Re Walsh; Ex parte Sokolovic

[1992] HCATrans 175

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IN THE HIGH COURT OF AUSTRALIA

Registry	No Cll of 1992
Re:  THE HONOURABLE JUSTICE GEOFFREY INNES WALSH, a

Judge of the Family Court

of Australia

Respondent

Ex parte:

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Prosecutor

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

Copyright in the High Court of Australia 1 5/6/92

AT SYDNEY ON FRIDAY, 5 JUNE 1992, AT 8.47 AM

MR L. ROBBERDS, QC:  I appear with my learned friend,

MR s. THOMAS. for the prosecutor. (instructed by Phillips Fox)

MS A. AINSLIE-WALLACE: If the Court please, I appear in the

lower court for the child in the matter. We are

here by reason of a direction made yesterday,

although we are not, I do not believe, strictly a

party to the application before Your Honour this

morning. The wife is appearing in person below and

appears before you this morning in person.

HIS HONOUR:	Mrs Borthistle, is it?
MRS C. BORTHISTLE:	Yes, Your Honour.

HIS HONOUR: Thank you. Yes, Mr Robberds.

MR ROBBERDS:  Your Honour, this is an application for an

order nisi for a writ of prohibition directed to
His Honour Mr Justice Walsh, a judge of the Family

Court. The application is dated 3 June and the

affidavit in support is that of Milorad Sokolovic

dated 3 June.

Your Honour, before I outline the grounds

relied upon, could I bring Your Honour's attention

to section 94(1.AA) of the Family Law Act.

HIS HONOUR:  Yes. I propose to bring it to your attention

also, Mr Robberds. Why should this Court be

involved in these proceedings at this stage?

MR ROBBERDS:  I understand that on the day that the events

arose, when the application for His Honour to

disqualify himself arose, there was a discussion

.between His Honour and counsel as to the

appropriate method of challenging His Honour's

refusal to disqualify himself.	I understand at
of challenging it was to come to the High Court and that time it was thought that the appropriate means	that that provision in the Family Law Act would not
be available whilst the court was continuing to
hear the proceedings before His Honour.

HIS HONOUR:  I would have thought that possibly the

subsection was included precisely for that reason.

MR ROBBERDS: With respect, Your Honour, I agree with that.

On my reading of the subsection it seems to be

directed to giving the parties a right, in the

middle of the proceedings, to go off to the Full

Court.

HIS HONOUR:  Yes. It puts beyond doubt what might have been

arguable, whether a decision not to disqualify

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oneself was really an appealable decision within

the framework of the Act but that amendment, which

I think came in in 1987, puts it beyond any doubt

whatsoever.

MR ROBBERDS:	I respectfully agree with that, Your Honour.
HIS HONOUR:	And unless I can be persuaded that there is

some reason why this Court should be involved at

this stage, Mr Robberds, I would not see any reason

why we should entertain the application.

MR ROBBERDS:  The first reason I would advance is that there

was a discussion between counsel and His Honour on

the day in question when it was thought that it was

not possible to go to the Full Court - - -

HIS HONOUR:  Do you mean within the terms of the section or

for mechanical reasons or - - -

MR ROBBERDS:	It may have been, Your Honour, that it was not appreciated that the power existed on that day.
HIS HONOUR:	I have read the transcript, or such of the

transcript as accompanied the application, and I do

not think there is any reference iri that

transcript, is there?

MR ROBBERDS:	No, it is not, Your Honour.
HIS HONOUR:	In any event, Mr Robberds, whatever discussion

took place cannot really affect this application,

unless of course it points to some reason why this

Court should entertain the application.

MR ROBBERDS:  The only reason I can advance arising out of

that, Your Honour, is that the matter has been

prepared and we have come here this morning.	I
cannot take it any further than that.

HIS HONOUR: This Court, as you know, has said on a number

of occasions that where there is a right of appeal,

then the Court would be slow to exercise its

supervisory jurisdiction and for very good reasons.

