Tsakmakis; Ex parte - Re Barry

[2003] HCATrans 328

[2003] HCATrans 328

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S61 of 2003

In the matter of -

An application for Writs of Mandamus, Prohibition and Certiorari against THE HONOURABLE JUSTICE JAMES PATRICK O’HARA BARRY in his capacity as a Judge of the Family Court of Australia

First Respondent

ANGELA FILIPELLO, Principal Registrar of the Family Court of Australia

Second Respondent

THE HONOURABLE ALASTAIR NICHOLSON, AO, RFD, Chief Judge, Family Court of Australia

Third Respondent

THE HONOURABLE JUSTICE O’REILLY a Judge of the Family Court of Australia

Fourth Respondent

DEPUTY REGISTRAR McGRATH of the Family Court of Australia (Brisbane Registry)

Fifth Respondent

THE MARSHAL of the Family Court of Australia

Sixth Respondent

Ex parte –

CONSTANTINE TSAKMAKIS

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 1 SEPTEMBER 2003, AT 12.03 PM

(Continued from 22/4/03)

Copyright in the High Court of Australia

__________________

MR C.R. de ROBILLARD:   If the Court pleases, I appear for the applicant/prosecutor.  (instructed by Norman Waterhouse)

MR C.D. COULSEN:   If the Court pleases, I appear for the wife who is not presently a party to the proceedings but will be seeking to be heard and if I can foreshadow an application to be joined to the proceedings.  (instructed by Egan Simpson)

HIS HONOUR:   Thank you.

MR COULSEN:   Your Honour, there is one other issue.  Shortly before leaving chambers some five minutes ago I received a phone call from my instructing solicitor who informed me that she had been contacted by the Australian Government Solicitor who had just received notice of the hearing and were attempting to send somebody up as quickly as possible, but they had not been served with any of the relevant material.

HIS HONOUR:   Thank you.  I will come back to you.  Mr de Robillard, when this matter was last before me it was on your application for an adjournment.

MR de ROBILLARD:   Yes, that is so, your Honour.

HIS HONOUR:   I adjourned the matter to be restored to the list on 14 days notice but the date on which it was to be restored was not to be a date earlier than 28 July.  I indicated it would be necessary to join the wife, Mrs Liv Birgit Tsakmakis, as respondent.  That was not done?

MR de ROBILLARD:    No, your Honour.

HIS HONOUR:   I drew attention to decisions of this Court, indicating that this sort of application is best pursued through the appellate structure of the Family Court.  Since saying that, the position as indicated there is further underlined by observations in Glennan v The Commissioner of Taxation (2003) 77 ALJR 1195. What do you want to say about that?

MR de ROBILLARD:    As to that first point, your Honour, as far as I could see, your Honour, there was no procedure in the Rules in relation to Order 55 to actually join the wife herself as a party.

HIS HONOUR:   Why?  It has not restrained you from joining a clutch of other people as respondents.

MR de ROBILLARD:    They are all officers of the Commonwealth, your Honour.

HIS HONOUR:   So?

MR de ROBILLARD:    Could I say this, your Honour, to overcome what your Honour is saying, in a practical way?

HIS HONOUR:   Yes.

MR de ROBILLARD:    We have, your Honour, since early February and at all times kept the wife informed as to the fact that these proceedings were on foot and that she was entitled under Order 55 to seek leave to intervene and the wife has chosen not to do so until last week where ‑ ‑ ‑

HIS HONOUR:   I indicated to you she should be joined, Mr de Robillard.  When a High Court Judge indicates to you in a litigation in the High Court you ought to do something, in my day, when I was a barrister, you did it.

MR de ROBILLARD:    Yes, your Honour, and I ‑ ‑ ‑

HIS HONOUR:   And you have not done it.

MR de ROBILLARD:    No, your Honour, and I apologise for that.  It is my responsibility, your Honour, but could I say this, that as far as we were aware, the matter was not getting to a point where the High Court would need to intervene until 28 July when her Honour Justice O’Reilly then issued an order for a writ of possession and that is the stage at which the proceedings became urgent, your Honour.

HIS HONOUR:   The orders were made on 28 July, were they not?

MR de ROBILLARD:    The orders were made on 28 July.

HIS HONOUR:   It is now Monday, 1 September.

MR de ROBILLARD:    Yes, your Honour.  There were two or three things, your Honour.  One is that we did not receive a copy of the orders for some time.  We sought from the Court and from the wife’s solicitors a copy of a writ of possession and only managed to obtain a copy last Friday, your Honour.  I should say, your Honour, that we received a copy from the ‑ ‑ ‑

HIS HONOUR:   The orders were made by the judge on – these are the orders made by Justice O’Reilly on 28 July.

