Flanagan, Ex parte - Re Williamson & Anor

[2000] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2000

In the matter of –

An application for Writs of Certiorari and Mandamus against KEITH WILLIAMSON in his capacity as a Review Officer for the Child Support Review Office (also known as the Change of Assessment Team of the Child Support Agency)

First Respondent

CATHY ARGALL in her capacity as the Deputy Child Support Registrar of the Child Support Agency

Second Respondent

Ex parte –

JOHN EDWARD FLANAGAN

Prosecutor/Applicant

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 JUNE 2000, AT 11.10 AM

Copyright in the High Court of Australia

HIS HONOUR:   Are you Mr Flanagan?

MR J.E. FLANAGAN:   Yes, your Honour.

HIS HONOUR:   And you are the applicant in these proceedings?

MR FLANAGAN:   Yes, your Honour.

HIS HONOUR:   You are appearing for yourself today?

MR FLANAGAN:   I am, your Honour, yes.

HIS HONOUR:   You are not legally represented?

MR FLANAGAN:   No, I am not, your Honour.

HIS HONOUR:   Very well. 

MR S.B. LLOYD:   I appear for the first and second respondents, your Honour.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Flanagan.  If you would come to the middle there because it is better for the microphones.

MR FLANAGAN:   Okay, thank you.

HIS HONOUR:   Yes.

MR FLANAGAN:   So, your Honour, I am the applicant for the application for writs of certiorari and mandamus.  The applications were filed on 2 May of this year and there were two supporting affidavits; one filed on 28 April and one filed on 2 May.

HIS HONOUR:   Has your application for special leave been heard yet, or not?

MR FLANAGAN:   No, your Honour.

HIS HONOUR:   Would one not normally postpone the consideration of the constitutional relief until you have exhausted your rights to seek relief in the Full Court by way of appeal?

MR FLANAGAN:   Yes, I would have thought so, your Honour, but I was given this date so I came along today.

HIS HONOUR:   I see.  Perhaps I could ask Mr Lloyd:  what is your attitude to postponing this application until we know whether or not the applicant has special leave on the application for special leave which, presumably, will come before the Court quite shortly?

MR LLOYD:   Yes, Mr Flanagan and I spoke this morning and I suggested to him we would not object to an adjournment – to adjourn this proceeding to a date after the special leave application or on the same day’s application, if the Court preferred to do it that way.

HIS HONOUR:   It would be heard by a Bench differently constituted, you see. Normally, the application for special leave would be heard by three or two Justices whereas this kind of application is considered by a single Justice who is the duty judge for the list for the week in question. But, ordinarily, where there is a right to appeal which has not been exhausted, because the relief under the Constitution is at least in some cases considered as discretionary, the Court requires a party to exhaust the rights of appeal before they come seeking the constitutional writs.

So, it would seem to me that the sensible course would be to stand this matter over until you have either succeeded or failed in your application for special leave. If you succeed, you may not consider it necessary to proceed with the constitutional writs, although you may, and sometimes a constitutional writ is also issued and returned before a Full Court on the same day. Certainly, if you were granted special leave, that might give you a bit of a leg-up in getting the constitutional writ, given the issues that may then emerge. If, however, you are refused special leave, you still have the constitutional arguments in your knapsack and you can come back and seek the orders from the Court at that stage, and often the issues are different because they raise the Constitution. So, that would seem to be the appropriate course, Mr Flanagan.

MR FLANAGAN:   Yes, your Honour.  I have no problem with that, your Honour.

HIS HONOUR:   You have just turned up today because the matter was listed today.

MR FLANAGAN:   Yes, your Honour.

HIS HONOUR:   And I suppose that is the same with you, Mr Lloyd.

MR LLOYD:   Yes, your Honour.

HIS HONOUR:   It might have been better if the question of timing of the return had been raised with the parties to save any inconvenience.  But I am inclined to simply stand the matter over to a date after the special leave is heard.  Do you have any idea when that date will be?  Have you been informed?

MR FLANAGAN:   No, your Honour.  I filed the applications on 28 April.  At this stage I have not had the response back from the Australian Government Solicitor yet as to my application and of summary of argument yet, so it is a matter - - -

HIS HONOUR:   I have that in my file.  In fact, I have the respondent’s summary of argument as well.

MR LLOYD:   I think that was the other party.

HIS HONOUR:   Yes.  I wonder if we could ask the Deputy Registrar to come into Court and she might be able to give me some idea as to when – there may even have been a date fixed for it.  Have you heard, Mr Lloyd?

MR LLOYD:   I am instructed that the October date is likely to be the date.  Perhaps I should observe that there was one issue which I was going to raise with the Court which is that this particular application, in my submission, should include the mother of the child as a third respondent.  She should be given an opportunity to come along because she may well be prejudiced by what happens in relation to any child support arrangements.  So, she should be a party.

