Tsakmakis, Ex parte - Re Barry & Ors

[2003] HCATrans 670

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S61 of 2003

In the matter of -

An application for Writs of Prohibition, Mandamus 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

Ex parte –

CONSTANTINE TSAKMAKIS

Applicant/Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 22 APRIL 2003, AT 9.37 AM

Copyright in the High Court of Australia

__________________

MR C.R. de ROBILLARD:   If the Court pleases, I appear for Mr Tsakmakis in this matter.  (instructed by Edward T. Davis & Co)

MS C.A. FIERRAVANTI-WELLS:   If it please the Court, I appear on behalf of the respondents.  We have put in a submitting appearance save as to costs but I have attended this morning to see what transpires.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, thank you.  Yes, I hold a certificate from the Registrar, thank you, Ms Fierravanti‑Wells, saying that the Honourable Justice Barry and the Principal Registrar and the Chief Justice of the Family Court will submit to the orders of the Court save as to costs.  You may be excused, if you wish.

MS FIERRAVANTI-WELLS:   Your Honour, I will see what transpires, thank you.

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

MR de ROBILLARD:   Your Honour, this morning I was instructed to make an application for an adjournment of this matter, and I will come to the reasons, your Honour.  This is an application for constitutional writs.

HIS HONOUR:   Yes, I have looked at the papers.

MR de ROBILLARD:   Thank you, your Honour.  If I could just give to your Honour just very briefly a history of what has happened since the application was lodged with the Court here.

HIS HONOUR:   Yes.  What was the date of the initiating step here?  17 February I think, yes.

MR de ROBILLARD:   That is so, your Honour.  Your Honour, immediately after that, after filing and service of the application in this Court, the matter was brought back before his Honour Justice Barry on 21 February.  There was a further lengthy hearing before his Honour and the wife was represented and his Honour then made some suggestions as to how the matter could be resolved by indicating to the husband that there had been some technical problem with his previous application for a stay in that in the judge’s opinion there had been no appeal filed in support of a stay.

Unfortunately, your Honour, my client has told his solicitors not to appear and not to incur any further costs in this matter, so I do not have a copy of the transcript to give to your Honour, but I have a copy of the transcript here and I ‑ ‑ ‑

HIS HONOUR:   It would be enough if you tell me what transpired.

MR de ROBILLARD:   I also appeared, your Honour, so I can assure your Honour what has been said.  Basically what his Honour stated then was that he had been engaging in some lateral thinking about the matter over the break and he suggested that if the husband were to provide some $44,000 by way of security paid into a solicitor’s trust account, 44,000 having been the amount of arrears in maintenance which had accrued up to that time, and the husband then filed an appeal in proper form and filed a further stay application, then he would be prepared to give an early hearing date for a new hearing of a stay application.  That is where the matter was left with his Honour Justice Barry.

HIS HONOUR:   What date was that?

MR de ROBILLARD:   21 February 2003.

HIS HONOUR:   Yes.

MR de ROBILLARD:   As I said, your Honour, I appeared at that time.  The matter was then next listed on 20 March 2003 before the Family Court and for some reason the stay application was listed before his Honour Justice Jordan in one court and the application for leave to appeal which the husband had by then filed was listed before Justice Warnick on the same day, on 20 March.  The husband did not appear because he had been told that it would be a directions hearing and that the court would contact him – and I am here going on instructions, your Honour.

HIS HONOUR:   Yes.

MR de ROBILLARD:   Obviously we will have to put an affidavit.  But he was not contacted by telephone and the next thing he found was that orders had been made dismissing his application for stay and his application for leave to appeal.  I have a sealed copy of the orders here which I could hand to the Court for the Court’s records, if it is necessary.

HIS HONOUR:   Yes.  Let me just have a look.  So these are the orders ‑ ‑ ‑

MR de ROBILLARD:   That were made on 20 March.

HIS HONOUR:   ‑ ‑ ‑ by Justice Jordan of 20 March striking out the husband’s stay application with a costs order and an order of the same date by Justice Warnick striking out the application for leave to appeal filed 28 February with a costs order.

