NADC, Ex parte- Underhill

[1999] HCATrans 140

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B25 of 1999

In the matter of -

An application for a Writ of Mandamus  against JUSTICES UNDERHILL, JORDAN, HILTON and LINDENMAYER of the Family Court at Brisbane

First Respondents

Registry Manager DENISE DEANE, Registrar MARGARET ANNE ARTHUR, Registrar PAUL McGRATH, Registrar ANDREA BOWLER, Registrar SUSAN GARDINER, Registrar GUY BURRIDGE, Customer Service Officer ANNE-LOUISE WOODS and R.J. (ALEX) SOLANO of the Family Court at Brisbane

Second Respondents

Separate Representative GRAHAM QUINLIVAN and Separate Representative NICHOLA DAVIES, Officers of the Family Court appointed from Legal Aid Office, Queensland

Third Respondents

Ex parte -

NADC

Prosecutor

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 18 MAY 1999, AT 2.27 PM

Copyright in the High Court of Australia

____________________

HIS HONOUR:   This is an application by Mrs C, is that correct?

MRS C:   That is correct, your Honour.

HIS HONOUR:   I should say at the outset I hold certificates from the Deputy Registrar which state that the Australian Government Solicitor acts for the first and second respondents, save for M.A. Arthur and A. Bowler, and that the first and second respondents, save for those named, submit to the jurisdiction of the Court in this matter.  I have also been advised that A. Bowler passed away on 14 May 1999.

MR A. RAFTER:   May it please, your Honour, I appear for the third respondents.  They were the separate representatives in the Family Court.  (instructed by Legal Aid Office (Queensland))

HIS HONOUR:   Yes, Mr Rafter.  Whom do you represent?

MR RAFTER:   That is Mr Quinlivan and Ms Davies.

HIS HONOUR:   Thank you.  Yes, Mrs C.

MRS C:   Excuse me, your Honour.  I have Mr Ross Bell as a next friend that will speak for me.

HIS HONOUR:   Why do you need somebody to speak for you?  What power do I have to hear somebody speaking for you?  He is not a qualified lawyer, is he?  He is not a barrister or solicitor?

MRS C:   No, your Honour.  I have Mr Ross Bell speak for me - - -

HIS HONOUR:   But why should I hear somebody other than yourself?

MRS C:   I am asking your leave, your Honour.

HIS HONOUR:   What is your attitude, Mr - - -

MR RAFTER:   I am prepared to leave it up to your Honour.  It is slightly irregular seeing the person is not a legal representative appearing in these circumstances - - -

HIS HONOUR:   Yes.  Well, why should I hear somebody other than yourself, Mrs C?

MRS C:   Your Honour, as you can see, I am of Filipino origin and I have been in this case for the last seven years.  It started in 1992.  It would be a lot easier for the Court to understand because in the middle of this I might be, like, emotional and Mr Bell will help me to explain to you why I need him to speak to you.

HIS HONOUR:   But I can understand you.  You seem to make yourself very clear.

MRS C:   Your Honour, look at these books here.  My English is not really that good, your Honour, you know.

HIS HONOUR:   Mr Bell is not a qualified lawyer.  We do not usually hear people in this Court other than the litigants themselves or their lawyers.

MRS C:   Your Honour, that is at your - - -

HIS HONOUR:   What power have I got to hear somebody who is not a lawyer.

MRS C:   Can I have Mr Bell to tell you, your Honour?

HIS HONOUR:   No, not yet.  I do not think I have power to hear anybody else.

MRS C:   Your Honour, in the documents that I have submitted with the Registrar which should be with you there, I have there that says your authority to allow somebody to speak for me.

HIS HONOUR:   Under which Rule or section?

MRS C:   It is quoted in the letter, your Honour.

HIS HONOUR:   Tell me what it is, please?

MRS C:   It is on the letter that we sent to the Registry, your Honour.

HIS HONOUR:   No.  Please tell me what section of what Act gives me power to hear somebody who is not a lawyer and who is not a party to the litigation?

MRS C:   Your Honour, the letter, we sent it to the Registrar.

HIS HONOUR:   No, no, I am not interested in that.  I must know this.  I am anxious to help you but I cannot make orders that I do not have power to make.  I am bound by the law just as everybody else is.  Now, I am not aware - - -

MRS C:   Yes.  Your Honour - - -

HIS HONOUR:   Listen to me, please.

MRS C:   I sorry.

HIS HONOUR:   I am not aware of any power or section of any Act that entitles me to hear anybody other than a qualified lawyer or the litigant in person and I am asking you to draw my attention to any provision that enables me to do that.  If I have power to do it, I will consider doing it.  Now, here is your affidavit that you have filed.  If you need it to refer to, you may.  Would you like me to stand it down for 10 minutes so you can give some consideration to this?

MRS C:   Thank you, your Honour.

HIS HONOUR:   I will adjourn the matter for 10 minutes and resume at a quarter to three.

MR RAFTER:   If it is of any assistance, your Honour, section 78 of the Judiciary Act is the relevant provision that provides for representation by legal representatives, barristers or solicitors and enables the parties to appear personally.

HIS HONOUR:   Yes, and then section 55A makes provision for the register of legal practitioners.  You see, Mrs C, section 78 of the Judiciary Act says this:

In every Court exercising federal jurisdiction –

and that is what I am doing, the High Court exercises federal jurisdiction –

the parties may appear personally or by such barristers or solicitors as by this Act or the laws and rules regulating the practice of those Courts respectively are permitted to appear therein.

Now, that says nothing about my hearing anybody other than the people personally or barristers or solicitors who are registered as such.  There is good reason for that because there are rules regulating the conduct of barristers and solicitors.

MRS C:   Your Honour, it is either a practice or a direction.

HIS HONOUR:   No, it is not a practice and it is not a direction.  It is a rule of law and it is no good you telling me that.  Now, I am going to stand the matter down until a quarter to three and it will give you an opportunity to consider it and we will talk about the matter some more then.  Adjourn the Court until a quarter to three.

AT 2.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.49 PM:

HIS HONOUR:   Yes, Mrs C.

