Marriner v Smorgon

[1989] HCATrans 131

~

~ ;,l.~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M95 of 1988

B e t w e e n -

DAVID WELLESLEY MARRINER

Appellant

and

GRAHAM SMORGON and ANNETTE

SMORGON

Respondents

MASON CJ

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

Marriner(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 JUNE 1989, AT· 10.16AM

Copyright in the High Court of Australia

C2T 2/1/HS · 1 8/6/89

MR E.W. GILLARD, QC:  If it please the Court, I appear

with my learned friend, MR I.G. SUTHERLAND,

for the appellant. (instructed by Freeh1ll

Hollingdale and Page)

MR C.L. PANNAM, QC:  If the Court pleases, I appear with

my learned friend, MR P.B. MURDOCH,	on behalf
of the respondents. (instructed by	Purves Clarke
Richards)

MASON CJ:	Yes, Mr Gillard.
MR GILLARD:	Your Honours, before we hand to Your Honours

the outline of the submissions, I desire to make a

few general observations about the case and how we

put it. Your Honours, on Thursday, 18 February 1988,

a warrant was issued to arrest the appellant and it

is our case and has always been our case that there
was no basis in fact or law for the issue of that
warrant; in other words, it should never have been

issued. Pursuant to that warrant the appellant was

arrested and detained in custody. It has been our

case, and will be our case, that the appellant was a

victim of an error by the lawyers involved on the

other side and maybe the court.

The appellant sought to have the error rectified

so far as he could and have the court record

corrected and he sought to do this as a matter of

justice.

MASON CJ:	How is this helping us, Mr Gillard?
MR GILLARD:	I am just doing a very brief outline, Your Honour,

of the case.

MAS•"~: ,.,_r:  All the members of the Court have read the appeal

book and at the moment I do not see what this

particular outline of your argument is going to do

apart from the written outline that we would expect

to receive.

MR GILLARD:  Yes. Well, Your Honour, I was going to then go

on and very briefly outline the events going through the court which would only take a ma~~2r of minutes.

MASON CJ:  Is there any need to do so, as we are familiar

with them, having read the contents of the appeal book?

MR GILLARD:  In the light of all that Your Honour has just s~d,

the answer is obviously no.

MASON CJ:	Perhaps you might hand up your outline of argument.
MR GILLARD:	Yes, if Your Honour pleases.

C2T2/2/HS	2	8/6/89
Marriner(2)

MR GILLARD (continuing):  Your Honours, it is an appeal

by leave; that is referred to in the first

paragraph. There were two appeals to the

Full Court. There was an appeal from the

decision of Mr Justice King who issued the warrant.

Leave to extend time to appeal was granted by

His Honour on 17 March. There was also an appeal

from the order of Chief Justice Young, dated

4 March, dismissing the summons that we issued

to set aside the warrant. Because there was some

doubt about whether or not our appeal was of right

to the Full Court, we sou~ht leave and so hence

there were in a sense two appeals as of right, so

we believe as of right and two by leave.

Your Honour, the chronology is set out there.

I do not know whether Your Honours wish me to go

through that. On Wednesday, 17 Feburary there

was the ex parte injunction granted by

Mr Justice Kaye. I refer Your Honours to that;

it is set out in the appeal book at page 1. It is

noted, Your Honours, that the injunction was against

the Marriners and the builder, two separate entities -

if I can describe them as such - as.servants and

agents. The injunction was to restrain trespassing

on the property.

On 17 Feburary a copy of the order was faxed

to the builder and a connnuncation was made with the

manager of the builder and Mr Marriner during that

afternoon. On the following Thursday there was service of a copy of the order mthe Marriners.

The order did not contain the endorsement as is

required by the r.ules of court, and I will take

Your Honours to the rules of court later. At 11.20 am

on that day Mr Smorgon observed work on the site,

namely that post holes were being dug, and that is

noted at appeal book reference 24. A copy of the

order was given to the builder's representative on

the site. At 3 pm the workers were observed digging

fence holes and observed encroaching on.to the

other side. There was a letter sent by the Smorgon' s	solicitors to the builder and the writ in the
actual proceedings was issued that day. At 5 pm there was the ex parte application before
Mr Justice King and he signed the warrant for the
arrest. At 9.30 pm on that evening Mr Marriner was
served with the writ and summons for the interlocutory injunction which was returnable the next day and
the affidavit in support. The following Friday morning
he was arrested and taken to gaol. He appeared in
court and was released.

C2T3/l/JM	3	8/6/89
Marriner(2)

MR GILLARD (continuing):  Your Honours, we wish to emphasize

that so far as the evidence of the alleged breach of

the injunction was concerned, the evidence of

encroachment was minimal, namely, post holes, that they were some distance from the nearest tree, and

there is no evidence of any danger to the trees

concerned. Now, Your Honours will have observed that

there is an affidavit from Mr Goldman as to what

took place before Mr Justice King. It is alleged in

that that counsel appearing for the Smorgons told

His Honour that there was some danger to the trees,

but if one looks closely at the evidence that is

before this Court, or indeed before the Full Court

and this Court, there is no evidence, no admissible

evidence, that there was any danger to the trees

as all.

DEANE J:  What do you mean by "admissible evidence" in terms

of an ex parte application?

MR GILLARD:  Your Honour, with respect, there is no evidence of

any danger to the trees. It is not a question of

admissible, there is just no evidence.

DEANE J:  But there is evidence, if I follow what you said, that

His Honour was told there was danger to the trees.

MR GILLARD:	It was asserted from the bar table, according to the affidavit, that counsel appearing for the
Smorgons informed His Honour that there was danger
to the trees. There is no evidence to that effect.

Well then, the summons was issued to set it

aside. Your Honours will see that the summons is

restricted in that it seeks to set aside the

proceedings under the rules of court, but the

arguments that we put forward, the grounds or the

bases for setting aside the warrant were wider

than set out in that summons. The Chief Justice

heard the application and he dismissed it on

4 March 1988, and he, Yeur Honoun::; as you have no

doubt observed, first of all doubted whether he

had the jurisdiction to set aside an order made by

another judge, and, with respect, we would
respectfully disagree with him on that, but it does

not matter because as an over-abundance of caution

we appealed after that the order or the decision

made by Mr Justice King.

(Continued on page 5)

C2T4/l/FK	4	8/6/89
Marriner(2)

MR GILLARD (continuing):  The second point of His Honour's

reasoning was that since the warrant had run

its course, he said it was beyond his jurisdiction

to set it aside. He referred to a number of

authorities. I may say that we respectfully

disagree with him on that also, and put that

argument to the Full Court of Victoria and

they did not decide that point one way or

the other.

The third point the Chief Justice said

was that no practical effect would be achieved

by setting aside this warrant. Now the next

thing that happened is Mr Justice King's order

on 17 March, extending time to appeal to

the Full Court and then on 7 October 1988

the Full Court and Your Honours no doubt have

observed that the point taken by the judges of

the Full Court is that there would be no

practical effect achieved by setting aside the

issue of this warrant.

"MASON CJ: There are three questions raised by your notice

of appeal, are there? Three questions of law.

MR GILLARD:  Yes, Your Honour.

"MASON CJ:  I am looking at page 122. One - that no

practical effect would be served by setting aside

the warrant.

MR GILLARD:	Yes.
"MASON CJ:	Two - Supreme Court did not have jurisdiction

to set it aside.

MR GILLARD:	Yes.
"MASON CJ:	And three - there was no inherent jurisdiction

to issue the warrant.

MR GILLARD: Yes.

"MASON CJ:  Now, I ask you whether they are the three

questions for determination in this Court

because,glancing through your outline of

argument,I rather get the impression that you

were ~eek;ng to	range beyond those three
questions:

MR GILLARD: Well, Your Honour, they are the three clear

issues to be decided here, but I think I have

anticipated some of the other matters and I

will not spend very much time on the other matters - - -

C2T5/l/CM 5 8/6/89

Marriner(2)	(Continued on page SA)
MASON CJ:	But how can you spend any time on the other

matters, because they are not raised by the
notice of appeal and I take it that the grant
of special leave to appeal was with a view to
the determination of these three particular

questions?

MR GILLARD: Yes, well that is so,Your Honour.

(Continued on page 6)

C2T5/2/CM	SA	8/6 /89
Marriner(2)

MASON CJ: 

Perhaps we ought to proceed on that basis then.

the decision to issue - this is at the bottom of
page 3 - the decision to issue and the signing of
the warrant were made without proper exercise and

MR GILLARD:  Yes, if Your Honour please. Now, Your Honours,

jurisdiction of the court and contrary to the rules

of court. Your Honours, the warrant itself is set
out at page 11 of the appeal book, and Your Honours

will see that the heading is:

Arrest Warrant in Summary Proceedings

for Contempt in Face of Supreme Court

To the Sheriff

Arrest DAVID WELLESLEY MARRINER of

29 Hawthorn Grove, Hawthorn and bring

him before the Court to answer a charge

of contempt, detaining him in custody

in the meantime.

It is dated the 18th and it is signed by

Mr Justice King, and that was the form, and it

is in Form 75A in the rules of court.	I take
Your Honours to the rules of court.	We have handed to

the Court a folder of legislation and texts and

if one goes over to Order 75 which is about eight
pages in to the part 6, it is after tab 6, Order 75,

as Your Honours will see, is headed Contempt, and

there is a definition there of:

"respondent" means a person guilty or

alleged to be guilty of contempt of court.

Then you have part 2, Summary Proceedings for Contempt.

(Continued on page 7)

C2T6/l/HS	6	MR GILLARD,	8 I 6/ 89
Marriner(2)

MR GILLARD (continuing):

Contempt in face of the Court

75.02 Where it is alleged or appears to

the Court that a person is guilty of contempt

of court cormnited in the fact of the Court, the

Gout may -

(a) by oral order direct that the respondent be

arrested and brought before the Court; or

(b) issue a warrant for his arrest in Form 75A.

Rule 75.03 states that:

Where the respondent is brought before the

Court, whether under oral order or warrant

for arrest, the Court shall cause him to be

informed of the contempt with which he is

charged and adopt thereafter such procedure

as in the circumstances the Court thinks fit.

Rule 75.04:

Custody pending disposal of charge

The Court may order that until the charge is

disposed of the respondent be kept in custody -

et cetera. This warrant was purportedly issued under
those provisions and there is no doubt at all that

it could never have been issued under those rules.

It was an application made to enforce a restraining
injunction and there is no way in the world that

this could ever be said to be a warrant issued

under those rules.

The rules - and these are new rules, Your Honours -

go on to provide in part 3 on that page, "Other

Procedure for Contempt".	Your Honours will note
that:
This Part applies to -
(a) contempt of court cormnitted in the face of
the Court;
(b) any other contempt of the Court -
and -
(2) In the case of contempt of court cormnitted
in the face of the Court, the procedure under this Part is alternative to that under Part 2.

It then states what procedure should be adopted if

that procedure was to be followed:  -

C 2T7 /1/ JM	7	8/6/89
Marriner(2)

75.06(1) Application for punishment for

the contempt shall be by summons or

originating motion in accordance with

this Rule.

(2) Where the contempt is ..... in relation

to a proceeing in the Court, the application

shall be by summons.

Rule 75.06(4) says it:

shall specify the contempt.

Rule 75.06(5) says:

The summons or originating motion and a

copy of every affidavit shall be served

personally on the respondent, unless the

Court otherwise orders.

Your Honours will see there that there is a power

given to the court, if one was to follow that

procedure, whereby, no doubt in certain circumstances,

one could proceed without service.

(Continued on page 9)

C2T7/2/JM	8	8/6/89
Marriner(2)

MR GILLARD (continuing): If one then goes over to the

next page,and I apologize to Your Honours because that

next rule has been slightly amended, Order 75.08

is an arrest provision. Your Honours can delete

all of (b) there and I will arrange, before the

morning is out, to get Your Honours a proper

copy of that; but it now reads:

Where -

(a) a summons or originating motion for

punishment of a contempt has been filed,

and it appears to the Court that the
respondent has absconded or is likely to

abscond or has left or is likely to leave

Victoria;

the Court may issue a warrant for his arrest and detention in custody until he is brought before the Court to answer the charge, unless

he gives security, as the Court directs,

for his appearance in person to answer the
charge and to submit to the judgment of

the Court.

MASON CJ: All that has been deleted is the disjunctive

and (b)?

MR GILLARD:  Yes, (b).

MASON CJ: If that is so, there is no need for you to

supply us with another copy.

MR GILLARD:  Yes, if Your Honour pleases. That was amended by statutory rule 286 of 1987. So, Your Honours

will see that there is power, if one was to follow

that procedure,of permitting proceedings to be
taken without notice under 75.06(5) if the Court

otherwise ordered and one may also have the power

under 75.08. So, they are two limited powers

the court has to proceed what might be called

ex parte.

Then, Part 4 is concerned with the procedures:

This Part applies ·wher.e the Court finds

that a respondent is guilty of contempt

of court.

And 7 5 . 11 ( 1 ) :

Where the respondent is a natural person,

the Court may punish for contempt by committal to prison or fine or both.

Then 75. 14, over the page is the one relating

to costs.

C2T8/l/SH	9	8/6/89
Marriner(2)

Now, Your Honours will see that that is

the way tbe rules are structured in the Supreme

Court of Victoria as at 1986 and they were the

rules that applied and Your Honours will see
that the attempt to issue under Part 2 has no

basis at all.

Now, Your Honours, what happened before

Mr Justice King one has to rely on the affidavit

and I have noted that at the top of page 4.

It is clear, in our submission, the law has proceeded on a wrong assumption because they

produced the warrant in the form which was

signed. We say, as appears in (c) on page 4,
that the issue of the warrant was unlawful and,
perhaps, point 2 is the real point: that the

warrant was issued for an alleged contempt in

face of the court; clearly, a wrong basis and

a wrong procedure.

Now, there are other bases put there but

that is not really in issue in this appeal and,
indeed, has never been in issue. It has been

accepted that the warrant purportedly issued

under Part 2 of 75 was just not appropriate.

Your Honours, I make the observation - this is leading into the aspects of practical effect

in 6 - that a failure to comply with an injunction

is a civil contempt - - -

MASON CJ: Well, just before you come to that, can we

take it that you are relying on (c) (2) and we

do not need to rely on the other matters that

are listed in (c)?

MR GILLARD:· Yes, Your Honour.

MASON CJ:  Yes.

(Continued on page 11)

C2T8/2/SH	10	8/6/89
Marriner(2)

MR GILLARD: Well, now, Your Honour, failure to comply with an

injunction is a civil contempt. Contempt in the face

of the court is a criminal contempt. There is a

difference; the latter is a crime, it is considered more

serious. I refer to authorities there that Your rlonot·rs

are ~o coubt aware of. Over the page I have referred

Your Honours to the rules that I have just gone

through and I make the point: there is no evidence

of contempt in face of the court.

I refer Your Honours to references to text

which are in the book we have handed up to you of

Borrie and Lowe and Miller and a number of cases and,

again. it is unnecessary to refer Your Honours to

that.

MASON CJ: There is no suggestion of a contempt in the face

of the court in this case, is there?

MR GILLARD:  No, no way. Yes, Your Honour, that is correct.

DEANE J: Except it would seem that there was a mistaken

allegation of contempt in the face of the court by

somebody who did not understand the difference.

MR GILLARD:  Yes, Your Honour, with respect -

DEANE J: Well, now, that may be important.

MR GILLARD:  Of course we were not there. We can only rely

upon the affidavit. One can assume from the

affidavits that the form of warrant was produced

to His Honour in that form. I mean, reading between

the lines,if I might say so, the affidavit is very

carefully drawn.

DEANE J:	But is not the inference clear enough that there
was an allegation of contempt in the face of the court made to a judge who accepted it - - -
MR GILLARD:	Yes.

