Re Joachim & Anor, Ex parte Joachim

[1997] HCATrans 342

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 4201
  A  17.11.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M98 of 1997

Re:  JOACHIM and ANOTHER

Ex parte:      JOACHIM

HAYNE J (in Chambers)

AT MELBOURNE, MONDAY THE 17TH DAY OF NOVEMBER 1997

AT 9.30 AM

MR B.F. MONOTTI:   I appear for the applicant, Fay Rebecca Joachim (instructed by Issac Brott and Co).

MR J. UDOROVIC QC:   I appear on behalf of the second-named respondent with my learned friend DR R.S. INGLEBY (instructed by Clancy and Triado).

HIS HONOUR:   There may be perhaps some question about whether you are here as of right, Mr Udorovic, and we may perhaps leave that over for the time being. 

MR UDOROVIC:   Yes, your Honour.

HIS HONOUR:   Now, Mr Monotti, you should take it that I have read the file and am generally familiar with it.

MR MONOTTI:   If your Honour pleases.  May I at the outset, your Honour, seek to file a supplementary affidavit sworn by Issac Alexander Brott this day.

HIS HONOUR:   Yes, I have read that.

MR MONOTTI:   Your Honour, would it be of assistance if I were to hand to your Honour a list of the exhibits to the affidavits?

HIS HONOUR:   Yes.  I should also mention that I have a certificate from the Registrar that the first respondent, the Honourable Justice Morgan, does not wish to be represented at the hearing of this matter and will abide by any decision of the Court save as to costs.  Yes.

MR MONOTTI:   If your Honour pleases.    This is an application for an order nisi for a writ of prohibition and certiorari in respect of three decisions made by Morgan J in proceedings presently pending in the Family Court of Australia between the husband and wife.

HIS HONOUR:   Well, what are the three decisions, Mr Monotti?

MR MONOTTI:   The three decisions, your Honour, are first, two decisions to refuse separate applications for adjournment, the first being made on 27 October this year, the second being made on 31 October ‑ ‑ ‑ 

HIS HONOUR:   And then the application to have her Honour disqualify herself for apprehended bias which is 5 November, is it not?

MR MONOTTI:   That is so, your Honour.

HIS HONOUR:   Yes.  Now, which of those decisions are the subject of applications for leave to appeal to the Full Court of the Family Court?

MR MONOTTI: The adjournment refusals, your Honour, because they are interlocutory orders and there is no appeal as of right in the Family court against them. There is, however, an appeal as of right by virtue of the Family Law Act section 94(1AA) against the rejection of the application for disqualification.

HIS HONOUR:   And has appeal been brought against that?

MR MONOTTI:   That is so.

HIS HONOUR:   And the applications for leave have been made in respect of the two orders of 27 and 31 October?

MR MONOTTI:   That is so, your Honour.

HIS HONOUR:   And those applications for leave are the subject of directions, as I understand it, originally fixed for 10 am today but now put over until 2.15; is that right?

MR MONOTTI:   Yes.

HIS HONOUR:   In the light of that history why should I not simply permit the appellate processes of the Family Court to take their course?  Why should I intervene?

MR MONOTTI:   Your Honour, the proceeding commenced last Monday, the applicant being then unrepresented and suffering from what I submit are the number of serious disadvantages flowing from that position.

HIS HONOUR:   I understand all that.  Why should I intervene?

MR MONOTTI:   Your Honour, the trial is now under way and the applicant is continuing to suffer from these disadvantages which cannot be corrected immediately within the Family Court appellate system.  Attempts have been made to do so but unfortunately, your Honour, the trial has commenced.

HIS HONOUR:   If the matter were to go on and to go to judgment at first instance would it be a ground of appeal against any final order made that she had been denied procedural fairness by reason of the denial of the adjournments?

MR MONOTTI:   Yes, your Honour.

HIS HONOUR:   That being so, and the applications for adjournment requiring close consideration of a long and complex litigious history, and involving as they do the exercise of discretion why should this Court engage in that task rather than leave the Full Court of the Family Court to correct error if error has been made?

MR MONOTTI:   Your Honour, the reason in my submission is that because of the refusals of the adjournment the applicant's rights in respect of the right to have any of her interests reasonably protected or advanced in the course of the proceeding before her Honour stand presently defeated.

HIS HONOUR:   And if that is so, and I express no view on it, if that is so, that is an error capable of correction on appeal and then assumedly a third trial of this matter would ensue.

