R v Cook; ex parte Twigg

[1980] HCA 36

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

THE QUEEN v. COOK; Ex parte TWIGG

(1980) 147 CLR 15

9 September 1980

Courts and Judges—High Court

Courts and Judges—Family Court of Australia—Contempt of court—Compulsory conference to discuss welfare of child with counsellor or welfare officer—Advice by solicitor of party not to answer certain questions—Whether contempt of court—Alleged contempt not committed in face of court—Procedure for charge—Right of appeal from conviction—Whether prerogative writ should be granted—Family Law Act 1975 (Cth), ss. 44, 62, 94, 108(2)—Regulations 108, 137. High Court—Powers—Prohibition—Certiorari—Erroneous decision of judicial officer of the Commonwealth—Error on face of the record—Reasons for judgment—The Constitution (63 &64 Vict. c. 12), s. 75 (v.)—Judiciary Act 1903 (Cth), s. 31.

Decisions

September 9.
The following written judgments were delivered: -
BARWICK C.J. Mr. Peter Twigg, the applicant for prohibition or certiorari, was convicted by the Family Court of Australia (Cook J.) of contempt of court and fined therefor $1,000. (at p18)

2. I have had the advantage of reading the reasons for judgment in this application prepared by my brother Gibbs. The relevant facts and circumstances are there set out and I have no need to repeat or supplement them. (at p18)

3. I agree with my brother's conclusion that the Family Court lacked jurisdiction to entertain a charge of contempt not committed in the face of the Court otherwise than upon an application in that behalf properly made. (at p18)

4. I further agree that there was no evidence before the Family Court to support the conviction purported to be made of the applicant by the Court. I agree with my brother's analysis of and conclusion from the material on which that Court purported to act. (at p18)

5. I also agree that the grant of certiorari to quash is appropriate in the circumstances of the case. (at p18)

6. In my opinion, there was no warrant whatever for the conviction of the applicant or for the imposition of any fine, let alone a fine of the amount imposed. (at p18)

7. I would quash the conviction and order of the Family Court by writ of certiorari. As the Commonwealth has offered to pay the applicant's costs and as the applicant is prepared to accept that offer and not seek an order for costs, I say nothing as to what attitude I would otherwise have adopted in relation to an order for the applicant's costs. (at p19)

GIBBS J. This is the return of an order nisi for prohibition, or alternatively for certiorari, directed to the Honourable Mr. Justice Cook, a Judge of the Family Court of Australia, who, on 11 March 1980, found that the prosecutor (or applicant), Mr. Peter Twigg, was guilty of contempt of court, and imposed upon him a fine of $1,000. Mr. Twigg seeks to quash this finding and order. (at p19)

2. Mr. Twigg, who is a solicitor, was acting on behalf of Mrs. Jette Margrethe Kragh in proceedings brought in the Family Court by Mrs. Kragh against her husband. Mrs. Kragh sought, among other relief, orders with respect to the custody of two children of the marriage. On 3rd March 1980 Cook J. made an order that the parties attend a conference with a court counsellor. The exact terms of the order do not appear in evidence, but for reasons that will appear they are not material. On the same day the parties did attend a conference with a court counsellor, Mrs. Turner, who furnished to the learned judge a report made in intended compliance with s. 62 (4) of the Family Law Act 1975 (Cth), as amended ("the Act"). The report contained the following paragraphs: -
"Mrs. Kragh felt that Mr. Kragh had already been offered this access by her solicitor and had not taken advantage of it. However, she felt that she could not agree that this access i.e. fortnightly overnight should now occur. She was unable to state why, except she felt the eldest child Kerri would not wish it, and also stated that her solicitor did not wish her to reveal her real reasons during the interview.
As a result of Mrs. Kragh's stance it was not possible to explore any stated reasons why Mr. Kragh should not continue his relationship with his daughters on a fortnightly overnight basis." (at p19)

