Jacups; Ex parte - Re Kay & Ors

[2003] HCATrans 256

[2003] HCATrans 256

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S98 of 2003

In the matter of -

An application for Writs of Prohibition against HIS HONOUR JOSEPH V. KAY J, JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA

First Respondent

HIS HONOUR IAN R. COLEMAN J, JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA

Second Respondent

HIS HONOUR PAUL MARSHALL GUEST J, ACTING JUDGE OF THE APPEAL DIVISION, FAMILY COURT OF AUSTRALIA

Third Respondent

HIS HONOUR STEPHEN R. O’RYAN J, JUDGE OF THE FAMILY COURT OF AUSTRALIA

Fourth Respondent

HIS HONOUR ALWYNNE R.O. ROWLANDS J, JUDGE OF THE FAMILY COURT OF AUSTRALIA

Fifth Respondent

REGISTRAR JOAN CAIN, REGISTRAR OF THE FAMILY COURT OF AUSTRALIA

Sixth Respondent

ANNETTE MARY TESORIERO

Seventh Respondent

PAUL ANDREW DOOLAN, JOHN ANDREW BARKUS AND FRANCES MARY EDWARDS CARRYING ON BUSINESS AS BARKUS EDWARDS DOOLAN

Eighth Respondents

Ex parte –

GRAHAM DUDLEY JACUPS

Applicant/Prosecutor

GLEESON CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 31 JULY 2003, AT 2.18 PM

Copyright in the High Court of Australia

MR D. KNAGGS:   May it please your Honour, I am the solicitor for the applicant.  (instructed by Douglas Knaggs)

MR M.P. KEARNEY:   May it please the Court, I appear on behalf of the seventh and eighth respondents.  (instructed by Barkus Edwards Doolan)

MS C.A. FIERRAVANTI-WELLS:   If the Court pleases, I appear for the first to the sixth respondents.  We have put in a submitting appearance, but my instructions are to attend in the proceedings this afternoon.  (instructed by Australian Government Solicitor)

HIS HONOUR:   All right, thank you.  Yes, Mr Knaggs.

MR KNAGGS:   Thank you, your Honour.  Your Honour sees that the application by Mr Jacups contends that the Family Court of Australia has exceeded jurisdiction.

HIS HONOUR:   Now, I had better get the application.  The grounds of these proceedings are expressed in an amended draft order nisi, is that correct?

MR KNAGGS:   That is correct, your Honour.

HIS HONOUR:   Just let me put my hands on that, Mr Knaggs.  That is a document that appears to have been filed on 4 July.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   It is supported by an affidavit of Graham Dudley Jacups sworn 7 July.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Do you read that affidavit?

MR KNAGGS:   I do, your Honour.

HIS HONOUR:   Any objection to that?

MR KEARNEY:   No, there is not, your Honour.

HIS HONOUR:   I have read that affidavit.  Now, there is also an affidavit you have, is there not?

MR KEARNEY:   There is, your Honour, yes, an affidavit of Ms Natascha Rohr.

HIS HONOUR:   An affidavit of Natassha Rohr.  That is dated 29 July 2003.

MR KEARNEY:   That is correct, your Honour, yes.

HIS HONOUR:   Any objection to that?

MR KNAGGS:   No, your Honour.

HIS HONOUR:   I have read that affidavit.

MR KEARNEY:   Thank you, your Honour.

HIS HONOUR:   Is there any other evidence?

MR KEARNEY:   There is not for our part, your Honour.

MR KNAGGS:   Your Honour, for the part of the applicant there is a document issued by the Local Court where these family law proceedings began as a child custody, probably in those days, matter, showing a stay of proceedings.  If I may just quickly show that to my friend, I think I will be tendering that.

HIS HONOUR:   Are you tendering something?

MR KNAGGS:   Your Honour, I tender a two-page document which relates to the Downing Centre Local Court referring to a stay of proceedings in that court and it is dated 21 February 2002.

HIS HONOUR:   Is there any objection to that?

