The Queen v Gray; Ex parte Marsh

157 CLR 351
1985 WL 514554 (HCA)
62 ALR 17
59 ALJR 804
11 IR 333

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(Decision by: Deane J)

The Queen
vGray; Ex parte Marsh

Court:

Judges: Gibbs CJ
Mason J
Wilson J
Brennan J
Deane J
Dawson J

Legislative References:
Conciliation and Arbitration Act 1904 (Cth) - 4(1); Part IX; 159(4)(a)
Federal Court of Australia Act 1976 - 5(2)
Judiciary Act 1903 (Cth) - 33(1)(b)
Family Law Act 1975 (Cth) - 21(2)

Other References:
de Smith's Judicial Review of Administrative Action, 4th ed. (1980)
Whitmore and Aronson, Review of Administrative Action (1978)
The Practice of Law In All Its Departments, 1st ed. (1833), vol. II

Hearing date: 17 October 1985. Perth
Judgment date: 18 June 1985

Canberra

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Decision by:
Deane J

I agree, for the reasons which he gives, with the conclusion of the Chief Justice that the members of the Full Court of the Federal Court were correct in holding that the purported appeal to that Court was incompetent. I would refuse the application for leave to appeal to this Court from that decision of the Federal Court.

I also agree, for the reasons which he gives, with the Chief Justice's conclusion that, in the light of the "facts relied on" set out in the application for inquiry and of the effect of the definition of "irregularity" in s. 4(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), the matters alleged against Mr. Bali do not, for the purposes of Pt IX of the Act, constitute an "irregularity" within the scope of that definition: see, also, the judgment of Keely J. in Re Bragg ^[56] . Notwithstanding that conclusion however, I consider that the present case is not a proper one for the intervention of this Court by way of prerogative writ. Indeed, were it not for the views expressed by St. John and Wilcox JJ. in their joint judgment in the Full Court of the Federal Court about the effect of the definition of "irregularity" in s. 4(1) of the Act which conflict with the reasoning of the Chief Justice with which I have expressed agreement, I should have followed the example of Northrop J. in that Court and refrained from expressing any view at all about the substantive questions involved in the proceedings before the learned trial judge. I turn to explain why, in my view, the matter is not a proper one for relief by way of prohibition or certiorari.

The investiture of the Court by s. 75(v) of the Constitution with original jurisdiction in "matters ... [i]n which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth" does not constitute a mandate to grant those remedies in circumstances where the particular remedy is, of its nature and as a matter of established doctrine, inappropriate to be granted against the particular officer of the Commonwealth in relation to the particular function which he or she ought to perform, is performing or has performed. While the Parliament cannot, by its laws, override the provision of s. 75(v), it can make laws within the context of which the jurisdiction conferred by s. 75(v) must be exercised. If, as has sometimes been suggested (see, e.g., Whitmore and Aronson, Review of Administrative Action (1978), pp. 421, 361), the prerogative writs did not go at all to a superior court of record, s. 75(v) would not, in my view, confer upon this Court jurisdiction to direct mandamus or prohibition to what was in truth such a court even though the particular judge was, for the purposes of that paragraph, properly to be seen as an "officer of the Commonwealth". In fact, however, the proposition that the prerogative writs do not go to a superior court of record is mistaken, at least in so far as prohibition is concerned, if the words "superior court of record" are used as having their ordinary meaning in this country which is the meaning with which I understand them to be customarily used in both Commonwealth and State legislation. That meaning refers essentially to the general status of a court as a "superior", as distinct from an "inferior", court. That "status" involves a number of characteristics of which some are essential but of which no single one is necessarily affirmatively decisive. Those characteristics relate mainly, though not exclusively, to the actual exercise of the jurisdiction which is vested in the particular court. They were summarized by Latham C.J. in his judgment in R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section ^[57] . It suffices, for present purposes, to refer to but two aspects of them. The first aspect is that it is not an essential characteristic of a superior court that its jurisdiction should be unlimited or that it be beyond the reach of the writ by which the Sovereign traditionally forbade excess of jurisdiction, namely, prohibition. The second is that, while a superior court of record will commonly be subject to appellate procedures pursuant to which its decisions may be challenged in a court placed higher than it in the relevant appellate structure, it is not, while actually exercising the jurisdiction entrusted to it, subject to the direct intervention or intermeddling of another court exercising supervisory original jurisdiction.