3. After this report had been received, Cook J. directed that the proceedings be re-listed for 11 March 1980. On that day the learned judge charged both Mrs. Kragh and Mr. Twigg with contempt of court. The charge against Mr. Twigg was stated by the learned judge in the following words: -
"Mr. Twigg, I also bring against you at this stage the charge of contempt that you being a solicitor, counselled and advised your client, Jette Margrethe Kragh, a person directed by the court to attend a conference under s. 62 (2) and (4) of the Act with a counsellor of the Family Court of Australia to discuss the welfare of the children of her marriage and to endeavour to resolve differences affecting the welfare of the children, particularly as to access by the father of the said children, and to enable a report thereon to be made by the said counsellor of the court, to refrain from making a full and frank disclosure of relevant information and material as to matters affecting the welfare of the said children, particularly as to access, by such obstruction and hindrance to the said counsellor, an officer of this court, in the proper and effective discharge of her duties, you conducted yourself in such a manner so as to interfere with and prejudice the due administration of justice in the proceedings before the court.
The substance of the matters relating to the contempt with which the court has charged you, as the court has already indicated, and repeats as set out in the third and second last paragraphs of the report of Mrs. Meryl Turner which the court has received before in these present proceedings."
The second and third last paragraphs of the court counsellor's report are the paragraphs quoted above. (at p20)

4. The learned judge offered Mr. Twigg time to consider his position but Mr. Twigg said that he wished the matter to be dealt with immediately. His Honour then asked Mr. Twigg if he wished to place any evidence before the Court. Mr. Twigg gave short evidence to the effect that he was not present at any interview at which Mr. and Mrs. Kragh were present with Mrs. Turner. He said that that was all the evidence he wished to give. He went on to submit that it would be improper for him to disclose the contents of any conversation that took place between himself and his client, since such conversation would be privileged. Rather unfortunately, he did not attempt to ask Mrs. Kragh whether she would waive her privilege and allow the evidence to be given. His Honour then delivered an oral judgment which has since been reduced to writing. In this judgment the learned judge stated the nature of the charge and the history of the matter and recited the two relevant paragraphs from Mrs. Turner's report. The judgment then contains the following passages: -
"From the material which has been placed before the Court and which the Court considered sufficient to institute the present proceedings which the Court has in fact brought against Mrs. Kragh and also against Mr. Peter Twigg, her solicitor, it appears to the Court, in the absence of any other material emerging before the Court, that the reasons that Mrs. Kragh advanced to the counsellor for her refusal to reveal full and reasonably accurate details of the reasons why she would not wish her husband to have access to the children has amounted to such an obstruction and hindrance of the counsellor in carrying out her proper function that it amounts, on the face of it, to contempt of this Court, by interfering with or prejudicing the administration of justice in this Court.
. . .
It is apparent to the Court from the material before it that there were in fact some discussions. No challenge has been made to the accuracy of the recording by Mrs. Turner of the material conveyed to her by Mrs. Kragh and the Court is entitled to accept that Mrs. Kragh was stating the truth, in the absence of any other material which would reveal that this was not the case, to Mrs. Turner."
The learned judge went on to reject Mr. Twigg's submission that evidence of any communication between himself and Mrs. Kragh was privileged, saying that since any conduct between a solicitor and his client which had the effect of leading to a contempt of court would be an illegal purpose no privilege would attach to a communication for that purpose. He went on to make the following remarks: -
"The Court is entitled, on the face of the report, and there being no material in opposition to it, to accept the accuracy of the report, it coming from an officer of the Court, and to accept, in the absence of any other evidence, that the remarks of Mrs. Kragh which were recorded were true and accurate.
In the absence of any evidence brought by Mr. Peter Twigg in relation to what in fact occurred . . . the Court has an absence of evidence in relation to the matter."
He concluded by saying that the Court was satisfied that the contempt had been committed and that the Court found Mr. Twigg guilty of the contempt with which he was charged. (at p21)

5. The learned judge then asked Mr. Twigg if he wished to say anything before he was dealt with in accordance with the law. Mr. Twigg then gave further evidence. He said that he did not give the advice to Mrs. Kragh. His Honour then asked him: - "And you say you gave no advice to her at all, touching in any way upon the interview that she was about to attend?" To which Mr. Twigg replied: - "None at all, your Honour." Mrs. Kragh was then called to give evidence. She denied that she had been counselled by Mr. Twigg not to reveal her real reasons during the interview. She added: "I feel that maybe there has been a slight misunderstanding from Mrs. Turner's point, because from what happened in court on that morning, I took it when you, Mr. Twigg, said that it was due to my husband's recent behaviour, I did not feel that I at any time could say anything which might jeopardise the whole situation. I did not want to let out any information in case I was doing the wrong thing." Mr. Twigg submitted that having regard to this evidence the charge of contempt was not sustainable and sought to reopen the matter in view of his Honour's ruling on the question of privilege. The learned judge refused this application and proceeded to sentence Mr. Twigg. He said that he was satisfied that Mrs. Turner recorded what she had been told and that he found that there had been a serious contempt of the court committed by Mr. Twigg. He imposed the fine of $1,000. (at p22)

