone call with Mr S had finished, his Honour indicated (at Transcript, 7 April 2011, page 35, lines 15-16) that he was considering gaoling the husband until he produced one hundred and twenty thousand dollars. Counsel appearing for the husband then applied for the husband’s release essentially on the basis of the certificate of a general practitioner (which became an Exhibit “F1”) that the husband suffered from dementia.
The Federal Magistrate was prepared to grant this application saying:
I’m going to release [the husband] on condition that he appear on the next occasion and that he present 120,000 bucks or he goes to gaol next time. I don’t believe for one second his story, or his friend’s story about 200 grand in the back of the car; not for one second. I would slot him for perjury now, if somebody could produce a $20 note that shows he was lying. But I’m just unimpressed that he is served with an application, and two working days later, banks the cheque and proceeds to withdraw it by telephone banking – whether he did it or somebody else – but he must have given them the details for telephone banking after 1 March because that’s when he set up the account, as it would appear, a new customer of [the bank].
And the moment he is able to do that, within the space of eight working days the money has gone; in just enough time for it to all be gone before the first return date. So that’s the course I will take. It’s just an issue of how long. But he goes to gaol next time unless he brings 120 grand in cash, because until he can prove otherwise I’m not buying his story.
(Transcript, 7 April 2011, page 37)
Counsel also sought an adjournment in order to arrange a grant of legal aid for the husband and legal representation for him.
The Federal Magistrate then adjourned the matter until 21 April 2011 and he released the husband on certain terms and conditions, having again addressed the husband in similar terms to those contained in the last passage of transcript set out above at paragraph 84.

Hearing on 21 April 2011

At the adjourned hearing on 21 April 2011 a solicitor appeared for the husband, together with Counsel for the wife. Although the cover page of the transcript of that day indicates that there was an appearance for the bank on that day, the transcript itself indicates that there was no appearance for the bank.
Nevertheless, the Federal Magistrate made an order on that day joining the bank as a party to the proceedings before further adjourning the matter to 14 June 2011.
We will later when discussing the challenge to the joinder order, set out what can be seen from the transcript to be the Federal Magistrate’s reasons for making that order, together with the notations which he made to the order. We mention that after the hearing of the appeals it became apparent that there was further transcript relating to the morning of 21 April 2011. We considered it unnecessary for the determination of the appeals to ask for any further submissions in relation to the additional transcript.

The hearing on 14 June 2011

At the hearing on 14 June 2011 Counsel appeared for the bank as also did Counsel for the wife and the solicitor for the husband.
Counsel for the bank sought that her client should be removed as a party to the proceedings on the basis that neither the husband nor the wife had sought an order against it.
Counsel did however indicate that the bank was willing to do what it could to assist the Court. We will later set out the passages of the transcript of the exchanges which occurred between the Federal Magistrate and Counsel as she endeavoured to explain the chronology of the husband’s dealings with the bank.
At the conclusion of the hearing on 14 June 2011 his Honour made a range of orders which as they appear on the transcript and are presently relevant are as follows:
grant leave to each of the husband and the wife to amend their respective applications and responses to seek such relief as against the [bank] as they consider appropriate, such amended application or response and affidavits sufficient to comply with the Federal Magistrates Court Rules to be filed and served no later than close of business -
…
8 July 2011.
Next:
The [bank] is to file and serve any response to such relief as is sought against them, together with affidavit material as detailed hereafter, no later than close of business, 5 August 2011.
Next:
I adjourn the proceedings for further mention and directions before me, 9.30 am, 11 August 2011
Next:
I note that a subpoena addressed to the [bank] was previously served and made returnable 7 April 2011, and with respect to that subpoena (a) documents were produced by the [bank]; (b) after the matter had been dealt with and interim determinations made with respect to the substantive proceedings, and following cross‑examination of the husband and another witness in his case, further documents were produced by the [bank], and an officer of that bank contacted to give evidence by phone which suggested that each of the documents that had been produced by the bank to the court in purported compliance with the subpoena did not accurately reflect the transactions which had, in fact, occurred.
Next:
The material to be filed by the [bank] shall include and annexe copies of all relevant documents, including statements, vouchers, deposit and withdrawal slips, internal memoranda or such other documents as would go to: (a) an explanation of the discrepancies between the various documents now produced, and particularly noting that the documents initially produced suggested that most, if not all, of the transactions which had occurred had been conducted by telephone banking, whereas it would now appear no such transaction had ever occurred, and further, that such transactions as had occurred largely involved transfers of funds to a term deposit account which it is also now suggested does not, and has never, existed; (b) the apparent different signatures on each withdrawal slip and application for opening an account that has been produced to the court; (c) an explanation as to the bank’s compliance or otherwise with financial reporting obligations regarding cash transactions in excess of $10,000.
(Transcript, 14 June 2011, pages 13-14)
…
(9)I grant leave to each of the husband and the wife pursuant to section 121 of the Family Law Act to make such disclosure of these proceedings and the nature of same and allegations contained therein as they consider appropriate, and note that any such disclosure or invitation to any media organisation to investigate issues relevant to these proceedings will seek to obtain information by way of interview or otherwise is (a) considered to be in the public interest, and (b) shall not constitute a breach of section 121.
(Transcript, 14 June 2011, page 14)
After his Honour had made several other orders, not presently relevant, Counsel for the bank sought to oppose the making of the s 121 order with the following exchange then occurring:
[MS B]: Your Honour, may I say, before your Honour concludes today’s matters, that [the bank], had it been given an opportunity would have variously opposed the order your Honour has just made in terms of media contact and section 121 of the Family Law ‑ ‑ ‑
HIS HONOUR: On what basis? The purpose of section 121 is to protect the privacy of individuals involved in matrimonial proceedings. This is a matter of public policy.
[MS B]: Well ‑ ‑ ‑
HIS HONOUR: This is a matter that affects the confidence not only of these litigants, but I would have thought any banking consumer as to the accuracy of records. Here is a bank that acknowledges and sworn evidence on the last occasion – sorry, I withdraw that; don’t know that we administered an oath, but who indicated quite clearly to this court that the records they had produced did not reflect in any fashion whatsoever an accurate record of transactions.
[MS B]: Your Honour, the basis of the objection would have been, had it had an opportunity to make the objection that existed, would have been that the officer that your Honour is referring to was, so far as I understand, giving evidence on the run in the sense that he didn’t necessarily have the full context of things. He wasn’t giving sworn evidence. As I understand, he was trying to just assist things as he could in the moment without the proper context. While these are matrimonial proceedings, the bank is nevertheless entitled to some protections and to many protections which exist to all entities of proceedings, be they corporations or private citizens.
(Transcript, 14 June 2011, page 15)
Further discussion then ensued as to the accuracy of the records which the bank had prepared. The transcript of that discussion will be later set out.
As has been seen, the matter was then adjourned to 11 August 2011, and as earlier explained on 27 June 2011 the bank filed an appeal against the s 121 order together with an application to extend time to appeal the joinder order.

