Powell, Ex parte - Re Brown & Ors

[2002] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne   No M27 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against JUSTICE SALLY BROWN, THE JUDGES OF THE FAMILY COURT OF AUSTRALIA, JUSTICE MICHAEL RAYMOND BROOK WATT, JUSTICE JOHN FAULKS

First Respondents

HELEN MAREE POWELL

Second Respondent

Ex parte –

LEO JAMES POWELL

Prosecutor/Applicant

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 28 MARCH 2002, AT 9.30 AM

Copyright in the High Court of Australia

MR L.J. POWELL appeared in person.

HIS HONOUR:   I have a certificate from the Deputy Registrar that she has been informed by Macgregor, the solicitors for the second respondent, that the second respondent does not seek to be heard and will not appear at the hearing of this application.  Now, Mr Powell, I have read the papers that you have filed.  You can, therefore, assume that I am generally familiar with the matter.  That having been said, what is it that you would wish to say in support of your application?

MR POWELL:   Just on that point, what do I actually need to establish with you in order to justify the grant ‑ ‑ ‑

HIS HONOUR:   An order nisi will not be made unless there is an arguable case for the granting of the relief which would be sought.  So an order nisi for prohibition or certiorari will not be made unless there is an arguable case that on a full hearing prohibition or certiorari, as the case requires, would issue.  Those writs will issue in various circumstances. 

I would understand from the way in which the papers have been prepared that although you direct attention to some orders made by Justice Faulks, Justice Watt and Justice Brown, the central area for your complaints concerns the orders of Justice Brown that have been made in and after 30 January of this year and that you say in a number of different respects that her Honour did not have jurisdiction, that her Honour denied procedural fairness and that a particular provision, section 65T(2), is either “unconstitutionally vague and therefore void” or is void as denying a respondent to such an application, what you have described as:

the fundamental human right of a fair trial due to its mandate directing the court to “… without delay proceed to hear and determine the application” –

Now, that is how I understand the papers.

MR POWELL:   Yes, I would agree with that.  That is ‑ ‑ ‑

HIS HONOUR:   Yes.

MR POWELL: Yes. Just in relation to the originating orders, namely, 16 November 1999, well, I would hold that there a wrong principle of law had been applied, namely, that there had been no regard paid to section 43 of the Family Law Act and therefore the jurisdiction exercised was a child jurisdiction and not a marriage jurisdiction or a divorce jurisdiction.  Now, I have asked various judges what jurisdiction they were exercising and in all cases the answer has been a marriage jurisdiction.

Now, if that is the case, I therefore do not need to address whether the referred powers of the Victorian Act in relation to children apply in any way.  If the Court held that the child powers – the referred child powers of the State legislation were used in any way in these proceedings, I would then claim that those powers, one, they had not been gazetted so therefore they are void, and the second being that while the Commonwealth Parliament is able to accept a referred power from the States, the Victorian Constitution does not permit the referral of powers to the Commonwealth.

HIS HONOUR:   But given that the children with which the proceedings were concerned were the children of a marriage, it is not apparent to me how any question of reference of powers would arise.

MR POWELL:   I am happy with that situation in relation to this case.

HIS HONOUR:   Well, Mr Powell, let me just make one thing quite plain to you.  It is for you to make out your case.  I cannot, and I will not, end up giving you legal advice about what your case is.  It is going to be for you to make out whatever the case is you want to make.

MR POWELL: Okay. Thank you, your Honour, yes. Okay. Therefore, in relation to the section 43, I would like to rely on a statement by Justice Brennan in relation to, I think it was in the matter of R v L, where he holds that any exercise of jurisdiction in the Family Court, unless it is addressed in relation to section 43, would not be a valid jurisdiction of that and so therefore in relation to Justice Watt’s orders, that is where my complaint in relation to the validity of those. Now, if we come back to where we are in relation to Justice Brown, which was the ‑ ‑ ‑

HIS HONOUR:   Just before you leave the orders of Justice Watt, what do you say is the difficulty or deficiency or infirmity of those orders?  Can you state it for me?

MR POWELL:   In that in order to invoke the best interest of the child principle, by looking at that alone what one does, one disregards the fundamental human rights of each of the parents in relation to raising those children.  Now, marriage in itself creates fundamental rights.  The logic in all of this I have addressed in a notice of motion to this Court in M86 of 2001 – it is in relation to the divorce papers – and, namely, what I am stating there is that ‑ ‑ ‑

HIS HONOUR:   I will just have a look at that.  Yes.