It is established by authority that a judge of a Ch. III court is an "officer of the Commonwealth" for the purposes of s. 75(v) of the Constitution. That being so, it is within the original jurisdiction of the Court to order the issue of a writ of prohibition directed to such a judge in a case involving an assertion of jurisdiction which is not possessed. The amenability of such a judge to the writ of prohibition depends not upon the court of which he is a member being an "inferior" court but upon the jurisdiction conferred upon the court being limited. As Willes J. commented in James v. South Western Railway Co. ^[58] with reference to the High Court of Admiralty: "I do not call it an inferior Court, but, treating it as a superior Court with a limited jurisdiction, it is subject to prohibition, though superior in name": see, also, Attorney-General (Q.) v. Wilkinson ^[59] . It should, in that regard, perhaps be mentioned that the majority judgment in Reg. v. Watson; Ex parte Armstrong ^[60] appears to accept that, under the general law, prohibition does not lie at all to a superior court. However, the relevant passage in the judgment refers, with approval, to a page of Fullagar J.'s judgment in Wilkinson ^[61] where his Honour stresses that what is relevant for prohibition is not that the Court be an inferior court but that its jurisdiction be "limited". It should also be noted that, in the same paragraph of the majority ^[60] , the approach would appear to be adopted that prohibition could be directed to a superior court under s. 75(v) of the Constitution even if prohibition does not lie at common law to such a court since "it is in any case firmly established that under s. 75(v) of the Constitution prohibition will lie to a judge of a tribunal set up by the Commonwealth Parliament notwithstanding that it is declared to be a superior court". However, the authorities referred to as establishing that broad proposition (i.e. those cited in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. ^[62] ) are not really relevant to it since they related to the old Arbitration Court which had, at the relevant time, neither been constituted as nor declared to be a superior court. In the Ozone Theatres Case itself, it was an administrative, and not a judicial, function of the Arbitration Court which was in question.

The writ of certiorari significantly differs in its nature from the writs of mandamus and prohibition. If directed to a court, mandamus and prohibition are limited to enforcing the exercise, or to restraining an excess, of jurisdiction by that court. In contrast, certiorari traditionally involved the actual (subsequently notional) removal, into the court ordering the issue of the writ, of the record of the court to which the writ was directed and of the writ itself so that, as the words of the common law writ for centuries said, "we [i.e. the Sovereign] may cause further to be done thereon what of right and according to the law and custom of England we shall see fit to be done": cf., as to the wording of the Chancery writ during the period when certiorari issued from the Chancellor's Court, Marsden (ed.), Select Pleas in the Court of Admiralty (Selden Society: 1894), vol. I, pp. 149, 165:

"The word 'certiorari' is simply the present infinitive passive of certioro (certiorem facio and from certus, certior), used only in juridical Latin, meaning 'I inform, apprise, shew;' ... The theory is that the Sovereign has been appealed to by some one of his subjects who complains of an injustice done him in an inferior Court; whereupon the Sovereign, saying that he wishes to be informed - certiorari - of the matter, orders that the record, etc., be transmitted into a Court where he is sitting."