MR de ROBILLARD:    Yes, your Honour.

HIS HONOUR:   You were in court when the orders were made, were you not?

MR de ROBILLARD:    I was in court, your Honour.

HIS HONOUR:   This comes back to the second matter I adverted to earlier, what has been done, if anything, to activate the appellate processes of the Family Court in relation to that order?

MR de ROBILLARD:   Your Honour, in my respectful submission, this case falls outside the ambit of those cases such as Glennan and the other cases that your Honour has mentioned.  The issue is this, your Honour, that her Honour Justice O’Reilly made those orders as enforcement orders in relation to the orders of his Honour Justice Barry.

HIS HONOUR:   She made orders.

MR de ROBILLARD:    But they were purely enforcement orders, your Honour.

HIS HONOUR:   It does not matter.  They are orders of the court.

MR de ROBILLARD:    Yes, I understand that, your Honour, but if I could say this, that it may well be that those orders may be proper orders given that her Honour was relying on his Honour Justice Barry.  What we say, your Honour, our prime attack is in relation to the orders of Justice Barry that were made on 31 January.

HIS HONOUR:   What has been listed today, apparently, is an application for orders in terms of an amended draft order nisi which joins the judge, Justice O’Reilly, the Deputy Registrar and the Marshal of the Family Court and, as I understand your written submissions, you are wanting to agitate paragraphs 5B and 5C, is that right?

MR de ROBILLARD:    For today, your Honour, yes.  I should say, your Honour, all we ‑ ‑ ‑

HIS HONOUR:   Wait a minute.  Is that right, 5B and 5C?  Take a moment to find it.

MR de ROBILLARD:    I am sorry, your Honour.  What we were seeking today, on an urgent basis, was an order in the terms of paragraph 5C of the orders at page 16, so that is why I was confused.

HIS HONOUR:   Yes, that is what I just said.  Not 5B, only 5C?

MR de ROBILLARD:    For today, your Honour, we were simply seeking ‑ ‑ ‑

HIS HONOUR:   I am just trying to find out, that is all.  Just tell me.

MR de ROBILLARD:    In due course we would be seeking to agitate 5B, but as of today, your Honour, we just simply want to maintain the

status quo by simply stopping the Marshal from taking possession of the property today.

HIS HONOUR:   So it is 5C.

MR de ROBILLARD:    Paragraph 5C is what we ‑ ‑ ‑

HIS HONOUR:   I had better read it on to the transcript:

Pending such final determination and until further Order the Marshal of the Family Court is hereby restrained with immediate effect as from time of service of a sealed copy of these Orders upon him from taking or causing any action to be taken pursuant to the Orders made by Her Honour Justice O’Reilly on 28 July 2003.

Is that right?

MR de ROBILLARD:    That is so, your Honour.

HIS HONOUR:   The first question that arises is whether there should be a joinder of Mrs Tsakmakis as the respondent.

MR de ROBILLARD:    Your Honour, we have no objection to the joinder.  We think it would be helpful to the Court, yes.

HIS HONOUR:   Very well.  Mr Coulsen, can you hear?

MR COULSEN:    Your Honour, if I can just raise one thing.  We are having trouble with the audio here.  It is coming through very, very faintly.  We can hardly hear Mr de Robillard.

HIS HONOUR:   Yes.  The point that has immediately emerged is that he wants an order in terms of 5C of the draft amended order nisi.  Do you have that?

MR COULSEN:    Your Honour, it has just been handed to me now by my instructing solicitor.  What had been sent to my instructing solicitors before today did not include 5C.

HIS HONOUR:   Just listen to me.  I will read it to you again:

Pending such final determination and until further Order the Marshal of the Family Court is hereby restrained with immediate effect as from time of service of a sealed copy of these Orders upon him from taking or causing any action to be taken pursuant to the Orders made by Her Honour Justice O’Reilly on 28 July 2003.

Now, that is what is sought today.  Right?

MR COULSEN:    Yes, your Honour.  I have that now.

HIS HONOUR:   It is now said that it would be appropriate to make an order joining your client as a respondent.  That is your position, too, is it not?

MR COULSEN:    We have no objection to that order, your Honour.

HIS HONOUR:   I order that there be added to the amended draft order nisi as the seventh respondent Liv Birgit Tsakmakis, and you appear for her.

MR COULSEN:    That is so.

HIS HONOUR:   Yes, thank you, Mr Coulsen.  I have seen your written submissions.  The shorter version, and I think the essential version of which, is a three‑page document of 19 paragraphs headed “Outline of Applicant/Prosecutor’s Submissions”, is that right, Mr de Robillard?

MR de ROBILLARD:    That is so, your Honour.

HIS HONOUR:   Do you have that, Mr Coulsen?

