FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHALID & KHALID (Intervener Application) | [2016] FCCA 2531 |
| Catchwords: PRACTICE & PROCEDURE – Application by Wife’s solicitor to amend reasons – issues of and distinction between jurisdiction and power of Court to make such amendments not addressed in Applicant Solicitor’s submissions – no consideration in written submissions of the court being functus officio – the Applicant expressly rejected reliance upon the “slip rule” to amend or to correct the Court’s reasons – discretionary considerations to make (or not make) the amendment to reasons sought – reliance upon s.121 Family Law Act to ground jurisdiction and power to amend – question of relevance and applicability of s.121 to a solicitor for a party as opposed to a party to the proceedings – failure of submissions to consider relevant “exceptions” to non-publication under s.121(9)(e) – failure of submissions to address the issue of “standing” and the capacity to intervene in proceedings that were finalised before this Court. |
| Legislation: Family Law Act 1975, (Cth) ss.92, 121, 121(9)(e) Federal Circuit Court of Australia Act1999, (Cth) s.15 |
| Cases cited: A Bank v Coleiro (2011) 252 FLR 359 Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300 In the Marriage of Griffiths; re Lane (1980) 7 Fam LR 317 Australian Family Law, (R. Chisholm & editors) (Sydney: LexisNexis 1987) Vol.1 |
| Applicant: | MS KHALID |
Respondent: Intervener: | MR KHALID Wife’s Solicitor |
| File Number: | CAC 128 of 2014 |
| Judgment of: | Judge Neville |
| Hearing date: | 8 March 2016 |
| Date of Last Submission: | 17 May 2016 |
| Delivered at: | Canberra |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Haughton |
| Solicitors for the Applicant: | Infinity Legal |
| Counsel for the Respondent: | Self represented | |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mr D Ridge | |
| Solicitors for the Independent Children's Lawyer: Counsel for the Intervener: Solicitors for the Intervener: | Barker & Barker Mr R Lethbridge SC Infinity Legal | |
ORDERS
The Application in a Case, filed 27th October 2015, be dismissed.
There be no Order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Khalid & Khalid (Intervener Application) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 128 of 2014
| MS KHALID |
Applicant
And
| MR KHALID |
Respondent
REASONS FOR JUDGMENT
Introduction
This aspect of a very long-running parenting and property matter, which is now before the Family Court of Australia after multiple hearings in this Court, concerns a very discrete, if not unusual, Application by the Mother’s solicitor (hereafter simply referred to as “the Solicitor/Intervener” or “Solicitor”) to correct an error (as she avers) in the written reasons which, she contends, reflects poorly or adversely on her firm. Sometimes - it is unclear - it appears that she contends she apprehends some personal reputational risk, as opposed to reputational risk to her firm. She contends, or seems to do so, that if this purported error remains uncorrected, the Mother’s law firm will suffer some form of reputational damage. There is no evidence before the Court of any actual damage suffered either by the Solicitor or by the law firm of which she is principal.
For the reasons that follow, respectfully, I disagree with and reject both the premise and the general and specific bases of the Application.
More relevantly, for the reasons that follow, the Application is mis-conceived, both in relation to the Court’s jurisdiction to make the Order as sought, the exercise of the Court’s power to make the Orders sought, and also in relation to the jurisprudential bases upon which the Order was sought. Accordingly, it must be dismissed. Because no other party (or interest – other than the Court itself) is affected by the Application, there can be no Order as to costs. Indeed, no party to the proceeding, or the Independent Children’s Lawyer, participated in this aspect of the proceedings.
I note in particular that no change or amendment to any Order or finding made by the Court is sought. The Application only seeks a revision (or removal or redaction) of a comment, made in the course of an exchange during the hearing, which was later recorded in a footnote in the principal judgment.
It is of some relevance if not importance that the principal [parenting] judgment was delivered on 15th June 2015. The matter was then transferred to the Family Court of Australia on 8th September 2015, but the current Application was specifically requested to be listed before me. The Solicitor’s Application in a Case was filed on 27th October 2015. The written submissions on behalf of the Solicitor were filed on 26th April 2016. They exceeded by more than double the length of submissions which the Court, by formal direction, determined. Only after the Court’s query about the length of the submissions, by email dated 28th April 2016, the Solicitor sought the Court’s indulgence to allow and have regard to the longer than permitted submissions on the basis that “the law surrounding this particular issue is exceptionally complicated and Senior Counsel could not accurately condense the law into four pages.”
As already noted, although formally offered the opportunity, no party from the substantive matter, or the Independent Children’s Lawyer, has participated in this separate Application.
The Application before the Court does not seek to change or to correct any finding or Order, notably in circumstances where the Court ruled essentially in favour of the Intervener/Solicitor’s client.
The only [statutory] basis relied upon for the Application is s.121 of the Family Law Act 1975 (“the Act”). The submissions do not address any of the following matters: (a) the standing of the Solicitor to bring the Application; (b) the jurisdiction of the Court to entertain the Application and/or the power of the Court to grant the relief; and (c) whether the Court is functus officio following the publication of the reasons and making of Orders on 15th June 2015. There is passing reference in the submissions regarding the applicability of the “slip rule.”
Summarily stated, the following matters stand in the way of the success of the Application by the Solicitor:
(a)Upon delivering the reasons and making the Orders it did on 15th June 2015, the Court was functus officio;[1]
(b)The power of a Court to correct or amend applies only to formal Orders and or to “findings” by the Court, usually by application of the “slip rule” to an error arising from an accidental slip or omission;[2]
(c)No clerical or accidental “slip” or omission has been identified;
(d)A court cannot re-open a perfected Order; such is a limit on the powers of a Court, such as this Court, which is created by statute;[3]
(e)In Autodesk Inc v Dyason (No.2), the High Court held that a Court has jurisdiction to recall a final judgment before it is formally entered, such jurisdiction is however to be exercised sparingly; that is not the case here;[4]
(f)The terms of s.121 have not been properly considered (or considered at all) because (i) that section is relevantly concerned with the publication of details that would identify “parties” (and or children) to the proceedings, and (ii) there are specific exceptions to the non-publication prohibition, notably s.121(9)(e), which refers to “the publishing of any publication bona fide intended primarily for use by the members of any profession, being (i) a separate volume or part of a series of law reports; or (ii) any other publication of a technical character”;[5]
(g)The principal judgment has been “published”, bona fide, only by the internet legal publishing enterprise known as Australian Legal Information Institute which is a joint publication of the Law Faculties of the University of Technology (Sydney) and the University of New South Wales. Accordingly, the exception to publication provided by s.121(9)(e), in my view, has clearly been established;
(h)The submissions of the Intervener do not address relevant authority in relation to whether the Intervener has the requisite standing to bring the Application. And, on the High Court authority of Vitzdamm-Jones v Vitzdamm Jones, and early Family Court authority, in any event there can be no intervention in completed proceedings;[7]
(i)Finally, the Solicitor’s submissions do not address any discretionary considerations, usually found in the case law (e.g. delay, carelessness), other than those that apply to the Solicitor.
[1] Among other cases, see the Full Court decisions in Vance & Vance (2011) FLC ¶93-461; Sangara v Hamwood (2009) 39 Fam LR 237.
[2] Burrell v The Queen (2008) 238 CLR 218 at [13] – [28]. See Federal Circuit Court Rules 2001, r.16.05.