MR POWELL:   The arguments along those lines are that in order for the rights of a parent in marriage to be disturbed there must be some action or some circumstance either taken by one of the parties to the marriage, the party who is going to lose some fundamental right, or else a circumstance has developed whereby it is not a question of the best interest of a child but a question of the welfare of a child.  So, in other words, the welfare of the child would require that a parent lose a fundamental right established by marriage.

Now, once the Family Law Act can proceed along the line of changing the nature and incidence of marriage, the Family Law Act no longer becomes an Act in relation to marriage under section 51(xxi) or an Act in relation to divorce, being 51(xxii), because divorce assumes that marriage creates certain fundamental rights which can only be disturbed under certain circumstances.  If those rights are disturbed by an application brought about by the unilateral application of a party, the other party – the respondent party not being at fault in any way, that is no longer a law in relation to divorce because it is not a law – because it has changed the fundamental nature of marriage.

So I would ask your Honour to refer to M86 because there I have used quite a number of case studies to develop that argument and, as I said, that is a notice of motion pending in this Court.

HIS HONOUR:   Yes.

MR POWELL:   Now, if we come back to why I ended up in Court today, that has come about because of, namely, consent orders made by Justice Watt on 11 October last year whereby they were made by consent in relation to how matters were to come on before the court.  At this stage I do not have all the information available to me, but it appears to me that actions were taken by the case management committee and/or Justice Brown in order to manipulate circumstances so she gained jurisdiction in order to hear an ex parte application by my wife on 30 January.

Now, that is referred to in the affidavit material.  But moving on from there, Justice Brown has made certain orders which were clearly outside of her jurisdiction, namely, granting an injunction for a party who was not a party to the proceedings, namely, my wife’s solicitor and also her ‑ ‑ ‑

HIS HONOUR:   I do not follow that.  What injunction did she give concerning ‑ ‑ ‑

MR POWELL:   That is actually listed in order of the first of ‑ ‑ ‑

HIS HONOUR:   What, the order that you not approach the solicitor?

MR POWELL:   That is right, or approach her premises.

HIS HONOUR:   Yes.

MR POWELL: And that order in itself is beyond the jurisdiction of the Family Court, being Macgregor and Macgregor solicitors are not parties to the proceedings. There has been other minor excesses of jurisdiction, namely, in relation to a location order under section 67M(2) of the Family Law Act in relation to Telstra and the words there being used is “such information as contained in the records of Telstra which may directly or indirectly assist in ascertaining the present location.” 

Now, I say that exceeds the jurisdiction under section 67M(2), namely, that the records of Telstra could be used to locate – if the records of Telstra were able to – if using the records of Telstra were directly able to be used to locate the children, it would then be within the terms of section 67M(2), but in this case the order made is “which may directly or indirectly assist”. Now, that is way beyond – in my interpretation, in my belief, that is way beyond the scope of the power conferred.

There is also a section there in relation to 114AB whereby the restraining orders or the injunction in relation to my wife and her premises was made when at the time there was already an interim intervention order within the Magistrates Court. So, clearly, again were outside the jurisdiction. But coming back to the main reason, being that whether the activities of Justice Brown move her out of jurisdiction, well, I claim that the transcript of the proceedings on the three days clearly indicate that Justice Brown lost jurisdiction because she departed from the implied Chapter III power of the Constitution, namely, that if a judge is going to exercise jurisdiction, it must be done lawfully; there must be due process and as this matter is – even if this matter is not classified as a criminal or quasi‑criminal and if it was purely classified as a civil matter, which I find hard to come to that conclusion as there is a penal penalty of a maximum of 12 months involved if the case is proved, I would say that we would need to apply the principles that come up in the case of Stead v State Government Insurance Commission (1986) 161 CLR 141, and that is a High Court judgment.

Also the fact that under the circumstances within two hours of being arrested a trial commenced, I not having had the opportunity to even speak with a solicitor.  I spoke with a solicitor prior to coming into court, but once I was in the court ‑ and that is when I was served the papers because prior to being arrested I did not know there was an arrest – sorry, I did not know there was – sorry, I did not know the reason as to why there was an arrest warrant out for me.  It was only after having been taken into court that I was then taken back to the cells and given the papers, which were form 49 contravention papers, which were the documents that triggered the arrest warrant.

So within 15 minutes of reading those documents – and, as I say, not studying the documents but reading the documents – I was taken back into court and a hearing commenced at that stage, notwithstanding that having read the documents, I was not given the opportunity to even speak with a solicitor ‑ ‑ ‑

HIS HONOUR:   You say that a hearing commenced.  In fact the proceedings were adjourned over until the Monday following, were they not, on your application?

MR POWELL:   The proceedings were commenced by asking whether I was guilty or not guilty on the Friday.  The matter was stood over until Monday ‑ ‑ ‑

HIS HONOUR:   On your application?