MRS C:   Thank you, your Honour.  Your Honour, it is either a rule of the High Court or a practice direction.  Peter Robinson down at – the Registrar there, he contacted Margaret Rischbieth, the Registrar in Canberra, asking if she can find the two letters that I submitted to set out in that rule and then it

is a letter from me requesting and nominating a next friend and a letter from the nominee accepting that letter, and we have cited a specific rule.

HIS HONOUR:   There is no rule.  There is no rule.  There is no rule and there is no section that permits it.  I cannot do things that I have not got power to do, Mrs C.  One of my problems is that I do not understand why you cannot do it yourself.  You seem to me to be quite articulate.  Your English is perfectly understandable.  The reason for these rules is this, that the Court’s time is less likely to be wasted if argument is presented by lawyers who know the law and also lawyers who are registered to practice and are governed by rules of practice and conduct.  That is why there are rules about these matters which have the effect of excluding lay people, although people who want to represent themselves can.

MRS C:   Your Honour, this case started in 1992 and it is now 1999.  It is seven years.

HIS HONOUR:   One thing that is likely to prolong it is an absence of proper representation.

MRS C:   I am just - sorry, your Honour.  I am just trying to explain that I cannot afford any more a lawyer because I am now destitute.  I have the child there.  You know, we do not even have a good feed for the whole week.  I am now into charity.  That is why I have a good friend here who can help me run this case and I am very thankful of that and I hope, your Honour, you will give me that privilege to let my next friend speak for me.  I was allowed to speak in the Family Law Courts and, in fact, I have spoken to – I mention it while I was in the Family Court with the Appeals Registrar, Susan Gardiner, and I have been represented – sorry, I have my friend already speaking for me in the Family Law Courts.  I have been asked that a friend of mine can speak with – you know, in the Full Court, something like that, and I was allowed to, and even in the other courts, in the State courts, I was allowed a friend to speak for me.

HIS HONOUR:   Your name is Mr Bell, is it?

MR BELL:   Yes, your Honour.

HIS HONOUR:   Mr Bell, why should I hear you?

MR BELL:   There are two fundamental reasons, your Honour.  First of all, I feel I can assist the Court and expedite the matter by giving things to you succinctly and, on the other side of it, Mrs C does have, in a couple of respects, a practical disability.  She gets flustered easily.  It is not a matter of command of the English language alone, it is also, for her, it is a cultural thing of just simply not understanding how courts in Australia function, even as much as a lay person in this country would.  So, it is a difficulty that she has had all the way.  I personally researched the thing we are grasping for here and I cannot cite it to you because they are the only two bits of paper we have - - -

HIS HONOUR:   I do not think it exists, Mr Bell.

MR BELL:   Well, I found it in the library, your Honour, in a Butterworths volume dealing with the High Court Rules.  You know, if I had half an hour I would probably find it again, for that matter.  But I understand that there is a discretion in the Court.  What it did say specifically is what we have complied it and that is that the applicant in person write to the Registry nominating a person and that there be a letter from that person accepting the nomination and that is, in fact, exactly what we did.  But the Registrar in Canberra just said she cannot put her hands on it but she feels that the correspondence file is there whilst you have the substantive file here.

HIS HONOUR:   All right.  Well, look, against my better inclinations, I will hear you, Mr Bell.  You go ahead, you can proceed.

MR BELL:   Thank you, your Honour.  Your Honour, I am obviously unaware of normal procedures in this Court so I can only do my best as a layman.  Essentially, we come to the Court with an issue in equity ahead of anything else and we would submit that there is public policy reasons why the two major aspects of this application should be dealt with by the Court and that we should address both aspects.  I put it to you this way, that one aspect is as documented in the affidavit accompanying the application and the annexures to that and also the documents that that affidavit referred to that we sought to have as read, being the appeals in the lower court – three of them.

HIS HONOUR:   Let me just understand this.  The matter came before his Honour Justice Jordan, is that right?

MR BELL:   Last before the appeal process began, your Honour, yes.

HIS HONOUR:   Yes, in the Family Court.  His Honour made a number of orders.  That is correct, is it not?

MR BELL:   Last July, your Honour.

HIS HONOUR:   Yes.  Then an appeal was filed by Mrs C in the Full Family Court, is that right?

MR BELL:   Yes.

HIS HONOUR:   That was struck out because it was not proceeded with or the court formed the view that it had not been prosecuted diligently.  Is that right?

MR BELL:   Technically, that is the end point, but there were two other appeals concurrent with it reportedly struck out but we say that per the lodgment of a notice of constitutional matter the prior week, there was a duty – and this is in the Judiciary Act in plain English – upon the court to not proceed in the matter until certain things have happened, and there was no opportunity for those things to have happened.

HIS HONOUR:   Now, what do you say was the constitutional matter?

MR BELL:   The denial of natural justice, the same matter that we are here on, essentially, your Honour; that the court procedures had just simply not furnished any real opportunity for Mrs C to have a fair hearing, and a number of other things as set out in the present application.             The notice of constitutional matter is on your file – I would presume it should be.

HIS HONOUR:   This is a 78B notice?

MR BELL:   Yes, and the documents attached to it, your Honour.

HIS HONOUR:   Yes, I have that.  What do you say, precisely, was the failure to accord natural justice and procedural fairness?

MR BELL:   I draw your Honour’s attention on that point to the statements made in the present application on page 3.  There is a long paragraph which basically details a litany of things which, if so, would be an extremely bad reflection on the Family Court and we say that they are so and that we have evidenced them substantially.

HIS HONOUR:   Paragraph 3 or paragraph - - -

MR BELL:   Page 3.  That large paragraph at the head of page 3, your Honour.

HIS HONOUR:   Let me just read that again, Mr Bell.

MR BELL:   Yes.

HIS HONOUR:   Mr Bell, Mrs C was given custody or given the care of the child, is that not right?

MR BELL:   Some several years ago, your Honour.

HIS HONOUR:   Well, by Justice Jordan.

MR BELL:   Interim custody in approximately March 1994.  Since then the father has brought – the natural father has brought another application.  If we need to delve into those facts, the picture, we would say, is that there was no basis for that, but - - -

HIS HONOUR:   Justice Jordan ordered, did he not, on 16 July - - -

MR BELL:   Last July he ordered a continuation of the status quo in respect of custody and access, your Honour.

