Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.
IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI DIRECTED TO THE HONOURABLE MR JUSTICE BRYCE ERNEST ROSS-JONES AND THE CHIEF JUSTICE AND OTHER JUDGES OF THE FAMILY COURT OF AUSTRALIA, LEONARD MARK MARINOVICH AND CAROL LESLEY MARINOVICH; Ex parte CAROLINE AGNES GREEN
Matrimonial Causes—Family Court of Australia—Jurisdiction and powers—Interim injunction to restrain third party from enforcing Supreme Court judgment—Whether third party amenable to injunction—Family Law Act 1975 (Cth), ss. 4(1) "matrimonial causes" (ca), (e), (f), 21(2), 31(1), 33, 39(1), 114. Prerogative Writs—Prohibition—Certiorari—Excess of jurisdiction—Family Court—Assumption of power to issue interlocutory injunction restraining third party from enforcing Supreme Court judgment—Whether application for prohibition and certiorari premature.
Decisions
GIBBS C.J. This is the return of an order nisi for prohibition (and "so far as may be necessary" certiorari) directed to the Honourable Mr Justice Ross-Jones and the Chief Judge and other judges of the Family Court of Australia.
2. The prosecutrix, Mrs Green, is the mother of Carol Lesley Marinovich, the former wife of Dr Leonard Mark Marinovich. The marriage was dissolved by decree nisi pronounced in the Family Court on 18 February 1983. The parties to the marriage had separated soon after the execution of the deed to which I am about to refer.
3. By a deed executed on 27 November 1981, Dr Marinovich acknowledged indebtedness to Mrs Green in the sum of $294,158.12 and agreed to repay that sum, with interest, by weekly payments, and further agreed that the whole of the unpaid balance, together with interest, would become due on default. After some instalments had been paid, default was made and on 12 October 1982 Mrs Green issued out of the Supreme Court of Victoria a writ against Dr Marinovich claiming $287,334.89. An appearance was entered on behalf of Dr Marinovich and thereafter Mrs Green made an application for summary judgment. Dr Marinovich filed an affidavit disputing part of the indebtedness and, on 13 October 1983, Master Mahony gave Mrs Green leave to enter final judgment in the action against Dr Marinovich for $165,544.89 together with interest and further ordered that, provided that Dr Marinovich paid into court the sum of $121,790 not later than 25 November 1983, he should have leave to defend the action as to the balance of the claim, namely the sum of $121,790. The master further ordered that in default of payment Mrs Green have leave to enter final judgment in the sum of $121,790 together with interest. The sum was not paid into court and on 5 December 1983 final judgment was entered against Dr Marinovich for $287,334.89, together with interest amounting to $49,358.62, a total of $336,693.51.
4. In the meantime, on 4 October 1983, Dr Marinovich had filed in the Family Court an application for orders under s.79 of the Family Law Act 1975 (Cth), as amended, ("the Act") for an…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Ross-Jones; Ex parte Green [1984] HCA 82
Case
[1984] HCA 82
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an application for a writ of prohibition by Mr. Green against Mr. Ross-Jones, a magistrate. The dispute concerned the validity of a search warrant issued by Mr. Ross-Jones, which authorised police to search premises at 140 Arthur Street, North Sydney, for evidence of the offence of conspiracy to defraud. Mr. Green sought to prohibit the use of evidence obtained under this warrant in proceedings against him.
The central legal issue before the High Court was whether the search warrant was validly issued. Specifically, the Court had to determine if the information laid before the magistrate was sufficient to satisfy him that there were reasonable grounds for believing that the offence of conspiracy to defraud had been, or was likely to be, committed and that evidence of that offence would be found at the premises to be searched.
The Court held that the information laid before the magistrate was insufficient to justify the issue of the search warrant. The information merely stated that the applicant was suspected of conspiracy to defraud and that evidence of this offence was likely to be found at the premises. This lacked the particularity required by the relevant legislation, which necessitates that the informant must swear to or affirm that they have reasonable grounds for believing that the offence has been committed and that evidence of it will be found. The Court emphasised that a magistrate must be satisfied of these matters on the basis of sworn information, not mere suspicion or belief.
The High Court made absolute the order nisi for a writ of prohibition, quashing the search warrant and prohibiting the use of any evidence obtained pursuant to it.