6. Some days later the learned trial judge withdrew the charge of contempt against Mrs. Kragh. (at p22)

7. The charge against Mr. Twigg was formulated on the assumption that it would have been a contempt of the Family Court for him to counsel or advise Mrs. Kragh to refrain from making a full and frank disclosure to the court counsellor of information and material relevant to matters affecting the welfare of the children of the marriage, and in particular of her real reasons why Mr. Kragh should not have the access to the children which he sought. This assumption was erroneous. The only provisions of the Act that deal with the duties of parties ordered by the Family Court to attend a conference with a court counsellor are those of s. 62 which are as follows: -
"(1) Where, in any proceedings under this Act, the welfare of a child who has not attained the age of 18 years is relevant, the court may, at any stage of the proceedings, of its own motion or upon the request of a party to the proceedings, make an order directing the parties to the proceedings to attend a conference with a court counsellor or welfare officer to discuss the welfare of the child and, if there are any differences between the parties as to matters affecting the welfare of the child, to endeavour to resolve those differences.
(2) Where the court makes an order under sub-section (1), it may fix a place and time for the conference to take place or direct that the conference shall take place at a place and time to be fixed by a court counsellor or welfare officer.
(3) If a party fails to attend a conference in respect of which an order has been made under sub-section (1), it is the duty of the court counsellor or welfare officer to report the failure to the court.
(4) In proceedings of a kind referred to in sub-section (1), the court may obtain from a court counsellor or welfare officer a report on such matters relevant to the proceedings as the court thinks desirable, and may receive the report in evidence, and the court may, if it thinks necessary, adjourn the proceedings for the purpose of obtaining such a report.
(5) Subject to sub-section (4), evidence of anything said or of any admission made at a conference that takes place in pursuance of an order made under this section is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear evidence."
The power of the Court under s. 62 (1) is to make an order directing the parties to attend a conference. The words "to discuss the welfare of the child and . . . to endeavour to resolve . . . differences" describe the subject matter of the conference which the parties are directed to attend, rather than things which the Court may order to be done. This appears to be the ordinary and grammatical meaning of the words of sub-section (1), and other considerations strengthen this conclusion. By sub-section (3), if a party fails to attend a conference in respect of which an order has been made, the court counsellor must report the failure to the Court. If the failure appears to constitute a wilful disobedience of an order of the Court, the party in default may be charged with contempt and, if found to be in contempt, may be punished: see s. 108. However, no similar provision is made for reporting any failure by a party to give information to a court counsellor. This supports the view that the Court is not concerned if a party directed to attend a conference fails to disclose matters as to which the court counsellor seeks information, and that the only disobedience of an order made under s. 62 (1) that may possibly give rise to proceedings for contempt is a failure to attend the conference. Moreover, the combined effect of sub-s. (4) and (5) is that a report of a court counsellor on matters relevant to proceedings concerning the welfare of a child may be received in such proceedings, and that no evidence of anything said at a conference is otherwise admissible. It is impossible to suppose that the Parliament intended that a party might be charged with contempt for failing to give information at a conference, when it would not be legally possible, on the hearing of the charge, for the party charged, or any other person, to give evidence of anything said at that conference. (at p23)

8. The general intention appearing from s. 62 is that the parties required to attend a conference to discuss the welfare of a child, and to endeavour to resolve differences as to matters affecting the child's welfare, are not liable to punishment for anything said, or left unsaid, at the conference. The aim of the conference is not to give one party or another an advantage in the litigation, but to attempt to assist in reaching a solution that will be in the best interests of the child concerned. The fact that no evidence can be given of what is said at the conference may be likely to conduce to frankness of discussion and to make the parties more ready to make suggestions or offers that will enable the welfare of the child to be best served. On the other hand it is less likely that the parties will adopt a conciliatory or co-operative attitude if they can be called to account either for what they have said or for what they have failed to say. Indeed, the feelings of the parties might well be inflamed, and any prospects of a solution by agreement jeopardized, if one party were required to reveal all his or her reasons for thinking that the other was unsuitable to have custody of or access to the child. It is no doubt for reasons of this kind that the Parliament has not imposed any duty upon the parties attending a conference to reveal facts, information or beliefs that they do not wish to disclose. (at p24)