(R. v. Titchmarsh ^[63] , and see, also, de Smith's Judicial Review of Administrative Action, 4th ed. (1980), pp. 587-590.) Mandamus and prohibition involve no intermeddling in, or assumption of, the jurisdiction of the court to which they are directed. Where certiorari encompasses the making of an order which should have been made by a court to which the writ is directed, it involves the doing of what is within that court's jurisdiction. Even in the ordinary case where certiorari is directed merely to quash, it will commonly involve an element of interference with the actual exercise of jurisdiction conferred on a court to which the writ is directed if that court is empowered to determine questions of law: e.g. certiorari to correct an error of law on the face of the record even though it does not go to jurisdiction: see R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw ^[64] , per Denning L.J.; per Morris L.J. ^[65] . Indeed, the mandate and requirement of the writ was "to send to the Court above the original proceedings, with all things touching the same": Joseph Chitty, The Practice of Law In All Its Departments, 1st ed. (1833), vol. II, p. 354. While the fact that a court is a superior court of record does not preclude prohibition being directed to it to prevent it from transgressing the limits of its jurisdiction, its status as such a court is prima facie inconsistent with the interference with its exercise of that jurisdiction by writ of certiorari directed to it by a supervisory court. That being so, and subject to some anomalous exceptions of which the most important is that certiorari was for a period issued to the High Court of Admiralty (cf., e.g., Marsden (ed.), op. cit., vol. I, pp. 1xxvi, 1ff., 17ff., 149ff., 165ff. and vol. II, pp. xli, xliv), it has long been accepted as basic law that certiorari lies only to an "inferior" court or tribunal and not to a superior court of record: see, e.g., per Latham C.J., R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section ^[66] ; Chitty, op. cit., vol. II, pp. 353-354; the citations from Bacon's Abridgment, Comyns' Digest and Lilly's Practical Register set out in R. v. Chancellor of St. Edmundsbury and Ipswich Diocese ^[67] , and de Smith's Judicial Review of Administrative Action, 4th ed., p. 588ff. "It [i.e. certiorari] never goes to a superior court": per Lord Goddard C.J., R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw ^[68] , and see, generally, on appeal, ^[69] , per Singleton L.J.; ^[70] , per Denning L.J.; and ^[71] , per Morris L.J. That is not, of course, to say that the fact that a court is properly regarded as having the status of a superior court of record will preclude that status being modified either by the Constitution or by statutory provision for the issue of certiorari by, or the removal of its proceedings into, another court in a particular category of case.

Special considerations may arise in a case involving the exercise by another court of jurisdiction in a matter remitted by this Court or in a matter of a kind to which provisions for removal into this Court are applicable. Such matters apart, there is nothing in the Constitution or any Act of the Parliament which confers upon this Court original jurisdiction to order the issue of a writ of certiorari directed to another superior court of record. The provisions of s. 75(v) of the Constitution, with their careful selection of the prerogative writs of mandamus and prohibition, plainly confer no such jurisdiction. Nor is there anything in the Constitution which precludes the Parliament from conferring the status of a superior court of record upon a Ch. III court in the sense that its actual exercise of the original jurisdiction conferred upon it is not subject to the general supervision of another court exercising its original, as distinct from its appellate, jurisdiction. The Parliament has not conferred upon the Court any power to intermeddle by certiorari in the actual exercise by the Federal Court or the Family Court of its jurisdiction. To the contrary, it has impliedly negated the existence of any such power by expressly creating both those Courts as superior courts of record. In these circumstances, it appears to me, as a matter of principle, that the Court lacks jurisdiction to direct that the prerogative writ of certiorari issue to either of those Courts. That conclusion is, however, contrary to a line of authority to which I must now refer.

In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. ^[72] , a clear distinction was drawn between the judicial and administrative functions of the old Arbitration Court in relation to the question whether a prerogative writ could be directed to it. It was the administrative nature of the particular functions of the Arbitration Court in that case ("not exercising a judicial power, but ... performing a public duty imposed upon it by statute") which was seen to produce the result that, in determining whether or not the writ of mandamus should go, it was "not material whether or not the court, when acting in its judicial character, is in any sense a superior court": see, per Latham C.J., Rich, Dixon, McTiernan and Webb JJ. ^[73] . A fortiori, the decision of this Court in Pitfield v. Franki ^[74] that a writ of certiorari should be directed to, amongst others, a member of the Commonwealth Conciliation and Arbitration Commission which did not purport to be a court let alone a superior court was simply not in point on the question whether or not the Court possesses jurisdiction to order that certiorari should issue to a court which the Parliament has created as a superior court of record. In Reg. v. Cook; Ex parte Twigg ^[75] however, the Court ordered that certiorari should issue to the Family Court apparently on the basis that the jurisdiction to make such an order could be assumed to exist for the reason that an order for certiorari had been made in Pitfield v. Franki: see pp. 26, 29; 32-33. In reliance upon Reg. v. Cook; Ex parte Twigg, certiorari was again directed to the Family Court in Reg. v. Ross-Jones; Ex parte Green ^[76] . In my respectful view, the assertion of jurisdiction by this Court to order the issue of a writ of certiorari directed to the Family Court was erroneous. It may be that, in the cases in question, the order of certiorari was strictly unnecessary for the reason that the same result could have been achieved by prohibition. That is not, however, to the point in so far as the question of the Court's jurisdiction to order the issue of a writ of certiorari directed to the Family Court or the Federal Court is concerned. In particular, it is no answer to an assertion of lack of jurisdiction to order certiorari to say that "one kind of certiorari, namely, a certiorari to quash ... achieved the same result as prohibition, and would not intermeddle with what was within the limited jurisdiction" of the court to which the writ was purportedly directed: per Wrottesley L.J., R. v. Chancellor of St. Edmundsbury and Ipswich Diocese ^[77] .