MR KEARNEY:   Your Honour, not if my friend tells me he is going to make it relevant in some way.  But, on the face of it, I am unable to see the relevance of it, but I will accede to my friend if ‑ ‑ ‑

HIS HONOUR:   What is the relevance, Mr Knaggs?

MR KNAGGS:   Your Honour, the relevance is that it will be part of Mr Jacups argument that a matter that is in the Local Court and stayed in the Local Court should not be the subject of a Family Court order providing for enforcement of that judgment and that such an order of the Family Court, which I will show has been made or purportedly made, is an excess of jurisdiction since not even the Family Court should enforce orders of a Local Court.

HIS HONOUR:   You mean it goes to paragraph 5.3 of the amended draft order nisi?

MR KNAGGS:   Succinctly, yes, your Honour.

HIS HONOUR:   It goes to paragraph 5.3?

MR KNAGGS:   Yes, it goes to paragraph 5.3, in my submission.

MR KEARNEY:   I thank my friend for that, your Honour.

HIS HONOUR:   All right, that will be Exhibit A. 

EXHIBT A:           Two-page document relating to the Downing Centre
  Local Court

HIS HONOUR:   Now, I just want to ask you some questions about this draft order nisi, Mr Knaggs.  In subparagraphs 1.1, 1.2 and 1.3, you seek orders for certiorari, is that right?

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   In paragraph 1.1 you seek the quashing of two certificates of taxation.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Were they both dated or issued on 14 August 1998?  I am looking at paragraph 1.1 of your draft order nisi.

MR KNAGGS:   Yes, I see, your Honour.  That is right, your Honour, 14 August 1998.

HIS HONOUR:   Thank you.  Then in paragraph 1.2, you want to have quashed all orders for the enforcement of costs.  Could you be a little more specific?  What orders is that a reference to?

MR KNAGGS:   Your Honour, that is a reference to the orders for enforcement that are all made in the Family Court.

HIS HONOUR:   What are the dates of the orders and by whom were they made?

MR KNAGGS:   Yes, your Honour.  The orders were made, first of all, by Justice Moore of the Family Court.  I will tell your Honour the date of that order, 9 September 1997.

HIS HONOUR:   Yes.

MR KNAGGS:   It was following the decision of Justice Moore that the two certificates of taxation of the Family Court issued.

HIS HONOUR:   So the first order is an order dated 9 September 1997.  What is the second order?

MR KNAGGS:   The second order is that of Justice O’Ryan of the Family Court on 19 November 2001.

HIS HONOUR:   Are there any other orders the subject of paragraph 1.2?

MR KNAGGS:   Yes, your Honour, the orders of the Full Court of the Family Court of Australia on 24 July 2002. 

HIS HONOUR:   Yes, any others?

MR KNAGGS:   The orders of Justice Rowlands of 4 March 2003 and 13 March 2003. 

HIS HONOUR:   Yes.

MR KNAGGS:   The whole of those orders that I have referred to it is sought to quash, but, in addition, there are orders of Justice Steele, where the cost element of those orders only is sought to be quashed.

HIS HONOUR:   You will have gathered that the reason I am asking you these questions is that your initiating process does not identify the orders you seek quashed.

MR KNAGGS:   It does not, no, your Honour.

HIS HONOUR:   I am sitting here trying to extract from you information that should have been in the draft orders nisi.  Now, what other order or orders is the subject of paragraph 1.2?

MR KNAGGS:   Yes, your Honour.  Justice Steele is 24 August 2001 and Justice Le Poer Trench, 21 November 2001.

HIS HONOUR:   So they are the orders the subject of paragraph 1.2? 

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Now, paragraph 1.3 refers to orders of 24 July 2002, is that correct?

MR KNAGGS:   Yes, the Full Court orders are 24 July 2002, your Honour.

HIS HONOUR:   Right.  So that taking paragraphs 1.1, 1.2 and 1.3 together, am I right in saying that the orders that you want quashed were respectively dated 14 August 1998, 9 September 1997, 19 November 2001, 24 July 2002, 4 March 2003, 13 March 2003, 24 August 2001, 21 November 2000 and 24 July 2002?

