AM v Commonwealth of Australia & Ors.doc; AM, Ex parte - re Judges of Family Court

[2003] HCATrans 287

[2003] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A209 of 2003

B e t w e e n -

AM

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

LEGAL SERVICES COMMISSION

Second Defendant

JR

Third Defendant

CHARLOTTE KELLY

Fourth Defendant

Office of the Registry
  Adelaide  No A213 of 2003

In the matter of -

An application for Writs of Prohibition against THE JUDGES OF THE FAMILY COURT OF AUSTRALIA

First Respondents

ANDREW FORBES, a Judicial
Registrar of the Family Court of Australia

Second Respondent

JR

Third Respondent

Ex parte –

AM

Applicant/Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 12 AUGUST 2003, AT 11.05 AM

Copyright in the High Court of Australia

AM appeared in person.

MR C.D. BLEBY:   If your Honour pleases, I appear for the second defendant in this matter, on the second defendant’s application for a remitter of this action to the Federal Court.  (instructed by Crown Solicitor for the State of South Australia)

MR D.R. WILLIAMS:   May it please the Court, I appear for the first and the fourth defendant (instructed by Australian Government Solicitor)

Your Honour will note that a submitting appearance has been filed for the fourth defendant, and we ‑ ‑ ‑

HIS HONOUR:   Yes.  I have been informed by the Australian Government Solicitor, solicitors for the fourth defendant, that the fourth defendant will submit to any order of the Court save as to costs.

MR WILLIAMS:   That is correct, your Honour.  We similarly seek a remitter to the Federal Court.

MS E.M.T. TAIT:   May it please the Court, I appear for the third defendant.  (instructed by Graeme Hemsley, Solicitor)

I would seek leave to amend the spelling of our client’s name and we support the application ‑ ‑ ‑

HIS HONOUR:   Thank you.  The spelling of the third defendant’s name, in what respect is that wrong?

MS TAIT:   We put in an appearance, your Honour, in the spelling of Janene.  It should be Janere.

HIS HONOUR:   You have leave and an amendment should be made, accordingly.  Mr M, what is your attitude to this application in which all of the defendants join?

AM:   Your Honour, I have no concern, ultimately, about it being remitted to the Federal Court.  The only concern that I do have is whether the Federal Court is the correct court at this stage.  I have been unable to prepare or formulate a statement of claim as well as I would like to be able to.  I do not know if your Honour has read the affidavit filed very late by me.

HIS HONOUR:   Yes, I have read the material, Mr M.

AM:   Yes, that is basically it.

HIS HONOUR:   I do not know whether perhaps I have read this latest affidavit, though.  When was it filed, Mr M?

AM:   A matter of 15 minutes ago, I am sorry, your Honour. 

HIS HONOUR:   Have you supplied the other parties with a copy of it?

AM:   Yes, I have just now, your Honour.

HIS HONOUR:   Have you had an opportunity to look at the affidavit, Ms Tait and ‑ ‑ ‑

MR WILLIAMS:   We have just read them very quickly before your Honour came into Court.

HIS HONOUR:   May I just go ahead and read them?  Yes, I have read that.  Mr M, I just want to be clear about your position.  Do you oppose the remitter to the Federal Court?

AM:   Ultimately, no.  However, I would – I do not oppose the remitter, it is just the question of which court it is.  I agree with the respondents that it is very likely the Federal Court will be the correct court, however, I would first like the opportunity to reformulate the statement of claim, and as I ‑ ‑ ‑

HIS HONOUR:   There is no doubt, as presently constituted, the Federal Court has jurisdiction, Mr M.

AM:   Yes, your Honour, I can see that.

HIS HONOUR:   Then it would be a matter for the Federal Court, if I were to remit it, as to what leave you might get to replead, and if, for any reason, it became apparent that the Federal Court were deprived of jurisdiction, then no doubt the Federal Court would make an appropriate order in that regard.

AM:   Yes, your Honour.  May I inquire as to whether your Honour has read my – I am sorry, your Honour might be getting flooded with late‑filed paper work – but my outline of argument?

