In the matter of an application for a writ of certiorari against Justice Margaret Ann Renaud & Anor; Ex parte White

[1988] HCATrans 128

IN THE HIGH COURT OF AUSTRALIA

Registry	No C7 of 1988
In the matter of -

An application for a writ of

certiorari against JUSTICE

MARGARET ANN RENAUD, a Justice

of the Family Court of Australia

First Respondent

NARELLE MARGARET RADFORD

Second Respondent

Ex parte -

ALLAN PRESTON WHITE

Applicant

BRENNAN J

(In Chambers)

White

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 21 JUNE 1988, AT 10.17 AM

Copyright in the High Court of Australia

C3Tl/l/RB 1 21/6/88

MR R.W. BLOWES: If Your Honour pleases, I appear for the

prosecutor applicant. (instructed by Crowley &

Chamberlain)

Your Honour, this is an application for an order

nisi for writs of prohibition and certiorari. The

original draft order that was filed did not seek

prohibition but I have this morning handed to the

Registrar a revised order which also seeks prohibition

and I seek to file in Court -

HIS HONOUR:	What is your material, Mr Blowes?
MR BLOWES:	The material, Your Honour, is an affidavit of

Mr Glenn Raymond O'Sheades, sworn 17 June 1988 and a

draft order - Your Honour will probably have two

copies.

HIS HONOUR:  I have been given, I think, only the last of those.

MR BLOWES: It is the last of those, Your Honour.

HIS HONOUR:  Why is this not a matter for an appeal to the

Family Court?

MR BLOWES:  Your Honour, in my respectful submission the

application is an appropriate application for the

exercise of the supervisory jurisdiction of the High

Court.

HIS HONOUR:  Could you answer my question first, why is it not

an appropriate matter for an appeal to the Full Court

of the Family Court?

MR BLOWES:  Because, Your Honour, the substance of an appeal to

the Family Court would be the judgment itself of the

Tl	Justice. What is sought to be reviewed here is not so
much the judgment itself but the fact that the judgment was made. The fact that it was made at a time before
the husband had made submissions and had expectations
of making submissions.

HIS HONOUR:  Why would you not attack the judgment on the basis

that it was made without those submissions being

entertained?

MR BLOWES:  That would obviously be a ground for appeal.

Your Honour, the decision was also made - I would

concede, of course, that if an appeal had to be brought,

then that would be a matter to be raised and would no

doubt be raised but, Your Honour, I simply repeat the

submission that in relation to the appeal, the decision

itself, namely the decision in relation to the amount of

money that was awarded, would be the primary object and,

in my submission, th1::: .1.eal nuu 0;: Ll1l::, Cc1.::>E:: :i.::; not that

decision itself but the circustances and the time in

which the decision was made.

C3T2/l/RB	21/6/88
White
HIS HONOUR:	Mr Blowes, if the question that you wish to agitate

on this application can be a ground of appeal to the

Full Court of the Family Court, why should this Court

grant you an order nisi when you have not exhausted

your rights before the Full Court of the Family Court?

MR BLOWES:  Your Honour, I apprehend Your Honour's references

to various judgments of this Court in which similar

comments have been made, the case of TWIGG and in a

more recent case of BAKER V JOHNSTON and others.

Your Honour, section 94(1) of the FAMILY COURT ACT

provides for appeals and an amendment in subsection (lAA)

of 1984 specifically refers to an appeal lying to the

Full Court of the Family Court where a judge has

rejected an application that he or she disqualify

herself. Your Honour, that is one of the bases upon

which this application is made, it is not the only

basis. The other basis is that the application that the

justice disqualify herself was made at a time after the
justice had announced that she would be making a

decision. What is significant to be attacked in this

application is the fact that she decided to hand down

the judgment at a time when, firstly, the husband was

seeking to make an application to reopen his case and,
secondly, prior to a stage where he had made his

submissions.

HIS HONOUR:  Do you say that is no ground for attacking the

judgment that was then handed down?

MR BLOWES: Well, Your Honour, my submission is that this is an

attack on the behaviour and on the manner of making

a decision of the justice - - -

HIS HONOUR:  Yes, I appreciate that, but obviously the purpose

of it is to get rid of the order that was made, is it

not?

MR BLOWES:  Yes, Your Honour, but without getting tangled up in

the decision itself and the review of the decision

which was made, other than in effect the preliminary

decision to make a decision at the time and in the

circumstances that I have alluded to.

HIS HONOUR:  Mr Blowes, unless you can convince me that an appeal

to the Full Court of the Family Court is not an

appropriate procedure for the granting of the relief

which you seek, I am afraid you have got a task in

front of you.

(Continued on page 4)

C3T2/2/RB	3	21/6/88
White

MR Bl.GJES:  Well, Your Honour, the decision that is sought to be

attacked is that decision prior to the delivered judgment

of the Justice.

HIS HONOUR: Well then, take it through, Mr Blowes. Let us

assume that that decision is set aside. What flows from

that?

MR BLOWES:  Your Honour, then what flows from that is that

the later decision must fall as well.

HIS HONOUR:  In other words, you get the later decision set

aside.

