Re Marshall of the Australian Federal Police & Ors; Ex parte Owen Carl Ingram Herbert

[1991] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide	No A25 of 1991
In the matter of -

An application for a writ of

prohibition against the

FAMILY COURT OF AUSTRALIA AT ADELAIDE and the MARSHAL AND ALL OFFICERS OF THE
AUSTRALIAN FEDERAL POLICE

and ALL OFFICERS OF THE

POLICE FORCES OF ALL

THE STATES AND TERRITORIES

OF THE COMMONWEALTH OF

AUSTRALIA

Respondent

Ex parte -

OWEN CARL INGRAM HERBERT

Prosecutor

BRENNAN J

(In Chambers)

Herbert 1 19/9/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 SEPTEMBER 1991, AT 2.20 PM

Copyright in the High Court of Australia

MR s.w. TILMOUTH, QC:  May it please Your Honour, I appear

with my learned friend, MR S.H. LINDSAY, for the

prosecutor in this matter.	(instructed by Stuart
Hamilton Lindsay)

HIS HONOUR:	Yes, Mr Tilmouth.
MR TILMOUTH:	Your Honour, I do not believe there is any

appearance for any other party. My learned junior

and instructing solicitor did serve the application

before the Court today on the solicitor for the

wife and the separate representative of the

children, at about 3 pm yesterday in Adelaide.

Both those parties were served by courier, and

there was a telephone call by Mr Lindsay as well.

HIS HONOUR: There is no affidavit of service.

MR TILMOUTH:  No, there is not, Your Honour. I can only

give that undertaking, and I could give an

undertaking, if Your Honour required it, that an

affidavit of service be lodged to that effect.

HIS HONOUR:  Yes, it was not a great deal of time to give to the respondents to be present at this application.

MR TILMOUTH:  No, it was not, Your Honour. Of course, our

initial application was intended to be ex parte and

we gave the notice as soon as we could, but we

agree it is a fairly short time.

HIS HONOUR:  It seems to me that you have to proceed on the footing that this is an ex parte application.

MR TILMOUTH:  Yes, may it please Your Honour. Your Honour,

I do not address you, unless you want to hear it,

on the basis of the original jurisdiction of the

Court coming through section 33 of the Judiciary

Act and section 75 of the Constitution. I would

submit it is clear, if all other things are made

out, that the Family Court is regarded as an

officer of the Court for relevant purposes and

what I would endeavour to do in persuading

Your Honour to make the order is to go to the

legislation first and then briefly to the facts.

Could I ask Your Honour, however, in looking

at the legislation, to bear. in mind the key dates. They are all in March of this year, 14 March when the original order for contempt was made by

Justice McGovern in the Family Court in

Adelaide - I beg your pardon, when the application

was made, and 26 March 1991 when the order was made

and the warrant was issued. Your Honour, the

reason why that might become relevant is that there

were amendments to the key provision, section 70A

of the Family Law Act, which took effect on

Herbert 2 19/9/91

24 April this year but, in our submission, the

relevant events took place before then.

Your Honour, could I go quickly to the Family

Law Act itself initially. As I have said, the key

provision which we deal with is section 70A, but

could I ask Your Honour to note that before it lie

section 70 which provides a mechanism for the

Family Court to deal with breaches of orders of the

court, the subject of custody or access orders

relating to children. All I would ask Your Honour

to note is that the remedy for those breaches come

in section 70AA and they involve, amongst other
things, the power of the court to issue a warrant,
section 70AA(2), the power of arrest on that
warrant, subsection (3), and also that it gives the

court the power to punish for that contempt.

HIS HONOUR:	Do you say that 70AA is linked to section 70?
MR TILMOUTH:	Only in the sense that section 70AA appears to

give the Family Court a civil contempt mechanism,

or quasi-criminal, whereas section 70A, in our

submission, deals separately with a criminal

contempt to be dealt with in the criminal court.

My only point in going to section 70AA,

Your Honour, was to make the point that there is a

remedy in the Family Law Court for breaches of

orders involving the alleged conduct here, and the

power to issue a warrant and to deal with the

person as a contempt of that court.

HIS HONOUR:  I do not know whether my Act is up to date, but

the way in which I read 70AA in the consolidation

to 14 January 1991 is that 70AA is linked to

section 112AD.