DEANE J:	- - - in circumstances where the person making
the allegation was mistaken and the judge who
accepted it did not avert to the distinction between
contempt in the face of the court and ordinary
contempt.

MR GILLARD: Yes, I respectfully agree with that Your Honour.

It must have happened.

DEANE J:	But I highlight it to you because it may be critical
to the question of jurisdiction, whether the judge
made a mistake in accepting an allegation as distinct from whether no allegation was ever made and no
mistake was ever made by the judge.
MR GILLARD:	With respect, I do not quite follow the point of the criticality to jurisdiction, Your Honour.

C2T9/l/DR	11	8/6/89
Marriner(2)

DEANE J:	You have been looking at; ita lot more closely than I
have, so if you could just go along.
MR GILLARD:	Yes. Well, Your Honour, we can only assume what

occurred. We have been given so much and just so

much. Whether His Honour's attention was drawn to

these rules we do not know. But one thing clearly

comes through the affadavit material and that is he

was handed up a form of warrant in this form and

was signed. Now, Your Honours, going on to the

second point on that page: that we say that when one

looks at it there was no admissible evidence before
the court, that Mr Mqrrine½ or any of his servants
or agents,was a party to any breach of the original

injunction.

We make the point that Order 75 Part 2 is the

only power to proceed under the rules in a summary way,

and without notice, even though we do accept that

unaer 75 Part 3 the court may, if application is

made to it in the proper form, issue a warrant even

though the motion and the copy of the affadavit

has not been served. That is 75.06(5).

DEANE J:  Why do you say that there was no evidence of breach?
I thought there was evidence of excavation being
carried out on the Smorgon side of the boundary.

(Continued on page 13)

C2T9/2/DR	12	8/6/89
Marriner(2)

MR GILLARD:  There was evidence, Your Honour, but bear in

mind that Mr Marriner was one party; Merchant

Builders were the other party. Merchant Builders

were doing the work, admittedly he is a director

of that company and the evidence may lead one to
the conclusion that those who were doing the
building works had trespassed over on to the other
side, but, in our submission, on a close reading of

the evidence that does not establish a breach by

Mr Marriner.

McHUGH J:	Mr Gillard, what about the hearsay evidence that
Mr Hagan gave?

MR.GILLARD: Well, in our submission, that would be inadmissible

against Mr Marmer, Mr Hagan said that a man on

the site had made mention that he took his orders

from his boss, and I think, at one point it said,

"from Mr Marriner". There was nothing wrong with

digging on their side, it is when it trespassed

on the other side that it becomes an offence, if I

could put it like that.

DEANE J:  But he was restrained by his servants and agents

from excavating on the Smorgon land in a context

where, the evidence is, he had been by that time

served with the written injunction. He had said

that he was going to put the injunction among

his collection for attention by his next solicitor

and where work on his land then continued to be

done and to go into the Smorgon land. Surely there

is a basis for an inference there in an ex parte

proceeding and an urgent proceeding.

MR GILLARD: Well, bearing in mind that these are very

serious matters, in our submission, you cannot

necessarily draw the inference that Mr Marriner

is a party to any breach. He can tell his workmen

to get on with the job on their side - - -

DEANE J:  And he can tell the people on his land to stop when

he is served with an injunction.

MR GILLARD:	Yes, but with respect, the injunction did not stop works carrying on on his land, they only restrained
he and his servants and agents from working - from
trespassing.  So, that does not stop the builder
from performing the work on his land.
DEANE J: Well, probably not much turns on it.	I would have

thought myself in an urgent injunction case, if an

injunction is granted against a land owner who says

that he will put it with his collection of

injunctions and what is enjoined then continues on

his land, any court is entitled to treat that as

prima facie evidence that he is disregarding the

injunction.

C2Tl0/l/FK	13	8/6/89
Marriner(2)

MR GILLARD: Well, Your Honour, the question whether there

was trespass with his knowledge, in our submission

the injunction did not restrain work continuing

on his land.

DEANE J:  But unless one is playing smart tactics, or something,

a person served with an injunction to stop something

on his land stops it.

MR GILLARD:  Yes, but the injunction was to stop trespassing - - -

DEANE J: Particularly when it is a company that he is

director of that is doing it for him.

(Continued on page 15)

C2T10/2/FK	14	8/6/89
Marriner ( 2 ).

MR GILLARD:  Yes, but it was the restraint of the trespassing,

Your Honour, as distinct from carrying on the

building work on his land. Now, Your Honours,

Order 75 are the provisions that relate to contempt.

Order 66 relates to enforcing orders, and that is in the bundle of rules and it is headed - this is behind tab 6, Order 66.01, Enforcement of Judgments

and Orders:

"judgment" includes -

(i) an order -

Order 66.05(1) is headed:

Doing or abstaining from doing any act

This Rule applies where

(a) a judgment requires a person to do

an act .....

(b) a judgment requires a person to abstain

from doing an act, and he disobeys the

judgment.

(2) Where this Rule applies, a judgment may,

subject to Rule 66.10, be enforced by one

or more of the following means -

(a) a committal of the person bound;

(b) sequestration -

and then goes on to talk about corporation.

Order 66.10(1) talks about service before committal:

A judgment shall not be enforced by committal

or sequestration unless -

(a) a copy of the judgment is served

personally on the person bound.

Order 66.10(3):

A copy of a judgment served under this Rule

shall be indorsed with a notice, naming the

person served, that the person served is
liable to imprisonment or to sequestration

of property if .....

(b) where the judgment requires the person

bound to abstain from doing an act, the

person disobeys the judgment.

C2Tll/l/HS	15	8/6/89
Marriner(2)

Order 66.10(5):

A judgment requiring a person ..... to

abstain from doing an act may be enforced

under Rule 66.05 notwithstanding that

service has not been effected under this

Rule if the person against whom the

judgment is to be enforced has notice

of the judgment -

(a) by being present ..... or;

(b) by being notified .... .

(6) The Court may dispense with service

under this Rule.

Where one goes from there is this, that if one seeks

under those rules to enforce an injunction in this way

you go from there then through to Order 75 which is

the provisions relating to contempt and so it is a

combination of Order 66 and Order 75 which brings

together the procedures that one can enforce, and

I refer Your Honours to Williams, Supreme Court

Civil Procedure at pages 346 to 349, and that is also set out in the text behind tab 3.

Your Honours, we then come to what we submit is

a very important provision and that is section 3

which is on the top of page 6. I refer Your Honours

to section 3(4) and 3(5) of the SUPREME COURT ACT.

(Continued on page 17)

C2Tll/2/HS	16	8/6/89
Marriner(2)

MR GILLARD (continuing):  Your Honours will see that that

is the new SUPREME COURT ACT of 1986. The purpose

is noted in section 1 as to:

(a) to amend and consolidate the law relating

to the Supreme Court; and

(b) to amend the law of Victoria insofar as

it relates to the procedure of the Supreme Court.

If one then goes over to section 3, which is on

the next page, subsection (4):

A proceeding to which the General Rules of
Procedure in Civil Proceedings 1986 aµply must, despite anything in any Act or enactment, be corrnnenced and conducted in accordance with those Rules and not

otherwise.

(5) A judgment in any proceeeding must be

enforced in accordance with the General

Rules of Procedure in Civil Proceedings 1986

and not otherwise.

We submit that that section makes it clear that

the court is bound to follow the rules and that

there is no other way that a judgment may be

enforced except in accordance with the rules,

that is order 66 combined with order 75.

McHUGH J:  Does that mean the court has got no inherent

jurisdiction?

MR GILLARD:  That is my next point, Your Honour, yes.

I then come to the next paragraph, at the top

of page 6. We submit that there is no common

law inherent jurisdiction to arrest a person

without notice and bring him to court for an

· alleged breach of an injunction. We refer

Your Honours to those sections: that is

point ( i) , 'must" is mandatory.	That is the new
simple language.
We submit that the new rules of court comprise

a code with respect to enforcement. Procedures

must be followed. I refer Your Honours to WILLIAMS,

but I also refer Your Honours to the judgment of

Mr Justice Ormiston in this case at appeal book

page 115, where His Honour, in our submission,

supports that observation. What His Honour has just

already said - this is at the middle of page 115 -

that he accepts that there is a jurisdiction in the

court to ensure that its orders are upheld.	Then,
at line 21, he says this:

However, I have some reservations as to

the circumstances in which this Court's

inherent powers can be invoked in circumstances

C2Tl2/l/JM 17 8/6/89

Marriner(2)

such as. those which arose here. The

general rule referred to in Murphy, J's.

judgment cannot be doubted and in particular

I have no doubt that a superior court can

take any necessary step to preserve the

subject matter of an action pending a decision.

He refers to some cases and an article.

My reservations stem primarily from s.3(5)

of the recently passed Supreme Court Act 1986 and

Orders 66 and 75 ..... That sub-section explicitly

requires that a judgment (which includes an

order) in any proceeding must be enforced in

accordance with the Rules of this Court "and

not otherwise". When taken -with the urovisions

Orders 66 and 75,which were given statutory

validation and approval by the Supreme Court

(Rules of Procedure) Act 1986, it will be seen

that the primary object was to substitute new,
simplified farms of execution for the old writs

of execution which were in many cases both

complex and hard to understand. It follows that

parties to litigation may no longer employ

process such as the writs of fi. fa., venditione

exponas and attachment.

(Continued on page 19)

CIT12/2/JM·	18	8/6/89
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MR GILLARD (continuing):

New warrants of execution have taken their place. For example, Rule 66.05 provides

that where a judvnent or order requires

a person to abstain from doing an act and

he disobeys that judgment or order, then

committal or sequestration of property are

the only two means prescribed by the rules
for enforcement of that judgment or

order. In turn the procedure for committal

for contempt is set out in Order 75. The

restrictions imposed by the sub-section

and the rules may directly or indirectly

impose some limits on the traditional

methods of enforcing judgments and orders,

but I should emphasize that the problem

was but barely touched upon in argument

and I should be unwilling in these

circumstances to express final conclusions

on the matter. The ends to be achieved in

the exercise of the Court's undoubted
inherent jurisdiction may and indeed should

remain the same, but the methods of

achieving those ends have been altered
and may have to be adapted further.

Now, Your Honours, the third point in support of our submission, there is no inherent power:

if one is talking about inherent power coming

up through the old law then, if one goes back

through history, one finds that, in our

submission, there was no inherent power in a

superior court to issue a committal for arrest

without notice and we make the note that,

prior to 1883, the proper process to enforce

injunction was by way of committal.

We refer Your Honour to those cases. Perhaps

in summary I could indicate what the law appears

to have been prior to 1883. I have set it out
thereafter, but I do not think it is very well

expressed, Your Honours, - if I could just
summerize it in this way.	The law, prior to

1883, was this that, if you went by way of

attachment, that was to enforce an order where a party failed to perform some act required by the judgment of the court, for example,

specific performance and one could seek attachment

without notice and it was thought that the

rationale for that procedure was that it be

unlikely to be much dispute where the simple

proof was that the act had not been done.

On the other hand committal was the

procedure to enforce an order where a person
breached a restraining injunction and the old

law required notice and the rationale for that,

C2Tl3/l/CM	19	8/6/89
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as we understand it, is because there was always

a scope for dispute, or there could be scope

for dispute, as to whether or not the litigant

had breached, or the party had breached, the

restraining injunction.

Now in 1883, with the JUDICATURE ACT and

rules, the rules changed those procedures in

three respects. The first was that order, and

this is the old JUDICATURE ACT rules, which

I think are the same in England as Victoria up to 1986, was Order 42 rule 7, equated

attachment and committal as the same

procedure. You could go at your choice by

attachment or committal. The second change

was that Order 44 related to attachment and

rule 2 of Order 44 said that thereafter you

required notice to be given where there was

an attachment and Order 52 rule 3 permitted,

in certain circumstances, that one could go

via attachment or committal without notice, if

there was likely to be irreparable harm or

serious mischief.

If I could just hand to Your Honours a

photostat copy of second edition of Halsbury. It

is volume 7.

(Continued on page 21)

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MASON CJ:	Thank you.
MR GILLARD:	That precisely summarizes the point we are

making. This is the second edition of Halsbury,

volume VII, page 36. It is noted: Attachment and committal are summary processes

for punishing criminal contempts and also

modes of execution for enforcing judgments and

orders.

At the bottom of that page, the footnote says:

The origin of committal, as distinguished from attachment, is to be found in the practice of the Court of Chancery. Where attachment issued the offender was arrested by the sheriff, and, if the contempt required to be adjudicated, was

brought before the Court, examined upon

interrogatories, and upon proof of the

contempt was committed to the Fleet ..... In

cases of assaulting or abusing a process server

or speaking scandalous words of the Court,

an order was made for immediate committal upon

ex pmte motion; supported by an affidavit of

the facts, and upon contempt in the face of

the Court an order for committal was made

instanter, as at present. At one time

attachment followed by interrogatories was

applied upon the breach of an injunction,

but the later practice, which is still

followed, was to serve the accused with a

notice of motion for committal and to decide

the question upon affidavits on both sides.

Now, Your Honours, that, as we understand it, and

the references are early 1800, the law relating to the Supreme Court of Victoria and its jurisdiction,

Mr Justice Murphy referred to section - this is at

appeal book page 80 where he sets out section 85

of the CONSTITUTION ACT of Victoria -

DEANE J: Mr Gillard, can I distract you for a moment, just

so I can follow where we are going?

MR GILLARD:	Yes.
DEANE J:	Assume that the proper conclusion - and we have not

heard Dr Pannam, of course - is that in this case

there was an unfounded and misconceived allegation

of contempt in the face of the court. Now, if that

be so, did not His Honour have jurisdiction, because

Order 75 says that where it is alleged, the person

is guilty of contempt of court committed in the face

of the court, you may issue a warrant.

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MR GILLARD:  His Honour has jurisdiction if there is such

a contempt, I respectfully agree with - - -

DEANE J:  No, but you cannot say that. I mean, what gives

jurisdiction is the allegation, but if His Honour

goes wrong in accepting the allegation, that means

there might be an erroneous exercise of jurisdiction,

but it does not go to the existence of jurisdiction.

MR GILLARD:  No, I respectfully agree; it is an erroneous

exercise of the jurisdiction.

DEANE J: Well, now, if that be so - and it seems to me that

if one accedes to all your submissions, that is where

one ends- now, why should we be concerned about whether

or not there was inherent jurisdiction because again,

subject to what Dr Pannam might say, it seems difficult

to see how the issue of the warrant could be justified

if what happened is looked at in terms of whether

jurisdiction was rightly or wrongly exercised.

(Continued on page 23)

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MR GILLARD: Well, I respectfully agree, Your Honour. I suppose

I am really anticipating the arguments that he may put.

Perhaps I am wasting the Court's time to some

extent, but I am really anticipating that he might

try and say that outside that Act he nevertheless still

had a jurisdiction, he was purporting to do it

though mistakenly purporting to exercise it.

DEANE J:  But His Honour has effectively identified the

statutory jurisdiction he was exercising by the

warrant which he issued, and, indeed, by the

course he took.

MR GILLARD:  Yes, I respectfully agree, Your Honour, and I

really am anticipatin& I suppose - - -

DEANE J: Well, do not let me stop you.

MR GILLARD: Well, no, Your Honour, I do not want to take up

too much of the Court's time. I may say that

His Honour Mr Justice Murphy referred to the jurisdiction

of the court, he referred to that section. The

relevant date that Act no 502 is an.Act that

came into operation on 4 January 1875. _ If one

is looking at going behind the JUDICATURE ACT

and the rules to see whether there was any such

inherent jurisdiction that came through, then,

in our submission, the jurisdiction in those days

required notice and we say that there is nothing
that comes up from the past which permits a court
to issue a warrant without notice, and that is a

point we seek to make. That is supported by the

cases that were set out on page 6, and particularly

Your Honours will see there is a case of RE EVANS

and there is a note of Mr Registrar Lavie, that is

at the middle of page 6 in D VA, and they

set out all that I have just put to Your Honour, and

iu our submission supports it.