Appeal against the joinder of the bank

Should leave to appeal the joinder order be granted, then the bank would rely in support of the appeal on Grounds 5 to 8 contained in its Notice of Appeal. Those grounds were addressed globally by Senior Counsel for the bank in his oral submissions. It is thus convenient that we also address those grounds globally as, apart from Ground 5, they all raise issues of procedural fairness.
The complaint contained in Ground 5 as drafted is that the Federal Magistrate erred in joining the bank when neither party sought any order against it.
It was common ground before us that the Federal Magistrate has the power to join a third person as a party and in the absence of an application to do so by any existing party to the proceedings. But the issue in this case is the basis on which, or purpose for which, his Honour exercised that power. We will turn to that issue shortly.
Although his Honour did not identify the Rules of Court that he was applying in making the joinder order, given that this matter was being heard in the Federal Magistrates Court, the relevant rules are rules 11.01 and 11.02 of the Federal Magistrates Court Rules 2001 (Cth). Those rules provide as follows:
11.01 Necessary parties
(1)Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
(2) The Court may require a person to be included as a party.
(3)A person required to be included as an applicant who does not consent to be included may be included as a respondent.
(4)The Court may decide a proceeding even if a person is incorrectly included or not included as a party.
11.02 Party may include another person as a party
(1) A party to a proceeding may include any person as a party by:
(a)naming the person as a party in the application, response or reply; and
(b)serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.
(2)A party may not include a person as a party after the first court date without the leave of the Court.
(3)The Court may at any time order a party who has included a person as a party to file and serve on each other party in the proceeding an affidavit setting out the basis on which the person has been included.
We observe that these rules do not require that an order be sought against a proposed third party before joinder can be ordered. In this regard the wife has also referred us to a helpful decision of Warnick J exercising appellate jurisdiction in Wayne & Dillon & Anor [2008] FamCAFC 204. His Honour said this (at [11]):
It seems plain enough that under the rule joinder could be permitted even though no order was sought against a third person. A third person might be affected by an order though not directly the subject of it and/or it might be discernible that findings upon which an order is based bind a third person and so in either instance that third person should be party to the proceedings.
With respect we agree with Warnick J, and thus there is no merit in Ground 5 as drafted.
In the written submissions presented by Senior Counsel for the bank it is suggested that the bank is not capable of being characterised as a “necessary party” for the purposes of the equivalent rule in the Family Law Rules 2004 (Cth) namely sub-rule 6.02(1). That requirement is also found in sub-rule 11.01(1) of the Federal Magistrates Court Rules, and if that submission is correct, then the Federal Magistrate may have erred in joining the bank, depending as we say on the basis on which, or purpose for which, his Honour exercised this power.
In determining this issue it is necessary to revisit some of the history of the bank’s involvement in these proceedings.
On 4 April 2011 a subpoena was issued by the wife seeking production of various documents by the bank on or before 7 April 2011. The bank duly forwarded documents to the Court in answer to this subpoena and these documents were tendered before the Federal Magistrate at the hearing on 7 April 2011 and marked Exhibit “M1”.
These documents revealed that money had been transferred between accounts of the husband by telephone banking and that there was a term deposit in which some of this money had been placed. However, no documentation was produced by the bank in relation to that term deposit.
It will be recalled that the husband in his evidence given to the Court that day said that he had withdrawn all but $3,000.00 from his accounts, and that he had either lost the money that he had withdrawn or it had been stolen. He denied that he had used telephone banking, and he denied that he had a term deposit. Further, the husband’s friend, Mr B, in his evidence given to the court that day said that he had arranged for the husband to deposit the proceeds of sale of the house property with the bank, that he had seen the husband withdraw large amounts of cash from his account, and that he was unaware of the husband using telephone banking or of having a term deposit.
Again it will be recalled that after hearing this evidence the Federal Magistrate adjourned the hearing to later that day to enable the bank to either fully comply with the subpoena or explain its non-compliance. His Honour then made an order for the bank to produce documents relating to any term deposit, any telephone banking, and any cash withdrawals.
Upon resumption of the hearing the wife’s Counsel informed his Honour of the result of enquiries she had made of the manager at the relevant branch of the bank, namely that there were only cash withdrawals and there were data entry mistakes as to any term deposit.
The Federal Magistrate then spoke on the telephone to an officer of the bank, Mr S who informed the Federal Magistrate that all withdrawals were cash withdrawals and that he assumed the wrong computer code was put in showing them as transfers to a term deposit.
In relation to telephone banking Mr S was only able to confirm that there were records of telephone banking between the husband’s two accounts and those records had already been sent to the Court. He confirmed that the husband had a password and a pin number to operate telephone banking. He also confirmed that the cash withdrawals had been made from the account into which the money had been transferred by telephone.
As arranged at this hearing, later that afternoon Mr S emailed to the Court the cash withdrawal slips that he had located, although he was still waiting for two more to become available.
The matter was next before his Honour on 21 April 2011. At the resumption of the hearing that afternoon his Honour said:
… One thing I would propose doing, and I’m fully conscious they’ve had no notice of it, but I don’t particularly care about that, is join [the bank] because I think that’s the best way I’m doing(sic) to get them here, and I think if I am incorrect in disbelieving [the husband], will give you the best shot to protect [the husband’s] interests
- - -
… I know we haven’t given any notice to [the bank], although, we did, in fact, have some person from [the bank] whose name I can’t remember give some evidence by telephone on the last occasion, which is how it came to be that, in fact, we became aware that each of the transaction descriptions on the [bank’s] banking records was wrong. So I suppose to that extent, that’s probably the notice they’re getting. But I want to join them as a party because – if they’re disgruntled by that, well, they can appeal. They can’t get a costs order against the court. They certainly won’t be getting one against the parties.
If I am incorrect in my suspicion as to the veracity of [the husband’s] evidence about what happened with his money, then, that will give you the best shot to protect [the husband’s] position and seek orders against [the bank] as to anything that has happened that may have been fraudulent but not involving [the husband]. And [Counsel for the wife], that will, if I’m right about that and there has potentially been some collusion or otherwise, that will give your client the best shot of doing something about it.
(Transcript, 21 April 2011, page 6)

