R v Ross-Jones; Ex parte Green

R v Ross-Jones; Ex parte Green - [1984] HCA 82 - HCA 1984 case summary — Zoe

[12]

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.

[23]

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.

[31]

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.

[98]

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:

[102]

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.

[111]

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] .

[115]

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.

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