Stanbridge, Dennis v Deputy Registrar Ho

[1996] FCA 468

FEDERAL COURT OF AUSTRALIA  )No. QG 202 of 1995
QUEENSLAND DISTRICT REGISTRY    )
GENERAL DIVISION  )

BETWEEN:               DENNIS STANBRIDGE

Applicant

AND:  DEPUTY REGISTRAR HO
  and

DEPUTY REGISTRAR GUY BURRIDGE
  and

SENIOR REGISTRAR M. DITTMAN

Respondents

MINUTES OF ORDERS

JUDGE MAKING ORDER:  Drummond J
DATE OF ORDER:  12 June 1996
WHERE MADE:  Brisbane

THE COURT ORDERS THAT:

1. The application filed 22 December 1995 and the amended application filed 14 May 1996 be struck out.

1. The applicant pay the respondents’ costs of and incidental to the entire proceedings.

NOTE:           Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

FEDERAL COURT OF AUSTRALIA  )No. QG 202 of 1995
QUEENSLAND DISTRICT REGISTRY    )
GENERAL DIVISION  )

BETWEEN:               DENNIS STANBRIDGE

Applicant

AND:  DEPUTY REGISTRAR HO
  and

DEPUTY REGISTRAR GUY BURRIDGE
  and

SENIOR REGISTRAR M. DITTMAN

Respondents

REASONS FOR JUDGMENT

By application filed 22 December 1995 Mr Stanbridge brought an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review decisions said to have been made by three Deputy Registrars of the Family Court to refuse to issue, at his request, subpoenas to witnesses in proceedings in which Mr Stanbridge was then involved in the Family Court.

By amended application filed on 14 May 1996, Mr Stanbridge seeks orders under the Administrative Decisions (Judicial Review) Act that these three Registrars of the Family Court be referred to the Public Prosecutor for the Commonwealth and to the Federal Police of Australia for investigation and prosecution for certain breaches of the Crimes Act 1914 (Cth)  they are alleged to have committed. 
The respondents, by notice of motion which is before me today for determination, seek an order striking out the proceedings.

At the time Mr Stanbridge filed his first application in December 1995 he was involved in litigation in the Family Court.  That litigation concluded with a judgment by Hilton J in January 1996.  One of the respondents to the present proceedings, Mr Dittman, has gone on oath to say that he was not involved in the decisions to refuse to issue the subpoenas Mr Stanbridge sought.  There is no challenge to what he has to say.

Mr Ho, another of the respondent Registrars, says that on 5 December 1995 he refused to issue a subpoena on Mr Stanbridge's request directed to Auscript on the grounds the subpoena was oppressive.  Mr Burridge, the third of the Registrar respondents, has deposed to his refusal to issue subpoenas sought on 14 December by Mr Stanbridge in respect of 10 persons on the ground that the applications for the subpoenas were vexatious and oppressive.

So far as the original application in seeking orders directed to Mr Ho's refusal of the subpoena to Auscript is concerned, even if the Court has power to review Mr Ho's decision, it could not grant any relief which would be of any assistance at all to Mr Stanbridge.  The subpoenas were sought to enable Mr Stanbridge to adduce evidence in the proceedings in the Family Court.  Those proceedings, as I say, terminated in January 1996 with Hilton J’s judgment.  Nothing this Court could do, even if it had power and were prepared to exercise that power to review Mr Ho's refusal to issue subpoenas, could touch that Family Court judgment or assist Mr
Stanbridge in any way in challenging that Family Court judgment.  Mr Stanbridge’s judicial review application in respect of Mr Ho is doomed to fail for that reason and so should be struck out.

The same consideration requires the dismissal of the application to review Mr Burridge's refusal to issue subpoenas directed to the 10 persons that I have already mentioned.  In the case of the decision by Mr Burridge, there is a further ground that is fatal to the application having any prospects at all of success.  The evidence before me indicates that Mr Stanbridge sought, in effect, a review of Mr Burridge's refusal to issue the subpoenas by Hilton J during the course of the trial before that judge which ended in the judgment that I have referred to.  Under O 40, r 5 of the Family Law Rules, the decision of Registrar Burridge to refuse to issue the subpoenas on the ground that the application for the subpoena was vexatious is reviewable by a judge of the Family Court.  Mr Stanbridge has exercised his right to seek review of those proceedings.

He can, moreover, in an appeal under Part X of the Family Law Act, litigate the correctness of Hilton J’s decision and the denial he alleges of the opportunity to adduce relevant evidence before Hilton J in the Family Court proceedings.  He is aware of his right to appeal the decision of Hilton J and, in that context, to challenge Hilton J’s refusal to review the decision of Registrar Burridge.  He says he intends to exercise that right.  He explains his failure to appeal until this time because he was in custody and an appeal would have interrupted the running of his sentence and thus prolonged his time in custody.  But he was released on 24 April 1996.

Section 10 (2) (b)(ii) the Administrative Decisions (Judicial Review) Act empowers this Court, in its discretion, to refuse to grant an application for review of the kind Mr Stanbridge has made in relation to Mr Burridge's decision if adequate provision is made by any law other than the Administrative Decisions (Judicial Review) Act under which the applicant is entitled to seek a review by another court of that decision.  As I have said, Mr Stanbridge has a full opportunity in the context of an appeal under Part X of the Family Law Act from Hilton J’s decision to ventilate his complaints about the action of Registrar Burridge which he says, in effect, denied him the opportunity to put relevant evidence before the Court.  The proceedings against the three District Registrars are doomed to fail and in my opinion should be struck out.  I have reached this conclusion without it being necessary to decide whether this Court has any power to review the decisions of officers of the Family Court made under the rules of that Court.

So far as the amended application is concerned, it seems to me that the only possible head of power under which this Court might, in an appropriate case, grant orders of the kind sought is the power conferred on this Court by s 39B the Judiciary Act 1903 (Cth) to grant a mandamus against an officer of the Commonwealth.  Whether decisions involving the exercise of the discretion vested in the police to investigate complaints of crimes and the decisions involving the exercise of the prosecutorial discretion are reviewable does not need to be determined.  But it is fundamental to a claim for a mandamus that before any occasion arises to consider whether the discretion to grant such relief should be exercised, the applicant must show that there has been a refusal by the Commonwealth officer to perform a duty cast by law on that officer.

The evidence before me is totally silent on that issue.  It in fact goes only so far as to show that Mr Stanbridge has made complaints to the relevant authorities about the conduct of the Registrars and that those complaints have been formally received.  Mr Stanbridge, in the course of argument, acknowledged the difficulties he faces in seeking the relief claimed by the amended application and asked that I adjourn the amended application to see if the relevant authorities will take up the complaints, in the sense of investigating them and prosecuting the Registrars.  But that seems to me to be a wholly wrong course.  It is not, in my opinion, open to a litigant to bring proceedings before he has any accrued cause of action and then to argue that those proceedings should be allowed to remain on foot so that he can see whether he might not, at some time in the future, acquire a cause of action.  It seems to me that the amended application for those reasons is also entirely misconceived and should be struck out.

I see no reason to do anything other than apply the ordinary rule as to costs and I will therefore order that Mr Stanbridge pay the respondents’ costs of and incidental to the entire proceedings.

I certify that this and the preceding four
pages are a true copy of the reasons
for judgment of the Honourable
Justice Drummond.

Associate:

Date:  12 June 1996