Then later his Honour said this:
So it’s an issue of whether we’re going to a conciliation conference, whether we’re simply coming back to see what [the bank] has to say for themselves, and I will make sure, in joining them, that I express very clearly why because something that is not quite right has been going on at [the bank]. Seeing as they have control of my money and my wife, I’m not particularly excited about that.
(Transcript, 21 April 2011, page 8)
And then when addressing when the case should be relisted and where, his Honour said this:
…
I don’t want to, for the reasons I’ve already described, [solicitor for the husband], put you to the difficulty and expense of dragging you in to Sydney, although, it probably suits [the bank]. But probably, the more inconvenience we create for the (sic), the better.
(Transcript, 21 April 2011, page 8)
The Federal Magistrate then made orders, which relevantly for present purposes, adjourned the matter to 14 June 2011, and joined the bank as a party to the proceedings with a direction that either an appropriate officer or legal representative of the bank attend the adjourned hearing.
In addition his Honour made the following order:
7.In the event that the [bank] does not attend by its legal representative or officer of the bank consideration be given for issuing of a warrant for the arrest of the General Manager of that organisation.
His Honour’s engrossed orders of 21 April 2011 contain the following notations (which were foreshadowed towards the end of the hearing on 21 April 2011):
THE COURT NOTES THAT:
The [Bank] is joined as a party because:
a.the material produced by the [bank] on subpoena purporting to be the proper business records of the bank would appear to be either inaccurate or fraudulent;
b.evidence given when the matter was last before the Court would give rise to a suggestion of collusion between one or more bank offers (sic) and/or [the husband] or other persons;
c.the opening of the accounts and their operation relevant to these proceedings would appear highly unusual and would appear to involve substantial cash withdrawals within a short period of time and would not have been reported to the appropriate agency and would have the affect to [the husband’s] knowledge of frustrating the Wife’s application and subverting the Courts jurisdiction.
d.The evidence available in the mater (sic) to date would also suggest a lack of duty of care by the bank towards [the husband] in that he is elderly, suffers a hearing difficulty, is suggested to be affect (sic) by dementia and the transactions which had occurred would appear to have been assisted or undertaken by persons other than [the husband]; and
e.If one or all of the above are ultimately found proven by the evidence in this case the Court will consider making orders for compensation or restitution against the [bank].
As earlier recorded, at the hearing on 14 June 2011 counsel appeared for the bank as also did counsel for the wife and the solicitor for the husband.
Counsel for the bank sought that the bank be removed as a party to the proceedings although Counsel did indicate that the bank was willing to do what it could to assist the Court. Importantly, however, at no stage did Counsel indicate that the bank acquiesced in the joinder.
To now return to the question of whether the bank was a necessary party and thus should have been joined, the wife submits that the bank is a necessary party because “the whereabouts of the monies which were deposited by the (husband) with the bank on 1 March 2011 are central to the proceedings”. In particular, it is put that the evidence from the husband and Mr B is inconsistent with what is revealed in the documents initially provided by the bank in answer to the subpoena, and that the discrepancies were not clarified by Mr S.
We consider that there is no basis on the evidence that was before the Federal Magistrate at the time that his Honour made the order joining the bank to find that the bank was “a necessary party” to the proceedings.
A subpoena duces tecum had been issued requiring the bank to produce certain documentation. The bank produced documents in answer to that subpoena. The issues that then arose required nothing more than for the wife to raise with the Federal Magistrate a claim that the bank had not fully complied with the subpoena and that there were further documents that should be produced. Then the appropriate way for the Federal Magistrate to deal with that claim would have been to make an order, for example, for further documents to be produced by the bank, extending possibly to requiring an affidavit to be filed addressing the issues with the documents produced to that point or alternatively a subpoena to the appropriate bank officer to give evidence and produce documents. Indeed, his Honour made such an order for further documents, appropriately we say, on 7 April 2011 as referred to above in paragraph 79.
It was neither appropriate nor necessary for the Federal Magistrate to join the bank at that point. However, it is apparent from what the Federal Magistrate said on 21 April 2011 that he had a collateral purpose in making the joinder order. He was using it as a way of getting the bank to appear before him and to allow the wife to pursue a claim for “compensation or restitution” against the bank. Yet, it was unnecessary to join the bank to achieve these purposes (if indeed they needed to be achieved). The bank could have been required to attend in the context of the alleged non-compliance with the subpoena that had been issued, and if the wife sought to make a claim against the bank the rules permitted the wife to name the bank as a party to any such proceedings, or to seek leave to do so.