MR MONOTTI:   Your Honour, I would respectfully submit that if it is apparent now that there is a trial about to continue which might be quite lengthy, having regard to the history of the matter, with the applicant showing an arguable case to the effect that this trial is unlikely to be an effective trial because she has not had any opportunity to reasonably advance her interests or protect them, therefore her rights for all practical purposes, this trial having been denied, in my respectful submission it is appropriate for this Court to step in if asked in order that the record may be brought up to this Court at this time to avoid what I respectfully submit would be the serious injustice nevertheless flowing to the applicant which she would have to undergo, notwithstanding that there might ultimately be another way of resolving her difficulties a long time down the track by way of appeal.

HIS HONOUR: Would that course be consistent with the stream of authority in this Court commencing at least in R v Cook ex parte Twigg at 147 CLR 15, Re Wilkie Ex parte Johnston 55 ALJR 191 at 192, R v Ross-Jones Ex parte Green 156 CLR 185, Re Family Court Ex parte Herbert 65 ALJR 688. In particular, the last, Family Court Ex parte Herbert where Brennan J said that he took the cases that I have earlier mentioned to 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.

MR MONOTTI:   I would submit, with respect, that nevertheless this application is not inconsistent with that authority in that an appropriate remedy is not available within the appellate system in the Family Court; and I make that submission on this basis, and that is that an appropriate remedy in this case is a remedy which will enable the applicant to be protected against a requirement to undergo a trial which arguably is one which will be conducted in circumstances where her rights in relation to it have been defeated.

I respectfully submit that when appropriate remedy is being looked at for the purpose of the exercise of this Court's discretion as to whether or not prerogative relief ought to be granted, it is proper for the Court to take into account the effects, the adverse effects, which may be suffered by an applicant who is in that position.

HIS HONOUR:   And what are those adverse effects relevantly?

MR MONOTTI:   That the trial presently is under way, that the proceeding involves complex issues, that its history demonstrates that the proceeding is likely to occupy many days in Court, the applicant is suffering from a psychological condition which upon the evidence so far before the Court indicates that her being required to submit to a trial, unrepresented particularly, and unprepared, which is likely to be of this duration could cause her to suffer in a way which I respectfully submit ought not to be permitted if there is an alternative.

[9.46am]

HIS HONOUR:   Cannot the Family Court Full Court, in an appropriate case, make an order staying further proceedings?

MR MONOTTI:   I would submit that one would like to think, yes, your Honour, but there maybe a problem, and that is that the question might arise as had arisen before her Honour in the application made before her Honour to stay to operation of the orders under the Family Law rules, as to whether or not the Court in the exercise of its power to stay has a, or ought to exercise any power which extends beyond the scope of the rules.  The rules by their terms permit the grant of an order staying the operation of an order.

And as was held by her Honour in the applications made for stay before her, the rules, if they are to be applied in that limited sense, by staying the operation of an order refusing an application for an adjournment, there is then simply a proceeding on foot, which is not yet adjourned, and the same might be said in relation to the refusal of an application to disqualify.  Her Honour so held, and when these applications were made, although I would certainly respectfully submit that that was an unduly narrow approach, but nevertheless, that has been held at first instance, and there is a reasonable risk, I respectfully submit, that if an application were made to the Full Court there maybe such a restrictive interpretation placed upon the power of the Court to stay, pending application for leave, or an appeal, in respect of these orders.

HIS HONOUR:   It seems at least at first blush to be a remarkably narrow construction of the rules, ignoring, I would have thought, cases such as Wilson v Church; Erinford v Cheshire County Council; R v Tait, but those are matters into which I need not and do not go.  The power of a Court to preserve the subject matter of its litigation is well recognised in at least other jurisdictions, but as I say, for the moment I would be, I think, assisted if you were to assume purely for the purposes of argument that arguable case of denial of natural justice or procedural fairness was made out, and if you were to direct yourself entirely for the moment to the question whether even if that is established, this Court should intervene in light of the chain of authority that I have mentioned as culminating in Ex Parte Herbert.

MR MONOTTI:   If your Honour pleases.  Your Honour, certainly the power remains to, in an appropriate case, for this Court to grant the order nisi, but it can only be whereas your Honour has pointed out to me in the authorities, there is not an appropriate remedy in the process appellate process.  Your Honour, the appellate process, as it presently stands in the Family Court has led to this.  The trial started last Monday, it has been adjourned due to the applicant's medical condition, and it was stood down by her Honour upon her Honour becoming aware of this application.

So Friday was not a trial day which can be taken into account because of that, but before that the applicant had been at least exposed to the requirement that the trial proceed, although it did not in fact proceed for all of those days due to her medical condition.  It was necessary for her to make application herself for the adjournments, or the adjournment, which led to the trial not occupying all of the four days available last week.  Nevertheless, the trial is destined to continue and it would appear at the earliest possible opportunity following the determination of this application, should the application be refused.