HIS HONOUR:   Yes.

MR BELL:   The appeal was on other aspects of his orders.

HIS HONOUR:   What other aspects?

MR BELL:   The orders are multiple.  There are several aspects but, in particular, his Honour would not allow any pursuit of what amounts to very substantial costs, all reserved through the whole seven years of the matter.  We say that he had no evidence in front of him – and this, of course, is the substantive matter that was in the appeal – to indicate that there was any reason not to allow pursuit of that.  There was no maintenance in 12 years of the child’s life – now 13 years – ever ordered.  We say that was a travesty and a miscarriage that should have been addressed at a number of junctures and was not, and his Honour simply refused to make orders on that point, although they were amongst the orders sought.

The other major attribute of what happened on the day was that we were there for a directions hearing.  Then Mrs C, as an applicant in person, as she has deposed in the present application, said she would have moved heaven and earth to be represented had she known that final orders were in the offing, had final orders thrust upon her in circumstances that were most strange, to put it kindly.  She also has a situation where, upon no evidence, she is given a parallel impost with the other party, and that is she needs leave to reapply to the court for anything.  We say there never was any evidence at all that such an impost should be put on her.  Certainly there was for the other party.  So, to just blanketly do that to her, we say, denies her any sort of justice, natural of otherwise.

HIS HONOUR:   Mr Bell, what, this was an a directions hearing that Justice Jordan - - -

MR BELL:   It was at a directions hearing, your Honour, yes, and she was not represented.  She had no opportunity to call witnesses or cross‑examination anybody, it was just, we thought, completely outrageous and we have had good legal opinion to concur.

HIS HONOUR:   Do you have a transcript of the proceedings?

MR BELL:   Yes.  It should be in the pleadings, your Honour.

HIS HONOUR:   I have the judgment, Mr Bell.  I do not know whether I have a transcript.  There is a very brief extract, I think, but I have not a full transcript, I do not think.

MR BELL:   It is not that long, your Honour.  What happened on the day was that Mrs C handed up a bunch of documents which his Honour read at length, so there was not a lot said. 

HIS HONOUR:   Do you have a copy of the transcript before Justice Jordan?

MR BELL:   I think we can put our hands on it in about one minute, your Honour.

HIS HONOUR:   Mr Rafter, were you involved – I will just hear from Mr Rafter.

MR RAFTER:   No, I am afraid I was not, your Honour.  I cannot shed a great deal of light on that aspect of the matter.

HIS HONOUR:   I have a transcript, Mr Bell, of the proceedings before the Full Family Court but I have not got it before Justice Jordan.

MR BELL:   Yes, your Honour.  I suppose the main grievance that has predominated this is what has happened in the appeal process.  But I do believe we can find that transcript.

HIS HONOUR:   You have no problem about my looking at this, Mr Rafter?

MR RAFTER:   …..

HIS HONOUR:   Yes, certainly, thank you.  You are representing the child, Mr Rafter?

MR RAFTER:   Well, really representing the separate representatives who were appointed - - -

HIS HONOUR:   For the child.

MR RAFTER:   For the child, yes.  And I say while I am on my feet, it does not appear entirely clear from the material exactly what is being sought against the third respondents.

HIS HONOUR:   No, the matter that concerns me, Mr Rafter, what is going to happen to the child.

MR RAFTER:   Well, exactly.

HIS HONOUR:   Anyway, let me read this.  Justice Jordan had been dealing with this matter since 1994, had he?

MR BELL:   Yes, your Honour, and through most of that period he was appointed or nominated as judge manager.

HIS HONOUR:   Yes.  So, he was pretty familiar with the case.

MR BELL:   You would have to say so, your Honour, yes.

HIS HONOUR:   I see here, Mr Bell, at page 7, Mrs C said:

What I want to say, your Honour, is that it is good that it will be dismissed.

MR BELL:   I think that, I think, your Honour, manifests the very problem that she has and that is that probably the sentence was badly structured.

HIS HONOUR:   Well, she said:

But I will not –

Well, I do not know.  She said:

But I will not agree with the cost to be dismissed.

So, she seems to be saying there that she is happy to see the rest of it dismissed but she wants the matter of costs to be - - -

MR BELL:   What was afoot, your Honour, was the continuance or the prosecution of the husband’s application for custody, so, in that context that comment would make sense.

HIS HONOUR:   Yes.  It seems that at that time the husband had on foot an application for custody.  Is that right?

MR BELL:   That is correct, your Honour, the second one.

HIS HONOUR:   And Mrs C had an application for costs, is that right?

MR BELL:   She was – I think there was a cross-application for custody.  Obviously there would have been, your Honour, and an application for a number of things including maintenance; a belated property settlement – and there are good reasons why she did not seek one at the outset – and maintenance, both past and future.

HIS HONOUR:   Mrs C said:

Your Honour, in lieu of the maintenance, can I have the adoption granted by you that Helen will be adopted by her stepfather, HAC.

MR BELL:   That is one of the things that the court has left open, your Honour.

HIS HONOUR:   Well, there was no application filed.

MR BELL:   There was - - -

HIS HONOUR:   - - - a mention in the affidavit.

MR BELL:   There was a verbal application at earlier hearings and there was earlier procedures that saw the child change her surname, your Honour.  It was one of the things that Mrs C and her new husband would want and it was, according to Family Services, in the interests of the child.

HIS HONOUR:   I am sorry, Mr Bell, it is not right to describe it as a directions hearing or the orders were not merely orders made on a directions hearing because Mrs C did consent to the dismissal of the father’s application for custody.  So, that is out of the way.  Consent was given.

MR BELL:   Yes.

HIS HONOUR:   And Mrs C remains custodian of the child, right?

MR BELL:   The custodian, yes.

HIS HONOUR:   So, what are the live issues?

MR BELL:   The several orders in the application that were not dealt with.

HIS HONOUR:   Well, what are they?  You tell me what they are?  What does she want?  She wants a property settlement?

MR BELL:   Well, it is in the orders as set out in the present application, your Honour.  If you refer to orders - - -

HIS HONOUR:   No, just tell me what they are? 

MR BELL:   - - - 2, 3 and onwards on page 3 of the present application.

HIS HONOUR:   Leave aside - - -

MR BELL:   You can pick it at order 3 sought, your Honour.