MR COULSEN:    No, your Honour.

HIS HONOUR:   You had better be supplied with it.

MR de ROBILLARD:    I am sorry, your Honour, I should say that a copy was faxed to ‑ ‑ ‑

HIS HONOUR:   I am not interested in going into this endless blame game.  I am just trying to get on with it.

MR de ROBILLARD:    Certainly, your Honour.

HIS HONOUR:   How can that be advanced?

MR de ROBILLARD:    Your Honour, as I said, we have already faxed a copy to Mr Coulsen’s solicitors in Brisbane and, therefore, one would expect that he would be able to get a copy very quickly, but I can also get my solicitors to fax one to him if we get a fax number, your Honour.

HIS HONOUR:   Yes.  Have you a fax number, Mr Coulsen?

MR COULSEN:    07‑32361147.

HIS HONOUR:   Very well.

MR COULSEN:    There is a fax in the court building here in the family practitioners’ court room.  It may be quicker to fax it there.

HIS HONOUR:   Yes, that would be most useful.  Give us that.

MR COULSEN:    32482243, your Honour.

HIS HONOUR:   I will take a short adjournment and the Registrar will attend to that.  If you can stand by, you will get it in a few minutes.

MR COULSEN:    Thank you, your Honour.

AT 12.16 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.30 PM:

HIS HONOUR:   Now, do you have a copy, Mr Coulsen? 

MR COULSEN:   Yes, your Honour, thank you. 

HIS HONOUR:   Yes, Mr de Robillard.  You have 20 minutes to speak to these submissions. 

MR de ROBILLARD:   Yes, your Honour.  Just to address the first issue that your Honour raised, what we say is that in relation to the decision of her Honour Justice O’Reilly, which was made on 29 July, we say that the only line of attack would be in relation to procedural fairness, in that she was acting outside jurisdiction for breaches of the rules of procedural fairness.  The kernel of our attack there would be the fact that her Honour simply accepted the affidavit of Ms Simpson, the solicitor handling the matter, and what we say was wrong with that, your Honour, is that, one, the affidavit did not annex a copy of documents that she was alleging had been served on the husband.  Your Honour may know from the facts, if your Honour has had a quick look at the summary of the evidence that we drew your Honour’s attention to ‑ ‑ ‑

HIS HONOUR:   Yes, I have had more than a quick look at it. 

MR de ROBILLARD:   Yes, your Honour.  The husband has been away in Greece and therefore the husband says he was not served.  The point is, your Honour, that there was a strong dispute as to whether or not the documents were served, including – and that is important – the original transfer which the husband was supposed to execute. 

HIS HONOUR:   Now, you were there on the day.  Did you have these documents by that time? 

MR de ROBILLARD:   No, your Honour.  Your Honour will see from the transcript that the wife was in fact relying on an affidavit of Mr Boundy initially when the matter started.  Her Honour, before adjourning for the luncheon adjournment, plainly indicated – and I have referred to that in some of my evidence – that the affidavit – well, she did not say the affidavit was not sufficient, but she did give detailed guidelines as to what she required in the affidavit.  Your Honour will see that some of those matters are set out in the amended draft order nisi. 

HIS HONOUR:   Is this paragraph 10? 

MR de ROBILLARD:   Yes, your Honour, it is paragraph 10B, where the document says: 

Providing advice to the wife’s representative, Mr Boundy and generally helping the latter –

If your Honour goes through that, your Honour will see that her Honour gave very detailed – I am sorry, your Honour.  I see that Mr Coulsen is standing.  I am not sure whether he wants to say something. 

HIS HONOUR:   Yes, Mr Coulsen. 

MR COULSEN:   Perhaps if I could ask Mr de Robillard just to speak towards the microphone.  When he tends to put his head down to the desk, we cannot hear anything at all, your Honour. 

HIS HONOUR:   All right.  He will try a bit harder. 

MR de ROBILLARD:   I am actually leaning almost on the microphone, your Honour.  So, your Honour, what happened is this, that after her Honour had given such directions or indications, Mr Boundy then obtained an affidavit from Ms Simpson, which is the affidavit upon which her Honour then relied to be satisfied as to service.  The receipt of that affidavit in evidence was strongly objected to, and your Honour will have seen that her Honour then limited the documents.  But, in any event, there was no copy – there was simple a general indication as to the nature of the documents that were annexed to the affidavit. 

Your Honour will also see the very important point that Mr Boundy indicated to the court that Ms Simpson was not available because she was in court in Tweed Heads.  That is on the record of the transcript.  Your Honour will see in one of the exhibits to Mr Kent that in fact Ms Simpson herself, by letter, states that she was actually temporarily on leave and complained that she had been requested to come back to her office to sign the affidavit.  So we say, your Honour, that we were entitled to cross‑examine Ms Simpson, and the absence of Ms Simpson, who has the daily carriage of the matter, is not satisfactorily explained. 

