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[1984] HCA 82
High Court of Australia
1984-01-19
Dawson JJ, Pawley J, Bryce Ernest J, Ross-Jones J
Original judgment source is linked above.
The application was returnable on 16 January 1984. The application was not served on Mrs. Green. A copy of it was received by her solicitors on 4 January 1984. Perhaps in consequence, on 5 January 1984, she caused a writ of fieri facias to be issued on the judgment which she had obtained in the Supreme Court of Victoria and on 13 January 1984 she caused to be issued out of the Federal Court a bankruptcy notice based on that judgment.
On 16 January 1984, Pawley J. in the Family Court made an order for substituted service of Dr. Marinovich's application for orders against Mrs. Green and adjourned it to 19 January 1984. On that day the matter came before Ross-Jones J. in the Family Court. Dr. Marinovich filed an amended application; the relief claimed was the same as that sought by the application which he had filed in December 1983, except that in par. 1(a) of that application the words "or any further" were inserted before "steps", and that a new sub-par. (c) appeared in par. 1 as follows:
(c) That the said judgment obtained by the said Carol Agnes Green in the said Supreme Court of Victoria be set aside.
Counsel for Mrs. Green appeared and opposed any relief being granted to Dr. Marinovich. He submitted that the application was an abuse of process and said that if this argument were rejected he would wish to argue the question of jurisdiction. After hearing argument the learned judge fixed 9 and 10 April 1984 as the dates for hearing as a special fixture the question whether the order sought in par. 1(a) should be made and ordered that pending further order of the court an order be made in terms of that paragraph. In other words, an order was made restraining Mrs. Green from taking any steps or any further steps whatever to enforce in any way the judgment obtained by her in the Supreme Court of Victoria in the proceedings against Dr. Marinovich pending further order of the Family Court.
It appears from the affidavit filed in support of the application that Dr. Marinovich now disputes some of the indebtedness the existence of which he acknowledged in the deed. He further claims to be entitled to be indemnified by Mrs. Marinovich in respect of all or part of the amount owed to Mrs. Green. It appears that he claims that because the advances to him were made (to use the words of his solicitor) "in the context of the overall family situation that existed between the husband and wife and her parents in that he was involved in and conducting on behalf of her parents certain business activities", the Family Court should exercise the discretionary powers which, it is suggested, it possesses under s. 79 of the Act and order Mrs. Marinovich to give him an indemnity. In argument before Ross-Jones J. counsel for Dr. Marinovich said that while it may be true to say that Dr. Marinovich has a legal obligation to Mrs. Green, it would be just and equitable in the circumstances that Mrs. Marinovich should indemnify her husband against the whole of that liability. He went on to say that there were other reasons for seeking an indemnity from the wife in respect of parts of the indebtedness and specifically referred to an amount of $36,000 which Mrs. Marinovich had assigned to her mother. Before us there was a change of ground, and it was suggested that the Family Court would be asked to set aside this assignment under s. 85 of the Act. The only evidence as to the sum of $36,000 was contained in the following passage from an affidavit by Dr. Marinovich:
In a letter to the accountants dated 9 June 1981 she [Mrs. Marinovich] said inter alia concerning various of the alleged advances
Regarding the amount of $36,000.00 referred to in the letter dated 28 May 1981 from my mother's solicitor to your firm comment as follows: $12,000.00 owedby my husband to myself. $15,000.00 owed by my husband to myself. $ 4,000.00 owed by my husband to myself. $ 5,000.00 owed by my husband to myself. Total $36,000.00
I have assigned these loans to my mother. The sums are personal loans by myself to my husband, they do not involve any loans to a third party. The sum of $12,000.00 was used for improvements on Jolly Farm.
The sum of $5,000.00 was used as payment of interest due to the National Bank. I do not know what use the sums of $15,000.00 and $4,000.00 were put by my husband so that my husband agreed to repay the said sums in full to myself. I am mindful of the extreme hardships my mother has suffered during the last two years and as some small recompense for this suffering I have agreed to assign the sum of $36,000.00 that is owed by my husband to myself to my mother.
It was not alleged in the evidence that the assignment was a sham, or that the moneys were assigned to Mrs. Green to be held beneficially for Mrs. Marinovich, or that the assignment was made to defeat, or was likely to defeat, an existing or anticipated order in any proceedings in the Family Court. As the letter shows, the assignment must have been made before 9 June 1981 - some months before Dr. Marinovich acknowledged his indebtedness to Mrs. Green.
At the commencement of the argument on the return of the order nisi it was submitted by counsel for Dr. Marinovich that the application is premature. The proper course for Mrs. Green was, it was said, either to argue the question of the jurisdiction of the Family Court before Ross-Jones J. and to appeal to the Full Court of the Family Court from his decision if it proved to be adverse, or to appeal to the Full Court of the Family Court against the making of the order for an interlocutory injunction. This submission was supported by the Solicitor-General who appeared for the Commonwealth which intervened in the proceedings.
Although the Family Court is described in s. 21(2) of the Act as a superior court of record, it is not a court whose jurisdiction is unlimited. The limits of its jurisdiction appear from s. 31 of the Act and they are limits which are necessarily imposed for constitutional reasons. It is clear law that a court of limited jurisdiction has the authority and duty to decide whether a controversy brought before it lies within the limits of its jurisdiction, but that its decision on such a question is not conclusive: see Reg. v Federal Court of Australia; Ex parte W.A. National Football League [1] . It is equally clear that this Court has power under s. 75(v) of the Constitution to issue prohibition to the judges of a federal court to prevent them from exercising a jurisdiction which they do not possess, even though the Court is described as a superior court. There is no doubt that prohibition lies to the judges of the Family Court: Reg. v Watson; Ex parte Armstrong [2] ; and see Reg. v Cook; Ex parte Twigg [3] . However, where it is claimed that a judge of the Family Court is exceeding his or her jurisdiction, the existence of a right of appeal to the Full Court of that Court, although not a bar to the grant of prohibition, may provide a reason why this Court should withhold the relief on discretionary grounds: Reg. v Cook; Ex parte Twigg [4] ; In re Baker and Wilkie; Ex parte Johnston [5] ; and see Reg. v Ross-Jones; Ex parte Beaumont [6] . That is not to say that this Court will always, or even generally, refuse prohibition to an aggrieved party who has failed to take advantage of an available right of appeal, or that prohibition should be regarded as an exceptional remedy. On the contrary, if a want or excess of jurisdiction is clearly shown, the fact that the party affected by the wrongful exercise of jurisdiction had another remedy, such as an appeal, available will in general be immaterial: Mooney v Commissioners of Taxation [7] ; R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [8] ; and see the cases cited in de Smith's Judicial Review of Administrative Action, 4th ed. (1980), pp. 425-426. One reason why this is so is that "subject to certain limitations not here material, while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority": Reg. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [9] . If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. On the other hand, if the want or excess of jurisdiction is not clearly established, prohibition will be refused: R. v President of Commonwealth Court of Conciliation and Arbitration; Ex parte Australian Agricultural Co. Ltd. [10] . If the jurisdiction of the tribunal to which prohibition is sought to be directed depends on the existence of particular facts which are in dispute, it will often appear desirable to let that tribunal proceed to determine those facts in the first place. It is involved in what I have already said that a court of limited jurisdiction has power to determine the existence or otherwise of facts on which its jurisdiction depends, although its determination is not conclusive: see also D.M.W. v C.G.W. [11] . Even where there is a preliminary or collateral issue as to the existence of facts on which the jurisdiction of the tribunal depends, prohibition may be granted before the tribunal has made a finding on that issue, as, for example, where there is some reason for thinking that the tribunal will decide the issue erroneously or otherwise exceed its authority (cf. Reg. v Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty Ltd [12] ) or where it is apparent that the issue must be decided in a way that will reveal a want of jurisdiction.
In the present case I have reached the conclusion, for reasons which I shall state, that Ross-Jones J. clearly lacked jurisdiction to grant the interlocutory injunction against Mrs. Green. There is no issue of fact on which jurisdiction depends, and no reason why prohibition should be refused on discretionary grounds.
It now becomes necessary to state the reasons which have led me to the conclusion that the Family Court had no jurisdiction to entertain the application made by Dr. Marinovich for relief against Mrs. Green. The title to the application, which indicated that it was made "In the Marriage of" Dr. and Mrs. Marinovich, although made in compliance with reg. 31 and form 3 of the Family Law Regulations, is misleading, since relief was sought only against Mrs. Green. The claim against Mrs. Green, as amended, was to restrain her from enforcing a judgment which she had already obtained in the Supreme Court of Victoria and to set aside that judgment. The only grounds on which the relief is sought, so far as the affidavits filed in support of the application reveal, are that the whole of the debt was not owing by Dr. Marinovich and that he was entitled to be indemnified by his wife in respect of all or part of the debt. An application based only on the first of those grounds could not possibly be within the jurisdiction of the Family Court, and the arguments advanced on behalf of Dr. Marinovich rested largely on the fact that he was claiming an indemnity from his former wife.
