Finlayson, Ex parte- Re Finlayson

[1997] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A11 of 1997

In the matter of -

An application for Writs of prohibition and certiorari against THE HONOURABLE JUDGE ERIC RAINSFORD BAKER, a Judge of the Appeal Division, Family Court of Australia, THE HONOURABLE JUDGE JOSEPH VICTOR KAY, a Judge of the Appeal Division, Family Court of Australia, and THE HONOURABLE JUDGE DOREEN BULBECK, a Judge of the General Division, Family Court of Australia

First Respondents

CLARE ELIZABETH FINLAYSON

Second Respondent

Ex parte -

GREGORY JAMES FINLAYSON

Prosecutor/Applicant

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 3 SEPTEMBER 1997, AT 10.00 AM

Copyright in the High Court of Australia

_______________________

MR D. AGRESTA:   I appear for the applicant.  (instructed by G. Mancini)

HIS HONOUR:   Mr Agresta, before you take me to any of the matters relating to this application, the Principal Registrar has just received a letter from Mrs Finlayson’s solicitors.  I will make a copy available to you.  Would you let Mr Agresta have that, please.  Take a moment to read it.

MR AGRESTA:   Thank you, your Honour.

HIS HONOUR:   I am not asking you to respond to the letter immediately, Mr Agresta.  Much of it seems to be related to the application for special leave to appeal although reference is made to the seeking of prerogative writs against the Court.  But perhaps the first matter that I should ask you to clarify is what exactly it is that I am dealing with today.  I have three files.  One is an application for special leave in the matter A12 of 1997.  Now, clearly, I am not dealing with that application.

MR AGRESTA:   No, your Honour.

HIS HONOUR:   There is a matter A8 of 1997 which is in the form of an application for writs of prohibition.

MR AGRESTA:   No, it is not that matter either, your Honour.

HIS HONOUR:    Am I concerned with that?

MR AGRESTA:   No, your Honour.

HIS HONOUR:   I am not, all right.  Well, that brings us to matter No A11 of 1997 and that is the matter that I am asked to deal with this morning, is it?

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   Yes, all right.  Well then, as appears from the letter from Lesley Hastwell & Associates, Mrs Finlayson is not appearing on today’s application.

MR AGRESTA:   Perhaps I could explain the reason for those three files being before your Honour.  Firstly, in relation to A8 of 1997, that was an application lodged by my client before the Full Court had handed down judgment and the intention was to preserve his rights in relation to some of the matters which will be raised today.  What happened, as I am instructed, is that the applicant was not given a date in sufficient time so that the judgment of the court was handed down.  One of the effects of that judgment was that the Full Court ordered that a decree nisi which previously existed be made absolute instanter and the effect of that - my client was under the impression that that being the case, there was no right of appeal to this Court pursuant to the Family Law Act. 

That also explains the special leave application.  So after the date of judgment which was 31 January of this year the current application, which is A11, was filed seeking writs of certiorari as well as prohibition.

HIS HONOUR:   All right, I follow that.  There are - - -

MR AGRESTA:   In relation to the other matters, your Honour - - -

HIS HONOUR:   Well, could I just - I am sorry, did you want to complete your reference to the other matters?

MR AGRESTA:   No, perhaps your Honour should go first.

HIS HONOUR:   I want to clarify a couple of things with you, Mr Agresta. One is the section 78B notices, on the footing that presumably that there is pending in the Court a matter arising under the Constitution. Now, there are papers here which indicate that the notice was given to the various Attorneys. Are you familiar with that situation?

MR AGRESTA:   I am not aware of any of that, your Honour.  Indeed, one of the grounds of our application today is that the Full Court proceeded to make orders and deliver judgment without section 78B of the Judiciary Act having been complied with.  In our submission, that renders that judgment beyond jurisdiction.

HIS HONOUR:   Yes, but my point is that there is also, in relation to today’s application, a collection of notices sent out by your client to the various Attorneys.