The real purpose of this case is that we say her Honour simply acted to enforce the orders that were made by his Honour Justice Barry on 31 January 2003.  That is really the source or the start of her Honour’s jurisdiction in the proceedings.  We say we did draw her Honour’s attention to the proceedings of 21 February.  I am not sure whether your Honour is aware of those parts ‑ ‑ ‑

HIS HONOUR:   Yes. 

MR de ROBILLARD:   ‑ ‑ ‑ where we say that clearly his Honour Justice Barry, whatever he had decided and made orders on the 31^st, had actually been reconsidering his position or the position of the husband, and had made, we say, directions or statements that if the husband did X, Y and Z, he would be able to obtain a stay. 

We say the husband did do what his Honour had directed, within the time as directed by his Honour, but through some difficulty within the registry somehow the matter was not brought back before his Honour as he had directed, but was brought back before two justices of the court, Justice Warnock and his Honour Justice Jordan, on the 20^th.  Within a short time, both the application for leave to appeal and the application for stay were dismissed, with the husband having been at home waiting for a call from the court, believing that, one, he did not require to be represented and, two, that there would be a telephone conference. 

Now, the problem is this, and your Honour will see from the transcript that Mr Boundy, who appeared, pointed out that there had been two separate stay applications which had been dismissed.  We say, arguably – and as of today, all we are trying to do, your Honour, is to maintain the status quo position, so that we do not lose the house straightaway – what we say, arguably, are rights of appeal against his Honour Justice Barry’s orders were gone by 20 March, when both the appeal and the stay were dismissed. 

HIS HONOUR:   But these matters relating to the absence of the deponent for cross‑examination before Justice O’Reilly as vitiating those proceedings in some way – rights of appeal in relation to that were not gone. 

MR de ROBILLARD:   They have not, your Honour, but if we were to go to the Full Court, we would, more likely than not, given the history of these proceedings, where every point has been taken, be faced with a situation where we would be told that the substance or the main thrust of our case cannot be argued, because his Honour Justice Barry’s orders were dismissed. 

HIS HONOUR:   Well, if that position was reached, you might then be able to reactivate your case here.  But until it is reached, I am not sure that is right.  I have no view one way or the other in the matter, but I am not sure it is right. 

MR de ROBILLARD:   Yes, your Honour, but we say, as far as today’s proceedings are concerned ‑ ‑ ‑

HIS HONOUR:   Namely, that an appeal from Justice O’Reilly’s orders would not necessarily draw into it various complaints you have as to what you say was the basis on which her Honour was acting.  I may be wrong about that, but anyhow.  I interrupted you. 

MR de ROBILLARD:   Sorry, your Honour, I did not quite hear your Honour.  What we are saying is simply that, yes, if we went to ‑ ‑ ‑

HIS HONOUR:   What I am saying to you is, I am not satisfied that if you pursued your appellate rights in relation to Justice O’Reilly’s orders and it was then said to you that you could not agitate any of the earlier history, that you could necessarily be shut out from doing so.  I might be wrong about that, I do not know, but it is not clear to me at the moment. 

MR de ROBILLARD:   No, your Honour, and ‑ ‑ ‑

HIS HONOUR:   If you were shut out, other things being equal, maybe then you could come here, but at the moment that is not right. 

MR de ROBILLARD:   Except for this, your Honour.  I would ask your Honour, with respect, to take into account the convenience and the justice of the case in that, by that time, we might be two years down the line, or one year down the line, and let us assume that the Full Court rules against us and the Full Court is right in its decision.  What, then, would be our right except by special leave? 

HIS HONOUR:   Exactly. 

MR de ROBILLARD:   But what we are saying is, your Honour, that the orders and what happened before his Honour Justice Barry are so clear and so clearly acting outside of jurisdiction ‑ ‑ ‑

HIS HONOUR:   Well, for want of procedural fairness ‑ ‑ ‑

MR de ROBILLARD:   Not just for want of procedural ‑ ‑ ‑

HIS HONOUR:   ‑ ‑ ‑ and, you say, non‑observance of statutory requirements.  You have two heads, have you?  I gather that from what you have written. 

MR de ROBILLARD:   Yes, your Honour.  With respect, that is not just being technical.  We say the subtext of this case has been this, that since the order by Registrar Spelliken back in September of last year, the husband properly made an application for a stay.  That application and the order for review did not come before the Court within the statutory provision or the statutory scheme. 