His Honour did give “reasons” for the joinder, and they were set out as notations to the order of 21 April 2011 as identified in paragraph 117 above. However, in our view, none of the matters referred to justify a joinder order as opposed to an order in relation to the subpoena that had already issued. Indeed, as we will elaborate on later in these reasons, his reasons comprise unjustified assumptions on the part of the Federal Magistrate. They clearly follow on from inappropriate comments made by the Federal Magistrate during the hearing on 21 April 2011 and which are revealed in the transcript from that hearing set out in paragraphs 113 and 114 above.
There is also no question that the bank was not on notice of the proposed joinder and it did not have the opportunity to either respond to the issues raised by the Federal Magistrate or at the very least make submissions in relation to the proposed joinder before the order was made.
In most circumstances that would raise an issue as to whether there was a denial of natural justice and/or procedural fairness, as claimed by the bank.
However, in relation to the joinder of a party, the Federal Magistrates Court Rules provide for joinder to occur prior to the first court date by the simple act of a party naming a third person as a party in the proceedings and serving copies of the application, response or reply and all other relevant documents filed in the proceedings (sub-rule 11.02(1)).
The clear intention of the rules when this is done is to place the onus on the party joined at the first available opportunity to object to the joinder if that is their position, and the party who joined them would then need to justify the joinder. In turn, the party named should have the opportunity to respond to that justification.
We also observe that sub-rule 11.02(2) provides that after the first court date joining a party by naming them can only occur with the leave of the Court, and presumably in that event, when that leave is sought the proposed party should be served with the application for leave and all supporting material, and have the opportunity to respond.
That is not what happened here. It was the Federal Magistrate who made an order joining the bank. As referred to above, that course is also provided for in the rules (sub-rule 11.01(2)), but the rules are silent as to how that is to be achieved, in that the rules do not indicate the process, and in particular whether the Court simply makes an order for joinder and then leaves it to a later date for any objection to be taken, or whether before making the order the proposed party is given an opportunity to put their position. Consistent with the method which the rules provide for joinder by a party, the former would seem to be the case. Thus, on this basis the fact that the bank was not put on notice before the order was made and it did not have the opportunity to be heard would not result in a finding that his Honour erred. His Honour adjourned the matter to 14 June 2011 when it was open to the bank to attend and seek to have the order discharged, and that is in fact what occurred. In effect this is also the argument put by Counsel for the wife in his written submissions.
The only difficulty with this process that we can see is that it is quite apparent from the transcript of the hearing before his Honour on 21 April 2011 that his Honour was not making an order for joinder with a view to giving the bank the opportunity to attend on the adjourned hearing date to object to the joinder. His Honour was clearly intending that the bank attend to address the issues that his Honour considered arose from the evidence of the husband and his friend Mr B, the documents produced pursuant to the subpoena, and the “evidence” given by Mr S. As referred to earlier his Honour was using the joinder for a collateral purpose, and that is demonstrated by Order 7 of his orders made that day. In our view, such an order was completely unnecessary and inappropriate.
There is also the question of the notations made to his Honour’s orders on 21 April 2011 and which we have set out above. In Ground 8 it is suggested that these are “findings” made by his Honour, and his Honour erred in making them in circumstances where the bank was not represented in Court that day.
We are not necessarily convinced that these notations can be described as “findings”. They are expressed to be his Honour’s reasons for joining the bank, but we would accept that in these reasons his Honour makes a number of assumptions from the evidence he had heard and the documents he had seen which may not be entirely justified. In any event we treat them as raising issues that needed to be addressed by the bank on the adjourned hearing. We confirm though that we do not consider that they are reasons which would justify the joinder of the bank. Rather they comprise issues which should have been dealt with entirely in the context of the subpoena that had been issued.