MR AGRESTA:   If that is the case, your Honour, I am not aware of it.  Perhaps if I could just speak with my client who is in Court and perhaps clarify that.

HIS HONOUR:   I am putting this to you because of the possible implications for the hearing of today’s application.  If you would like to take instructions from your client, by all means do so.

MR AGRESTA:   Yes, thank you, your Honour. I am instructed that the 78B notices were sent out by my client to the various Attorneys for the Commonwealth and the States in relation to today’s matter. They were received, and notification has been received from the Attorney‑General for the Australian Capital Territory and the Attorney-General for South Australia that they will not be intervening. But in any case, your Honour, it is my submission that section 78B notices are not necessary for the purposes of today’s application since no issues involving the Constitution or its interpretation arise.

HIS HONOUR:   That may or may not be.  We will come to that in a moment.  The papers in the Court indicate that there was a response from the Crown Solicitor’s Office in New South Wales also indicating an intention not to intervene.  Now, Mr Agresta, I will not take more time on this aspect of it, at least until I have seen what the issues are involved.  There may be a point as to whether there is a cause pending so far as this application is concerned but what I would like you to do is to file an affidavit or have your client file an affidavit addressing these questions, the sending out of the notice and the response.  Could you do that within 48 hours?

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   All right, let us come to the substance of the application.

MR AGRESTA:   Does your Honour have before you the draft order and affidavit filed by the applicant on 25 February 1997?

HIS HONOUR:   I certainly have the draft order.  I have the affidavit but it has a number of exhibits attached to it.

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   Are you taking me to a particular exhibit?

MR AGRESTA:   If I could take you first to the draft order.  I will be seeking leave to make certain amendments in terms of deletion of certain of the grounds on which the order is sought.

HIS HONOUR:   You mean you are seeking now to amend, are you?

MR AGRESTA:   Seeking leave to do so, yes, your Honour.

HIS HONOUR:   Yes, in what respect.

MR AGRESTA:   If your Honour turns to page 2, paragraphs 4 and 5, in relation to the first order, be deleted.  That is the top third of the page.

HIS HONOUR:   You mean, the top of page 2?  Is that what you are speaking of?

MR AGRESTA:   Yes, your Honour, the sentencing beginning: 

The First respondents have exceeded their jurisdiction by purporting to make an order for costs without reference to - - -

HIS HONOUR:   All right, you wish to delete those paragraphs, 4 and 5?

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   You can proceed on the footing that those grounds have been deleted.

MR AGRESTA:   And further down the page, your Honour, in relation to the second order, grounds 1 and 2 also be deleted.

HIS HONOUR:   That would then have the effect of removing from the scope of this application any argument that there was an excess of jurisdiction in making the decree nisi absolute.

MR AGRESTA:   No, your Honour, grounds 3 and 4 deal with that, the last two paragraphs on that page.

HIS HONOUR:   I am not sure that ground 4 does but I can see that ground 3 might.  In any event, there is no problem in the deletion of grounds 1 and 2.  You can proceed on that footing also.  On what basis is the Court being asked this morning to grant prerogative relief, Mr Agresta?  Perhaps I should point out to you that there are various responses the Court can make to the application.  One, of course, would be to refuse it.  The other would be to grant it, in which case it would then, in accordance with the rules, find its way to the Full Court.  The third possibility, I suppose, is that without making an order nisi or refusing the application, the matter could be referred directly to the Full Court.  I just ask you to bear those possibilities in mind when you are speaking.  Essentially, what you need to do is persuade me that there is an arguable case here which would justify the granting of some relief.

MR AGRESTA:   Yes, your Honour.  Just before I proceed, could I also draw your Honour’s attention to page 3 of that draft order and delete all of 3.

TOOHEY J:   Yes.  For what purpose are you taking me to page 3?

MR AGRESTA:   For the purpose of deleting all of paragraph 3, the third order.

HIS HONOUR:   I see.

MR AGRESTA:   So, the remaining numbers, 4, 5 and 6 should then become 3,4 and 5.

HIS HONOUR:   So, it is ground 1 of paragraph 3, is it?

