Torney, Ex parte- Re Colina

[1998] HCATrans 391

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M85 of 1998

In the matter of -

An application for Writ of Prohibition against HERMIE GENEROSO COLINA (Marshal of the FAMILY COURT OF AUSTRALIA) and THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA

Respondents

Ex parte -

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 9 NOVEMBER 1998, AT 10.30 AM

Copyright in the High Court of Australia

MR D.A.PERKINS:   If your Honour pleases, I appear for Mr Torney.  (instructed by Kuek & Associates)

MR H.J. LANGMEAD:   If your Honour pleases, I appear for the respondents in opposition to the application.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Now, do you appear both for the Marshal and for the Judge, Mr Langmead, or just for the marshal?

MR LANGMEAD:   No, I appear for both, your Honour.

HIS HONOUR:   Yes, thank you.  Now, Mr Perkins.

MR PERKINS:   In so far as it is – I am sorry, I think your Honour was going to raise something.

HIS HONOUR:   No.  The question that is alive in my mind is whether the application should be directed to be made returnable in the first instance before a Full Court?  If that were done the issues would be heard and determined by the Full Court without my granting order nisi, but the application for order nisi would be directed to be returned before a Full Court.  It may in the first instance, I think, Mr Perkins, be better if you perhaps focus your attention on that question: should I put it straight into a Full Court?

MR PERKINS:   If I am to focus my attention on that question, it rather removes the necessity for me to raise a couple of other matters, such as the giving of section 78B notices, which I would have submitted it is not clear whether we need to give or not, at this stage, but the procedure mentioned by your Honour certainly would remove the necessity to consider that and clearly the notices would have to be given.

HIS HONOUR:   Yes.

MR PERKINS:   The other matter, your Honour, is this, that I do not – although again, this may be a matter that really is of no consequence at all, given the possibility that your Honour has mentioned.  I was going to put that my learned friend has no standing to be here.  I accept that the rules make some provision for questions of that ‑ ‑ ‑

HIS HONOUR:   Who then would be the contradictor, if it is not the Marshal?  I can understand the judge simply filing a submitting appearance and taking no part, but if the Marshal is not the contradictor, who ought to be?

MR PERKINS:   In due course, I accept that the Marshal ought to be the contradictor.

HIS HONOUR:   Yes.

MR PERKINS:   It is merely that this is an application for an order nisi which I would have put was ex parte, but I accept that the practicalities may well dictate that the presence of counsel ought to be recognised and that the possibility that your Honour mentioned is the appropriate path to choose.

HIS HONOUR:   And if it does go to a Full Court, if that is the course that is adopted, it would plainly be necessary, I would have thought, that the Marshal be named as the contradictor and the Judge presumably also, though his Honour may well file only a submitting appearance.

MR PERKINS:   Yes.

HIS HONOUR:   Can I just make sure that I understand, Mr Perkins, the contentions that you will want to make in support of the application.  Is it that you say there is now an indictment, namely the application, or, if there is not now an indictment, there ought to be an indictment and, in either event, there should be trial by jury?

MR PERKINS:   Yes, your Honour.

HIS HONOUR:   Do you either in addition or as part of that argument make any challenge to the validity of any part of the Family Law Act or the rules?

MR PERKINS:   Well, that is certainly a possibility, your Honour.

HIS HONOUR:   Because if we are going to do that - if that is going to form part of the argument, I do not know – it may be that there would have to be action for declaration of invalidity and if that were to happen, if that is to form part of the argument, then plainly the two would have to be married up and directions given about, presumably, a case stated in the action or perhaps demurrer, I do not know, but to bring the challenge to validity on at the same time as, what I might loosely call, the section 80 point.

MR PERKINS:   Yes, I would submit that that would be appropriate.

HIS HONOUR:   Is it plain, though, what provisions of what legislation you would seek to challenge or the basis of it?

MR PERKINS:   I think, your Honour, at this point, it may not be plain in the sense that the material does not identify it, but I would accept that my client would have the onus of identifying whatever challenge to the validity of the legislation or rules he wished to make and giving proper notice of that challenge.

HIS HONOUR:   There is therefore one field for debate there, namely the field for debate about validity and that is, as I understand it, a matter to which you may have to give further attention.  Confining our attention for the moment to the section 80 point, so looking for the moment only at the section 80 point, are the grounds for prerogative relief sufficiently and fully stated in the present draft order nisi?  I think there is a second one that was filed a day or two ago – are those the grounds on which you would seek to stand or fall?