[3] NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions [2016] HCA 33 (31 August 2016); DJL v Central Authority (2000) 201 CLR 226; Vadisanis & Vadisanis (2015) FLC ¶93-671.
[4] Autodesk Inc v Dyason (No.2) (1993) 176 CLR 300. See also the comments in Smith v New South Wales Bar Association (1992) 176 CLR 256.
[5] The scope of s.121 was the subject of significant discussion by the Full Court in Re W: Publication Application (1997) FLC ¶92-726, particularly in the joint judgment of Fogarty and Baker JJ, at 84-258 – 84,261.
[6] And to other standard legal publishers.
[7] Vitzdamm-Jones v Vitzdamm Jones (1982) 148 CLR 383; In the Marriage of Griffiths; re Lane (1980) 7 Fam LR 317. Cf. s.92 Family Law Act (1975) in relation to seeking leave to intervene. Section 92 was not addressed in the Intervener’s submissions.
For the reasons that follow, the Application must be dismissed.
Because of the relative novelty of the Application, these reasons proceed by setting out the Applicant’s submissions in full, followed by a consideration of them and other relevant principle.
The Applicant (Solicitor’s) Submissions
Notwithstanding their length, among other things, so as not to misconceive the detail of the Application and the grounds relied upon for it, it is important that the submissions are set out in full (including footnotes), thus:
ISSUES FOR DETERMINATION
1) The application of the Third Party / Intervener (herein after referred to as the “Intervener”) seeks orders in relation to the correction and publication of a footnote appearing in Reasons for Judgment in the substantive proceedings between the Applicant, Mr Khalid (“the Husband”), and the Respondent, Ms Khalid (“the Wife”).
2) In the proceedings, the Intervener represented the Wife and at the relevant time her firm instructed counsel, Ms Jo Haughton, who appeared before the Court.
3) The Intervener seeks orders to correct the Court’s Reasons for Judgment (“the Judgment”) by deleting the second paragraph of Footnote 10 at page 22 of the Judgment. The Intervener seeks that that paragraph be redacted or removed from the Judgment and, by way of additional relief, if the Court accedes to the Intervener’s application that any published reasons be withdrawn and replaced by a version of the reasons for judgment as redacted or corrected.
DOCUMENTS
4) The Intervener relies upon the following documents:
a) Application of the Intervener filed 27 October 2015;
b) Affidavit of Ms J affirmed 8 October 2015 and filed 27 October 2015;
c) Reasons for Judgment and Orders made 15 June 2015;
OUTLINE OF SUBMISSIONS
Introduction
5) By her Application in a Case filed 27 October 2015, the Intervener seeks orders with respect to the Judgment of the Court delivered on 15 June 2015. However, due to the passage of time between the date judgment was delivered and the availability of the Court to deal with this application, the Intervener seeks the Court’s leave to amend the orders sought in the application and to seek the following orders:[8]
[8] It is not intended that there be a formal amended application filed unless the Court so directs as a copy of these submissions will be provided, as a matter of courtesy, to the Husband who is the Applicant in the substantive proceedings. The Husband has expressed no interest in this aspect of the proceedings to date. The Wife takes no issue with the orders sought in this application.
“1. That this application be listed before His Honour Judge Neville.
2. That the record of proceedings reflected at Footnote 10 on p.22 of the Judgment delivered on 15 June 2015 be corrected.
3. Subject to the Court being satisfied that it is appropriate to do so, Footnote 10 on p.22 be redacted and removed from the Judgment.
4. That to the extent that any publication may have already occurred, the Judgments Publications Office (or such other office or entity responsible for the publication of judgments of the Federal Circuit Court of Australia) forthwith do all acts and things to withdraw any and all publication of the judgment.
5. That further and in addition to Order 4, and in the event that the Judgment is to be re-published, any such publication shall only occur in a form which omits:
5.1 Any and all identification of the solicitors for the Respondent; and
5.2 The entirety of the second paragraph of Footnote 10 on p.22 of the Reasons for Judgment.”
6) In support of the Application, the Intervener reads her Affidavit affirmed on 8 October 2015 and filed on 27 October 2015. In addition, the Intervener relies upon an email communication dated 8 July 2015 by counsel, Ms Jo Haughton, forwarded to the Court’s Associate.
The issues to be addressed
7) The Intervener contends that it is open to the Court to correct and/or redact the section of the Judgment about which complaint is made. Further, it is open to the Court if publication has occurred to cause the Judgment published to be withdrawn from publication and if it is considered appropriate that it be re-published, then re-published in a form omitting reference to the Intervener and her firm. The Intervener contends that that outcome should flow from a proper exercise of the Court’s discretion having regard to:
7.1 The fact that the Court’s statements in the paragraph complained of arose as a consequence of counsel inadvertently misinforming the Court as to the facts on which they were based;
7.2 That the circumstances in which the Court was inadvertently misinformed were circumstances where the Intervener was not present and therefore unable to correct relevant facts;
7.3 The ready identification of the Intervener from the Reasons for Judgment;
7.4 The prejudice and damage reasonably apprehended to flow from the identification of the Intervener and the content of the reasons; and
7.5 The intent and purpose of s.121 of the Family Law Act 1975.
Relevant procedural history
8) On 29 and 30 January 2015, parenting proceedings were conducted before the Court between the Husband who was self-represented and the Wife who was represented by the Intervener’s firm. Final submissions were made in those proceedings on 25 March 2015 and Judgment delivered and Orders made on 15 June 2015.
9) The Intervener briefed counsel, Ms Jo Haughton, to appear for the Respondent but was not herself present at Court as an instructor when relevant discussion took place between the Court and Ms Haughton.
10) Transcript of proceedings on 30 January 2015 at pp.217 L35 to 219 L5 records discussion between bench and bar which apparently is the discussion which gives rise to the Court’s finding, the subject of the Intervener’s complaint and application.[9] In that discussion, Ms Haughton, correcting an earlier understanding that she held with respect to the existence of any grant for legal aid at p.218 L28, said as follows:
[9] A copy of these pages of the transcript is appended to this submission for convenience sake.
Ms Haughton: “Your Honour, I’m sorry, I’ve misled your Honour. Can I just, give me a moment. Sorry, your Honour. I need to correct that, your Honour. I am instructed that the Mother has a grant of a legal aid from the Legal Aid Offices for the services of my instructors but, apparently, not for me.”
His Honour: “How very gracious of you.”
Ms Haughton: “I’m much more generous than I realise. But in any event, that’s …”
11) This passage and the discussion around it provides the only basis for the Court’s comments which subsequently appeared in Footnote 10 when the Court delivered judgment on 15 June 2015.
12) On judgment being delivered, there was discussion between the Intervener and Ms Haughton. The Intervener sets out in her affidavit at [10]-[13] and [17], the circumstances in which Ms Haughton was briefed and the consequences of their discussion post-judgment. The Intervener understands that Ms Haughton accepts the accuracy of the Intervener’s evidence, in particular, in relation to the circumstances in which she agreed to appear on a pro bono basis. That being a matter which in the course of discussion between bench and bar, Ms Haughton did not in fact recall. The Intervener understands that Ms Haughton’s position has been separately communicated to the Court’s Associate by email on or about 8 July 2015.