MR TILMOUTH: It is. It is linked in its turn to

section 112AD, which gives the power as well to

issue a warrant for contempts arising out of

breaches of orders of the court, and it is also

linked to section 112AE, which gives the power to

imprison for such contempt for up to 12 months.

Your Honour, I do not propose to outline those

provisions. My only point is that there is an

effective remedy, a civil remedy as it were, in the

Family Court, to deal with contempts in the nature

of breaching orders or taking children out of

Australia.

HIS HONOUR:	Am I right to think that the order which was made by Justice McGovern was issued in purported
exercise of the powers conferred by section 70AA?
MR TILMOUTH:	No, in purported exercise of any power under

section 70A alone. Your Honour will see, in

Herbert 3 19/9/91

paragraph 4 of the affidavit, and exhibit 2 to the

affidavit, that the application itself cited

section 70A; that the order paragraph 5 and

exhibit 3 also cited section 70A. It did not

purport to invoke section 70 or section 70AA or,

indeed, section 112 mechanisms or powers.	And that
is an essential first stepping stone in our

argument. It is clearly only purporting to invoke,

if it can, section 70A of the Act and, in essence,

we say that is a criminal provision which has

nothing to do with the internal or civil mechanism

that the Family Law Court has available to it.

HIS HONOUR:  What you say is that there was no power to

issue a warrant, under 70A?

MR TILMOUTH:  Exactly. And it is interesting to note as

well, Your Honour, in that context that section 70A

has itself no warrant mechanism, and we say the

simple answer for that omission is that it was

always contemplated that section 70A was dealing

with criminal provisions, and therefore the
ordinary criminal procedures would be available to

deal with it, namely, an indictment and so on.

HIS HONOUR:  Well then, the next question is why did you not

take this point to the Full Court of the Family

Court?

MR TILMOUTH: Well, with respect, Your Honour, there are a

number of reasons for that. In the first place,

may it please Your Honour, assuming that an

application was made to a single judge of the

Family Court to strike out the warrant or revoke

the order because it was groundless, or there was

no jurisdiction, which is really what we are

arguing, to make it under 70A, and a judge of the

Family Court ruled against us on that, in our

submission it is highly doubtful that there would

be a right of appeal to the Full Court. The order

as to jurisdiction, if it went against us, would be

in essence an interlocutory or preliminary order

and not a final order.

Section 94 of the Family Law Act talks about

decrees, judgments or orders and, in our

submission, in accordance with usual authority

appeals to the Full Court can only be on what we

sometimes call final orders. One must be guarded,

of course, in the Family Court in using the term

"final order" too widely.

HIS HONOUR:	Why was there not a right of appeal from the order made by Justice McGovern?
MR TILMOUTH:	In our submission it would not have been a

relevant order or decree. It would have merely

Herbert 4 19/9/91

been a type of interlocutory order or an interim

order under section 94.

HIS HONOUR:  You will need to convince me of that,

Mr Tilmouth.

MR TILMOUTH:  Your Honour, the authority we would invoke is

Yule v Junek, (1978) 139 CLR 1. We have copies of

the relevant part of the judgment. Could I hand

these to Your Honour.	They are not on our list of
authorities.

Your Honour, this involved a case where, as it

were, there was a transition signed between the

effect of the Matrimonial Causes Act and the Family

Law Act, and a judge of the Supreme Court of New

South Wales had heard preliminary argument on the

question whether a claim for damages for adultery
could still be maintained, despite the fact that

the Family Law Act had come into effect. That

single judge had held that the husband's claim for

damages was competent, was not a decision within

section 94 of the Family Law Act, from which an

appeal would lay to the Full Court of the Family

Court.

Your Honour, at page 14, which is the only

page that we have extracted for this afternoon's

hearing, Justice Mason, as he then was, but with

whom all the other Judges who sat agreed without

expressing any further opinion, said this at

page 14 about the appeal provision in section 94,

and this is the paragraph commencing at about

point 4:

One matter remains to be mentioned.

HIS HONOUR:  Was the section 94 at that time the same as

that which was substituted in 1979?

MR TILMOUTH:  Yes, it was, Your Honour. Your Honour can see

at about point 6 that His Honour talks about:

a person aggrieved by a decree -

and, as I understand it, Your Honour, the same

words are still in place because at about point 7: "Decree" was defined by s.4(1) -

of the Family Law Act -

so as to mean "decree, judgment or order -

and they are still the operative words as they

stand in the Act now.

