Thompson v Kane

[2013] FCA 862

FEDERAL COURT OF AUSTRALIA

Thompson v Kane [2013] FCA 862

Citation:	Thompson v Kane [2013] FCA 862
Parties:	PETER JAMES THOMPSON v TERESA KANE, JUDGE SPELLEKEN OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA and THE COMMONWEALTH OF AUSTRALIA
File number(s):	QUD 206 of 2012
Judge(s):	GREENWOOD J
Date of judgment:	26 August 2013
Catchwords:	PRACTICE AND PROCEDURE – consideration of an urgent interlocutory application seeking an injunction in the exercise of the Federal Court’s jurisdiction under the s 39B(1) of the Judiciary Act1903 (Cth)
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth) Family Law Act 1975 (Cth), s 94AAA(1)(a) Family Law Rules 2004 (Cth), r 1.14, r 22.03, r 22.11(3) Judiciary Act1903 (Cth), s 39B(1)
Cases cited:	Thompson v Kane (No. 2) [2012] FCA 763 - cited Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 - cited Craig v South Australia (1995) 184 CLR 163 - cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 – cited
Date of hearing:	23 August 2013
Date of last submissions:	23 August 2013
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	35
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	Australian Government Solicitor, Mr M Hanson

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 206 of 2012

BETWEEN:

PETER JAMES THOMPSON
Applicant

AND:

TERESA KANE
First Respondent

JUDGE SPELLEKEN OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent

THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	26 AUGUST 2013
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The interlocutory application of the applicant in the principal proceeding is dismissed. 

2.The costs of and incidental to the interlocutory application are reserved to the determination of the principal application.   

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 206 of 2012

BETWEEN:

PETER JAMES THOMPSON
Applicant

AND:

TERESA KANE
First Respondent

JUDGE SPELLEKEN OF THE FEDERAL CIRCUIT COURT OF AUSTRALIA
Second Respondent

THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	GREENWOOD J
DATE:	26 AUGUST 2013
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. These proceedings concern an urgent interlocutory application by the applicant in the principal proceeding, Mr Peter Thompson, in which Mr Thompson seeks an order that an urgent injunction “issue forthwith to prevent the court below from acting on any orders subject to review in these proceedings until determination of these proceedings”. 

2. Apart from this order, Mr Thompson seeks orders that there be “prompt extraction of the above Sealed Order into the hands of the Applicant”; within three days of this urgent ex parte hearing, the application be served upon the respondents for a date to be nominated by the Registry for the hearing of the remainder of the application; and the applicant be given leave to “issue such subpoenii to produce documents as in [Mr Thompson’s] opinion are relevant to these proceedings”. 

3. The respondents to the application are Ms Teresa Kane, the (Appeals Registrar of the Family Court of Australia), Judge Spelleken, (a Judge of the Federal Circuit Court of Australia), and the Commonwealth of Australia. 

4. Mr Thompson sought leave to be represented by Mr Bell.  Leave was refused in light of the considerations reflected in Thompson v Kane (No. 2) [2012] FCA 763.

5. The background circumstances to the application are these. 

6. Mr Thompson is a party to proceedings in the Federal Circuit Court of Australia exercising jurisdiction under the Family Law Act 1975 (Cth) and has been a party to at least three appeal proceedings before the Family Court of Australia.  In the former Federal Magistrates Court of Australia, a range of orders were made in proceedings between Mr Thompson’s wife, Ms Carmel Thompson, and Mr Thompson which were the subject of a number of appeals to the Family Court of Australia. 

7. On 1 November 2011, Judge Spelleken (then a Magistrate of the Federal Magistrates Court of Australia), made 12 orders in relation to a “property pool” concerning property the subject of orders for the distribution of “interests” as between Mr Thompson and Ms Thompson in the pool assets.  Those orders included orders that Mr Thompson relinquish any interest he may have had in particular accounts and motor vehicles, tools in his possession and other particular assets.  The orders also contemplated that Ms Thompson be appointed “trustee for sale” of a particular property at Gympie and that the proceeds of sale be distributed in the particular way set out in the orders. 

8. On 21 December 2011, Judge Spelleken (made orders in her Honour’s then capacity as a Federal Magistrate) staying the orders made on 1 November 2011 pending the determination of Mr Thompson’s appeals to the Family Court of Australia, or earlier order. 