HIS HONOUR:   Yes.  That would seem a fair point.

MR FLANAGAN:   I asked it of the Registrar when I filed the application and she said I was not able to have the other party as a respondent.  I am more than happy to have her as a respondent.  I tried to - - -

HIS HONOUR:   It may be that you should at least serve the other party with the papers.

MR FLANAGAN:   I have done that, your Honour.

HIS HONOUR:   And then she can perhaps seek leave to intervene if she wants to.  I think that would be the correct course, would it not, Mr Lloyd?

MR LLOYD:   Well, I - - -

HIS HONOUR:   Because, is he seeking any relief against the respondent of a constitutional kind?  His relief is being sought against an officer of the Commonwealth and therefore that is the party that he names in the constitutional process.  So, I think what the Deputy Registrar told him was

right but the course should be adopted, and I gather has been adopted, of serving the papers on the mother and then she can make application because of her interest in the matter, perhaps on her own behalf and – are there any children?

MR FLANAGAN:   Yes, your Honour.

HIS HONOUR:   Two children, I see.  Well, she might make application on her own behalf and on behalf of the children to be heard as a party.  So, I think that is something which lays a little bit further down the track.  The Deputy Registrar has now arrived, and I am just asking whether we have a date for the hearing of the special leave application in the case of Flanagan v Handcock.

THE DEPUTY REGISTRAR:  Your Honour…..list would be Friday, 13 October.

HIS HONOUR:   Friday, 13 October.  Would that be a date suitable to you, Mr Flanagan?

MR FLANAGAN:   Yes, your Honour, it would be.

HIS HONOUR:   Mr Lloyd, is that - - -

MR LLOYD:   We have no problem with that, your Honour.

HIS HONOUR:   Yes.  Of course, we do not know what Ms Handcock’s position is but I assume that she would want to get it on, on the earliest possible date, and have the Court deal with it one way or the other as quickly as it can.

MR FLANAGAN:   Yes.  Well, I cannot speak for her, obviously.

HIS HONOUR:   No.  But I think 13 October looks to be the correct date, subject to any special arguments that are put to the Registry by the respondent, Ms Handcock, and then one could list this application shortly after that on a date to be fixed by the Registrar after consulting with the parties.  As you have been inconvenienced by coming here today, I think that might be the appropriate course to adopt.  Do you have any objection to that course?

MR FLANAGAN:   No, your Honour.

HIS HONOUR:   Do you, Mr Lloyd?

MR LLOYD:   No, your Honour.  Perhaps I should just, in all fairness, draw to the Court’s attention, in a similar matter called Tydeman v The Child Support Agency, the Full Federal Court suggested, in a 39B action, that the spouse should be made a party.  I accept what your Honour said before, and from the point of view of the first and second respondents, we have no problem, so long as she is notified and she has an opportunity to attend, it is a matter for her. 

HIS HONOUR:   Yes.  Was that the Full Court of the Family Court or the Full Court of the Federal Court?

MR LLOYD:   This is the Full Court of the Federal Court.

HIS HONOUR:   I am not familiar with that decision.

MR FLANAGAN:   I have some copies.

HIS HONOUR:   Thank you very much, Mr Flanagan.

MR LLOYD:   It is the very last sentence of the decision.

HIS HONOUR:   There may be something under the Rules of this Court which are slightly different, they being a little bit more antique than the rules of the other courts.

MR LLOYD:   It is certainly true:  when I looked at the Rules this morning, I could not find anything which would require her to be a party under the Rules of this Court.

HIS HONOUR:   Normally, if you are seeking relief only against the officers of the Commonwealth, as section 75(v) of the Constitution contemplates, you would not necessarily add parties as parties who are not officers of the Commonwealth but notifying them so that they can make an application to intervene and be heard would be a different matter and I think the point you raise, at least in this Court and without the benefit of full argument, would suggest that Ms Handcock be notified, and Mr Flanagan tells me, and I accept, that he has already notified her. She is not here today.

MR LLOYD:   On that basis, the first and second respondents have no difficulty with the matter proceeding as your Honour has suggested.

HIS HONOUR:   Yes.  Is the issue that is raised by the application for the constitutional writs and certiorari inextricably linked with the application for special leave or do they raise two entirely different questions?

MR FLANAGAN:   They are linked, your Honour.  If I could just refer you to two items in the affidavit that is before you on 2 May at paragraphs 21 through to 23, in particular, paragraph 22:

It is also submitted to the High Court that the application for the granting of writs of mandamus and certiorari are considered as an adjunct to applications for special leave to appeal numbers S40 of 2000 and S43 of 2000.

