Minister for Immigration v Ibrahim

[2000] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne  No M9 of 2000

In the matter of –

An application for a Writ of Prohibition against THE HONOURABLE JUSTICE ELLIS of the Family Court of Australia

Respondent

Ex parte –

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 25 FEBRUARY 2000, AT 9.37 AM

(Continued from 24/2/00)

Copyright in the High Court of Australia

HIS HONOUR:   Yes, Mr Perkins.

MR PERKINS:   Your Honour, I apologise; yesterday I referred to a case of Marsh.  It should have been the case of McPherson.

HIS HONOUR:   Not at all, Mr Perkins.  I looked also overnight at the case of Milat that we touched on in the course of argument.  Now, I have your outline, I have your grounds; I have looked at those and the order, of course.  I have not looked at the case of Hay v Hay that you included in the papers.

MR PERKINS:   Yes.  Could I just say in a sentence the reason I have referred to Hay v Hay is that at paragraph 20 of the Internet judgment that I have printed and provided to your Honour there is a consideration of the scope of rights of appeal and, in my submission - - -

HIS HONOUR:   Sorry, which paragraph of that?

MR PERKINS:   Well, there are four or five paragraphs, your Honour, that deal with the question of what right of appeal there is and the conclusion appears to be that there is no right of appeal from a conviction.  It appears to be the conclusion that there is a capacity or a right to appeal in respect of the sentence but not in respect of the conviction.

HIS HONOUR:   Where is that said because, I must say, that sounds a surprising conclusion, given the breadth of the definition of “decree” in the Act?

MR PERKINS:   With respect, I would accept that that may be surprising.  Your Honour, I am afraid I have given your Honour my only copy but I think it may be that what I am about to - - -

HIS HONOUR:   Paragraph 25 says:

Notwithstanding the terms of the first order contained in the formal engrossment of the orders of 6 March 1998 (being that “On the finding of the Court that the husband is guilty of the allegation contained in the said application, conviction of the husband be and is hereby recorded pursuant to Section –

et cetera.  The Court goes on to say:

we take the view that this “order” is not a decree capable of appeal under s.94 for the following reasons.

MR PERKINS:   Well, I was just going to refer your Honour to section 93A and to the other sections concerning appeals including section 94.

HIS HONOUR:   And “decree” is defined in the Act :

means decree, judgment or order –

and an order of conviction, an order that the respondent be convicted, I must say, I do not see why or how that is other than an order.  Perhaps I am missing something.  I just do not understand the argument.  Perhaps I should read their Honours further.

MR PERKINS:   With respect, it seems a surprising situation but, if I may say so, the jurisdiction in respect of appeals – it is referred to in section 93A – would appear to give jurisdiction in respect of perhaps a dichotomy of matters similar to that which was dealt with by the Court in Colina and Torney, and that is to say 93A(1) refers to jurisdiction being conferred in “matters arising under this Act” and then it says, “or under any other law made by the Parliament”. Now, the difficulty appears to be this, in my submission, that the implied jurisdiction of a Chapter III court under the Constitution cannot be said to be within the jurisdiction of the Family Court under section 93A(1).

HIS HONOUR:   But 93A(1), on its face, would surely extend, would it not, to the jurisdiction given by 112AP(2), namely, the jurisdiction to punish for content?

MR PERKINS:   But, with respect, I would accept that it probably would, your Honour, but it is not relevant to look at that, in my submission, given the decision made by this Court in Colina and Torney.  The way that I would contend that that decision works is this, that the procedure of punishment for contempt by scandalising has been said to be available under the implied powers derived from Chapter III and, accordingly, it was not something which arose pursuant to a law of the Commonwealth, as that expression was considered in Colina and Torney.  Hence, the appeals, if there are any, or the procedure on appeal, if there is such a procedure, is not dealt with, in my submission, by the Family Law Act and cannot be because it is one of the things that is inherent – it is an inherent incident of the things that are implied as a result of the court being a Chapter III court.

If I may put it this way, your Honour:  the decision of Hay, which I have to say, frankly, I had forgotten about yesterday when I put the matter to your Honour, was, I think I am right in saying, put before the Court in argument in Colina and Torney.  At the very least it appears to be the case that Hay stands as authority for the proposition that there is no appeal from a conviction or a finding of guilt by the Family Court, perhaps on any contempt, but at least on a contempt by scandalising brought pursuant to the implied powers.