9. It follows that if Mrs. Kragh refrained from revealing her real reasons for objecting to an order for access in favour of Mr. Kragh, she was not acting in disobedience to any lawful order of the Court. Since she was entitled to take that course, it could not be said that in taking it she was unlawfully obstructing or hindering the court counsellor in the performance of her duties. It further follows that if Mr. Twigg had counselled or advised Mrs. Kragh that she should not reveal those reasons at the conference he would not have done anything which amounted to a contempt of court. The charge against Mr. Twigg was therefore laid under a fundamental misconception as to the effect of the Act; it was a charge which could not in law have been sustained. For this reason alone the finding that Mr. Twigg was guilty of contempt of court cannot be allowed to stand. (at p24)

10. There is another reason, equally fundamental, why the conviction was erroneous, namely that there was no evidence to support it. Under s. 62 (4) the report of the court counsellor was admissible only in proceedings in which the welfare of a child was relevant; it was not admissible in proceedings for contempt of court. Even if it had been admissible, it would have been evidence only of what Mrs. Kragh stated. There is no exception to the hearsay rule under which the statement, assuming it to have been otherwise admissible, could have been used as evidence against Mr. Twigg of what he said to Mrs. Kragh. There was thus literally no evidence before the learned judge of anything said or done by Mr. Twigg except the evidence given by Mr. Twigg himself and later the evidence given by Mrs. Kragh. That evidence served only to exonerate Mr. Twigg. (at p24)

11. It should be added that the procedure followed in dealing with the charge was also erroneous. The alleged contempt was not committed in the face of the Court, and it was not possible for the Court to deal with the matter by itself noticing the contempt and proceeding to deal with it forthwith. By s. 108 (2) of the Act, it is provided that the regulations may provide for practice and procedure as to charging with contempt and the hearing of the charge, but the regulations contain little that is directly relevant to the case now before us. Regulation 137 makes some provision in relation to contempt in the face of the Court but that is not material for present purposes. By s. 44 (1) of the Act, except as otherwise prescribed, proceedings under the Act are to be instituted by application. By regulation 108 (1) evidence on an application may be given orally or on affidavit as the Court directs. It is quite clear that in any case of contempt not committed in the face of the Court the offender can only be punished upon an application made to the Court for that purpose and that it is for the person who makes the application to establish his case by admissible evidence. In a case such as the present the judge could not, of course, both make and hear the application. (at p25)

12. It is unnecessary to consider whether the learned judge was functus officio once he had convicted Mr. Twigg of contempt, or whether it was open to him to vacate the conviction after he had heard the further evidence given by Mr. Twigg and Mrs. Kragh. Clearly, however, in the light of the evidence given by Mr. Twigg and Mrs. Kragh, which was uncontradicted and unshaken by any cross examination, a fine of $1,000 - or indeed any fine - was entirely inappropriate. (at p25)

13. An appeal lay to the Full Court of the Family Court from the order made by the learned judge (see s.94) and there can be no doubt that if Mr. Twigg had instituted an appeal it must have succeeded. However, no appeal was brought and the question that now arises is whether the conviction and sentence should be quashed by certiorari, the remedy which Mr. Hughes, who appeared before us on behalf of Mr. Twigg, submitted is the more appropriate. (at p25)

14. It is clear that the Court has original jurisdiction in the present matter. The case is one in which a writ of prohibition is sought against an officer of the Commonwealth within s. 75 (v.) of the Constitution. A judge of the Family Court is an officer of the Commonwealth within that provision and is amenable to prohibition: see Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at p 263 . Section 75 (v.) does not confer original jurisdiction on this Court in a matter in which certiorari is sought and it is "at least questionable whether certiorari to quash proceedings of an inferior tribunal can issue from this Court as a substantive remedy not ancillary to some proceeding otherwise within the original jurisdiction of the Court": Reg. v. District Court; Ex parte White (1966) 116 CLR 644, at p 655 , per Windeyer J., and see per Barwick C.J. (1966) 116 CLR, at p 648 . However in Pitfield v. Franki (1970) 123 CLR 448 a case brought in the original jurisdiction, this Court did grant certiorari; see at pp. 459-460, 463, 467. In that case, as in the present, prohibition and certiorari were claimed as alternative remedies, and one possible explanation of the decision is that once the Court was seized of jurisdiction because prohibition was sought against an officer of the Commonwealth, not merely colourably, but in good faith, the Court, in the exercise of that jurisdiction, had power, under s. 31 of the Judiciary Act, to grant the more appropriate remedy of certiorari. It should be added that the case may also have been regarded as one involving the interpretation of the Constitution. These explanations were suggested by Mason J. in Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, at p 609 . In the present case, the respondent, Cook J., very properly did not seek to be represented before us, and the learned Solicitor-General, who appeared as amicus curiae, did not submit that we lacked the jurisdiction or power to grant certiorari. Although Mr. Hughes primarily sought certiorari, he did not abandon his claim for prohibition and, having regard to some of the statements in Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 , that claim cannot be said to have been unarguable, although I need express no opinion on its correctness. Moreover, it is clear that the conviction and sentence ought not to be allowed to stand, and that no injustice can be done by granting certiorari. In all these circumstances it seems appropriate to adopt the view of Pitfield v. Franki suggested above, and to hold that the Court has power to grant certiorari in the present case if we consider that the grounds for the issue of that writ have been established. This will, of course, not preclude the Court from examining the correctness of Pitfield v. Franki in a future case. (at p26)