MR AGRESTA:   Essentially all of paragraph 3.  There is only one ground.

HIS HONOUR:   Well then, that would mean that the application for a writ of prohibition goes, does it?

MR AGRESTA:   In relation to those grounds, but it remains on foot in relation to the other grounds, your Honour.

HIS HONOUR:   Yes, I see.

MR AGRESTA:   I apologise for this, your Honour.  The reason for these amendments is that my client was only until yesterday afternoon unrepresented and since that time, as a result of discussions, it was effectively agreed to streamline the application in terms that I have just ‑ ‑ ‑

HIS HONOUR:   Proceed accordingly, Mr Agresta.

MR AGRESTA:   Your Honour, the basis of our application is that essentially two arguments, we submit, render the judgment of the Full Court in excess of their jurisdiction.  The first, as I intimated earlier, is based on the failure to comply with the provisions of section 78B of the Judiciary Act.  There were no notices issued at the time of the hearing before the Full Court to any of the Attorneys.  The second basis on which we seek these remedies is that the Full Court ordered, again as I intimated earlier, that the decree nisi become a decree absolute instanter as at the date of the judgment and, in my submission, the effect of that was to, effectively, eliminate the applicant’s right of appeal against the judgment of the court.

HIS HONOUR:   I do not want to interrupt the flow of your argument but you will take each of those in turn, will you?

MR AGRESTA:   Yes, I will expand them out in due course.  If I could first turn to section 78B.  It is my submission, your Honour, that the provisions of 78B, being mandatory, imposes upon the Court a duty to not proceed with any matter where the provisions of that section have not been complied with.  If I could draw your Honour’s attention to 78B(1), and I quote:

Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty -

and I stress that -

of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

In my submission, your Honour, the effect of the imposition of a duty upon all courts, effectively, to not proceed with a matter essentially renders the provisions of section 78B mandatory such that any orders made other than compliance with section 78B are beyond power and effectively in excess of jurisdiction.

HIS HONOUR:   Is there any authority in support of that proposition?

MR AGRESTA:   Not to my knowledge, your Honour.  I will again point out that I have only yesterday been briefed and I have not had an opportunity to search for authorities.  One of the reasons which, in my submission, render compliance with 78B essential is that it may well be the case in any given case that the Attorneys would wish to intervene in support of an applicant although often they intervene against.  It is my submission that it may well have been the case in this case that the Attorneys may have intervened in support of the applicant before the Full Court.

HIS HONOUR:   What you have not done is identify the matter arising under the Constitution or involving its interpretation that was before the Family Court.

MR AGRESTA:   That is covered in the affidavit.  If I could draw your Honour’s attention to exhibit GJF1 to the affidavit of the applicant, that is the notice of appeal to the Full Court, on the third page of that notice, your Honour, there are additional grounds appended which raise the constitutional matters which the applicant sought to argue before the Full Court.  There is also - - -

HIS HONOUR:   There might be as a matter of language but I think you have to go further than that.

MR AGRESTA:   The basis of the arguments were essentially separation of powers.  I am not quite sure whether the merits of the constitutional points are raised on this application but, in any case, it was my client’s argument before the Full Court that certain functions performed by the non‑judicial officers of the Family Court, as well as some judges, was such that it was contrary to the rule in Boilermakers Case and section 71 of the Constitution.

HIS HONOUR:   It is all very well to say that, Mr Agresta, but can you be more specific.  I mean, what powers are said to be judicial and non‑judicial and what is said to be the effect of that upon the judges of the Family Court?

MR AGRESTA:   The argument that was presented was essentially that the non‑judicial functions performed by the non‑judicial officers was such that they had an effect on the perception of the court in the eye of the public, essentially along Kable lines.

HIS HONOUR:   I am sorry, I do not understand that.  Every court has judges who perform judicial functions and persons who are not judges who perform non‑judicial functions.