HIS HONOUR:   Why cannot 93A and 94 be read as follows? Section 93A:

The Family Court has jurisdiction with respect to matters arising under this Act –

pause there.

MR PERKINS:   Yes.

HIS HONOUR:   One of the matters that arises under this Act is an appeal which lies to a Full Court of the Family Court under 94(1)(a) from a decree of the Family Court exercising original jurisdiction, the relevant decree being either the order of conviction or, perhaps, the order that the respondent be punished for contempt, that being an appeal not only against the quantum of punishment but about whether a case for punishment was made out, that is to say, whether a contempt had been committed.

MR PERKINS:   If I may say so, with respect, and bearing in mind my obligation to assist your Honour, I do not find myself in the position that I can be a contradictor of the position that your Honour has just put as a possible way of approaching the matter.  But the difficulty is one that has been created by the case of Hay.  Whether that case is right is, no doubt, not a matter to be determined on an ex parte application.       Your Honour, I think that is what I wanted to say about appeal.  I wanted to refer to Hay and to the sections that appear in Part X of the Family Law Act.  They include the sections that have just been discussed.

Your Honour, I wanted to refer to the McPherson Case.  I have referred to that.  It is footnoted in what I have handed your Honour, I believe.

HIS HONOUR:   Yes.

MR PERKINS:   I have extracted, on the left-hand side of the page, the part that I say is the nub for present purposes of the position and it is submitted, with respect, that the open court principle does not merely include the doors to the court being open, it is submitted, with respect, that one of the guarantees of curial integrity that is to be found in courts in our system of justice is lacking in the Family Court because that court does not have the scrutiny which it is submitted, with respect, is a fundamental of our system of justice.

Your Honour, I am not sure that I wish to add to what I have put forward in the writing except to say this, perhaps, that the things that appear in relation to discretion, and when one looks at the fact that the core business of the Family Court is the exercise of discretion and adds to that the fact that it is, in some respects, a court which is not open to ordinary public scrutiny, one almost finds a recipe for the sorts of criticisms which have in the past been made concerning that court.  In my submission, there is a real question as to whether a court which does not operate in an unregulated open environment is truly a Chapter III court.

Your Honour, yesterday I had in Court the American cases that are referred to in my client’s affidavit, I think in paragraph 10.  I do not have those in Court now and I think it is not necessary - - -

HIS HONOUR:   Those being the “free speech” cases.

MR PERKINS:   Yes.  I was going to say I do not know that it is really appropriate, for the argument that I am putting, for me to go to those, your Honour.

HIS HONOUR:   Well, I think you may take it that I am generally familiar with the trust of them.

MR PERKINS:   Yes.  Well, I think I would leave it at that, your Honour.  Yes, if your Honour pleases, I think unless there is any other matter that your Honour wanted to invite me to take up, those are the submissions that I would make.

HIS HONOUR:   Yes, thank you.  One minor matter, perhaps a matter of procedure more than anything else.  The only order you seek is prohibition, is it?  Do you seek injunction in support of it?

MR PERKINS:   Yes, I do, your Honour.

HIS HONOUR:   Yes.  I had understood it.  Just the draft order was an order nisi, but you seek injunction to restrain the further conduct of the proceedings?

MR PERKINS:   Yes.  If your Honour pleases, and I do not wish to sound apologetic in putting it like this, but I have the view that the matters that are put forward under the compass of this application deserve to have two counsel and I would simply want to make that plain, your Honour, that that, in some respects, has been a matter of dissatisfaction that goes back some time.  But in terms of the precise drafting of the matters, I will not add anything to that.

HIS HONOUR:   Yes.  It is now, I think, 9.55, Mr Perkins.  I would expect to be in a position to give reasons at about 10.10.  I will leave the Bench in the meantime but if you would not mind remaining in the vicinity.

MR PERKINS:   If your Honour pleases.

AT 9.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.12 AM:

HIS HONOUR:   Urgent application is made for an order nisi for prohibition directed to the Honourable Justice Ellis of the Family Court of Australia prohibiting the further hearing of an application brought by the Marshal of the Family Court for orders that the applicant, Mr Torney, be punished for contempt.  Those proceedings for contempt have been the subject of earlier proceedings in this Court, the judgment in which is reported as Re Colina, Ex parte Torney (1999) 73 ALJR 1576; 166 ALR 545. The applicant also seeks interlocutory injunction restraining Justice Ellis from proceeding further with the trial of the application pending the hearing and determination of the application for prohibition.