It is not necessary, for the purposes of the present case, that I form or express any concluded view on the question whether I am constrained, by what was said and done in Reg. v. Cook; Ex parte Twigg ^[78] and Reg. v. Ross-Jones; Ex parte Green, to hold that the Court possesses jurisdiction to direct certiorari to the Federal Court. The reason is that, if so constrained, I would be of the view that those cases should be understood as going no further than asserting the availability of the writ of certiorari to control excess of jurisdiction: as will appear, I do not consider that there has been any excess of jurisdiction here. So understood, those cases do not deny that a prima facie corollary of the fact that the Federal Court is created as a superior court of record is that it is not amenable to any supervisory original jurisdiction of another court in the actual exercise of the jurisdiction conferred upon it. That prima facie corollary is not disturbed by any grant of such jurisdiction to this Court which is, of course, itself a court of limited jurisdiction. That being so and to the extent to which the Federal Court is validly vested with jurisdiction to decide questions of fact or law involved in the existence or exercise of its substantive jurisdiction in a particular case, it does not lie within the original jurisdiction of this Court to order that certiorari issue for the reason that, in the opinion of the members of this Court, the Federal Court's decision on those questions is mistaken. It is true that the Federal Court's jurisdiction to decide such questions may, in some cases, be confined by considerations of the extent of the legislative power of the Parliament. In that regard however, care should be taken to avoid the assumption that appears sometimes to be made to the effect that the undoubted fact that a jurisdiction cannot be conferred which would exceed the limits of the constitutional power to confer it necessarily involves the proposition that the Parliament lacks legislative competence, as an incident of a substantive legislative power, to make the jurisdiction of a Ch. III court in relation to a particular matter dependent upon that court's own finding of the existence of the circumstances which underlie the constitutional validity of the grant of jurisdiction: see, e.g., Reg. v. Federal Court of Australia; Ex parte W.A. National Football League ("Adamson's Case") ^[79] , per Barwick C.J. and contrast per Mason J. ^[80]

The present application for prerogative writs is being considered, at this stage, on the basis that the relevant provisions of the Act are all constitutionally valid. On that basis, the learned primary judge (Gray J.) clearly had jurisdiction to entertain the proceedings before him. He had jurisdiction to conduct an inquiry under Pt IX of the Act and to receive evidence establishing the factual context within which the question whether an irregularity or irregularities had been established against Mr. Bali fell to be determined. He had jurisdiction to decide the questions of fact and law involved in that inquiry. Indeed, it was the plain intention of the Parliament, evidenced by the provisions excluding ordinary rights of appeal, that the determination of such questions of fact and questions of law should be peculiarly for the judge conducting the inquiry. His jurisdiction to decide those questions includes jurisdiction to decide them wrongly. That being so, the mere fact that there is an actual or threatened mistaken decision by the learned trial judge of questions of fact or law arising in the course of the inquiry neither involves an actual or threatened excess of jurisdiction nor provides any warrant for this Court to assume jurisdiction to intervene midway in the course of the proceedings before the Federal Court.