That then brings me to DOYLE V THE COMMONWEALTH

in this Court, and I take Your Honours to that

case because it - - -

McHUGH J: Just before you do, can I just try and understand

the basis of your submission? Is it your submission
that the issue of this warrant for arrest was a
nullity, or that it was process wrongly issued in
the exercise of an undoubted jurisdiction of the court? ·

MR GILLARD:  It was a wrong exercise of the jurisdiction of the court. I do not particularly want to get into

nullities and void and voidable. In our submission

it is a nullity in the sense that it is a wrong

exercise of a jurisdiction. It has no effect if the

rules prescribe a procedure and you just do not

pursue that procedure then -

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McHUGH J: But, if it is signed by a judge then it does have

effect, does it not, until it is set aside?

MR GILLARD: Well, that depends whether it is void or voidable,

Your Honour, though I think the better view is

now that it does have effect until it is set aside,

that is so, and Your Honour, I will be cornrning in

a moment to the basis of setting aside jurisdiction,

that is page 7, and there is that decision of

ISAACS V ROBERTSON which I will take Your Honours

to - I think it is the Privy Council, if I remember

correctly, where Lord Diplock makes mention of

whether it is void or voidable, but also, clearly,

you have a jurisdiction to correct errors

ex debito justitiae.

So, Your Honour, I will come to that in a moment, and I will take Your Honour to those

cases - I would like to refer Your Honours to those

cases.

McHUGH J:	What are you going to cite DOYLE for?
MR GILLARD:	DOYLE is an example where the Court reaches a

certain point, this Court has reached a certain

point under the old rules where there was a similar

type situation in this sense that Mr Justice Brooking

issued a warrant in the Supreme Court of Victoria

to arrent some trespassers on Cormnonwealth property

without notice.

(Continued on page 25)

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MR GILLARD (continuing):  So the court there said you could not

do it. The. court did leave a question mark over

whether or not there was an inherent jurisdiction

but it said in any event," If there was an inherent

jurisdiction, it would be only exercised within the

most exceptional circumstances." Indeed, if that

is correct, then this is not that case, in our

submission.

McHUGH J:  But why do you go there? Your point is that this

warrant was irregularly issued, purported to be tmder Order 75,

and it was not. Is not the only question from your

point of view whether it can now be set aside?

MR GILLARD:  Yes, that, with respect, is correct. As I say,

I am anticipating, I suspect. Your Honours, I

refer Your Honours to DOYLE. As I say, it is a

case that has a degree of similarity except it is

under the old rules. Itdid raise the question of

whether or not the court had inherent jurisdiction.

That was a case where an injunction had been made

against some trespassers on Commonwealth property.

They disregarded the injunction so Mr Justice Brooking, as appears at page 514, issued a writ without notice.

The application was made ex parte.

As appears in the middle of page 514. The bottom

of page 515 appears the statement of law that we

rely upon:

It is sufficient to point to two insuperable difficulties in the way of upholding the order

made by Brooking J. on 7 October: a failure

to serve on the persons sought to be committed

notice of the application for the order for

committal, and the form of the order -

Then, Their Honours, in the joint judgment:

Although disobedience of an injunction is not

a criminal offence -

et cetera	a proceeding for the committal of a person who has wilfully disobeyed an order of the court
is not a criminal proceeding except possibly
where the proceedings are grounded upon a
contumacious or defiant contempt of the court,
a proceeding for committal may result in a
very serious interference with the liberty of the subject - indefinite confinement. Safeguards similar to those appropriate in
criminal proceedings therefore apply.
Speaking generally, the notice of motion for
committal must be served personally on the

C2T16/1/DR·	25	8/6/89
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person sought to be committed, the charge must

be distinctly stated in the notice of motion or

other application and the person sought to be

committed must be given a proper opportunity to

answer the charge.

Your Honours referred to the well-known passage in

COWARD V STAPLETON, anc1 at the top of page 51 7 :

Consistently with this principle, the courts

have insisted on the importance of personal

service of a notice of motion for committal -

indeed, so strictly has the requirement been
enforced that it has been held that service
could not be dispensed with although counsel
undertook to appear for the defendant or

appeared on behalf of the defendant to object

to the motion proceeding. The authorities

were reviewed in TAYLOR V WHELAN by Little J.

who, in the absence of personal service, refused
to proceed with a motion for commital and further

refused to make ex parte an order dispensing

with:service. However personal service is not

indispensable; substituted service may be

ordered in a proper case. The effect - - -

TOOHEY J:  Mr Gillard, there is another point of distinction,

is there not, that in DOYLE there was still work

for the court to do because the persons in question

were in custody.

MR GILLARD:  No, Your Honour. What had happened was

Mr Justice Brooking had them arrested, he refused to

release them - if I remember correctly - it went to

the Full Court and then they came to Mr Justice Wilson

of this Court within, I think, 24 hours, got an

order nisi and they were released.	It was not until
1~ months later that this matter -

TOOHEY J: Well, they were in custody at the time the order nisi

was granted.

MR GILLARD:  Yes, yes. I think that order nisi was discharged

because special leave was granted later. The case

came on in this Court 18 months after the event.

(Continued on page 27)

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MR GILLARD (continuing):  Then two-thirds of the way down

page 517, after talking about substituted service:

It was submitted on behalf of the

plaintiffs that the Court was given power

by 0. 52, r. 3 of the Rules of the

Supreme Court of Victoria to hear a motion

for committal ex parte and that in any case

it could do so pursuant to its inherent

power. Order 52, r.3 provides that subject

to certain exceptions no motion shall be
made without previous notice to the parties

affected thereby and then continues as follows:

"But the Court or Judge, if satisfied that

the delay caused by the proceeding in the

ordinary way would or might entail

irreparable or serious mischief, may make

any order ex parte upon such terms as to

costs or otherwise, and subject to such

undertaking (if any) as the Court or Judge

may think just; and any party affected by

such order may move to set it aside."

It was held in LATROBE UNIVERSITY V

ROBINSON AND POLA that the provision of 0. 52,

r. 3 apply to motions for committal. There is

no reason to doubt the correctness of the

decision on that point; it is supported

by BERNSTEIN V BERNSTEIN and HIPGRAVE V HIPGRAVE -

1n England -

cases which considered the effect of an

English rule in the same terms as 0. 52, r. 3.

However, the power given by the rule exists

only when the judge is satisfied that the

dealy caused by proceeding in the ordinary

way, i.e., by requiring previous service

of the parties affecte~ would or might entail

irreparable or serious mischief. There is not

the least evidence that delay in the present

case would have cuased any such mischief.

LATROBE UNIVERSITY upon which the plaintiffs relied, was a case in which it was held that

conditions stated in 0. 52, r. 3 were

satisfied; in that respect of course the

decision depends entirely on the evidence

adduced in that case.

The alternative submission was that the court

has an inherent power or jurisdiction to

dispense with service and make an ex parte

order for committal, at least if the contempt

was flagrant and contumacious. A number of

decisions of single judges, including

HIPGRAVE and WARWICK appear to support this

proposition:  see also LATROBE.

C2Tl7/l/HS	27	8/6/89
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Just pausing there, Your Honours, what was said

in those English cases was obiter. Those decisions

in England are supported by Order 52, rule 3. The

judges - and they are single instance judges - did

say that they thought there was an inherent power

and so did LATROBE UNIVERSITY V POLA, relying upon

WARWICK CORPORATION:

However, with the greatest respect,

a judge cannot dispense with the

requirements of the Rules of Court
unless the Rules give him power to do

so, and when a power is expressly conferred

on the court subject to a condition, a judge

cannot, by relying on inherent powers, escape

from the necessity of ensuring that the

condition has been fulfilled. In the

Supreme Court of Victoria, 0. 52, r. 3

governs the power of the court to proceed to hear ex parte a motion for committal -

it can do so only if it is satisfied that the

delay caused by proceeding in the ordinary

way would or might entail irreparable or

serious mischief. This view was supported

by BERNSTEIN V BERNSTEIN.

In any case, the fact that a breach appears to be flagrant and contumacious should never

by itself justify a court in making an

ex parte order for committal. When the court

proceeds ex parte the person against whom the
order is made obviously has no opportunity
of putting forward his or her side of the
case and when all the evidence is before
the court the alleged contempt may prove

to be much less serious than it first

appeared. Only in an extraordinary case

would it be right for a court to proceed

ex parte in committal proceedings in

exercise of the power conferred by a rule

such as 0. 52, r. 3 or, if no such rule

exists, under an inherent power. Indeed,

even in the absence of any express rule in

terms such as those of 0. 52, r. 3, a judge

in any jurisdiction should ensure, before he

proceeds ex parte to make an order for

committal, that there is a particularly

urgent need to proceed in that way in order
to avoid irreparable or serious mischief.

There was no justification for proceeding

ex parte in the present case.

(Continued on page 29)

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MR GILLARD(continuing):  What happened, as Your Honours can

see from 520, that the order made by

Mr Justice Brooking was set aside. -

Your Honours, as we say at the top of

page 7, English cases appearing in DOYLE, ra~e 518,

are all explicable as being examples of the exercise

of jurisdiction given under the old Order 52 rule 3.

It is our submission, Your Honours, that irrespective

of section 3(5) of the Act there is no

inherent jurisdiction to be exercised of corrn:nitting

a person without notice. Your Honours, if we are
wrong and there is a corrnnon law inherent power,
and if that is the way it is put against us, then
it would only be on the basis of irreparable or

serious mischief and we would submit that that is

not this case. There is no evidence of irrenarable
harm or serious mischief and there is no evidence

of urgency.

DEANE J:	Was there any warrant in DOYLE's case?
MR GILLARD:	I th-nk it was an order, Your Honour.
DEANE J:	There is an order but it is not an order directed to any specific person.
MR GILLARD:	Yes, that was the other basis upon which it

was set aside.

DEANE J:	Or authorizing anybody to hold them.
MR GILLARD:	At page 514 it is stated:

IT IS FURTHER ORDERED that each of the

following persons do stand corrn:nitted to

prison.

DEANE J:  I follow it as an order. I would have expected

a warrant; perhaps I am wrong.

MR GILLARD:  I cannot assist, Your Honour, what actually

followed from there: whether another document

was issued pursuant to that order to the sheriff,
or whether the sheriff just merely relied upon that

order to take into custody.

Your Honours,in page 7,10 I refer to the

question of jurisdiction. I am not sure that (a) matters, but I would like to take Your Honours to

what was said in ISAACS V ROBERTSON, (1985) 1 A.C. 97 -

at the bottom of page 7 - which does state the

principle of the court having jurisdiction to

correct errors ex debito justitiae. The uassage

appears in the decision of the Privy Council Judicial

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Committee. At the bottom of page 102:

Their Lordships would, however, take

this opportunity to point out that in relation
to orders of a court of unlimited jurisdiction

it is misleading to seek to draw distinctions

between orders that are "void" in the sense

that they can be ignored with impunity by

those persons to whom they are addressed, and

orders that are "voidable" and may be enforced

unl~ss and until they are set aside.

(Continued on page 31)

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MR GILLARD (continuing):

Dicta that refer to the possibility of there being such a distinction between orders to which the descriptions "void"

and "voidable" respectively have been

applied can be found in the opinions

given by the Judicial Corrrrnittee ..... in

MARSH V 1:f.ARSH (1945) AC 271,284 and
MACFOY V UNITED AFRICA CO. LTD.(1962)

AC 152,160; but in neither of those

appeals nor in any other case to which

counsel has been able to refer their

Lordships has any order of a court of unlimited jurisdiction been held to fall

into a category of court orders that can

simply be ignored because they are
void ipso facto without there being any

need for proceedings to have them set

aside. The cases that are referred to

in these dicta do not support the
proposition that there is any category of

orders of a court of unlimited jurisdiction

of this kind; what they do support is the
quite different proposition that there is a

category of orders of such a court which a
person affected by the order is entitled to
apply to have set aside ex debito justitiae
in the exercise of the inherent jurisdiction
of the court without his needing to have
recourse to the rules that deal expressly

with proceedings to set aside orders for

irregularity and give to the judge a

discretion as to the order he will make. The judges in the cases that have drawn

the distinction between the two types of

orders have cautiously refrained from

seeking to lay down a comprehensive

definition of defects that bring an order into the category that attracts ex debito

justitiae the right to have it set aside,

that have been obtained in breach of rules	save that specifically it includes orders
of natural.justice.

And the same observations are made in BRENNAN

on the next page and MACFOY. So far as(c)is

concerned Order 46 rule 08, there is such a

provision in the rules, but it is confined to

an order and that raises the questions of

whether or not an order was made by the judge

in this case.

GAUDRON J: Mr Gillard, can I take you back to ISAACS V

ROBL~SON and the reference at page 103, to

"discretion to set the matter aside".

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MR GILLARD:  Yes, as I understand Their Lordships, what

they were saying there,Your Honour, is this,
that that is where the rules permit a

discretion to set aside, but as I understand

His Lordship, he was saying that if there is

a right ex debito justitiae, then it is not
a matter of discretion, it ought to be set

aside.

GAUDRON J:  As an exercise of inherent jurisdiction

would it be as of right?

MR GILLARD: Well, that is what we would be saying to

this Court, Your Honour, that if an error has

been made in the way this is and if ex debito

justitiae jurisdiction applies then, in our

submission, that is a right that should be

exercised in favour of the person who has

been affected by the order.

DEANE J: Well, you have got to face up to the nature

of the order, have you not? I mean here the

nature of the order was that it was the warrant

under which those acting pursuant to the court's

order could do what they did. Now, it may be

that if the warrant had not run its course, what

you are putting would be irresitible, but

when the warrant has run its course, the only
reason the affect of a formal order setting

it aside would be to set aside the authority

under which those who acted, had acted ..

MR GILLARD:  Yes, well - set aside the decision and

the record and correct the record.

DEANE J: Well, one can say that the warrant should not

have issued.

MR GILLARD:	Yes.
DEANE J: It is a different thing to say that those who

acted under the warrant, issued by the court,

should not have so acted because the warrant

will not stand.

(Continued on page 33)

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MR GILLARD:  Your Honour, what we seek is that there is a

decision that has been made that was made in error;

that there is a document that gives effect to that

decision which, in our submission, on its face,

is wrong; that our client is affected by the

decision and the record and we - - -

DEANE J: There is a document which authorizes those bound

by the orders of the court to do what they did.

MR GILLARD:  Yes, I respectfully agree with that, Your Honour,

but we are not arguing that - and indeed, not even

suggesting - they did not have an authority at

the time. We are not suggesting that even when

it is set aside that they could be sued for what

they did. We do not suggest that for one minute.

What we do say is that the decision and the record

is wrong and it affects our client and that is what

we seek to be corrected.	We seek that ex debito
justitiae.

We are not suggesting, Your Honour, that it

is necessary for this to be set aside to take proceedings against the sheriff's people. We accept, and I think if I remember correctly the

SUPREME COURT ACT says this, that they are protected,

whether it is a valid or invalid warrant.

MASON CJ:  Can you refer us to that provision?

MR GILLARD:  Yes, Your Honour. Do Your Honours have

copies of the SUPREME COURT ACT?

MASON CJ:	Yes, we have.
MR GILLARD:	Your Honours, at sections 114 following you have the provisions relating to the sheriff
and part of his function under section 115
is:

(1) In addition to all other acts and

duties required to be done by the sheriff

by this or any other Act, the sheriff must - (a) execute and return all warrants.

Then one goes down to section 126{1):

A person unlawfully imprisoned by the sheriff

or any of the sheriff's officers has an action

against the sheriff in like manner as against

any other person who should imprison him or

her without warrant.

We do not contend and do not seek to contend that

that gives us a right if the warrant is set aside

to take proceedings against the sheriff.