15. It is settled law that certiorari lies to quash a decision if an error of law appears on the face of the record. In R. v. Marsham; Ex parte Pethick Lawrence (1912) 2 KB 362 , where it was held that a conviction founded on evidence not given on oath would be quashed by certiorari, no attention was paid to the question whether the error appeared on the record; see at pp. 364, 366. The question actually decided in that case was that a conviction by a magistrate founded on evidence not given on oath was a nullity, so that the magistrate's jurisdiction was not exercised and he was entitled to rehear the case, and on that question the case has subsequently been followed: Bannister v. Clarke (1920) 3 KB 598, at p 606 ; Reg. v. Essex Justices; Ex parte Final (1963) 2 QB 816, at p 823 ; Reg. v. West (1964) 1 QB 15, at pp 28-29 . However, to say that certiorari is available to quash a conviction on the ground that no evidence to support it was given on oath (or affirmation), when that error does not appear on the face of the record, would appear to be contrary to the decision of the Judicial Committee in the leading case of R. v. Nat Bell Liquors Ltd. (1922) 2 AC 128 . It was held by the Court of Appeal of British Columbia in Perepolkin v. Superintendent of Child Welfare (British Columbia) (1957) 11 DLR (2d) 245, at pp 263-264 that although, in accordance with R. v. Nat Bell Liquors Ltd., a conviction regular on its face cannot be quashed on certiorari because there is no evidence to support it, this is true where the absence of evidence consists of insufficiency in the substance of evidence properly received, but not when the objection is that the evidence was not taken on oath or affirmation, and that to proceed in disregard of the requirement that evidence must be given on oath or affirmation would constitute such an infringement of one of the essentials of the judicial process that certiorari should lie whether or not the error appears on the face of the record. This decision can only be supported if to convict on evidence not taken on oath or affirmation can be said to amount to a denial of natural justice. As at present advised I would not go so far, but need not express any final view on this question. (at p27)

16. If the record in the present case includes the reasons given by the learned judge for convicting Mr. Twigg, it reveals, on its face, two cardinal errors of law - that the charge was unsustainable in law and that there was no evidence to support it. It has been held in a number of cases that the record, for the purposes of this doctrine, includes the reasons given for the decision which it is sought to quash: see Reg. v. Industrial Appeals Court; Ex parte Henry Berry and Co. (Australasia) Ltd. (1955) VLR 156, at pp 164-165 ; Reg. v. Tennant; Ex parte Woods (1962) Qd R 241, at p 257 ; Ex parte Tooth &Co. Ltd.; Re Sydney City Council (1962) 80 WN (NSW) 572, at p 577 . If those authorities are correct, this remedy has shed some of its former technicalities, and provides a means of correcting an error of law whenever it patently appears. However, in Reg. v. District Court of the Northern District; Ex parte Thompson (1968) 118 CLR 488, at pp 495-496, 501-502 McTiernan and Menzies JJ. expressed a contrary view although the majority of the Court left the question open (1968) 118 CLR, at pp 491, 499, 501 . The question was also regarded as an open one by Barwick C.J. and Windeyer J. in Reg. v. District Court; Ex parte White (1966) 116 CLR, at pp 649, 651, 658 , by the House of Lords in Baldwin &Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663 and by Walsh J.A. in Ex parte Browne; Re McNamara (1967) 68 SR (NSW) 188, at p 199 . In Reg. v. Wright and Pope (1980) VR 41, at p 47 the Full Court of the Supreme Court of Victoria inclined to the stricter and narrower view. In this state of the authorities it would not seem right to express a concluded opinion on this question unless it is strictly necessary to do so. There can however be no doubt that the very order or decision which is sought to be reviewed forms part of the record; indeed originally it constituted the only record which the court would examine for error: see R. v. Inhabitants of Oulton (1735) Burr SC 64, at p 68 , cited by Mr. Megarry (as he then was) in the Law Quarterly Review, vol. 77 (1961), p. 158; see also R. v. Nat Bell Liquors Ltd. (1922) 2 AC, at pp 154-156 and Baldwin &Francis Ltd. v. Patents Appeal Tribunal (1959) AC, at p 687 . The conviction sought to be reviewed in the present case took the form of a statement that the accused was guilty of the contempt with which the Court had charged him. A conviction in that form would be incomplete and meaningless unless the charge were read into it, and if this Court had required a formal conviction to be recorded and sent up by the Family Court (as we were entitled to do) the conviction must necessarily have set out the nature of the contempt of which Mr. Twigg was convicted. In these circumstances the conviction in effect incorporates the charge, which thereby becomes as much a part of the record as the bare statement that Mr. Twigg was convicted. In Yirrell v. Yirrell (1939) 62 CLR 287 it was held that a defect appearing on the face of a complaint was a defect appearing on the face of the proceedings, and that decision, and the authorities cited in the judgment (1939) 62 CLR, at pp 299, 300, 306 , strongly support the conclusion that in the present case the charge should be read with the conviction to provide the record which is to be examined for error in law. That was a case of prohibition but there seems to be no reason why the record for purposes of certiorari should be any different and in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182, at p 188 it was assumed that they were the same. (at p28)

17. The record constituted by the conviction and charge read together reveals on its face a fundamental error in law. For the reasons already given, the alleged conduct of Mr. Twigg did not constitute a contempt of court. In other words Mr. Twigg was convicted of an offence unknown to the law. In these circumstances certiorari should be granted. (at p29)

18. Certiorari is a discretionary remedy, but in the circumstances of the present case the fact that Mr. Twigg had a right of appeal to the Full Court provides no reason for refusing him the relief which he now seeks. (at p29)

19. The Solicitor-General, on behalf of the Commonwealth, has undertaken to pay the costs of the applicant, and counsel for Mr. Twigg has accepted that undertaking. It is therefore unnecessary to consider the question of costs. (at p29)

20. I would make absolute the order nisi for certiorari and would record the undertaking of the Solicitor-General as to costs but would make no order as to costs. (at p29)

STEPHEN J. I have had the advantage of reading the reasons for judgement of Gibbs J. I agree with all that his Honour has said about the errors involved in the conviction and fining of Mr. Twigg. (at p29)

2. In the light of Pitfield v. Franki (1970) 123 CLR 448 , in which, as in this case, both prohibition and certiorari were claimed, and in the absence of argument concerning the power of this Court to grant certiorari, I would make absolute the order nisi for certiorari. For the reasons stated by Gibbs J., the formal record of conviction, including the charge, will provide a record which on its face discloses error of law, namely, conviction of an offence unknown to the law. (at p29)

3. I agree with the order proposed by Gibbs J. (at p29)

MASON J. With Wilson J., I consider that the Full Court of the Family Court had jurisdiction to entertain an appeal from the decision given by Cook J. in the present case and that Mr. Twigg should have sought relief from that Court. Indeed, I entertain some doubt as to whether relief by way of certiorari is appropriate in a case such as this. None the less, having regard to the circumstances of the present case, I would make an order for certiorari as proposed by Gibbs J. for the reasons which he gives. (at p29)

MURPHY J. The prosecutor, Mr. Twigg, applied for prohibition under s. 75 (v.) of the Constitution to restrain further proceedings on a conviction and fine imposed upon him for alleged contempt of the Family Court of Australia. (at p29)

2. I agree with Gibbs J.'s reasons for holding that the conviction was bad. It is more appropriate to quash or set aside the conviction and fine than to restrain further proceedings on it. In order to achieve this result, Mr. Twigg pressed for alternative relief of certiorari to quash, but it is not necessary to resort to certiorari with its technicalities. (at p30)

3. Section 31 of the Judiciary Act 1903, as amended, provides:
"The High Court in the exercise of its original jurisdiction may make and pronounce all such judgments as are necessary for doing complete justice in any cause or matter pending before it, and may for the execution of any such judgment in any part of the Commonwealth direct the issue of such process, whether in use in the Commonwealth before the commencement of this Act or not, as is permitted or prescribed by this or any Act or by Rules of Court."
This Court may, therefore simply quash or set aside the conviction and fine without deciding whether or not the case comes strictly within the scope of certiorari. However, as the same result is reached by issuing certiorari, I agree to the order which Gibbs J. has proposed. (at p30)

4. It was open to Mr. Twigg to appeal to the Full Court of the Family Court of Australia. Apart from exceptional circumstances, the ordinary remedy of appeal, rather than the extraordinary remedy of prohibition or similar writ from this Court, should be pursued. In future, failure to pursue an appeal may, in my opinion, provide a discretionary ground for refusing relief. (at p30)

AICKIN J. In this matter I have had the advantage of reading the reasons for judgement prepared by my brother Gibbs. I do not need to repeat the account of the facts and of the proceedings in the Family Court which he has given. I am in complete agreement with his reasons for concluding that the conviction of the applicant for contempt of the Family Court cannot be supported. There are several quite independent reasons for that conclusion and I respectfully agree with the reasons and conclusions as stated by my brother Gibbs. (at p30)

2. The only question of any difficulty which arises is the nature of the relief which would be granted. An appeal to the Full Court of the Family Court from the order made by Cook J. was available and undoubtedly should have been allowed if such an appeal had been pursued. However the relief sought in this Court was for a writ of prohibition or alternatively a writ of certiorari prohibiting him from proceeding further in relation to the finding that Mr. Twigg was guilty of contempt and the imposition of a fine of $1,000 in the Family Court and from hearing or dealing with any proceedings for the enforcement thereof, or alternatively, to bring up the finding of contempt and the imposition of the fine to be quashed upon a variety of grounds which are analysed in the judgment of my borther Gibbs. The first relief sought relates only to prohibition and the second only to certiorari. (at p31)

3. It appears to me that the facts would sustain the grounds of a writ of prohibition to prohibit the hearing of any proceedings for enforcement of the finding of guilty and the imposition of the fine. Under ss. 35 and 108 of the Family Law Act 1975 (Cth) ("the Act") the Family Court is expressly given jurisdiction to punish for contempt and the section further provides that the regulations may provide for practice and procedure with respect to charges for contempt and the hearing of such charges. Then by s. 123 there is power to make regulations which are necessary or convenient to be prescribed for carrying out or giving effect to the Act and regulating the practice and procedure to be followed in the Family Court. Regulation 132 provides for the enforcement of maintenance fines and penalties and applies amongst other things to an order that a person pay a fine "under these Regulations". It is perhaps curious that there is no express reference to fines imposed under s. 108. Sub-regulation (8) provides that where a person ordered to pay a fine fails or refuses to do so proceedings for the enforcement of the payment shall be taken by the Registrar and reg. 133 provides that when an order to which reg. 132 applies has been made the Registrar of the court which made the order may issue a summons to a person to appear before the court and sub-reg. (6) provides that when a court makes an order referred to in par. 132 (1) (d), (i.e. for the payment of a fine) only the Registrar of the court that imposed the fine may issue a summons and by sub-reg. (12) the court is authorized to make various orders for enforcing the payment of the fine. (at p31)

4. There is thus no doubt that there remained matters with which the Family Court might have to deal consequentially upon the conviction for contempt though they could not be said to be matters which would necessarily arise, because they all depend upon the failure to pay the fine within the time prescribed. If it were clear, as it is in this case, that the conviction was made without jurisdiction it would be proper to prohibit any further proceedings by way of enforcement of the order. Cp. R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1920) 28 CLR 456, at pp 463-464 . (at p31)

5. Such an order would however not be a satisfactory solution to the problem presented by the errors involved in the judgment. It would leave standing a conviction made without justification or jurisdiction, even though enforcement of the order so made would be prohibited. To leave such a conviction standing would be a serious matter, especially so in the case of a legal practitioner in relation to his conduct in court. (at p32)

6. The question of whether this Court has jurisdiction to issue a writ of certiorari has been the subject of some discussion in a number of cases. It is a remedy which is not expressly conferred or authorized under s. 75 (v.) of the Constitution. (at p32)

7. No submission was made to the Court that there was any lack of jurisdiction to issue a writ of certiorari by counsel for the applicant nor by the Solicitor-General who appeared as amicus curiae, but it is trite law that consent or absence of opposition does not give jurisdiction. I am however troubled by the suggestion that the Court should make an order for certiorari on the same basis as was done in Pitfield v. Franki (1970) 123 CLR 448 but reserving the possibility of re-examining the correctness of that decision. The Court is at all times free to reverse any of its earlier decisions, but it seems to me that it would not be proper to make an order for certiorari except upon a basis which involved the Court in treating its jurisdiction to make such an order as established, if not by the decision in Pitfield v. Franki, then by the circumstances of the present case. (at p32)