MR AGRESTA:   With respect, that was the attitude of the Full Court, and on that basis they dismissed the appeal in relation to the constitutional matters.  For the purposes of today’s application, it is my submission that section 78B, having not been complied with, effectively the issue was not open for the Full Court to be determined.

HIS HONOUR:   I understand that argument.  Whether it is good or not is another matter.  It is not just enough, as it were, to assert in some broad way that there is a constitutional question.  At the moment, I cannot understand what the constitutional question is.  I could understand it if perhaps it was being said that the judges of the Family Court exercised non‑judicial and judicial functions but that is not your point.  Your point is that judges exercise judicial functions and officers of the court exercise non‑judicial functions.

MR AGRESTA:   There was some argument, feintly put, your Honour, that the role of some of the judges in the Family Law Advisory Council, I think it is - the effect of that petition being to advise the government on issues of family law and policy was also such that it effectively breached the incompatibility.....in Grollo.

HIS HONOUR:   I have to say I do not understand that either.  Most courts produce annual reports in which various matters are raised and courts participate, in some cases, in discussions as to the administration and what changes might be made to improve the administration of the court.  I do not see how this raises constitutional issues.

MR AGRESTA:   Would your Honour just excuse me a moment?

HIS HONOUR:   Yes.

MR AGRESTA:   Perhaps the highest I could put it is essentially as it was put in the summary of argument which was put before the Full Court.

HIS HONOUR:   Now, which document is that?

MR AGRESTA:   That is exhibit GJF2 to the affidavit.

HIS HONOUR:   Yes, I have that.

MR AGRESTA:   It might be of further assistance for your Honour to read the transcript of proceedings.

HIS HONOUR:   I do not know that I would particularly want to do that, Mr Agresta.  If you take me to a specific page or passage, yes, I will look at it, but I do not want to just sit here and read the transcript of proceedings without knowing the purpose for which I am doing it.

MR AGRESTA:   I just committed that to your Honour in that it demonstrates how the matters were raised before the Full Court.

HIS HONOUR:   But does it demonstrate that the point that was being raised is any different to the one that you have just put to me, namely, that within the Family Court there are judicial functions performed by judicial persons and non‑judicial functions performed by non‑judicial persons?

MR AGRESTA:   Effectively not.  I am instructed that another matter raised was the role of the Chief Justice in divorce proceedings and apart from those that I have - - -

HIS HONOUR:   But the Chief Justice was not a member of the court that dealt with your client’s appeal, was he?

MR AGRESTA:   Not in this proceedings.  It is more an argument in relation to the role of the Chief Justice generally in the context of the Family Law Act.

HIS HONOUR:   It is drawing a pretty long bow, Mr Agresta.

MR AGRESTA:   In any case, they were the - - -

HIS HONOUR:   How did the Full Court itself dispose of this argument?  I have the reasons here which I have glanced at but I cannot say I read in any detail because it was not entirely clear what course the argument was going to take.

MR AGRESTA:   Your Honour, the Full Court effectively said that, as your Honour has just intimated, there is nothing new about non‑judicial functions being performed by courts and that courts, essentially, would not be able to operate without them being able to perform those functions.

HIS HONOUR:   If you go to the foot of page 13 and over on to page 14 of the Full Court’s reasons for judgment you see the way in which the matter was apparently raised and certainly dealt with by the Full Court.  It says at the foot of page 13:

The husband.....raised the novel contention that the mixture of judicial and non-judicial functions in the Family Court of Australia rendered the Court incapable of exercising the judicial power of the Commonwealth. 

I am paraphrasing to some extent.  Then the court went on:

The husband’s grounds of appeal.....have no merit.

There is set out the composition of the Family Court and that seems to be about it.

MR AGRESTA:   The highest I can put it, your Honour, is essentially to restate the arguments that that is the basis of the constitutional objection that I am instructed was put.

HIS HONOUR:   I am not inviting you to go on with that particular matter. If that is the extent of the argument, then I understand what you are putting to me.

MR AGRESTA:   Essentially, your Honour.