13) It follows, it is submitted, that a most unfortunate situation has arisen whereby the Intervener has been the subject of judicial criticism based upon a mis-recollection by counsel instructed by her firm. Having said that, no criticism is intended of Ms Haughton who, as is obvious upon being reminded of her discussions with the Intervener, took immediate steps to correct the record.
Relevant legal principles:
The Court’s power to correct its Judgment
14) The Intervener’s application is not an application pursuant to the Slip Rule. The circumstances in which that rule might be enlivened do not apply here.[10] However, the Intervener contends that the Court has power to revise its reasons for judgment, even extensively, provided always that there is no alteration to any substantive aspect of them or the orders made flowing from those reasons. That power is most often exercised in the settling / revision of a judgment by the Court delivered ex tempore.[11] In Todorovic, Beazley J (with whom Powell JA and Sperling J agreed) said that she was of the opinion that the rules applicable to ex tempore judgments also applied to the case over a reserve judgment where written reasons were delivered. Her Honour’s statement of opinion appeared immediately following her reference to the NSW Court of Appeal’s decision in Bar-Mordecai v Rotman,[12] in the following terms:
[10] See Vance v Vance (2011) FLC 93-461 per Boland J at [17] and Russell v Russell (1999) FLC 92-877.
[11] See for example, Todorovic v Moussa (2001) 53 NSWLR 463 per Beazley JA at 467 referring to the texts, “Revising Transcripts and Summings-Up” (1997) 9 Judicial Officer’s Bulletin 25 at 25 and “Ex Tempore Judgments – Reasons on the Run” (1995) 25 University of Western Australia Law Review 2013 at 229-230 by Kirby J.
[12] [2000] NSWCA 123 at 193.
“47. In Bar-Mordecai v Rotman … the Court considered the matter in relation to an ex tempore judgment, stating … :
‘It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.’ ”
15) In determining the appropriate test to be applied, Beazley JA concluded that in civil proceedings the test was whether the alteration sought to be made or made in a judgment is permissible is whether “… the change is one of substance in fact …”.[13]
[13] Her Honour, having referred to the decision of Owen J in Lam v Beesley (1992) 7 WAR 88, distinguished the test in that case which related to criminal proceedings being whether the changes to a judgment where such matters “… could lead to an appearance altered substance”. See discussion at [43]-[48].
16) The Intervener contends that the revision sought relates to a matter which is wholly unrelated to the substantive issues determined in the proceedings and the orders made. The revision therefore sought by the Intervener is within power and should be made.
Withdrawal from publication and re-publication of the judgment
17) There can be no doubt that the Court does, from time-to-time, enter orders to restrict the method of publication of reasons for judgment. This has occurred both in relation to reporting by third parties,[14] and in relation to the release by the Court of reasons for judgment by authorised means, including the Court’s website and law reports.[15]
[14] See Re Schwartzkopff (1993) FLC 92-381; Re South Australia Telecasters Ltd (1998) FLC 92-825.
[15] For example, Re A M (Adult Child Maintenance) [2006] FamCA 351, (2006) FLC 93-262; Re Brodie (Special Medical Procedures: Jursdiction) [2007] FamCA 776; Brown v Brown (No.3) [2007] FamCA 1639.
18) The Court has power to make an order in terms sought on the basis of:
18.1 Section 15 of the Federal Circuit Court of Australia Act 1999 (the FCCA); and
18.2 The inherent power of the Court to make orders directed to its own procedures including, in this instance, the publication of judgments of the Court.
19) As with s.23 of the Federal Court of Australia Act 1976 and s.34 of the Family Law Act 1975, s.15 provides the Federal Circuit Court with the power to make orders of such kind as the Court thinks appropriate, including the making of orders necessary to enable the Court to exercise its jurisdiction effectively or to prevent any abuse of or interference with its processes.[16]
[16] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Warby v Warby (2002) FLC 93-091 and Deputy Commissioner of Taxation v Kilman & Kilman (2002) FLC 93-113.
20) Absent the statutory protection for the confidentiality of parties and proceedings provided by the Family Law Act 1975, the Federal Court of Australia Act 1976 also contains s.50 which is directed specifically to the making of orders in relation to the publication of evidence.
21) The existence of s.50 does not require the Federal Court to have recourse to s.23 nor the Court’s inherent jurisdiction for the purpose of orders regarding non-publication. Section 50 does not, however, derogate from the proposition that such orders could be made pursuant to s.23 and in the case of the Family Court of Australia pursuant to s.34, at least in aid of s.121 of the Act and more general obligation of the Court to act in a manner consistent with the preservation of its role in the administration of justice.
22) As in s.23, the presence in s.15 of the words “as the Court considers appropriate …” points to the requirement to develop principles governing the exercise of power in such a fashion as to avoid abuse.[17] The nature of the relevant jurisdiction of this Court is such that, in conjunction with s.21 and the principles entrenched in common law (as referred to below), the Court should more readily move to exercise its power in relation to non-publication than other jurisdictions.
[17] See Cardile v LED Builders Pty Ltd (1999) (supra) referring to Deane J in Jackson v Sterling Industries Ltd (1997) 162 CLR 612 at p.623.
23) The inherent jurisdiction of the Federal Circuit Court, albeit not corresponding with that of superior courts of record, permits the imposition of restraints on publication of its proceedings. Whilst obiter, as much was recognised by Gibbs J in Russell v Russell.[18]
[18] (1976) 134 CLR 495 at 520.
24) Similarly, the Supreme Court of NSW, drawing upon the House of Lords in Scott v Scott,[19] has recognised that there is power in recognition of common law principles to make a non-publication order.[20] In John Fairfax Group v Local Court of NSW (ibid) at [161], Mahoney JA recognised that:
[19] [1913] AC 417.
[20] David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 and John Fairfax Group vLocal Court of NSW (1991) 26 NSWLR 131.
“The basis for the implication is that if the kind of order proposed is not made, the result will be – or at least will be assumed to be – that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the Court.”
25) In considering authorities relevant to the exercise of the power to make non-publication orders, it is important to recognise that in proceedings pursuant to the Family Law Act 1975, the legislature has determined it appropriate to restrict the open administration of justice in proceedings in relation to matrimonial causes by means of s.121. Unlike the Family Law Act, the common law authorities moved from a recognition that there is a fundamental interest in the open administration of justice but even then recognised that restrictions on publications are appropriate in certain circumstances. In Lowe,[21] Nicholson CJ acknowledged that:
[21] Lowe & Lowe v Herald & Weekly Times Ltd (1995) FLC 92-592.
“The difference is the existence of s.121 which indicates a general intention on the part of the legislature not to identify persons in family law proceedings without the leave of the Court.”
26) At common law, the power to make an order for non-publication is one to be exercised only where it is necessary to do so. Whilst to be considered in the context of the principles of the open administration of justice, Kirby P (as he then was) in John Fairfax Group v Local Court of Australia at [151], recognised that:
“The open administration of justice serves the interests of society and is not an absolute end in itself. If the very openness of court proceedings would destroy the attainment of justice in a particular case … or discourage its attainment in cases generally … or would derogate from even more urgent considerations of public interest … the rules of openness must be modified to meet the exigencies of a particular case.”