HIS HONOUR:   Well, look at order 2 – set that aside for a moment.  There is no order 2(a).  You say you want the order of Justice Jordan – I am sorry, “be set aside except as follows.”

MR BELL:   Yes.

HIS HONOUR:   All right.  Well, you do not want 2.  There is no 2(a) here.

MR BELL:   That was amended by hand by the associate before the orders were issued, your Honour.

HIS HONOUR:   All right.  You do not want 3.  Order 4 -  well, Mrs C does have day-to-day care of the child, does she not?

MR BELL:   Yes, but were these orders not left in force, there would be no orders dealing with that in force, your Honour.

HIS HONOUR:   But that order stands, that she “have sole parental responsibility”.  That is an order of the court.  That has not been set aside.

MR BELL:   No.  What we are asking for is for those orders in the first subparagraph to 3 be left in force and that there be changes made consequential - - -

HIS HONOUR:   No, but you say, “The orders of Justice Jordan made in the Family Court be set aside except as follows” – now, you do not want 2 set aside.  You say “except as follows”.

MR BELL:   Yes.

HIS HONOUR:   And then you say that you want them “to remain in force”.  I do not understand that.  It is contradictory.

MR BELL:   There are three aspects to what is sought, your Honour.

HIS HONOUR:   Well, leave aside 2.  What about 3?

MR BELL:   It is as simple as this:  what Mrs C would seek is that – let us start with the simple part – order 11, which relates to needing leave to come back before the court, be amended to delete reference to the applicant.

HIS HONOUR:   I do not have – you have not given me – I do not have in my papers a form of order with order 11 in it, nor, indeed, of order 2(a).

MR RAFTER:   I have a copy of that, your Honour.

HIS HONOUR:   I have been provided now with a copy of this.

MR BELL:   Does your Honour’s copy have a handwritten addendum in the form of 2(a)?

HIS HONOUR:   Yes, it does.  Well, the Full Family Court did not interfere with order 2(a).

MR BELL:   No, your Honour, but what we are seeking - - -

HIS HONOUR:   So, it remains in force.

MR BELL:   The appeal has gone nowhere at this point.

HIS HONOUR:   The appeal cannot go anywhere, it has been struck out.  But, anyway, let me try to get at what you really want or what Mrs C really wants.  She wants order 2 to remain in force, is that right?

MR BELL:   Yes.

HIS HONOUR:   Well, it will remain in force.  It was not altered by the Full Family Court.  It is an order of Justice Jordan and it remains in force. 

MR BELL:   Yes.

HIS HONOUR:   And the same with 2(a).

MR BELL:   Yes.

HIS HONOUR:   Paragraph 3 remains in force.  Paragraph 7 is now meaningless because outstanding applications have been dismissed.

MR BELL:   The point there, your Honour, is that Mrs C had applications for things like costs and maintenance that were dismissed along with the others.

HIS HONOUR:   But look at what you have asked for, Mr Bell.  It is contradictory.  It may not be you but it is, “The orders of Justice Jordan made in the Family Court be set aside except as follows”, and then you have “orders numbered to remain in force”.  Now, I do not know that the two expressions are contradictory, do you follow what I mean?

MR BELL:   I understand what your Honour is saying.

HIS HONOUR:   I have no idea what Mrs C wants from that paragraph.

MR BELL:   It is as simple as this:  she does not take issue with the orders in that first line being, 2, 2(a), 3, 7, 9 and 10, saying that they are in fact appropriate and she would not seek to appeal from those, and there was no cross-application, so we presume the other party - - -

HIS HONOUR:   They remain in force.

MR BELL:   Yes.  What we are saying is she should, in the event of the appeal being heard or we say that this Court, in the circumstances that have evolved since, should properly now say that her impediment to come back to the Family Court imposed by order 11 ought be removed from her.

HIS HONOUR:   All right.  So, she wants to come back to the Family Court, really, to argue about costs, maintenance and a property settlement, is that right?

MR BELL:   Yes, your Honour.

HIS HONOUR:   Is that what it really comes down to?

MR BELL:   Yes.  The other issue, your Honour, that I can recall immediately is the requirement that she give the other party, who she has not been married to for 14 years, 28 days notice before she applies for a passport to leave the country.  And there are a couple of other orders in there that we would say would be better off gone.  That was the substance of the appeal.  We say the appeal was not given due process at really any juncture.  The whole thing went badly off the rails and we say that it is in the pleadings as evidenced.

HIS HONOUR:   Just tell me, do not take me to the papers, how did the appeal go off the rails?

MR BELL:   Essentially, your Honour, the most important features alone would be that appeal No 52 of 1998, which was the appeal on these orders that we have just looked at, was duly filed.  There was a couple of dates changed about the hearing for settling an appeal index.  Mrs C was not happy with the appeal index as postulated or supposedly settled by the Registrar, so we asked for that to be reviewed and, in fact, it was.  If my recollection is right, your Honour, it was reviewed by the same Registrar that made the decision.

Then there was an appeal filed on that because when it got in front of Justice Lindenmayer he actually agreed that the contention Mrs C made, and that is that the issues she needed to evidence for her appeal were certain specific things and that the documents that the Registrar had said would be excluded – some of them, at least – should be included.  So, he made a revision to the Registrar’s order substantively.

HIS HONOUR:   Yes.  But can I take you forward a bit.  On 13 April 1999, the appeals were all dismissed, is that right?

MR BELL:   Yes.

HIS HONOUR:   And Mrs C did not turn up.

MR BELL:   Yes.

HIS HONOUR:   Why not?

MR BELL:   Because we had the notice of constitutional matter filed.  There is a heap of correspondence between the Registry and Mrs C and it was very, very clear – and I can only put it this way, your Honour, because obviously you are seeking to get to the nub of the matter - Mrs C saw a kangaroo court looming and just dare not go because what happened was what she thought would happen on the day.  The registry had been so bloody‑minded in terms of not allowing natural justice, it was ridiculous.

HIS HONOUR:   Mr Bell, I am sorry, I cannot allow you to slander another court to say that she could see another kangaroo court coming.  She cannot treat the court with contempt by not turning up and then complain later that she deliberately abstained from turning up because she did not like the look of the court.