HIS HONOUR:   Then there is the second ground, is there, or the second basis of the application, namely, the exercise of power by the Full Court of the Family Court in making the decree nisi absolute.  Are you saying that that is not within the power of the court or - - -?

MR AGRESTA:   No, your Honour.  The order was that the decree become absolute instanter as at the date of the judgment.  My submission is that the effect of that was that it eliminated the applicant’s right of appeal.

HIS HONOUR:   We will come to that in a moment.  As a matter of power, did the Family Court have that power?

MR AGRESTA:   It had power to expand or reduce the time - - -

HIS HONOUR:   Now, where do I find that power?

MR AGRESTA:   That is section 55 of the Family Law Act, your Honour. Specifically section 55(2):

Where a decree nisi has been made in any proceedings, the court of first instance (whether or not it made the decree), or a court in which an appeal has been instituted, may, either before or after it has disposed of the proceedings or appeal, and whether or not a previous order has been made under this sub-section -

(a) having regard to the possibility of an appeal or further appeal, make an order extending the period at the expiration of which the decree nisi will become absolute; or

(b) if it is satisfied that there are special circumstances that justify its so doing, make an order reducing the period at the expiration of which the decree nisi will become absolute.

It is my submission that the court, in this case, did neither of those two things.  By making the order absolute instanter the court was not reducing time at the expiration of which the decree would become absolute.  It was essentially eliminating that time and, in my submission, there is no jurisdiction to eliminate that time where the effect of that would be to eliminate an applicant’s right of appeal.  In my submission, that is contemplated by the section itself, 55(2), which contemplates further appeals.

HIS HONOUR:   In the ordinary course, the decree nisi becomes absolute at the expiration of one month, does it not?

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   Now, when the matter was before the Full Court what was the time frame?  The decree nisi had been made?  I sorry, I put that as a question rather than a statement.

MR AGRESTA:   If your Honour will just bear with me.  The decree nisi had been made on 29 November 1995.  However, in the interim the applicant had applied for a rescission of that order before her Honour Justice Murray of the Family Court and it is from the dismissal of that application for rescission that the matter was before the Full Court.

HIS HONOUR:   Does the application have the effect of stopping the period of one month running?

MR AGRESTA:   I think it is subject to orders of the court, effectively, your Honour. Section 55(3) provides that:

Where an appeal is instituted.....before a decree nisi has become absolute.....subject to any -

orders, 55(3)(a) and (b) apply so that, essentially, one month still operates but, again, subject to the order.

HIS HONOUR:   It looks as if 55(3) operates in such a way that once an appeal is lodged then the month starts to run from the determination of the appeal, is that right?

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   So, in this particular case, that held the period of one month in suspense until the appeal was disposed of.

MR AGRESTA:   Yes, your Honour, and, again, that is subject to any other order that the court was minded to make.

HIS HONOUR:   Of course.  All right, well your argument is that 55(2) does not empower the court to make an order, as it were, on the spot that the decree nisi become absolute forthwith.

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   Now, what effect does that have on the right of appeal, do you say, or on any right of appeal?

MR AGRESTA:   It essentially eliminates it, because if your Honour turns to section 93 of the Act, that provides:

An appeal does not lie from a decree of dissolution of marriage after the decree has become absolute.

So, effectively, the effect of it was to eliminate the right of appeal.

HIS HONOUR:   Yes.  If the court had made an order, say, reducing the period to one day, you would not argue that there would be no reduction, presumably.

MR AGRESTA:   No, your Honour, that would give the - - -

HIS HONOUR:   So long as there is a time, I take you to be saying, which permits an application for special leave to appeal, is that the point?

MR AGRESTA:   Provided it is reasonable.  In my submission, there would have to be an implied reasonableness in relation to that time.  For example, even to allow the documents to be prepared.

HIS HONOUR:   I understand that argument.  I am not sure that you really formulate it as a jurisdictional argument.