MR PERKINS:   Your Honour, the answer is that they are, but if I may say so, I do not take your Honour’s question as pregnant with anything necessarily, but ‑ ‑ ‑

HIS HONOUR:   No, it is a genuine open-ended question.

MR PERKIN:   Yes, but can I indicate this, your Honour.  There is further affidavit material, which I wish to rely on.  The further affidavit material is in two classes:  one class has already been foreshadowed and that is simply the tendering of further transcripts of the proceeding before the Full Court; the second class is, in a sense, out of left field, if I can put it like that.  Since the proceedings, that are the subject of the application, the learned Chief Justice of Family Court has made a series of public statements, which we would seek to prove.  An example of the public statements is to be found in an Age publication on 21 October 1998, with the headline “Family Court Chief Wraps Sinister Men”.

HIS HONOUR:   To what issue would this sort of evidence go?

MR PERKINS:   It would go to none of the section 80 issues.  It would go to the proposition that the out-of-court, the extrajudicial statements, by the learned Chief Justice have irreparably damaged the applicants prospect of a fair trial, either by a judge of the Family Court to whom, according to the ,article that these remarks were made or by a jury.

HIS HONOUR:   Assume for the purposes of argument that that is a contention that is to be advanced, in support of what relief from this Court would that go and on what ground?

MR PERKINS:   An order for prohibition, on the grounds that a fair trial of this applicant on the charge of contempt is impossible.

HIS HONOUR:   Yes.  Well, if those arguments are to be advanced, plainly we would need to have before us a formulation of the ground, a formulation of the basis on which the relief is sought and the relief and, of course, the material upon which it is advanced.  How long will it take you to do two things at least:  one, give consideration to and formulate whatever bits of paper need to be formulated about the matter we have just been speaking about; and secondly, to look at the questions of challenges to validity of legislation or subordinate legislation?

MR PERKINS:   Your Honour, in relation to the second matter I had hoped that the material would be here now.

HIS HONOUR:   Yes, so that is reasonably well advanced, that sort of material, but the challenges to validity, how long do you say you would want or need to take to consider what, if any, challenges to validity are to be mounted?

MR PERKINS:   I would want seven days, your Honour.

HIS HONOUR:   Yes.  As you may know, the Canberra November sittings begin tomorrow.  I can either deal with this matter, if it has to be dealt with again, next Monday perhaps, or, more likely I suspect, the week following, so that is the sort of time frame we are looking at.  I cannot look at this matter again this week, past today.

MR PERKINS:   Yes.

HIS HONOUR:   There are, I think, Mr Perkins, at the moment, and I will need to hear from Mr Langmead, three particular areas that I will want you to have given final consideration to:  one, what are the grounds on which you will move?  I would not wish the grounds to be moving unnecessarily.

MR PERKINS:   Yes, I accept that.

HIS HONOUR:   Secondly, I would need you to have given final consideration to what is the material upon which you wish to move, so evidence.  Third, is there to be a challenge to validity and, if so, what legislation?  That last question then carries with it, I suspect, the notion that if there is to be a challenge to validity then my first impression is, you probably need a writ, you need an action declaration and the like and in light of those matters, then, and probably only then, it may be possible to decide whether to make proceedings returnable in the first instance before a Full Court. 

One further matter I would mention to you, in connection with validity and challenges to validity, is that if you are to mount such a challenge, then I would want you to have given consideration to whether a section 18 Judiciary Act stated case is possible, desirable, necessary?  So far as the other side are concerned, they will no doubt also, if we are to go down this path, need to have considered that, but also to have considered whether demurrer is the preferable way to go, but if a challenge to validity is to be mounted, in effect how is that challenge to then get to a Full Court?

Now, those are the question that I have in mind for the moment.  Subject to whether you wish to add anything, it may be that it would be better if I heard Mr Langmead, at this point, but are there other things to which you would draw my attention that bear upon the matters that we have presently been discussing?

MR PERKINS:   Your Honour, no, there are not.  There is one thing, if I may, and it is really, well I would contend that it is an appropriate case in which to follow the procedure that your Honour has mentioned.

HIS HONOUR:   Yes, thank you, Mr Perkins.  Now, Mr Langmead, I have had the advantage of reading the outline of argument that you submitted and to it I would – I will not say “add”, it is not my task – simply draw your attention and the attention of counsel generally to two or three statements, perhaps four, that can be found in decisions of the Court that may, they may not, be thought to bear on these issues.  If you go back to Maslen v The Official Receiver 74 CLR 602, particularly at 610, you will find there, in the joint judgment of Chief Justice Latham, Justices Rich, Dixon and McTeirnan, the proposition that:

It has been argued for the appellant that the learned judge proceeded on a wrong principle in dealing with the matter on a motion to commit for contempt and that he should have left the matter to be dealt with on indictment.