It came in front of Justice Barry more than 30 days after the limit that had been put for such matters to be heard, and when it did come before Justice Barry there was no order for review that took place but the enforcement summons took place.  What we come up against constantly is the fact that there are orders and Mr Tsakmakis is more or less found guilty of breaching orders, without at any time the very issue, namely, whether or not the orders of the registrar in the first place were correct ‑ ‑ ‑

HIS HONOUR:   Does he say he should not have been required to pay any interim spousal maintenance of any sum? 

MR de ROBILLARD:   No, your Honour, but the difficulty is this, that what he finds is this ‑ ‑ ‑

HIS HONOUR:   On the orders as they stand at the moment there seems to be $44,000 involved. 

MR de ROBILLARD:   At least, your Honour.  That is the difficulty, your Honour.  The problem is that Mr Tsakmakis, given his financial circumstances and the fact that the wife has put caveats on any property that he may be able to deal with – and there is no difficulty, your Honour.  It is not as if the caveats were required because Mr Tsakmakis is trying to somehow improperly dispose of the properties.  The properties are there and have not been disposed of in any way, but the caveats are obviously causing difficulties in him raising finance.  But, in any event, he does not have the means, given the fact that he is not employed, and has not been for some time, and is suffering from some serious medical problem, which has stopped him from even attending to the matter. 

Your Honour, that is a difficulty and that is why we say we need the intervention of this Court in this particular matter, in that obviously this matter has gone off on the wrong foot, and what is required now is the supervision of this Court so that the real issues are looked at, rather than the client – there is a preconception that the client has done something wrong, and yet he is not being dealt with as part of the enforcement proceedings, which anyone is entitled to use against him if it is found that he has done something wrong.  It is in relation to the determination of how much maintenance the wife is entitled to that he is being burdened with those orders which we say are extremely unreasonable, your Honour. 

HIS HONOUR:   Yes, but you have come here seeking equitable relief, in effect, and you offer nothing in satisfaction of this court order which, at the moment, while it stands, seems to have accrued $44,000. 

MR de ROBILLARD:   When your Honour says we have offered nothing ‑ ‑ ‑

HIS HONOUR:   I just asked you. 

MR de ROBILLARD:   Yes, your Honour.  Well, on several occasions we have, and especially since 28 July, sought to have all other issues resolved between the parties.  Your Honour will be aware that there are Supreme Court proceedings, as well, on foot, which the wife herself has joined with and has ‑ ‑ ‑

HIS HONOUR:   These arise out of the caveats, do they? 

MR de ROBILLARD:   That is so, your Honour.  There is a whole history in relation to that, as well, as to whether or not the wife was entitled to lodge caveats.  It is trite law that a right under the Family Law Act does not give rise to a caveatable interest.  In fact, when the matter went in front of his Honour the Chief Judge in Equity, Justice Young, the wife was faced with that situation and was then allowed to plead her case in full.  That is still in the process of happening. 

So what we say is that if your Honour were to grant an order, at least, for a short time, to maintain the property in the husband’s possession, it may well be that there could be some arrangement made, and that is what we have been proposing.  We have made proposals for the writ to be withheld for 14 days to allow the clients to try to resolve all other issues in the Family Court, here and in the Supreme Court, but that has been refused. 

We say, given the fact that my client is suffering as he is and is in Greece, it would be quite difficult for him to be able to properly consider the situation when he is just about to lose the home that he has lived in for the last 12 years and he built himself.  I mean, there are other properties, your Honour, where the parties could very well – there are other properties in which my client has an interest, which may well be put up as an alternate security, for instance.  I am sorry, your Honour.  I am not sure whether I have run over time. 

HIS HONOUR:   Not quite. 

MR de ROBILLARD:   Basically, your Honour, we say that this does not fall within the normal case, we say, where one should simply go to the Full Court.  Your Honour will see there has been difficulty within the registry itself, even in relation to obtaining a copy of the writ of possession from the court.  If I could tender a letter in relation to that, your Honour, which is a letter which we received dated 25 August 2003 from the Family Court, which would be some indication of the difficulties my client has had. 

HIS HONOUR:   It is awkward, because your opponent is not here so he cannot see it to see if he objects to it, really.  I will read it on to the transcript.  It is dated 25 August.  It is addressed to Mr Tsakmakis at 72 Charles Street, Tweed Heads.  The copy I have seems to have fax numbers at the top of it.  It is signed by Deputy Registrar O’Reilly.  It says:

I refer to your letters dated 19 and 20 August 2003, received by facsimile on 20 and 21 August 2003, respectively.

I advise that the Reasons for Judgment delivered ex tempore on 28 July 2003 were issued on 22 August 2003 and a copy is enclosed herewith for your records.

The Writ of Possession issued on 28 July 2003 pursuant to the Orders made that day and, whilst there is no provision in the Family Court rules requiring that a copy be provided to a party to the proceedings, I enclose a copy of that document as requested by you.