When the matter came on for hearing before me, the central complaint of the applicant appeared to be that his trial could not proceed fairly because he had been denied legal representation or, perhaps, denied legal representation by the counsel of his choice.  As the application proceeded, some other questions emerged but, before dealing with those, it is convenient to deal first with the applicant’s contention that his trial cannot proceed fairly.

The grounds upon which the applicant seeks order nisi in this respect are expressed in the following terms:

(a) the requirement that a trial be fair is entrenched in the Commonwealth Constitution by the implicit requirement in Chapter III that judicial power be exercised in accordance with the judicial process.

(b)  the principle enunciated in Dietrich v The Queen (1992) 177 CLR 292 is applicable to a case of contempt brought pursuant to implied powers and imports a requirement of due process, and the right to counsel.

(c)  the principles enunciated by the High Court in Dietrich v The Queen (1992) 177 CLR 292 (“Dietrich”) are applicable to the proceedings upon a charge of contempt dealt with summarily.

(d)  the applicant is being denied due process.

(e)  the Marshall [of the Family Court] is in breach of applicable prosecutorial obligations to act openly and fairly, and is failing to discharge or adhere to some or all of the obligations of prosecutors in criminal trials.

It can be seen, then, that the applicant seeks to contend that he is standing trial for a serious offence and that, following what was said by the Court in Dietrich, his trial should be stayed or adjourned until appropriate arrangements are made for his proper legal representation. 

I am prepared to assume, without deciding, that it is arguable that the principles established in Dietrich would apply to a trial of the kind which the applicant now faces, a trial in which he is called on to show cause why he should not be dealt with for contempt constituted by acts and statements alleged to amount to scandalising the Family Court of Australia.  On that assumption, if it were shown that the applicant was indigent and that, through no fault of his own, he was unable to obtain legal representation, it would follow from Dietrich that a judge should grant the applicant’s application for stay or adjournment of the proceedings.  It would also follow that, if the application for stay or adjournment were refused, and by reason of the lack of representation the trial is not fair, any conviction recorded against the applicant would be quashed.

The evidence of the course of proceedings in the Family Court is at best exiguous.  The applicant swears that he has sought orders that he be supplied with transcript of the proceedings before Justice Ellis but that those orders have been refused.  Not only, then, is there no transcript of proceedings in the Family Court available to me, the affidavit that is filed in support of the present application gives little or no detail about what has happened so far in the course of those proceedings.  I was told by counsel that the proceedings have been adjourned from time to time since they commenced in January this year and that “at least five days” of hearing have now been occupied by various preliminary applications but there is no evidence of what those applications were, other, that is, than the applications for provision of transcript.  I was also told that the applicant has not yet been called on to enter any plea, but whether such a step is necessary or appropriate in the proceedings that are taking place in the Family Court is a matter which I need not explore.

So far as the affidavit filed in support of the application reveals, the applicant was represented by solicitors and counsel of his choice for all but, as I was informed, the most recent day of the hearing before Justice Ellis.  The applicant swears that on 15 February 2000 his solicitors withdrew and ceased to act on his behalf.  Counsel who had been retained in the matter until then, and who appeared on the present application before me, also withdrew, his instructions having been withdrawn upon the solicitors ceasing to act.  What then happened is described by the applicant in the following terms: 

“On 23 February 2000 VLA [Victoria Legal Aid] purported to assign my case to another firm of solicitors:  I sought information from that firm as to the work which they proposed to carry out on my behalf.  The partner to whom I spoke refused to discuss that matter.  I also discussed with that partner my requirement, in the context of a part‑heard matter, to continue to brief Mr Perkins –

counsel who had previously been retained.

The partner, Mr Stary, informed me that VLA had purported to confer a discretion on him to brief other counsel.  I informed Mr Stary that this was not satisfactory, that the case was part heard, and that I required Mr Perkins to be briefed.

I was subsequently informed that legal aid funding was withdrawn.”