C2T20/l/JM	33	8/6/89
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McHUGH J:  But must it not come to that? You see, what

is it that you really seek to do: to remove

the warrant from the file?

MR GILLARD:  No, an order to set aside the decision and

the record, to correct it and we do not seek
to remove it from the file but we seek an

order that it should be set aside and to be of

no effect.

McHUGH J:  . What, prospectively, from a particular

time? I mean, if you sued the sheriff for

false imprisonment, he would plead the warrant.

(Continued on page 35)

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MR GILLARD:  Yes. With respect, I agree with that, and

even if it is set aside he would still, in our

submission, be entitled to rely upon it because he

was bona fide exercising his function when he

exercised the direction of the warrant.

McHUGH J:  Take an inferior court which issues a document

which is then later quashed on certiorari.	That
document - it might be some sort of warrant
imprisoning somebody - that document is of no
effect and cannot be relied on then, can it?

MR GILLARD:  It would depend on the circumstances, Your Honour.

I suppose in some circumstances you would say, "No".

I mean it is a question whet~~- it is void

ab initio - I suppose it woe	1e an an inferior
court but, Your Honour, let	make it quite clear

that we do not seek to set aside this for the purpose

of taking proceedings against the sheriff. Rest

assured on that and indeed my instructions are there

will be no proceedings against the sheriff.

DEANE J:  You may not, but what if proceedings were brought

under section 120(1) and the sheriff pleaded the

warrant and the answer was, "The warrant has been

set aside"?

MR GILLARD:  Yes. In our submission, the warrant would be

sufficient defence to the proceedings, even though

it has been set aside, because at the time when they
exercised the power they exercised a power given

to them by a superior court.

DEANE J:  That may be the outcome of the proceedings. Have

you any clear authority for that proposition? It

sounds logical enough, but why get involved in it?

MR GILLARD:  We have given some advice along the way in

relation to this, Your Honour, and I have not read

it recently, but there is no question of proceedings

against the sheriff and at the relevant time he was

acting pursuant to an order of the court that was

subsisting at that time and as the Privy Council

said, it is not a question of talking about voidable

and void - they are terms that are used in the area
of contract. What we are seeking is that the record be

corrected so that it does show that it is an incorrect

record and does not stand for a proposition that Mr Marriner may have committed a contempt in the face of the Court.

TOOHEY J:  But you are not only seeking that the order itself

be set aside, that is the order from which the

warrant derived, but you are also seeking an order

that the warrant be set aside, are you not?

MR GILLARD:  There is a slight problem with the rules,

Your Honour. There is no strict order under the

C2T2/l/HS	35	8/6/89
Marriner(2)

rules. It is a decision - clearly His Honour made a decision, and I suppose one could debate that in a sense it is an order - but he made a decision and

one assumes he said, "I'm prepared to sign this warrant

which has been handed to me", and he then signed it.

So the record that is in the court is the warrant.

There is no other record and that is why we seek to

set that record aside because it is a wrong record.

GAUDRON J:	Why does the ex debito justitiae considerations require any more than a declaration that the
warrant was irregularly issued?

(Continued on page 37)

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Marriner(2)

MR GILLARD:  I suppose, with respect, so long as that formed

part of the court record end a declaration was made

to that effect, that it was irregularly issued and

of no effect, or unlawful -

GAUDRON J:	I did not say, "and of no effect and unlawful".
MR GILLARD:	Yes.
GAUDRON J:	I simply said, "was irregularly issued".

MR GILLARD: Yes. Well, I suppose I would have to think a bit

more about that, Your Honour, whether it would be

a matter that would satisfy us. But that is what we

seek to do. We are in this dilemma, that there is

no order taken out in the sense of an official order

of the court, but there is a record. The record is

there and the record, in our submission, is wrong.

DEANE J:	Of course that raises the question, does it not,
whether it was a judicial or an executive act? There
might be an obligation to act judicially to the
extent that the statute does not override it;
query whether His Honour was performing other than
an executive function.
MR GILLARD:	I would have thought, with respect, that he was

exercising a judicial act pursuant to the rules, or he purported to act pursuant to the jurisdiction as

a judge. Your Honours, so far as the question was

put to us earlier about whether or not the sheriff

is protected: as we understand the law at common

law, a writ of execution is an absolute justification to the sheriff for what is done under it, even though

the judgment on which it is founded may afterwards

be set aside.

The sheriff, however, is liable if any act

is done in excess of the authority given by

the writ.

We refer to Halsbury, 4th edition, Volume XLII

paragraph 1135.

DEANE J: Well, that all sounds good sense but it skirts around

the question of what about if the writ itself is

set aside.

MR GILLARD:  Yes.

DEANE J: Particularly if it is quashed.

MR GILLARD: It goes on to say:

Further, even where an execution is irregular,

whether it is set aside or not the sheriff and

his officer and all persons acting under the

sheriff are, in general, protected by the writ

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Marriner(2)

provided it is not void on the face of it

and did not issue from a court without

jurisdiction.

That again is Halsbury, 4th edition, Volume XVII, paragraph 460.

McHUGH J: That is the point about jurisdiction.

MR GILLARD: Well, the supreme court being a superior court,

its orders are not void ab initio but merely

voidable.

GAUDRON J: That too depends on whether it is a judicial order

or an executive order, as Justice Deane put to you.

MR GILLARD:	We say that there is no - even if the decision or warrant is set aside - there is no basis for
suing the sheriff who, at the relevant time, was
acting in pursuance to what, on its fac~ was a
proper  authority from the court.

McHUGH J: What about the gaoler?

MR GILLARD:  Your Honour, again we do not start off by making

this proposition that we do not intend, and never

have, pursuing the sheriff or any gaoler. No doubt

I could look further into that opinion and see what we said about the gaoler.

(Continued on page 39)

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MR GILLARD (continuing): Again I would say it would be on the

same basis that the sheriff delivers the person

pursuant to an authority which on the face of it is

valid at that point in time, and the gaoler's right

to detain flows from that warrant that is valid on

the face of it.

McHUGH J: But, apart from quashing warrants by way of

certiorari, is there any authority anywhere where a

warrant issued pursuant to an order of a

superior court has ever been set aside after it has

been executed?

MR GILLARD:  Not that we are aware of, Your Honour, no. No, I

am not aware of any, Your Honour. Of course, one

can talk about DOYLE V THE COMMONWEALTH and you can

say, well,there is an order there. There is a

decision of LLOYD V BIGGIN where the late Hr Lloyd was put in

the sergeant's house next to the courthouse for a

few hours and probably there might have been an order

in the register of the petty sessions court, that

was set aside on order to review, even though it had

run its course. There is also authority - indeed, it

is our submission that a superior court has

undoubted jurisdiction to set aside orders and the

like that have run their course provided some effect
will be achieved by it, and we will refer Your Honour

in a moment to that, but we would like to think that the law does not turn upon whether or not you have a

particular order.• Let us say the rule said here, 'Yqu may order"and let us say Mr Justice King did order, and

then he, pursuant to that order signed a warrant, we would like to think that the law does not stop short and says, well just because there is no order

there, no official order, that you cannot then do

something with the warrant. And, that is a point

about LLOYD V BIGGIN where the late Mr Lloyd had a

bit of a fight with the magistrate, in the end he

was told, "I am sick of you, you can go - you are

committed for contempt for three hours"., N.ow I

do not know whether that was officially put in the

register of the petty sessions court, or not, but surely

and indeed, Mr Lloyd did his three hours with the

sergeant, but surely the law cannot be that it must

turn upon whether or not there is a particular

order like in DOYLE;there was an order and that

made it, I suppose, that much easier.

But, a decision has been made here. There is

a Court record of some form in accordance with the

rules, and that is what we say is wrong.

MASON CJ: Are not these problems that have just been discussed

dealt with in the cases in which attempts are made

to set aside warrants after they are exhausted or spent?

MR GILLARD:  Yes.

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MASON CJ: Well, what do those cases say about those problems?

MR GILLARD: Well, Your Honour, you have got the very old

case - well, perhaps I could take Your Honours to

what the Chief Justice said because he summarizes

those case at the top of page 56 in the a?peal book,

and the Chief Justice's judgment - I may say that

we went through these in the Full Court and they

did not decide them:

The nature of a warrant issued by a

judicial officer is explained by the High

Court in CORBETT.

Now, CORBETT was a case where there was a warrant

issued to evict some tenants who should not have

been there, and the question arose whether or not that

could be countermanded at any time before its

execution. So there are some general observations.

(Continued on page 41)

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MR GILLARD (continuing):

In that case one of the questions was whether

certain police officers were acting in the
execution of their duty when they executed

a warrant of ejectment notwithstanding

that it had been countermanded by the

landlord on whose application it had

been obtained. A majority of the High

Court ..... after observing ..... that "at

common law a sheriff to whom a writ of

execution is directed is bound to desist

from executing it if the judgment creditor

expressly forbids him from executing it," went on to consider how far that doctrine applied to a person to whom a magistrate's
warrant is dir2cted in aid of a civil right.

Their Honours cbserved ..... that there might

be said to be many reasons of convenience

in favour of the view that execution of a

warrant of possession should be as much
subject to the control of the complainant

as the execution of a writ of possession

but their Honours concluded:

"Questions of convenience, however,

cannot have much weight in determining

whether the constable in relation to

the commands of the complainant

occupies the same situation as the

sheriff with respect to those of a

plaintiff who has sued out a writ of
possession. The question is rather

one of analogy, and on the whole we

think the analogy fails at the point

upon which the rule depends, that the

plaintiff's countermand operates to

withdraw the writ. We do not think

a constable to whom a justice directs

his warrant should be considered as

receiving delivery of th~ process

of the complainant. Every warrant

of a justice, whatever its purpose,

is an authority from the justice to

an officer. The relation between the

magistracy and the office of constable

is such, both traditionally and in

present practice, that the justice

should be conceived as himself

communicating his commands, or causing
them to be communicated, to the

constable. His warrant ought not to be
considered as a process issued like a
writ of execution depending for its
operation upon its subsequent delivery
by the party obtaining it, a delivery

which he may make or withhold or

countermand at his pleasure.

C2T24/l/CM 41 8 /6 I 89

Marriner(2)

It does not empower the party to use

the constable as his agent. The constable

is the delegate of the justice and the

warrant is the instrument of delegation.

But the very reason given for the rule

that the authority of the sheriff

ceases when a writ of execution is

countermanded by the party is that the

writ is thus withdrawn and is as if

it were never delivered. For these

reasons, in spite of the alleged

attempt of the landlord to countermand

it, the warrant continued in force and

remained an authority to the constables.

Accordingly they were acting in the

execution of their duty and the

defendants were not entitled to a

verdict of acquittal."

Now the Chief Justice says:

It seems to me that the reasoning in that

passage applies to a warrant issued by a

judge of this Court and directed to the

Sheriff, particularly where the warrant on

its face requires the Sheriff to bring a

person before the Court to answer a charge

of contempt and a contempt, to judge by the

heading, which is alleged to have been

committed in the face of the Court.

These considerations are sufficient to show

that a warrant is very different from an
ex parte order but that is not to say that

a warrant once granted cannot be revoked or set aside. Every reason in principle

and common sense combines to produce the

result that a warrant issued by a judge

remains under the judge's control until it is fully executed. This is the view

taken by Mr Justice Crockett in R. V RAYMER .....

With respect, I entirely agree.

For instance there cannot in my view be

any doubt that if after Mr Justice King

had signed the warrant here in question it
had come to his Honour's attention that the

warrant might be construed as suggesting

that Mr. Marriner was being arrested to meet

a charge of contempt in the face of the Court

his Honour could have recalled the warrant

and revoked it so long as it had not been

executed. Again this is the view taken by

Mr Justice Crockett in RAYMER's case. His

Honour after referring to certain authorities

including R. V CROSSMAN .•... to which I was

also referred said (at p.847):

C2T24/2/CM 42 MR GILLARD, rs I 6/ 8 9

Marriner(2) (Continued on page 42A)

"I find these passages provide, by

analogy, confirmation for the view that,

in cases of warrants issued, not

for the arrest of a person suspected
of the connnission of a criminal offence,

but of a witness, I may reconsider the

ground for the issue of the warrant and,

if fit, direct its withdrawal.

Withdrawal may take place only whilst

the warrant remains incompletely

executed. The withdrawal removed

the basis for continued detention,

this leading to innnediate unconditional

release."

(Continued on page 43)

C2T24/3/CM	42A	8 /6 /89
Marriner(2)

TOOHEY J:  Mr Gillard, is not the Chief Justice instancing

those cases to draw the. distinction between a

warrant which has not been executed and remains
within the control of the court and the situation

in this case where the warrant had been execution.

MR GILLARD:	Yes, with respect, that is so.
TOOHEY J:	So, what do we gain from this discussion?
MR GILLARD:	Well, what His Honour then went on to say

that, based upon those cases, he did not have

the jurisdiction to set it aside because it had

run its course. Now, we say that those authorities

do not stand for a proposition that one may not

correct a record of the court even though it

has run its course and we say - - -

MASON CJ:	But, what about the cases that are concerned with attempts to set aside warrants after they
are spent?
McHUGH J~	Have you had a look at TILLETT's case, a

decision of Mr Justice Fox, where he quashed

warrants whereby police officers had raided

Maxwell Newton's - a search warrant case?

MR GILLARD:  No, I have not, Your Honour. RAYMER's case

is an example where a witness was arrested because

he would not attend a court in a prosecution.

That is a decision of Mr Justice Crockett and

he would not take any action. I think he conceded

or accepted that, perhaps, the basis was not

there but since it had run its course, he said

he could not do anything about it. Now, that

is an example but we say that the cases that

have been referred to - those three - do not

stand for a proposition that one cannot correct a record that is a wrong record and that is the

point we are making - this is a wrong record

that we seek to be corrected - and that none of

these cases -

DEANE J:  But you have to hone in on what a warrant is.

A warrant is authority and it is not a wrong

record. He did have authority; and he was given

authority but, on what has been said to date,

he was wrongly given authority.

MR GILLARD:  Yes, I respectfully agree with that, Your

Honour.

DEANE J: But, from his point of view, the authority was

not wrong.

MR GILLARD:  No, I respectfully agree with that but, I

am not seeking to suggest that or I hope I am

C2T25/l/SH	43	8/6/89
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not. What I am seeking to do - perhaps, I am

- is attack or seek to correct the decision and

the record.

DEANE J:  But, you see, a warrant is not an order inter

partes. A warrant is the authority of the sheriff

or the constable or the gaoler to do what the

court orders.

MR GILLARD:	Yes.
DEANE J:	Now, whether it is set aside after he has done

what he was ordered to do is primarily a question

between the court and him because what is sought

to be set aside is the authority or the order

or the warrant in pursuance of which he has acted.

MR GILLARD:  Yes, I would respectfully agree with that,

Your Honour, and I am not seeking to destroy

the autho~ity upon which these persons acted.

As I say, I am - - -

DEANE J: All I am really coming back to is what

Justice Gaudron put to you and that is that if

there is a remedy in these circumstances, the

one that immediately comes to mind is proceedings

for declaratory relief?

(Continued on page 45)

C2T25/2/SH	44	8/6/89
Marr in er (. 2 )

MR GILLARD:  We want some court order which recognises

that the record is wrong and if that is the

way to go, that is the way to go.

DEANE J:	But you see, the more you focus on the warrant, what you really want is that the warrant be expunged?
MR GILLARD:	Yes.
DEANE J:	If you could, you would like it burnt in the
middle of Collins Street, no doubt?
MR GILLARD:	Yes, Your Honour.

DEANE J: That is exactly what cannot happen.because

court officers have acted in pursuance of it.

MR GILLARD:  I accept that, Your Honour, but, as I say,

we do seek some court order which does correct

the record.

GAUDRON J:  What were the terms of the sunn:nons that was

taken out and returned before the Chief Justice?

Is that here?