In fact, proceedings for indictment for contempt of court have not been instituted for very many years but there is no doubt that such proceedings are available.  Reference might also be made to John Fairfax & Sons v McRae, 93 CLR 351 at 364 where – I did not bring that to Court with me but again statements may be found about contempt by scandalising, which is

the allegation here, as I would understand it, being at common law an indictable offence.  Reference might also be made to Justice Windeyer’s discussion of the history of the matter in James v Robinson, 109 CLR, particularly at 614.  Reference might also be made to the dissenting view of Justice Murphy in the Gallagher litigation, Gallagher v Durack, 152 CLR 238, particularly at 249 to 250 where his Honour was, at least, on my first and quick reading of the case, appeared to be the only member of the Court to consider the section 80 point and say, in effect, it is concluded against section 80 applying, but it ought to apply. Now, necessarily, I do his Honour’s reasons for judgment a considerable disservice by attempting to formulate them in that short way.

But in the light of that Australian authority, and there is also, perhaps, reference that might be made to King v Parke, 1903 2KB 432 at 444, about contempt being an indictable offence at common law. It occurs to me that it may be that there is a sufficient point to be made, and I say nothing about its prospects of success one way or the other, I just do not know, to warrant returning the application for order nisi before a Full Court where the whole Court can express its opinion on the issues that are raised. Now, I have exposed, as much as I can, the sorts of considerations that lead me to give consideration to making the matter returnable before a Full Court and in light of that, having said a lot, I should now sit and hear what you have to say.

MR LANGMEAD:   With respect, your Honour, it is agreed that notwithstanding the overwhelming principle that one can divine from practice for the last century, that all contempts have been heard summarily.  Having said that, your Honour has certainly identified some of the dissents and some of the contrary views that, parallel to that practice and stated principle, has been an undercurrent of dissent.  Justice Deane, I think, in the Kingswell decision was another example of it, where the section 80 guarantee as to whether it is illusory or not was ventilated yet again and we would not disagree that there may be a sufficient point to refer it on but we say that, procedurally at this point, there is so much up in the air and so much unknown about the applicants – the final form of relief or forms of relief that, clearly, all that can be done at this point is, in effect, give directions for those processes to occur.

If the matter were restricted simply to the section 80 point we would take a more robust position and suggest that it ought be dismissed as being against the overwhelming weight of authority, but its potential expansion, in my submission, makes that an unsuitable course to take at this point.

HIS HONOUR:   The difficulty about that is that unless it is absolutely unarguable, if appeal is brought from my decision, the appeal necessarily then goes to a court constituted of less than the Full Court and the Full Court does not have the benefit of all of its members at that hearing.  The point is one which, as best I can gather, is one that has been raised, I think, in other proceedings that are presently pending in other courts other than the Family Court, but certainly has not been passed upon.  I think there is a pending proceeding in the New South Wales Court of Appeal concerning a gentleman who is alleged to have misconducted himself in court by throwing a missile at the Bench.

MR LANGMEAD:   If the matter is referred to the Full Court it could, of course, have ramifications for the architects and any variations in Latrobe Street but beyond that it may well be an appropriate matter, as we say, that will have to wait to be seen and we say that at this point it is a matter of your Honour, of course, and the directions at least to find out what the final case is that is to be put, or cases.

HIS HONOUR:   Well, as you might gather from my discussion with Mr Perkins, my present inclination is simply to put it over for a week or two weeks to enable the applicant to give final consideration to the precise way in which the applicant would wish to advance the point and, obviously, any decision would be taken then, not now, about the final course.  But the position that I would like to be in, if it is possible to be in at that time, is to know what are the grounds of the applicant’s challenge;  what is the material upon which the applicant moves;  and, buried within those two propositions is this further question of, is there to be a challenge to validity of any and, if so, what provisions, because on that last question, as you heard from the debate, there may be live questions about, do we state a section 18 case;  is there to be demurrer and trial of demurrer in a Full Court or how is it to go?  Now, these are questions, in large measure, for the parties.

If there is to be a stated case then it will be for the parties, in the first instance, to come up for a stated case.  They may, perhaps, obtain some guidance from what was done in Abebe’s Case.  Abebe is coming on for hearing, not tomorrow, the day after tomorrow in the Full Court, and there there is combination prerogative relief and challenge to validity, challenge to validity which has come up to the Full Court via a stated case and you may get absolutely no guidance from it at all but it occurs to me that you may, perhaps, find something in there that may guide the hand a little about what to do if the validity points are alive.