And I have made a similar statement in the affidavit filed in relation to S40 of 2000.  So, that just confirms what your Honour has said.

HIS HONOUR:   Just bear with me for a moment.  There could be a reason why, for convenience, the application should be returned before the Full Court which is going to hear the application for special leave.  That Court, as then constituted might decide that it is more appropriate that it take its ordinary course and be heard by a single Justice but if it decides that it is convenient to it to deal with the application to return the writ before the Full Court constituted, as it would be in a constitutional matter, by all Justices, then it can do that there and then and the parties are not then inconvenienced by a second hearing. 

It would be entirely up to the Full Court to decide whether or not to take that course, but I think that that is a preferable course to my embarking on the proceedings today and dealing with issues that appear to be, in some way, related to the application for special leave to appeal and it would be fully in the mind of the Full Court that is dealing, and the members of the Full Court that are dealing with the application for special leave to appeal, which is to be returned in October.  So that I would have in mind returning this matter on that day but it may be that either before that day or on that day, the Full Court will direct that the application for the writ of certiorari and mandamus be made in the ordinary course to a single Justice.  That would be up to the Full Court as then constituted.  Do you have any objection to my taking that course, Mr Flanagan?

MR FLANAGAN:   No, your Honour.

HIS HONOUR:   Mr Lloyd?

MR LLOYD:   No, your Honour.

HIS HONOUR:   What is the date in October that the matter will be returned?

THE DEPUTY REGISTRAR:   Friday, 13th October.

HIS HONOUR:   Before me is an application for the issue of an order nisi for the constitutional writ of mandamus and for a writ of certiorari in support of that process.  The matters raised in the application are intimately connected with other proceedings which are before the Court, although between different parties.  In those proceedings an application for special leave to appeal has been made from a judgment of the Full Court of the Family Court of Australia given on 11 June 1998.  That application concerns the applicant, Mr Flanagan, and his former de facto spouse, Ms Narelle Handcock. 

I am informed by the Deputy Registrar that such application for special leave will be heard before a Full Court of this Court on Friday, 13 October 2000.  It is more convenient and just that the application for constitutional and associated relief be decided either at the time of the determination of the applicant's application for special leave to appeal or after that determination and in the light of its outcome.  In case it should appear to the Full Court, on the return of the application for special leave to appeal, to be convenient to have before it for decision the application for constitutional and associated relief, I will return that latter application before the Full Court on 13 October 2000.  Neither party before me today objects to that course.  Both parties support it and request it.  It seems a sensible way of organising the litigation affecting the parties.  It does not appear appropriate for me to embark today upon considering the application for constitutional and associated relief in advance of the determination of the regular process of appeal which the applicant has available to him and which he seeks special leave to exercise.

It was suggested that the applicant's former de facto wife, Ms Handcock, should have been joined as a party to the application for constitutional and associated relief.  Reference was made to a decision of the Full Court of the Federal Court in Tydeman v Child Support Registrar (1999) FLC 98-011. Because the relief is, as section 75(v) of the Constitution contemplates, directed to an officer of the Commonwealth, it is not entirely clear to me that that course would be appropriate in this Court. I have not heard full argument on the point. Obviously, it is appropriate that the respondent to the special leave application should be on notice of the application for constitutional and associated relief. She might then seek leave to intervene in the constitutional proceedings. Mr Flanagan has informed me, and I accept, that he has served the papers for the constitutional process on Ms Handcock and that she is aware of such proceedings. Although the matter has been called today, she has not appeared in the Court. She has not indicated a wish to be heard in the application before me. I will ensure that the Registrar notifies her of the adjourned date of the proceedings and of the course which I intend to adopt. As she is then advised, she can decide whether or not she wishes to make such an application in the events that ensue on 13 October 2000.

I make it clear, as I did during argument, that the application for constitutional relief would not in the ordinary course be heard by the special leave bench. It is returned before the Court, as then constituted, so that it can make such orders as then appear appropriate to it for the future management of that application. It may be necessary to notify any interested Law Officers of the orders that are made today concerning the proceedings that invoke the Constitution. However, I make no directions in that regard.

The orders which I therefore make are:

1.Stand over the proceedings before the Court today to be listed before the Full Court on 13 October 2000 to await the orders of that Court disposing of the future conduct of such proceedings;

2.Costs of the application today to be costs in the summons for constitutional and associated relief; and

3.Certify to the appearance of counsel in chambers.

I will direct the Registrar to notify Ms Handcock or her solicitors of the orders which I have just made.

Thank you both, gentlemen.  The Court will now adjourn.

AT 11.35 AM THE MATTER WAS CONCLUDED