Herbert 5 19/9/91

HIS HONOUR:  Yes.

MR TILMOUTH: Perhaps I could read on from that point:

and includes a decree nisi and an order

dismissing an application or refusing to make
a decree or order". The subsection, read in

the light of the statutory definition, makes

it clear that an appeal lies from a judicial

order, not from a mere answer to a question of

law arising in proceedings, in particular an

answer which of itself could not be decisive
of the rights of the parties unless and until
the primary judge dealt with the other

questions upon which he reserved judgment.

The consequence is that no appeal lay to the

Family Court from the reasons for judgment

delivered by Woodward J and the Full Court of
the Family Court had no jurisdiction to
exercise until such time as his Honour made an
order. In the absence of jurisdiction in the

Full Court, it is not easy to see how the jurisdiction of this Court could be invoked by

appeal. In truth the appellant should have

sought relief by way of prohibition and

certiorari directed to the Family Court on the

ground that it lacked jurisdiction to deal

with the matter.

There are differences, of course, on the facts but,

in our respectful submission, the nature of a

ruling, as it were, to use a neutral word, that I

have jurisdiction to deal with this contempt

application under section 70A is a preliminary

ruling falling short of a decree, judgment or order

in the relevant sense.

HIS HONOUR:	But an order was made by Justice McGovern.
MR TILMOUTH:	An order was made issuing the warrant, may it

please Your Honour but, in our submission, at that

time, of course, the issue of whether there was

jurisdiction was not taken and if an order was

made against us on that issue, in our submission,

it would probably not be appealable to the - - -

HIS HONOUR:  Why not?

MR TILMOUTH: Well, with respect, the best I can put it is

to use the words I already have and that is that

it is in the nature of an interim rather than a

final type of order.

HIS HONOUR:  Even if it is, what precludes it from going to the Full Court?

Herbert 6 19/9/91

MR TILMOUTH:  I accept, as a matter of grammar, that the

word "order" is clearly capable of embracing an

order like the order that Justice McGovern made

but, with respect, the order that we would be

really talking about would be a ruling either that

I have or do not have jurisdiction to hear the application for contempt under section 70A.

HIS HONOUR:	The order that you are objecting to is the order that a warrant issue. That is the order
which you seek to challenge by your writ of
prohibition.
MR TILMOUTH:	Yes, it is.
HIS HONOUR:	And the simple question is, why did you not take it to the Full Court?
MR TILMOUTH:	The short answer to that is, I suppose, as a

matter of procedure, that these proceedings were

deemed to be the better course.

Your Honour, can I add two further reasons why

that is so, in our respectful submission. The

second reason is this, that under section 70AA,

when a matter comes before the court on a warrant -

and, as Your Honour would have gathered from the

papers, if Mr Herbert comes back to the

jurisdiction the warrant would be executed on him

on Monday or whenever it was he came back - the

duty of the court under the contempt provisions is,

in effect, to deal with the application for

committal of contempt without delay and, in our

submission, the prime duty of the Court under

section 112 which essentially is the provision it

would be acting under if it proceeded to deal with

the matter is, in fact, to deal with the case

virtually straight away subject to any appropriate

adjournments and the like.

HIS HONOUR:  Do you mean 112AD?

MR TILMOUTH:  Yes, beginning with 112AD, that is the initial

procedure but, may it please Your Honour, in the

later provisions the court is enjoined in 12AP as

well, which is another provision which may be

applicable, to deal with the issue of contempt and,

Your Honour, going back to section 70AA which gives

the mechanism, subsection AA(3) requires the court

under subsection (a) to:

ensure that the alleged offender is brought

before a court having jurisdiction under this

Part before the end of the relevant period -

which is 24 hours, incidentally, and under

subsection (ii) of subsection (a):

Herbert 19/9/91

to take all reasonable steps to ensure
that ..... the person is so brought before a

court, the person on whose application the

warrant was issued.

And under section 70AA(4) the court is required mandatorily - I leave out (a) and (b), Your Honour, but just the introductory words in the rider -

the court shall, without delay, proceed to

hear and determine the application.

So, Your Honour, with respect, even if there was an

appeal to the Full Court subject to any orders that

the Full Court might make as to a stay or an early

hearing, nevertheless, the single judge seized of
the matter is required under the Act to proceed
with the substance of the contempt application

without delay.