MR GILLARD: It is there, but it is, as I - Your Honours,

it is stated that we sought an order that it

set aside; that the order dealing with the

first named defendant for contempt and the order

directing he be arrested and the issue of the

warrant be set aside as an irregularity. But at

the hearing we put it on four bases, indeed that

is a wrong bases,order 2, which relates to
irregularity of proceedings. It was never confined;

we put the four bases:· ex parte that a judge

may set aside another ex parte order, the ex debito,

that order and the order relating to ex parte orders.

It was never confined to the way that is put and

indeed when one thinks further about the whole thing

that is badly drawn and I accept responsibility for it.

But it was not confined to that and indeed the more one looks at it, there is not an order - in one sense, there is not a formal order of the court.

GAUDRON J:  From what can you appeal under the SUPREME COURT ACT?

MR GILLARD: Determination, Your Honour. It is a determination;

it is not an order or a judgment. Section 10(2):

Unless otherwise expressly provided by this

or any other Act, an appeal lies to the

Full Court from any determination of the

Court constituted by a Judge.

DEANE J:  But do we not have to come back to this: at first

instance, before the Chief Justice, you got a finding

C2T26/l/JM	45	8/6/89
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that what the judge at first instance did was

totally inappropriate, but His Honour declined

to make an order setting the warrant aside and

discussion now raises problems about whether he

should have. Putting to one side question of

costs, and one would hope is not here about

questions of costs, what more could your client
obtain than a finding that what was done was
totally inappropriate unless we are to embark

on the exercise whether in the light of the

second-hand information your client was or was

not guilty of a contempt of court?

(Continued on page 47)

C2T26 I 2/ JM .

46   8/6/89

Marriner(2)

MR GILLARD:  Your Honour, it is a question of the court

record being corrected in a formal way.

DEANE J:  But the judgment of the judge at first instance

here ends with the statement that what was done

was a totally inappropriate procedure.

MR GILLARD:  But there is no formal record to that effect.

There are reasons for judgment and the only order

is the summons is dismissed.

DEANE J:  Did you ask His Honour to make a declaration that

what was done was totally inappropriate?

MR GILLARD:  No, we did not, Your Honour. We just sought

that it be set aside and then His Honour, some days

later, handed down judgment and - no, we did not.

TOOHEY J:  Mr Gillard, is not the matter further complicated

by the fact that what in truth you are appealing to

this Court against is a refusal of leave to appeal,

or is that not an accurate description?

MR GILLARD:	Well, in the end we had two applications for leave to appeal and two appeals as of right
and Mr Justice Murphy, in his judgments, held that
we should need leave to appeal and he refused that
leave, I think, if I remember correctly,
refused leave to appeal and then said we did not
have a right to appeal, and that is right, with
respect;  that is correct.

TOOHEY J:  You apparently accept t~at lS right.

MR GILLARD: 

Yes.

TOOHEY J: 

So you have come to the Court seeking this Court's

intervention in a matter in which the Full Court
refused leave to appeal?

MR GILLARD: 

Yes, although we do have leave to appeal from

this Court already which was granted last year.

TOOHEY J: 

Yes, but I was just trying to see what the

consequences of a successful appeal might be, putting
to one side all the considerations that have just

been mentioned by Justice Deane.  Would the matter

simply go back to the Full Court?

MR GILLARD: 

No, I would have thought, with respect, no,

Your Honour. It is a question of moulding an order

which does justice, in our submission, and if that

means that leave to appeal should have been granted

by the Full Court, then this Court would make

appropriate orders, in our submission.

TOOHEY J:  Without the matter going back, you mean?

C2T27/l/HS	47	8/6/89
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MR GILLARD:	Yes.
McHUGH J:	That is what the Court did in GRANT V DOWNS

which was an appeal against a refusal of leave

to appeal by the New South Wales Court of Appeal.

MR GILLARD:	Yes.
DEANE J:	I notice, Mr Gillard, in fairness, that while

His Honour did make the statement that I said he made, it was in the context of a paragraph where

your opponents were trying to justify the detention

of your clients and where His Honour avoided dealing

with some of that suggested justification. So it

may be that a better answer to what I put to you

lies in a reading of the full judgment, or the

full paragraph.

MR GILLARD:  Yes. Now, Your Honours, coming back to the

outline, paragraph 12, we say that the case is put

simply, an error was made, justice demands the record

be corrected, and we indicate reasons why, that the

issue and the execution is a matter of public record.

The issue of the warrant proceeds on assumption or

basis that he has committed a prima facie contempt
because under the rules it means no more than that,

that it is an alleged contempt.

(Continued on page 49)

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MR GILLARD (continuing): It does amount to a prima facie

contempt by the issue of that warrant. Then we

make the points - well probably (c) is not a valid

point, Your Honour, and (d), that there is a

continuing damage to his reputation until set

aside.

Now Your Honours, we submit proceedings

can be correct and the warrant set aside even though it has run its course, and we refer to

DOYLE. Now, we do point out that admittedly when the

order nisi was granted by Mr Justice Wilson they
were in custody, but it was not until 18 months

later, and obviously no further steps had been taken and time had well and truly passed, this

Court nevertheless set it aside,the order, and

now it was an order in that case. LLOYD V BIGGIN

is the case involving Mr Lloyd, and it is a

decision of Mr Justice Smith reported in

(1962) VR 593, under the "Order to Review":

The applicant, Edward Drummond Lloyd, whilst

appearing as counsel ..... at the Kaniva court

..... was adjudged guilty of contempt of

court by the respondent, Percival Robert Biggin,

stipendiary magistrate, and was on one order

fined the sum of 5 pounds and on a second

order committed to imprisonment for a period
of three hours.

The applicant obtained two orders nisi to review these orders, and also an order nisi for prohibition and two orders nisi for

certiorari -

Your Honours will find half-way down 594 what

the facts were:  ·

Following on the ruling on relevance Mr Lloyd, as appears from his account, asked the magistrate to rule whether he would determine

the admissibility of the evidence of the

witness then under cross-examination.

The magistrate intimated that that was for

somebody else to decide. Mr Lloyd

said "But your worship must determine",

and that statement was interrupted by

the magistrate saying, "Carry on with your - - -

TOOHEY~	Mr Gillard, you are not referring to LLOYD V BIGGIN
for the facts,are you?

MR GILLARD: No,I am not, Your Honour, but it does demonstrate

that he was then - he said, "Well I have had enough

of your impertinence, you are fined 5 pounds, and

then if you do any" - Mr Lloyd then would not take that so he then said "You are committed. Constable,

remove the man and place him in the watchhouse for

C2T28/l/FK	49	8/6/89
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three hours". Now, Mr Justice Smith held that

he had been denied natural justice and, for those

reasons,the two orders to review will be made absolute.

Now that was an example of where he had done

his three hours. Now one cannot say from the report
whether or not there was an actual order in the
registrar of the court, but let us even assume that
there was such an order, it is our submission
that the case, and this case, should not turn on

whether there is an official order or not an

official order. That was an example where they

were made absolute and the orders below were set

aside.

McHUGH J:	Y~s_, . but in a case. like that you have got sonebody
of limited jurisdiction, certiorari would have gone, absent some statute prohibiting certiorari going just to ~uash the whole order.
MR GILLARD:	Yes, but there is an example, in our submission,

where the sentence had been served and an order

was set aside.

(Continued on page 51)

C2T28/2/FK	50	8/6/89
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MR GILLARD (continuing):  In other words, it did have

some practical effect or - well, one cannot say

any morethanitwas not argued by the look of it

but it is an example where orders were set aside

after it had run its course.

McHUGH J:	But that is because it is in the nature of an appeal against the convictionr is it not?
MR GILLARD:	It is an order nisi to review on a point

of law and -

McHUGH J: There are two orders nisi for certiorari in

that, is there not?

MR GILLARD;	Yes, well, in the end, His Honour made orders absolute and then discharged the prerogative
writs, as he said, "'Ihe orders below having been
discharged,inthat way there is no room for any
effectual order." It would have been an order nisi

McHUGH J:  No. Is that not part of a case against you?

"The orders below having been discharged,	there
is no room for any effectual order to be	made
in relation to the prerogative writs."

MR GILLARD:  Yes, but that is prerogative writs. What

His Honour did in the end was to find that the

point of law had been established and the effectual

order was to set aside those orders and I am referring to those cases, Your Honour, for - that just because the order has run its course

and the person has undergone whatever he has

had to undergo, nevertheless, you can still set

it aside and, admittedly, they can be distinguished

on the basis they were actual orders, unlike

this case, but as we would be submitting to this

Court, the jurisdiction should not turn on whether

there is an official order or not. There is

still a record. It is still in effect.

In the other case referred to at the bottom of that page 8, COLUMBIA PICTURES V ROBINSON
(1987) Ch,	that was a case of an Anton Piller

order. It had been effected; in other words,

the goods had been seized and then the question
arose whether or not the Court had jurisdiction

to set it aside at a much later point in time.

Mr Justice Scott, at pages 84 and following,

made the point that just because it had run its

course, if he felt that any practical effect

could be achieved, he would set the order aside.

Now, in that case, for reasons that he stated at pages 84 and following, he would not set it

aside because there was a huge delay, if I

C2T29/l/SH	5 1	8/6/89
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remember correctly, months of delay. Now, it

is our submission that superior courts do have

jurisdiction to set aside in circumstances, even

though it is after the event, provided there

is some effect.

Going over to page 9, what we point out

there is the correction of the record so that

he is accorded justice. It is not a question

of seeking to withdraw a warrant of arrest after

execution. We say that the cases, which we have

already referred Your Honours to, do not stand

for any such proposition and that the court does

have jurisdiction in suitable cases, provided

there is some practical effect. We submit that

the Chief Justice was wrong and the Full Court

was wrong. The Full Court, as Your Honours have

noted, said that they would not set it aside

because it had no practical effect.

GAUDRON J: Well, let us assume, just for the sake of

argument, that it was capable of being set aside

- and I do not wish to suggest, at this stage,

that it was - but, even on that basis, must there

not be a discretionary element to whether or

not it is set aside and is that not a relevant

consideration?

(Continued on page 53)

C2T29/2/SH	52	8/6/89
Marriner(2)

MR GILLARD:  We would respectfully submit that ex debito

justitiae,no. The Court, once it is satisfied

that this error has been made, then you are

entitled to have the record corrected.

GAUDRON J:  What do you say is the difference between

the warrant and the Anton Piller order if any, that,

was considered by Mr Justice Scott? Are you

suggesting that Mr Justice Scott was wrong?

MR GILLARD:  No, I am not suggesting Mr Justice Scott was

wrong. I quote him because he says that

"just because it is after the event and the

Anton Piller has run its course, they've seized all the documents" et cetera - - -

GAUDRON J: Yes, "if it had any practical effect".

MR GILLARD:	If it had any practical effect.
GAUDRON J: Yes.	And again, what is the practical

effect of setting aside the warrant?

MR GILLARD:  Because it corrects - - -

GAUDRON J: It does not; it expunges the record.

MR GILLARD:	Yes, but it has the - - -
GAUDRON J:	You say it corrects the record.

MR GILLARD: Well, it has, I would have thought, with respect,

that effect that if it exp.unged the record, it

corrects the record.

GAUDRON J: And it expunges authority which has been

executed.

MR GILLARD:	Yes, but - - -
GAUDRON J:	We may not be talking about practical effect;

we may be talking about legal effect, which cannot

be undone.

MR GILLARD:	Yes, we accept that the legal effect cannot be undone and we do not - and I have already said this,
that the sheriff had the necessary authority to
protect him as did the gaoler. All we seek is a
correction of that record. Now, that is what we
say - I am just repeating myself, Your Honour, but
that is the point we make.
GAUDRON J:	You seek the correction of the record in a

quite specific way, do you not?

MR GILLARD:	By an order of the court. If some - - -
GAUDRON J:	By a quite specific order?

C2T30/l/JM	53	8/6/89
Marriner(2)

MR GILLARD:	Yes, we certainly - - -
GAUDRON J:	Your relief has never, has it, been expressed

in perfectly general terms: Please correct the record?

MR GILLARD:  That is how we put it. I mean, we went, I think,

before the Chief Justice, for setting aside but

the point we made in the Full Court was that that

is what we wished to do, that we wanted the record

corrected. They said that - - -

GAUDRON J:  By setting aside the warrant.

MR GILLARD:  Yes, I agree with that, Your Honour. I have

always said that.

GAUDRON J:	On that issue, why would not discretionary factors be capable of being taken into account?
MR GILLARD:	Because this is a clear example - if you are

ever going to get a case that you might say

something is a nullity in a superior court

this, in our submission, is. It was issued on
a wrong basis - on no basis, in our submission,
at all and there should not be a discretion. There

has been an error made and ex debito it should be

corrected. We say that the statements of the

ex debito jurisdiction are in such strong terms as

that: that it is a jurisdiction there; it should

be exercised.

GAUDRON J: That is quite different from the issue of

remedy available in the exercise of such a

jurisdiction.

MR GILLARD:	It is a question of what is the appropriate order to give effect to the jurisdiction, I
respectfully agree with that. But, in our submission,
the jurisdiction leads to an order which does undo the injustice, or correct the injustice. And
that is what we seek.

(Continued on page 55)

C2T30/2/JM	54	8/6/89
Marriner(2)

DEANE J: But, Mr Gillard, I do not want to take time unduly

but if you go to page 11 - what do you object to on

page 11?

MR GILLARD:  I am sorry, Your Honour.

DEANE J: That is the warran~ of the appeal book.

MR GILLARD:	Well, it is a record of the court - -
DEANE J:	I mean, the fact is, that on your submission on a
mistaken,misconceived - whatever word you like -
basis the court ordered the sheriff to arrest your client, bring him before the court to answer a charge.
Now, there was such a charge, misconceived, but it was there -
MR GILLARD:	No. I am sorry - yes?

DEANE J: There was a charge of contempt in the face of the

court. He was arrested and he was brought before

the court and, if you turn over, the sheriff's

answer is there and says those things happened.

MR GILLARD:  Yes.

DEANE J: Well, now, you cannot very well expunge the sheriff's

answer.

MR GILLARD:  No.

DEANE J: There is nothing on page 11 that you can expunge

because it is an accurate record of a direction given

to the sheriff that has been complied with. Your

complaint is, not that that direction should not be

there, your complaint is that it is there and that it

should not have been made.

MR GILLARD:  Yes.

DEANE J: Well, you do not, as it were, vent your indignation

about something wrong being done when it has been done

by denying that it ever was done.

MR GILLARD:  I respectfully agree with that - - -

DEANE J: But all it comes back to is, it really seems to me,

that your insuperable difficulty is in asking us to

set aside the warrant. That is not really what your

complaint is about.

MR GILLARD:  Yes. Your Honours know that when Mr Marriner was

brought before the court, in answer to that, the

other side said they did not wish to proceed. So

he had no opportunity of doing anything other than

being told he was discharged and the other side did

not wish to pursue it. It really comes down to a question of what order can be made to correct the

C2T31/1/DR	55	8/6/89
Marriner(2)

record after the event and we submit that the Court

does have jurisdiction to mould an order that can

give effect to a correction of the record. Now,

Your Honours, finishing off on page 9, we have

sought costs before the Chief Justice and the

Full Court and on the basis of either a full indemnity

or a solicitor/client basis, we refer Your Honours

to the various rules.

(Continued on page 57)

C2T31/2/DR	56	8/6/89
Marriner(2)

MR GILLARD (continuing):  The rules do permit a solicitor/

client basis and the court may, under the rules,

direct any other basis. In EMI RECORDS V WALLACE

the Vice-Chancellor, Sir Robert Megarry, referred
to the various rules and pointed out that there was
also a form of costs of full indemnity. In our
submission, it would be open under the Rules of
the Supreme Court to award full indemnity, which is
probably a more generous approach to solicitor/client

and we put our reasons on the next page as to why

a full order for costs would be made. They have

been made in some cases and we have referred

Your Honours to two by way of example only and, in our submission, we would be entitled to those because of the errors that have been made.