MR POWELL:   Not on my application.  On the fact that the proceedings had commenced – and this is all in the transcript – the proceedings had commenced.  My wife was not in court at that time.  The fact that I had pleaded not guilty to the charge meant that – and bearing in mind that I had no opportunity to seek legal advice as to how to plead on the matter, the fact that the matter could not proceed that day because of the lateness of the hour, my wife not being in court, her being the applicant, although by reading the transcript you will see that my wife’s solicitor would have been happy for the matter to have run on the Saturday.

The matter was stood over until the Monday because of – no, because it could not run on that afternoon and that Justice Brown stated that the court does not operate on a Saturday.  However, she also did state that I did not enter into a recognizance – and here again I claim that she has exceeded her jurisdiction in imposing conditions on a recognizance, which if I was not prepared to accept, I would have been held in custody over the weekend and in order to comply with the terms and conditions of the Family Law Act, namely, 65, in that area – it is all listed there in the documentation – she we then open the court on the Saturday, bring me up, commence the hearing, adjourn the matter.  I would be returned to the cell.  She would do the same thing on Sunday.  And then on Monday I would then be – the hearing would then commence on the Monday.

On the Monday I attended – on the weekend I attempted to make contact with the person I had spoken to on the Friday afternoon prior to being taken into court and prior to being aware of the reason for the arrest warrant and any charges that were against me and I was not able to make contact with him over the weekend.  I left two messages on his voice mail.  I then attended court on the Monday and I then – again, I stated that I was not representing myself and that I wished to be represented by a solicitor.

I then attempted to make a submission as to how long I needed the matter to be adjourned, but I was stopped in my tracks, as can be seen by the transcript of the hearing on the 4th, whereby on page 2 of that transcript – this is exhibit LJP10 – I state – just prior to that I would point out that her Honour stated to me:

Mr Powell, Mr Powell, I won’t be hearing you unless you are at the bar table.  I have asked you to sit there.  You can stand and address me – there.  The matter was part heard in front of me on Friday.  I took your plea and the matter is now part heard.

And I respond:

I am here today in – in observance of condition A of the recognisance which I entered into on Friday.

Now, that recognizance is in the orders.  It is not only a recognizance document, but it is actually in the orders of Friday the 1st.  I then stated that:

I am not self‑representing in this matter.  I wish to be legally represented by a lawyer of my choice.

HER HONOUR:   Well, are you making an application for an adjournment, Mr Powell?

MR POWELL:   I seek an adjournment to engage a solicitor ‑ ‑ ‑

HER HONOUR:   And who is that?

MR POWELL:   ‑ ‑ ‑ to represent me.

. . . 

MR POWELL:   I have spoken with one solicitor –

and that means that the solicitor I spoke with on the Friday prior to being taken into the court –

I wish to speak with that solicitor again.  I also wish to – and after I have spoken with that solicitor I then wish to seek the availability of maybe some other solicitor to see exactly who would be best to represent me in this matter.

And then she asks me to go back.

HIS HONOUR:   I have read the transcript, Mr Powell.

MR POWELL:   Okay.

HIS HONOUR:   The fact is, is it not, that the proceedings were adjourned over on Monday over to the Tuesday?

MR POWELL:   That is correct.

HIS HONOUR:   Is that right?

MR POWELL:   That is correct, yes.

HIS HONOUR:   Yes.

MR POWELL: Now, they were adjourned but, as I say, if I had been given an opportunity to say more on Monday the 4th I would have been asking for a longer adjournment because obviously this matter is a serious matter and certain things need to be taken into consideration. But, anyway, on the afternoon of the – and this is in my affidavit – on the afternoon of Monday the 4th I was then able to speak with the solicitor I spoke with on Friday for a short time. He advised me to get an application into Legal Aid, which earlier in the day I got hold of an application form, and I mentioned to him the matter that Justice Brown was relying on section 65T(2) of the Family Law Act in order to run the hearing at the first available opportunity.

He confirmed my belief that that provision would always be subject to the right to a person having an opportunity to prepare a defence, to be able to subpoena witnesses, to be able to secure legal representation and brief counsel.  I then attended court on the 5th.  Now, on the 5th I then raised the matter of the section 65T being not applicable to my wife’s application because it referred to a 112AD whereas my wife’s application was a Division 13A matter.  I was not allowed to address her Honour in relation to that and she then acknowledged that I was seeking an adjournment.

HIS HONOUR:   Again, I have read the transcript of events on 5 March.

MR POWELL:   Okay.

HIS HONOUR:   Yes.  And what is it you say that comes out of that, that raises an arguable case for the issue of the relief you seek in this Court?

