The Queen v Ross-Jones; Ex parte Green
(1984) 156 CLR 185(1984) 56 ALR 609
(Judgment by: Gibbs C.J.)
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
Judgment by:
Gibbs C.J.
This is the return of an order nisi for prohibition (and "so far as may be necessary" certiorari) directed to the Honourable Mr Justice Ross-Jones and the Chief Judge and other judges of the Family Court of Australia.
The prosecutrix, Mrs Green, is the mother of Carol Lesley Marinovich, the former wife of Dr Leonard Mark Marinovich. The marriage was dissolved by decree nisi pronounced in the Family Court on 18 February 1983 . The parties to the marriage had separated soon after the execution of the deed to which I am about to refer.
By a deed executed on 27 November 1981 , Dr Marinovich acknowledged indebtedness to Mrs Green in the sum of $294,158.12 and agreed to repay that sum, with interest, by weekly payments, and further agreed that the whole of the unpaid balance, together with interest, would become due on default. After some instalments had been paid, default was made and on 12 October 1982 Mrs Green issued out of the Supreme Court of Victoria a writ against Dr Marinovich claiming $287,334.89. An appearance was entered on behalf of Dr Marinovich and thereafter Mrs Green made an application for summary judgment. Dr Marinovich filed an affidavit disputing part of the indebtedness and, on 13 October 1983 , Master Mahony gave Mrs Green leave to enter final judgment in the action against Dr Marinovich for $165,544.89 together with interest and further ordered that, provided that Dr Marinovich paid into court the sum of $121,790 not later than 25 November 1983 , he should have leave to defend the action as to the balance of the claim, namely the sum of $121,790. The master further ordered that in default of payment Mrs Green have leave to enter final judgment in the sum of $121,790 together with interest. The sum was not paid into court and on 5 December 1983 final judgment was entered against Dr Marinovich for $287,334.89, together with interest amounting to $49,358.62, a total of $336,693.51.
In the meantime, on 4 October 1983 , Dr Marinovich had filed in the Family Court an application for orders under s.79 of the Family Law Act 1975 (Cth), as amended, ("the Act") for an order for the alteration of property interests. One of the orders sought by that application was as follows:
"That the Respondent (Mrs Marinovich) do indemnify the Applicant in respect of all moneys verdicts costs and expenses whatever that he may sustain in proceedings issued out of the Supreme Court of Victoria by Carol Agnes Green and that she do pay to the Applicant all moneys found to be payable by the Applicant in such proceedings including his costs thereof."
Sometime in December 1983 Dr Marinovich filed in the Family Court an application for orders for an injunction. The application was headed "In the Marriage of Leonard Mark Marinovich (Husband) ... and Carol Lesley Marinovich (Wife) ..." but in fact sought no relief against Mrs Marinovich. The relief sought was set out in par.1 of the application and was as follows:
"(a) That Carol Agnes Green be restrained from taking any steps whatever to enforce in any way the judgment obtained by her in the Supreme Court of Victoria in proceedings number 8126 of 1982 against the husband in these proceedings pending further order of the Court.
(b) That Carol Agnes Green pay Applicant's costs incurred by the Applicant husband in this matter limited to costs incurred by him in respect of any opposition to this application."
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 Judgement 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 9th June, 1981 she (Mrs Marinovich) said inter alia concerning various of the alleged advances
- ...
- (b)
- 'Regarding the amount of $36,000.00 referred to in the letter dated 28th May, 1981 from my mother's solicitor to your firm comment as follows:-
$12,000.00 owed by my husband to myself. $15,000.00 " " " " " " $4,000.00 " " " " " " $5,000.00 " " " " " " 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 (1979) 143 CLR 190 . 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 (1976) 136 CLR 248 ; and see Reg. v. Cook; Ex parte Twigg (1980) 147 CLR 15 . 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, at pp 29, 30, 34; Re Baker and Wilkie; Ex parte Johnston (1980) 55 ALJR 191 ; and see Reg. v. Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 , at pp 513, 518, 522. 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 (1905) 3 CLR 221 , at p 236; R v. Commonwealth Court of Conciliation and Arbitration. Ex Parte Whybrow & Co. (1910) 11 CLR 1 , at p 21; and see the cases cited in de Smith's Judicial Review of Administrative Action, 4th ed. (1980), at 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. (1953) 88 CLR 100 , at pp 118-119. 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. (1916) 22 CLR 261 . 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. (1982) 57 ALJR 144 , at p 148). 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. (1978) 142 CLR 113 , at p 127) 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 -
- (i)
- arising out of the marital relationship;
- (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 (1976) 134 CLR 495 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 (1984) 58 ALJR 78 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, at p.81:
"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 (at p 510). 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 at pp 510-511, 520). 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 (1978) 143 CLR 410 , at pp 417, 423, 427; 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 (1982) 56 ALJR 321 , at pp 324-325, 326-327, 334)."
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).
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 devastating 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 (1979) 141 CLR 526 , at p 532; and see also Reg. v. Ross-Jones; Ex parte Beaumont, at p 510. 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 (1972) 127 CLR 1 , especially at pp 7-8.
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 (1981) 148 CLR 337 , where the earlier cases were considered and put into their true perspective. I there said, at p 354:
"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, at pp 354-355.
In argument before us particular reliance was placed on two decisions of the Full Court of the Family Court, Gillies and Gillies (1981) FLC 91 -054 and Harris and Harris; Re Banaco Pty. Ltd. (No. 2) (1981) FLC 91 -100. 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, at pp 354-355. 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, at p 509, 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 (1984) FLC 91 -518, Lindenmayer J. cast doubt on the correctness of Harris and Harris; Re Banaco Pty. Ltd. (No. 2), 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. (1920) 28 CLR 456 , at pp 463-464), 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.