R v Cook; Twigg, Ex p

For the reasons which I have indicated I find it necessary in the present case to go at least as far as saying that the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide. In the circumstances of this case, I would adapt the words of McTiernan J. quoted above, and say that this conviction ought not to stand as if it were validly in force.

Accordingly I agree that in this case the order nisi for certiorari should be made absolute.

The Full Court of the Family Court of Australia has jurisdiction to entertain an appeal from a decision such as that given by Cook J. in the present case, and in my opinion Mr. Twigg should have sought relief from that Court. Unnecessary recourse to this Court by way of the prerogative writs is to be deprecated. It may become appropriate in a future case to withhold relief, on discretionary grounds, in order to encourage aggrieved persons to pursue their remedy in the proper forum. Nevertheless, in present circumstances, I agree with the reasons and conclusion of Gibbs J.