Conclusion in relation to the joinder order

We find that his Honour erred in joining the bank at the time that he did and in the circumstances that prevailed at that time. For these reasons therefore we consider that there is merit in the grounds which assert a lack of procedural fairness in the making of the joinder order. Thus leave to appeal the joinder order should clearly be granted, the appeal should be allowed, and that order should be set aside.
As we mentioned at the outset of these reasons, the wife has now filed an amended application seeking formally to join the bank and seeking orders against it. That application is listed in the Federal Magistrates Court on 11 August 2011, which is, in any event, the same date as these proceedings have been adjourned to. The bank will clearly be able to respond to that application as it sees fit, and the issue of joinder can appropriately be addressed afresh on that day. Clearly though in light of our findings this matter should now be heard by a Federal Magistrate other than Harman FM (as was one of the orders sought by the bank in its Notice of Appeal), and we will so order.
Further support for the conclusion that Harman FM should not continue to hear these proceedings is to be found when regard is had to his observations in the following extracts from the transcript of the hearing on 14 June 2011, commencing at the point where Counsel for the bank endeavoured to explain the chronology of the husband’s dealings with the bank:
What I understand is this, as a chronology: [The husband] came into the Richmond branch as a new customer on 1 March and he deposited $200,000 and $50 which was a telephone banking fee of some kind – but $200,000. He opened that account – first, should I say, he opened two accounts, he opened something called a savings account and a basic account. The savings account was the account into which the $200,000 was deposited. The basic account, as I understand, is a very simple and low fee, if not no fee, account. I understand in the vernacular, it’s the sort of account used by pensioners and people on very low incomes because it attracts no fees. The money was deposited; the account was opened in his name; he was the sole signatory and the bank records indicate that.
Then on a number of eight transactions, that money was withdrawn and, as [Counsel for the wife] has pointed out, it was, as the records indicate, over a period of about two weeks in various amounts from $10,000 being the lowest amount to $40,000 being the highest of the amounts – that was a one-off – there was one $40,000 withdrawal. Of itself, the bank, I anticipate would say if – giving evidence, would say there was nothing unusual about that; he is a customer of the bank, he is a sole signatory, he comes in and he withdraws his money and goes away, it’s cash and that’s the end of it.
HIS HONOUR: Well, can I stop and say there’s a few things about it. Firstly, the bank records suggest that they weren’t cash withdrawals, they were transfers to other accounts. So clearly the bank record is wrong.
[MS B]: I will come to that.
HIS HONOUR: I want to know whether it’s deliberately wrong, in the sense that there’s some degree of collusion, because evidence had also been given by [the husband’s] friend and flatmate that he had introduced him to this person who he knew well, who had helped him the past, and I want to know ether the records are mischievously wrong or there is just some horrible accident, either of which is ultimately going to be referred to the Banking Ombudsman to look at.
[MS B]: Your Honour, from – I was just about to come to that.
HIS HONOUR: Second, and more serious – or two further concerns – one which probably isn’t this court’s business but there is no evidence at all to suggest, and it wouldn’t have been the case based on what they are shown as in the record of [the bank], proper accounting in relation to the reporting of those transactions – all being withdrawals and cash of over $10,000 – which is a serious breach of the law by [the bank] and I’m not the Family Court, I’m the Federal Magistrate’s Court, so I have power to deal with those issues and propose to.
Thirdly, and the most important, is having cited the various transaction slips that have been produced, which wouldn’t have been required if they were telephone banking transactions and transfers to accounts which it appears, from what we were told from the evidence of the banking officer, don’t actually exist, the signatures – not one of them actually looks like the one that preceded it. There are a variety of signatures – I’m no handwriting expert, but they sure don’t all look like the same person’s signature.
So I have a real concern that there is either some collusion or a very grave interference with [the husband’s] rights, which had impacted on [the wife’s] and [Counsel for the wife] will certainly be given leave today, if she wants to, to amend her application to seek orders against [the bank] to compensate here, because [the husband] gave evidence he was fully aware of these proceedings, he had been served with the documents and, having been served with them and in total frustration, deliberately or otherwise and with or without collusion by employees of [the bank], has entirely frustrated her claim.
[MS B]: All right. Well, your Honour, if I can take it through in this way. There are eight withdrawals. Four of them ‑ ‑ ‑
HIS HONOUR: But why hasn’t someone put this in affidavit form because that’s how we work.
[MS B]: Well, your Honour, because [the bank’s] position, primary position is that it has no business being here because no party, at this stage, has sought an order against it and it’s primary application is that it be ‑ ‑ ‑
(Transcript, 14 June 2011, pages 4-5)
The Federal Magistrate can then be seen as inviting Counsel for the wife to make an application for an order against the bank by saying:
Then give me one moment. [Counsel for the wife], do you want to seek an order against [the bank]?
(Transcript, 14 June 2011, page 5)
Counsel for the wife responded:
I do, your Honour. I want to reserve a right at least to amend the application that should [the bank] – should your Honour make a finding that there has been collusion or whatever, my client would reserve her right to amend the application accordingly to seek some money against – some damages against [the bank] effectively.
(Transcript, 14 June 2011, pages 5-6)
The following exchange then occurred between the Federal Magistrate and Counsel for the bank:
[MS B]: Well, your Honour, if that’s the case, then so be it but we should put the cart before the horse; that is to say, the application against [the bank] should be made. The evidence in support of that application should be put before [the bank] an the court of course and then [the bank] can respond in the light of the application made against it and the evidence as opposed ‑ ‑ ‑
HIS HONOUR: Why aren’t I entitled to deal with this on the basis [the bank] is in receipt of a subpoena which, on the face of it, it has not complied with, because the documents that are provided are entirely at odds with the oral evidence of an officer from [the bank] who says those documents do not reflect whatsoever what occurred. So there has been no compliance with the subpoena.
[MS B]: Your Honour, I don’t understand, I’m not in a position to respond to your Honour. I didn’t hear what the officer of [the bank] said. So far as my instructions go, the bank has answered the subpoena.
HIS HONOUR: They provided documents purporting to be in answer but I’m then told by the very officer who produced them who then emailed through a number of other documents which showed that those which had been provided to the court are entirely false. Whether maliciously so or otherwise, I really don’t care. They were simply not a proper reflection and could not be a business record because it’s conceded by he who produced them that they are not a proper reflection of the transactions that occurred, therefore there has been no compliance with the subpoena. And I want an explanation in writing and on oath by somebody about it because next time we come back, I can assure you, those seats are all going to be full of media. [The bank] has done something here, whether negligent or malicious, but something has happened that’s removed $200,000 from this man’s hands and removed, as a consequence, $200,000 from [the wife’s] hands.
[MS B]: Well, your Honour, may I say that your Honour may have prejudged the issue in those circumstances if that is your Honour’s attitude.
HIS HONOUR: Not at all. Your bank officer made clear that the documents that were produced purporting to be business records of [the bank] do not reflect at all the reality of what occurred. I am very concerned about that because I have jurisdiction much greater than a Family Court judge. I can deal with financial transaction reporting. I can make a finding right now that [the bank] has breached the law in terms of financial transacting by allowing 10 to 40 thousand cash withdrawals without having reported them. There are consequences for that. I have a power under the Corporations Act to deal with it.
[MS B]: Your Honour, I trust you are not going to make that order today.
HIS HONOUR: Not today. I’m going to give [the bank] the chance to file proper sworn evidence about it.
(Transcript, 14 June 2011, pages 6-7)