It was submitted on behalf of Dr. Marinovich that Ross-Jones J. had jurisdiction in the proceedings for two reasons. First, it was submitted that the Family Court was given jurisdiction by s. 114 of the Act, or had inherent jurisdiction, to grant an interlocutory injunction to keep matters in statu quo pending the final determination of the question whether the court had jurisdiction in the application. Secondly, it was submitted that the proceedings between Dr. Marinovich and Mrs. Green were a "matrimonial cause" within pars. (f) and (ca)(ii) of the definition of that expression in s. 4 of the Act and hence within the jurisdiction of the Family Court. It is convenient first to consider the latter question.
By the combined effect of ss. 31(1)(a) and 39(1) of the Act the Family Court has jurisdiction in any "matrimonial cause" within the definition of that expression in s. 4. By that definition, "matrimonial cause" is defined to mean, inter alia:
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings -
(ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief;
(f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
It may be accepted that the application made by Dr. Marinovich on 4 October 1983, seeking orders against his former wife under s. 79 of the Act, and particularly an order for an indemnity, were proceedings of the kind described in par. (ca) of the definition of "matrimonial cause". The question then is whether the proceedings between Dr. Marinovich and Mrs. Green were proceedings "in relation to" the pending proceedings between Dr. and Mrs. Marinovich, and so within par. (f) of the definition. Paragraph (f) does not require that the proceedings to which it refers should be between the parties to a marriage. It was held in Russell v Russell [13] that s. 39 of the Act is valid in so far as the jurisdiction conferred relates (inter alia) to par. (f) of the definition, but only to such extent as is consequential upon the validity of s. 39 in relation to pars. (a), (b), (c), (d) and (e) of the definition of "matrimonial cause". Under the section as now amended, other paragraphs, including par. (ca), should be included in that statement. To come within par. (f) the proceedings in question must bear an appropriate relationship to other proceedings of the kind referred to in the definition. In Perlman v Perlman [14] it was held by the whole Court that proceedings for the enforcement of a maintenance agreement which had been approved by the Family Court were not proceedings in relation to the proceedings for the approval of the maintenance agreement or in relation to earlier proceedings between the parties with respect to property or maintenance. I there expressed my opinion as to the meaning of par. (f) as follows [15] :
The words "in relation to" import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind: see Reg. v Ross-Jones; Ex parte Beaumont [16] . An appropriate relationship may exist if the order sought in the proceedings in question is consequential on or incidental to a decree made in the completed proceedings (so that, for example, an application by a divorced wife for a settlement and transfer of property is a proceeding in relation to the completed proceedings for the divorce: Reg. v Ross-Jones; Ex parte Beaumont [17] ). It may exist if the order sought in the later proceedings would reverse or vary the effect of the order made in the former (for example, where an application under s. 61(4) of the Act is brought by a surviving parent for custody of a child when that custody has been awarded to the other parent, since deceased (Dowal v Murray [18] ) or where an application for custody of a child of a marriage since dissolved is made by a stranger to the marriage against a party to the marriage who has been granted custody by an order in previous proceedings (Fountain v Alexander [19] ). I do not suggest that this recital is exhaustive, but it serves to indicate the nature of the relationship that must exist between the two sets of proceedings if one of them is to fall within par. (f). 1. (1976) 134 C.L.R. 495. 2. (1984) 155 C.L.R. 474. 3. (1984) 155 C.L.R., at p. 484. 4. (1979) 141 C.L.R., at p. 510. 5. (1979) 141 C.L.R., at pp. 510-511, 520. 6. (1978) 143 C.L.R. 410, pp. 417, 423, 427. 7. (1982) 150 C.L.R. 615, at pp. 625-626, 629-630, 646-647.
As the words of par. (f) show, and as Perlman v Perlman indicates, the relationship must exist between the proceedings themselves. It is not enough that what is done in one of the proceedings would indirectly affect the practical outcome of the other proceedings. This may be illustrated by a number of examples. Suppose that proceedings are brought in the Family Court by a wife against her husband claiming an alteration of property interests under s. 79 of the Act. Suppose also that there is pending in a Supreme Court a claim by a stranger to the marriage against the husband for damages, or a claim by the Commissioner of Taxation for tax, in an amount so large that if it succeeded it would denude the husband of all his assets, leaving no property which could be made the subject of an order in favour of the wife. The proceedings against the husband may have a devasting effect on the proceedings in the Family Court but that does not mean that there is a relationship between the two proceedings themselves or that the Family Court has jurisdiction - which, of course, would mean exclusive jurisdiction - to entertain the claim for damages or the claim for the recovery of tax. Or suppose that a tradesman had obtained judgment in a Supreme Court against the husband for goods supplied to him, and the husband brought in the Family Court proceedings against his wife seeking an indemnity against his indebtedness, and proceedings against the tradesman for an order setting aside the judgment. There would, in such a case, be no sufficient relationship between the proceedings against the tradesman and the proceedings against the wife; although the practical outcome of one proceeding might affect the practical outcome of the other, the claims in the two proceedings are quite independent. Similarly, the proceedings brought by Dr. Marinovich against Mrs. Green are not proceedings in relation to the proceedings brought by Dr. Marinovich against his former wife. An order staying or setting aside Mrs. Green's judgment would not prevent Dr. Marinovich from continuing with his proceedings against his former wife in the Family Court, although from a practical point of view an order setting aside the judgment might make those proceedings unnecessary. Any such order would obviously not be consequential on or incidental to any decree made in the proceedings against Mrs. Marinovich and it would not revoke, vary or in any way affect any decree that might be made in those proceedings.
It was submitted on behalf of Dr. Marinovich that the proceedings brought by Mrs. Green in the Supreme Court and in the Federal Court for the enforcement of the judgment which she had obtained in the Supreme Court are proceedings in relation to the pending proceedings brought by Dr. Marinovich in the Family Court for an order against Mrs. Marinovich under s. 79. It was submitted that the necessary relationship existed because those proceedings brought by Mrs. Green would in some way frustrate the proceedings brought by Dr. Marinovich in the Family Court. This argument misses the point that the present proceedings will be a "matrimonial cause" only if they are proceedings in relation to proceedings of the kind referred to in pars. (a) to (eb) of the definition of "matrimonial cause", and neither the proceedings in the Supreme Court nor the proceedings in the Federal Court answer any of the descriptions contained in those paragraphs. If it were true to say that the proceedings in the Supreme Court and in the Federal Court were proceedings in relation to Dr. Marinovich's proceedings against Mrs. Marinovich in the Family Court, and were therefore "matrimonial causes", the result would be that neither the Supreme Court nor the Federal Court would have jurisdiction to entertain those proceedings: see ss. 8(1), 39 and 40 of the Act and the proclamation under s. 40. It would, however, not follow that the Family Court would have jurisdiction in the proceedings brought by Dr. Marinovich against Mrs. Green. The relationship which, on the assumption made, would exist would be a relationship between the present proceedings and proceedings which themselves might fall within par. (f) - that, of course would not bring the present proceedings within par. (f).
Lest credence be given to the extravagant notion that the Family Court could entertain proceedings for the issue of a writ of fieri facias to enforce a judgment of a Supreme Court, or bankruptcy proceedings against a husband or wife, I should emphasize that the argument which I have been considering is incorrect as well as irrelevant. There is no relationship sufficient to satisfy par. (f) between the proceedings brought by Mrs. Green in the Supreme Court or in the Federal Court and those brought by Dr. Marinovich against Mrs. Marinovich.
It was urged in support of the contentions put on behalf of Dr. Marinovich that if the claim for indemnity could have been pursued in the Supreme Court, execution of the judgment would have been stayed by that Court until that claim had been determined. It was further submitted that since only the Family Court has jurisdiction to entertain the claim for an indemnity, it is convenient that it should have jurisdiction to stay the judgment. The Supreme Court has no doubt an inherent power to grant a stay of proceedings in order to prevent injustice, but it by no means follows that the power will be exercised in favour of a defendant simply on the ground that he has a claim for indemnity against a third party, even if that claim is being litigated in the Supreme Court. However that may be, these considerations do not throw any light on the question whether the proceedings brought by Dr. Marinovich against Mrs. Green are a "matrimonial cause".
