The Queen v Ross-Jones; Ex parte Green

(1984) 156 CLR 185
(1984) 56 ALR 609

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(Judgment by: Wilson & Dawson JJ.)

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI DIRECTED TO THE HONOURABLE MR JUSTICE BRYCE ERNEST ROSS-JONES AND THE CHIEF JUSTICE AND OTHER JUDGES OF THE FAMILY COURT OF AUSTRALIA, LEONARD MARK MARINOVICH AND CAROL LESLEY MARINOVICH; Ex parte CAROLINE AGNES GREEN

Court:

Judges: Gibbs C.J.
Mason
Murphy

Wilson & Dawson JJ.Brennan
Deane

Judgment date: 6 DECEMBER 1984

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Judgment by:
Wilson & Dawson JJ.

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 Leslie Marinovich (Wife) ..." The number borne by the application is, however, S 6907 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 (1981) FLC 91 -110. 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. (1982) 57 ALJR 144 , at pp 149-150, 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 (1667) 1 Wms Saund 73, at pp 73-75 ( 85 ER 84 , at pp 84-88), 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 (see Mayor, & c., of London v. Cox (1867) LR 2 HL 239) 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 (1976) 136 CLR 248 , at p 263. 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 -

(i)

dissolution of marriage; or

(ii)

nullity of marriage;

...

(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 -

(i)

arising out of the marital relationship;

(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 (1979) 141 CLR 526 , at p 532.

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 (1979) 141 CLR 504 , at p 509, the effect of the section is not clear, but it cannot operate to confer jurisdiction 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, at p 510; Perlman v. Perlman (1984) 58 ALJR 78 , at p 81. 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 connexion 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 connexion 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 Goldsborough Mort Ltd. (1969) VR 193 .

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 (1981) 148 CLR 337 , at p 354. 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 (1967) 116 CLR 366 ) or because the transaction giving rise to the so-called rights of the third parties was a sham (Antonarkis v. Delly (1976) 51 ALJR 21 ) 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, at p 526). The position was succinctly put by Gibbs J., who spoke for the majority in Ascot Investments Pty. Ltd. v. Harper, at pp 354-355, 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.

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: Gillies and Gillies (1981) FLC 91 -054; Harris and Harris; Re Banaco Pty. Ltd. (No. 2) (1981) FLC 91 -100.

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 (1964) P 356 , at p 387. The power to determine the existence of jurisdictional facts is not a power which in 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., at pp 146, 148 and 150; Reg. v. Federal Court of Australia; Ex parte W.A National Football League (1979) 143 CLR 190 . 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 (1980) 147 CLR 15 , at pp 30, 34), 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.