MR BELL:   Your Honour, I would take you to the documents we asked to be taken as read.

HIS HONOUR:   No, I need to have it explained to me why she chose deliberately not to appear before the Full Family Court?

MR BELL:   Because there were three appeals.  There was the original appeal I mentioned.  There was another appeal filed on Justice Lindenmayer hearing an appeal of his own decision and that requested – I think that was 7 or 10 of 1999 – that he not sit on any further hearing of that matter.  What happened on the day – and there was correspondence annexed to the present application between the registry on, I think, 8 April indicating that they intended to proceed, notwithstanding that none of the appeal books were finalised and there had been no due process afforded to the latter two applications at all.  In other words, how on earth can you proceed to hear an appeal when the documents to be presented are not even, at law, finalised?

HIS HONOUR:   But Mrs C knew the matter was going to be called on and if she had appeared she might have been able to tell the court that and ask the court not to deal with the matter finally and she chose not to do that.

MR BELL:   Well, your Honour, if you go to the transcript of what happened in that Full Court hearing, we have a situation which we say accords her no justice at all, in that the notice of constitutional matter was filed the prior Wednesday.  The hearing was on a Tuesday.  It was only the Friday in between when it became clear that the registry were not doing what the Judiciary Act requires and that is not have the Full Court hearing.  There were three letters exchanged on that.

HIS HONOUR:   The registry cannot tell the court what to do.  The matter was always going to be listed, whether for hearing or not – but it was going to be listed for mention, at least, on 13 April 1999.

MR BELL:   Mrs C was advised it was on for hearing, your Honour.

HIS HONOUR:   All right.  Well, she knew it was going to be called on, whether for hearing or otherwise.  If she had turned up she might have been able to ask for an adjournment to say that she was not ready, that the books were not prepared and she needed more time, but she just chose not to turn up.

MR BELL:   Your Honour, there was correspondence to the registry.  This present application was served on the Acting Appeals Registrar personally.  He was advised that it was considered that he had a duty to advise the Full Court of that application because it seemed that the registry took no notice of the provisions of the Judiciary Act.

HIS HONOUR:   Which provision of the Judiciary Act?

MR BELL:   Whichever provision is cited in the notice of constitutional matter, your Honour.

HIS HONOUR:   No, the notices had been given.  The section 78B notices had been given and there is a reference to them in the proceedings before the Full Federal Court.

MR BELL:   Yes, and the reference is like this, your Honour, and this is where we say it really is not acceptable conduct, whichever way you come at it.

HIS HONOUR:   No, Mr Bell, let us get this straight.  The fact of the matter is that at all times Mrs C knew that the case was going to be listed before a justice of the Family Court on 13 April 1999.  Now, that is correct, is it not?

MR BELL:   No.  She only knew that on the 8th, the Friday.

HIS HONOUR:   All right.  Well, she knew it on the 8th that the matter was going to be listed.  Is that not correct?

MR BELL:   Yes.

HIS HONOUR:   And she chose not to come.

MR BELL:   Yes.

HIS HONOUR:   Yes.  She chose not to come, she chose not to come along to ask for an adjournment and bring to the attention of the judges what her complaints were.  She just absented herself completely from the court.

MR BELL:   The correspondence for the Registrar, your Honour, sets out ‑ ‑ ‑

HIS HONOUR:   No, that is what she did, did she not?

MR BELL:   Yes.

HIS HONOUR:   You cannot change the situation by writing to the registry.  The registry does not control the judges.  The registry staff are officials administering the official paper filing and matters of that kind, but judges make the decisions of the court, not the registry.  Once the matter was listed to be dealt with in any way at all by the judges, it was a matter then for the judges, not for the registry.  Frankly, I have the letter of 12 April and it does not make sense.  It is almost unintelligible, Mr Bell.

I also again remind you of your duty as Acting Appeals Court Registrar, Northern, of the statutory requirements of the Commonwealth Judiciary Act.

That has absolutely nothing to do with whether Mrs C should or should not appear before the court when the matter was called on; nothing to do with it at all.  It is a matter for the court to satisfy itself whether section 78B of the Judiciary Act has been complied with.  It is not a matter for Mrs C to assert that it has not and then to choose not to come to the court.  Yes, what else do you want to say?

MR BELL:   Your Honour, we would say that there was no natural justice in that particular process in that that notice of constitutional matter should have caused the registry to not list the matter.  You know, I restrain myself from using a strong adjective, your Honour, but less than a week later, I think it was, the Full Court, knowing full well that the provisions of the relevant section of the Judiciary Act required all the Attorneys-General in Australia to be advised of the matter, served and given a “reasonable time”, the Act says specifically, to respond in terms of whether they wish or do not wish to be involved in the matter, and here we are, less than a week later ‑ ‑ ‑

HIS HONOUR:   Mrs C could have come along to the court to make that submission.

MR BELL:   She may well have, your Honour.

HIS HONOUR:   Well, she did not.

MR BELL:   Had she had legal advice, perhaps she would have been advised as your Honour suggests but - - -

HIS HONOUR:   I mean, the letter that has been written and which she signed is full of legalese.  She must have been taking advice from somebody because she has told me she does not understand any of the legal terms herself.

MR BELL:   I believe that letter was written in conjunction with her husband, your Honour.  But the point is that we have the Full Court acknowledging the constitutional matter and the provisions of it by, as you would have seen in the transcript, calling for appearances from the respective Attorneys-General but, here we are, I think, six days after the notice was filed - and we would say that is obviously not a reasonable opportunity for the Attorneys to deal with the matter and respond.       So, we would say that the court was statute barred from dealing with it.

HIS HONOUR:   Yes.  Is there anything else?

MR BELL:   Not on that point, your Honour.

HIS HONOUR:   What else do you want to say?

MR BELL:   What we are saying generally is that there are two aspects to this application.  The treatment of Mrs C personally has been, from beginning to end, very unfair in terms of natural justice.  There have been statutory requirements not complied with by the registry in both its judicial and its administrative functions.  This probably exemplifies some severe grounds for concern within the registry of the Family Court in Brisbane.  We cannot speak for other places, only from Mrs C’s experience. 