The alternative argument submitted on behalf of Dr. Marinovich was that s. 114 of the Act, or alternatively the inherent jurisdiction of the Court, empowered Ross-Jones J. to grant an injunction in the present case. The words of s. 114 make it clear that the power granted by that section is available only if the Court is exercising jurisdiction under the Act. Section 114(1) grants the power only in proceedings of the kind referred to in par. (e) of the definition of "matrimonial cause", and s. 114(3) applies when the Court is exercising jurisdiction under the Act in any proceedings other than those to which sub-s. (1) applies. The section means what it says; it confers power which the Court may exercise only if it already has jurisdiction - it does not confer jurisdiction:Reg. v Dovey; Ex parte Ross [20] ; and see also Reg. v Ross-Jones; Ex parte Beaumont [21] . The provisions of s. 114, which are precisely limited as they are, no doubt to ensure that they do not exceed constitutional power, cannot be extended by resort to the so-called inherent jurisdiction. Such inherent jurisdiction as the Family Court may have could not go beyond protecting its function as a court constituted with the limited jurisdiction afforded by the Act: cf. Reg. v Forbes; Ex parte Bevan [22] .
In any case, even if the proceedings brought by Dr. Marinovich against Mrs. Green were a "matrimonial cause" within s. 4, the Family Court would have no power to defeat the rights of Mrs. Green to enforce her judgment or to nullify her power to do so. The extent of the power of the Family Court to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party has been authoritatively determined by Ascot Investments Pty Ltd v Harper [23] , where the earlier cases were considered and put into their true perspective. I there said [24] :
It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would have been necessary to consider their constitutional validity. It is quite impossible to accept the argument that an interlocutory order staying execution of the judgment will not affect Mrs. Green's rights; she has of course a right to execute the judgment in accordance with law. There is no material in the present case that would support any suggestion that the rights of Mrs. Green which have been established by the judgment are in any way a sham, or that the case comes within the exceptions to the general rule which are stated in Ascot Investments Pty Ltd v Harper [25] . 1. (1981) 148 C.L.R. 337. 2. (1981) 148 C.L.R., at p. 354. 3. (1981) 148 C.L.R., at pp. 354-355.
In argument before us particular reliance was placed on two decisions of the Full Court of the Family Court, In the Marriage of Gillies and Gillies [26] and Harris and Harris; Re Banaco Pty Ltd [No. 2] [27] . The facts in the former case were rather special, and although Ascot Investments Pty Ltd v Harper is discussed in the judgments, the case was argued before that decision was given. Moreover, in that case the stranger to the marriage (the husband's mother) had herself instituted proceedings in the Family Court, and the statement by Evatt C.J., that the Family Court has power to prevent an abuse of process by restraining a party to its own proceedings from continuing proceedings in another court, has no application in the present case, where Mrs. Green did not begin or intervene in proceedings in the Family Court, but was simply served (if she was served) with process in a matter beyond the Court's jurisdiction. For these reasons it is unnecessary to consider the correctness of the decision in that case. In the second decision, Harris and Harris; Re Banaco Pty Ltd [No. 2], the Full Court of the Family Court dismissed an appeal from a decision of a judge of that Court granting an interlocutory injunction restraining two companies from proceeding with an action in the Supreme Court in which they sought possession of the matrimonial home, which they owned. The home was occupied by the wife and the companies were controlled by the husband's mother. It was not established that the husband had, either in law or in fact, any control over the companies. The majority of the Court (Evatt C.J. and Joske J.) distinguished Ascot Investments Pty Ltd v Harper for two reasons - first, that the decision in that case was not concerned with an interlocutory injunction and, secondly, that a distinction should be drawn between cases in which the third party, affected by an order of the court, is a stranger to the married parties and those in which there is an association of some kind between the third party and one of the parties to the marriage. The third member of the Court, Watson S.J., remarked that Ascot Investments Pty Ltd v Harper was decided before s. 15AA of the Acts Interpretation Act 1901 Cth, as amended, was enacted, and also said that some consideration of s. 33 of the Act might be relevant in further proceedings. I am unable fully to accept the reasoning of the Court in relation to any of these questions. The Court has no wider jurisdiction to grant an interlocutory injunction than to grant a permanent injunction. There is, however, this practical difference, that while the Family Court is exercising its power to determine whether or not it has jurisdiction in a particular case, it may be right to keep matters in statu quo by the grant of an interlocutory injunction. That would be so only while the question whether it had jurisdiction remained in doubt and was being determined, and it goes without saying that if an interlocutory injunction were granted in those circumstances the questions of fact and law on which jurisdiction depended would have to be determined as a matter of the utmost urgency - not after a lapse of two or three months as was proposed in the present case - and that once it appeared that jurisdiction was lacking, the injunction would have to be dissolved, however inconvenient that course might appear. The limits of the power to affect the position of third parties - i.e., persons who are not parties to the marriage - appear from Ascot Investments Pty Ltd v Harper. No distinction can, however, be drawn between the position of third parties who are strangers to the parties to the marriage and those who have some relationship or association with one of them. The fact that a third party is, for example, a parent of one of the parties to the marriage does not in itself expand the power of the Court. Of course if there is some relationship between the third party and one of the married parties the case might come within one of the exceptions recognized in Ascot Investments Pty Ltd v Harper [28] . There is no reason to believe that the application of the provisions of s. 15AA of the Acts Interpretation Act would lead to any different result from that which was reached in Ascot Investments Pty Ltd v Harper. No doubt it is right to say that the Act should be given a construction that would promote its objects and in particular would give the widest possible protection and assistance to the family and to the rights of children of the marriage. However, the objects of the Act do not include the destruction of the rights of third parties. Finally, as has been pointed out in Reg. v Ross-Jones; Ex parte Beaumont [29] , s. 33 of the Act can apply only if the Court already has jurisdiction; its jurisdiction is then extended, as far as is constitutionally permissible, to associated matters. In the present case the proceedings brought by Dr. Marinovich against Mrs. Green were quite outside the jurisdiction of the Court and did not form part of any controversy in relation to which the Court was seized with jurisdiction.
In Wagner and Wagner [30] , Lindenmayer J. cast doubt on the correctness of Harris and Harris; Re Banaco Pty Ltd [No. 2] [31] , although he was able to distinguish that decision. For the reasons I have given, the judgments in Harris and Harris; Re Banaco Pty Ltd [No. 2] should not be regarded as authoritative.
I may sum up my conclusions by saying that the Family Court had no jurisdiction to hear and determine the application filed by Dr. Marinovich against Mrs. Green, because the application was not a "matrimonial cause" within s. 4 of the Act and in any case had no power to make an order which would defeat the rights of Mrs. Green by staying or setting aside the judgment which she had obtained in the Supreme Court. There was no jurisdiction to grant the interlocutory injunction. The order nisi is for prohibition from proceeding further in the application, and not from proceeding further on the order for the interlocutory injunction (cf. R. v Hibble; Ex parte Broken Hill Proprietary Co. Ltd. [32] ), and if prohibition is granted in that form it will be necessary to grant certiorari to quash the order.
I would make absolute the order nisi for prohibition and certiorari.
I am in agreement with the reasons for judgment of the Chief Justice. I would therefore make absolute the order nisi for prohibition and certiorari.
The jurisdiction of the Family Court to entertain the application and make the challenged orders against Mrs. Green depended upon there being a relevant "matrimonial cause" as defined in the Family Law Act 1975: see s. 4. There was none.
It is conceded by Dr. Marinovich that in the Supreme Court of Victoria Mrs. Green (formerly his mother-in-law) has obtained judgment (for $336,693.51 and costs) against him regularly. A bankruptcy notice against him (based on the judgment debt) has been issued and served by Mrs. Green. Dr. Marinovich has sought an injunction. In the Family Court of Australia Dr. Marinovich applies to set aside the judgment and has obtained an interlocutory injunction to restrain Mrs. Green from taking any further action to enforce the judgment.
This is not a case where one spouse is asking the Family Court to restrain proceedings elsewhere against the other spouse by some person who is not at arm's length but is in collusion with or the alter ego of the other spouse. Part of the judgment debt is founded on an assignment to Mrs. Green by Dr. Marinovich's former wife, but it is not suggested that this was a fraudulent conveyance. Mrs. Green obtained judgment against Dr. Marinovich in the Supreme Court; he now asks the Family Court to restrain Mrs. Green from acting on the judgment. The case would not be different if a complete stranger had sued Dr. Marinovich who then claimed indemnity from his former wife.
In these circumstances the Family Court is not the forum for any attempt to set aside or restrain proceedings upon the judgment of the Supreme Court. Parliament has allocated federal jurisdiction between various courts. Bankruptcy is allocated to the Federal Court of Australia, not the Family Court. The Family Court had no jurisdiction to entertain the application by Dr. Marinovich against Mrs. Green, nor to grant the interlocutory injunction. There are powerful considerations (to which Deane J. refers) against intervention by this Court at a stage before the Family Court has been able to give proper consideration to its jurisdiction, but this was an extreme case.