DEANE J:  It would be relevant on the question of costs,

would it not, to take account of the fact that on

the evidence an order was made against your client
relating to activities on his land, but that order

was not complied with by a company of which your

client was a director, acting on his behalf on his

land?

MR GILLARD:  I see the force of what Your Honour puts, but

it is one-sided; in other words, it is the version

put by the other side and there is an affidavit of

Mr Marriner in there which puts a - - -

DEANE J:  I did not think that he controverted any of the

matters that I just put to you.

MR GILLARD:  Your Honour, the question of danger to trees -

DEANE J:  I did not mention danger to trees. There was an

allegation which, as I read it, was not denied,

but notwithstanding the order, some work continued

on the Smorgon property.

MR GILLARD:  There were fence post holes dug, Your Honour, which encroached a matter of inches.

DEANE J:  Yes, but we are in injunction territory between

neighbours, Mr Gillard.

MR GILLARD:	Yes, I respectfully agree with that, Your Honour.
DEANE J:	There is also the uncontroverted evidence as to his

comment when notified of the injunction.

MR GILLARD:  Yes. Your Honour, of course, that was ~ery

early that morning.

DEANE J:  All I was putting to you, it must be relevant to

an application for costs on an indemnity basis,

and so on.

C2T32/l/HS	57	8/6/89
Marriner(2)
MR GILLARD:	Yes.	I respectfully agree with that.

McHUGH J:  Before you sit down, Mr Gillard, can I just ask

you this. Why is it that you cannot appeal against

the decision to issue the warrant, as opposed to

setting aside the warrant itself?

MR GILLARD:  Well, that is what we did.

McHUGH J:  Yes. I know that is what you did, but you do

not seem to have put your argument on that basis.

MR GILLARD:  I did not really want to get into the question

of what he did and whether it was an order, but that

is how we started off because it is a determination

of the court and it is a decision, but, yes, of

course we appeal against that decision and, indeed,

we did because we got leave to - Mr Justice King

extended time. Indeed, we ho :e established, in

our submission, that that decision was wrong, but

it is a question of what effectual order would flow

from that finding; in other words, His Honour was

wrong and, indeed, that is implicit in the findings
of the Full Court, but it is what flows from

that that seems to create all the problems in this

case.

McHUGH J:  Let us take a criminal case, take somebody

sentenced to three months imprisonment. By the

time his case comes before the Court of Criminal

Appeal he has served his sentence, the same as in

Mr Lloyd's case.

MR GILLARD:	Yes.
McHUGH J:	There is no problem about setting aside the

decision.

MR GILLARD:	No.
McHUGH J:	All the orders stand, but you do not seem to want

to pursue that course. (Continued on page 59)

C2T32/2/HS	58	8/6/89
Marriner(2)

MR GILLARD (continuing): Well, yes we do, but it is a

question of how you mould it and I mean, in the
case you have just put, you have got a conviction

and sentence, which is set aside, for example and

even though it has run its course,	you have
an order of the Court.	The difficulty here is

under those rules he does not record his decision

in an official order 1 except he puts it on the

warrant and that is the difficulty we have.

What type of order do you get affecting the record

of the	court, bearing in mind that he is
wrong?

McHUGH J:  Take a case under Order 75 02(a) where by

oral order the judge directed the respondent

to be arrested.

MR GILLARD: That would I assume in the presence of the

court, I would have thought. In other words,

a contempt literally in the court itself or

just in the precincts. He would be hauled

before the court and no doubt he would then be

given chapter and verse, or should be, on the

charge.

HcHUGH-J: Well, now, could you appeal against that - have

that order set aside - the order itself, even

after the judge had committed him to prison for

24 hours and that it had been set aside?

MR GILLARD: Well, you would be seeking to set as.ide the

committal. The problem here is they stop short.

If Your Honour was about to say "bring that man

in" and then say "well I am not going to deal

with him any further", well, I suppose, consistent
with the argument we put, the answer is yes, but

what type of moulding of an order to give effect

to it, if it was established beyond doubt that

His Honour had no basis at all.

And that is the problem here because, as I

say, we do not have an official order, so we

say that Mr Justice King was wrong and that, in

our submission, is demonstrated, then what do

you mould by way of an order to give effect to

that decision and that is what we seek.	We
seek a correction of the order.

DEANE J:	Did anybody apply for Mr Justice King's notes -
of a copy of them?
MR GILLARD:	No, Your Honour.

DEANE J: Would that not be the - it may be different in

Victoria and New South Wales - that would have been the first thing you would do.

C2T33/l/CM	59	8 I 6/ 89
Marriner(2)

MR GILLARD:  I am trying to think. Yes, we believe that

there was no transcript, but as for notes - - -

DEANE J: There would surely be notes of any order

that His Honour made in His Honour's notebook.

MR GILLARD:	Yes, there would have been. Yes, one would assume there would have been, but it did not
involve any Court order in the sense of a formal document.
DEANE J:	But your understanding is that His Honour simply
signed the document as it were.

MR GILLARD:  Well I do not know, Your Honour. Nobody is

prepared to tell us too much.

DEANE J:	Was the file endorsed with the file?
MR GILLARD:	I cannot answer that off hand, Your Honour.

No, I cannot answer that Your Honour. No doubt

we could arrange for the court prothonotary's

file to be produced to the Court, but following on

frau what Mr Justice McHugh put to me that we

establish, in our submission, that a decision

was wrong. He had to make a decision and that

decision is wrong. Then you look. to what

order you can mould to give effect on an

appeal.

McHUGH J: Well it may be you could just set aside that

decision - it does not affect -

MR GILLARD: Well that might run into all the problems

we have been discussing this morning, Your Honour,

because then that takes away the basis of the

warrant - - -

McHUGH J:  No, it does not, any more than in the

illustrations I gave in the criminal sphere.

They do.. · not set aside the warrant of commitment

to prison.

MR GILLARD:  Yes, but of course, in those cases there is

a form of record of conviction and sentence, and

there is something to set aside as a formal

order of the court or a judgment of the court.

(Continued on page 61)

C2T33/2/CM	60	8/6/89
Marriner(2)
McHUGH J:	But the common law is an oral tradition.	I mean, it

is only in the last 300 or 400 years that orders have

been recorded.

MR GILLARD:  Yes. Well, Your Honour, that is what we do seek.

We do demonstrate, in our submission, that the

decision was wrong. It is then a question of

moulding an order which will give effect to that

finding and :it may be that declaratory relief is the
appropriate order on an appeal. If Your Honour

please.

MASON CJ: The Court will take a short adjournment in order to

consider the matter at this stage.

AT 12.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.28 PM:

MASON CJ:  Dr Pannam, there is one matter on which we want to

hear you and that is this:  how do you justify the

issue of the warrant on pages 11 and 12?

MR PANNAM:  We justify it in the following way, because there

has been some rather, what we would submit, extravagant

submissions made about the facts by our learned

friends. If we were to hand to the Court one

document in which we attempt to put together the

evidence that was before the Full Court as to the

facts that were before Mr Justice King, we say

that the issue of the warrant was the only proper

step that the learned judge could have taken

because the Court has had put to it a rather

foreshortened version of those facts, because it

was the subject of some criticism by the Chief Justice

that he did not know much abou~ what had

An attempt was made before the Full Court to

gone on in the proceedings before Mr Justice King.

supplement the materials by some affidavits which

dealt with what was actually before Mr Justice Kaye.

What was before Mr Justice Kaye, during the course of a very lengthy hearing - this was not an off

the cuff decision that was made on an urgent

application in a five minute consideration. The

evidence shows that the application took at least

45 minutes; that what was put before Mr Justice King

were the terms of Mr Justice Kaye's ex parte order

that he had made on the 17th.

C2T34/l/DR	61	8/6/89
Marriner(2)

:MR PANNAM (continuing):  He was told of the circumstances

of the service of the order both on Mr Smorgon

and on Merchant Builders and he was told of corrnnunications that had taken place between

Mr Smorgon and various persons associated with

Merchant Builders and with Mr Marriner directly.

Now, as the Court has already picked up, if we

go to (c) on that document, the evidence shows

that when Mr Smorgon told Mr Marriner of the

issue of the injunction he was told, in a very

impudent response, he would put it in the file

of his injunctions and allocate it to his next

solicitor in due course.

GAUDRON J: Really, what was the source of power, rather

than, what are the facts, to start with?

:MR PANNAM:  The source of power, if I can go to the other

document - and I think I have disarmed one of

Your Honours of the outline of our submission -

the source of the power is the inherent jurisdiction

of the court, which is not confined by any of the

provisions of Order 75, and it is our submission,

and we justify it in various ways by reference

to first of all the various statements that have

been made in this Court over the years, beginning -

not beginning, but certainly exemplified in

Sir Owen Dixon's intervention in argument in TAIT,

intervention that His Honour said he had no doubt

that there was a basis in the inherent jurisdiction

to preserve any subject-matter, living or otherwise.

There are similar statements by Mr Justice Menzies

in FORBES' case.

DEANE J:	Do we not really have to face what is involved
here? Assume that there was evidence before
Mr Justice King that there had been a contempt
of court, what are you saying: that Mr Justice King,
detention in prison?  in the inherent jurisdiction of the court, ordered

:MR PANNAM:  Yes, in order to bring an alleged - - -

DEANE J: Without hearing?

:MR PANNAM: Yes. In our respectful submission - - -

DEANE J: What, and then went home to dinner?

:MR PANNAM:  Your Honour, let me put it this way: here

you had - what we say was revealed before

Mr Justice King was a fairly dramatic fact situation,

an extraordinary situation.

CIT35/l/JM 62 8/6/89

Marriner(2)

MR PANNAM (continuing):  You had had a judge of the

Supreme Court of Victoria on an ex parte application

make an order restraining a trespass and interference

with trees on the adjoining property.

DEANE J:  We have read the facts. I mean, why can you not

just address the order which says nothing about

a finding of contempt and which, on its face,

is obviously an exercise of the statutory power

to issue a warrant when there is an allegation

of contempt in the face of the court? I mean, really

MR PANNAM:  I respond to it in this way, Your Honour: first

of all, I start with the existence of the injunction. The second proposition is: repeated acts of defiance of the terms of that injunction and - - -

DEANE J:	Dr Pannam, I asked you to proceed on the basis
that there was evidence before Justice King that
there had been contempt of court.
MR PANNAM:	If one proceeds on the basis that what

Mr Justice King did, as he said he did in

the full transcript of what went on on the 19th,

was that he acted to preserve the trees which
were the subject-matter of the litigation. It was

not a technical trespass; it was the preservation

of the trees.

DEANE J:	A moment ago you agreed with me when I said
did he act to punish a contempt of court by imprisonment.
MR PANNAM:	No, Your Honour, I am sorry - - -
DEANE J:	I thought you did.
MR PANNAM:	- - - if I said that. What he did was - and

indeed the warrant says, "apprehend him to bring

him before the court to answer a charge of contempt."

What His Honour did was to take a rather drastic

step, namely, with the evidence before him that

there were serious prejudice and danger to the

trees which were the subject-matter of the

litigation, he ordered that a director of the

company carrying out the work, a part owner of

the land upon which the work was being carried out

was brought before the court forthwith to answer a

charge that there had been a contempt.

(Continued on page 64)

C2T36/l/JM.	63	8/6/89
Marriner(2)

GAUDRON J:	And detained in the meanwhile.
MR PANNAM·: · And detained in the meantime.	Now, courts

have from time to time, both in the matrimonial

jurisdiction and, more generally, even gone further

than that and have committed persons on an ex parte

application. The classic example was WARWICK

CORPORATION V RUSSELL where, on the sixth on one month, a vocation judge granted an injunction that

a circus performance on council land where the

proprietors of the business were not properly

on council land, were not to take place on the

night of the 6th and the 7th. The evidence was

that that injunction had been breached by a

performance on the 6th and an ex parte application

was made on the 7th and a man was, in effect,

convicted of and put in custody for contempt

on an ex parte application.

Now, if that was right and it seems to have been approved by this Court in DOYLE's case,

that you can actually proceed substantively against

a person for contempt, it follows, in our respectful
submission, as a lesser exercise of the power
to say, ·~rrest a man and see that he is here

in order to prevent that which is happening and

may result, by tomorrow morning, in a destruction

of the subject-matter of the litigation taking

placeV.

McHUGH J: But, Dr Pannam, that is not why the judge did

it, is it? His Honour said, at page 47:

Mr Marriner is now free of all detention.

The sole object of detaining him was to

ensure that he would be brought here today -

MR PANNAM:  Yes, and if the full transcript - if Your Honours

go - because that is not the whole of the transcript -

can I take Your Honours to what His Honour said,

which is the best evidence of what he intended the

night before - if Your Honours would go to the

blue folder, the full transcript is set out.

It is a blue folder.

MASON CJ: Whereabouts -

MR PANNAM:  It is behind tab 5. The transcript is set

out. It was supplied, I think, to the Court

this morning.

MASON CJ:  Ours is brown.

DEANE J:  I am sorry. You have different colour schemes,

Your Honours. It is behind tab 5 and the transcript

that Your Honour has drawn attention to is the

first two pages and on page 3 of the transcript ~ich is page 24 of that supplemental book, the transcript continues.

C2T37/l/SH	64	MR PANNAM, QC	8/6/89
Marriner(2)

MR PANNAM (continuing):  Counsel, Mr Rozenes, who was

then appearing for Mr Marriner, said:

We don't want to interrogate Your Honour

as to what material was put before you.

HIS HONOUR ..... What I have to be sure

about too is the matter which caused the

urgency of the application last night - - -

MR ROZENES:	Yes.
HIS HONOUR:	The prospect that today

there would be a further breach,

alleged breach - - -

then counsel said, "I've nothing to say about that",
then if I can go over to page 5, in the middle of the

page where counsel drew attention to - Mr Strahan,

who was acting for Mr Smorgon, said:

That step was taken because it was felt

there was no other way.

HIS HONOUR:  I understand that.

Then over to page 30, when His Honour was concerned

about what steps were going to be taken in the meantime

to protect the integrity of the court's process,

His Honour said to Mr Rozenes:

What I would like is an assertion that

nothing is going to be done.

MR ROZENES:	On the site at all?
HIS HONOUR:	I would not say that, but

preferably along that boundary.

Then after Mr Rozenes reply:

HIS HONOUR: All I am concerned with 1s

that nothing is done to it which may

possibly be in breach of Kaye, J's

undertaking -

and when those passages are married to the two

exhibits, copies of which Your Honours have,

exhibits 8 and 9, which show the trees alongside

the boundary, the one set of photographs, and these are important - we desire to refer to them because

it makes the point, I think - there are two

exhibits 8 and 9 which the evidence shows were before

Mr Justice King. Exhibit 8 was taken at 6.15 pm on

the 17th and shows the boundary that is in question

C2T38/l/HS 65 8/6/89

Marriners(2) (Continued on page 65A)

and the roots that had been severed on the other
side, as they were entitled to do, but the near
proximity of those trees, and then at 4 pm on

the next day exhibit 9 shows that the work had

significantly continued - at least that is what

the evidence was - that the picture showed that

the work had significantly continued and that
the trees - and Your Honours will see by their

very proximity to the boundary - were in imminent

danger.

(Continued on page 66)

C2T38/2/HS	65A	8/6/89
Marriner(2)

MR PANNAM (continuing):  Now, what was the Court to do?

Was the Court to say, well, you have drawn it

to our attention; do the best you can - - -

DEANE J:	One thing it was not to do with is to make an
order in form 75(a). Are you really telling the
Court that His Honour did not act on the basis of
rule 75.02?