MR AGRESTA:   In my submission, if section 55(2)(a) and (b) do not empower the court to eliminate time, and the extent of that power is that it allows it to reduce time subject always to an implied reasonable time within which to appeal, then any order which is either such that there is no reasonable time remaining within which to appeal or no time at all, for example, in this case, where the order is made instanter, there is no power within that section to make such an order. In that way, it is my submission that it is beyond jurisdiction.

HIS HONOUR:   You are sort of running “jurisdiction” and “power” together.  I mean, they are different things.  The court clearly has jurisdiction in the matter because it is seized of the cause before it.  Whether it has power to make the order that is complained of is another question and whether that can be said to be going to jurisdiction or not is perhaps another question again.

Tell me, what did the Full Court say its reason was for making the order that it made that the decree nisi become absolute instanter?

MR AGRESTA:   From what I can understand, the only basis on which it was made was that - - -

HIS HONOUR:   Is there anything in the papers that reveals this?

MR AGRESTA:   If I can draw your Honour’s attention to page 19 of the reasons for judgment which is exhibit GJF3, although on the back sheet I would point out to your Honour that it is marked GJF4.

HIS HONOUR:   No, I have it.  Yes.

MR AGRESTA:   On page 19, your Honour, the court notes that it had been almost two years since the decree nisi had been made.  For that reason alone it held that in its:

opinion the decree should become absolute instanter.

HIS HONOUR:   But you really cannot divorce that, can you, Mr Agresta, from the way in which the matter came before the court which was essentially to do with, as I understand it from the papers, alleged apprehension of bias in relation to the primary judge.

MR AGRESTA:   There was an application made that her Honour Justice Murray should disqualify herself on the grounds of bias - apprehended bias - as well as an appeal against her Honour’s refusal to rescind the decree nisi.

HIS HONOUR:   But once the court took the view that - and I take it this is the way the Full Court approached the matter - there was no basis upon which the decree nisi could be rescinded, and that was because either through evidence or admissions made, the grounds for the making of the order nisi had been demonstrated and in the ordinary course the decree nisi would have become absolute a long time before the matter reached the Full Court of the Family Court.

MR AGRESTA:   Yes, your Honour, subject always, in my submission, to
rights of appeal.

HIS HONOUR:   Put that to one side for just a moment.  It does not strike me as particularly curious that the Full Court should then say there being no basis upon which the decree nisi should be rescinded, there is no reason why the operation of the Act should not take its ordinary course.  So that brings you, I suppose, to your point that whatever order the court made it should have allowed your client sufficient time to seek special leave to appeal.

MR AGRESTA:   Yes, your Honour.

HIS HONOUR:   What, even if there were no grounds, no arguable grounds?

MR AGRESTA:   I think an appellant in the Full Court has a right, by virtue of the right of appeal, to have the question of whether there are grounds or whether those grounds have merit determined by the appellate tribunal. The Full Court may well have thought there was no merit in the application for rescission of the decree nisi but Full Courts, with respect, may be wrong and hence the necessity for rights of appeal and hence the necessity that when section 55(2) be used, it be used in such a way as to preserve those rights.

HIS HONOUR:   Yes, I understand the argument.  That is really it, is it?

MR AGRESTA:   That is essentially the point, your Honour.

HIS HONOUR:   Is there anything you want to add to the arguments that you have addressed to the Court thus far?

MR AGRESTA:   If I could perhaps seek some instructions in relation to that.

HIS HONOUR:   Yes, by all means.

MR AGRESTA:   But subject to that, that is all I have.

HIS HONOUR:   Yes.  Well, get instructions if you feel you need them.

MR AGRESTA:   Those are my submissions, your Honour.

HIS HONOUR:   Yes.  Thank you, Mr Agresta.  I appreciate that you have been brought into the matter at pretty short notice.  I propose to reserve my decision.  I would like to see the affidavit filed that I spoke of earlier and also now, having been seized of the arguments by the applicant, it is necessary, I think, for me to look at some of the papers rather more closely.  So, it is sufficient for me to say at this stage that the Court will consider its decision in this matter.

AT 10.42 AM THE MATTER WAS ADJOURNED