HIS HONOUR:   Yes.  I have not read your outline of argument, which I will do in a moment, but you seem also to be seeking a judgment by default, is that correct?  Do you press that?

AM:   That is correct, your Honour.  Not by default, on the ground of the submitting appearance being entered.

HIS HONOUR:   If I were going to remit the matter, I would not be prepared to enter judgment in your favour.  That would be a matter for the Federal Court, again.  Let me read your outline of argument.

AM:   Thank you, your Honour.

HIS HONOUR:   Yes, I have read your outline of argument, Mr M.

AM:   There is not much more I really want to add, other than that.

HIS HONOUR:   I cannot hear you, I am sorry.

AM:   I am sorry, your Honour.  There is no more that I wish to add, your Honour.

HIS HONOUR:   Mr M, I am very much disposed to remit the whole matter to the Federal Court.  As you are aware, this Court rarely now entertains trials.

AM:   Yes.  I was under no illusion that the matter would go to trial.

HIS HONOUR:   Yes.

AM:   I think the difference in the position between myself and the defendants is when it goes – whether I have a chance to replead.

HIS HONOUR:   That would be a matter for the Federal Court, but courts generally allow parties to replead if they wish to. Sometimes terms are imposed, but usually, as you would know, leave will be granted to replead. Mr M, do you wish to raise any section 75(v) point, however, under the Constitution, to seek any prerogative relief under the Constitution? It is not quite clear to me what your position is on that.

AM:   In relation to the fourth defendant in this action?

HIS HONOUR:   Yes.

AM:   Yes, I do, however, it is taking me longer.

HIS HONOUR:   But do your pleadings, as presently constituted, raise any such point?

AM:   In terms of excess of jurisdiction or denial of natural justice?

HIS HONOUR:   Yes.

AM:   If I could just have a moment?

HIS HONOUR:   Yes.

AM:   Yes, your Honour.

HIS HONOUR:   Where do I find that?

AM:   Paragraph 28.

HIS HONOUR:   Of your statement of claim?

AM:   Of the statement of claim, yes, your Honour, 29 ‑ ‑ ‑

HIS HONOUR:   Just let me find that.

AM:    ‑ ‑ ‑ 30 and 31.

HIS HONOUR:   Yes. What does section 70NF of the Family Law Act say?

AM:   I do not, unfortunately, have a copy of it with me.

HIS HONOUR:   You do not have it with you?

AM:   It is the power to determine an application for ‑ ‑ ‑

HIS HONOUR:   Is it the power conferred on judicial registrars, is it?

AM:   Yes, it is, and it is a power vested in the Family Court by that section of the Act.  The power is then delegated to the judicial registrars but not the registrars of the court.

HIS HONOUR:   Is there not a case in this Court which dealt with that matter?

AM:   Harris v Caladine and Harrington v Lowe, I think, are the two cases in this Court that ‑ ‑ ‑

HIS HONOUR:   They held, did they not, that the judicial registrar could exercise these sorts of powers?

AM:   Yes, if there has been delegation of the power by the judges.  In this case this is not a judicial registrar.  Registrar Kelly is not a judicial registrar.

HIS HONOUR:   I see.

AM:   There has been no delegation of that power to her under the Family Law Rules, that is, Order 36A.

HIS HONOUR:   Thank you.  I just want to raise something with the other parties.

AM:   Yes, your Honour.

HIS HONOUR:   Mr Bleby, what is your attitude in relation to the 75(v) aspect of the matter?  I raise that because I am wondering about the appropriateness, and, indeed, the power, of the Federal Court to make orders and consider issues of another court, a federal court.

MR BLEBY:   Yes, your Honour.

HIS HONOUR:   Perhaps you have not had an opportunity to consider this aspect of the matter, Mr Bleby.

MR BLEBY:   I have not considered that matter specifically, your Honour.  Just thinking about it now, I would have thought that if there is a question of a Federal Court’s jurisdiction on that specific part of the claim, then obviously this Court’s jurisdiction arises out of 75(v).  I cannot assist your Honour on the question of the specific power of the Federal Court.  Obviously, our application was brought for the sake of expedition, costs, and the like.  I do not know if my friend, Mr Williams, can help any further.