27) In the same decision, Mahoney JA observed at p.163 that:
“Three things at least may be said about the open conduct of the courts. First, it can and does cause pain and loss to individuals. Secondly, the open conduct of courts is not an end in itself; the principle is adopted because it is seen as a means of achieving the fundamental end, the proper administration of justice. And, thirdly, what is to be achieved is the proper administration of justice but with the least harm to those who in the course of it will have harm inflicted on them. The issue in the present case is how that is achieved.”
28) In John Fairfax & Sons v Police Tribunal,[22] at p.471, Mahoney JA considered that:
[22] (1986) 5 NSWLR 465.
“A superior court of record has the power, and the duty, to secure that justice is done according to the law in respect of those seeking to exercise its jurisdiction. See Scott v Scott [1913] AC 417 at 437 per Viscount Haldane LC. Insofar as may be necessary for this purpose it may make orders for the protection of those relevantly involved in proceedings before it. The protection of such persons has been recognised as something which, in a judicial system, must be undertaken.” (underlining added)
29) The Intervener contends that the power to restrict publication and the requirements to exercise that power are no less available to and applicable in the Federal Circuit Court.
30) Amongst other considerations, it is relevant to have regard to the position of the parties in relation to the application for non-publication.[23] One of the particularly relevant concerns in the present application, apart from the issue of identification, is a concern that the comment complained of by the Intervener is extraneous to the determination of substantive issues between the contestant parties. While it has been held that the Court could not interfere with comments regarding parties and their witnesses, this is a case plainly distinguishable from such cases.[24] This is because, of course, the Intervener was not a party to the proceedings nor a witness and as has already been contended, the issue which gave rise to the present application unrelated to the subject matter of the proceedings or the orders to be made.
[23] In Department of Economic Policy & Development of the City of Moscow and the Government of Moscow v Bankers Trust Company and International Industrial Bank [2004] EWCA Civ 314, the Strasberg jurisdiction was said to take a “more relaxed view of the possibility of parties waiving publicity where this does not run counter to any important public interest”.
[24] See for example, the comments of the Full Court of the Family Court in Stephens v Stephens & Ors (2007) FamCA 680 per Finn J at [152].
The immediate application
31) The Intervener seeks orders in the amended terms referred to earlier in this submission having regard to:
31.1 The fact that the Court’s comments were made upon the basis of an innocent misstatement of fact about which there can be now no contest as to that aspect of the matter;
31.2 The fact that the revision of the judgment sought does not go to any matter of substance or any order made in the contest between the parties to the proceedings. It is indeed entirely extraneous to those matters;
31.3 The intent and purpose of s.121 of the Family Law Act 1975;
31.4 The ready identification of the Intervener from the Judgment;
31.5 The prejudice and damage reasonably apprehended to flow from an identification from the Intervener and the content of the Judgment; and
31.6 The content of the footnote in the Judgment.
32) As referred to above, s.121 reflects the general intention of the legislature “not to identify persons in family law proceedings without the leave of the Court”.[25] In light of the matters following, there is no matter of public importance or interest which would compel a departure from this position. Indeed, the position is reinforced by considerations justifying the Court adopting a more restrictive approach publication and a more robust approach to revision in the circumstances of this case.
33) The Intervener is one of a limited number of practitioners regularly appearing in the courts of the Australian Capital Territory and the local area in family law proceedings. Her relationship and ability to brief counsel in all matters, including family law matters, on a basis of trust between solicitor and counsel as to a matter as important to that relationship as the payment of fees in respect of the retainer is critical to her standing within the profession. Any judicial statement critical of the Intervener is likely to have a damaging effect upon her reputation within the profession and also may affect it more widely. For example, if the judgment containing the adverse comment in the footnote is read by a potential client.
34) For the reasons set out above, the Court is asked to make the orders sought.
[25] See Lowe & Lowe (supra).
Consideration & Disposition
There are three parts to the Solicitor’s submissions: (a) the Court’s power to amend or correct its judgment (pars.14-16); (b) the power of the Court to withdraw the judgment and issue a corrected judgment (pars.17-30); and (c) the power of the Court, using s.121 of the Family Law Act 1975 (“the Act”), to edit or to redact the principal judgment. For the reasons that follow, and as earlier observed, the submissions, and the Application are mis-conceived. In addition to dealing with the submissions, it is important to have regard to other matters that are not addressed in them.
First, as already noted earlier in these reasons, nowhere in the submissions is there any consideration of the jurisdiction, as opposed to the power, of the Court to make the correction or amendment sought. The obverse of this is that the submissions nowhere address the signal issue of whether, upon judgment being delivered (and there being perfected Orders), the Court is functus officio. In my view, the Court is functus officio. In this regard, subject to some very recent comments by the High Court, it is sufficient to set out the detailed remarks of Boland J, with her Honour then sitting as the Full Court, in Sangara v Hamwood.[26] Commencing at [42] – [56], her Honour said (emphasis added):
[26] (2009) 39 Fam LR 237.
[42] The term “functus officio” is referred to in Halsbury’s Laws of England, 4th ed, vol 29, para 766:
The doctrine of functus officio
The justices are functi officio where they have discharged all their judicial functions in a case. Thus, in criminal proceedings they may not, save in certain specific circumstances, re-open the case after sentencing the accused or after committing him to the Crown Court for sentence.
[footnotes omitted]
[43] A more comprehensive definition of the term is found in Butterworths Australian Legal Dictionary (1997) at 509 as follows [internal citations omitted]:
Functus officio – having discharged one’s duty; having completed one’s term of office; having ceased to hold some public appointment; having performed the authorised act and being unable to go back to it a second time. The state of an administrator or tribunal which has discharged its duty or performed its functions so that nothing further remains to be done. One who is functus officio is precluded from again considering the matter even if new arguments or evidence are presented:
[44] The historical background leading to the functus rule and the applicability of the principles associated with it are described by Jordan CJ in Graziers Association of New South Wales v Australian Legion of Ex-Serviceman and Women (1949) 49 SR (NSW) at 303:
Prior to the Judicature Acts in England, judges in Chancery could rehear their own decisions and those of their respective predecessors, and such rehearings were, in effect, appeals from the former hearings; but no such jurisdiction existed at common law, except that a judgment of the court was amendable in the term in which it was made but not afterwards ... The Judicature Acts in effect abolished the jurisdiction to rehear in Chancery ... The general rule, as established by the authorities to which reference is made in Ex parte Hassell (1937) SR (NSW) 192 at 195 is that “when an arbitrator or judicial officer has given his award or adjudication, as the case may be, he is functus officio, and cannot add to, amend, or detract from what he has done”; although in some jurisdictions an adjudication is not regarded as having been finally made until it has been passed and entered ... This rule applies to judges exercising judicial authority conferred by statute, unless otherwise provided by statute...
[45] The rationale of the rule is explained by Gibbs CJ in Bailey v Marinoff (1971) 125 CLR 529 at 539, here his Honour said:
The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing.
[46] It is also useful at this point to refer to the common law principles which apply to the slip rule. Those principles were explained by the Full Court in Noetel v Quealey (2005) 34 Fam LR 190 at paragraph 62 as follows:
The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.
[47] The interrelationship of the doctrine of functus officio and the slip rule is subject of extensive discussion in the recent decision of the New South Wales Court of Appeal in Newmont Yandal Operations Pty Ltd v J Aron Corporation and Goldman Sachs Group Inc & Ors [2007] NSWCA 195.