As I indicated to counsel in the course of argument, I take this evidence to show that the applicant had been granted legal aid on terms that would have enabled the briefing of counsel to appear on his behalf but that, because the solicitors concerned would not brief the counsel of the applicant’s choice, aid was withdrawn.  How that came about the evidence does not reveal.  In particular, the evidence does not reveal the terms on which legal aid was offered or provided.  Thus, I do not know whether it was a condition of being provided aid that the applicant act on advice given to him about the conduct of the application or whether it was, as the applicant’s affidavit might perhaps suggest, a condition of his being provided aid that the solicitor engage counsel of his, the solicitor’s, choice rather than the applicant’s.

Apart from such inferences as I might be able to draw from the fact that legal aid was granted to the applicant, there is no evidence which would show his financial position other than a bare assertion of impecuniosity.  Against whatever inference I might draw from the grant of legal aid must be balanced the fact that he was able to, and did, retain both solicitors and counsel during the early part of the hearing.  There is nothing in the letter sent by the solicitors for the applicant to their client informing him that they were withdrawing from the matter which would suggest that that firm withdrew because their client did not have the means to pay their bills.  Indeed, the letter confirmed that that firm was “still your solicitors in respect of the Full Family Court appeal” and that “we will charge you costs according to the Family Court Scale.”  Even if I were minded to conclude that the evidence revealed an arguable case that the applicant is indigent, there would remain the fact that the evidence presently before me suggests that the applicant is without legal representation only because he was unwilling to accept representation other than by the counsel of his choice.

In answer to these difficulties which were explored in the course of oral argument, counsel for the applicant sought to propound a case which alleged that the representation which was offered to the applicant by Legal Aid was unsatisfactory because it was “under funded”.  It was said that the points which the applicant sought to agitate in the course of the trial before Justice Ellis were difficult and complex legal points which required the attention of senior and junior counsel and that insufficient funds were to be made available by the Legal Aid Authorities for this purpose.  It is far from clear to me that the evidence which has been adduced in support of this application is such as to make a sufficient factual base upon which this argument could proceed.  There is no evidence, direct or indirect, about the terms on which legal aid was made available or the circumstances in which it was withdrawn, other, that is, than the bare fact that it was withdrawn.  That being so, it is, in my view, neither possible nor necessary to embark on questions of the kind examined in Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370.

In the end, I think it of the first importance to bear steadily in mind that it is for the applicant to demonstrate that he has an arguable case that he has been denied legal representation at his trial through no fault of his own.  I am not persuaded that he has done this.  Even if I were persuaded of this, further serious questions would arise about whether the discretion to grant an order nisi for prohibition in a case such as the present should be exercised in favour of the applicant.  The Court has said repeatedly that it will regard as premature an application for prerogative relief where an appropriate remedy is available on appeal to the Full Court of the Family Court, at least in a case where the main dispute is not on a question of the constitutional limits of legislative power; The Queen v Cook; Ex parte Twigg (1980) 147 CLR 15; Re Wilkie, Ex parte Johnston (1980) 55 ALJR 191 at 192; The Queen v Ross‑Jones; Ex parte Green (1984) 156 CLR 185 at 193-195, 214-215, 217-218 and 222; Re Family Court of Australia; Ex parte Herbert (1991) 65 ALJR 688.

The central complaint of the applicant is, as I have said, about the fairness of the trial which he is being asked to undergo.  That issue is one which, despite what is said in Hay v Hay (1998) FamCA 95, falls squarely within the appellate jurisdiction of the Family Court of Australia. It matters not whether the appeal is properly to be seen as an appeal against an “order for conviction” or an appeal against an order punishing a contemnor for contempt and thus against the ground on which that punishment was inflicted, as well as its measure. The appellate jurisdiction of the Family Court is conferred by section 93A of the Family Law Act over

“matters arising under this Act…..in respect of which –
(a)  appeals referred to in section 94 are instituted;”

This grant of jurisdiction is not limited by reference to the source of the power to make the order which is the subject of appeal and, accordingly, the questions considered by the Court in Re Colina; Ex parte Torney about the source of the power to punish for contempt are questions which do not arise in considering the appellate jurisdiction of the Family Court. 

Questions of the fairness of the trial of the applicant are better judged in the context of all of the facts and circumstances than on the limited basis upon which the applicant would now invite this Court to intervene.  The fifth of the grounds which I have earlier set out, alleging that “the Marshall is in breach of applicable prosecutorial obligations to act openly and fairly” is the clearest example of why the fairness of the trial cannot appropriately be determined now.  As for the questions of sufficiency of representation, which the applicant seeks to agitate, they are matters which do not self-evidently demonstrate a case for intervention by this Court at this stage of the proceedings.  If this Court is to consider the matter, it is better that it has the advantage of the consideration of the issues by the intermediate appellate court, the Full Court of the Family Court of Australia.