HIS HONOUR:   What is your attitude, Mr Williams?  Have you had an opportunity to consider this aspect of the matter?

MR WILLIAMS:   I am sorry, your Honour, I am a bit deaf, so I am not picking up all the conversation.

HIS HONOUR:   Mr Williams, the plaintiff seeks to raise section 75(v) constitutional writs issues in paragraphs 28 to 31 of his statement of claim, which is an attack upon the power, really, of a Commonwealth officer, a registrar.  But the registrar is a registrar of another federal court, the Family Court, and I am just a little concerned about remitting that issue to the Federal Court.  Have you given any thought to that aspect of the case?  If you have not, I would understand.

MR WILLIAMS:   Yes.  I have given no attention to that matter, your Honour.  I would just perhaps make the comment on my feet that given that it is a junior officer that is in question, it would seem appropriate to remit it to a Federal ‑ ‑ ‑

HIS HONOUR:   I do not know whether that is an answer, really, but perhaps you had better give some thought to it.  Ms Tait, have you given any consideration to that?

MS TAIT:   No, I have not.

HIS HONOUR:   All right.

AM:   Your Honour, could I add something?

HIS HONOUR:   Yes, Mr M.

AM:   There is a provision in the Family Law Act that provides that an exercise of power by a registrar is deemed for all purposes to be an exercise of power by the court or a judge, as the case requires.  So I am not too sure how – with the fact that she is a junior officer of the court.

HIS HONOUR:   Well, Mr M, I am a little bit inclined to adjourn the defendants’ application, so that they can give consideration to this aspect of the matter, and you may wish to give some further consideration to it, too.

AM:   Actually, that was – probably not very clearly – that is what I was seeking to raise in my first – at the very beginning of my ‑ ‑ ‑

HIS HONOUR:   There may be a real question here, I do not know.  I would be disposed to remit as much of the matter as I can to the Federal Court, but I do not like to do so without proper argument in relation to this aspect of the case.  Even if the Federal Court did have jurisdiction, there may be a question whether, in the exercise of a discretion, it would be appropriate to send to the Federal Court a matter which involved, effectively – or which would require, effectively – the supervision of the Federal Court over another federal court, the Family Court.

AM:   Yes, your Honour.

HIS HONOUR:   Is there an appeal from a registrar’s decision?

AM:   There is no power to appeal.  There is actually a review by hearing de novo of the registrar’s decision, but there is no power for the court to review an order made in excess of power, and that was dealt with in two cases.  It was dealt with by Justice Brennan at the end of his dissenting

judgment in Harris v Caladine, and it was also dealt with by the Full Court of the Family Court in In the marriage of Horne, which is from 1997.

HIS HONOUR:   What is the effect of those decisions, Mr M?

AM:   That an order made in excess of power by a registrar of the court is a nullity, and any review of it or any appeal from it would be incompetent.

HIS HONOUR:   Then you would have, however, a finding, would you not, by the Full Federal Court that the decision of its registrar was a nullity.  That would achieve your purpose, would it not?  Is that a possible result? 

AM:   Justice Brennan – it is in the last half of the paragraph of his Honour’s reasons for judgment, and his Honour says that there is no order to appeal from and no order to set aside.

HIS HONOUR:   Yes.

AM:   The appeal was incompetent, basically.  His Honour said that the matter remained undetermined, as if no one had ever touched it.

HIS HONOUR:   Was he the only Justice of the Court who dealt with that aspect of the matter?

AM:   His Honour, I think, along with Justice Toohey – it may have been his Honour Justice Dawson, but there were two of – it was a five judge majority.  I believe it was Justice Toohey – Justice Brennan and Justice Toohey held that the delegation was invalid.  The five majority Justices, therefore, did not need to cover the point.

HIS HONOUR:   Right.  Well, you are really relying upon a dissenting judgment.

