Srikantha, An application by

[2006] HCATrans 147

[2006] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M138 of 2005

In the matter of –

An application by DR SRI SRIKANTHA for leave to issue a proceeding

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 10 MARCH 2006, AT 10.59 AM

Copyright in the High Court of Australia

HIS HONOUR:   The application which the applicant seeks to issue would, if issued, be an abuse of the process of the Court.  It is in part, at least, unintelligibly expressed and reveals no arguable ground for the relief sought.  Leave to issue the process is therefore refused. 

Nothing further?

MR S. SRIKANTHA:   May I have leave to address the Court, sir?

HIS HONOUR:   Yes.  What did you want to address the Court about, Mr Srikantha?

MR SRIKANTHA:   I do concede it is a difficult case.  I just heard your reasons that it would be an abuse of process if this case was heard in the High Court.  That being so, the primary problem here, sir, is that the prerogative writ that is sought of prohibition and certiorari originates from a final trial on 15 September 2005 in the Family Court of Australia.

Now, part of the exhibits to support the writ in the High Court included a transcript of that proceeding on that day before Mr Young as the judge of the Family Court.  The problem which arises is that the due legal standard was not applied in the sense that almost no evidence was given, hardly any evidence was accepted, no submissions produced or cross‑examination occurred on that hearing.  One of the reasons for that is when it was listed for the final trial in the directions hearing of the Family Court I appeared and I sought that the proceedings should be stayed on the grounds that there were a number of outstanding matters of law that needed to be addressed first before the file could be concluded.

Now, again, it is part of the exhibits of details of that directions hearing in the Family Court of how, I suppose, the standard of an ordinary, prudent, decent person would appear that the Registrar sitting instructed one party how to win an undefended one party final trial and listed it as such.

HIS HONOUR:   Mr Srikantha, I cannot give you legal advice, you understand that ‑ ‑ ‑

MR SRIKANTHA:   I do, sir.

HIS HONOUR:   ‑ ‑ ‑ but there was a hearing, you say a defective hearing, before Justice Young in the Family Court, is that right?

MR SRIKANTHA:   Very much so, sir.

HIS HONOUR:   Did you appeal to the Full Court of the Family Court from that?

MR SRIKANTHA:   Sir, the issues relating to children’s matters was appealed but issues other than that was brought to the High Court under a prerogative writ and the first ground to see whether the orders were properly made.

HIS HONOUR:   If the orders were not, as you say, proper or there was some defect on the basis of an apprehension of bias or for any other reason in the hearing before Justice Young, those matters are justiciable or would have been justiciable in the Full Court of the Family Court.

MR SRIKANTHA:   May I have leave to address that point, sir?

HIS HONOUR:   No, because I cannot do any more for you, Mr Srikantha.  There is no jurisdictional error or anything of that kind which your papers demonstrate which would allow me to gainsay the order of Justice Hayne.  There is just nothing that I can lawfully do for you as the High Court.  All I am saying to you is that perhaps you may have had a remedy if what you say is correct, and only if what you say is correct, in the Full Family Court.  I would think that it would be fairly futile, but you might be able to apply to that court for an extension of time within which to appeal or something of that kind.  I am not advising you to do that, Mr Srikantha.

MR SRIKANTHA:   No, sir, I am aware of that avenue available.

HIS HONOUR:   I cannot advise you and I do not know all the facts.  I only know what is in the papers that you have put before me and of course the question before me is a narrow question, as you would understand.  It is concerned with prerogative writs.  So there is no point in your addressing me further.  There is just nothing I can do for you, I am afraid.

MR SRIKANTHA:   Can I just say one more statement?

HIS HONOUR:   Yes.

MR SRIKANTHA:   The prerogative writ tries to address three issues, which is error of law, procedural fairness or basically unfairness and the third thing is the error of facts.  Now, that can all be proven but then if you say that that is not enough grounds to bring it into the High Court, I do accept that, your Honour.

HIS HONOUR:   Well, you have not proved any jurisdictional error or apprehension of bias or unfairness so far here and all I am saying to you is that even if those matters could be made out, you could have made them out, if they are available, in the Full Court of the Family Court.  There is nothing I can do for you in these proceedings.  Anyway, I publish my reasons.  Thank you.

AT 11.06 AM THE MATTER WAS CONCLUDED