It may be noted further that even the order refusing the applicant a stay or adjournment would appear to me to be an order which could be challenged in the appellate jurisdiction of the Family Court of Australia, subject always to leave to appeal being granted under section 94AA.  If, as the applicant contends, obvious injustice is to be done to him if the trial is allowed to proceed, it is a matter which would, no doubt, weigh very heavily in favour of the grant of leave to appeal against the order refusing a stay or adjournment.  By contrast, if no such case of obvious injustice can be made out, it might perhaps be thought that the reasons which would tend against the grant of leave to appeal in an interlocutory matter of the present kind, such as fragmentation of trial process, are matters which would suggest with equal force that this Court’s discretion should not be exercised in favour of the applicant.  For these reasons too, I would refuse the application in so far as it is based on what I have described as the applicant’s central complaint.

It is convenient then to turn to the other bases of the application that emerged in the course of oral argument. The applicant has given to Attorneys –General notice under section 78B of the Judiciary Act 1903 (Cth) that constitutional questions arise in the proceedings before Justice Ellis. It was said that these constitutional issues found a grant of prohibition. Two kinds of ground were advanced in this respect. First, it was submitted that what was described as “the implied constitutional power” – I interpolate, for a Chapter III court – “to deal summarily with contempts” had been regulated by sections 35 and 112AP of the Family Law Act in impermissible ways and, second, that section 121 of the Family Law Act which, put shortly, prohibits publication of the names of parties, witnesses or those associated with them in proceedings in the Family Court is invalid because its effect is to render proceedings for contempt in the Family Court akin to proceedings in closed court.

Both of these kinds of ground were elaborated in various ways. Thus, alternative submissions were advanced on the hypothesis that section 121 of the Family Law Act was valid, rather than invalid.  I do not think it necessary to stay to examine the permutations and combinations of argument that were thus advanced.  It is enough to say of these points that if they are arguable – and I am by no means certain that they are – they are not points which touch the jurisdiction of the Family Court to entertain the proceedings now before it. 

The first of the kinds of ground that I have mentioned might conceivably affect the way in which the proceedings were to be conducted but it would not go to whether the court had jurisdiction to punish for contempt. The second kind of grounds might have some broadly similar consequence about the publicity that might be given to the proceedings in the Family Court. But as counsel for the applicant acknowledged in the course of argument, whatever may be the effect of section 121 of the Family Law Act, it does not mean that members of the public may not come into the court and hear the proceedings that are being conducted in it and it does not mean that the content of the proceedings and the arguments advanced, as opposed to the identity of parties, witnesses or those associated with them, cannot be reported in the public media.

In those circumstances, the analogy which it was sought to draw between the present proceedings and proceedings in closed court is one which breaks down.  In any event, it may be doubted that propositions of the width which lie below this contention are propositions of universal application.  That is to say, it is by no means clear to me that a necessary and indispensable part of exercise of judicial power of the Commonwealth is that every aspect of that proceeding be always capable of publication.

The powers of courts to make orders suppressing the names of witnesses, preserving trade secrecy, avoiding disclosure of matters affecting national security are well known and long recognised.  There are many pieces of legislation in this country which provide that, in certain kinds of case, the names of one or more persons associated with that case may not be published.  In those circumstances, I am far from persuaded that either of the two kinds of ground to which I have referred constitutes an arguable ground for prohibition.

For these reasons, the application is refused.

MR PERKINS:   If your Honour pleases.  Could I - - -

HIS HONOUR:   I certify for the attendance of counsel.  Yes, Mr Perkins?

MR PERKINS:   Thank you, your Honour.  I wondered, if I may draw to your Honour’s attention, whether your Honour may have overlooked paragraph 4 of the affidavit.  I say no more about it than that.  I am told, your Honour, yesterday, that no plea had been entered as at yesterday morning.  I am not sure whether that fact was clear to your Honour and whether I – I simply wanted to mention that.  If your Honour pleases.

HIS HONOUR:   Yes, thank you, Mr Perkins.  I will adjourn.

AT 10.40 AM THE MATTER WAS CONCLUDED