MR POWELL:   Well, the arguable case is that if we read Dietrich v The Queen, again a High Court judgment in 1992, Taylor v Taylor, another High Court judgment in 1979 – and I do not have a reference for that one because it is in a Family Law journal and it is not a High Court journal – all of these matters refer to that a person has a right to be heard and in a right to be heard be it whether it is a criminal, quasi‑criminal or civil matter, a person has a right to be heard and he cannot be heard unless he is (a) if he so desires to be legally represented and (b) that due process is allowed to occur, namely, that a person is given time to understand the charges that are laid, to take legal advice as to the implications of those charges and exactly what they mean, to be able to prepare a defence, to adduce evidence, to have someone who is skilled in cross‑examining the complainant, or the applicant in this case, someone who has the skill at being able to make submissions to the court and someone who is not emotionally involved as a person who is being charged or an application is being made against is in those circumstances.

Now, even a solicitor, a barrister, a QC, I do not think there would be very many people who, if they were faced with a criminal or a quasi‑criminal matter, would be relying on their own resources.  I am not a legal practitioner.  I have been representing myself in civil sides of these matters and that has not come about through choice.  It has come about through a denial of Legal Aid funding.  I do not have the resources to be able to say to a solicitor on short notice, “Come and represent me in this court and your fees will be guaranteed.”

The equity I have in the house is locked up in the orders made by Justice Watt on 16 November and at this stage I cannot use that equity.  There are – enormous cost orders have been made against me and notwithstanding that they are still under appeal the reality of the matter is that if there was a liquidation of the assets, there most likely would not be – and all the cost orders paid out against me, there would not be funds available for a – there would be no guarantee of funds available for a solicitor.  So I could not just say to a solicitor, “Come to court and do this.”

An application for Legal Aid takes a number of days at the minimum and the application was completed in the evening of the 4th and was filed on the morning of the 5th, being the morning of the hearing, the morning of the 5th after the hearing.  So in relation to – I realise that this Court does not want to be involved in matters where there is a right of appeal and obviously in this case there is a right of appeal and the rights of appeals are, one, I can appeal the right as to whether the adjournment should have been granted and that application would be made as an application seeking leave to have that matter heard.

If the judgment handed down on next Tuesday is contrary to what I believe is fair, I have got the right of appeal.  However, that could mean a penal sentence.  I have then got the right to file an application for a stay of those orders, but as I have seen in this Court that applications for stays are not – to my understanding are not entertained lightly and there is no guarantee that that application for stay would be granted.  There are regulations and orders within the Family Court, and I will refer to regulation 4(3):

Directions under this regulation shall be directed –

yes, that is in relation to “Directions as to practice and procedure” –

to providing a speedy and inexpensive hearing of the matters in issue between the parties and shall be consistent with these Regulations and the Rules of Court.

Now, also Order 4 rule 4:

A court or a Registrar exercising jurisdiction under these Rules shall have regard to the need to provide a prompt and inexpensive resolution of the matters in issue between the parties.

Now, if a writ is issued stopping Justice Brown handing down her judgment and even if the writs that I request in the other areas are not granted, at least this Court could then remit the – could then order that the Family Court conduct the hearing in relation to normal due process allowing me the opportunity to engage a solicitor, prepare, et cetera. 

Now, that would be the most speedy and inexpensive resolution of the matter in issue between the parties.  If this matter goes to appeal, it is going to be a more expensive undertaking.  It is going to be a time delay factor.  There are something like 25 appeals outstanding in the Family Court at this stage.  In all probability a decision would be made directing that the orders be put aside and that the matter be remitted to the court for a hearing.

Now, this has already happened in relation to one hearing of mine and the Full Court sitting as one judge, because the matter came from the Federal Magistrates Court, relied on the authority Stead v Government Insurance Commission 1986, which I have referred to earlier, as the grounds for putting the order aside and remitting it back to the Magistrates Court for a proper hearing, allowing due process.

So in relation to that matter, the most inexpensive means and the most speedy means of finalising this matter is to have a just hearing which would then – I would imagine would finish the matter.  In relation to whether Justice Brown had jurisdiction in order to entertain these proceedings at all, her jurisdiction, even if the case management committee – even if their decision is found to be a valid decision, which I greatly doubt, because a studying of the orders of Justice Watt of 11 October will reveal that the parties were not notified of who the judge was prior to any matter ‑ ‑ ‑

HIS HONOUR:   Mr Powell, this is to focus on the furthest extremities of the periphery.  It is not useful.

MR POWELL:   Okay.

