The Queen v Ross-Jones; Ex parte Green
(1984) 156 CLR 185(1984) 56 ALR 609
(Decision by: Deane)
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
Decision by:
Deane
The prosecutrix seeks to have made absolute 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 (1979) 143 CLR 190 ), 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 (1980) 147 CLR 15 , at pp 29-30, 34; Reg. v. Baker and Wilkie; Ex parte Johnston (1980) 55 ALJR 191 , at p 192 and cf. Reg. v. Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 , at pp 517-518, 522). 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. (1982) 57 ALJR 144 , at p 148) 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 (1873) L.R. 8 Q.B. 197, at pp.199-200).
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., at p 148). 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 demonstrate 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 in The Marriage of Gillies (1981) 7 Fam.L.R. 106 and Harris and Harris: Re Banaco Pty. Ltd. (No.2) (1981) FL.C. 91 -100. 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 (1981) 148 CLR 337 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 (1984) F.L.C. 91 -518, at p.79,201; Buckeridge and Buckeridge (No.2) (1981) F.L.C. 91 -114, at p.76,860; Pockran and Crewes; Pockran (1983) F.L.C. 91 -311, at pp.78,122-78,123).
The order nisi should be discharged with costs.