There are a number of areas where the court is simply not doing what Parliament does require it to do under its enacting legislation.  I mean, just one example is the denial of any maintenance order, the denial of the right to pursue the question of costs, when we say that the court itself and particularly some servants of the Crown in the form of officers of the court had totally been negligent in their duties to Mrs C and to her child.  A lot of that is set out in the pleading, your Honour, which I trust - we take as read.

So, there is a substantive matter of – and you know, who is Mrs C to presume to suggest to anybody in high office how it should be handled but we are saying that there are major problems that need to be addressed in the interests of not just herself - she is seeking relief in the form of orders 2 and onwards in the application – but we are saying that there is grounds for grave concern for other litigants out of this jurisdiction that we are appealing from, that we are seeking to address with this writ, and that something needs to change if anybody is going to get a modicum of justice out of the situation.

Now, there is a lot more we could say but essentially we see those two limbs of it, your Honour, and we say that to deal with the matter properly, Mrs C should, perhaps, be put back in the situation where she was last July where things that were not in contest between the two parties are orders that remain in force, but the other orders sought are orders that she can still seek.  We say the appeal process was blighted from beginning to end, in terms of procedural fairness and that, really, the only realistic way to unravel it is to go back to the beginning of that appeal process.

So, for her own personal matter, we say, please, put her in the position she was in last July with the opportunity to pursue the orders that his Honour on the day just summarily refused to allow her to pursue.  Generally, minds ought to be addressed to what is going on in this court as exemplified by her long history and as partially set out in these documents.  I mean, we know there is a lot of documents in front of your Honour.  We have asked to be taken as read, basically, the documents we have here, being the application you have plus the three appeals and the appended documents in the appeal process in the Family Court.

Now, there is a lot of material in there.  It is not, in every respect, set out legally correctly but we do say that it sets a rather horrific picture of what Mrs C experienced at the hands of the registry.

HIS HONOUR:   No.  What it suggests to me in the last resort, frankly, is that Mrs C chose to treat the Full Family Court with contempt by not turning up.  It is as simple as that.  She could have come along and she could have made the assertions that you are now making on her behalf about an allegation of non-compliance with section 78B of the Judiciary Act.  She could have done all of those things but she chose not to do it.  Instead of that, she chose to bombard the registry with letters which, frankly, would not have assisted the registry at all.

MR BELL:   Your Honour, what had happened – and we think this is in evidence before you – is that the registry had just refused, in the process of preparing for the appeal, to do things as they are bound to do under the Rules.

HIS HONOUR:   No, Mr Bell, that is not an answer to what I am saying.

MR BELL:   I appreciate that, your Honour.

HIS HONOUR:   Which is that Mrs C had her opportunity.  She could have come along on the day; she knew well that the matter was being called on, on that day; she had a lot of complaints about the way in which she had been treated, as she said, by the registry, but she chose not to come along to the court to tell them about it.

MR BELL:   Yes, your Honour, that point is made.

HIS HONOUR:   Yes.  And I have to tell you this, Mr Bell, that this Court, the High Court, practically never involves itself in matters of costs or matters of maintenance and custody of children.  They are matters very much going to the discretion of the trial judge.

MR BELL:   Yes, your Honour.

HIS HONOUR:   Now, I know that you are seeking relief beyond that, or Mrs C is, but I am just telling you that this Court will not involve itself in a matter of costs.

MR BELL:   We did understand, your Honour, that the Court would not want to involve itself in the detail of the matter but what we are saying is that there is no relief, in realistic form, available in the court below, none.

HIS HONOUR:   All right.  Is there anything else you want to say?

MR BELL:   Only that we take as read what is in the application, your Honour.

HIS HONOUR:   Yes.  Mr Rafter, what is the position with the child, do you know?  It is a matter of real concern to me.

MR RAFTER:   Well, the child is now in the custody of the applicant, herself, and the husband, according to the order of Justice Jordan, has no access to that child.  These are orders that the applicant herself sought.  So, one assumes - - -

HIS HONOUR:   He is not trying to get access to the child?

MR RAFTER:   Not at the present time as I understand it, no.

HIS HONOUR:   There has been no problem in that regard, Mr Bell?

MR BELL:   No, your Honour, not for, I think, for some five years, apart from him breaching an undertaking at one juncture.

HIS HONOUR:   Yes, but that is in the past, is it?

MR BELL:   I think three years in the past, your Honour.

HIS HONOUR:   Yes, Mr Rafter.

MR RAFTER:   So, as far as one can tell, the orders of Justice Jordan made on 16 July last year have been complied with.

HIS HONOUR:   You probably were not there, but his Honour, it seems, looking at the discussion in the transcript, thought that a great number of days would be involved in arguments about costs.

MR RAFTER:   His Honour thought that the cost issue would be almost as complex - - -

HIS HONOUR:   Complex and as expensive as the hearing itself.

MR RAFTER:   Yes, because it would have been necessary to resolve the rights and wrongs of all the allegations and counter-allegations that were being made.

HIS HONOUR:   What about maintenance for the child, was there an application for that?

MR RAFTER:   I cannot answer that, I am afraid, your Honour, whether there was then pending an application for maintenance.  Mrs C would know that, I assume.  The ultimate position, of course, dissatisfied with Justice Jordan’s orders, the applicant had the availability of an appeal which she instituted but did not pursue.

So far as the section 78B matter is concerned, it may be of some interest to your Honour that there is a decision of Justice Toohey in Re Finlayson 72 ALJR 73, where his Honour says that simply because a party asserts that there is a constitutional issue, does not necessary mean that the case does involve a constitutional issue.

HIS HONOUR:   But notices were, in fact, given here, I see.

MR RAFTER:   Notices were given but whether they did truly - - -

HIS HONOUR:   I mean, we get it all the time that the – in practice, I mean, the Attorneys-General rarely intervene until the stage of the High Court.  They very rarely intervene in intermediate appeals, in my experience.  They have, on occasions, but very rarely.

MR RAFTER:   Very rarely.  That has been my own experience too, your Honour.

HIS HONOUR:   But the notices were given in this case; given on the 8th apparently.