[48] In that case, the Court of Appeal was concerned to determine whether or not orders which were made, and regularly entered, which on their face purported to dismiss the whole of proceedings in the Supreme Court, had in fact determined the whole of the litigation between the parties concerning indebtedness said to arise from hedge transactions, or had only determined certain questions in discrete proceeding (“the separate proceedings”). The separate proceedings were designed to permit the determination of issues arising out of an asserted formal defect in deeds.
[49] The separate proceedings, which were resolved in favour of the defendants in the substantive proceedings, resulted in the defendants alleging the substantive proceedings were res judicata,or that the plaintiff was estopped from continuing the substantive proceedings. Spigelman CJ noted that the trial Judge, having determined the separate proceedings, could have “moulded an order... which would have prevented the impact which [the appellant] now seeks to allege is the effect that [the trial Judge’s orders] actually had...”
[50] After making orders in the separate proceedings, the trial Judge, when the issue of the effect of the orders was sought to be agitated before him, disqualified himself from further hearing the matter, and the proceedings came before White J who made amended orders after consideration of two alternate bases of jurisdiction to do so. Those bases were the inherent jurisdiction of the Court, and in reliance on the slip rule (as codified in the Uniform Civil Procedure Rules 2005 (NSW)).
[51] On appeal against White J’s orders, Spigelman CJ (with whom Santow JA and Handley AJA agreed) extensively reviewed the relevant authorities on the inherent jurisdiction of a superior court of record to amend an order to reflect the intention of the Court. That discussion is not relevant for the purposes of this appeal.
[52] Thereafter his Honour considered why the order in the separate proceedings before the Court was amenable to correction under the slip rule.
[53] Having set out four propositions advanced by the appellant as to when the slip rule could be invoked, his Honour noted the requirement for a Judge of the Supreme Court, by virtue of s.56(2) of the Civil Procedure Act 2005 (NSW), to “bear in mind the overriding purpose [of the rules] when interpreting the rule”, but explained, even without such guidance, he would have come to the same conclusion. Thereafter his Honour considered the interpretation of r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) which is in the following terms:
Rule 36.17 Correction of judgment or order (“slip rule”)
(cf SCR Part 20, rule 10; DCR Part 17, rule 10; LCR Part 16, rule 10)
If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, the court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.
[54] His Honour said:
By reason of the insertion of the overriding objective into the Civil Procedure Act 2005 words such as “error” and “correct” in the slip rule should not be given a narrow interpretation. In my opinion, carrying into effect the actual intention of the judge making the order, and making sure that the order did not have a consequence which the judge clearly intended to avoid, falls within the natural and ordinary meaning of the word “correction”, particularly as understood in the light of the overriding purpose. The “real issues in the [2004] proceedings”, within the meaning of s.56(1), did not extend in the direction for which, let alone as far as, [the appellant] seeks to contend in its new defence in the 2003 proceedings.
By reason of the significance of the overriding purpose with respect to the slip rule in this State, earlier authorities must be treated with caution. (paragraphs 116 and 117)
[55] It is clear from an examination of r 36.17 of the Civil Procedure Rules and r 16.05(2)(e) of the rules that the former more closely resembles the common law principles colloquially known as the “slip rule”. However I am satisfied that there is some commonality of purpose evinced in s.56 of the Civil Procedure Act (NSW) and r 1.03(1) of the rules and that I should give a wide interpretation to r 16.05(2)(e).
[56] I accept that, subject to the availability of r 16, a Federal Magistrate is “functus officio” when a matter has been regularly determined, and orders are perfected. The Federal Magistrates Court, like the Family Court and the Federal Court, is a court created by statute and does not have power to re-open its orders regularly entered (see DJL v Central Authority (2000) 201 CLR 226 at 248).
In the later decision of Boland J in Vance, where her Honour was again sitting as the Full Court, and to which case Senior Counsel for the Solicitor referred but unfortunately not in relation to this point, there was a further discussion about when (and how) a Court becomes functus officio.[27] Beginning at [6], her Honour noted the following matters in relation to functus officio:
Today when the adjourned application was before me the parties requested I make orders by consent allowing ground 5 of the appeal, and substituting the costs order sought in the application. I raised with counsel the question of the power for me to make such an order. It was conceded by the father’s counsel that she was unable to identify any power which would permit the consent order to be made.
[27] Vance & Vance (2011) FLC ¶93-461.
Then, at [11] her Honour referred to the need, in her view, to consider the comments of the High Court in Burrell v The Queen, which began at [14] of her Honour’s judgment:[28]
[14] In Burrell v The Queen the High Court (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ) examined the question of finality of orders, and the limited circumstances in which the orders of a superior court of record can be amended. Having discussed the “rule” about finality of litigation, at paragraph 21, their Honours said:
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded. [footnote omitted]
[15] Further, at paragraph 28 their Honours said:
The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken.
[16] The authorities dealing with the limited circumstances in which a superior court can amend its orders under the slip rule are extensively discussed by Spigelman CJ in Newmont Yandale Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Inc (2007) 70 NSWLR 411. In that case Spigelman CJ also discussed authorities which deal with the inherent power of a superior court to amend its orders. The Family Court, while a superior court of record, as a court created by statute does not have an inherent jurisdiction derived from the common law, but has such powers as are expressly contained in the Act or other statute conferring jurisdiction and such powers as may be implied by those statutes (see DJL v Central Authority (2000) 201 CLR 226).
[17] Two essential criteria have been identified where the slip rule may be invoked:
· where there is a clerical mistake; and
· where there is an accidental slip or an accidental omission.
The learned author of Amending Final Judgments and Orders, John Tarrant, (The Federation Press, 2010) explains at page 52 of his text “If a deliberate decision made by a judge results in an error in a judgment or order, that error cannot be corrected under the slip rule. That is because an error arising from a deliberate decision cannot be described as arising from an accidental slip or an accidental omission”.
Finally, at [47], Boland J said:[29]
… the costs orders now sought would involve an independent exercise of discretion, not a correction of a clerical mistake or accidental slip or omission. Before granting a costs certificate under the Federal Proceedings Costs Act it is necessary a Court find that each party should pay their own costs of and incidental to the appeal under s 117(1) of the Act, and then find error of law by the Federal Magistrate. Further, an order, as sought in the alternative against the mother, could only be made if in the exercise of my discretion I found there were circumstances which required a departure from s 117(1) having regard to some or all of the criteria in s 117(2A). I am satisfied I am functus officio and have been since the making of my orders on 20 December 2011
[29] Generally, see also the discussion by the Full Court of the Federal Court of Australia regarding the exercise of a primary judge’s discretion in Hanave Pty Ltd v LFOT Pty Ltd (2004) 136 FCR 566.
More recently, the Full Court (Ainslie-Wallace, Ryan and Johnston JJ) in Vadisanis & Vadisanis made the following comments in relation to the ability of the Family Court of Australia to correct an order pursuant to the slip rule, or otherwise.[30] Because the Solicitor/intervener in the current Application formally eschewed any reliance upon the slip rule, the focus in Vadisanis is necessarily upon the Court’s discussion as to whether or not perfected Orders may be reopened.
[30] Vadisanis & Vadisanis (2015) FLC ¶93-671.