HIS HONOUR:	I do not understand what that has to do with your presence in this Court.
MR TILMOUTH:	Your Honour, with respect, if Your Honour

pleases, if there was an appeal to the Full Court,

and if there were not a stay or an early hearing,

it may well be that by the time Mr Herbert got to this Court in the ordinary appeal process, if the

matter were to go that far on the jurisdiction

point, that he may well have been dealt with for

contempt, may have gone to gaol and have served the

period of the contempt order if it was a closed

period, before he could possibly get to this Court.

Another matter I was going to put - - -

HIS HONOUR: Well, you will not have any relief from this

Court unless a stay order is made anyhow.

MR TILMOUTH: That is really our point in a way, may it

please Your Honour, that by the time he gets to

this Court through the ordinary mechanisms of

appeal, it may well be that the subject-matter,

namely an order for imprisonment, if one is

made - - -

HIS HONOUR:  But you are suggesting that you should come to

this Court for a stay rather than going to the Full

Court for a stay.

MR TILMOUTH: That is true in a sense, but -

HIS HONOUR:  It is true in the only relevant sense, is it

not? I mean, the cases in this Court, Mr Tilmouth

- and I trust your attention has been drawn to them - Reg v Cook; Ex parte Twigg; Reg v Baker and Reg

v Ross-Jones; Ex parte Green, are very clear about

the practice to be followed in these matters. Now,

Herbert 19/9/91

I need to be satisfied that there is some real

justification for departure from that practice, and

at the moment I do not see it.

MR TILMOUTH:  Your Honour, I accept, with respect, what

those authorities say, and one would accept as well

the probably parallel traditional matter regarding

prerogative relief that it is always discretionary,

and if the Court takes the view that what is sought
can be effectively dealt with by, for example, the

appeal mechanism, that even though a prerogative

writ might go, the Court in its discretion would

refuse to allow it to go because there is an

available and effective remedy.

I accept what Your Honour puts to me,

therefore, about those cases, but in my submission,

all of that predicates that the Full Family Court would make an order of a stay in the first place.
And could I add this further argument as well:

there would be some doubt, even if the matter got
to the Full Court, on an order if there were an

order for committal for contempt, whether the Full

Court can give bail, as it were, pending the

hearing of the appeal. It is well known, of
course, in appeal provisions subject to any express
provision of an Act, that where imprisonment is in

execution or a contempt there generally is no power

to give bail on appeal. It may be, of course,

that a stay might be effective if one was given,

but nevertheless, in my submission, there is a real
doubt about the power of the Family Court to, in
effect, grant bail pending the hearing of an

appeal.

The second answer to that line of cases whose

authority and reason I do not dispute, of course,

comes from the Ross-Jones decision, Your Honour,

and that is that where there is a fairly clear case

for either want or excess of jurisdiction - it is

(1984) 156 CLR 185. The relevant passage is at

pages 194 to 195, Your Honour, and it speaks about

there being not an exception so much but a clear

principle that where there is a relatively clear

case as to excess or want of jurisdiction - this is

the judgment of Chief Justice Gibbs with whom the

other Judges agreed, I think, in this respect.

HIS HONOUR: Wit~ whom, I think, Mr Justice Mason agreed.

MR TILMOUTH:  Yes. This is at about point 6, Your Honour,

after the reference to the Australian Stevedoring

Industry Board case:

If, therefore, a clear case of want or excess

of jurisdiction has been made out, and the

Herbert 9 19/9/91

prosecutor is a party aggrieved, the writ will

issue almost as of right.

Now, the other thing to say about this matter, the High Court, of course, is that it also is

capable of invoking an interpretation of section 80

of the Constitution.

HIS HONOUR:  Has notice under section 78B been served?

MR TILMOUTH:  No, not as yet, Your Honour. They are in

draft form but they have not been served at this

stage and, of course, any court would be obliged

to hold any proceeding until they were served, but
they have not been served at this stage, or even

drawn up.

It does, may it please Your Honour, involve

potentially a very important question under

section 80. As the section 70A stood in March of

this year, it was described in terms as an

indictable offence, subsection (3). It carried, of

course, as Your Honour knows, a period of

imprisonment for three years and in the amendments

which took effect on 24 April this year,

subsections (3) to (6) inclusive were repealed by

omission. Does Your Honour have the provision

before you which is repealed now?

HIS HONOUR:  I have a provision which contains 70A(3)

to ( 6) .