HIS HONOUR:   The central issue that was before Justice Brown was whether you had contravened orders that had earlier been made and, if you had, what was to be done about it.  As I understand your complaint, central to that complaint is that you say you were denied procedural fairness because you had insufficient opportunity to get a lawyer.  That is the nub of the complaint you make, is it not?

MR POWELL:   That is correct, yes.

HIS HONOUR:   You acknowledge, as I understand it, that there is a right of appeal against any order that Justice Brown makes.  Why should this Court take the matter before an order is made and before any appellate process is engaged?  Why should we take it?

MR POWELL:   Well, at this stage for me there is no appellant power to exercise in relation to the conduct of the hearing that has taken place.

HIS HONOUR:   No, because the orders have not yet been made.  But you want to stop the orders being made and we have a fight over the issue of process rather than the issue of substance that underlies it.  Now, why should we get into that in this Court?

MR POWELL:   This Court should get involved in that because if this Court fails to get involved in that matter, it could be seen by an ordinary person sitting in the courtroom that the federal jurisdiction of this country is not going to act according to normal procedures that one is entitled to expect in a court of law.  The matter does not only rest upon whether I was permitted to have a solicitor, any solicitor, a solicitor of my choice, but also revolved around the matter that in the time given, namely, adjourning the matter for less than 24 hours, to engage a solicitor, to be able to come to terms – to find a solicitor who would be available in that period of time, even if I had the funds, to find a solicitor who would have been available in that period of time, to be able to put together a defence, to be able to subpoena or in some other form bring forward evidence which I needed to be able to ensure that all matters applicable to the hearing were brought before the judge, it just was not possible in that short space of time.

So we are talking about not only the fact that the time did not allow for that.  My resources did not allow for me to be able to get a solicitor at short notice.  My only means of getting a solicitor at short notice, which in itself one cannot get a solicitor at short notice through the Legal Aid process, and again the Legal Aid process – I would not be relying on the Legal Aid process to be funding my legal fees but to be providing the funding for the legal fees which would then be taken from the proceeds of whatever the property settlement eventuates, however it eventuates.

So I was not asking the State to be funding my legal expenses.  All I was asking the State was to ensure that a solicitor could represent me at that matter.  Now, if a solicitor – if the intention there is to ask for Legal Aid, a solicitor is not permitted to undertake any work for the client prior to Legal Aid authorising that work.  If they do undertake any work prior to that, that is the end of the Legal Aid – the end of the possibility of a Legal Aid grant.

HIS HONOUR:   Yes, I understand that.

MR POWELL:   So, therefore, I could not have a solicitor of my choice attend court – even if the solicitor of my choice had been available to attend court on the morning of 5 March, it was not possible for that solicitor to do that and still be in a position whereby that solicitor could then further represent me if I was in a position to gain Legal Aid funding.

Now, I believe that under the circumstances I would be entitled to Legal Aid funding because of the seriousness of the matter, namely, that a fundamental human right could be removed from me, being that I could be imprisoned, so therefore the fact that – if an adjournment had have been allowed, in all probability I would have had a solicitor acting for me.  Now, I would just like to draw your attention to the attitude of Justice Brown in relation to that.  In the transcript she made some comment, namely, that there was no guarantee that I would get Legal Aid.

HIS HONOUR:   And, indeed, is it not the position that Legal Aid is rarely given in respect of family disputes?

MR POWELL:   No, that is not the case.  The case is that in my wife’s first application in 1997 she was funded entirely by Legal Aid.

HIS HONOUR:   That was five years ago, Mr Powell.  Things have moved on since then.

MR POWELL:   In 1999 she was funded by Legal Aid and although you were referring to this as a family law matter, it is not a family law matter in the normal sense of the term, namely ‑ ‑ ‑

HIS HONOUR:   Is it an allegation that you disobeyed an order of the court and that you should be punished for it.

MR POWELL:   That is correct.

HIS HONOUR:   That is the essence of the complaint, is it not?

MR POWELL:   That is correct, yes.

HIS HONOUR:   Yes, I understand that and I understand also that those who disobey court orders face a very considerable degree of punishment.  I understand that.

MR POWELL:   Yes, but there is also the matter of whether there is a reasonable excuse for – if there is found to be a contravention of orders – and I am not admitting that there has been a contravention of orders – if there is found to be a contravention of orders, there is then the matter of whether there has been a reasonable excuse for having contravened those orders.  Now, in relation to both of those matters, it is not a matter whereby it is appropriate for – and I am relying here on – I have part read Dietrich v The Queen and in that judgment it makes it very clear that a person, no matter how well qualified that person may be, has got a right, if that person wants that right, to be represented by solicitors.

