Marriner v Smorgon

[1988] HCATrans 325

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M76 of 1988

B e t w e e n -

DAVID WELLESLEY MARRINER

Applicant

and

GRAHAM SMORGON and ANNETTE

SMORGON

Respondents

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Marriner

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 DECEMBER 1988, AT2.43 PM

Copyright in the High Court of Australia

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

my learned friend, MR I. SUTHERLAND, for the applicant.

(instructed by Freeh1ll Holl1ngdale & Page)

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

my learned friend, MR P. MURDOCH, on behalf of

the respondent. (instructed by Purves Clarke Richards)

BRENNAN J: Mr Gillard, I think I will call on Dr Pannam

first.

MR GILLARD: If Your Honour pleases.

DR PANNAM:  Your Honours, although at first sight the case

might appear to be attractive for the grant of

special leave, there are four short points that

we desire to rely upon to resist that initial

temptation to which you may have been subject.

The first is that the facts of the case provide

an entirely inappropriate vehicle for the importance
of the question to be decided.

This is a case where, as Your Honours will

have seen, after Mr Justice Kaye's order had been

made what happened was on two occasions there were

indications that the order simply would not be

complied with, and we refer first of all to page 29,

in fact only to page 2~ of the application book

where Mr Justice Murphy in the Full Court set out

the reaction of the applicant to the order that

had been made by Mr Justice Kaye that, in effect,

protected the trees on the boundary of the property.

GAUDRON J: Well, he set out the evidence, did he not, upon

which there had not then been any finding and in

respect of which the other party had not then

called any contrary evidence?

DR PANNAM:  That is certainly so. But that was what the

situation was that appeared from the evidence before
Mr Justice King when the order was made.	I just
refer briefly to the two passages.	One was that

the applicant had said that he would put it in the

file of his injunctions and allocate it to his

next solicitor in due course - a colourful

reaction. And, secondly, after there had been

observation of continued violations of the order

that had been made by Mr Justice Kaye, Drake, an

employee of the Marriner company, the second applicant,

said he took his instructions from his boss and

his instructions were to continue working.

Now, if there was ever a situation that was

revealed to a court that demanded some immediate

action to be taken, lest the subject-matter, the

entire subject-matter, of the complaint would have

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disappeared, namely the trees along the boundary,

it was that situation that arose. Time enough

the next morning for the rival view to be deployed

before the court; what was required was some

immediate and urgent action.	Now that is the point
of fact.

Now, the point of law that makes it an

inappropriate vehicle for the grant of leave to
test any more general propositions is this: there
was dealt with in the Full Court a point which

hand to the Court the relevant sections of both

had not been the subject of any argument before
the primary judge or before the Full Court and

that was the status of section 3(5) of the

that and of the CONSTITUTION ACT. Can I first

go the SUPREME COURT ACT of 1986 and take the Court
to section 3(1), draw attention to the word
"judgment" being defined so as to include "order"
and then go to the next page where subsection (5)

appears:

A judgment in any proceeding must be enforced

in accordance with the General Rules of Procedure
in Civil Proceedings 1986 and not otherwise.

Now, what Mr Justice Murphy dealt with, and

so too Mr Justice Ormiston, was whether that confined
the original jurisdiction, or the inherent jurisdiction,
of the Supreme Court of Victoria to take action
to preserve the subject-matter of litigation pending
before it in circumstances of urgency. Now, the

suggestion was made that that confined the width

of the inherent jurisdiction and, hence, because
the rules were not followed, so the reasoning went,
it might be contended that the whole proceeding
before Mr Justice King was abortive and indeed
took_p~ace without jurisdiction because of that

prov1s1on.

Now, if the Court goes to section 18 of the

CONSTITUTION ACT the Court will see there that

in section 18 of the CONSTITUTION ACT it is provided

that in subsection (1):

Subject to sub-section (2) the Parliament

may by any Act repeal alter or vary all or

any of the provisions of this Act and substitute

others in lieu thereof.