Then after he had questioned the solicitor for the husband as to whether the husband would be seeking relief against the bank, which was a question that the solicitor was not in a position to answer, his Honour suggested that the bank had not fully complied with the subpoena in the following exchange:
HIS HONOUR: And if they don’t, there’s nothing produced and there’s a subpoena outstanding and I’m entitled to arrest the managing director of [the bank] right now because they have had three months to comply with the subpoena and have chosen not to, other than to produce documents which mislead the court. And I’m not suggesting that’s deliberate but they do and they’ve got this man arrested and put in custody.
[MS B]: Your Honour, may I take umbrage and say [the bank] did not get [the husband] arrested. As I understand, that was your Honour’s bench warrant.
HIS HONOUR: They did because I made a finding based on accepting the accuracy and validity of the documents produced as business records by [the bank] and accurate faithful representations of the transactions which had occurred to find that [the husband’s] evidence was fanciful and not to be accepted and accordingly he had lied under oath and he was charged with contempt and arrested. If [the bank] had thought to produce the documents which, at my instigation, not [the bank’s], four hours later were produced, and the concession made that the documents we have sent are completely inaccurate, he wouldn’t have been arrested. I detained him, I deprived him, in terms of talking about rights of private citizens, of his right of liberty. He was retained in custody for four hours until that happened caused by the document [the bank] produced which was clearly false. I don’t say false to suggest meaningfully so but it was false and I would have thought it’s a matter of real concern to [the bank] to have produced something that tells me how the hell that happened.
[MS B]: Your Honour, if I can only say again, and I would say this to protect my client’s interests, two things, firstly my client needs to have some considered – some time to consider the evidence brought against it. It has not had the opportunity to read the transcript and all of our so to speak ducks are not in a row. That needs to be done. It’s of no use to the court otherwise and for evidence to be put on which is in a sworn form upon which your Honour can rely, draw inferences and the like and I would secondly simply reiterate, as I must in order to discharge my duty to my client, in saying [the bank] did not cause [the husband] to be arrested. Your Honour, there is a chain of reasoning certainly in your Honour’s decision to issue an arrest warrant to [the husband] but I would simply say, to protect my client’s interests, [the bank] did not cause that to occur.
HIS HONOUR: I didn’t issue an arrest warrant, I convicted him and imprisoned him.
(Transcript, 14 June 2011, pages 8-9)
Later on the same day the following further exchanges occurred between the Federal Magistrate and Counsel for the bank:
[MS B]: Well, your Honour, because your Honour has no evidence of that before you as yet. The bank needs to put on evidence ‑ ‑ ‑
HIS HONOUR: But I do ‑ ‑ ‑
[MS B]: ‑ ‑ ‑ as to what has – may I ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ because the banking officer to whom I spoke emailed to my associate, and they were admitted as exhibits the proceedings, the withdrawal vouchers which then made very clear that they had never been a telephone banking transfer to a term deposit that never existed.
[MS B]: Well, your Honour ‑ ‑ ‑
HIS HONOUR: They were cash withdrawals over the counter.
[MS B]: Your Honour is going one step further, if I may say, by this: it is no longer a case of [the bank] not answering or answering, as the case may be, a subpoena. Your Honour is now making or moving towards making orders and findings against [the bank]. But circumstances in which those earlier discussions with your Honour – and of course, I am flying in the dark, your Honour, because I wasn’t here and that is the very point. [The bank] was not represented in those proceedings. It was answering a subpoena. It was assisting the court so far as I understand. Your Honour is, may I say, and I don’t with to be in any way disrespectful, but at risk of prejudging [the bank]. Let [the bank] put on ‑ ‑ ‑
HIS HONOUR: No, I am not going to make any order about ‑ ‑ ‑
[MS B]: If I may ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ the apparent inconsistencies. I am going to refer them to the Attorney‑General ‑ ‑ ‑