MR TILMOUTH: Right. Well, they were omitted by the

amendment, Act No 37 of 1991 and took effect on

24 April this year, so as the section now stands

it simply prescribes three years imprisonment.

There is nothing in terms about it being

indictable or allowing for a summary procedure.

One argument may be that that evidence - it is not

our argument but since it is an ex parte case I

put it - one argument may be the deletion of those

mechanisms was meant to give the Family Court

jurisdiction to deal with 70A matters. There are

arguments against that, of course. The Crimes

Act, section 4G, defines as an indictable offence, any law against the Commonwealth carrying

12 months imprisonment or more, and that would

appear to, prima facie, apply here even though subsection (3) has been omitted.

May it please Your Honour, with respect, in

our submission there is an important argument as to

whether or not section 80 of the Constitution

touches, or qualifies, or strikes down, section 70A if it is sought to be invoked in the way that it is

Herbert 10 19/9/91

here. That, in its turn furnishes, in our

submission -

HIS HONOUR:  It either is or is not an indictable offence,

is it not?

MR TILMOUTH: That is right.

HIS HONOUR:  If the now repealed sections have application

to the present case, subsection (4) applies.

MR TILMOUTH: It would seem to, yes.

HIS HONOUR:  And if subsection (4) applies, then there can

be no summary trial except by consent.

MR TILMOUTH: That is true.

HIS HONOUR:  And is there not a decision of this Court that

the South Australian provision is valid in that

respect?

MR TILMOUTH:  I am not sure, with respect, which South

Australian provision - - -

HIS HONOUR:  The South Australian provision which allows

trial by a judge alone.

MR TILMOUTH:  Yes, Reg v Brown is an authority of this Court

that it is ineffective to give the right to trial

by judge alone in Commonwealth matters. An

accused person cannot elect out of his section 80

constitutional guarantee.

HIS HONOUR:  Cannot elect out of section 80?

MR TILMOUTH: In effect, yes.

HIS HONOUR:  Then, that might be an argument against the

validity of 70A(4).

MR TILMOUTH: That is right. Another argument might be, of

course - although Kingswell's case at the moment

stands in our way, but the minority in that case - I think Your Honour was part of that minority - was, I think, that - I hope this is not

putting it too simply - any offence under the laws

of the Commonwealth imposing two years or more is

indictable irrespective of whether Parliament

describes it as indictable or in some other way,

but, of course - - -

HIS HONOUR:  I do not think that view has thus far been accepted as a majority view in this Court

MR TILMOUTH:  Yes, it has. I accept that stands in our way

at the moment, and that is about three arguments

Herbert 11 19/9/91

beyond our better arguments and, of course, could I

just add, Your Honour, that there may be a question

of whether the amendments in April are

retrospective. Are they procedural or are they

substantive? Our argument clearly would be, of

course, they are not retrospective. They are

substantive, certainly if they purport to interfere with what must have been a constitutional guarantee

through the indictment process.

Could I add this as well, Your Honour, and I am sorry I interrupted, but another reason for this

Court being the better forum now is that the appeal provisions under the Family Law Act have a time

limit of one month and, of course, they expired by

late April of this year and, of course, any

application to appeal would have been well out of

time. There is doubtless, though I cannot put my
finger on the provision at the moment, power to

have an extension of time but, of course, that

would be discretionary.

HIS HONOUR:	Equally it is discretionary as to the delay in bringing these applications.
MR TILMOUTH:	Yes, indeed.
HIS HONOUR:	So that the discretion is equally to be overcome in one court or the other.

MR TILMOUTH:  Yes, it may. One difficulty, of course, the

prosecutor might face in seeking an extension of

time is, of course, that it might be said, "Well,

case, of course. On the other hand, I acknowledge if the point on appeal is such a point of law that

this point was not raised before Justice McGovern."

would finally deal with the matter and no more

evidence would be required, then the court might

more readily grant the extension of time. There	are several cases in this Court to that effect.	Of
course, our argument is entirely dependent, as we

would put it, on the papers.	We would clearly say
there is no need for any further evidence.	The
record is sufficient to mount the argument.