I will hand that back.

MR de ROBILLARD:   Thank you, your Honour.  Your Honour spoke of equities.  In this respect, your Honour, my client has had difficulties because since September of last year he has been self represented and he has had difficulties with the Registry.  Your Honour will see from the transcript ‑ ‑ ‑

HIS HONOUR:   He may have, I do not know.  He is not a person without means.

MR de ROBILLARD:   Your Honour, that is what – the problem ‑ ‑ ‑

HIS HONOUR:   He seems to have a substantial equity in a number of properties.

MR de ROBILLARD:   Yes, your Honour.

HIS HONOUR:   He is not a person without means.  If he chooses to litigate without obtaining counsel, so be it, but the consequences of that are not a factor that flow in his favour.

MR de ROBILLARD:   Except for this, your Honour – and that is why we would need more time to be able to provide some evidence to the Court –my client did use three separate sets of solicitors all within the Tweed Heads area.  The problem is that he lives in Tweed Heads and there are a small community of solicitors there and he has fallen out with two of them, your Honour.

HIS HONOUR:   Yes.

MR de ROBILLARD:   And so what he finds is – and the fact that he is depressed and he obviously is a difficult person to deal with, he has simply not been able to retain solicitors to act on his behalf.  Now, that is one issue, your Honour.  The second limb of this is that this situation ought not be allowed to continue where what I have shown to your Honour in the letter of 25 August is simply the result of a long chain of at least a fortnight of attempts made by the client to obtain a copy of the writ of possession.

Now, letters were sent to the solicitors for the wife – and Mr Coulsen just may confirm it – seeking a copy the writ, and that also was not forwarded, your Honour.  In other words, and as I have said in my submissions, there is no form of a writ in the Family Law Rules, as far as I could see.  In other words, the client surely would have been entitled to look at the document which the police and the court was relying on before losing his house as a relation of this document being executed, your Honour.

HIS HONOUR:   Yes, very well.  Is there anything more you want to add?

MR de ROBILLARD:   No, your Honour.  The only thing is this, that what we are proposing today is simply a short breathing space where the execution of the writ would be withheld for a fortnight until such time as we are then allowed to make proper submissions and litigate properly our application to this Court.

HIS HONOUR:   Now, 5C is not limited in terms of 14 days.  It is “Pending such final determination”.  Do you seek to modify that to make it 14 days?

MR de ROBILLARD:   Certainly, your Honour.  I should say ‑ ‑ ‑

HIS HONOUR:   I just need to be clear what order you seek.

MR de ROBILLARD:   Yes, your Honour.  All I am saying is that those orders were prepared ‑ ‑ ‑

HIS HONOUR:   I am not blaming anybody.  I just want to know what orders you seek as of this minute, because I have to make up my mind fairly shortly, after I have heard from your opponent.

MR de ROBILLARD:   Certainly, your Honour.

HIS HONOUR:   Do you want to amend 5C so that it says ‑ ‑ ‑

MR de ROBILLARD:   Paragraph 5B, your Honour.

HIS HONOUR:   I thought you were only pressing 5C.

MR de ROBILLARD:   I am sorry, yes, your Honour.  Yes, it could be limited to 14 days, your Honour, yes.

HIS HONOUR:   And 5C is the only paragraph you are relying on?

MR de ROBILLARD:   At the moment, your Honour, that is all we need and we would be seeking directions for the matter to come back before the Court, your Honour.

HIS HONOUR:   All right.  I will take a short adjournment and then I will hear from your opponent.

MR de ROBILLARD:   Thank you, your Honour.

AT 12.54 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.56 PM:

HIS HONOUR:   Yes, Mr Coulsen.

MR COULSEN:   Your Honour, the first point which we would make is that the proper way to deal with what is at issue here is back in the Family Court and that the exercise of the discretion here to grant the relief that is sought, if you like, runs the gauntlet of the comments in Re Cook and Re Wilkie, and that is that there must be some exceptional circumstances.  Re Cook 54 ALJR 515 dealt with the extraordinary circumstances of a solicitor who was convicted of contempt in the face of the court.

HIS HONOUR:   Yes, I remember. 

MR COULSEN:   So, your Honour, we say for what is essentially a dispute between the parties to the marriage as to property rights and, in particular, spousal maintenance, that is not exceptional circumstances, and your Honour should give heed to the comments in the earlier decisions that the matter should properly go back to the Family Court. 

Now, one way which would be open to the husband to progress the matter in the Family Court would be to seek to appeal the orders of Justice O’Reilly and, in the very short term, seek a stay of those orders pending appeal in the Family Court.  My instructing solicitor has carried out some investigations, your Honour, and there are currently three Family Court judges sitting in Brisbane who have had no involvement in this matter at any stage. 