[MS B]: Well ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ to be appropriately investigated ‑ ‑ ‑
[MS B]: Certainly, your Honour has all those ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ and if he considers it appropriate, prosecute it.
[MS B]: Your Honour has many powers and I wouldn’t suggest for one moment to detract from them. But [the bank] needs to understand the case that is being brought against it, needs to be given the opportunity to put on evidence to explain the situation. It may very well be, your Honour ‑ ‑ ‑
HIS HONOUR: You have had since 21 April.
[MS B]: ‑ ‑ ‑ that once evidence has been placed before the court and [the bank] has been properly cross‑examined and so forth on that evidence, that it may be that the concerns your Honour has are not nearly either as – that may not be founded at all or they may not nearly be as serious as your Honour suggests, in which case, the making of this into a Today Tonight story by allowing the parties to go to the media only prejudices, and may I say, potentially degrades the integrity of the proceedings because at this stage, all of this is untested; and at this stage, it is out of context; and prior to now, [the bank] has not been represented in the proceedings.
HIS HONOUR: But what I do have a context of are two sets of documents provided on the same day which cannot both possibly stand together.
[MS B]: Well, that may be ‑ ‑ ‑
HIS HONOUR: There is an issue about the integrity not of these proceedings, but of the banking process.
[MS B]: But your Honour, that is a matter of evidence.
HIS HONOUR: I am entitled to receive a business record from [the bank] that I can rely upon, and on the first instance did in sentencing to a period of imprisonment an elderly gentleman who it subsequently transpires may or may not have dementia.
[MS B]: Well, your Honour, that may be – look, all of that may be so or not so.
HIS HONOUR: To then be provided with a document on the same day that says, “Sorry, that is not right.”
[MS B]: Well, your Honour, it may be that there was human error. These things do exist in a big corporation ‑ ‑ ‑
HIS HONOUR: They do.
[MS B]: ‑ ‑ ‑ as much as they do in any household or it may have been something else.
HIS HONOUR: The problem is I can understand if it was a transaction.
[MS B]: But we need to find out. These are matters of evidence. I’m sorry, your Honour?
HIS HONOUR: If it was a transaction, I would understand. But it is every transaction.
[MS B]: Well, your Honour, I take issue with that and I would say, on the evidence, it is not every transaction.
HIS HONOUR: All right.
[MS B]: But I am not going to give evidence from the bar table because I can feel ‑ ‑ ‑
HIS HONOUR: It is the majority of them. Telephone banking transfers to a term deposit in [the husband’s] name. He has never used telephone banking, he doesn’t have the facility on his account and he doesn’t have a term deposit.
[MS B]: Well, your Honour, I take issue with two of the – well, in fact, I take issue with two of those things and I agree with the third. But those are matters of evidence.
HIS HONOUR: Good. Well, the bank should have put it on before today. Didn’t need me to make an order about it.
[MS B]: Well, your Honour, before today, there has been no application against the bank. The bank has nothing to answer as yet.
HIS HONOUR: But there is a subpoena which the bank has not complied with. We have visited that issue. The bank cannot produce documents which they then concede are not an accurate business record and say they had complied.
[MS B]: Your Honour, until an application is made against the bank, the bank has nothing to put evidence on about ‑ ‑ ‑
HIS HONOUR: They have an obligation to comply with a subpoena or explain their inability to do so. They haven’t. As I said, I am happy to arrest the director ‑ ‑ ‑
[MS B]: Very well, your Honour. I hope you won’t be doing that.
HIS HONOUR: ‑ ‑ ‑ because they haven’t complied.
[MS B]: But perhaps if we can just revert to a timetable for filing evidence.
HIS HONOUR: We have got that.
[MS B]: And the matters can be ventilated.
HIS HONOUR: We have got that.
[MS B]: Thank you.
HIS HONOUR: But we are getting to the bottom in these proceedings of what has gone wrong in this case and I am not trying to prejudge or suggest it is necessarily collusive. I don’t know. But I am dismayed that a bank – and the bank that I bank with – can produce records that are that inaccurate, and then expect that this court is not going to pay attention …
(Transcript, 14 June 2011 pages 15-18)