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   Have you read the provisions of rule 17 of Order 55 of the Rules of this Court?

MR KNAGGS:   Yes, I have, your Honour.

HIS HONOUR:   What do you say about that?

MR KNAGGS:   Your Honour, with reference to the six‑months time limitation for filing a certiorari application, the applicant would ask that the Court – and I would ask to amend the draft order nisi to this effect – grant an extension of the six‑month period for filing such an application.

HIS HONOUR:   That has not been mentioned so far.  What is the evidence in support of that application?  What is the explanation for the delay?

MR KNAGGS:   The explanation for the delay is that it had not occurred to the applicant father, the applicant before your Honour, to seek the extension of time because he had not at that stage given any attention to certiorari application in your Court.

HIS HONOUR:   Where is the evidence of that?

MR KNAGGS:   Would your Honour allow me to call Mr Jacups?

HIS HONOUR:   No.  If you want to file an affidavit from your client or any other affidavit dealing with the matter of the extension of time, that may be one thing.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   You have here brought an application seeking orders of certiorari quashing nine orders of judges of the Family Court, where the Rules of this Court say the application had to be made within six months of the date of the orders and in all but two of those orders the application is brought years later.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   What is going on?

MR KNAGGS:   Your Honour, we do not seek extension of time for the ones that go back beyond the decision of the Family Full Court which your Honour referred to on 24 July 2002.  The application before your Honour was originally filed on 18 March 2003 prior to being amended on 4 July and there would, therefore, be a delay in the order of two months in bringing certiorari with respect to that Full Court order.

HIS HONOUR:   Plainly you need an extension of time in relation to most of the orders of certiorari that you seek.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   There is no formal application for an extension of time filed and not a word of evidence in support of any such application and, in particular, not a word of evidence attempting to explain or justify the delay.

MR KNAGGS:   Yes, your Honour, I apologise for that and I do make application that an extension of time be allowed to be sought in respect of that.

HIS HONOUR:   But unless and until you put on some evidence in relation to the delay, your application is bound to fail, is it not?

MR KNAGGS:   On the ground of certiorari, your Honour.

HIS HONOUR:   Let us come to your prohibition grounds.  Paragraph 1.4, what are the other enforcement proceedings referred to in paragraph 1.4?

MR KNAGGS:   The enforcement proceedings are the proceedings that led to all of the orders that your Honour has been told are orders against which certiorari is sought.

HIS HONOUR:   This draft order nisi, apart from anything else, is seriously defective in form, Mr Knaggs, because it does not identify or even attempt to identify, except by general expressions like “other enforcement proceedings” or “the orders” or “all orders”, the actual orders in respect of which you seek constitutional writs.  In the case of prohibition, one would have thought that issues of time are going to arise.  Prohibition is a discretionary remedy.  Delay may be a reason for not granting prohibition.  The availability of alternative remedies may be relevant.  There is not a word of evidence that explains why you are seeking prohibition in respect of orders that were made years ago.

MR KNAGGS:   Yes, your Honour.  Your Honour, I am aware of the reasons from my client which are reasons of ignorance, but I naturally should have put the evidence on to that effect and I formally ask your Honour if you would allow some time to correct the defects in that regard.

HIS HONOUR:   Are you asking for an adjournment?

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   What have you got to say about that, Mr Kearney?

MR KEARNEY:   That is opposed, your Honour, on behalf of the seventh and eighth respondents.

HIS HONOUR:   These questions about the form of the order nisi and problems relating to time, I presume, are issues that you were intending to raise.

MR KEARNEY:   They were, your Honour, yes.

HIS HONOUR:   Just let me ask Mr Knaggs some further questions in relation to the nature of these proceedings.  Am I right in thinking that all the orders in respect of which you seek constitutional writs are orders that were or could have been the subject of appeal?