Then in subsection (2):

It shall not be lawful to present to the Governor

for Her Majesty's assent any Bill -

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(a) by which any alteration in the constitution

of the Parliament, the Council or Assembly

may be made; or -

more importantly -

(b) by which this section, Part I, Part IIA,

Part III, or Division 2 of Part V, or any provision substituted for any provisions therein

contaned may be repealed altered or varied -

unless the second and third readings of such

Bill shall have been passed with the concurrence

of an absolute majority of the whole number

of the members of the Council and of the

Assembly respectively.

And then if I can go to the ·next page which sets

out in section 85 - I will not read it - a traditional

form of the conferment of plenary jurisdiction

in a State court by refernce to the jurisdiction

of the superior courts in England.

So that two questions arise that were not

dealt with, either as a matter of legal argument

,or of fact, in the court below. First, what
section 3(5) means in any event because, in our
respectful submission, it clearly is to be confined
to cases where procedures are prescribed in the

Rules to govern a situation, and this case was not

one of those - it was an extraordinary case, no

provision in the Rules to deal with it. And, secondly,

a question of constitutional liberty would arise,

which has not been dealt with, as to whether or

not the requisite majorities of the Houses of Parliament

had been obtained.

Now, both of those matters would arise on

the appeal. They have not been the subject of

any argument or any consideration of the matter

below or the assistance of argument from counsel

and, in our respectful submission, any argument
that was to deal with the extent of the inherent
jurisdiction of the Supreme Court of Victoria to
deal with a situation like the present, against

the background of section 3(5), would have to deal

with both of those matters. And for that reason

the second submission we make is it is an

unsatisfactory legal vehicle for the agitation

of the other issues.

The other points that we would make are two.

The first is, the complaint that was made in argument

in the court below was, in part, by reference to

the form of the warrant - can I take the Court

to page 93 - and it was said that, "Well, as long

as that document stands in the records of the

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Supreme Court of Victoria, there is in a fact a

situation created where Mr Marriner, in effect,

is said to have been responsible for a contempt

in the face of the court.". Now, as the Court

has picked up from the materials, it was an

inappropriate form and it was simply the selection

of a wrong heading, we would say.

If one goes to the document itself, it is

perfectly clear that if the two words "in face" are taken, the arrest warrant represents exactly

what Mr Justice King intended to do - arrest

Mr Marriner and bring him before the Court to answer

a charge of contempt, detaining him in custody

in the meantime. So that, this is not a sort of

a committal for contempt ex parte, this is a situation

where the judge, apprised of factual material that

revealed an extraordinary situation, namely, that

the subject-matter of the litigation was about

to be put in peril, he decided to make an order,

or rather to issue this warrant, which had the
effect of ensuring that Mr Marriner would be before

the court the next morning.

BRENNAN J: Is it not an important question whether the

learned judge had power to issue such a warrant,

even if one leaves out of account the words "in

face"?

DR PANNAM:  In our respectful submission, it is an interesting

question but the answer is all one way; it is

perfectly clear that he did. In principle, we

would say, this is covered by what Sir Owen Dixon
said in a case as long ago as TAIT in connection

with the inherent jurisdiction of this Court to

preserve the subject-matter of, in that case, a

human life that was before it. In DOYLE's case, Your Honours will recall the_ L~trobe University

sit-in, there was no doubting by the court in that

case that a justice of the Supreme Court of Victoria

had power to commit for contempt even without notice	if there were extraordinary circumstances but found
as a fact that those extraordinary circumstances did not exist. And we would say if the point to. be argued is whether a State superior court has
power on an ex parte application,with evidence
before it that the subject-matter of the litigation
is being put in peril by an act of one of the parties
to that litigation, to suggest that ex parte there
is no power to make an order that would effectively
put an end to that situation until the matter
can be looked at by the court is a hopeless proposition.

BRENNAN J:  The proposition would be that there is no power

to arrest a person and to deprive him of his liberty

to that end.

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DR PANNAM:  In our respectful submission, that was the only

way that the court in the extraordinary circumstances

of this case could have reacted so as to ensure

that by 10.30 the next morning the court was seized

of something that there was a meaningful debate

to be then conducted about, we would say.