8. The precise basis of the decision in Pitfield v. Franki is perhaps not easy to discern. Two possible explanations were mentioned in passing by Mason J. in Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR, at p 609 . But like the present case, it was one where both prohibition and certiorari were claimed as alternative remedies. (at p32)

9. It seems to me that the narrowest basis for the granting of a writ of certiorari in the present case is that it is one in which a writ of prohibition could properly issue, and not one where all that can be said is that it was sought "not merely colourably, but in good faith". As I have indicated above I regard this case as one in which an order for prohibition could be made, but to make such an order would be inadequate. In such a case it appears to me that the writ of certiorari may be used as an adjunct to an order for prohibition so as to make such order fully effective. It is merely a procedural question whether the order for prohibition should be made as well as an order for certiorari. It would however be illogical to make both orders for the Court would be in one sense prohibiting any further steps based upon the conviction and at the same time quashing the conviction itself, making the prohibition unnecessary. On that basis it seems to me that in the present case the order nisi for certiorari should be made absolute. Such a course would leave for an occasion where the matter can be fully argued the question of whether certiorari may be granted in circumstances in which prohibition would not be available. Such a view would not go further than or even as far as the decision in Pitfield v. Franki because as I understand that case no decision was actually made that the circumstances would have warranted the grant of prohibition. (at p33)

10. It would seem to be an open question whether s. 31 of the Judiciary Act 1903 would operate so as to enable the Court to make an order for certiorari if that were not implicit in s. 75 (v.) of the Constitution. It cannot be regarded as clear that it would be a matter falling within s. 76 in respect of which Parliament might make laws conferring original jurisdiction. It is in the present case not necessary to decide that question because it appears to me to be inherent in the power to grant a writ of prohibition that the Court may make its power to grant a prohibition effective in the particular circumstances. (at p33)

11. It appears to me that the decision in the present case that certiorari should be granted must involve a decision which goes at least that far and to that extent may reinforce the decision in Pitfield v. Franki, but does not necessarily go further. In that case the Chief Justice (1970) 123 CLR, at p 459 did not find it necessary to consider whether there was anything remaining to be done so as to make prohibition appropriate. Owen J. agreed with the Chief Justice. McTiernan J. said (1970) 123 CLR, at p 463 : "This certificate (of registration) ought not to stand as if it were validly in force" and he then said:
"Prohibition or alternatively certiorari is sought. I think that the proper remedy is certiorari. In my opinion the Court has power to grant that remedy: Reg v. District Court of Northern District of Queensland; Ex parte Thompson (1969) 118 CLR, at p 496 . The situation cannot be likened to an application for a writ of prohibition to restrain further proceeding on an award, addressed to the maker of that award: cf. R. v. Hibble; Ex parte Broken Hill Proprietary Co. Ltd. (1920) 28 CLR 456 . See also R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. (1944) 69 CLR 407, at pp 442-443 . Registration, if valid, is complete without further action."
Menzies J. said simply (1970) 123 CLR, at p 467 :
"(I)t seems to me that the proper order to make is to grant certiorari and quash the decision of the Commission that the association should be registered as an organisation under the Conciliation and Arbitration Act."
Walsh J. took a different view as to the question whether the Association in question was capable of being registered and therefore had no occasion to deal with the question of whether or not certiorari was available. Thus the Chief Justice and Owen J. did not find it necessary to consider whether prohibtion would have been available. McTiernan J. concluded that prohibition would not have been available, and Menzies J. did not consider the question. (at p34)

12. For the reasons which I have indicated I find it necessary in the present case to go at least as far as saying that the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide. In the circumstances of this case, I would adapt the words of McTiernan J. quoted above, and say that this conviction ought not to stand as if it were validly in force. (at p34)

13. Accordingly I agree that in this case the order nisi for certiorari should be made absolute. (at p34)

WILSON J. The Full Court of the Family Court of Australia has jurisdiction to entertain an appeal from a decision such as that given by Cook J. in the present case, and in my opinion Mr. Twigg should have sought relief from that Court. Unnecessary recourse to this Court by way of the prerogative writs is to be deprecated. It may become appropriate in a future case to withhold relief, on discretionary grounds, in order to encourage aggrieved persons to pursue their remedy in the proper forum. Nevertheless, in present circumstances, I agree with the reasons and conclusion of Gibbs J. (at p34)

Orders

The order nisi in so far as it relates to certiorari is made absolute and in so far as it relates to prohibition is discharged.