MR KNAGGS:   Your Honour, no because the Family Full Court in its decision of 24 July 2002 dealt with the foundation of the application before your Honour, the root foundation of the matter before your Honour, being the two certificates of taxation and on appeal to the Full Court from orders of Justice Steele and Justice O’Ryan said that they dismissed the appeal in as much as the appeal sought to set aside those certificates of taxation.  The subsequent orders this year related to simply facultative orders that were sought by the respondent to issue writs of possession and in other ways enforce the orders that had been made by Justice Rowlands, Justice O’Ryan and Justice Steele prior to the Full Court appeal of 24 July 2002. 

So that an appeal against, for example, the issue of a writ of possession, which is part of the orders I have cited to your Honour, would be doomed to fail because we would need to get the Full Court to again consider whether or not to set aside the certificates of taxation.  If they survive, then we could not raise any objection to enforcement orders.

HIS HONOUR:   Mr Knaggs, one thing is clear to me and that is that what this litigation is in need of is some finality, and I am going to see that it gets that.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:    Now, the present condition of the draft order nisi and the evidence in relation to it is hopelessly defective.  The draft order nisi does not identify with any attempt at precision the orders sought to be quashed or the proceedings in respect of which prohibition is sought.  The grounds referred to in the draft order nisi are plainly inadequate.  For example, 5.3 simply asserts that the Family Court had no power to make any of its orders, whatever those particular orders might be.  There are plainly major questions of delay and other discretionary issues, quite apart from whatever merits there may or may not be in the proceedings, that are not addressed by the evidence.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   I am prepared to grant the adjournment that you are applying for purely because the conduct of this litigation to date makes it apparent that unless some decisive finality is reached, those on your side of the record will continue to pursue every available avenue, even if years out of time.  One of the difficulties, of course, is plainly you will have to pay the costs of the adjournment.  Do you wish to put an argument about that?

MR KNAGGS:   No, your Honour.

HIS HONOUR:   But we are here because making orders for costs against your client does not seem to be a very fruitful form of activity.  What can you say by way of giving some assurance that any order for costs made against you if the application for adjournment is granted will in fact be paid?  To put it more bluntly, what is the use of making an order for costs against your client?

MR KNAGGS:   Your Honour, the subject property at Blackheath – when I say “the subject property”, it is the sole asset that is now the focus of the

enforcement proceedings – is mortgaged up to 65 per cent of its value, there is $68,000 in my trust account and there is a property on the sale of which, if that is the ultimate outcome – and that, of course, is the order that was made in the Family Court by Justice O’Ryan – if that were all to go to completion, there would be something in the order of $150,000 worth of availability for costs.  But I can assure your Honour that the matter will be properly attended to by the date of the adjournment hearing.

HIS HONOUR:   I have a more specific problem in mind, Mr Knaggs, and it is in relation to the costs of today’s proceedings.  The condition in which the evidence presently stands makes it highly likely that if you did not get an adjournment today, the proceedings would fail on about half a dozen grounds for reasons related to the inadequacy of the evidence.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   It is perfectly clear that if that happened, the next thing would be an appeal by your client or some other application for constitutional relief.  But while you accept that your client would have to bear the costs of the adjournment that you seek and need, I want to know what kind of condition I can impose that will ensure that the costs thrown away by today’s adjournment are going to be paid by your client.  What is your proposal in that regard?

MR KNAGGS:   Would your Honour excuse me a moment?

HIS HONOUR:   Yes.

MR KNAGGS:   Your Honour, with respect, the alternatives are that any such costs come out of the amount held in my trust account for that purpose of general costs or, alternatively, that orders of this Court for costs of today are secured by the Blackheath property, or both.  I am instructed to say that we would submit to those orders without argument.

HIS HONOUR:   Is your application for an adjournment today accompanied by an acknowledgment that the costs thrown away by the adjournment will have to be paid by your client and that the amount standing to your client’s credit in your trust account will be applied to the extent necessary in payment of those costs and not otherwise?

MR KNAGGS:   Yes, your Honour, that undertaking will be given.

HIS HONOUR:   What do you say, Mr Kearney, about that?

MR KEARNEY:   Your Honour, given the concession and given your Honour’s indications, I cannot really take the question of adjournment

much further.  It is opposed, but I hear what has fallen from your Honour and do not cavil with it – I am sorry, your Honour.