Presently there is an application before Fogarty J of the Appeal Division of the Family Court, which is a form 8 application returnable now before his Honour this afternoon.  That is an application for expedition of the hearing of the applications for leave to appeal and the appeal.  An application for a stay order, which it would be proposed, your Honour, to be referred to the Full Court for a determination expeditiously, and an application for directions.  But your Honour, that application upon being filed last Monday was able to receive as the earliest return date today.  Of course one cannot be sure as to at what time the Full Court of the Family Court will be able to deal with the application for the stay yet to be made, let alone the applications for leave to appeal and the appeal.

But even with the best will in the world, your Honour, I would have to submit that it is, in view of the history of the matter, one could not assume, or I certainly could not assume in making these submissions, that there could be any opportunity for the applicant to achieve relief within the appellate process of the Family Court in the way of a stay of the proceeding within a matter of days or indeed by the end of this week.  And that then means that the applicant remains exposed to this trial proceeding, subjected to the range of aspects of suffering, if I might put it that way, which she is likely in the circumstances to endure by undergoing such a trial.

I must respectfully submit therefore, your Honour, that it has been demonstrated from the action already taken by the applicant in an effort to achieve appropriate relief in the Family Court's appellate system that that relief is not available or has not been available to provide the appropriate remedy to which this Court has referred.  And that it is indeed a serious detriment for a party to be required at any point to undergo and be subjected to a trial, albeit a civil trial, in circumstances where arguably it could be said that that trial is not fair to that party and indeed is a trial which is conducted in circumstances where the parties' rights are being defeated.

And I respectfully submit that in such a case it is appropriate for this Court upon application and upon it being shown that there are grounds, and upon it being shown that there is not the immediate relief which I respectfully submit ought to be available to protect the applicant, that this Court ought to therefore step in because there is not otherwise an appropriate remedy.

HIS HONOUR:   Yes.

MR MONOTTI:   In this case, your Honour, this is indeed a case where the applicant has taken all steps, which I respectfully submit, could be reasonably taken to endeavour to use the appellate process within the Family Court system to achieve the relief which she has been seeking.  There is nothing else that she could have done, yet notwithstanding, she has not been able to achieve that relief.  And it is a matter of regret, your Honour, that perhaps within the administration of the appellate system it is - and I seek to make no criticism at all, of course, of the Family Court appeal system, but it appears to be the fact, your Honour, that notwithstanding the best efforts of a party to get instant relief, administratively there seem to be grave difficulties, and there have been in this case.

HIS HONOUR:   Yes.  Is there anything else, you would say, in support of the proposition that the principles that I have identified as flowing or as having been mentioned in Ex Parte Herbert should not apply in this case?

MR MONOTTI:   Your Honour, I would not submit that the principles ought - in fact, what I was proposing to do, your Honour, is go back to Twigg, and there is a bit that that is the basis upon which the Court has considered the exercise of discretion in such applications.

HIS HONOUR:   Well, do you say that his Honour Brennan J is wrong to identify Ex Parte Green as establishing 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 one about legislative power?

MR MONOTTI:   No, I do not submit that, your Honour, but I do submit that the question to be considered is what in the circumstances is appropriate relief within the appellate system of the Family Court.

HIS HONOUR:   Yes.

MR MONOTTI:   And I do respectfully submit that for the purpose of determining appropriate relief, it is not just a question of what might finish up in the end as relief, appropriate relief is a matter to be considered at all stages of the proceeding.

HIS HONOUR:   Is it any part of the application that is to be heard by Fogarty J that there be some order in the nature of a stay or injunction preventing continuance of the trial?

MR MONOTTI:   Yes, there is, your Honour.  There is an application before his Honour for a stay.  It is not presently before the Full Court, but I must say, your Honour, that it is intended that that application, that his Honour be asked this afternoon to refer that application to the Full Court.

[10.00am]

HIS HONOUR:   Yes.

MR MONOTTI:   That, your Honour, is then - one would hope, your Honour, that that might be dealt with expeditiously, but there is nothing upon which the applicant can presently rely to indicate as to the time at which that application might come on for hearing, and in the meantime the applicant continues to be subjected to this trial. 

HIS HONOUR:   Yes. 

MR MONOTTI:   I therefore submit, your Honour, that circumstances notwithstanding, the appellate process presently launched is a process which may achieve, if successful, the result sought to be achieved by this application.  In the circumstances of this case it is a matter of importance that the applicant be able to achieve immediate relief in the way of a stay of the proceedings.