MR PANNAM: In our respectful submission, it would be

nonsensical to come to the conclusion that a

senior judge of the Supreme Court of Victoria

intended to issue an arrest warrant for a

contempt in the face of the court. That is

absurd, in our respectful submission.

DEANE J:  Or to issue an arrest warrant without following
the procedure which the rules lay down for
contempt not in the face of the court.

MR PANNAM: Indeed. In our respectful submission, the

learned judge did not intend to act under Order 75

at all. The form was used that was inappropriate -

DEANE J:  Was he referred to rule 75?

MR PANNAl1: Well, so far as that is concerned, we do not know

save this - - -

DEANE J:	But he acted at the instigation of your client's
counsel.

MR PANNAM: Yes, but I can only tell Your Honours what is

in the evidence that is presently before the

Full Court and presently before the Court. And

the extent of the evidence is in the document

that I handed to the Court before. But in our

respectful submission, the notion that a senior

judge of the Supreme Court of Victoria did any

thing more in this case than simply not pick up

that two words, in the form of that document,

were inappropriate is, and I repeat the submission,
nonsense, because - - -

McHUGH J: But- Dr. Pannam, the whole form is inappropriate

on what you say.

MR PANNAM:  No, in our respectful submission, no. He was

arrested to be brought before the court the

next morning - - -

McHUGH J: But, it does not say that. The warrant is bad

on its face and if this warrant was good,

the descendants of Charles 1 ~vould still be on

the throne. That is what Charles 1 did; he

just committed people to prison indefinitely.

C2T39/l/CM 66 8/6/89

Marriner(2)
MR PANNAM: This is not a commitment. This is an

apprehension for a purpose.

McHUGH J: It says "to bring him before the court - - -

MR PANNAM:	To answer a charge.
McHUGH J:	- - - to answer a charge of contempt" - it does not say when - "cietain him in custody
in the meantime".
MR PANNAM:	It is perfectly clear, in our respectful

submission, the return date of the matter being

the next day that that is when that was

returnable. Indeed, he was brought before the

court the next morning, as the Court now knows.

In our respectful submission, although the - - -

McHUGH J: But, Dr Pannam, where is the charge of contempt?

MR PANNAM:  There is none there. What was done was not -

in our respectful submission, to focus on this

as being anything more than an urgent attempt

by the judge to preserve a substantial part of
the s~bject-matter of the litigation then

before the Court is to approach it in the wrong

way. That is what His Honour intended to do;
and that is what he said he intended to do;

and that is what he did. Here was a contempt - - -

GAUDRON J:  The order went only to one party to the proceedings.

MR PANNAM:  Yes, that is certainly so. One would

infer from the facts as he was a part owner

of the land, a director of the company carrying

out the work on his land and was the one with

whom Mr Smorgon had had direct contact and who

had responded in the way that he did, he was

the man that the employee said he took his

instructions from. To disarm the other side of

the litigation from the power to render the

litigation nugatory, the arrest of Mr Marriner

was an efficacious way of immediately securing

that object. If the court does not have that

power as part of the inherent armoury of weaponry

at its disposal to preserve the integrity of its

orders, then that would be a ·serious gap in the

authority of the court. The mere fact that the

rules do not cover the situation, in our submission,

is nothing to the point. The question is if that

view of the facts, which I have not developed in

detail, be correct and if what was presented to Mr Justice King was a situation where there was

a breach, or an alleged breach - because that is

all that was required - of an order of the court

that was continuing - - -

C2T40/l/JM	67	8/6/89
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DEANE J:	Why do you say that is all that was required, if we
are not relying on that rule?

MR PANNAM: Well, it was an ex parte application and that

both sides, at that stage, had not been heard and

the question was, "On that material, was the judge

entitled, in the exercise of his discretion, to form

the view that there was a serious risk that the
trees - that were part of the subject-matter ot the

litigation - would not be there by the time the court convened at 10.30 the next morning, or at

least they had been so mutilated that they would not

live?"

DEANE J:	So that if he formed the view that there was such a
risk, he can send somebody to Pentridge Gaol?
MR PANNAM:	He could order their detention, send them to gaol

overnight to secure their attendance at court the

next morning if that was thought to be the appropriate

way, or the only way, that he could see of efficaciously

securing the efficacy of the court's process.

DEANE J: Without reaching any decision, or view, as to whether

they were guilty of contempt of court?

MR PANNAM:  He must have reached a prima facie decision that

there was a contempt On the material before him it

was the only conclusion that he could come to.

Now, whether that was right or not we do not know

because it was never fought out. But there were

observations by Mr Smorgon on three occasions of

flouting of the order, there were photographs before

him that showed, in a 24 hour time scale, the

increasing threat to the trees that are quite

visually apparent on the photographs. Now, in those

circumstances, the case is either one of principle

or one of fact.

If it is a case of principle, the question is,

"Does the Supreme Court of Victoria, as part of its

inherent power, have this extreme residual power to

enforce the integrity of its own process by directing

an arrest of a person to bring him before the court

to see that what is happening does not continue?"

That is the point of principle. If it is a case

about facts, the question is - admit the principle -

'Were:the facts of this case, such as to attract the

principle Z"

In our respectful submission, both the principle exists and it was an entirely appropriate case for

its application. Now, that is where we start, or we

would want to start our argument, that the facts

revealed an extraordinary situation which part of
the rival submission is that in those circumstances

a superior court of record of· unlimited jurisdiction

in this country has no power, by this dramatic means,

only to be used in unusual and special occasions, to see that its own orders are being observed.

C2T41/l/DR	68	8/6/89
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GAUDRON J: It is on the basis that the

order is being observed and not on the basis of

the preservation of the property, is it not?

MR PANNAM:  No, the way we put it is not that.

Mr Justice King was not punishing for a contempt.

There being prima facie evidence that a contempt had had been committed, he was taking extreme

action to preserve subject-matter.

GAUDRON J: I see. Well then, in that case, had other facts

been made known at the time of the first application

it must be your submission that this was an order

that could have been made at the time and in place

of the ex parte injunction first granted.

MR PANNAM:  I do not think I would be emboldened to say that.

It may be that there might be an extraordinary

case - I would not want to say the facts of this
case - but there may be an extraordinary case where

a person is about to take some action, that the only

way that the court can stop the action being taken

is to order the arrest because it knows, or it has

proved to its satisfaction, that the making of an

order and drawing it to the attention of the person

would be futile, and there is a statement, "Courts

can make whatever orders they want, I am going to

chop down this tree, it being a rare and valuable

tree." In those circumstances it may be even on a

first application, but certainly on a second

application where there had been proved defiance,

and although it is unusual, one would expect it to

be part of the reserve power that any court of

unlimited jurisdiction would have in a desperate

case to preserve the integrity of its own process

and, more importantly, the subject-matter of litigation

pending before it, because otherwise -

GAUDRON J: But, you see, I think you cannot have it both ways,

can you, Dr Pannam? If it is to enforce the Court's

order which has already been made, then the
procedures are set out in the rules. (Continued on page 70)

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MR PANNAM:	My reaction was sloppy.	The basis of the

intervention was preservation and really this

is only an underpinning of the reason for the

first order.

GAUDRON J: Yes, so the basis - it is inherent jurisdiction

matter of evidence but is of no significance to the principle.

to preserve the subject-matter of litigation.

MR PANNAM:  No, because one can imagine a dramatic case

where - - -

GAUDRON J:  And the order could have been made,were the

evidence appropriate,on the first occasion.

MR PANNAM:  Yes, Your Honour. Can I give an example?

GAUDRON J:	But then why the form of the order?
MR PANNAM:	Can I give an example just to test the principle?

Let us assume that in the botanical gardens in

Melbourne there is a tree from which there have

been carve~ in times gone by, aboriginal canoes

and that tree is a unique and special tree. And

there is a man in the State of Victoria who has

said, by statements made to a lot of people,

that he proposes, and he has got a chainsaw and

he is on his way down to the botanical gardens

to chainsaw down the tree. He says, "You can

go to whatever court you like, including the

High Court of Australia, and I will take no notice

of its order. I am going to cut the tree down."

In those circumstances - it is an extreme case - but

if one tests the - - -

McHUGH J:  But what is the form of order in that case? An

order that he be detained - - -

MR PANNAM: "Simply arrest him and bring him before the

court for the purpose of preserving the subject

matter of the litigation because I am going to
make an injunction and he has threatened a breach

of it now and I will deal with him for contempt

if those facts are proved to my satisfaction

and he does not dissuade me from the course."

McHUGH J:  I can understand that, but this - ordering him

to be brought before the court is one thing, but

ordering him to answer a charge of contempt, and then

detain	him in custody in the meantime is a
different thing.	Mr Justice Deane put to you:

why was he not required to be brought before the

court forthwith?

C2T43/l/JM	70	8/6/89
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MR PANNAM:	The time scale, presumably.	He was arrested

at 5 am, I think, in the morning and he was in

court at -

McHUGH J:	But this order was taken out at 5.45 in the evening, was it not?
MR PANNAM:	Yes. There may have been practical problems

for having him brought before the court at that

time. I do not know the answer to that question

but one judge may have taken the view that that
was the appropriate way to deal with it. Another
judge may have taken the view in the proper exercise

of his discretion that, "On the evidence before

me, if that is the way the man conducts himself,

he can wait until 10.30 in the morning to tell

me what he wants to tell me about it".

GAUDRON J: Well, if that - I mean, I trust that is not

your submission?

MR PANNAM: · No. I am dealing with - - -

GAUDRON J: It is certainly inconsistent with what you

put in answer to me.

MR PANNAM:  No. I am simply dealing with the hypothetical

question with which I was invited to deal. But,

it seems in the present case, what our fundamental

submission on the facts and on the law, at the

forefront of that argument is, that here the

facts revealed an immediate danger to a subject-matter

of litigation which had already been the subject of

a protective order by way of injunction; there had

been an impudent reaction to the grant of the order.

It was ''Put it away, of no concern to me" and there

we are. Now -

GAUDRON J: All right. Let us go back to your hypothetical

situation.

MR PANNAM:: Yes.

GAUDRON J:  Why do you not call the police and charge the man,

in your hypothetical situation?

.

MR PANNAM:	Presumably - that would be an alternative way.
DEANE J:	It would be a lot quicker one .

MR PANNAM: It may, in some circumstances; it may not in

others .. Th~ question is whether, in this special

case, there is the power. Now if, as the courts

have held, in matrimonial cases since the end of

the · 19th century, that you can actually commit

for contempt on the basis of an ex parteapplication

and that appears to be well established in that

C2T44/l/SH	7 1	8/6/89
Marriner(2)

jurisdiction, and if, in England you have,in.the

case that I referred to before,approved by this

Court or, at least, referred to without disapproval

by this Court in DOYLE, that you can commit the

circus business proprietor after proof that he

has defied the court's order, then in those

circumstances, there being a jurisdiction to

actually commit on an ex parte application and

this Court itself in DOYLF recognizing that

that exists but it would only be exercised in

an extreme case, then this is not such a dramatic

exercise of power and, indeed, it is one that

is well known to the courts in any event.

Traditionally, most of the personal actions

were commenced by writs of capias ad respondendum;
writs ne exeat regni and ne exeat colonia
were issued on an ex parte application and people taken into custody. The old process of the court

of chancery to prove a contempt was to first

issue ex parte an attachment and then there was

the actual hearing before the court of chancery.

So what seems to be an offensive notion at the

outset that here is a person deprived of liberty

without an opportunity to say anything, really finds its place fairly much in the development of a good many of the processes of the common

law.

We would not dare submit to the Court that

it was a power that ought be exercised in any

but an extreme case.

GAUDRON J: Let us put it clearly on the basis of threat

to subject-matter of the litigation.

MR PANNAM:	Yes.
GAUDRON J:	What is he there?  He is to be detained in

custody in the meantime, until - well, to be

detained in custody until he gives an undertaking

that he will not damage the subject-matter?

MR PANNAM: · No.

GAUDRON J: Well, that must be. How is the order - - -

MR PANNAM:  He can say whatever he wants when he comes back

to court.

(Continued on page 73)

C2T44/2/SH	72	8/6/89
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GAUDRON J:	But, what is the order to be? Or sooner discharged; detaining him until he gives that
undertaking or is sooner discharged?
:MR PANNAM:	No, that is not the period of his detention;

it was to bring him before the court the next

day to answer a charge of contempt to be heard

that day before that judge.

GAUDRON J:	But, I am asking you in terms of an order which might appropriately be made for arrest and
detention on the basis that the subject-matter of
the litigation is under threat.
:MR PANNAM:	Simply to detain him until he can be

conveniently brought before the court which would be hopefully within a short time - in this case, when court first convened the next morning.

GAUDRON J:  What if he gives you an undertaking in the

mean time?

:MR PANNAM:	There would be no reason why one could not the judge's home and knock upon - his legal	o-o to
,:;,
advisers could not have sought, at that stage
while the warrant was current, to have it set	aside.
No reason at all.

DEANE J:  But, Dr Pannam, is not the real problem this;

:when you finally identify what is said and when you

look at the transcript, the judge says, "'Ihe object
of detaining him was to ensure that he would be
brought here today"- not that he would not cut down

the tree - but that 'l:\e would be brought here today".

He gets here and counsel appearing for your client

says, "And, indeed, we do not come here to prove

any charge of contempt".

:MR PANNAM:  Well, not that day, but the contempt matter

was adjourned,as the end of the transcript, shows to

another date and on that further date it was	'
decided, for whatever reason, not to persist with

it. But, the formal disposition of the proceedings

on that day - - -

DEANE J:  But, if we take His Honour's statement, the sole

object of detaining him was to ensure that he would

be brought here today. That fits precisely into the

statutory procedure which surrounds the precise order

that His Honour made;: that is, an order that

somebody be brought to court to answer an allegation

of contempt in the face of the court.

:MR PANNAM:  Yes.

C2T45/l/JH	73	8/6/89
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DEANE J (continuing):  Now, in that context, why should

we not assume that, in the absence of material

from your side who were there, that in the

absence of that material things were as they

seem to have been?·

J:1R PANNAM: Well, for the following reasons.

One. It is clear enough that the document is

not a very elegant one, in any event. The words

"in face"are clearly wrong and inappropriate and

for reasons that I submitted before, the senior

judge of the Supreme Court of Victoria could not

have, as a matter of inference, come to the

conclusion that there had been contempt in face

of the court of the facts that were before him.

Secondly, the evidence that was before the

judge showed, and the whole basis of the
application was, imminent threat and danger to

trees, and the judge himself the next day,

beyond the passage that Your Honour referred me

to, made it clear that he was concerned about

that aspect of the matter to the point where

he asked counsel for Mr Marriner to give him

a further assurance that nothing would happen.

Now, if you add all of those together and draw the available inferences, in our respectful

submission, the inelegant warrant was simply

issued to stop what was going on in this dramatic

way and ensure that a man was in court at 10.30 am.

the next morning and the trees were still there.

That is the way in which we would respond to that,

I think.

DEANE J:	I must say that it is not apparant to me that
His Honour imagined that he was exercising any
inherent jurisdiction.

J:1R PANNAM:  The inference is reinforced by the fact that

not provide for an ex parte grant or issue of	the rules themselves do not purport to and do
an arrest warrant, so that His Honour must have been doing something. After all we know that
at least the application took three-quarters of
an hour. If the hypothesis is that His Honour
read Order 75, there must be the conclusion that there was nothing there that justified that
which His Honour was about to do and therefore
the only hypothesis that is consistent with all
of the facts is, that what His Honour was doing
was acting under the inherent jurisdiction,
because there is simply nothing in Order 75 to
deal with the situation that arose.

C2T46/l/CM	74	8/6/89
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MR PANNAM (continuing): And what he did was to, no doubt, take

from counsel who handed up an inappropriate form of

warrant - a warrant that he signed without proper

consideration, which is apparent from the inelegance

of the document - but it secured the end that

His Honour desired to achieve, namely,- - -

DEANE J: Well, I have trouble accepting that, as you put it,

an experienced judge of the Victorian Supreme Court would not carefully read every word of a warran4 as

short as this authorizing the detention of somebod½

before he signed it. I find it much more easy to

assume that in the hurried proceedings His Honour

did not avert to the distinction between contempt

and contempt in the face of the court.