After referring, at [31], to the already quoted High Court decision in DJL v Central Authority for the proposition that, as a Court created by statute, absent specific statutory power to do so, the Family Court (and necessarily, likewise this Court) does not have power to vary or to set aside a final judgment or Order once that Order has been perfected. Courts, even superior ones, do not have the inherent powers that otherwise apply to superior court at common law. However, it might be noted that there was reference to a comment by Callinan J in DJL (at [189]), where his Honour said that there are some very few exceptions to this general principle, such as the failure to give a party a hearing.
At [35], the Full Court in Vadisanis confirmed that such power as there may be to re-open perfected Orders is one to be exercised with great caution, and that any such course, and the final Orders, must have proper regard to the “underpinning consideration” based upon the principle of finality of litigation.
In my view, having regard to the outline of principle in relation to functus officio, notably by the High Court in Burrell v The Queen, and by the Full Court in Sangara v Hamwood, I was functus officio following the delivery of reasons and the perfected Orders made on 15th June 2015. Unfortunately, none of these authorities was relevantly discussed by the Intervener in her submissions.
Further, as outlined by Boland J in Vance, to re-visit the comment or observation that is sought to be “corrected” or redacted, would require the Court (a) to have jurisdiction to re-open the proceedings before me, and (b) to have relevant (and identifiable) power to re-exercise and revise reasons for judgment for which there was and is no warrant. This is especially so in circumstances where, among other things, the Intervener/Solicitor rejects any reliance upon the slip rule.
Especially given the comments by the High Court in DJL in relation to a superior court created by statute not having any inherent jurisdiction or power, which must apply equally to intermediate courts created by statute, such as this Court, in my view, no jurisdictional basis has been set out for the Court to embark upon the course sought by the Solicitor. In this regard, in my view it cannot be stressed too strongly that there has been a failure to identify (a) the Court’s jurisdiction to entertain the current Application (especially in circumstances where the so-called “slip rule” is not relied upon), and (b) the Court’s power to make the Orders sought. This crucial distinction between jurisdiction and power was very recently the subject of comment by the High Court.
In NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions,[31] at [67] – [71], the High Court relevantly said (internal citations omitted; emphasis added):[32]
[31] NH v Director of Public Prosecutions; Jakaj v Director of Public Prosecutions; Zefi v Director of Public Prosecutions; Stakaj v Director of Public Prosecutions [2016] HCA 33 (31 August 2016).
[32] I should note that, for current purposes, the High Court’s statements of principle in relation to (a) the distinction between jurisdiction and power, and (b) a court’s power to correct the record of proceedings, rely, to a significant degree, on three earlier High Court decisions, vizPT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 89 ALJR 975; Burrell v The Queen (2008) 238 CLR 218; and Harris v Caladine (1991) 172 CLR 84.
[67] … As this Court said in Keramianakis v Regional Publishers Pty Ltd, the inherent jurisdiction is a power described generically as “the inherent power necessary to the effective exercise of the jurisdiction granted.” It is a power or collection of powers that comes with the status of the Supreme Court of a State as a superior court of record. Contrary to the submissions of the DPP, and the findings of the majority of the Full Court, inherent jurisdiction is not a “separate head of jurisdiction.” … the distinction between jurisdiction and power is of importance. As five Justices of this Court observed in PT Bayan Resources TBK v BCBC Singapore Pte Ltd:
“Jurisdiction' is a word of many meanings. The term 'inherent jurisdiction' has been described as 'elusive', 'uncertain' and 'slippery'. The difficulty is minimised if the term is confined to its primary signification: to refer to the power inhering in a superior court of record administering law and equity to make orders of a particular description. For present purposes, inherent jurisdiction can be used interchangeably with 'inherent power'.” (footnotes omitted)
[68] Inherent jurisdiction understood not as authority to adjudicate, but as inherent power, may be deployed in the exercise of federal jurisdiction conferred on Supreme Courts pursuant to s 39(2) of the Judiciary Act or some other Commonwealth law. As Toohey J said in Harris v Caladine in a passage repeatedly quoted in this Court:
“The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.” (citations omitted)
[69] The species of the genus of theinherent power of the Supreme Court of South Australia were aptly described by the late Bradley Selway, a former Solicitor-General for South Australia andJustice of the Federal Court, in his book on the Constitution of South Australia. They are to be found in all superior courts. They include thepowers to punish contempt, to grant injunctions, to protect the subject matter of the litigation, to correct accidental slips and omissions in court records, including in orders of the court, and to stay proceedings in order to prevent the abuse of the processes of the court. The last mentioned is an aspect of the inherent power described by Master Jacob in 1970, in a much cited article, as the power to maintain the authority of the court and to prevent its processes from being obstructed and abused.
[70] The inherent power is limited by the general principle of the finality of litigation which has repeatedly been affirmed by this Court:
“A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.”
That principle informs the scope of the Supreme Court's power to correct a judgment or order. There is an inherent power to correct errors before orders are formally recorded. …
[71] The inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited. In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall. That does not prevent limited correction of an order after final entry so that the record represents what the court pronounced or intended to pronounce. That aspect of the power is called the “slip rule.” However, it does not permit reconsideration or alteration of the substance of the result that was reached and recorded. The present case was not one in which the record did not represent what the Court pronounced or intended to pronounce as its order….
In the light of the authorities to which I have referred, it is clear that
(a)this Court is not a superior court and therefore there is no “inherent jurisdiction” that can be invoked or applied; this Court has only such jurisdiction and power that is conferred by statute;
(b)the Solicitor/Intervener, in any event, does not rely upon the “slip rule” to have the Court make the correction or redaction sought;
(c)the Solicitor/Intervener has not addressed the distinction made, not infrequently, by the High Court (at least since Harris v Caladine in 1991), in relation to jurisdiction and power. Respectfully, as crafted, the submissions either presume (and therefore they do not address) jurisdiction and or conflate the two concepts.
It follows that the Court rejects the submission by the Solicitor (submissions, par.14 ff.) in relation to the Court having relevant power to correct its reasons. I note too that almost invariably the discussion in the authorities to which I have referred, as well as in the prominent legal text referred to by Boland J, Amending Final Judgments and Orders, J. Tarrant, 2010), such amendments that might be made invariably refer to amending a judgment or Order.[33] It is – unsurprisingly in my view – extraordinarily rare for any amendment to a footnote in published reasons, not least because nothing can or could possibly turn on a comment made, en passant, in the course of a trial that is simply noted in the reasons of the Court. It formed the basis of no finding, ruling or Order.
[33] J. Tarrant, Amending Final Judgments and Orders, (Sydney: The Federation Press, 2010) (“Tarrant”).
Indeed, accepting that the discussion is in the context, primarily, of the application of the slip rule, Mr Tarrant in his tome, by reference to a range of authority, suggests that an “afterthought” (i.e. a thought by a party’s lawyer after judgment has been delivered and Orders made), as opposed to an accidental slip or omission, will not be permitted to be corrected.[34]
[34] See Tarrant, at pp.68 – 73.
Further, in relation to the Solicitor’s submissions regarding the Court’s power to correct its judgment, the authorities referred to relate, in large measure, to the correction of judgments delivered ex tempore. That is not the case here. And, as already observed, there remains the unaddressed issue of the Court, or rather this Judge, being functus officio.
The second part of the Solicitor’s submissions is predicated upon certain statutory provisions in the Federal Circuit Court of Australia Act 1999, namely s.15. This part of the submissions also relies upon arguments based on the Court’s inherent power. I have earlier dealt with the clearly defined limits on any so-called inherent power, notably as set out by the High Court in DJL and more recently in NH.