The order nisi for prohibition and certiorari should be made absolute.
This is the return of an order nisi for writs of prohibition and certiorari to prevent the Family Court from proceeding with an application which is before it and to quash an interlocutory order made by that Court in relation to that application.
The prosecutrix was the mother-in-law of Leonard Mark Marinovich ("the husband") before the dissolution of his marriage to her daughter, Carol Lesley Marinovich ("the wife"), pursuant to a decree nisi pronounced by the Family Court on 18 February 1983. By an application filed on 4 October 1983 the husband sought certain orders against the wife in relation to their various property interests. One of the orders sought was that the wife indemnify him against the payment of any moneys which might be payable by him to the prosecutrix arising out of proceedings commenced by the prosecutrix against him in the Supreme Court of Victoria. That application remains unresolved but it is not the application which is the subject of the prohibition which is sought. It is necessary to relate further events before the latter application can be identified.
The proceedings in the Supreme Court of Victoria consisted of an action by the prosecutrix against the husband to recover an amount of $287,334.89 and interest. The principal sum was the balance of moneys owing by the husband to the prosecutrix under a deed executed by the husband on 27 November 1981. The deed was in the form of an acknowledgment of a loan made by the prosecutrix to the husband and provided for the repayment of the amount owing by instalments together with interest at a stipulated rate.
The husband entered an appearance in the action and the prosecutrix sought summary judgment against him. He disputed the amount owing and was given leave to defend the action as to the sum of $121,790 provided that he paid that sum into court within a specified time. The prosecutrix was given leave to enter final judgment for the balance, namely, $165,544.89. The husband failed within the specified time to pay the sum of $121,790 into court and on 5 December 1983 the prosecutrix entered judgment against him for the amount claimed, namely, $287,334.89 together with interest in the sum of $49,358.62, making a total sum of $336,693.51, and costs to be taxed.
The judgment remained unsatisfied and on 5 January 1984 a writ of fieri facias was issued out of the Supreme Court. On 13 January 1984 a bankruptcy notice, based on the judgment, was issued out of the Federal Court and served upon the husband on 18 January 1984.
At some time towards the end of December 1983, the husband filed an application in the Family Court seeking an order restraining the prosecutrix from enforcing the judgment obtained by her against him in the Supreme Court. It is this application, in an amended form, which is the subject of the prohibition sought.
There appears to have been some confusion about the nature of the husband's application and there was a degree of irregularity about the course which was followed. The filing of the application was necessary in order to institute the proceedings (see Family Law Regulations, reg. 30(1)), and the relief sought would indicate that they were proceedings between the husband and the prosecutrix. The document constituting the application is headed, as it was required to be by reg. 31(1), "In the Marriage of Leonard Mark Marinovich (Husband) and Carol Lesley Marinovich (Wife) ". The number borne by the application is, however, S6907 of 1983, which is the number of the application filed on 4 October 1983 by the husband seeking orders against the wife in relation to their property, including the order for an indemnity to which we have referred. The proceedings instituted by that application were proceedings pursuant to s. 79 of the Family Law Act 1975 Cth between the parties to the marriage. The prosecutrix was not, of course, a party to the marriage nor was she a party to those proceedings.
The application by the husband for an injunction against the prosecutrix not only bears the number of the previous application, but it refers to the wife as the respondent and purported to notify the respondent, not the prosecutrix, that the application had been set down for hearing on 16 January 1984.
A copy of the application for an injunction was sent by post to the prosecutrix's solicitors who refused to accept service. They questioned the jurisdiction of the Family Court in the matter. It seems that on 16 January 1984 the prosecutrix did not appear in the Family Court and that the hearing of the application did not proceed. Pawley J., however, ordered that the application be served upon the prosecutrix by substituted service upon her solicitors. The application was adjourned until 19 January 1984. It does not appear that a copy of the order made by Pawley J. or of the application was subsequently served upon the prosecutrix's solicitors, although they were informed by letter of the order and the adjourned date of the hearing.
On 19 January 1984, the matter came on for hearing before Ross-Jones J. in the Family Court. The prosecutrix appeared by counsel to oppose any relief being granted to the husband. She did not seek leave to intervene. If she had, she may have been deemed to be a party to the proceedings under s. 92(3) of the Family Law Act. No attempt was made to join the prosecutrix as a party to the proceedings then before the Court.
Neither the service of the application for an injunction upon the prosecutrix (which was, at best, dubious) nor her appearance to contest the jurisdiction of the Family Court can have made her a party to the proceedings between the husband and the wife. Her joinder as a party to those proceedings, if appropriate, would have required a separate step to be taken. But it is not at all clear that it would have been appropriate to join the prosecutrix as a third party in those proceedings. The subject-matter of those proceedings and the relief sought by the husband against the wife in them did not involve the prosecutrix: cf. Anderson and Anderson [33] . It may be remarked that the uncertain status of the prosecutrix in the proceedings before the Family Court is not altogether surprising, having regard to the inadequate guidance given by the Family Law Act and the regulations with respect to the persons properly to be made parties to proceedings instituted in that Court and with respect to the joinder of third parties to existing proceedings.
In fact, an amended application was filed by the husband on 19 January 1984, in place of the application filed earlier. The amendment was made for the purpose of seeking additional relief by way of an order setting aside the judgment in the Supreme Court in addition to injunctive relief. The amended application was otherwise in the same form as the earlier application.
Ross-Jones J., who heard the application on 19 January 1984, not surprisingly questioned the jurisdiction of the Family Court to "set aside" a judgment of the Supreme Court but, having insufficient time to undertake a hearing, directed that it be listed as a special fixture on 9 and 10 April 1984 and ordered that the prosecutrix be restrained from taking any steps or any further steps to enforce the judgment obtained by her in the Supreme Court pending further order of the Family Court. It is that order which is the subject of the application for a writ of certiorari.
The jurisdiction of the Family Court is statutory. It is a federal court and its jurisdiction is defined, pursuant to s. 77(i) of the Constitution, by the Family Law Act, which is a law made by Parliament under the relevant powers confided to it by s. 51 of the Constitution. Those powers are to be found principally, if not wholly, in s. 51(xxi), which speaks of "marriage", and s. 51(xxii), which speaks of "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Not only do the relevant legislative powers of the Parliament constitute the ultimate source of the jurisdiction conferred upon the Family Court but they also define the limits of the jurisdiction which can be conferred upon that Court. As Dawson J. observed in D.M.W. v C.G.W. [34] , the declaration in s. 21(2) of the Family Law Act that the Family Court is a superior court of record cannot be taken at face value. A superior court of record is a court of general jurisdiction which means, as appears from Peacock v Bell and Kendal [35] , that even if there are limits to its jurisdiction it will be presumed to have acted within jurisdiction. That is a presumption which is denied to inferior courts and it is also denied to a federal court such as the Family Court. That is necessarily so because the consequence of the presumption is that prohibition does not, in general, go to a superior court (seeMayor of London v Cox [36] ) and prohibition is the means provided to keep federal courts within the bounds of their jurisdictional limits: see Constitution, s. 75(v); Judiciary Act 1903 Cth, s. 33(1)(b); Reg. v Watson; Ex parte Armstrong [37] . In those courts jurisdiction cannot be presumed so as to displace this remedy.
It is, therefore, necessary to turn to the definition of the jurisdiction of the Family Court contained in the Family Law Act. Jurisdiction is conferred upon the Court by s. 31 of the Act and, for present purposes, we need only to go to par. (a) of sub-s. (1), which provides that the Court has jurisdiction in matters arising under the Act in respect of which matrimonial causes are instituted under the Act.
"Matrimonial cause" is defined in s. 4 of the Act and the only relevant paragraphs of the definition are as follows:
(a) proceedings between the parties to a marriage, or by the parties to a marriage, for a decree of -
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings -
(ii) in relation to concurrent, pending or completed proceedings between those parties for principal relief;
(e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship ;
(f) any other proceedings with respect to the enforcement of a decree or in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb) .
"Proceedings" are defined in s. 4 as meaning "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding". "Court" is defined in relation to any proceedings as meaning "the court exercising jurisdiction in those proceedings by virtue of this Act".
Section 114 of the Act gives to the Court a wide power to grant injunctions, both in proceedings referred to in par. (e) of the definition of "matrimonial cause" and in other proceedings. The power given in other proceedings is exercisable in "any case in which it appears to the court to be just or convenient to do so", but it is clear that it is only to be exercised in aid of the jurisdiction otherwise conferred on the Court and that it does not enlarge the ambit of that jurisdiction. That is to say, the power to grant injunctions may only be exercised in cases otherwise within the jurisdiction of the Court: see Reg. v Dovey; Ex parte Ross [38] .
Section 33 of the Act confers jurisdiction on the Court, subject to any limits imposed by the Constitution, in matters which are associated with matters in which the jurisdiction otherwise conferred upon the Court is invoked. As Gibbs C.J. remarked in Reg. v Ross-Jones; Ex parte Beaumont [39] , the effect of the section is not clear, but it cannot operate to confer jurisidiction unless the Court already has jurisdiction.
The inquiry into the jurisdiction of the Family Court in this case can, therefore, be confined to the relevant paragraphs of the definition of "matrimonial cause". In turning to those paragraphs it is necessary to recognize that the definition of "matrimonial cause" encompasses a number of different types of proceedings. Moreover the proceedings which it envisages may be proceedings between parties to a marriage (e.g., par. (a)) or proceedings which are not necessarily between the parties to a marriage or, for that matter, having regard to the definition of "proceedings", between parties at all: e.g., par. (f).
It is clear, in our view, that, notwithstanding the form of the relevant application, the proceedings for present purposes are proceedings by the husband for an injunction and other relief against the prosecutrix. Clearly they are not proceedings between the parties to the marriage. If they are between anyone, they are between the husband and the prosecutrix. Even if the prosecutrix is not a party to those proceedings or any other proceedings in the Family Court, that fact, under the definition of "proceedings", does not prevent them from being proceedings. Whether or not the prosecutrix is a party, the relevant proceedings clearly do not constitute a matrimonial cause within the meaning of pars. (a), (ca) or (e) of the definition of "matrimonial cause" because each of those paragraphs requires the proceedings to be between the parties to a marriage. The only paragraph of the definition which could be suggested to have any application is par. (f). That paragraph does not require the proceedings to be between the parties to a marriage, but requires them to be in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs. The only paragraphs in the preceding paragraphs with any possible relevance are par. (a), which refers to proceedings between the parties to the marriage for a decree of dissolution of marriage, and par. (ca), which refers to proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them. There are in existence concurrent, pending or contemplated proceedings of the kind referred to in those paragraphs.
But the proceedings in which the husband seeks orders against the prosecutrix are not proceedings in relation to the proceedings between the parties to the marriage for the dissolution of the marriage or the proceedings between the parties to the marriage with respect to their property. The relationship required by par. (f) of the definition of "matrimonial cause" is a relationship of an appropriate kind: Reg. v Ross-Jones; Ex parte Beaumont [40] ; Perlman v Perlman [41] . For the proceedings by the husband to prevent the enforcement of the judgment against him by the prosecutrix to be in relation to the proceedings between the husband and the wife there must be more than a mere connection between the two sets of proceedings; there must be some relevant relationship.
The only relationship between the proceedings against the prosecutrix and the existing concurrent, pending or contemplated proceedings which was seriously advanced, was said to arise because of the indemnity sought by the husband in the existing proceedings. But the husband's claim for an indemnity against his wife is a quite separate and distinct proceeding from the proceedings to restrain the prosecutrix from enforcing her judgment against the husband or to set aside that judgment. No doubt the extent of any indemnity, if granted, may be affected by the amount recovered under the judgment, but that establishes no more than a coincidental connection between the proceedings to prevent the judgment from being enforced and the proceedings in which the indemnity is claimed. It does not establish a relevant relationship. The application for an injunction, if successful, would merely protect the assets of the husband from seizure to satisfy the judgment. It has no necessary relation to the claim for an indemnity.
Indeed, the suggested relationship appears to be based upon a misconception, for the husband deposes that had he been able to claim an indemnity against the wife as a third party to the action in the Supreme Court (and he says he could not because those proceedings would be a matrimonial cause within the exclusive jurisdiction of the Family Court), it would have been normal that execution of the prosecutrix's judgment would have been stayed until the resolution of the third party dispute. Such is not the case. The existence of a claim to an indemnity by a defendant against a third party, whether or not the subject of third party proceedings, will not of itself prevent a plaintiff from pursuing the action to judgment or from enforcing the judgment when obtained. The existence of a claim for an indemnity is not a ground for staying execution. There is, of course, the inherent jurisdiction of the Supreme Court to stay proceedings in an action to prevent injustice being done, but the existence of a claim for an indemnity, even when it is unenforceable in the Supreme Court as the claim here is said to be, will not of itself amount to an injustice so as to justify the staying of the action: Telford Panel & Engineering Works Pty Ltd v Elder Smith Goldsbrough-Mort Ltd. [42] .
It follows from what we have said that in our view the proceedings commenced by the application by the husband to restrain the enforcement of the judgment obtained by the prosecutrix in the Supreme Court and, indeed, to set that judgment aside, do not constitute a matrimonial cause and are beyond the jurisdiction of the Family Court.
We should add that even if those proceedings were a matrimonial cause, the Family Court would nevertheless lack the power to grant the relief sought. Apart from any constitutional limitation, it is now authoritatively established that as a matter of construction the general powers of the Family Court are to be understood in the context of the Family Law Act which confers jurisdiction upon the Court in matrimonial causes and associated matters. Those powers, which include the power to grant injunctive relief under s. 114, are not to be construed so as to confer jurisdiction to defeat the rights, or enlarge the obligations, of persons who are not parties to the marriage involved in the relevant matrimonial cause: Ascot Investments Pty Ltd v Harper [43] . Those cases which may have been thought to suggest wider powers, either under the Family Law Act or its predecessor, the Matrimonial Causes Act 1959 Cth, have been explained in Ascot Investments Pty Ltd v Harper to be cases in which, upon closer examination, the rights of third parties were not really affected, either because of the limited nature of the relief granted (Sanders v Sanders [44] ) or because the transaction giving rise to the so-called rights of the third parties was a sham (Antonarkis v Delly [45] ) or because the third party was a company which was no more than the alter ego of one of the parties to the marriage: Reg. v Dovey; Ex parte Ross [46] . The position was succinctly put by Gibbs J., who spoke for the majority in Ascot Investments Pty Ltd v Harper [47] , where, in referring to ss. 80 and 114 of the Family Law Act, he said:
There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do
Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it.
It is not suggested that the present case falls within the exceptions to which Gibbs J. referred. 1. (1981) 148 C.L.R. 337, at p. 354. 2. (1967) 116 C.L.R. 366. 3. (1976) 51 A.L.J.R. 21; 10 A.L.R. 251. 4. (1979) 141 C.L.R., at p. 526. 5. (1981) 148 C.L.R., at pp. 354-355.
Upon the application of these principles, the Family Court has no power, even if it otherwise had jurisdiction, to defeat the right of the prosecutrix to enforce a judgment debt. It certainly has no power to "set aside" the judgment. The widest power given to the Family Court in this context is under s. 85 of the Family Law Act. That section gives power to the Court to set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order or is likely to defeat any such order. The judgment, which was regularly obtained in the Supreme Court of Victoria, is, however, neither an instrument nor a disposition and does not fall within that section.
It was submitted, however, that even though the Family Court may ultimately lack jurisdiction to grant a permanent injunction against the prosecutrix to prevent her from enforcing her judgment against the husband, it had the power to grant an interlocutory injunction to preserve the status quo whilst it determined the extent of its jurisdiction. In this regard, reliance was placed by counsel for the husband upon some recent decisions of the Full Court of the Family Court which have questioned whether the principles stated by Gibbs J. in Ascot Investments Pty Ltd v Harper were intended to have any application to interlocutory orders, because such orders interfered only temporarily with the rights of third parties: In the Marriage of Gillies and Gillies [48] ; Harris and Harris; Re Banaco Pty Ltd [No. 2] [49] .
In our opinion, the principles for which Ascot Investments Pty Ltd v Harper is authority are not to be so limited. The limits which mark out the jurisdiction of the Family Court must be found in the Family Law Act. It is by reference to that Act that the scope of that jurisdiction may be discerned - the subject-matters with which the Court may deal, the relief which it may grant and the parties to whom it may grant that relief: cf. Garthwaite v Garthwaite [50] . The power to determine the existence of jurisdictional facts is not a power which is any way extends the jurisdiction of the court. If a matter is beyond the jurisdiction of a court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief. That proposition appears to us, with all respect, to be self-evident and decisive.
Of course, there may be times when it is necessary for a court to determine, though not conclusively, the existence or otherwise of facts upon which its jurisdiction depends: D.M.W. v C.G.W. [51] ; Reg. v Federal Court of Australia; Ex parte W.A. National Football League [52] . In such cases, there may be times when a court concludes on the material available and often upon an ex parte application that prima facie there is jurisdiction and that the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted. But even then an interim order, subject to the usual undertaking as to damages, should only be made against a third party, in respect of whom the court's jurisdiction may be in question, for such limited time as is necessary to enable that question to be determined, even if it means an alteration in the court's ordinary arrangements. It is only then that the granting of an interim injunction prior to the hearing and determination of the question of jurisdiction could be justified. And this limited possibility must not be allowed to obscure the basic principle that a decision concerning jurisdiction cannot be postponed at the same time as the very jurisdiction which is in question is exercised by the granting of an interlocutory injunction. On the other hand, an interim injunction granted in such circumstances and where jurisdiction is then found to be lacking will nevertheless have been effective in a practical rather than a legal sense in that the party to whom it is directed could have disregarded it only at his peril.
In the present case there was not the slightest appearance of a prima facie case in favour of jurisdiction to grant the relief sought against the prosecutrix. The only conceivable ground for finding such a jurisdiction would have been if the case fell within the range of the exceptions envisaged in Ascot Investments Pty Ltd v Harper. As we have said, it is not suggested that this is such a case.
It does not appear that this objection to the grant of interlocutory relief was specifically raised in the Family Court. Indeed, little consideration appears to have been given to the serious interference with the right of the prosecutrix to the benefit of her judgment in the Supreme Court of which the order of the Family Court, if validly made, would have deprived her for several months. In particular, assuming jurisdiction to make the order, as the Family Court did, no attention appears to have been given to the terms or conditions which ought to have been imposed upon the husband under s. 114(3) of the Family Law Act, including a possible undertaking from him to pay any just compensation found to be payable for loss caused to the prosecutrix by the injunction.
However, the Family Court had no jurisdiction to make the order which it did and has no jurisdiction to grant the relief finally sought. In our view, this is a proper case in which to grant prohibition. The prosecutrix has no clear right of appeal to the Full Court of the Family Court. Section 94(1) of the Family Law Act provides that an appeal lies from a decree (which includes an order) of the Family Court exercising original jurisdiction under the Act, but the Act is silent upon the question of the appropriate parties to an appeal. The section may be wide enough to afford the prosecutrix a right of appeal but there may nevertheless be practical difficulties arising from her uncertain status as a party to any proceedings in the Family Court. An appeal against the interlocutory order made by Ross-Jones J. would not necessarily settle the question of jurisdiction to grant final relief and the prosecutrix, in exercising any right of appeal from the interlocutory order, runs the risk of being drawn into proceedings in which she contends she should have no part and which, so far as she is concerned, have no jurisdictional foundation.
Whilst the prerogative writs should not be used as an alternative to the exercise of a right of appeal and the discretion of this Court may be exercised so as to discourage them from being so used (see Reg. v Cook; Ex parte Twigg [53] ), it cannot, in our view, be said that the prosecutrix is seeking the relief which she does as an alternative to appeal. It may also be observed that several months have elapsed since the hearing of full argument in this Court. The interests of justice will clearly be better served by a final disposition of the matter now, rather than by leaving it to be further pursued in the Family Court.
The proper order is, we think, to make absolute the order nisi for prohibition and for certiorari, the latter being necessary as an ancillary remedy to quash the order for an interlocutory injunction which was made against the prosecutrix on 19 January 1984. Cf. Reg. v Cook; Ex parte Twigg .
Dr. Marinovich's application to the Family Court of Australia sought orders against his former wife's mother, Mrs. Green, that were not within that Court's jurisdiction. I agree with the reasons stated by the Chief Justice for coming to that conclusion. The Family Court may have come to the same conclusion had Mrs. Green not obtained a stay of the Family Court proceedings against her. The stay order was ancillary to an order nisi for prohibition and certiorari directed to Ross-Jones J., to the Chief Judge and to the other judges of the Family Court "prohibiting them and each of them from proceeding further in the application to the extent that it is brought against [the prosecutrix] and removing from the [Family Court] and quashing the interim or interlocutory orders" made against the prosecutrix on 19 January 1984.
The jurisdiction of this Court under s. 75(v) of the Constitution to issue a writ of prohibition to the judges of the Family Court is not in issue. But it is a question in this case whether a writ of prohibition should issue to the Family Court before that Court has decided whether the relief sought by Dr. Marinovich against Mrs. Green is within its jurisdiction to grant.
The Family Court is a superior court of record (Family Law Act 1975 Cth, s. 21(2)), though it is a court of limited jurisdiction. The two characters are not inconsistent, as McTiernan J. pointed out in Cameron v Cole [54] . It has jurisdiction to determine - and to determine judicially - whether it has the jurisdiction to entertain a particular application or to make a particular order. Where the substantive jurisdiction of the court depends upon facts, the court may find the facts - and find them judicially - in the exercise of its jurisdiction to determine the extent of its substantive jurisdiction: D.M.W. v C.G.W. [55] . Prohibition does not lie to prevent the court from entering upon the preliminary inquiry: Reg. v Federal Court of Australia; Ex parte W.A. National Football League (Adamson's Case) [56] . If the court makes an order on the application before it, it is implicit in the order that the court has determined that it has the jurisdiction to do so: Peacock v Bell and Kendal [57] . Unlike a decision by an inferior court or a quasi-judicial tribunal, a judgment of a superior court of record "is conclusive as to all relevant matters thereby decided" (Mayor of London v Cox [58] ) but, in the case of superior federal courts, subject to a qualification which is required by the Constitution.
Chapter III of the Constitution makes it impossible for a court created by the Parliament to determine the constitutional limits of its own jurisdiction so as to exclude the jurisdiction of this Court to make a conclusive and binding determination of the same question: Adamson's Case [59] . The jurisdiction of this Court and the jurisdiction of a superior court created by the Parliament to determine the constitutional limits of the jurisdiction of that superior federal court in a particular matter are concurrent. Both jurisdictions may be invoked at the same time. The exercise of concurrent jurisdiction by two superior courts to determine the constitutional limits of the jurisdiction of one of them raises for consideration a problem which does not arise so acutely when prohibition is sought to restrain an excess or threatened excess of jurisdiction by a quasi-judicial tribunal or an inferior court. That problem is the order in which the courts should exercise their respective jurisdictions to determine the same question. It would be futile for a superior federal court to determine the constitutional limit of its jurisdiction differently from the determination made by this Court.
Although the same question may arise for decision in both courts, this Court alone has jurisdiction to make an incontrovertible determination as to the constitutional limits of the jurisdiction of a superior court created by the Parliament; the conclusiveness of a determination by such a superior court as to the constitutional limits of its own jurisdiction is qualified by the possibility of this Court's intervention. As the conclusiveness of the determination of the issue by the respective courts is in one case absolute and in the other case qualified, the jurisdiction of one cannot be equated with the jurisdiction of the other. It follows that when this Court's jurisdiction is properly invoked, this Court cannot decline to exercise it on the ground that there is another more convenient forum for the exercise of the same jurisdiction. The doctrine of forum non conveniens has no part to play: see generally the discussion of the doctrine in Barwick, The Australian Judicial System: The Proposed New Federal Superior Court, Federal Law Review, vol. 1 (1964-65), pp. 10-14; Lindell, Duty to Exercise Judicial Review in Zines (ed.) Commentaries on the Australian Constitution (1977), 150, pp. 156-157; and Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed. (1978), p. 81. Should the determination of the common question be left to this Court alone? Or do the principles affecting the exercise of this Court's jurisdiction under s. 75(v) of the Constitution to issue prohibition to a superior court authorize this Court to refuse relief on the ground that the superior federal court ought to determine its own jurisdiction first?
In my opinion, the nature of this Court's jurisdiction to issue prohibition to a superior federal court under s. 75(v) and the purpose of the exercise of that jurisdiction distinguish it from the ordinary common law jurisdiction to issue prohibition to an inferior court. The jurisdiction of a superior federal court to determine the constitutional limits of its own substantive jurisdiction and to determine those limits conclusively subject only to the intervention of this Court must be exercised whenever an application is made to that court; the intervention of this Court must be invoked in respect of a particular matter pending in the superior federal court but it needs to be exercised only to correct errors made by a superior federal court in determining the constitutional limits of its own jurisdiction. In other words, priority in determining the superior federal court's substantive jurisdiction is with that court. The purpose to be served by exercising this Court's jurisdiction is the restraining of actual or likely assertions of jurisdiction by a federal superior court in excess of its true constitutional limits. If that view be right, it is not appropriate to invoke the s. 75(v) jurisdiction of this Court until an excess of jurisdiction has actually occurred or is likely to be asserted.