HIS HONOUR:   When charged with a serious indictable offence, yes, I understand that.  I am familiar with Dietrich, yes.

MR POWELL:   Are you familiar with Stead v State Government?

HIS HONOUR:   Yes.

MR POWELL:   Well, again, that is a civil matter and again there is – I will just read from that:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge . . . . No cause is lost until the judge has found it so –

there was a break there –

and he cannot find it without a fair trial, nor can we affirm it.

Now, that is on page 145 of that judgment and that is (1986) 161 CLR.

Now, in my application for writs there – there are various writs that I am asking for, but as you have acknowledged, I am here in Court today and the prompting reason for being in Court today is that I have been denied a fair trial.  I have got no confidence whatsoever in Justice Brown handing down a decision which is not biased, as in reading the transcripts of the three days hearing it can be seen that Justice Brown had already on – on 1 March Justice Brown had already come to a conclusion that I was guilty and that conclusion can easily be seen in her statements – and also, before I get to that, I would just like to refer to Ms Macgregor’s statement, “The court is not able to sit tomorrow.”  Now, here is an officer of the court trying to induce the judge not to allow a fair trial to take place.

HIS HONOUR:   Mr Powell, you make very free with the reputations of many people, many people who are not here.  They are not essential to your case.  Be good enough to maintain some focus on that which is central to your case.  Proceed.

MR POWELL:   If we look at the matter of Taylor v Taylor – and, as I say, the only reference I have got here is the (1979) FLC on page 78,590:

In Woods v Sheriff of Queensland (1895) . . . 

“When an order is made ex parte, the court or judge making it may, upon application of any person prejudicially affected by the order, review and, if necessary, discharge it.  This is a rule of natural justice.  But, when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the court which pronounced the judgment or made the order cannot reverse or vary it.”

Well, what I am saying here obviously that this was not an ex parte hearing but it was ex parte to the point that I was not prepared to take part in a trial on serious matters whereby I could not be guaranteed of a fair trial because not only was I not capable of being able to work within a court where there is on the opposing party a solicitor and a barrister who are experienced in these matters and on – although it is not in material here, Ms Macgregor has said that she has worked in criminal law for a great number of years, my wife’s solicitor.  She had a barrister there.  There is no way that there could have been a fair trial if I had tried to represent myself that day.  There was no way it could have been a fair trial unless I could have subpoenaed certain people into that court in order to be able to justify what had happened. 

There was no way a fair trial took place that day and for that reason the Court should at least stop Justice Brown from handing down her decision and have the matter heard allowing for the rules of natural justice.

Before I move away from that I would just like to point out that there existed four objections to jurisdiction which have not been dismissed by the court and those objections to jurisdiction needed to be dismissed by Justice Brown prior to her hearing any matters in this case as her only way that she could have entertained those proceedings was according to the orders, consent orders of Justice Watt made on 11 October and those consent orders was that she would case manage, not that she would choose what to hear but to case manage.

Now, I realise that orders made by consent according to High Court Rules, rule 44 something, are – they are to be obeyed.  Consent orders are not just orders that can be just discarded when it suits another judge.  If those orders are to be discarded, they have to be discarded on a matter of an appeal against the orders and then Justice Brown may be free to pick and choose what issues she wishes to cover, but she was not given that opportunity.  Her orders – the orders that she had to comply with – again, I am accused of not complying with orders.  The orders that she had to comply with were to case manage matters before her.  She has failed to case manage.  She has exercised a jurisdiction she did not have.  She has not allowed the normal process of law in relation to these matters to be conducted.  I think that is probably about all I can say on the matter, your Honour.

HIS HONOUR:   Yes, thank you, Mr Powell.

Leo James Powell seeks orders nisi directed to three named judges of the Family Court of Australia and all other judges of that court and to Helen Maree Powell calling on them to show cause why writs of prohibition and certiorari should not issue.  In addition, Mr Powell seeks orders extending the time fixed by Order 55 rule 17 of the High Court Rules as the time which application for an order nisi for writ of certiorari to challenge some of the orders in question should be made.

The history of the proceedings in the Family Court of Australia which give rise to the present application is long and in some respects complicated.  For present purposes the central focus of the proceedings in the Family Court concerns residence and contact arrangements for the three children of the marriage between the applicant and the proposed second respondent, Mrs Powell.  As Mr Powell said in his affidavit filed in support of the present application:

[S]ince the 16th November 1999 there have been a great number of applications made in the court [the Family Court] and the appeal against the Final Orders made 16th November 1999 has not yet been heard with more than 20 appeals to the Full Court of the Family Court still outstanding and along with the activity in the court the number of appeals is rapidly rising. There are two applications for special leave to the High Court pending as too are pending two notice of motion applications pursuant to s 40 of the Judiciary Act 1903.

At the risk of unduly abbreviating the description of the matters which give rise to the present application, they can be understood as relating to, first, some orders made by Justice Faulks of the Family Court on 24 June 1999; secondly, orders made by Justice Watt in that court on 16 November 1999; and, thirdly, several orders made by Justice Brown on 1, 4 and 5 March this year, which in turn are connected with an application by Mrs Powell which was heard on 5 March 2002 and presently stands reserved for judgment.  Justice Brown has indicated that she intends to give judgment in that matter on 2 April 2002.

I deal first with the order of Justice Faulks of 24 June 1999.  In the draft order nisi which the applicant has filed he seeks an order nisi for certiorari directed to Justice Faulks removing into this Court to be quashed some but not all of the orders made by his Honour on 24 June 1999.  Neither in the grounds set out in the draft order nisi, nor in the affidavit filed in support of the application, is it said why the orders of Justice Faulks are alleged to be infirm.  That being so, there is no need to deal further with them.  No order nisi will be made in respect of those orders.

The orders of Justice Watt of 16 November 1999

By those orders Justice Watt ordered that Mr and Mrs Powell have joint parental responsibility for the long‑term care, welfare and development of the three children of the marriage but that Mrs Powell should have sole parental responsibility for the children’s education.  His Honour ordered that the children reside with Mrs Powell, who should have sole responsibility for the children’s day‑to‑day care, welfare and development, and that the children should have contact with their father in accordance with arrangements set out in that order.  Orders were made for the sale of a property in Strathmore.

Again, no ground is given in the draft order nisi alleging why those orders are said to be infirm.  In his affidavit in support of his application to this Court, however, Mr Powell records that at a later hearing before Justice Watt (later, that is than 16 November 1999) he made oral application asking that Justice Watt stand aside from any further hearing of any matters in proceedings between Mr and Mrs Powell:

due to his bias demonstrated throughout the time matters were before him since October 1999.

Reference is also made to an allegation Mr Powell swears that he made at the time of making the application I have just mentioned to the effect that there had been a material alteration to reasons for judgment given by Justice Watt.  The significance of that is not further developed in argument.

Justice Watt dismissed Mr Powell’s application for him to stand aside but later made a number of orders by consent of the parties concerning the management of then outstanding applications to the court.  At least so far as Mr Powell’s affidavit reveals his Honour has not since dealt with any application to which Mr and Mrs Powell are parties.  In all these circumstances, there is in my view no ground shown for granting an order nisi directed to Justice Watt.

The orders of Justice Brown

The principal focus of Mr Powell’s application in this Court has been upon the course of proceedings before Justice Brown in and after February 2002.  The applicant had care of his children between 5 January and 26 January 2002.  His affidavit, read as a whole, reveals that he did not return the children to the care of Mrs Powell at the end of that time and that on 29 January 2002 Mrs Powell applied in the Family Court for orders compelling the return of the children.

On 30 January 2002 Justice Brown made an order of the kind sought by Mrs Powell. Subsequently, on 25 February Justice Brown made an order pursuant to section 55Q of the Family Law Act 1975 (Cth) for the issue of a warrant for the arrest of Mr Powell. That warrant was executed on 1 March and Mr Powell was brought before Justice Brown on that day. Upon Mr Powell entering a recognizance to return to court on the following Monday, 4 March 2002, he was released from custody.

On 4 March 2002 Mr Powell appeared before Justice Brown and sought an adjournment of the hearing of the application that Mrs Powell had made for orders dealing with Mr Powell for his contravention of the orders regulating the residence of and contact with the children of the marriage.  Justice Brown granted the application for adjournment, adjourning the matter to the next day, 5 March, subject to Mr Powell entering into another recognizance that he return to court on that day.

On 5 March 2002, the matter coming on for further hearing, Mr Powell sought a further adjournment of the proceedings and, on that adjournment being refused, in his words:

made it very clear on a number of occasions that [he] required legal representation and was not representing [himself].

He refused to participate in the proceedings.  Her Honour heard such argument as was advanced and reserved her decision on the application that had been made by Mrs Powell that Mr Powell be dealt with for his contravention of the orders that had been made.

Mr Powell seeks now to contend in this Court that on a number of bases Justice Brown should be prohibited from further hearing any matter in proceedings between him and his wife.  Some of those bases are what are alleged to be a want of jurisdiction of Justice Brown.  That want of jurisdiction is put in various ways.  First it is said that the original orders made for residence of and contact with the children of the marriage terminated “fundamental human rights created by marriage” and thereby stepped beyond the valid operation of the Family Law Act. 

As I would understand it, the fundamental human rights to which Mr Powell refers are those which might be expressed as being a right to maintain both the bond of marriage and the bond of a parent with a child, save in circumstances where fault is demonstrated.  In so far as this ground seeks to challenge the validity of the Family Law Act in its operation in the circumstances of the case that was before Justice Watt at the time of his making the residence and contact orders which he made, I am of the opinion that it is not arguable.

Second, it is said that Justice Brown lacked jurisdiction to hear the application concerning the alleged contravention of orders because to do so departed from the arrangements recorded in the consent orders regulating the further case management of proceedings between Mr and Mrs Powell.  It is by no means clear to me that it is arguable that there was any contravention of the arrangements recorded in those orders, but even if there were, that would not, in my opinion, raise an arguable case of lack of jurisdiction of the judge.

As has often been mentioned in decisions in this Court, the word “jurisdiction” is one applied in a very great variety of circumstances, often with no sufficient care directed to the meaning with which it is used in the particular circumstances:  see, for example, Lipohar v The Queen (1999) 200 CLR 485. There was, in my opinion, no arguable want of jurisdiction which can be founded in the consent orders regulating further case management of proceedings between Mr and Mrs Powell.

The matters with which I have just dealt are matters which did not lie at the centre of the way in which Mr Powell sought to present his complaints.  Rather, Mr Powell sought to contend that Justice Brown should be prohibited from further hearing either the application which now stands reserved or any further application in proceedings between him and his wife due to what he described as:

gross bias, gross abuse of process of the court as well as the denial of natural justice.

In support of that contention, Mr Powell referred to a number of things said during the course of proceedings before Justice Brown.  None of those matters taken separately or together reveals an arguable case that the judge had prejudged any issue between the parties or had so acted as to engender in the fair‑minded lay observer an apprehension that she may have done so:  see Johnson v Johnson (2000) 201 CLR 488.

Those matters may, therefore, be put to one side, but, again, they may be understood as not representing the central focus of the application which Mr Powell made.  Rather, the essence of the case which he would seek to make in this Court is that there was a denial of procedural fairness by Justice Brown proceeding on 5 March when he should have been given, but was not given, further time to obtain legal representation to defend an alleged contravention of orders which, if proved, would carry for him penal consequences, perhaps of great severity.

Even if the course of events on 1, 4 and 5 March did reveal an arguable case of want of procedural fairness, a point about which I need express no view, Mr Powell’s application should nonetheless be dismissed. It is, of course, clear that relief under section 75(v) of the Constitution will go to the Family Court of Australia: see, for example, R v Watson; Ex parte Armstrong (1976) 136 CLR 248. But such relief is not granted as of course. As Justice Brennan said in Re Family Court of Australia; Ex parte Herbert (1991) 65 ALJR 688 at 689:

Following upon the observations by some members of this Court in R v Cook; Ex parte Twigg (1980) 147 CLR 15, deprecating the practice of prematurely applying to this Court for a prerogative writ instead of pursuing the remedy of appeal within the Family Court, and the endorsement of those observations by all members of the Court sitting in Re Wilkie; Ex parte Johnston (1980) 55 ALJR 191 at 192, the judgments delivered in R v Ross‑Jones; Ex parte Green (1984) 156 CLR 185, show that this Court 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 limit of legislative power:

Reference in this regard should also be made to Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 to 655 [139] per Justice Gummow.

No doubt in the present case account must be taken of the fact that, although the applicant places chief weight upon his contention that he has been denied procedural fairness in the course of the proceedings before Justice Brown, he seeks to assert in the draft order nisi as a ground for the grant of relief that section 65T(2) of the Family Law Act:

is a provision which is unconstitutionally vague and therefore void –

or:

is a provision otherwise void, as it denies the respondent the fundamental human right of a fair trial due to its mandate directing the court to “… without delay, proceed to hear and determine the application” which denies the respondent legal representation, trial preparation, the adducing of evidence, the calling of witnesses as well as many other fundamental rights of a fair trial.

It is enough to say of these grounds that in my opinion they raise  no arguable case.  Section 65T obliges the Family Court “without delay” to proceed to hear and determine an application of the kind with which the section deals.  That legislative injunction is not to be read as requiring the Family Court so to proceed as to deny procedural fairness to a respondent to such an application.  Nor does the use of the qualitative expression “without delay” in place of some quantitative limitation lead to any relevant lack of certainty in the operation of the provision.  In all these circumstances, the application should be dismissed.

The order is application dismissed.

Yes, adjourn.

AT 10.53 AM THE MATTER WAS CONCLUDED