In terms, s.15 refers to the general power of this Court “to make orders of such kinds … as the Court thinks appropriate.”
In my view, there are three impediments to the Solicitor/Intervener being able to rely upon this general power.
First, it refers to the making of Orders. Here, there is no Order to amend or correct, but rather a footnote in a judgment. Secondly, and alternatively, if the Court was to make an Order as sought in the Application, essentially directed to itself, to correct or to redact the said footnote, it would be the Court exercising a discretion anew, which it cannot do. Thirdly, as already noted, I am functus officio.
In short, I do not accept the submissions at pars.17-30 of the Solicitor’s submissions. In addition to the reasons already given, where there is a specific power under s.121 of the Act (which is relied upon by the Solicitor) in relation to “non-publication”, the Solicitor’s submissions, if accepted, would require the Court to work out a parallel regime of non-publication, based on the authorities set out in the submissions. In turn, those authorities are essentially predicated upon discussion about the inherent power of superior Courts. They have no relevant application to an intermediate Court such as this Court for reasons given earlier. And no parallel system in relation to non-publication should be established in the face of an existing statutory regime pursuant to s.121.
Moving then to the third part of the Applicant’s submissions, it is important to note that standard practice texts in relation to family law record the following in relation to s.121.
First, in Australian Family Law,[35] the following is stated: “This section permits the publication of proceedings in the [family law courts] but only in a manner which does not identify the parties, their relatives, de facto spouses, or their witnesses.” Clearly, the editors of this family law practice text make no mention of the parties’ lawyers as being part of the general protection afforded by s.121.
[35] Australian Family Law, (R. Chisholm & editors) (Sydney: LexisNexis 1987) Vol.1, pp.1844-85.
I should also note, briefly, the Federal Court decision in Hinchcliffe v Commissioner of Australian Federal Police, where Kenny J discussed, among other things, “the construction of s.121” of the Act.[36] In that case, at [53], her Honour noted that before s.121(1) can be contravened, there must be “an account” of proceedings, or part of them, under the Act.
[36] Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 at [50] – [58].
Her Honour also noted, at [54], that in order to attract the attention and operation of s.121(1) there must be the dissemination of an account of proceedings “to the public or to a section of the public.” By reference to earlier Federal Court authority, Kenny J confirmed that this would require there to be the aim of dissemination to reach “a wide audience.”
There was no discussion in the submissions of whether an observation in a footnote in a judgment constituted “any account” of the proceedings for the purposes of s.121. Her Honour said, in the same place, that an “account” for the purposes of the section “is a narrative, description, retelling or recital of such proceedings.” There was no discussion in the submissions regarding the breadth of publication to “the public or a section of the public” as relevantly discussed by the Federal Court in relation to s.121.
On the basis of Kenny J’s observations in Hinchcliffe, in my view, a comment based on an exchange with Counsel in the course of proceedings does not constitute “any account” of the proceedings for the purposes of s.121. And, as noted later in these reasons, there is no “identification” of any person by name, including the Solicitor. Indeed, it is the fact that at the time of the exchange with Counsel that is the basis for the said footnote, it was one of the Intervener’s/Solicitor’s employed solicitors who was instructing Counsel. And further, the dissemination of the judgment was not, in my view, in accordance with Hinchcliffe and earlier authority therein referred to, relevantly to “the public or to a section of the public.”
Secondly, the editors of the CCH Australian Family Law Practice (Vol.2) note that in construing the Act (and s.121 in particular), a court is required to have regard to the relevant “mischief” that the section in question sought to remedy. In this case, the practice text states:[37]
The mischief sought to be remedied by the section in its present form and in its previous form seems clearly to have been the unnecessary torment to the parties of wide press or media coverage of their private affairs, and the wholesale ventilation in newspapers and the media of the private affairs of litigants in family law litigation, that is to say publication to the world at large.
[37] CCH Australian Family Law & Practice (Vol.2), p.41,522.
On the basis of the comments in Hinchcliffe, and the comments in the family law practice texts, as earlier stated, the allegedly offending footnote (a) was not relevantly an “account” for the purposes of s.121, (b) was not a widespread communication “to the public”, and (c) the “mischief” sought to be remedied by s.121 relates specifically and particularly to protect parties and their witness; it does not, thereby, extend to lawyers, especially where, as here, there is/was no personal identification of any solicitor.
The Solicitor’s submissions, at par.31.3 which refer to “the intent and purpose of s.121”, are not supported by the authority to which I have referred, or the standard family law practice texts to which I have also referred. No authority is cited for the submissions at pars.31.3 – 31.6.
Further, at par.31.4 of the submissions there is the claim that there is “the ready identification of the Intervener from the judgment.” Respectfully, this is not accurate. There is no personal identification of the Solicitor/Intervener. And as already mentioned, the Intervener/ Solicitor was not instructing at the relevant time. Indeed, there have been and remain, various lawyers employed by the Solicitor/Intervener. Again I stress that there was no personal identification of any person in particular.
There is no factual (or any other basis) basis for the contention, at par.31.5 of the submissions, of “prejudice and damage reasonably apprehended to flow from an identification from [sic: “of”] the Intervener and the content of the judgment.” In addition to what I have already said, such a submission is unnecessarily broad. For example, a reference to “the content of the judgment” as a basis for the Application is clearly inapt and without foundation. The Court may also reasonably observe that the Intervener and her firm continue to appear regularly before this Court.
Moreover, and in addition to what has already been said, the jurisdictional basis for the Court using s.121 in the purportedly remedial way sought by the Solicitor is not set out in the submissions.
In my view, the terms of s.121 make plain that it is a remedial section that relates to publication. It is not a section that, either by intention or by express terms, is an appropriate statutory vehicle or instrument to amend or to correct Orders, findings, or reasons of a court in family law proceedings. In my view, to seek to amend reasons for judgment via a particular construction of s.121 is inappropriate and cannot be permitted.
Penultimately, an additional flaw in the Application is that the Solicitor/Intervener’s submissions do not address at all s.121(9)(e), which provides a list of exculpatory categories or exceptions to the principal prohibition in relation to publication. In terms, that sub-section provides that (emphasis in original):
The preceding provisions of this section do not apply to or in relation to:
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character
I have remarked earlier in these reasons that the only publication of the reasons and perfected Orders in this matter was via the internet legal services provider, (and other legal publishers). As such, the provision of its legal services comes, in my view, within the exception provided by s.121(9)(e) in relation to the reasons and Orders “published” by this Court on 15th June 2015.[38] In my view, such a statutory exception provides even less warrant, if there be one, for the Court to accede to the Solicitor/Intervener’s Application.
[38] A recent but quite general consideration of s.121(9) is in the joint judgment of Finn and Strickland JJ in A Bank v Coleiro (2011) 252 FLR 359 at [146] – [153]. The comments by the Full Court do not relevantly assist the discussion in this matter.
Conclusion
It is as well to record in full the following comments by the High Court in relation to re-opening and a court re-considering Orders that have been made. As will be immediately clear, the High Court made it plain that they were directing comment to the powers of a superior Court. In my view, such instruction applies, a fortiori, to intermediate courts also. In Burrell v The Queen, at [13] – [16], the plurality (Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ) said (internal citations omitted):
[13] The question that arises in this appeal concerns the powers of a superior court of record to reopen a proceeding and reconsider the orders that have been made. The position of courts other than superior courts of record need not be examined and what is said in the balance of these reasons considers only the orders of a superior court of record.