MR PANNAM: Well, Your Honour, it would be a strange conclusion

arsenal of legal knowledge available to him, a

for this Court to come to that a senior judge of a

distinction as basic and as dramatic as that.

DEANE J:	We all make these mistakes but - - -
MR PANNAM:	Some mistakes, frequently, Your Honour, but not as dramatic as that.
DEANE J:	- - - but we do not sign warrants for arrest and
detention in prison when the warrant is as short as
this without reading every word of it.

MR PANNAM: Well, there are only two words in it that cause

problems, and that is, "in face". If those two words

were taken away then -

DEANE J:	The warrant is completely inappropriate for a
prima facie finding of contempt of court, a commitment
to prison on the basis of it, and bringing somebody to court subsequently when it is issued on the basis of protecting property.

(Continued on page 76)

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MR PANNAM:  If one sat with a pen, one might ask the

rhetorical questio~ what would one do to

cure its inelegance and to make it more appropriate?

I suppose one would -'Arrest warrant in proceedings

for preservation of property in litigation pending

before the court~? Well, that is only a longhand

way of saying what this heading says. The contempt

was defying an order that was designed for that

end. And then the body of the warrant itself, "Arrest

David Marriner", well, that was clearly the intention

of the address - where he lived - "and bring him
before me" - the court - "to answer a charge that
he has in defiance of an order of this court been

responsible for actions that prejudice, or might

seriously prejudice subject-matter in this

litigation". In our respectful submission, that

is a flourish of the pen that the judge may have

used, but the words that are used are adequate for

the purpose.

In our respectful submission, to take this

document and to elevate it into some artificial

world that here was a judge who was not aware or

overlooked the distinction of contempts in the

face of the court and contempts consisting of

violations or non-compliance with court orders

and then to say it had nothing to do with the

subject-matter of preservation of property, when

that was the only material that was before him,

and the dramatic two exhibits showed in a 24-hour

period the deterioration of the situation, to
then say that this was a sort of fanciful exercise

is to draw inferences that, in our respectful

submission, simply are not open. ··

MASON CJ: If we could interrupt you, Dr Pannam, merely

to say that the Court will now adjourn and will

resume at 2.15 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

C2T48/l/JM	76	8/6/89
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UPON RESUMING AT 2.22 PM:

MASON CJ: Yes, Dr Pannam.

MR PANNAM:  Your Honours, apropos of the matters that were

being canvassed prior to the luncheon adjournment,

can I take Your Honours to page 43 of the appeal

book. That is part of an affidavit that was

sworn by a member of the firm of the solicitors who

instruct us in this matter, Mr Goldman, and he was

referring to the events that had happened before

Mr Justice King, and Miss McMillan, a member of the

Victorian bar, who was representing Mr Smorgon,

handed a copy of the injunction to Mr Justice King

and then - that was a sort of opening:

Work had continued in breach of the

injunction and that as of 3.30 p.m. on

that day work was still continuing.

And then the next two subparagraphs:

This work was endangering the safety of

the cypress trees the preservation of which

was the object of the injunction made the

previous day by M~ Justice Kaye.

And (c):

Although the matter was due to come before the

Court again at 10.30 a.m. the following day

the indications were that further work was

likely to occur prior to then and were that

to occur the cypress trees might be lost

before any relief could be obtained from

the Court.

And then she called Mr Smorgon who gave evidence

set out in his affidavit of the 19th, and that was

the evidence about the observed breaches on the

18th, and then referred to the photographs and then

the error is corrected in a later affidavit at

page 46, 9 and 10, - they are, in fact 8 or 9.

Then Miss McMillan called Mr Hagan and then

the other matters took place. Now, against that

background, it is submitted that the primary

submission that we were putting to the Court prior

to the luncheon adjournment, namely that

Mr Justice King took the step of signing the warrant

and having Mr Marriner apprehended, was not to deal

with him for contempt, that is the non-compliance with

the order of Mr Justice Kaye, but to really deal with

the facts that underpinned the order of Mr Justice Kaye,

namely, its rationale in protecting the CYI)ress trees, and it
weuld seem from that passage in Mr Goldman's affidavit, that the

primary thrust of counsel's application to Mr Justice Kmg was

the preservation of subject-matter.

C2T49/l/FK 77 8/6/89

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MR PANNAM (continuing): When one marries all of that to the

form of the arrest warrant which is to arrest him

and detain him in custody and then bring him back

to answer a charge of contempt, that would seem
to have two features; one, that he was to be given

an opportunity to answer and there was no finding

that he was in contempt, but there was a second

aspect of it and the second aspect of it was that

it was to underpin further the attitude of the

court towards the protection of these trees which,

indeed, was the subject-matter of the litigation

and it underscores another aspect; that is, that

it was not to be open-ended; the matter was

returnable before the court at 10.30 am the next

morning.

Now, if one approached the matter another way and asked, "Well, what could Mr Justice King have

done in those circumstances, if he had been persuaded

that there was a risk .early the next morning or

later that night because developers do not keep

court hours, to the trees? Make another injunctive

order further restraining?"- i.t would seem to be

rather an empty gesture - "Invite a telephone call

to the local constabulary to stop the conduct?",

and what, then, if the police said, "Well, it is

a private matter.	You go and get an order from
the court".

McHUGH J:  But you were not going to stop the developers by

taking the appellant to gaol, were you?

MR PANNAM:  Yes. The answer to that question is yes, yes, yes,

for this reason: here, Marriner was a director of

the development company. The employees of the

development company were on his own property. It

was not as if it was a stranger's property.

McHUGH J:  Yes, but if he was in goal - you are assuming that

he would have been in a position to give them

instructions.

MR PANNAM: Well, it would be in a position - or, rather,

the information of his detention would be communicate

to those who were carrying out the work. Now, the

evidence was that his wife had been personally
served with these documents and informations about
the order at home. In those circumstances, what

better way of intercepting the work than the man who was the boss, who was giving the orders, who

was receiving the injunctions and putting them in

his file, what better way than to make the powerful

gesture of saying, "The court will not have its

process set at nought where there is a preservation

of subject-matter involved" and, indeed, it appears

to have achieved its desired result. There was no

further interference with the trees. So, the proof

C2T50/l/SH	78	8/6/89
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of the consequence is probably the answer to

Your Honour's question. But the way we put it

is that there is a fundamental distinction to

be drawn between, on the one hand, treating

His Honour's warrant and the consequent apprehension

and detention of him as being punishment for

infringing Mr Justice Kaye's order. That was not

what he was doing and, indeed, the form of the
warrant itself indicates that that was the matter

for the morrow. That is one side of it. The

second side of it is, is that if it was not that,

what was it and we say, if you characterize it,

it falls to be characterized as an extreme step

taken by a court that has had one of its orders

not only not complied with but that the underpinning
of the order, the preservation of the subject-matter,

was being further put in jeopardy and this extreme

step was taken in order to protect.

Now, that is the way in which we put our

submissions on the facts. So far as the law on the first point is concerned, we approach it in the way, as attempted in the various points of

the outline of our submissions. We formulate the

submission that we rely upon in general terms in

that way. The inherent jurisdiction of the Supreme

Court of Victoria, as a supreme court of unlimited

jurisdiction, includes a power to order the arrest

of an alleged contemnor for the purpose of attempting

to prevent the destruction of or serious interference

with the subject-matter of litigation pending before

the court.

(Continued on page 80)

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MR PANNAM (continuing):  Now, we get to that power by

pointing to various matters - the first I have

already briefly drawn attention to and I will

not repeat - namely, the repeated expressions by

members of this Court in various cases over many

years as to the width and extent of the inherent

jurisdiction and companion statements made in the

House of Lords in CONNELLY and made in the

Court of Appeal in New Zealand in TAYLOR and

evidenced.in the literature in Master Jacob's

paper and in Mr Mason's paper in the Australian

Law Journal. So that always there has been stressed the

reservoir of residual power that is necessary to

achieve justice between parties who are litigating

issues in court.

In this case, in JACKSON V STIRLING INDUSTRIES,

the inherent jurisdiction of the Court was in part,

if not in whole, used to support the existence of

the power to grant a MAREVA injunction a fortiori

an Anton Piller order and we would say that that

is but another example of the fact that the courts

do not deny to the inherent jurisdiction a power

to ensure that the integrity and efficaciousness of

its process is observed. The second underpinning

we get for our submission is the proposition that

I put to the Court prior to the adjournment, namely that in extreme cases, in matrimonial cases and in WARWICK's case and in this Court in DOYLE's case, there was recognized the jurisdiction even to

punish for contempt on a ex parte application.

MASON CJ:  Dr Pannam, can I ask you this: if we are to

assume that there is inherent oower,have you concluded

the particular order, or at least the issue of-the	the submissions that just seek to justify ·the rnakir!g of
particular warrant in this case?

MR PANNAM: Yes. All I would be doing would be fleshing it

out in a little more detail, but I would have

finished the substance of what we wanted to put, yes.

MASON CJ:  Because I think it is a matter of making sure

that you have put all that you want to put on the

point that we asked you to address.

MR PANNAM:  There is only one point that, as my learned friend

relied upon it and it is a technical point, I do

desire to briefly deal with on this aspect of the

matter.

MASON CJ:	Yes, well if you would do that now.
MR PANNAM:	That is the provisions of section 3(5) of the

SUPREME ACT where my learned friend said, "Because

of the provisions of section 3(5) of the SUPREME

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COURT ACT the rules were, in effect, a code", and no

doubt had Your Honour the Chief Justice's remark

in mind that the inherent jurisdiction is no charter

authorizing a court to turn its back on a statute in OADES I case recently.

McHUGH J:  Yes, but I think the Chief Justice said to you

that we would assumeit.

MASON CJ:	We were assuming the existence of inherent power.
MR PANNAM:	But this is an argument that would seek to confine

it by reference to a statutory provision, and it is

that statutory provision that, in our submission,

does not confine the power, and that is the short

point I wanted to deal with.

MASON CJ:	Yes, very well.
MR PANNAM:	It is in point (e) on the second page of our

outline of argument. Your Honours will recall that

section 3(5) provides that:

A judgment in any proceeding must be

enforced in accordance with the General Rules of Procedure in Civil Proceedings

1986 and not otherwise -

and the companion subsection which precedes it 1s:

A proceeding to which the General Rules of Procedure in Civil Proceedings 1986 apply must, despite anything in any Act or enactment, be commenced and conducted in accordance with those Rules and not

otherwise.

Now, there are three short submissions we make about

that. The first is that if our characterization

of the circumstances in which Mr Justice King

determined to issue the warrant is correct, then

that is not the enforcement of Justice Kaye's order

at all, but a separate step taken with the same end	in view, namely the preservation of subject-matter.
The second submission is that those subsections should be confined to apply only to situations where the
rules themselves provide the necessary framework
for the exercise of the power and either confine or extend it and here, as our learned friends have submitted, there is nothing in the rules that deal with this question and, as a matter of construction, we would say, it should not be construed to exclude power where the rules themselves do not deal with it because it would be a curious construction of the subsection to say
that it confines you to the rules and yet there is nothing in the rules, therefore there is no power,
and, indeed, if that was the construction then there
is a very technical reason as to why it is not correct.

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MR PANNAM (continuing):  Could I finally direct the Court's

attention to section 132 of the SUPREME COURT ACT

1986, in subsection (e)? On page 54 of the print

there is the insertion in the SUPREME COURT ACT -

if Your Honours see there - I am sorry, there is

inserted in the CONSTITUTION ACT, a new

subsection (3) which says:

The Court has and may exercise such

jurisdiction (whether original or

appellate) and such powers and authorities

as it had immediately before the

commencement of the SUPREME COURT ACT 1986.

So that in the sections in the CONSTITUTION ACT

which confer the jurisdiction on the court, this

Act, the SUPREME COURT ACT, deleted subsection (2)
in (d), added this new subsection (3), and if
that is so, it would be a curious thing to

construe section 3(5) as confining a jurisdiction

which is confirmed by that later section.	I do
not know whether I make the point clear but
that is the short point, Your Honour.	They are

the three ways in which we say section 3(5) of

the SUPREME COURT ACT does not relevantly confine

or restrict the inherent jurisdiction of the

court and the inherent jurisdiction can coexist

with the rules because it deals with an area with
which they have nothing to say. Your Honours, we

have no further submissions to make on the point

that Your Honour identified.

MASON CJ:  Yes, thank you, Dr Pannam. The Court will take

a short adjournment in order to consider the

course it will take in this matter.

AT 2.34 PM SHORT ADJOURNMENT

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UPON RESUMING AT 2.40 PM:

MASON CJ:  Mr Gillard, if the Court is against you in

relation to your submission that the warrant should

be set aside, is there anything you want to

say against an order that the grant of special

leave should be rescinded?

MR GILLARD:  No, I do not think I can say anything,

Your Honour.

MASON CJ:  No, I should not have thought so. Thank you.

Counsel for the respondents has submitted that the warrant issued by Mr Justice King which

authorized the sheriff to arrest the appellant

and bring him before the court to answer a
charge of contempt and detain him in the meantime

was justified as an exercise of the Supreme

Court's inherent power to preserve the subject- matter of the litigation.

Even if it be assumed that the court had power

to issue a warrant ex parte for that purpose and

that the facts were such as to justify the

exercise of the power, we have reached a clear

conclusion that notwithstanding the respondents' submissions the form of the warrant in this case

was inappropriate to the exercise of that power. It was in a form appropriate only to a charge of

contempt in the face of the court. The warrant,

which was issued at the request of and in the

form suggested by the respondents, was

irregular and should not have issued.

Notwithstanding this conclusion, we consider

that the appellant's submissions in support of

the appeal cannot be accepted. The warrant was

executed. The sheriff and his officers and,

presumably the gaoler, acted in reliance on the

authority of the warrant in arresting the appellant

and detaining him. As the warrant was spent,

the Full Court was right in concluding that it

should not set it aside.

In the circumstances, the appropriate order

is: rescind the grant of special leave to appeal.

(Continued on page 84)

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MASON CJ (continuing):  Dr Pannam, do you wish to make

any submission in opposition to an order for

costs in the form that each party pay his or

her own costs of the pr~ceedings in this Court?

MR PANNAM:	Yes, our submission would be that we ought to have the costs of the proceedings in this
Court for this reason: the ground upon which
the applicant has lost is the ground that was debated before the Full Court and is the ground
that was also debated before His Honour

T53	the Chief Justice. That being the principal
argument that was advanced in the Court, and
having failed for the third tim~ there is no
reason why a view expressed in relation to a
quite irrelevant matter in an irrelevant
circumstance to that conclusion ought have
any bearing at all upon the normal consequences
that would otherwise flow from the conclusion
that the Court has reached.

MASON CJ:  Yes, but you have sought to maintain throughout

and in this Court that the warrant validly issued

and, after all, that was the centre-piece of

the dispute between these parties. True it is

that the actual decision in relation to this

appeal does not turn on that but it is an issue

that has been resolved against you in this Court.

MRPANNAM: Certainly that is so. I have nothing further

to add on the submissions save to say that for
the same reason that there has already been a

twofold failure there has been a failure again

and that ought to be the dominant consideration.

But beyond that I can take it no further.

If the Court pleases.

MASON CJ:  The order of the Court will be as to costs,

each party pay his or her own costs of the

proceedings in this Court. In addition, the

Court directs that its reasons for rescinding

the grant of special leave to appeal be placed
and maintained in this Court's file.	The Court

will now adjourn until 9.30 am in Melbourne

tomorrow.

AT 2.44 PM THE MATTER WAS ADJOURNED SINE DIE

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