MR RAFTER:   They were.  Now, the court wrote to Mrs C and the letter is exhibited to the material.  It is part of annexure C, and the Acting Regional Appeal Registrar pointed out that:

In accordance with the usual practice of the Full Court, the Notice of Constitutional Matter in Form 41B would be placed before the Full Court on 13 April 1999.  What further steps will be taken in relation to the Notice of Constitutional Matter will be at that point a matter for the Full Court.

So, it is not possible to assume that this would frustrate the further proceedings in relation to the appeal.

HIS HONOUR:   Well,. it was made clear the matter was going to be listed on 13 April.

MR RAFTER:   Precisely.

HIS HONOUR:   There was a letter, I see, to her in annexure C, a letter of 8 April.  But Mr Bell says, in any event, that she does not dispute that she knew about it and that she chose not to come along.

MR RAFTER:   That is right.

HIS HONOUR:   There are two letters on 8 April.

MR RAFTER:   In fact, there is one letter which is annexure C, dated 8 April, indicates the matter was for mention before the Full Court.  Now, Mrs C obviously chose to ignore the court on that particular day but she did so at her own peril, remembering that the relief currently being sought is usually not granted when there are avenues of appeal open and there are many number of decisions to that effect, including Re The Family Court of Australia; Ex parte Herbert, 65 ALJR 68, and Re Walsh; Ex parte MS (1992) FLC.  I have copies of the decisions I have been referring to.

HIS HONOUR:   No, I am familiar with those.

MR RAFTER:   Although those decisions to which I referred related to cases where the applicant had not yet instituted an appeal, the same principle must govern this type of situation where an appeal is commenced but not pursued, and then to come to this Court seeking prerogative relief in the nature of mandamus is really fraught with difficulties, in my respectful submission. 

Much of that really relates to the position that it would probably be more directly applicable to the Justices and Registrars of the Family Court.  I am here representing only the two named third respondents and so far as they are concerned, I have prepared some brief written submissions that perhaps I could hand up to your Honour.

HIS HONOUR:   Yes, thank you.  Have you a copy for Mr Bell.

MR RAFTER:   I will give a copy to Mr Bell.

HIS HONOUR:   Yes.

MR RAFTER:   Your Honour, Justice Jordan’s order, order No 9, was an order to the effect that the separate representative would be discharged.

HIS HONOUR:   Discharged, I see that.

MR RAFTER:   And that is one of the specific orders that is not being sought to be set aside here now apparently.  So, in all of the written material – although there is a litany of complaints against the conduct of the separate representatives – and the submissions made here today, it is not made entirely clear to me exactly what public duty it is sought to have performed by the third respondents.  Thank you, your Honour.

HIS HONOUR:   Do you want to say anything, Mr Bell?

MR BELL:   Yes, your Honour.  In a recent High Court case of HG v The Queen – it was decided on 2 February this year – I do not have the reference for the reason that it is so recent – the majority held in part that “failure to take a point at trial is not necessarily fatal to an appeal”, and I would suggest that there might be a direct analogy to this current situation.  I mean, had Mrs C been better advised or advised at all in any proper sense, she would probably have done what your Honour suggested and made an appearance on 13 April, I think it was. 

But what we are saying is that there is no relief available to her by means other than what we are doing here now and that things have been flagrantly wrong and it was a very sad situation that she ended up not trusting the court enough to even go, and that the long history of the matter shows you why.  It is clearly set out in the documents.

If we want to deal with the issues that Mr Rafter wishes to touch on, I could say that there is a clear duty incumbent on a separate representative to represent the interests of the child, and we are saying, if you refer to annexure B, there is a good overview there of why that did not happen.  I mean, I think there were nine separate representatives appointed.  Not one of them every had a conversation with the child.  The court never heard what she wanted as to her future.  I think it was in 1994 the Act was amended to make that virtually mandatory.

HIS HONOUR:   But Mrs C has what she wanted in relation to the child.  She has custody of the child.

MR BELL:   She has never had maintenance, your Honour, and there has been several junctures where it has been raised.  Now, again, under a number of headings, at law, there is reasons why maintenance is an expectation and a right, for a child at least, if not a spouse.  Now, that has just never ever been dealt with.  There have been heinous injunctions put upon her, and I take your Honour to page 13 of the affidavit.  We would say they were unlawful.  I think if the High Court were to visit the matter, they would have to think so too. It is just a litany of things done wrong.

Now, I said to your Honour at the outset that we come here basically asking for the Court to view this as a matter of equity and we are saying that one omission in a great long series of this lady fighting tooth and nail at every juncture for seven years to get her rights, and being denied it by procedural unfairness at most of those junctures, is just, for public policy reasons, for goodness sake, not acceptable to this community and that equitably she should have relief from the outcome of that, which is a miscarriage of justice, as it stands at the present minute.

HIS HONOUR:   Yes.  Anything further?

MR BELL:   Well, we are saying further, your Honour, that what has been put before the Court on this matter clearly shows things not working as they should in the interests of litigants in the Family Court.  We are seeing separate representatives consuming public money and not rendering what any fair-minded reasonable person in the community would consider was a duty discharged to the child.

This is in evidence before your Honour, that we have had, for example – and this is one of things that, I think, precipitated his Honour Judge Jordan, last July, into action at a directions hearing - and that was it came to his notice unequivocally, because of the documents submitted, that the separate representative, appointed from the Legal Aid Office, had had a report, very, very relevant to the child’s circumstances for seven months but had not tendered them to the court.

Earlier on, the other separate representative named in this application had two and a half years to get a further report from a court appointed expert into the circumstances of the child and point blank refused.  In fact, only shortly after Mrs C’s then solicitor threatened, in writing, to seek an injunction to make him get that document, did anything happen, and what happened, in fact, was the father capitulated and conceded custody.

Now, I think it was only a matter of months later he brings another application for custody.  This lady staggers through, going from having, with her new husband, a family home and him with a nest egg called superannuation, to where their resources are demolished, completely and utterly, and they have a bank card debt and no money.  Now, there has never been any maintenance for this child.  That surely is a travesty.  The court below would not address it, point blank refused, for reasons that have no basis and there were none really given.