HIS HONOUR:   Yes.  Well I think you have put that submission, have you not?

MR MONOTTI:   Yes, I have, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr Udorovic, if you are here as of right as to which I express no view, I need not trouble you.

MR UDOROVIC:   May it please your Honour.

HIS HONOUR: Fay Rebecca Joachim is a party to proceedings in the Family Court for property settlement orders under section 79 of the Family Law Act 1975. Those proceedings have had a long history. In September 1996, after a long and apparently difficult trial occupying 23 days, a single judge of the Family Court made orders disposing of the application. On 7 March 1997, the Full Court of the Family Court made orders by consent of the parties setting aside the substantive orders that had been made at the trial but leaving the costs orders that had been made at that trial unaffected.
Those orders included orders that the husband, Denis Joseph Joachim, pay what were described in the order as "the wife's outstanding legal costs."  The principal application was sent for retrial.  On 18 June 1997, Morgan J ordered that the trial date for those proceedings, which had then been fixed for 14 July 1997, should be vacated, and her Honour directed that the matter be refixed for hearing on 27 October.  Mrs Joachim applied to the judge for orders that would provide for payment of her costs of the litigation, and on 31 July 1997 Morgan J ordered that certain assets of one or other of the parties, and it matters not which, a collection referred to as the Gould books, be sold.

It is apparent from the order made by the judge that her Honour proceeded on the basis that the Gould books were valued at $385,000, and that their sale would raise sufficient to pay the wife's outstanding legal costs and put her in funds sufficient to enable her to prepare for and fight the retrial.  On 1 September 1997, the then solicitor for the wife receive a proposal concerning the sale of the Gould books.  The reserve price that was suggested in that proposal was a price that was said would not realise enough to pay the wife's outstanding costs and the costs which it was expected she would incur for the purposes of the trial.

Exactly what happened thereafter is not altogether clear from the material.  In particular, I am not able to say what steps the wife's representatives took to determine whether a sale of the books would provide enough to put her in funds, as the order of 31 July had intended, or whether any other steps were taken to make some alternative arrangements either for sale of the books or provide sufficient for her to undertake the trial that then was pressing upon her.  On 21 October, the matter was mentioned to the trial judge, Morgan J.  The judge was told that counsel for the wife had withdrawn from the matter because he could not be assured that his fees would be paid.

It was said in the course of that application by the then solicitor for the wife that further time was needed for a number of purposes in connection with the preparation of the matter for trial, including obtaining some valuations of property which were the subject of the pending proceedings.  It was said that the step of obtaining valuations could not be taken until the wife was put in funds.  As the matter proceeded before the trial judge on that day, it seems to me that this complaint about lack of valuations disappeared, but in the end I do not think anything may turn on that for the immediate disposition of this application.

In the course of the hearing of 21 October, an application was made on behalf of the wife for an order vacating the trial date, but Morgan J said that she would not do so without any application on proper affidavit material.  Accordingly, on Friday 24 October, the last business day before the day fixed for the commencement of the trial, an affidavit was sworn by the wife's then solicitor in support of the application to vacate the trial date.  It seems clear from that affidavit that by this stage of the matter no, or no significant work had been done to prepare the wife's case for trial.

When the matter was called on for trial on 27 October, counsel appeared for the wife to apply for the vacation of the trial date.  Counsel made plain that his retainer was limited to that application.  Affidavits by several medical practitioners were filed on behalf of the husband deposing to what was said to be the poor state of his health.  The application that the trial date should be vacated was refused.  Morgan J adjourned the trial until 29 October.  It is said that the solicitor and counsel for the wife then became concerned about the wife's capacity to give instructions, and arrangements were made to have her examined by medical and other practitioners. 

Affidavits were filed in the Family Court on behalf of the wife deposing to her then psychological condition.  The application for vacating of the trial date was renewed on 29 October.  There then followed as much as two days of hearing involving cross-examination of deponents.  That application for vacating of the trial date was again refused.  Counsel for the wife told Morgan J that leave would be sought to appeal from her Honour's orders, and he asked for a stay of the proceedings until 5 November.  That stay was refused.  On 5 November, application for leave to appeal against the two refusals of adjournment was filed.

The matter came back on for hearing before Morgan J on 5 November.  Counsel for the wife applied for Morgan J to disqualify herself from further hearing the matter on the ground shortly described as "apprehended bias."  On 6 November, Morgan J published her reasons for refusing that application.  On 7 November, notice of appeal against that order refusing the application for disqualification was filed, it being contended that appeal lies as of right against that order.  Again application was made to Morgan J for an order staying further proceedings but again that application was refused.  Her Honour directed that the trial proceed on 10 November.