HIS HONOUR:   Sometimes, Mr Kearney, the longer way round is the shortest way home.

MR KEARNEY:   Your Honour, as I say, I am not going to cavil with that.

HIS HONOUR:   How are you placed, Mr Kearney, at 2.15 on Wednesday, 20 August?

MR KEARNEY:   I hate to bargain with your Honour, but if there is any chance of the 27th, being Wednesday, 27 August ‑ ‑ ‑

HIS HONOUR:   All right.

MR KEARNEY:   Unfortunately, I am in another matter on the 20th at Parramatta.

HIS HONOUR:   There is another matter that I want to raise with you and Mr Knaggs.  I am minded, subject to anything that either of you would have to say, to direct both of you to file written submissions in relation to the matter within specified times during the period of the adjournment.

MR KEARNEY:   I am content with that, your Honour.

HIS HONOUR:   Have you got anything to say about that, Mr Knaggs?

MR KNAGGS:   No, your Honour.

HIS HONOUR:   On the application of the applicant, I will adjourn this matter until 2.15 pm on Wednesday, 27 August.  The applicant must pay the costs of the seventh and eighth respondents thrown away by this adjournment and I note that the applicant’s solicitor undertakes to the Court that, to the extent necessary to satisfy any such costs, the amount presently standing to the credit of his trust account in favour of the applicant will be applied in payment of those costs and not otherwise.

I direct that the solicitor for the applicant on or before 4.00 pm on 8 August 2003 file a written outline of the applicant’s submissions in support of the application and that the seventh and eighth respondents’ answer to those submissions be filed on or before 4.00 pm on Tuesday, 19 August and that any reply on behalf of the applicant be filed on or before 4.00 pm on 22 August.

Mr Knaggs and Mr Kearney, could I indicate in relation to those written submissions that one thing I will expect from both parties is clarification of the precise orders or proceedings in respect of which certiorari or prohibition is sought.  I would expect the submissions, as well as any evidence to be filed, to address questions of delay and any other questions that might go to discretionary considerations affecting the applications.

In relation to the complaint that I understand is made about the form of certain process in the Family Court and, in particular, about the fact that the eighth respondents have in certain orders or other documents been identified as persons entitled to recover costs, I would like the submissions to address the provisions of the Family Law Act and the Family Court Rules dealing with the making of orders for costs and proceedings for recovery of costs and enforcement orders in that court.  I personally have no idea of the practice in the Family Court in relation to the form of costs orders or implementation of costs orders.  So you will both need to inform me about that matter.

MR KNAGGS:   Your Honour, would it be in order if a draft amended nisi to summarise the changes I will be seeking in the submissions is annexed to the submissions?

HIS HONOUR:   Yes.

MR KNAGGS:   Your Honour, the only other thing was – to update your Honour on where this all stands, at the moment the property has not been listed for sale.  I wanted to ask your Honour if you would consider granting a stay since this will all become ‑ ‑ ‑

HIS HONOUR:   Absolutely not.  I find it difficult to think of any litigation that has a lesser claim to urgency than this matter, Mr Knaggs, having regard to the time elements in the proceedings and to the fact that you are here seeking orders of certiorari to quash orders that were made in some cases years ago.

MR KNAGGS:   Yes, your Honour.  I should say I admit that probably because of the far from clear orders sought in the draft order, we were not in fact going to ask your Honour to grant certiorari beyond 24 July last year, for orders beyond that date.

HIS HONOUR:   Once again, if I may say so, Mr Knaggs, the complete absence of any evidence dealing with questions of delay itself would make it impossible, I would have thought, to persuade this Court to intervene on the basis of any urgency at this stage.

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   You cannot just arrive at Court in relation to litigation that has been going on for years and years without a word of explanation in an affidavit of the delay and say, “This has all suddenly become urgent, I want the Court to intervene.” 

MR KNAGGS:   Yes, your Honour.

HIS HONOUR:   We will adjourn until 2.15 pm on Wednesday, 27 August.

AT 2.58 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 27 AUGUST 2003