BRENNAN J: 

I appreciate the force of the submission but

in terms of the importance of the question, is
it not an important question?

DR FANN.AM: It is an important question but the reason why

the Court should refuse special leave is because
it admits of only one answer. It is clear, in

our respectful submission.

BRENNAN J: Is there any authority, other than the

LATROBE UNIVERSITY case, that you can bring to mind?

DR PANNAM:  There is the LATROBE UNIVERSITY case and, of

course, the decision of the Court in TAI~ probably

are the two cases that come closest to the assertion of the power, and TAIT is the clearest case, perhaps.

BRENNAN J: Well, Tate was certainly deprived of his liberty

but in order to his life.

DR PANNAM:  Certainly so. The trees might be in the same

situation in the present case and I do not say

that flippantly. The point I put is this: the

proposition to be ventilated, presumably, on the

appeal is this - does a State supreme court judge

have power to make ex parte, in effect, an order

to have a warrant issued to effect the arrest of

a party litigant in order to protect the subject-

matter of the litigation where that party's actions,

as reported to the court on the basis of credible

evidence, not tested but credible, is put in peril?

Now, that is, in our respectful submission, so

formulated the inherent jurisdiction of the court,
we would say, is perfectly clear to deal with a

case like that.

Now, the final point, perhaps it is not as

attractive as any of those, but it was the point

upon which each of the judges below decided the

case, and it was this: what useful purpose in

the real world could be solved by dealing with

the matter because Mr Marriner was released the

next day, all of that is in the-past, there is

no live issue in these proceedings to be determined

about that custody. There is no claim that is based upon that deprivation of his liberty and the submission is that there is absolutely no purpose

to be served by investigating the point in the

context of the present action.

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And if we can take the Court, briefly, to

the way in which it is nicely summarized for the
purposes of our submission by Mr Justice Ormiston

BRENNAN J:	Does any claim for damages presently lie for the period of his detention under the warrant?
DR PANNAM:	Not on foot, at the moment, so far as we aware.
MR GILLARD:	No, not at the moment.
DR PANNAM:	My learned friend says not, and he adds, "at

the moment". But can I go to the bottom of page 69

to attempt, simply, to summarize the way in which

courts below dealt with the matter. Page 69, about

eight lines from the,bottom, in the paragraph -

"I . 1 . " h

can see no pract1ca virtue ..... , t ere

Mr Justice Ormiston, in effect, summarizes what

the learned Chief Justice had said and what

Mr Justice Murphy had said:

I can see no practical virtue in having

the warrant set aside. No order for costs

depends on its existence, for it was made

ex parte and any costs arose out of and

incidentally to responding to the plaintiff's

summons for an interlocutory injunction.

There is nothing on the record which needs

to be expunged. -

the point I briefly referred to before -

No undertaking as to damages was apparently

given in order to obtain the warrant. One

had already been given to Kaye, ·J. and, if

the interim injunction were discharged,

compensation would be available. Likewise,

although it is not argued, no action for

malicious prosecution could fail, if that

is intended, for the requirement that the

proceedings should be terminated in favour

of the proposed plaintiff applies only if
proceedings were capable of so terminating.

And then after that His Honour said that:

I agree therefore with Murphy, J. that no

useful purpose could, or can, be served by

setting aside the warrant or allowing an appeal

from the Chief Justice's order.

Now, the debate about the point of principle arises, in our respectful submission, in those three

unattractive environments. The factual environment

of the case itself, and what the evidence was before

the judge who made the order; the legal environment

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that raises a point not dealt with below, namely,

section 3(5) and the emptiness and futility of

any determination that the Court might make on

the appeal because it achieves no result in the
real world. Now, for those reasons it is our
submission that special leave should not be granted

to agitate any question in relation to these matters.

If the Court pleases.

BRENNAN J: Special leave will be granted in this case.

DR PANNAM: If Your Honours please.

AT 3.05 PM THE MATTER WAS ADJOURNED SINE DIE

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