But in the end result, may it please

Your Honour, the factors indicating this Court is

the preferred forum in the exercise of the court's

discretion may have been put variously but, in our
submission, there is considerable doubt about
whether there could be an appeal from that order

for the reasons mentioned. There is a danger that

by the time Mr Herbert gets to this Court the

subject-matter would be gone. He may have served a

sentence, whether it be imprisonment or some other,

and there is by no means a guaranteed route in any

Herbert 12

event of appeal. It is out of time; it was not

raised, et cetera, and whatever view one

takes - although the primary point, of course, is
initially the proper interpretation of

section 70A - next following it, however, is the

question of section 80. That does not give us an

automatic right of access to this Court, of course,

but it is an element in the whole case which points

towards this Court rather than the Family Court.

HIS HONOUR:  Mr Tilmouth, your submissions seem to be made

on the footing that this Court, if it grants an

order nisi, will grant an injunction to restrain

proceedings.

MR TILMOUTH: Well, with respect, I did not mean to convey

that impression. That is also discretionary, of

course, and I would seek to be heard about that if

we got that far but, with respect, I have not

assumed that at all. Could I add this as

well - - -

HIS HONOUR: Well, if you have not assumed it, and it seems

to me that whatever risks there are in going to the

Full Court in the way of the matter being dealt

with by a primary judge, it is not going to be

alleviated by the grant of an order nisi.

MR TILMOUTH:  No. Your Honour, the other matter, of course,

is this: if the warrant stands at the moment it
requires Mr Herbert to be brought before the court
forthwith, in effect. The court is then enjoined
not only to deal with the case on the merits

without delay, but it also has the discretionary

power either to, it is not to grant bail but it is

to release on sureties which is tantamount to the

same thing - I have used bail as a simple way of

describing it - or it has the discretionary power to place Mr Herbert in custody. Of course, there

is no guarantee that the Family Court will not make

an order for release on recognizance pending the

outcome of these matters. If the coercive

mechanism of the Family Law Act is invoked through

the warrant mechanism, then it is entirely

discretionary for the court to either place him in

custody pending the outcome of these matters or to

release him on surety. And there again, if there

is such an order for custody, then the

subject-matter of the dispute relating to this
application might well be eaten up before it gets

here.

The other matter, could I put this and I hope,

with respect, this is not too bold a submission.

In our submission, on the face of the papers there

is plainly an arguable case for what we are putting

forward, that section 70A is a criminal mechanism

Herbert 13 19/9/91

within civil mechanisms within the Act. It, in nature and it was placed for convenience sake in the Family Law Act in the 70s, I think, but its
fact, replaced an old section in the Immigration

whole history has been one entirely of criminal

process.

We would submit that if our argument is, prima

facie, a reasonably available one that the chances

of the case getting to this Court if it does

involve an interpretation of section 80 and/or a

question of whether the amendments in April of this

year were retrospective, its chances of getting to

this Court must be reasonably strong.	As I said, I
do not put it too forcefully.

HIS HONOUR:  But not by way of a prerogative writ directed

to an order for the issue of a warrant.

MR TILMOUTH:  No. Through the appeal mechanism but, with

respect, is there any need, when the material is

essentially the same material as we have now, to

go through all of those courts when there is a

chance that it might end up in this Court in any

event because of the importance of the issues

raised. I acknowledge there are other cases, of

course, the effect of which, I think, is the Court

enjoys the benefit of reasoning of judges in

courts below. I acknowledge that is a factor

against us but nevertheless the merits, as it

were, are a factor - perhaps a lesser one but they

are a factor - which should weigh in, in our

submission, Your Honour's discretion.

Your Honour, I could put the arguments in

favour of invoking the jurisdiction of this Court

in other ways but essentially, I think, I would be

mounting the same argument just using different

wording.

HIS HONOUR:  Mr Tilmouth, let me put to you quite frankly my

concern about this case. I can see the force of

the argument that the only jurisdiction to issue a

warrant that lies in the Family Court is a

jurisdiction under section 70AA and that that is a

jurisdiction which is linked to the existence of

proceedings before the court under section 112AD,

but there are no proceedings before the court under

section 112AD and, therefore, there is no

jurisdiction to order the issue of a warrant. Now,

that seems to me to be a highly arguable case, so
arguable, in fact, that it seems to me that
wherever you raise it, it will receive the closest

attention either from the judge before whom this

matter is returnable or before a Full Court. It

equally seems to me, though this is a matter of

Herbert 14 19/9/91

inference, that the application was brought to this

Court because the legal advisers of the applicant
did not read those cases to which I have referred

and if that is so it seems to me that the

appropriate order for me to make is simply to

refuse the application.

MR TILMOUTH:  I understand Your Honour's difficulty, with

respect. I would essentially be repeating matters

that I have already argued but the real

difficulty, of course, is that Mr Herbert would be

arrested and he may well be incarcerated and that

is the main concern of him as prosecutor.

As to, with respect, Your Honour's comments

about reading the cases, may I assure Your Honour

we were aware of the legal principles which those

cases express which were essentially only the

traditional principles that on a prerogative

mechanism the Court will always - that is too

strongly put - consider refusing the relief even
though its made out if there is a mechanism readily

available to deal with it. These proceedings were

brought in recognition of those principles,

Your Honour. It may be advisedly, or unadvisedly,

but because of the matters I have put to you and

especially having regard to the apparent effect, or

one view of the apparent effect, of the April

amendments and any influence that section 80 might

have had on it.

HIS HONOUR:  Mr Tilmouth, there is one further question that

I should ask you, I think, and that is what is the

reason for the application being made at this stage

which is on the eve of the probable enforcement of the warrant when the warrant has been in existence

under an order made in March?

MR TILMOUTH: Essentially to avoid the risk of being

imprisoned before the substantial issue that we

are arguing now, or the merits of whatever

contempt may have been committed, is finally

determined.

HIS HONOUR:  But is there any reason why an appeal could not

have been brought to the Full Court of the Family

Court in March?

MR TILMOUTH:  I think not, Your Honour. Your Honour would

have noticed from the papers that my learned

junior and instructing solicitor only became

involved in these matters since 25 June this year

and my involvement in it, Your Honour, has been

quite recent, a matter of a few days, but the

answer to that must be, no, if it were considered,

of course.

Herbert 15 19/9/91

HIS HONOUR:	Yes.
MR TILMOUTH:	Your Honour, they are the only matters that I

can put to you. Your Honour did indicate to me a

moment ago that you were considering dismissal.

Would it be appropriate, Your Honour, if you were

considering that, that there could be liberty to

apply? By asking that, I only have in mind that

if something, as it were, goes wrong - if I can

put it that way - that there is an easy avenue

back to this Court should it arise.

HIS HONOUR:  Yes. Perhaps the appropriate order should be

one of adjournment.

MR TILMOUTH:  Yes, Your Honour has power under the rules to

do that.

HIS HONOUR:  What is important, I think, is that it should

be clearly appreciated by the profession that

applications for prerogative relief to this Court,

though they lie under section 75(v) of the

Constitution, are proceedings which should only be

brought when the relief that is substantially

sought is unavailable from courts which are

accustomed to the exercise of their jurisdiction

day by day. Apart from questions of cost and

inconvenience, this Court is not a court which is

concerned with the day to day exercise of the jurisdiction on superior Federal Courts. It is for
jurisdiction conferred either under the Family Law

that reason that I would tend to take a view of

this application which is unfavourable to its

success.

MR TILMOUTH:	May it please Your Honour.
HIS HONOUR:	Mr Tilmouth, I have another application to hear

this afternoon and I would prefer to reserve my

decision on your application until I have heard the

other matter with a view, however, to delivering

some brief reasons for decision in your matter

later in the afternoon.

MR TILMOUTH:  Your Honour, at the risk of having a last

word, I did mention Yule v Junek. Could I add the

reference to Reg v Watson; Ex parte Armstrong,

136 CLR 248 at 266.

HIS HONOUR:  And what does it say?

MR TILMOUTH: It says essentially the same thing. That was

a case where a Family Court judge had expressed

views about the credit of the parties prematurely

during an application and an application was made

to this Court for an injunction preventing him

Herbert 16 19/9/91

from continuing on the grounds of bias which the

Court granted. Chief Justice Barwick and

Justice Gibbs, as he then was, Justices Stephen and Mason, as they then were, at page 266 also gave consideration to the fact that an appeal could have been mounted but said that it would

have been inconvenient to allow him to complete

the proceedings when he was disqualified to hear

them. I acknowledge, of course, that is a

different situation and stronger, but part of our

point has been if Mr Herbert is for some reason or

another in custody while all of this goes on, it

would defeat his substantial rights in the end if

all of that happened before he could effectively

get a final order on the matters we have

endeavoured to litigate today.

HIS HONOUR:  Thank you, Mr Tilmouth. This matter will stand

adjourned until later in the afternoon.

AT 3.02 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 4.25 PM

HIS HONOUR:  In proceedings before the Family Court of

Australia in Adelaide, an order was made with
respect to the infant children of the marriage of

Owen Carl Ingram Herbert (the husband) and

Elvin Grace Herbert (the wife) on 5 February 1991

allowing limited access to the husband upon his undertaking not to remove the children from the care of the wife save and except as to periods of

alleging that the husband had removed the children	access. Subsequently on 26 March, 1991 the wife,
from the Commonwealth of Australia while the children were the subject of proceedings before the Family Court, obtained an order from the Family
Court constituted by McGovern J. in the terms following:

"That a warrant issue authorising and

directing the Marshal, all members of the the police forces of all the States and

Territories of the Commonwealth of Australia

to arrest the husband OWEN CARL INGRAM HERBERT

and to bring him before the Court on the first
day on which the Court shall sit next after

the arrest of the said

OWEN CARL INGRAM HERBERT or as soon thereafter

Herbert 17 19/9/91

as practicable to show cause why he should not be adjudged guilty of contempt of the Court in

that he is alleged to have breached the

provisions of Section 70A of the Family Law the marriage

(a) DUNCAN GEORGE INGRAM HERBERT born on the

17th day of January 1986 and

(b) MEREDITH ANNE OLIVIA HERBERT born on the

30th day of April 1987

from the Commonwealth of Australia while the

said children were the subject of proceedings

presently before the said Court."

On 26 March 1991 a warrant was issued out of

the Adelaide Registry in accordance with this order. It appears that the husband currently

resides at Santa Rosa, California, in the

United States of America and his solicitor has
arranged with the Registrar of the Family Court in

Adelaide for him to be brought before a judge of

the court at 2.15 pm on Monday next,

23 September 1991, "immediately upon the execution

of the ... warrant". The husband now applies for an
order nisi for prohibition directed to the Family

Court and an order in the nature of certiorari

quashing the warrant and an injunction to restrain

the execution of the warrant on the following

grounds:

"(a) that the said proceedings pursuant to

section 70A of the Family Law Act are

criminal proceedings which can only be

dealt with by a Court of competent

jurisdiction and not pursuant to a

warrant issued under section 70AA(l) of

the Family Law Act and/or under order 35

of the Family Law Rules;

(b)	subparagraph (a) hereof, carrying a
such proceedings as referred to in
maximum term of imprisonment of three
years and/or being for an indictable offence must be tried by a jury pursuant to section 80 of the Commonwealth of Australia Constitution Act."

Paragraph (b) appears to be based on

Family
provisions of section 70A(3) and (4) of the operation of which in respect of the instant case

may be a matter of debate.

Section 70AA which authorizes the issue of a

warrant is dependent upon the existence of

proceedings under section 112AD. The warrant,

Herbert 18 19/9/91

however, has been issued and appears to be based

upon an allegation of an offence under section 70A.

Sufficient is shown in the affidavit to

justify the grant of an order nisi to challenge the

validity of the order for the issue of the warrant

and the validity of the warrant, but relief against

the order for the issue of a warrant is available

and has been available on appeal to the Full Court

of the Family Court under Pt X of the Family Law

Act 1975 (Cth). No appeal has been instituted. In

these circumstances the application for prerogative

relief to this Court is, in my view, premature.

Following upon the observations by some

members of this Court in Reg 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; 33 ALR 660, at 661, the
judgments delivered in Reg 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

pages 193-195, 214-215, 217-218 and 222.

In these circumstances, although Mr Tilmouth has put forward arguments which are as exhaustive as the circumstances permit, I do not think that an

order nisi should be made for prerogative relief.

Rather, I think the appropriate order to make is

that the application should stand adjourned. One

would expect that the arguments which Mr Tilmouth

has put forward in support of his present

application are arguments which might readily

be entertained and considered by the Family Court

when and if those arguments are placed before that

Court, whether in original or appellate jurisdiction.

In those circumstances, the appropriate order

is to adjourn the present application. I might add

that even if an order nisi were granted, it would

be exceptional to restrain the execution of a

Herbert 19 19/9/91

warrant issued on the authority of a superior court
before the jurisdiction of that court to issue the

warrant was determined. In the circumstances, the

application, therefore, stands adjourned.

AT 3.02 PM THE MATTER WAS ADJOURNED SINE DIE

Herbert 20 19/9/91