Appeal against the order requiring the bank to file further material

It will be recalled the bank was given leave by us on 11 July 2011 to amend its Notice of Appeal to include an appeal against Order 5 of the orders made by Harman FM on 14 June 2011. We have earlier set out the terms of that order as they appeared on the transcript, but for convenience here repeat them as they appear in the engrossed orders:
5.The material to be filed by the [bank] shall include and annex copies of all relevant documents including statements, vouchers, deposit and withdrawal slips, internal memoranda or such other documents as would go to:
a.an explanation as to the discrepancies between the various documents now produced and particularly noting the documents originally produced suggested that most if not all of the transactions that had occurred had been conducted by telephone banking whereas it would no appeal that no such transactions would have occurred and further that such transactions that had occurred had involved transfers of funds to a term deposit account which it is now suggested does not and has not ever existed.
b.The apparent different signatures on each withdrawal slip and application for opening of an account which has been produced to the Court; and
c.An explanation as to the banks compliance or otherwise of its financial reporting obligations regarding cash transactions in excess of $10,000.
Order 5 needs to be read with Order 2 made on 14 June 2011 which provides that the bank was to file any response to any further application filed against it by the husband or the wife by 5 August 2011.
In support of the appeal against Order 5, it was submitted by Senior Counsel for the bank that it should not have to disclose the material referred to in the order until such time as its application for summary dismissal of the wife’s amended application (filed on 6 July 2011) seeking alternative relief against the bank was determined.
We consider that there is force in this submission and therefore propose to grant leave to appeal Order 5, to allow the appeal, and to discharge that order.

Appeal against s 121 order

Again as we indicated at the commencement of these reasons, the respondent wife did not ultimately oppose the bank’s appeal against the order relating to s 121 (Order 9 of the orders of 14 June 2011). Nor were any submissions made in support of the order on behalf of the respondent husband. Notwithstanding the positions taken by the respondents, we consider it appropriate to provide some brief reasons in support of the order which we propose to make allowing the appeal and discharging that order.
The terms of the order have been previously set out but it is convenient to repeat them here in the form in which they appear in the engrossed orders:
9.Grant leave to each of the Husband and the Wife pursuant to section 121 of the Family Law Act1975 to make such disclosure of these proceedings and the nature of same and allegations contained therein as they consider appropriate and note that any such disclosure or invitation to any media organisation to investigate issues relevant to these proceedings or seek to obtain information by way of interview or otherwise is considered to be:
a. In the publics [sic] interest; and
b. Shall not constitute a breach of section 121 of the Family Law Act 1975
It will be recalled that after the Federal Magistrate made the order, Counsel for the bank drew to his attention the fact that she had not been heard in relation to the order, and that had she been heard she would have opposed the making of the order. It will be recalled that his Honour then appeared to suggest that there was a public interest in the accuracy of the bank’s records with the discussion between himself and Counsel then moving to other matters.
The grounds of appeal directed to the s 121 order assert error on the part of the Federal Magistrate: in failing to give the bank the opportunity to be heard prior to the making of the order, thereby denying the bank natural justice and/or procedural fairness; in making the order in the absence of an application by either party for such an order or evidence to justify the making of the order; in failing to give reasons for making the order; and in finding that such an order was in the public interest.
On the assumption that there is power in the Court to make the s 121 order in the terms in which the Federal Magistrate did, the appeal against the order must succeed and the order set aside on the basis that the bank were given no notice that it was to be made, nor an opportunity to be heard in opposition to it prior to its making. Further the Federal Magistrate’s reasons for making the order could not be said to be adequate to support it.
Perhaps more fundamentally, however, it must be remembered that the powers of a court exercising jurisdiction under the Act to make any order under s 121 are extremely limited. The section itself creates an offence for the publication of an account of any proceedings (or part of proceedings) under the Act which identifies a party to the proceedings, or other person associated with a party to the proceedings, or a witness in the proceedings. Proceedings in relation to such an offence can only be commenced with the written consent of the Director of Public Prosecution, and such proceedings would be conducted in a court exercising criminal jurisdiction.
Sub-section 121(9) contains a list of eight types of publications which do not offend the prohibition on publication otherwise created by the section, and could thus, if necessary, be relied upon as a defence to a prosecution under the section. Of those eight categories only three require, or indeed, it can be said, authorise, some action by a court. Those three categories as they are contained in the paragraphs of s 121(9) are as follows:
…
(d)the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
…
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
We have difficulty understanding how the order made in this case would come within any of those three mentioned categories. The purported order did no more than give leave. It did not constitute a direction for the publication of a notice or report for the purposes of paragraph (d) and it did not contain an approved account of the purpose of paragraph (g). It clearly did not provide for a court list.
However, in the absence of any argument in support of the order, we will say no more about this order and the appeal against it, save to say that we do not accept that if the court was in an appropriate case to exercise its limited powers under s 121(9), it could only do so on the application of a party (as is asserted by Ground 2). We consider, at least as presently advised, that it could do so of its own motion, and that it could do so on the basis of public interest (which is a proposition apparently contested by Ground 4).

The contempt proceedings against the husband

We agree with the observations of the Chief Justice concerning the Federal Magistrate’s use of the contempt procedure.

Costs of the appeals

In the event that the appeals were to succeed Senior Counsel for the bank informed us that it would not seek costs against the respondents having regard to the financial disparity between it and the respondents. However, the bank did seek a certificate under the Federal Proceedings Costs Act 1981 (Cth), as also did the respondent wife.
We therefore propose that there should be no order for costs in relation to the appeals, but that there should be certificates granted to the bank and to the wife on the basis, however, that there has been one appeal only.

I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 2 August 2011.

Associate:

Date: 2 August 2011