If you look at the judgment of his Honour Judge Jordan on the day, he purports that it is for some reason that it would be contrary to the child’s interest, but there was no evidence to that effect.  In fact, there was evidence to the contrary:  that the child needed finality and certainly she could use a household where they were not so impoverished through squandering their family home and all other assets in sight on litigation that should not have been happening.  The contention that Mrs C would put, and it has been put, but not, we say, given any due weight along the way, is that the second application of the father had no prospects of success in the real circumstances that prevailed and in line with some of the evidence then before the court.

We say the earlier application of the father and a whole lot of other litigation engaged in by the father is only served to impoverish her and her daughter and leave them with no resources whatever and, surely, when the Family Law Act puts a presumption that a child will get maintenance - there is a whole department set up as part of the Tax Office to see that it happens – why should this child get none in 12 years, and prospectively?  I mean, it is just not just.  And we are saying that equitably, orders of some sort ought to be made to rectify it.

Now, as I said to you earlier, your Honour, it is not for us to suggest what order should be made to correct what appears to be flagrant abuse of due process and various things that are reasonable expectations of litigants in the Family Court Registry but we do think it is only fair – and I only use the word in the common language sense – that some of what Mrs C was seeking in that in-progress cross-application last July, she be allowed to finalise.  We are suggesting that it cannot be done in the Family Court in Brisbane for reasons that are evident in the papers, certainly in the processing of these three appeals.  I mean, it just gets to be completely beyond the pale that two of those appeals were not dealt with in terms of an appeal book being issued at all.  I make an apology, your Honour.  There was one appeal book purportedly issued on the earlier of the later two, being appeal No 7 of 1999, and this came out of the blue in the mail to Mrs C and said, “This is your appeal book”, issued by the registry with no consultation or input from her whatever, and this was done in the name of, I suppose, expediency.  The registry wanted that hearing in April come what may, and it seemed they were quite prepared to guillotine it through irrespective of the fact that no due process had been followed at all.

I mean, there had never been a conference with the Registrar to discuss what ought to go into that appeal book.  I mean, words fail me, your Honour.  It really is just totally beyond the pale that a court registry or a judicial officer would either do or countenance these things.  They are happening, it seems, to a lot of other people.  There is an awful lot of discontent.  We would put it that common sense and a little bit of wisdom would indicate that you cannot restore public confidence in a court that is teetering on disrepute by just hiding up things that go wrong.  Things have to be actually dealt with and if things are being done wrongly and unfairly to applicants, then something has to change and we say that in the judicial realm, this application is the only means that we are aware of, of putting it to somebody who can do something relevant.

The Family Court, in its entire existence, has operated it on a case‑by‑case basis essentially in secret.  The public at large do not know what happens, and that is just a breeding ground for things to go off the rails, and we say that this case evidences that they have gone very substantially off the rails.  So, we would seek that there be some consideration of what orders ought to be made to see to it that the requirements of law are complied with in this court registry and then, separately, that orders nisi issued as requested which puts Mrs C in a position where you would say – a fair-minded person would say – that equity has prevailed and she has not been subjected to procedural abuse by officers of the Commonwealth and she can at least pursue – we are not asking for a grant out of this Court because you cannot deal with the detail – but she has then had a fair go in terms of an opportunity to pursue her rights.  As we said in the application, those rights, in many respects, I think wise heads would maintain an inalienable, for constitutional law reasons and

international law reasons, and other reasons, so public policy not being the least of it.

So, your Honour, there is a lot that could be said but I go again to HG v The Queen, it should not be fatal to her application that, not advised – and that is not legally advised and that is a direct consequence of the miscarriages of justice that we complain of, over a long history, that she makes a decision that had she been advised, would have been different, perhaps, and that we seek justice in terms of the orders sought.

So, your Honour, there are a number of issues that could be addressed in addition but – I mean, I submit that the case was fairly well canvassed in the papers before you and taken as read.

HIS HONOUR:   Nothing further?  Thank you, Mr Bell

In this matter, the applicant has filed an application in which she seeks orders against a number of judges of the Family Court, officials of that court and two employees of a corporation established under the Legal Aid Queensland Act 1997. The application asks that all and each of these people show cause why declaratory and other orders of an unspecified kind should not be made. I understand, however, that the claim is really one for prerogative relief on grounds that the applicant was denied natural justice by the Family Court, particularly on two occasions.

The real purpose of the application seems to be, in effect, to seek to appeal in some way against the orders that were made on the two occasions to which I have referred.  The first occasion was a hearing of this matter by a judge of the Family Court, his Honour Justice Jordan, on 16 July 1998.  On that date the applicant was initially represented but her representative said that he had no further instructions and Mrs C then spoke for herself.  After argument, Justice Jordan made a number of orders, including orders which left the applicant with the sole parental responsibility for the one child of the marriage.  An appeal was filed in respect of the orders that were made by Justice Jordan and in respect of that appeal a contention was made by the applicant that constitutional points were raised and that the Attorneys-General of the States and the Commonwealth should be given notice.  Such notice was given. 

On 8 April 1999 an official of the Family Court wrote to the applicant and informed her that the matter would be coming before the Full Family Court on 13 April 1999.  Mr Bell, who has spoken for the applicant today, accepts that the applicant was well aware that the matter was to come before the Full Family Court on that date.  He also informs me that Mrs C, who is seated beside him, chose not to appear on that date because she had formed an adverse view, in effect, of the judges who were going to hear the matter.  Accordingly, when the matter was called on, there was no appearance by Mrs C or by anyone on her behalf and in due course her appeal was dismissed or struck out for want of prosecution.

I should deal perhaps with the third respondent separately.  They are not officers of the Commonwealth and, accordingly, they are not amenable to prerogative relief under the Constitution of the kind which I think the applicant is really seeking. 

As to the other respondents, no case has been made out against them. 

I would dismiss the application against all respondents.

Anything further, Mr Bell?

MR BELL:   Yes, your Honour.  I would just put it that in principal equity Mrs C needs some relief for justice to be done.

HIS HONOUR:   I have made my orders, Mr Bell.  Is there anything further you want me to deal with?

MR BELL:   No, your Honour.

HIS HONOUR:   I dismiss the application.  You do not ask for costs, Mr Rafter, do you?

MR RAFTER:   No, your Honour, I do not.

HIS HONOUR:   I make no order as to costs.

Adjourn the Court.

AT 3.58 PM THE MATTER WAS CONCLUDED