9. On 21 December 2012, the Family Court of Australia (May, Thackray and Strickland JJ) dismissed Mr Thompson’s Appeals, Numbers 31, 32 and 95 of 2011.  The Full Court also dismissed applications of Mr Thompson filed on 13 March 2012 and 27 July 2012. 

10. On 25 July 2013, Judge Spelleken made orders on the application of Ms Thompson, that the order made on 21 December 2011 staying the operation of the orders made on 1 November 2011 be discharged.  Judge Spelleken made 14 other orders that day.  Order 2 required Mr Thompson, on or before 4.00pm on 10 August 2013, to deliver up vacant possession of the Gympie property the subject of the previous sale order, in good and habitable condition.  Order 3 conferred on Ms Thompson the right to sole use, possession and occupation of the property to the exclusion of Mr Thompson.  Further orders were made in relation to the sale of the property and the exercise of powers by Ms Thompson as trustee for sale of the property. 

11. Mr Thompson’s complaint articulated from the Bar table in response to my questions, in relation to these orders, is said to be that when Ms Thompson’s application, which was ultimately the subject of the orders of 25 July 2013, came on for hearing in June 2013, Mr Thompson thought, understood or believed, that the listing of his application was simply to be a mention date or a directions hearing.  He says he was ill and was unable to attend that day.  He says that his son attended on his behalf although he may not have formally appeared for Mr Thompson, because the orders made 25 July 2013 record that Ms Gordon, Solicitor, appeared for Ms Thompson and there was “no appearance by the respondent”.  The orders that day also record that the Court “reserved its decision”.  The orders suggest that the application was made and heard with the decision being reserved.  Mr Thompson says that his son reported that nothing happened that day and the matter was, in effect, adjourned.  Mr Thompson says that orders were made on 25 July 2013 and he received the orders in the mail, requiring him to vacate the premises by 4.00pm on the afternoon of 10 August 2013. 

12. Mr Thompson relies upon an affidavit sworn 12 August 2013 and a further affidavit sworn 16 August 2013.  In the affidavit sworn 12 August 2013, Mr Thompson says at para 10 that a Court date of 28 June 2013 was advised for the hearing of Ms Thompson’s application, as a “mention only”.  The application was mentioned that day and Mr Thompson’s son, Zachary, attended on his behalf.  Mr Thompson says that no orders were discussed, foreshadowed or made that day.  He says that no submissions were asked for or accepted.  He says that no suggestion was made by Judge Spelleken that orders would be made in consequence of the mention, that day.  Subsequently, on 29 July 2013, the orders made on 25 July 2013 were sent to him by mail.  Mr Thompson makes the same contentions in paras 10 and 24 of his affidavit sworn 16 August 2013. 

13. Upon receiving the orders of 25 July 2013 in the mail, Mr Thompson says that he was greatly taken aback. 

14. Mr Thompson now seeks, by this interlocutory application, an injunction in the way described earlier in these reasons directed to Judge Spelleken, Ms Kane and the Commonwealth (and the Federal Circuit Court of Australia).  Judge Spelleken and Ms Kane are officers of the Commonwealth.  

15. It should be noted that Mr Thompson has not filed an appeal from the orders of Judge Spelleken of 25 July 2013.  Nor has Mr Thompson moved to set aside the orders on the basis of his contention about the nature of the hearing in June which was said to be procedural in nature but which ultimately resulted in substantive orders being made in further disposition of the matters in controversy between Ms Thompson and Mr Thompson, consequent upon the determination of the appeals to the Family Court of Australia. 

16. Section 94AAA(1)(a) of the Family Law Act 1975 (Cth) provides that an appeal lies to the Family Court from a decree, judgment or order (s 4 of that Act) of the Federal Circuit Court of Australia exercising original jurisdiction under the Family Law Act 1975. Rule 22.03 of the Family Law Rules 2004 (Cth) provides that a notice of appeal, including a notice of appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made. By rule 1.14, a person may apply for an extension of time to appeal. That application is heard by a Judge of the Family Court of Australia. The filing of a notice of appeal does not automatically stay the operation of the order appealed from. A separate application for a stay must be made, if a stay is sought, and that application can only be filed after a notice of appeal has been filed. An application for a stay must be filed in the Registry of the Court in which the order under appeal was made, and be heard by the Federal Circuit Court Judge who made the order from which the appeal is made (rule 22.11(3)).