MR ROBBERDS:  Your Honour, the only other reason I could

advance is this, that it might be possible for the

High Court to dispose of the matter before the

matter could be disposed of in the Family Court.

It is important, with respect, that this

application which is before Mr Justice Walsh be

determined in the child's interest as quickly as

possible. I am not now seeking to forum shop,

Your Honour, but merely to say as a ground to

quicker than in the Full Court of the Family Court.

support the reason why we are here is that the High

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HIS HONOUR:  That can only be a matter of speculation,

Mr Robberds, and in any event, if that is the

reasoning, there might be a great deal to be said for the matter proceedings to a conclusion - that

is the substantive hearing - as quickly as possible

and the parties then knowing exactly where they

stand in relation to all matters.

MR ROBBERDS:  Your Honour, there is a problem with that in

that the case was set down for five days this week.

On Monday His Honour was ill and could not commence

the matter.	The proceedings went all day on
Tuesday.	On Wednesday, because of the indication

that these proceedings would be commenced,

His Honour adjourned until this morning.

His Honour is only available until 1 o'clock today,

then has to return to Melbourne and has other

duties taking him up right through until September.

So it is not possible for His Honour to deal with

this case at the earliest until September.

HIS HONOUR: I can appreciate the problems that that gives

rise to but it does not seem to me they really bear

upon this matter because if one assumes, for

instance, that I proceeded and granted an order

nisi, the matter would have to take its place in

the High Court list and that would certainly put it

some time ahead.

Mr Robberds, I am afraid that I am not

persuaded - indeed, I am of firm opinion that the

Court should not entertain the application. The

only question that comes to my mind is whether I

should simply dismiss it now or whether there is

any reason why it should just remain adjourned in

the list to be brought on if there is good reason

why it should. But it seems to me the parties

would appreciate their position better if it was

simply dismissed. It can be brought on again, I

would have thought.

MR ROBBERDS:  Your Honour, the only reason I can really

advance as to why the High Court should deal with
the matter is it might get an earlier disposal here

than before the Full Court of the Family Court.

HIS HONOUR:	I just do not know the answer to that.
MR ROBBERDS:	And I can not take it any further than that,

Your Honour. Because of that amendment, and

because of what the High Court has said in other

cases, it is quite clear what the High Court's

attitude would be to this matter.

HIS HONOUR:  If I were to dismiss the application for the

reason that I am minded to do so, it could not
operate as any sort of bar to the point being

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raised in the context of an appeal against a

decision - that is an appeal against the decision

to disqualify - or an appeal against that decision

as part of some overall appeal.

MR ROBBERDS:	No.
HIS HONOUR:	Thank you. Mrs Borthistle, do you wish to say anything in this matter? There is no particular
reason why you should, since I have indicated my
intention to dismiss the application.
MRS BORTHISTLE:	No, Your Honour.

HIS HONOUR: For the reasons that I have given, essentially

that the Family Law Act does provide expressly a

right of appeal in section 94(1.AA) "from a decree

or decision of a Judge ..... rejecting an application

that he or she disqualify himself or herself from

further hearing a matter", this Court should not

entertain the present application for a writ of

prohibition against the Judge hearing the custody

proceedings that have given rise to this

application. There is a clear right of appeal in

the Family Law Act and no reason has been offered

why this Court should entertain the application at

this stage other than a suggestion by Mr Robberds

that the return of an order nisi before the High

Court might take place earlier than an appeal to

the Full Court of the Family Court.	That can only
be a matter of speculation.	In any event, it seems

to me to be good reason why this matter should

proceed to a conclusion, when the parties can then

assess their position generally, rather than seek

to fragment the matter at this stage by the present

application.

The application will therefore be dismissed.

MR ROBBERDS: If Your Honour pleases.

AT 8.56 AM THE MATTER WAS ADJOURNED SINE DIE 5/6/92