[14] Consideration of the issues presented in this matter must begin from the recognition that, as pointed out in DJL v Central Authority, “clarity of thought and the isolation of the true issues [is not] encouraged by submissions expressed in general terms respecting the position in 'intermediate courts of appeal’.” Rather, as the plurality went on to point out in DJL:
“In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s.73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 2]”.
[15] Secondly, it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: “A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.” That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
[16] The third consideration of principle which it is necessary to state at the outset is related to the second. It is that the principle of finality serves not only to protect parties to litigation from attempts to re-agitate what has been decided, but also has wider purposes. In particular, the principle of finality serves as the sharpest spur to all participants in the judicial process, judges, parties and lawyers alike, to get it right the first time. Later correction of error is not always possible. If it is possible, it is often difficult and time-consuming, and it is almost always costly.
Then at [28], the plurality said:
The parties to an appeal are given procedural fairness by allowing each a proper opportunity to make submissions before the court makes its decision. Once the court announces the decision it has made, any further hearing is exceptional. To hold that parties must be given a sufficient opportunity to consider whether to ask for a further hearing would convert the exception into the rule. That step should not be taken.
In the current matter, the Application was brought by a non-party. It was brought to amend or to redact a comment in a footnote in the reasons of the Court. Having regard to the High Court’s comments in relation to exceptional circumstances being required to re-open a matter that has been regularly determined by the Court, and in addition to the other authorities referred to in these reasons that also stand in the way of the Application succeeding, in my view, in summary form, the following grounds require the Application to be dismissed:
(a)Upon delivering the reasons and making the Orders it did on 15th June 2015, the Court was functus officio. This basal principle was never addressed by the Solicitor/Intervener;
(b)The power of a Court to correct or amend applies only to formal Orders and or to “findings” by the Court, usually by application of the “slip rule” to an error arising from an accidental slip or omission.[39] The operation of the slip rule was formally/expressly eschewed by the Solicitor/ Intervener. In my view, this left a significant lacuna in the jurisdictional field available to the Court, should it have been minded to make the amendment sought, and assuming that the other pre-requisites for the invocation of that rule had been established;
(c)No clerical or accidental “slip” or omission was identified here;
(d)A Court cannot re-open a perfected Order; such is a limit on the powers of a Court, such as this Court, which is created by statute. Here, what is sought is not the correction of an Order (or a finding or a ruling) but simply of a comment in a footnote;
(e)To speak generally, Courts have jurisdiction to recall a final judgment before it is formally entered, but such jurisdiction is however to be exercised sparingly; that is not the case here;
(f)The terms of s.121, which is the primary jurisprudential base for the Application, have not been properly considered (and/or some of its express terms not considered at all) because (i) that section is relevantly concerned with the publication of details that would identify “parties” and their witnesses (and or children) to the proceedings, and (ii) there are specific exceptions to the non-publication prohibition, notably s.121(9)(e), which refers to “the publishing of any publication bona fide intended primarily for use by the members of any profession, being (i) a separate volume or part of a series of law reports; or (ii) any other publication of a technical character”;
(g)The principal judgment was “published”, bona fide, only by the internet legal publishing enterprises, such as Australian Legal Information Institute which (as earlier noted) is a joint publication of the Law Faculties of the University of Technology (Sydney) and the University of New South Wales. Accordingly, the exception to publication provided by s.121(9)(e), in my view, has clearly been established;
(h)As earlier noted, the submissions do not address authorities, such as Vitzdamm-Jones, which are to the effect that it is not possible to bring an Application to intervene in proceedings that have been concluded. For the other reasons given, I do not need to make a formal ruling on this argument, especially in the light of there being on-going proceedings in the Family Court. That said, this further omission was nonetheless not insignificant;
(i)Finally, the Solicitor’s submissions do not address any discretionary considerations usually found in the case law (e.g. delay, carelessness), other than those that apply to the Solicitor;
(j)It is certainly good and proper that [ultimately] Counsel was, in fact, remunerated appropriately, contrary to what the Court was advised during the trial. However, in the light of the authority to which I have referred, and to which the Solicitor/Intervener unfortunately has not, I do not see that the Court has jurisdiction to accede to the Application in any relevant respect. Indeed, to do so would be contrary to the authority to which I have referred and, in terms, would constitute an error of law.
[39] See Federal Circuit Court Rules 2001, r.16.05.
The following comments are made essentially as something of a postscript, and as something of a plea to practitioners.
Save for what is said in these reasons in relation to the substantive Application brought by the solicitor involved, strictly speaking, it is not for the Court to comment on the utility or efficacy of the Application. Be that as it may, the Application assumes, among other things, that persons (other than the parties and their legal representatives) read (and regularly so) judgments of this Court in family law proceedings. Even if that be correct (and I am not sure that it is – surely persons other than the parties have better things to do than to comb through family law judgments in their spare time), one might reasonably wonder at the prudence, or the utility, of the Application.
For example, if someone is concerned about some possible reputational damage – however remote, I suggest that most practitioners would not seek to highlight any relevant concern by bringing a further Application specifically to highlight the alleged flaw. Rather, as it seems to me, most practitioners would, to speak in the vernacular, simply let “sleeping dogs lie” – so to speak. Moreover, based on the factual evidence before the Court at the hearing (on which the judgment and footnote were based) the Court was entitled to form the general view expressed in the footnote – again without specific reference or identification of any particular person. Further, it is not unknown that practitioners have been known to be criticised by Courts for certain conduct and they have lived to tell the tale. Indeed, it is not unknown that law firms have been criticised by Courts (sometimes very firmly) for their conduct – and such firms have continued on in their day to day practices without any apparent difficulty.
Again, be all this as it may, the Application must be dealt with, notwithstanding the never-ending demands on the Court’s ever-stretched resources. And it must be, and has been, dealt with notwithstanding the clear flouting of the Court’s direction for a prescribed limit on the number of pages of the written submissions.
I suggest that, in the light of the matters I have referred to, few other courts would be as lenient as this Court regularly is in considering submissions in excess of the Court’s direction, especially in the light of the High Court’s regular reminder that Courts are public resources, which must be used prudently and as efficiently as possible.[40] The clear flouting of procedural directions, such as has occurred here, only adds to the oppressive demands upon the continuous if not incessant and onerous burdens already placed on the Court.
For the reasons given, the Application filed 27th October 2015 must be dismissed. Because there is no contradictor or other party to the proceedings, there can and will be no orders as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 30th September 2016
- AGLC
- Khalid and Khalid (Intervener Application) [2016] FCCA 2531
- Case
- [2016] FCCA 2531
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the intervener's application should be granted or dismissed. The court was required to consider the merits of the intervener's request to participate in or influence the existing proceedings between Khalid and Khalid.
Judge Neville dismissed the intervener's application. While the reasons for this dismissal are not elaborated upon in the provided text, the outcome indicates that the court found no sufficient basis to permit the intervention. The court made no order as to costs, suggesting that neither party was awarded their legal expenses in relation to this specific application.
Orders
Orders of the court
1.
The Application in a Case, filed 27th October 2015, be dismissed.
2.
There be no Order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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