So what we say there, your Honour, is there is nothing extraordinary or special here, there is a very clear procedure set out by the Family Court Rules, and that, at this point in time, it is premature to trouble this Court.  It may be the case that in the other proceedings something goes wrong, or there is some problem with the appeals mechanism in the Family Court, but, at this point in time, to seek relief in terms of 5C, restraining a Marshal of the Family Court, that is properly the domain of the Family Court. 

The second issue in terms of the exercise of discretion generally, your Honour, if I can address the balance of convenience first, as opposed to prospects of success, the most telling point against the husband here in terms of balance of convenience is that this separation occurred in February 2002 and even if there is some problem with Justice Barry’s order, at this point in time, there has been no interim spousal maintenance paid in any way.

HIS HONOUR:   Yes.

MR COULSEN:   And, as I understand the husband’s case, it is not that there will not be any spousal maintenance.  Your Honour, this is also in the circumstance where some $1.2 million was transferred to Greece after the filing of the application seeking property orders.  So we say, for those facts alone, there is severe prejudice to the wife if the matter does not simply remain in the domain of the Family Court and that, even as a fallback position, even if relief was to be granted restraining the Marshal of the Family Court, we would say that it would have to be on a condition that interim spousal maintenance be paid. 

If, for whatever reason, the amount decided upon by Justice Barry was incorrect, at the end of the day, in terms of spousal maintenance, things can be brought to account.  But what the husband here is asking this Court to do is to look a long way down the tunnel, so to speak, and restrain the sale of property, the sale of which was designed to satisfy an interim maintenance order and the failure to pay it, without ‑ ‑ ‑

HIS HONOUR:   Yes, I do not need to hear you any more on that.  What else do you want to say?  What do you say about the significance of the non‑cross‑examination on the Simpson affidavit? 

MR COULSEN:   Your Honour, we say nothing really turns on that.  If there was no evidence to the contrary – in other words, there was no countervailing account of events or so on by the husband – the only thing which could flow from that is that if the order was made subject to particular steps being carried out, we say it seems very much as though the complaint which is sought to be made about that is, in effect, after the fact.  Mr de Robillard was at the hearing; the husband was represented.  It cannot be the case that the cross‑examination of Ms Simpson in any event would be so fatal to the granting of the writ, given that, at that point in time, there still had been no spousal maintenance paid.  It must be remembered what we are dealing with here is the sale of property in default of interim spousal maintenance being paid. 

HIS HONOUR:   Yes, thank you.  Anything else? 

MR COULSEN:   No, your Honour. 

HIS HONOUR:   Thank you.  Yes, Mr de Robillard. 

MR de ROBILLARD:   Your Honour, I will try to be quick.  If one accepts Mr Coulsen’s argument, we are being told to go and litigate in the Full Court, come back to this Court, the wife is litigating in the Supreme Court, and, your Honour, this is in the context where the wife says she is in need of urgent spousal maintenance. 

Now, there is something strange, we say, in relation to a matter where the wife could very easily, if this Court were minded, to get this case back on the right track, so that everyone looks at the matter carefully, and yet encourages further litigation in various courts.  So query the correctness of the urgent spousal maintenance in the first place, and the husband’s argument that the wife has other means to support herself in the meantime. 

What your Honour has heard today from Mr Coulsen is what invariably falls from the lips of the wife’s solicitors each time we go to court, namely that he has transferred 1.2 million to Greece.  What they fail to say, your Honour, is that two days later he re‑transferred 600,000 back to the National Australia Bank, from which he had borrowed the money, when he found that the wife was not going to come back to him definitely.  What we say in relation to that is there are two sides to the story, your Honour.  Your Honour will see from ‑ ‑ ‑

MR COULSEN:   Your Honour, I must object.  This is just assertion from the Bar table.  If they want to put what they are saying in evidence, that is fine.  We would like to have an affidavit about it.  I am sorry. 

HIS HONOUR:   I am not going to have any regard to the 1.2 million, one way or the other, so let us move on.

MR COULSEN:   Thank you, your Honour. 

MR de ROBILLARD:   But that is the problem, your Honour, that invariably the courts are – there is a dispute, let us put it this way, that 1.2 went and did not come back.  The next thing is that Mr Coulsen also identifies the very difficulty with this case to date.  He simply says there is no maintenance paid and therefore any order will do to enforce that payment.  But we say, your Honour, that there are procedures under the Family Law Act which set out what procedures must take place for enforcement of those orders. 