MR LANGMEAD:   I am indebted to your Honour for that indication.  The respondents would like simply to make – to reserve one right very clearly, and that is, depending on the ultimate form and, indeed, the answers to the

three areas that your Honour outlined, we would still reserve the right to resist the notion that it ought go beyond here.

HIS HONOUR:   I do not understand you to be foregoing that at all, Mr Langmead, and I am certainly not intending to shut you out from contending that order nisi should simply be refused.

MR LANGMEAD:   Yes.  Well, in that case, it is simply a matter for directions and ‑ ‑ ‑

HIS HONOUR:   Well, now, Mr Perkins, I wonder whether it may be better to put it over for a fortnight ‑ ‑ ‑

MR PERKINS:   Yes, if your Honour pleases ‑ ‑ ‑

HIS HONOUR:   Rather than a week.  That will give you a rather better time to spend some time on ‑ ‑ ‑

MR PERKINS:   I am grateful, your Honour, and having heard what your Honour said, I had come to that conclusion also.

HIS HONOUR:   Do I need to give you any direction other than simply bare adjournment?  What are we going to do about 78Bs?  Is it better for you to give those before we meet again or can I simply leave that as an issue for you to give consideration to?

MR PERKINS:   Your Honour, I would take it that we now have a suit within the meaning of the Judiciary Act because your Honour has heard ‑ ‑ ‑

HIS HONOUR:   I am not sure whether we do.

MR PERKINS:   Well, I was not either, but it is a matter for your Honour, with respect.  May I, with respect, invite your Honour to direct that we give section 78B notices?

HIS HONOUR:   I think it is enough - if I give you a direction there will be times within which to do it.  I would rather simply give you the indication that it would be as well that 78Bs are given.

MR PERKINS:   If your Honour pleases.

HIS HONOUR:   It would also be of assistance to me if you are in as final a position as it is possible to be in to answer the various questions that we have discussed this morning on that adjourned date, and that would be 23 November 1998 at – would 9.30 be convenient to counsel?

MR PERKINS:   Yes, if your Honour pleases.

HIS HONOUR:   If I reserve the costs and certify.  It really would be of assistance if the parties can come in with as much of the paper prepared as they can.  If you cannot, we will have to work it out but it really would assist me if you could carry the preparation of the papers as far as you can in that time.

MR PERKINS:   Yes, your Honour.  Could I perhaps indicate, there is one matter that I may wish to seek a direction from the Court on.  In due course, on the part of the material that is not yet before the Court, I would be seeking to rely on a Canadian case of Tobiass, which is a recent case in the Supreme Court of Canada, and it may now have a report but I only have it as a recent case from ‑ ‑ ‑

HIS HONOUR:   Off the Net?

MR PERKINS:   Yes.

HIS HONOUR:   Do you have its full title because we can get it off the Net?

MR PERKINS:   I apologise, I can give it to your Honour ‑ ‑ ‑

HIS HONOUR:   If you could let the Registrar have, and your opponent have, the full title or as good a title as you can within the next day or so, that would be of great assistance, thank you, Mr Perkins.

MR PERKINS:   Yes.  There is one thing that arises from that case.  In that case the Supreme Court of Canada gave a direction that certain documents which had come into existence, bearing on the question of certain things that the learned Chief Justice of the Federal Court, I think it was, had done – put before the court – it may be that I will be seeking some direction.  I consider that it would not be appropriate ‑ ‑ ‑

HIS HONOUR:   We will face that as and when it happens, Mr Perkins.

MR PERKINS:   Yes, if your Honour pleases.

MR LANGMEAD:   One outstanding matter, we seek a direction that all materials prepared by the applicant be served on the respondents.  To date, that has been somewhat of a loose arrangement.  There appears to have been some difference of opinion as to rights and the like, so we seek to have that clarified.

HIS HONOUR:   Yes, well, Mr Perkins, is there any difficulty about that?  Do I need to make a formal direction that they be served on ‑ ‑ ‑

MR PERKINS:   I do not believe so, but it is a matter for your Honour.

HIS HONOUR:   No, well, if they are not, then we may encounter some difficulty, but they will be served on your clients, Mr Langmead.  Is there anything else?  Then I will adjourn the further hearing of this matter to 23 November 1998 at 9.30.  I will reserve costs and certify for the attendance of counsel.

AT 11.07 AM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 23 NOVEMBER 1998