It is true that, in the present case, the factual inquiry upon which the learned primary judge proposed to embark would, if the facts proved did not go beyond the statement of "the facts relied on in support of the application", have failed to establish that there was an "irregularity" for the purposes of Pt IX. If he had had the benefit of the views expressed in this Court about what constitutes an irregularity for the purposes of Pt IX, his Honour would doubtless have thought it appropriate to adopt a different approach to that which he proposed to follow. That does not, however, mean that the Act compels a judge of the Federal Court conducting an inquiry under Pt IX to follow a procedure akin to the discarded equity procedure of demurrer ore tenus or that anything that his Honour did or proposed to do constituted or would have constituted an excess of jurisdiction. To the contrary, his Honour possessed jurisdiction to form a tentative, albeit mistaken, view for himself about the effect of the definition of "irregularity" and to proceed, as he proposed to proceed, on the basis that the convenient course was to postpone the formation or expression of a final view about the effect of that definition until he had determined the factual context within which, on any of the competing views of that effect, the question whether there had been an irregularity or irregularities could be determined. Nor was it beyond the jurisdiction of the Federal Court to issue subpoenas ordering the production of documents which might arguably be relevant in defining or checking lines of inquiry for defining that factual context. If, ultimately, his Honour had mistakenly found that there had been an irregularity or irregularities, the question would then have arisen whether an appeal lay from that mistaken decision or whether the effect of the relevant provisions of the Act was that the Parliament had determined that the decision of the primary judge, be it correct or be it mistaken, should be final. If, on the basis of a mistaken decision, his Honour had reached the stage of granting relief, he would nonetheless have been acting within his jurisdiction unless, upon a proper interpretation of the legislative provisions under which he was acting, the basis upon which the relevant relief could be granted was the objective existence of an irregularity or irregularities as distinct from the trial judge's judicial determination that such irregularity or irregularities had occurred.

It is also true that, as has been mentioned, the application itself set out, as it was required to do by s. 159(2)(c) of the Act, the "facts relied on in support of the application". The alleged "irregularities" which were also, as required by s. 159(2)(c), set out in the application included, however, an irregularity or irregularities within the words of the definition of "irregularity" in s. 4(1) in that they included allegations that the effect of conduct of which complaint was made was "to hinder or prevent the full recording of votes by all persons entitled to vote and the correct ascertainment or declaration of the results of the voting and/or which constituted an irregularity". It would, in my view, be contrary both to authority (cf., e.g., Parisienne Basket Shoes Pty. Ltd. v. Whyte ^[81] ) and to the clear intent of the Parliament to construe the relevant provisions of the Act as making the jurisdiction of the Federal Court to conduct an inquiry to ascertain whether there had been an "irregularity" conditional upon whether the specified "facts relied on" were objectively adequate, upon analysis and in the context of all the relevant circumstances and the provisions of the Act, to sustain the allegation that "irregularities" had in fact occurred. So to construe those provisions would be to impute to the Parliament an intention to place the Federal Court in the type of long-discredited procedural straitjacket wherein it would only be authorized to exercise its jurisdiction to deal with a matter arising from an allegation and denial of irregularity if what might be the main issue involved in the matter, namely whether or not the facts alleged constitute an irregularity, should, as a matter of law, be ultimately decided in favour of the complainant. Put differently and in a manner appropriate to the present case, the question of the Federal Court's jurisdiction to deal with the controversy between the parties could not be finally known until one aspect of that controversy, the question of the legal consequences of the facts alleged by the complainant, had been finally determined by some other court.

An argument was foreshadowed on behalf of the applicants that, if "irregularity" should be construed as extending to denote what was alleged in the "facts relied on" in the application for an inquiry in the present case, the purported conferral upon the Federal Court of the jurisdiction to conduct the inquiry would be unconstitutional for the reason that it would involve the conferral of what would, in that event, be non-judicial power upon a Ch. III court. The conclusion that "irregularity" should be given the narrower connotation for which the applicants contend makes it unnecessary for the Court to embark upon the consideration of that proposed argument.

The application for prohibition and certiorari should be refused.