17. It should also be noted that Mr Thompson did not seek leave to appeal to the High Court of Australia from the orders of the Full Court of the Family Court made 21 December 2012 dismissing his appeals. Mr Thompson says, in effect, that an application for supervisory Judicial Review of the decision and orders made by the Family Court of Australia (and orders of either Judge Spelleken or FM Spelleken) was made before the High Court of Australia seeking to invoke the original jurisdiction of that Court to grant relief in the form of the Constitutional writs under s 75(v) of the Constitution.

18. Apparently, the High Court dismissed that application.  That probably followed because Mr Thompson was, in effect, seeking to re‑agitate questions on the footing of contended jurisdictional error, which were, in truth, questions of contended error in the exercise of jurisdiction, which might properly have been the subject of an application for special leave to appeal on grounds of demonstrated error which application was never made, or, to the extent that the questions related to orders made by Judge Spelleken (either as a Federal Magistrate exercising the jurisdiction of that Court or as a Federal Circuit Court Judge), other appeal mechanisms existed which were either not invoked, or were invoked and became the subject of the orders of the Family Court of Australia on 21 December 2012 dismissing the three appeals. 

19. Mr Thompson says that there is another appeal to the Family Court of Australia which was not dealt with, or properly dealt with, apart from Appeals 31, 32 and 95 of 2011. 

20. Mr Thompson continues to express concern about the conduct of the proceedings before the Federal Magistrates Court of Australia and then the Federal Circuit Court of Australia.  Mr Thompson also says that the Full Court of the Family Court exercising appellate jurisdiction dismissed his appeals as unmeritorious without hearing him properly on the merits of those appeals. 

21. Mr Thompson, by this interlocutory application within his principal application seeks an injunction in the exercise of the Federal Court’s jurisdiction invested under the Judiciary Act 1903 (Cth). In effect, Mr Thompson says that the original jurisdiction of the Federal Court under s 39B(1) of the Judiciary Act includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. It may also be being said as a relevant source of the Federal Court’s jurisdiction (although it is not clear as Mr Thompson is not in a position to properly identify the content of the contention), that the Federal Court also has jurisdiction as a matter arising under a law of the Parliament, under s 39B(1A)(c) of the Judiciary Act.  Mr Thompson, however, does not raise any matter arising under the Family Law Act 1975 or the Federal Circuit Court of Australia Act 1999 (Cth). Rather, Mr Thompson seeks to raise matters arising in litigation conducted before those Courts.

22. However, because the remedy sought is an injunction directed to officers of the Commonwealth (and the Federal Circuit Court of Australia itself), the nub of the matter seems to be that Mr Thompson seeks an injunctive remedy in furtherance of the Court’s jurisdiction under s 39B(1) of the Judiciary Act (as invested in reliance upon s 77(i) of the Constitution). Mr Thompson relies upon s 75(v) as the basis for the injunction sought. The Constitutional writs of mandamus and prohibition are only available for “jurisdictional error”. The grant of injunctive relief may well be available pursuant to s 75(v) on grounds that are wider than the grounds giving rise to the grant of the Constitutional writs of mandamus and prohibition. In Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [82], Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that injunctive relief would clearly be available on grounds going beyond, for example, the grounds of demonstrated jurisdictional error as identified in Craig v South Australia (1995) 184 CLR 163 at 179 per the Court; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ.

23. It should be noted that s 39B(1EA) of the Judiciary Act provides, relevantly, that if a “civil proceeding” is before the Family Court of Australia or the Federal Circuit Court of Australia or an appeal arising out of such a proceeding is before the Family Court of Australia, the Federal Court of Australia does not have jurisdiction with respect to “any matter” in which a person who is or was a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth in relation to “a related civil proceeding decision”. In such a case, the Family Court of Australia is invested with jurisdiction in the matter if the civil proceeding is before that Court, and the Federal Circuit Court of Australia is invested with jurisdiction in that matter if the civil proceeding is before that Court. However, the scope of the removal of jurisdiction under s 39B(1EA), otherwise conferred under s 39B(1), is to be understood in the context of the particular definitions of “related civil proceeding decision” and “civil proceeding” in s 39B(3). The Commonwealth, represented by the Australian Government Solicitor, does not contend, for the purposes of this interlocutory application, that the Federal Court of Australia has no jurisdiction to grant the remedy sought by Mr Thompson.  Rather, the Commonwealth contends that no order ought to be made, in the exercise of the invested jurisdiction. 