No doubt the common law provides the matrix of principle by reference to which the s. 75(v) jurisdiction is to be exercised, but the principles affecting the issuing of prohibition to federal superior courts may require some modification of the common law rules. In Adamson's Case [60] Barwick C.J. referred to the importation by use of the word "prohibition" in s. 75(v) of "the law appertaining to the grant of prohibition by the King's Bench". But the common law did not have to take account of the operation of s. 75(v) in its application to superior federal courts. At common law, no application can be made for prohibition before the inferior court or tribunal is invoked or before it assumes a jurisdiction or authority over the matter (Reg. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [61] ), but as soon as court process has been served a prosecutor is entitled to the issue of prohibition as of course if the absence of jurisdiction is apparent upon the face of the proceedings - a patent defect: Mayor of London v Cox [62] ; Farquharson v Morgan [63] , per Lopes L.J.; Yirrell v Yirrell [64] ; Master Retailers Association of N.S.W. v Shop Assistants Union of N.S.W. [65] . Where the defect of jurisdiction is not patent, prohibition is discretionary and "where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made": Reg. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [66] . The s. 75(v) jurisdiction of this Court over superior federal courts is, in my opinion, discretionary in every case. In Reg. v Cook; Ex parte Twigg [67] , where certiorari - a discretionary remedy - was sought as ancillary to prohibition, and certiorari issued for an error on the face of the proceedings, Mason and Wilson JJ. deprecated the practice of making premature applications for prerogative relief. Then, in In re Baker and Wilkie; Ex parte Johnston [68] , Gibbs J., with the agreement of Stephen, Murphy, Aickin and Wilson JJ. said:
Mr. Milne has submitted that this is a case where the court had no jurisdiction and that, in such a case, prohibition should be granted notwithstanding that no attempt was made to persuade the Family Court to vacate its orders. It is, of course, impossible to lay down any hard and fast rule governing the exercise of the discretion of the Court in a case such as the present. However, in the recent case of Reg. v Cook; Ex parte Twigg some members of this Court deprecated the practice of prematurely and perhaps unnecessarily applying to this Court for a prerogative writ instead of pursuing the remedy of appeal within the Family Court, and I would respectfully indorse those general remarks.
In the present case every reason of convenience suggests that the questions in issue should be litigated in the Family Court rather than in this Court at first instance. In my opinion in the exercise of our discretion we should discharge the order nisi.
Although In re Baker and Wilkie; Ex parte Johnston appears to have turned on questions of fact, so that the issue of prohibition would have been discretionary at common law, the observations as to prematurity of applications are directed more to the orderly administration of justice than to a common law distinction between patent and latent defects of jurisdiction. It is clear that prematurity in applying for prohibition under s. 75(v) may be established when the questions in issue ought, for reasons of curial convenience, to be litigated first in the Family Court. There is no reason to distinguish between cases where jurisdiction turns on a question of law and cases where it turns on a question of fact or of mixed law and fact; there is no reason to distinguish between cases where the absence of jurisdiction appears on the face of the proceedings and cases where it does not. That view reflects what Mason J. said in Reg. v Federal Court of Australia; Ex parte Pilkington A.C.I. (Operations) Pty Ltd [69] , though his Honour was there concerned with inquiries into jurisdictional facts. In that case [70] , his Honour pointed out that there are the strongest reasons why this Court should insist upon a strict application of the rule that prohibition will not issue unless it appears that there is an absence, or an excess, of jurisdiction and that cases in which an award of prohibition was made before an inferior tribunal had decided the issue on which its jurisdiction depended are, for the most part, cases in which there was some reason for thinking that the tribunal would decide the issue erroneously or would otherwise exceed the jurisdiction conferred upon it. A fortiori, prohibition ought not to go to a superior court if it has not decided the issue on which its jurisdiction depends unless it appears that it is likely that that court will decide that issue erroneously or that it will exceed the true constitutional limits of its substantive jurisdiction. It is premature and unnecessary to invoke the jurisdiction of this Court to issue prohibition to a superior federal court on a ground which that court has not considered or been called on to consider even though an absence of jurisdiction appears on the face of the proceedings before it.
Refusal of relief on the ground of prematurity is not an absolute refusal to exercise the supervisory jurisdiction which the Constitution vests in this Court. A party who has been refused relief on the grounds of prematurity by this Court may, if need be, apply anew. This Court does not refuse to exercise its jurisdiction when it is properly invoked but, in my opinion, it would be an extraordinary case where it is proper to invoke this Court's jurisdiction to issue prohibition directed to a superior federal court where that court had neither determined the issue on which its substantive jurisdiction depends nor appeared likely to exceed the true constitutional limits of its jurisdiction. However, the making of an interim or interlocutory order by a superior federal court is an interim or interlocutory assertion of jurisdiction to make it and may make it appropriate to invoke the jurisdiction of the court to prohibit further proceedings on or under the interim or interlocutory order and to quash it. If this Court then determines the question on which the superior federal court's jurisdiction to make a final order depends, this Court must give effect to its view without awaiting a further and futile determination by the superior federal court.
In the present case, although the Family Court did not finally determine the constitutional limits of its own jurisdiction, an interlocutory order was made which was beyond its jurisdiction. On the face of Dr. Marinovich's application there appears an absence of jurisdiction in the Family Court to make the orders sought against Mrs. Green and thus an absence of jurisdiction to make the interlocutory order of 19 January 1984. Where a defect of jurisdiction is patent, it is a defect which "the judge should have observed, and of which he himself should have taken notice": Farquharson v Morgan [71] , per Lopes L.J. That is not necessarily a criticism of a judge who makes an interim or interlocutory order. In many cases (and this is one of them) long argument on the constitutional limits of substantive jurisdiction is needed before a court is satisfied that there is a patent defect of jurisdiction. In many cases (and this is one of them), the court list for the day does not allow time for argument and decision. The court's jurisdiction is not enlarged by those difficulties.
However, where a defect of jurisdiction appears only after an examination of the jurisdictional facts, and the superior federal court has had no opportunity to examine them, an applicant to this Court for prohibition cannot ordinarily show that the interim or interlocutory order is not within the jurisdiction of the superior federal court. The absence of jurisdiction will appear, if at all, only after an examination of the jurisdictional facts and that examination must ordinarily be made first by the superior federal court. Pending that examination a judge of the superior federal court may assume the jurisdiction to make an interim or interlocutory order. But where the defect of jurisdiction is patent, it is possible for a party aggrieved by the making of an interim or interlocutory order to demonstrate, without reference to the facts, the absence of jurisdiction to make the order. When an interim or interlocutory order is made and the defect of jurisdiction is patent, it is not premature to invoke the s. 75(v) jurisdiction of this Court, though the fact that the order which founds the application is not a final order may warrant a discretionary refusal to grant the remedy if no substantial injustice would be done thereby.
In this case the Family Court had not determined the issue on which its substantive jurisdiction depended, but it had erroneously assumed a jurisdiction that it did not have when it made the order of 19 January 1984. The application to this Court is not premature. As the patent defect of jurisdiction has been established after argument the Family Court ought now to be prohibited from proceeding further on both the application and on the interlocutory order. Certiorari should go to bring up the interlocutory order to be quashed.
The prosecutrix seeks to have made absolue an order nisi for prohibition (and, "so far as may be necessary", certiorari) directed to the judges of the Family Court of Australia prohibiting them and each of them from proceeding further with the hearing of an application by the respondent Leonard Marinovich ("the husband") and "removing from the said Court and quashing the interim or interlocutory orders and directions made by the said Court" against the prosecutrix upon the said application. The Family Court application was made by the husband against the prosecutrix in matrimonial proceedings against his wife who is the daughter of the prosecutrix. In it, the husband seeks, among other things, an order restraining the prosecutrix from taking any step to enforce a judgment which she has obtained against him in the Supreme Court of Victoria. The interim or interlocutory order consists of an interim injunction restraining the prosecutrix from taking any such step pending further order of the Family Court. While the grounds upon which the husband claimed to be entitled to relief against the prosecutrix do not emerge clearly from the face of the application or from the transcript of proceedings at first instance, it would seem clear enough that the general claim was to the effect that the wife and the prosecutrix were acting in concert, that the husband was entitled to be indemnified by the wife in respect of the judgment debt and that a significant part of the judgment debt (some $36,000 odd) represented money which, to quote senior counsel's words to the judge at first instance, "the wife claimed was a debt due to her from the husband and which she simply assigned to her mother". As I followed the argument, it was not disputed in this Court by the prosecutrix that, if part of the judgment debt was held by the prosecutrix upon resulting trust for the wife, the Family Court would possess jurisdiction to restrain enforcement of the judgment to that extent.
Notwithstanding some initial disagreement on the question (see Reg. v Federal Court of Australia; Ex parte W.A. National Football League [72] ), it is now settled that, apart from exceptional circumstances, the ordinary avenue of an appeal from an order of a judge of the Family Court to the Full Court of that Court should be pursued in preference to that of seeking the extraordinary remedy of the issue of prohibition or similar writ by this Court at least in a case such as the present where the main dispute is not on a question of the extent of constitutional legislative power: see Reg. v Cook; Ex parte Twigg [73] ; Reg. v Baker and Wilkie; Ex parte Johnston [74] and cf. Reg. v Ross-Jones; Ex parte Beaumont [75] . There are several good reasons why that should be so.
The first of those reasons relates to the nature of proceedings for prohibition. A writ of prohibition directed to the Family Court is not in the nature of a quia timet injunction to restrain some apprehended excess of jurisdiction. Its basis must be found in the assertion by the Family Court of jurisdiction which it does not possess. The object of such a writ is to preclude the Family Court from proceeding further in the matter before it either at all or otherwise than subject to limitations or conditions. The question whether the Family Court lacks jurisdiction will commonly be foreclosed by the fact that the Family Court itself possesses authority to decide whether it has jurisdiction to deal with the particular matter which is before it. Thus, in the present case, an order absolute for prohibition in the terms of the order nisi would be misconceived in that it would preclude the judges of the Family Court from proceeding any further with the application presently before that Court in a situation where that Court is entitled - indeed, under a duty - to decide the question of its jurisdiction to grant the relief sought and, even if it concludes that such jurisdiction does not exist, to dismiss or strike out the application and determine any question of costs. In that regard, it is important to remember that the grant of jurisdiction to the Family Court "must carry with it the power to determine the existence or otherwise of facts upon which its jurisdiction depends" (D.M.W. v C.G.W. [76] ) and that the evidence before this Court on the question of jurisdiction need not necessarily correspond with the evidence which would ultimately be placed before the Family Court. Moreover, if proceedings for a prerogative writ are brought prematurely before the issues are properly defined in the Family Court, considerations or evidence relevant to the existence of jurisdiction, particularly jurisdiction to entertain a claim against a third person who is not a party to the relevant marriage, may properly be perceived by a member of the Family Court, such as a judge who is asked to make an early interlocutory order to maintain the status quo, to have a significance which is not apparent to the members of this Court whose practical experience in family law matters is ordinarily, at best, limited: cf. per Cockburn C.J., The Charkieh [1] .
A second reason is related to the first. It is that a writ of prohibition precluding the Family Court from dealing with a matter effectively deprives this Court of the benefit of the views of the members of the Full Court of that Court on the particular case. The Family Court's jurisdiction is a specialist one. The judges of that Court possess specialist experience and knowledge of the content and administration of family law and of the Family Court's own practice and procedures. Where questions of constitutional power are not involved, it is undesirable that a substantive question which has arisen in the Family Court should be determined in this Court without the benefit of the views of the Full Court of the Family Court on the particular case. The position is, of course, a fortiori in a case where prohibition is sought before even the primary judge has had an opportunity of dealing with the question which it is sought to raise in this Court.
A third reason is that the intervention by this Court in mid-course of proceedings in the Family Court is disruptive of the ordinary and established procedure which parties to litigation and the judges of that Court should, at least in cases where questions of constitutional power are not raised, be entitled to expect to be observed in other than extraordinary circumstances. The importance of this consideration is enhanced by the fact that an application for prohibition before the Family Court has had the opportunity of dealing with a matter may be seen by an applicant as a convenient method of sidestepping both the ordinary appellate procedure within that Court and the ordinary need to satisfy this Court that the matter is one in which special leave to appeal to this Court should be granted.
The interlocutory order in the present case was made by a single judge of the Family Court (Ross-Jones J.) in the course of what would seem to have been a busy day as duty judge. It was made for the express purpose of preserving the status quo until the question of the Family Court's jurisdiction to grant the relief sought in the application could be argued and resolved. If his Honour had dealt with the question of jurisdiction, it may well be that he would have resolved it in the prosecutrix's favour. One, perhaps the main, reason why he did not deal with the question at that stage was that counsel who then appeared for the prosecutrix informed him that he was not in a position to argue it. It is apparent that his Honour had, and still has, the authority to determine the question of jurisdiction including "the existence or otherwise of facts upon which jurisdiction depends": D.M.W. v C.G.W. [2] . It is common ground that an appeal lay to the Full Court of the Family Court from the interlocutory order which he made and from any subsequent decision he may have reached on the question of jurisdiction. It may well be that, if the prosecutrix had appealed to the Full Court of the Family Court against the interlocutory order, the Full Court would have held that, regardless of any question of jurisdiction, the interlocutory order was not one which the learned primary judge should have made in the circumstances. In that regard, it is relevant to mention that an early date was specially arranged in the Family Court on which the question of jurisdiction could be argued before the primary judge. That date, 9 April 1984, had passed before the present application could even come on for argument in this Court. It would seem likely that, by the time judgment is delivered in this Court, the question of jurisdiction would have been resolved not only by the primary judge but, if the primary judge had continued the interlocutory relief and an appeal from his decision had been instituted and expedited, also by the Full Court of the Family Court.
The issues involved in the application to the Family Court for an order against the prosecutrix and the precise basis on which the interlocutory order was made do not appear clearly from the material before this Court. At a number of different stages in argument, questions of the practice and procedure of the Family Court, such as the matters which could be raised and the orders which could be sought on an application in the form of that in the present case, have emerged as relevant to an understanding of the basis upon which the interlocutory relief might have been seen by his Honour as within jurisdiction. On those questions, the views of Family Court judges would be particularly helpful. In the result, the Court is asked to determine not unimportant questions relating to the scope of the jurisdiction of the Family Court on the basis of assumptions and assertions as to the practice and procedure of that Court and, at a time when no judge of the Family Court has had any real opportunity of considering the question of that Court's jurisdiction, to make an order effectively precluding any Family Court judge from exercising that Court's undoubted authority to consider that general question of jurisdiction or of determining the facts relevant to it. As has been said, if it were sought merely to challenge the interlocutory order, it is common ground that an appeal from that order lay to the Full Court of the Family Court. Apart from that interlocutory order which was made to maintain the status quo until the question of jurisdiction could be considered, there is nothing at all to suggest that any judge of the Family Court would purport to exceed whatever jurisdiction that Court might have in relation to the application.
The constitutional writ of prohibition is an important safeguard against abuse of jurisdiction. Its grant lies within discretion at least in a case where alternative remedies by way of appeal are available. It is important that care be taken to ensure that it is not itself abused by being made an instrument of unnecessary and undesirable disruption and avoidance of the ordinary and orderly procedures, including appellate procedures, within the courts to which it may be directed. The considerations relating to the present case which have been set out above demonstrate that this case does not come within the exceptional circumstances in which this Court should intervene by writ of prohibition in mid-course of proceedings before the Family Court. To the contrary, they demonsrate that this is precisely the type of case in which such intervention by prerogative writ is undesirable. That being so, the Court should, in accordance with the husband's submission, discharge the order nisi without dealing with the substantive questions which might, according to what view one takes of the effect of the unsatisfactory material in evidence, arise.
It should be mentioned that it was submitted on behalf of the prosecutrix that the Full Court of the Family Court has already decided the questions of law involved in the present case inGillies and Gillies [3] and Harris and Harris; Re Banaco Pty Ltd [No. 2] [4] . Each of those decisions concerned an application by a party to the marriage to restrain Supreme Court proceedings instituted by a third party concerning the matrimonial home. The decisions of the Full Court in each case turned upon a detailed consideration of the factual background of the relationship between the parties to the marriage and the third party. The state of the evidence in the present case makes it impossible to conclude that the question of jurisdiction in this case is answered by either of those decisions. To the contrary, in neither of those cases was there any suggestion that any of the disputed property was held in trust for a party to the marriage or any attempt to found jurisdiction against a third party on the basis of an alleged liability of a party to the marriage to indemnify the other party to the marriage in relation to the third party's claim. It was suggested that the Full Court of the Family Court had, in those two cases, wrongly laid down a general proposition that the decision of this Court in Ascot Investments Pty Ltd v Harper [5] was not applicable to interlocutory orders. I do not read those judgments as laying down any such general proposition and it would seem that they have not been understood by the judges of the Family Court as purporting so to do: see, e.g., Wagner and Wagner [6] ; Buckeridge and Buckeridge [No. 2] [7] ; Pockran and Crewes; Pockran [8] .
R
Ross-Jones; Ex parte Green
High Court of Australia Gibbs C.J. Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. R v Ross-Jones; Ex parte Green [1984] HCA 82