What the wife should do is simply to take advantage of that procedure properly and to have the matter litigated along those lines, but not to use a review application, which was simply one to make a determination as to the amount of maintenance, to, at the same time, get enforcement orders.  I have taken your Honour to Order 33, which clearly sets out the procedures there and the fact that these documents have to be served.  It is

mandatory that those documents be served before enforcement procedures are considered by the court. 

As to the last point that Mr Coulsen addressed your Honour on, as to the issue with Ms Simpson, clearly, your Honour, we had no opportunity to cross‑examine her or to give any evidence, because I was still reading the affidavit of what her Honour called the affidavit of service, because I had been served with it a few minutes earlier and I had no chance to get instructions.  What her Honour stated was that there was no need for me to get instructions, and we say that was a clear breach of procedural fairness.  Those are my submissions, your Honour. 

HIS HONOUR:   Thank you.  I will adjourn until 2.00 pm. 

AT 1.08 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

HIS HONOUR:   On 22 April 2003 this Court ordered, on the application of Mr Tsakmakis, that his application No S61 of 2003 be adjourned to be restored on 14 days notice to a date not earlier than 28 July 2003.  Thereafter, on 28 July 2003 Justice O’Reilly, sitting at Brisbane in the Family Court of Australia, dealt with an application by Mrs Tsakmakis concerning, among other things, order 10 of the orders made by Justice Barry in the Family Court of Australia on 31 January 2003.

Mr Tsakmakis in this Court in the application referred to seeks to attack for jurisdictional error those orders of Justice Barry and to obtain relief under section 75(v) of the Constitution. Order 10 gave liberty to apply in certain circumstances for the issue of a writ of possession of premises at 72 Charles Street, Tweed Heads in New South Wales. The orders are exhibit K to Mr Tsakmakis’ affidavit sworn in this Court on 13 February 2003.

Justice O’Reilly gave detailed reasons in her extempore judgment of 28 July 2003.  Her Honour ordered that the writ issue but conditioned its execution upon an opportunity being given to Mr Tsakmakis to pay $44,250 plus arrears and interest in respect of interspousal maintenance ordered in the orders of Justice Barry made on 31 January.  The arrears were not paid.  No steps have been taken to enliven the appellate jurisdiction of the Family Court of Australia in respect of the orders made by Justice O’Reilly on 28 July 2003.

Mr Tsakmakis adds Justice O’Reilly and other officers of the Family Court as the fourth, fifth and sixth respondents in his application here for the orders nisi.  This morning Mrs Tsakmakis was added as the seventh respondent and she has appeared today by Mr Coulsen.

Mr Tsakmakis now seeks, as the relief sought was formulated this morning, an order restraining the sixth respondent, the Family Court of Australia Marshal, from, until 14 days from today or further order, causing any action to be taken pursuant to the orders of Justice O’Reilly made on 28 July.  The objective of such an order would be to restrain the execution of the writ of possession which issued on that date.

The order that the writ of possession issue is attacked for jurisdictional error, as it must be, to obtain relief under section 75 of the Constitution in a case such as this. Jurisdictional error is alleged for denial of procedural fairness and lack of the necessary statutory powers in the Family Court in various respects to act as it did in dealing with the application heard and the orders made by Justice O’Reilly.

These complaints, as has been repeatedly said in this Court, have their proper forum in the appellate system within the Family Court of Australia subject to the ultimate possibility of a grant of special leave to appeal by this Court.  It is said that this avenue could not usefully be pursued by Mr Tsakmakis because at bottom his complaint is with the orders of Justice Barry and the appellate avenues in that respect are said to have been exhausted.

I am not convinced that were it necessary for an attack on the orders of Justice O’Reilly also to attack those of Justice Barry, that could not be done in an appeal from the orders of Justice O’Reilly.  I express no concluded view on the matter.  That is because there is indicated on the materials presented today no case of sufficient strength as to the vitiation for jurisdictional error of the orders of either Justice Barry or Justice O’Reilly to warrant the enjoining of the execution of the writ of possession.

I refuse the application for relief in terms of paragraph 5C of the further amended draft order nisi as revised earlier today.  I certify for counsel.

Do you seek costs Mr Coulsen?

MR COULSEN:   Yes, your Honour.

HIS HONOUR:   There will be an order for costs against the applicant in favour of the seventh respondent.  I should also add that the application for relief in terms of 5C as varied as indicated is formally dismissed.  That leaves the balance of the application.  In respect of that, there remains the earlier order of the Court made on 20 April 2003.  However, it is to be hoped that this litigation can be resolved in the Family Court and, if need be, in the Supreme Court of New South Wales where there is litigation without further process being pursued in this Court.  The pendency of the balance of the application in this Court for an order nisi should not be taken as inhibiting the taking of further steps by those Courts.  I will adjourn for the listing of the next matters.

AT 2.11 PM THE MATTER WAS CONCLUDED