Slater v Honourable Justice Higgins - [2001] FCA 549

FEDERAL COURT OF AUSTRALIA
Slater v Honourable Justice Higgins [2001] FCA 549
COURTS & JUDICIAL SYSTEM – application for prerogative relief against a judge of a Supreme Court and the orders made by a Supreme Court – jurisdiction of this Court to grant such prerogative relief – a judge of the ACT Supreme Court is not an officer of the Commonwealth – Court’s jurisdiction to order mandamus is limited to officers of the Commonwealth – certiorari goes only to an inferior court – ACT Supreme Court is a superior court.
PRACTICE & PROCEDURE – application to have applicant treated as vexatious – applicant initiated numerous proceedings relating to same issue – issue authoritatively determined by this Court against the applicant – criteria for declaring a person a vexatious litigant.
Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT), s 2
Family Law Act 1976 (Cth), ss 4(1), 9(1), 9(4), 31(1), 45(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), ss 3(1), 4(2), 5(6)
Law and Justice Legislation Amendment Act 1997 (Cth), Schedule 12
Judiciary Act 1903 (Cth), ss 39B(1), 39B(1A)
Supreme Court Act 1933 (ACT), s 3(2)
Federal Court Rules, O 21 r 1(b)
Slater v Honourable Jeffrey Allan Miles [1998] FCA 1370, applied
The Queen v Gray; ex parte Marsh (1984-85) 157 CLR 351, applied
Craig v The State of South Australia (1995) 184 CLR 163, applied
Ramsey v Skyring (1999) 164 ALR 378, applied
MERRILEE MARGARET SLATER v HONOURABLE TERENCE JOHN HIGGINS & ANOR
A81 of 2000
MADGWICK J
10 MAY 2001
MELBOURNE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A81 of 2001

BETWEEN:

MERRILEE MARGARET SLATER
APPLICANT

AND:

HONOURABLE TERENCE JOHN HIGGINS
FIRST RESPONDENT

THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:

MADGWICK

DATE OF ORDER:

10 MAY 2001

WHERE MADE:

MELBOURNE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant not be allowed to institute further proceedings without the leave of a judge of this Court.
3.The applicant pay the second respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
A81 of 2001

BETWEEN:

MERRILEE MARGARET SLATER
APPLICANT

AND:

HONOURABLE TERENCE JOHN HIGGINS
FIRST RESPONDENT

THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY
SECOND RESPONDENT

JUDGE:

MADGWICK

DATE:

10 MAY 2001

PLACE:

MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT
HIS HONOUR:

In this matter, the applicant seeks an order issuing a writ of mandamus against the first respondent, “directing him to Fulfil his Duty to Continue as if the Family Law Act had not been passed pursuant to s 9(1) of the Family Law Act 1975 and Proceed under the Matrimonial Causes Act as if the Family Law Act had not been passed in matter No MC 600 of 1975”. The applicant also seeks the issuance of a writ of certiorari “to squash the decision made on 17 November 2000 by the Respondent and be able to File to Continue.” The applicant further seeks by her application 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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Details

Case: [2001] FCA 549
Decision Date: 10 MAY 2001

CaseChat Overview and Summary

In the case of Slater v Honourable Justice Higgins, the applicant, Ms Slater, sought to challenge various orders made in relation to her 1976 matrimonial cause. The respondent, Justice Higgins, had dismissed several of Ms Slater's applications related to this matter, leading to the current application for judicial review. The Attorney-General of the Australian Capital Territory intervened, seeking to have the application dismissed on the grounds that it was frivolous or vexatious, or otherwise an abuse of process.

The primary legal issues before the court involved the dismissal of Ms Slater's application on the grounds of frivolity, vexatiousness, and abuse of process. Additionally, the court had to determine whether Ms Slater should be allowed to continue instituting further proceedings without leave from the court. The court needed to weigh the merits of Ms Slater's claims against the potential waste of judicial resources and the principle of finality in legal disputes.