24. Let it be assumed on the facts for the purposes of this interlocutory application, that Mr Thompson’s understanding of the procedural nature only of the application by Ms Thompson in June 2013 give rise to an arguable question of a denial of procedural fairness in the making of the substantive orders on 25 July 2013.  The position remains, however, that Mr Thompson took no step after receipt of the substantive orders to make an application before the Federal Circuit Court of Australia for the setting aside of the orders on the basis of a denial of procedural fairness on the footing that he understood the hearing in June to be one thing but in fact it became another. 

25. Nor did Mr Thompson appeal from the orders. 

26. Nor did Mr Thompson take steps to apply to discharge or vary the orders of 25 July 2013 which obliged him to vacate the Gympie property by 10 August 2013. 

27. Mr Thompson has simply failed to comply with those orders and has taken no step to deal with them, or seek further orders concerning those orders either before the Federal Circuit Court of Australia or the Family Court of Australia. 

28. Moreover, Mr Thompson did not seek leave to appeal from the orders of the Full Court of the Family Court and nor did he seek a stay of the relevant orders pending the determination of any special leave application. 

29. I am not satisfied that it is appropriate to make any orders (upon the assumption that the circumstances and events in June 2013 before the Federal Circuit Court of Australia arguably give rise to a question of jurisdictional error), in circumstances where Mr Thompson has not put on comprehensive affidavit evidence about the precise detail of that matter, and no step has been taken before either of the Courts already mentioned to address the obligations falling upon Mr Thompson on 10 August 2013 by operation of the orders of 25 July 2013, before Mr Thompson found himself in a position of having to comply with the orders.  Mr Thompson has simply failed to comply with the orders.  In the course of any appeal from those orders to the Family Court, any question relating to those orders could have been raised in that appeal. 

30. The appropriate course was for Mr Thompson to address, before the Federal Circuit Court of Australia, the question of whether the orders of 25 July 2013 ought to have been set aside on the contended footing of a denial of procedural fairness by reason of the contended events at the hearing in June, and the contended circumstances giving rise to the making of the orders on 25 July 2013.  The appropriate applications ought to have been made before that Court seeking orders for the discharge of the orders of 25 July 2013. 

31. It should be remembered that the orders of 25 July 2013 represent the consequential removal of the stay by reason of the Full Court of the Family Court having substantively dismissed the appeals by Mr Thompson.  It may be, however, that the scope of the orders made on 25 July 2013 might have been influenced by any relevant circumstances Mr Thompson might have wished to put before the Federal Circuit Court of Australia on the substantive determination of that application.  This, of course, assumes that Mr Thompson’s affidavit evidence, as filed in final form, properly supports a factual basis for the contentions. 

32. None of these remarks ought to assume any view about any factual questions concerning the events relating to the listing of the matter, exchanges between Mr Thompson and the Federal Circuit Court of Australia (or Ms Thompson’s lawyers), material Mr Thompson may or may not have received, or any other relevant matter. 

33. The present point simply is that Mr Thompson has a contention to advance and he ought to advance it in the appropriate appellate manner or by making an appropriate application to the Federal Circuit Court for the discharge of the orders if they were made in circumstances in which the listing was regarded as a mention but proceeded to a substantive determination of the merits.  It is not for this Court to advise Mr Thompson on the steps he ought to take to advance his interests in that regard.  Plainly enough, Mr Thompson needs the benefit of legal advice.  However, Mr Thompson ought to consider making an application for an extension of time to appeal from the orders of 25 July 2013, on proper affidavit evidence, supported by a proposed notice of appeal properly identifying the grounds of challenge to the orders of 25 July 2013.  Should an extension of time be granted and a notice of appeal filed, Mr Thompson would need to give consideration to seeking a stay of the orders pending the determination of that appeal.  In addition, Mr Thompson ought to give consideration to the question of whether, on the facts he contends for, the Federal Circuit Court of Australia has power to vary, set aside or discharge its orders of 25 July 2013. 

1. Accordingly, I dismiss the present urgent interlocutory application which urges the Federal Court of Australia to intervene in the exercise of invested Federal jurisdiction in the way sought by Mr Thompson.  I encourage Mr Thompson to give consideration to the matters I have mentioned. 

2. I reserve the costs of this application to the determination of the principal application in due course. 

I certify that the preceding thirty‑five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       26 August 2013