AM:   On a different point, yes, your Honour.  It is not directly – it is not in conflict with the majority judgment.  But there is also the case of In the Marriage of Horne from 1997 – I do not know the full citation – that supports my submission.

HIS HONOUR:   Thank you, Mr M.  Well, Ms Tait and gentlemen, I think there may be a real question here which requires consideration.  I am minded to adjourn your application for a remitter and direct that the parties file and serve outlines of submission dealing with this point and any other point.  I think that it will have to be done, eventually, on video.

I think I should order the parties to file and serve detailed submissions, in writing, in support of the application for remitter, and, on your part, Mr M, in opposition of it, to the extent that you do oppose it.  You have a separate application for an order nisi, do you not?

AM:   Yes, your Honour, on ‑ ‑ ‑

HIS HONOUR:   But that raises the same points as paragraphs 28 to 31 of your statement of claim, does it not?

AM:   No, it does not, your Honour.  It raises two issues, in effect, the first one being one related to the matter reserved for judgment currently by this Court, Labrador Liquor, and the constitutionality of punishing someone or holding a trial where the standard of proof is the balance of probabilities and punishing someone upon satisfaction of the balance of probabilities.  A number of the Justices – I think your Honour was on the special leave panel, but not at the actual hearing of the appeal itself – a number of the Justices during the substantive hearing raised the question of whether or not someone could be imprisoned basically on the balance of probabilities, and the answer, in relation to the Customs legislation, was no.  In the Family Law Act, the answer is yes.  There is a period of imprisonment of up to 12 months upon satisfaction of the balance of probabilities.

HIS HONOUR:   Mr M, that is a different sort of constitutional point, though.

AM:   Yes, it is not related to ‑ ‑ ‑

HIS HONOUR:   It does not raise the same sort of problem as ‑ ‑ ‑

AM:   No.  That is – your Honour asked me if the two applications were related.  They are in terms of the facts, but not in terms of the issues.

HIS HONOUR:   All right.  The written submissions should deal with that application as well – your application for an order nisi.

AM:   Yes, your Honour.

HIS HONOUR:   Although do you object to its being remitted?

AM:   The application for the order nisi?

HIS HONOUR:   Yes.

AM:   The intended respondents – I do not believe they are respondents yet – are the judges of the Family Court.  Again, I think if there was a problem with remitting to the Federal Court a matter looking into a registrar of the Family Court, there would be even more so of a problem.

HIS HONOUR:   All right.  You want to do something further in relation to that, then, do you?  Here you said the “intended respondents”.

AM:   I do not believe there are any parties until an order nisi is granted, so they were – they are listed as the respondents on the draft order nisi.

HIS HONOUR:   Have they been served?

AM:   No, your Honour.

HIS HONOUR:   No.  All right.  Well, obviously, that should happen.  I think that the appropriate thing is, as I say, to order that the parties file and serve detailed submissions, within three weeks from today, in relation to all matters the subject of application for a remitter, and that would include the application for an order nisi.  After the submissions have been filed, I will then appoint a day for hearing of the application and it will be by video.

AM:   Yes, your Honour.

HIS HONOUR:   Is there anything further?

AM:   If I could just raise one slightly related point regarding the submitting appearance entered by the registrar?

HIS HONOUR:   Yes.

AM:   I certainly have no objection to Mr Williams’ appearing.  I am just not too sure what the basis for entering and submitting appearance is.

HIS HONOUR:   You will have time to consider that also, Mr M.

AM:   I can cover that in the written submissions, if your Honour wants me to.  If your Honour pleases.

HIS HONOUR:   Yes.  Is there anything further, then?

MR BLEBY:   No thank you, your Honour.

HIS HONOUR:   It is clear what I intend, is it not?  Detailed written submissions within three weeks and then the matter will be re‑listed for hearing, probably by video link.

MR BLEBY:   If your Honour pleases.

HIS HONOUR:   Thank you.  Do you wish me to certify for counsel?  I do certify for counsel’s appearance.

MR BLEBY:   If your Honour pleases.

HIS HONOUR:   Thank you.

AT 11.33 AM THE MATTER WAS ADJOURNED