MR BLOWES:  If the attack is made on the first decision.

HIS HONOUR:  Yes. If you could not get the second decision

set aside, the first decision would be irrelevant to

your purposes, would it not?

MR BLOWES: It may be, Your Honour.

HIS HONOUR:	Not "may be", would be.
MR BLOWES:	Your Honour, it is the hurdle of setting aside that

later decision which is what the applicant seeks to avoid in

favour of the more efficient disposal of the process.

HIS HONOUR:	How is it more efficient?
MR BLOWES:	Your Honour, because it does not get involved in the

decision, the last decision itself, but attacks the fact -

goes straight to the point where the decision was made.

HIS HONOUR:  Is this what you are saying, Mr Blowes: that if you

go to the Full Court of the Family Court you will get

mixed up with arguments about how much, whereas, all you

want to do is to attack the fact that the order was made

without the proper procedures having been followed?

MR BLOWES:  No, Your Honour, I do not suggest that the applicant

is not prepared to face the question of the amounts at

an appropriate time but he wishes to have that question

litigated in a timely and orderly manner when he has the

opportunity to bring the further evidence - make the

application to reopen this case, bring the further

evidence and make his submissions.

HIS HONOUR:  Well, I have indicated to you the difficulties I

find with your application, Mr Blowes. You continue and

make it in whatever order you see fit.

MR BLOWES:  Your Honour, I presume Your Honour has read the

material, the affidavit?

HIS HONOUR:  Yes, I have read the affidavit and I have glanced

at the judgment to see what the orders were that were

made. I have not otherwise digested the judgment.

C3T3/l/PLC	4	21/6/88
White

MR BLOWES:  Your Honour, as Your Honour will have observed the

judgment really deals only with the question of the

amount and it is for that reason that the earlier

aspect of the decision is sought to be attacked.

Your Honour, in my submission, this is a

most unusual circumstance in which the decision was

made. As Your Honour will see from the affidavit, the

matter was adjourned after a hearing for the purpose of

final submissions being made and then upon the

application, in effect, of both parties, the matter was -
both parties received notice from the registrar that the

matter would be relisted for mention. The application of

the wife was that it - I am not sure what she was seeking
to pursue at that time but certainly the application

that was sought to be furthered at that time on behalf

of the husband was the application to reopen the case.

And, Your Honour, merely three or four days before

the appearances-before the time which the registrar had indicated the matter would be listed, the Justice, in a

phone call from her secretary, indicated to the parties

that she intended to hand down her decision. And then
notwithstanding the various communications that followed

and are set out in the affidavit she proceeded to

deliver her decision.

Your Honour, in my respectful submission, that

is behaviour which ought to be supervised by this Court.

It is, in my submission, clearly what is within the

usual and intended concepts of prerogative writs.

And, Your Honour, I suppose, in answer to Your Honour's

indications, the response which I would give would

really be a reference to the unusual circumstances and

facts in which the decision was handed down, and beyond

that I do not think I can assist Your Honour much more

but I would simply rely on those facts as bringing it

within - - -

T3 HIS HONOUR: Well, let us take it step by step, Mr Blowes. The

proposition generally is that an order nisi for a

prerogative writ is not made by this Court if there are

other appropriate procedures to be followed which have

not been followed in the court appealled from.

MR BLOWES:	I appreciate that, Your Honour.
HIS HONOUR:	The next step is are there appropriate procedures

in the Family Court which could be taken in relief of

the situation of your client? Now, as I understand it,

we cannot give an affirmative answer to the proposition

that there are none.	In other words, the appeal is open,
is it not?

MR BLOWES:  It is certainly not the usual_

circ1..,..nstances for brir;.0 ing an appeal, I kn01:,. th;:c,.t:

does not -

HIS HONOUR: That may be so but that is not the question, is it?

C3T4/l/PLC	5	21/6/88
White

MR BLOWES:	I appreciate that is not the question.
HIS HONOUR:	The question is whether or not the appeal to the

Full Court of the Family Court can give your client

the remedy which you seek. Now, have you examined any

authorities? Have you any submission to make that the

remedy of appeal to the Full Court of the Family Court

is not appropriate to give your clien~ the remedy which

you seek? If not, why not?

MR BLOWES:  Would Your Honour pardon me? Your Honour, I really

do not think I can take it beyond the submissions I have

already made.

HIS HONOUR:  Very well, Mr Blowes. If you wish I will adjourn

this matter to a date to be fixed in order that you may

pursue whatever course you may be advised in relation to

appeal to the Full Court of the Family Court.

MR BLOWES: If Your Honour pleases.

HIS HONOUR:  But otherwise I would dismiss the application.

Do you wish me to adjourn it or do you wish me to dismiss

it?

MR BLOWES:  Your Honour, I would seek that Your Honour adjourn it

under the Rules rather than dismiss it.

HIS HONOUR:  Very well, I will adjourn the application to a

date to be fixed, to be brought on on seven days' notice

to the Registrar.

MR BLOWES: If Your Honour pleases.

AT 10.34 AM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

C3T4/2/PLC	6	21/6/88
White