The Queen v Ross-Jones; Ex parte Green
(1984) 156 CLR 185(1984) 56 ALR 609
(Judgment by: Brennan)
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.
BrennanDeane
Judgment date: 6 DECEMBER 1984
Judgment by:
Brennan
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 Mr Justice Ross-Jones, 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 (1944) 68 CLR 571 , at p 599. 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. (1982) 57 ALJR 144 , at p 148). Prohibition does not lie to prevent the Court from entering upon the preliminary enquiry: R v. Federal Court of Australia; Ex parte W.A. National Football League (1979) 143 CLR 190 (Adamson's Case), at pp 203,215-216,225. 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 (1668) 1 Wms Saund 73 ( 85 ER 84 )). 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, & c., of London v. Cox (1867) LR 2 HL 239, at p 262) 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, at pp.202,214-215,228,238). 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), 1, at pp.10-14; Lindell "Duty to Exercise Judicial Review" in Zines (ed.) Commentaries on the Australian Constitution (1977), 150, at pp.156-157; and Cowen & 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 Barwick C.J. (at p.201) 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 (R v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 CLR 100 , at p 119), 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, & c., of London v. Cox, at p 281; Farquharson v. Morgan (1894) 1 QB 552 , per Lopes L.J. at p 557; Yirrell v. Yirrell (1939) 62 CLR 287 , at pp 297,304,306,310; The Master Retailers Association of N.S.W. v. The Shop Assistants Union of N.S.W. and Others (1904) 2 CLR 94 , at p 98). 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" (R v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd., at p 119).
The s.75(v) jurisdiction of this Court over superior federal Courts is, in my opinion, discretionary in every case. In R v. Cook; Ex parte Twigg (1980) 147 CLR 15 , 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 Re Wilkie; Ex parte Johnston (1980) 55 ALJR 191 , Gibbs J., with the agreement of Stephen, Murphy, Aickin and Wilson JJ. said (at p 192):
" 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 In re 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 Re Wilkie 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 R v. Federal Court of Australia; Ex parte Pilkington ACI. (Operations) Pty. Ltd. (1978) 142 CLR 113 , though his Honour was there concerned with enquiries into jurisdictional facts. In that case, his Honour pointed out (at pp.126-127) 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, per Lopes L.J. at p 559). 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.