The court found that Ms Slater's application was indeed frivolous and vexatious, as it was an abuse of process to continually pursue matters that had already been finally determined. The court noted that Ms Slater had instituted numerous proceedings over many years, all stemming from the same 1976 matrimonial cause. Despite the final determination of all issues in this matter, including property settlement, Ms Slater persisted in making further applications. The court concluded that this behaviour warranted the dismissal of her application and an order preventing her from instituting further proceedings without leave. The court also ordered Ms Slater to pay the costs of the second respondent.

The court dismissed the applicant's application, prohibited her from instituting further proceedings without leave, and ordered her to pay the second respondent's costs.

Orders

Orders of the court

1. The applicant’s application be dismissed.

2. The applicant not be allowed to institute further proceedings without the leave of a judge of this Court.

3. The applicant pay the second respondent’s costs.

Background

Background to the litigation

The first respondent filed a submitting appearance. The Attorney-General of the ACT sought to intervene and filed a notice of motion seeking orders from the Court that the application be dismissed on the ground that it is frivolous or vexatious or otherwise an abuse of process; that the application may not be continued without leave of the Court; and that the applicant may not institute further proceedings without leave of the Court. The applicant having no objection, the Attorney-General of the ACT was made a respondent to the application.Background facts The applicant has over a number of years instituted a number of proceedings, not only in this Court but also in the Supreme Court of the Australian Capital Territory, the Family Court and the High Court. All these proceedings have their genesis in a 1976 matrimonial cause, instituted in the Supreme Court in 1975, under the Matrimonial Causes Act 1959 (Cth), as it was then operative. On 28 July 1976, Connor J granted a decree nisi of dissolution of marriage based on the finding that the applicant’s husband had been guilty of cruelty to her. His Honour ordered that the applicant have custody of two of their six children and that Mr Slater pay the applicant spouse and child maintenance. However, his Honour reserved the question of property settlement. By oversight, Mr Slater was named in the decree nisi as Laurence Walter Slater rather than Walter Laurence Slater, his correct name. A Memorandum of the decree nisi having become absolute was issued by the Supreme Court on 10 September 1976, again with Mr Slater incorrectly named. On 28 October 1993, the applicant filed a notice of motion in the Supreme Court seeking orders for the finalisation of the property settlement, reserved by Connor J in the matrimonial cause. On 29 November 1993, Higgins J transferred the matrimonial cause to the Family Court. On 5 July 1994, Treyvaud J of the Family Court, made orders to effect a division of property between the applicant and her former husband. Ms Slater appealed to the Full Court of the Family Court and had some limited success. The orders were altered in her favour by the Full Court on 10 August 1995, thereby finally concluding the division of property between the applicant and her former husband. On 4 October 1994, the applicant filed a purported notice of motion in the Supreme Court in the matrimonial cause seeking orders that her former husband transfer his interest in a property they owned and that he pay her compensation. The notice of motion was dismissed by Higgins J. The applicant then filed another notice of motion on 18 October 1994 seeking the same orders. This notice of motion was dismissed by Miles CJ on 28 October 1994. His Honour ruled that the orders of Treyvaud J were a settlement of the Slaters’ property and, accordingly, that the matrimonial cause had been finally determined. Furthermore Miles CJ held that, as a result of the transfer order of Higgins J and the proclamation made under s 40(3) of the Family Law Act 1976 (Cth), the Supreme Court no longer had jurisdiction to entertain the applicant’s cause. Miles CJ also ordered that no further application be filed in the matter without an order of a judge in chambers.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MADGWICK J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MADGWICK J

Full text does not contain this section.

BETWEEN:	MERRILEE MARGARET SLATER APPLICANT
AND:	HONOURABLE TERENCE JOHN HIGGINS FIRST RESPONDENT THE ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY SECOND RESPONDENT
JUDGE:	MADGWICK
DATE OF ORDER:	10 MAY 2001
WHERE MADE:	MELBOURNE (HEARD IN CANBERRA)

JUDGE:	MADGWICK
DATE:	10 MAY 2001
PLACE:	MELBOURNE (HEARD IN CANBERRA)