On 10 November, the then solicitor for the wife filed a notice of ceasing to act as her practitioner.  The judge ordered that, notwithstanding his claim to a lien over the wife's file, he produce his file in Court.  The trial then began and has continued, albeit with some interruptions.  The application made by the wife for leave to appeal to the Full Court of the Family Court and the appeal are due to come on for directions before a single judge of the Appeal Division of the Family Court today.  At the same time, there will come on before that judge an application on behalf of the wife for an order expediting the application for leave and the appeal, and her further application to have the trial interrupted.  I was told that the last-mentioned application would be the subject of an application for reference to the Full Court.

Mrs Joachim now applies for an order nisi for prerogative relief.  It is contended that the course of events which I have described in outline reveals a want of procedural fairness sufficient to warrant the grant of such relief.  As to that, I need express no concluded view.  I am content for the purposes of the present application to assume without deciding or expressing any view whatever that it is arguable that Mrs Joachim has in truth been denied procedural fairness.  I emphasise, however, that I express no view on that subject. 

What is clear is that she has commenced the process necessary to appeal against the orders of Morgan J about which she now would seek to complain in this Court.  If the orders of which she complains are attended by error, and if an injustice would be done to her by leaving those orders stand, leave to appeal to the Full Court of the Family Court would, I assume, be given to her. 

There is no dispute in this case about the constitutional limits of legislative power.  The only dispute concerns the exercise of particular discretions in the conduct of extant proceedings having a long and very complex history.  Considering whether those discretions have been exercised properly may very well require close examination of that long and detailed history of complex litigation. 

It is said on behalf of the applicant that to permit the trial to continue will leave the applicant exposed to continuing adverse effects, which it is said will be difficult if not impossible to remedy.  No doubt if the trial does proceed the applicant before me will continue to be exposed to all of the considerable stresses of complex litigation of the kind in which she is engaged.

Nevertheless, if on appeal to the Full Court of the Family Court, it were to be established that she had been denied procedural fairness, counsel for the applicant acknowledged that the error to which she had been subject would be capable of correction in that Court.  In that respect, therefore, if she suffers harm by the continuation of the trial the orders which may be made at the end of that trial will not be beyond recall and correction, and that harm of which she complains will not be irremediable.

In re Family Court of Australia, ex parte Herbert (1991) 65 ALJR 688, Brennan J said at page 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 Johnstone (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.  See the judgments at 193 to 195, 214 to 215, 217 to 218 and 222.

There now being pending application for leave to appeal and an appeal to the Full Court of the Family Court, I am of the view that the application for prerogative relief which now is made should be refused.  It follows, therefore, that the application for an order nisi is refused.

MR MONOTTI:   If your Honour pleases.

HIS HONOUR:   Yes.  Yes, Mr Udorovic.

MR UDOROVIC:   May it please your Honour.  I have an application for costs, your Honour.

HIS HONOUR:   Why should I entertain any application for costs when ordinarily this proceeding would go ex parte, Mr Udorovic?

MR UDOROVIC:   I understand that, your Honour.  The different circumstance here, which we would submit, would apply, your Honour is this:  that this process, your Honour, was served and in fact there is a letter from Mr Brott's office, solicitor for the applicant, wherein he says:

We attach herewith by way of service the various material that has been filed before this Court.

That, your Honour, in my respectful submission, put us significantly on notice by way of service of this proceeding and consequently, in my respectful submission, your Honour, it is appropriate where there is no absolute role that these proceedings must continue ex parte for a respondent to be able to attend - to be able to make submissions, and indeed, file material.  That is what we have done, your Honour, and in my submission, your Honour, given that we have been served in that manner, it would be appropriate for your Honour to exercise your discretion in our favour with respect to costs.

HIS HONOUR:   This proceeding seems to have been attended by more than unusual complexity, does it not, Mr Udorovic?

MR UDOROVIC:   Yes, your Honour.

HIS HONOUR:   It seems to have been attended on occasions by proceedings which have occupied rather longer than one would ordinarily expect such, for example, as 2 days to decide whether the trial should adjourn.  Why should not the parties bear their own costs of today?  There has got to be some sense in this litigation at some point, Mr Udorovic.

MR UDOROVIC:   Well, I agree, your Honour.  I can only say what I have, your Honour, with respect to the application before your Honour and why we are here.

HIS HONOUR:   Yes.

MR UDOROVIC:   May it please your Honour.

HIS HONOUR:   Thank you.  The application will be refused.  There will be no order for costs.  I will adjourn.

AT 10.24 AM THE MATTER WAS ADJOURNED
INDEFINITELY