MR de ROBILLARD:   Yes, your Honour.  Now, following that, your Honour, when my client found out about these events he became extremely upset and had to be admitted to Tweed Heads Psychiatric Hospital.  He had been under some treatment from a doctor since August 2002 and he was there scheduled, your Honour, to – so he was detained in the hospital under the schedule and was kept there for three days.  I have a copy of the hospital notes as well as a discharge summary.  While I am at it also, your Honour, if I could hand up a copy of a medical certificate issued by Dr M.C. Braganza dated 24 March 2003.

HIS HONOUR:   Yes.  Well, the last paragraph of Dr Braganza’s statement of 24 March reads:

In view of his deteriorating mental condition it is my opinion that Mr Tsakmakis is not in a fit state of mind to be involved with any legal proceedings in Court until at least the 23rd June 2003.

That is, as I say, signed by Dr Braganza, Consultant Psychiatrist at the ‑ ‑ ‑

MR de ROBILLARD:   It is a private practice, your Honour.

HIS HONOUR:   Yes, in private practice – whereabouts?

MR de ROBILLARD:   It is in the Tweed Heads area, your Honour.

HIS HONOUR:   Yes, at Tweed Heads.  There is also a statement of patient details from the Tweed Valley Clinic.

MR de ROBILLARD:   That sets out his admission and his discharge some three days later.

HIS HONOUR:   Yes, dealing with his admission on 21 March and discharge on the 23rd.  Yes, I will hand those back to you, Mr de Robillard.  I think they are sufficiently explained on the transcript now.

MR de ROBILLARD:   Thank you, your Honour.

HIS HONOUR:   Yes.

MR de ROBILLARD:   Now, as a result of all this, your Honour, there were also a couple of Supreme Court proceedings which the wife had initiated in the Supreme Court.

HIS HONOUR:   Yes, I see that.

MR de ROBILLARD:   Those were dealt with during the course of - about 10 days ago, but the end result of all these proceedings is that at the end of the day under medical advice my client has actually gone back to Greece last week where he has his family and he has family support and where he has a home, so he has now gone back to Greece on medical advice and will be back at the end of June, or towards 23 June.  So my application then, your Honour, was to ask that this matter be adjourned to very early July or late June, your Honour, if that were possible, or to fit in with your Honour’s diary.

HIS HONOUR:   Yes.  Well, there are some matters about the application that require further consideration though.  One is the absence of the wife, who must be a proper party to provide a contradictor.

MR de ROBILLARD:   Yes, your Honour.

HIS HONOUR:   Obviously the judicial officers will not actively participate.

MR de ROBILLARD:   Yes.  Your Honour, I should say that I personally handed to the wife’s counsel in the Brisbane Family Court a copy of the documents and I spoke to Mr Coulsson of counsel who told me he would be appearing on behalf of the wife.

HIS HONOUR:   Yes, that may be so, but they are nevertheless not joined as respondents.

MR de ROBILLARD:   I understand, your Honour.

HIS HONOUR:   The second matter requires some consideration of some authorities.  I will give you the references now and suggest you look at them over the adjourned period.  One is a case of Ex parte Johnston (1980) 55 ALJR 191 and at 192 to 193 the judgment of Justice Gibbs, with which four members of the Court have agreed, stressed the unwisdom of applying to this Court under 75(v) in respect of pending Family Court proceedings rather than following the appeal structure through the Family Court as indicating as a matter of discretion the Court would be reluctant to interfere under 75(v). That approach has been repeated in various cases. The most recent one I can find is Justice Toohey in Re Finlayson (1997) 72 ALJR 73.

So it seems to me that if everything were got in shape you would still have a difficult path here with discretion with 75(v) relief where there are appeal avenues which have not yet fully been exhausted.

MR de ROBILLARD:   Yes, your Honour.

HIS HONOUR:   Now, I will adjourn the application to be restored on 14 days notice but not before – now, what date did you suggest?

MR de ROBILLARD:   30 June, your Honour.

HIS HONOUR:   Well, July is Court vacation – not before 28 July 2003.  So I will adjourn the matter to be restored to the list on 14 days notice but the date to which it is to be restored is to be a date no earlier than 28 July 2003 and I will certify for counsel.

MR de ROBILLARD:   If the Court please.

HIS HONOUR:   Is there anything else?

MR de ROBILLARD:   That is all, your Honour.

HIS HONOUR:   Very well.  I will now adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED