Schorel, Ex parte, Re Nicholson CJ M4/1995 [1995] HCATrans 46 (27 February 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M4 of 1995

In the matter of -

Re the HONOURABLE NICHOLSON CJ of the Family Court of Australia for and also on behalf of all persons acting on his behalf;

Ex parte -

G.H. SCHOREL

DAWSON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 27 FEBRUARY 1995 AT 9.35 AM

Copyright in the High Court of Australia

HIS HONOUR: Yes, Mr Schorel.

MR SCHOREL: Your Honour, my name is MR G.H. SCHOREL I am the applicant, plaintiff in these proceedings before your Honour.

HIS HONOUR: Yes, Mr Schorel, I have read the papers and, according to the ordinary practice with which you are familiar, I am going to impose time limits on you.

MR SCHOREL: Beg your pardon, your Honour?

HIS HONOUR: I am going to impose time limits on you.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: In making your application, and you may have 15 minutes.

MR SCHOREL: Yes, your Honour.

HIS HONOUR: Very well.

MR SCHOREL: Thank you, your Honour. Your Honour, I was before this court on 9 December, and it was on the basis of an application that was filed on 2 December. The application was filed which was M91 seeking orders from this court prior to a case to be heard before the Family Court as I was in fear that I would be jailed. Your Honour, however, somehow when your Honour handed down the judgment on the 15th your Honour referred to it that I was trying to avoid an appeal, but an appeal cannot be made prior to a hearing being heard, so therefore I was not trying to avoid an appeal, rather that I was trying to avoid to be imprisoned.

Regretfully, because his Honour did not make orders, I was subsequently put in jail by the Family Court for 21 days' jail. In the meantime the Family Court handed down a reason of judgment and I have got a copy here if it comes to it. Now, the Family Court and which I have stated also in my affidavit, your Honour, stated that I had never been charged by his Honour, Joske J, I had not been read my rights, I was not allowed to present my case, simply his Honour charged me and convicted me in 1993, so the full court then overturned that. It, however, said that the mother could reinstitute the case within 21 days.

Now, I was put in prison. What happened is first of all is that after the full court handed down the decision on 19 December Hase J then within hours charged me.

HIS HONOUR: That was under section 112AD of the Family Law - - -

MR SCHOREL: Correct, your Honour, and his Honour then charged me. Now, I opposed his - the court to deal with that matter on the basis that the child is a ward of the Supreme Court. Now, I have filed before this court exhibits in support of my affidavit which, in fact, now show on the last page a letter from the Chief Justice from the Supreme Court who is now investigating the matters because the child is and was and remained a child - a ward of the Supreme Court and, in fact, the orders which the Family Court is pursuing is contrary to what the Supreme Court had ordered, so there is conflict there.

So that letter is there, I have re-filed the notice of motion for wardship from the child, even so it remains on foot, but so as to underline that the child is a ward of the Supreme Court and the High Court in fact in - and I have referred to it in my material, in the past made a ruling that when the Supreme Court wished to intervene with guardianship of the Director of Community Services this court then ruled that because it had guardianship the Supreme Court had no legal power to interfere.

HIS HONOUR: You said this court ruled?

MR SCHOREL: Yes.

HIS HONOUR: Yes.

MR SCHOREL: It was the High Court, and equally then I maintained that where the Supreme Court has guardianship of the child then the Family Court cannot interfere because of section 60H of the Family Law Act which excludes the court to interfere with any child that is subject to state welfare laws. The child was made - under state welfare law I had applied in 1987 and obtained state - sorry, court wardship of the child, so therefore - - -

HIS HONOUR: Mr Schorel - - -

MR SCHOREL: Yes.

HIS HONOUR: These are the matters which were debated when you were last before me; is that not so?

MR SCHOREL: Well, I am trying to explain something, your Honour.

HIS HONOUR: But just a second.

MR SCHOREL: Yes.

HIS HONOUR: These were the matters that we debated?

MR SCHOREL: It was referred to you, your Honour.

HIS HONOUR: Yes. And what I said on the last occasion was that that was not something this court could investigate in proceedings by way of prerogative writ.

MR SCHOREL: Right. Yes, but I am trying to explain something, your Honour.

HIS HONOUR: And what I said on the last occasion was that you must follow the ordinary processes which involve appeal where possible from the orders of the Family Court of which you complain.

MR SCHOREL: And that is what I did, your Honour, and that appeal was determined in my favour. However, the full court would not go into my objection to legal - legal, you know, to the objection to legal jurisdiction in the Family Court. It totally ignored that and in its reason of judgment it said that because I was not charged that was sufficient to uphold my appeal and therefore the court did not attend to those matters. They are saying, in fact, was that the full court on page 29 in regarding to the orders from Strauss J - - -

HIS HONOUR: But that - - -

MR SCHOREL: Beg your pardon?

HIS HONOUR: That appeal was an appeal against an order - - -

MR SCHOREL: From Fogarty J.

HIS HONOUR: Fogarty J. Well now, that is completed. You are now complaining about the order made by Hase, J, are you not?

MR SCHOREL: But they are both relying on the same legal technicalities, both are relying on the wardship, and both are relying on the same - - -

HIS HONOUR: True, but you have succeeded in relation to the order of Fogarty J.

MR SCHOREL: Well, I succeeded in that regard but, what the full court said, your Honour, now I may quote - - -

HIS HONOUR: Well now, you have succeeded; that is a spent issue, is it not?

MR SCHOREL: Beg your pardon?

HIS HONOUR: The order of Fogarty J is a spent issue, is it not?

MR SCHOREL: Yes, yes - not, but what the full court said and this is the problem, is this, it says:

As provided in the sealed orders of this court 14 December 1992 whatever view the father may have had about the legal validity remains extant . . . . . . . . . . until set aside by subsequent order of the court.

So what the full court is saying that in regard of my complaint regarding the orders from Strauss J they are and remain valid.

HIS HONOUR: Yes.

MR SCHOREL: Now, and this is the issue what we - what this case is about too here and this is that - and this is also filed. On 22 December Hase J sentenced me to 21 days' jail but that some clerk in the registry also issued an order a day earlier also sending me 21 days in jail. Now, by the terminology of this full court it means that both orders are legally valid and so I have served 42 days even though the judge never sentenced me to jail on the 21st because that is exactly the same way we had order for an access.

HIS HONOUR: Well now, you have got an appeal on foot from the order made by - - -

MR SCHOREL: That is right, for hearing tomorrow.

HIS HONOUR: I thought it was today.

MR SCHOREL: Tomorrow an appeal, before the full court.

HIS HONOUR: I see. Well, those are matters which you can raise on that appeal and no doubt will.

MR SCHOREL: Yes, but, your Honour, I - if I may, and this is - I wish to refer here, it is R v Cook ex parte Twigg, it is the High Court of Australia, your Honour. Now, the High Court make a rule - made a ruling there. First of all that a welfare report cannot be used in contempt proceedings; with this case it was used. That is the first - - -

HIS HONOUR: Yes, these are all matters, no doubt, which you are going to raise before the full court of the Family Court on your appeal.

MR SCHOREL: Yes, right. I understand. But they it says:

. . . . .inaudible. . . . . lies . . . . .inaudible. . . . . a decision or if if an error of law appears on the face of the record.

Now, clearly 21 December 1994 order which was issued by the court was not pronounced by a judge so it was issued but not pronounced, exactly the same as the access order which convicted me.

HIS HONOUR: Mr Schorel.

MR SCHOREL: Yes.

HIS HONOUR: What you are seeking is prerogative relief.

MR SCHOREL: Yes.

HIS HONOUR: That is prohibition and certiorari, and prerogative relief is discretionary.

MR SCHOREL: Yes.

HIS HONOUR: And the discretion will not be exercised in favour of an applicant where there is an appeal which can correct any errors which have occurred. You have an appeal.

MR SCHOREL: Yes, but your Honour - - -

HIS HONOUR: And it is about to be heard tomorrow.

MR SCHOREL: Yes, but I - there is a problem there, your Honour, and that is that my - when I was put in jail, when I was released by the full court I was unknown that in fact the court had issued an order from the 21st. Now, what I have done, I have . . . . .inaudible. . . . . from the court issued and amended when I was in Melbourne, typed up and amended . . . . .inaudible. . . . . but not relating to 21 December because I was unaware of it. Now, it was after the 40 days were over and then I found out that there was another order made, I then filed a second amendment and the other party now is saying, we objected to that because you were out of time and so we are going to object to that.

Now, that is the danger now that because it was out of time before I found out that there was a second order issued which was never pronounced by a judge. Now, we are talking about an order that was not made by the court, it is - what is incorrectly typed and this is with the access order which put me in jail which also was incorrect and I wish to refer your Honour to hear this one. And in the case of Yarrow, your Honour, it was before the full court. His Honour, Emery J then stated that:

The signing and sealing of an order is no more than an administrative act, passing and entering the orders on the record of the court. Once an order has been pronounced by the court, then there is an existence of an order which can be appealed pursuant to section 94.

When an order is pronounced. But the problem that we are having is that there are orders not pronounced which are being enforced by the Family Court.

HIS HONOUR: Well, there is only one order. No-one is suggesting that there is more than one order, are they?

MR SCHOREL: Well, there can only be one order pronounced.

HIS HONOUR: Yes, exactly.

MR SCHOREL: And that I complied to, but it is the orders which are not being pronounced. It is like if your Honour now today said - - -

HIS HONOUR: Well there is no doubt that the full court of the Family Court will have to identify that order against which you are appealing, and that this matter can be cleared up on the appeal.

MR SCHOREL: Well, because the other party is objecting to me having filed out of time the second amendment, technically - - -

HIS HONOUR: Well I am sure those technicalities will not deter the full court.

MR SCHOREL: Well, the technicality here for the order to - from the access orders which, as I said, it has never been pronounced by a judge. It is equally true, your Honour, what I am trying to say. Suppose your Honour now says, okay, I dismiss Mr Schorel's application, but then the typist later on types up that I was successful and issued that court order, she use a signature stamp of your name - - -

HIS HONOUR: It would be a nullity, Mr Schorel.

MR SCHOREL: Pardon?

HIS HONOUR: It would be a nullity.

MR SCHOREL: But that is the order being used against me now. I was convicted on an order like that. That is what I mean, and this is the problem. Now, the Family Court so far has refused to attend to it. Now, there has been a two year battle to get this order corrected under the slip rule and this has not been done. And I say that there is no hope in the Family Court to sue the - anything different. They have made clear under this ruling that until that order is set aside, but it was never made by a judge so, therefore, your Honour, I am enormously burdened by that.

Now, to anyone . . . . .inaudible. . . . . your Honour, I believe that what we are having here is a form 69, it is like that there is a conflict of legal jurisdiction, your Honour, and I believe that it is not whether or not the full court should hear the appeal and there are numerous other matters before it, but I believe that this court should step in and say, look, we are not going to have Mr Schorel put in jail back again, because there is also a conflict if the full court on 6 January said that I still had five days to serve when they released me. According to state laws it is not, I had served the time; because there was four days remission and one day I had served prior to being sentenced. Therefore, I have completed my sentence. But the full court said on the 6th, no. So there is a conflict of that, too.

There are other conflicts there and what I have done, your Honour, is if your Honour wished to accept that, is a form 69 which includes an address to the court as to the legal jurisdiction.

Now, the thing is, your Honour, if your Honour does not do this, right, and not willing to consider that properly, that tomorrow I come before the full court and I can get the same type of judgment and I land back in jail - not because I have done something wrong, not because I broke the court order - and I got a transcript, your Honour, from the counsellor, welfare report, and he said to his Honour he did not believe that I should be jailed. He also said that everything I did was in the interests of the child. Yet I was still jailed, your Honour.

Now, this is a fair case that when I come here to this court and I am risking tomorrow to be put back in jail, your Honour, because of legal technicalities which they have refused. Now, if I had never gone to the Family Court to say, look, this order is incorrectly issued - I spent two years on every way trying to get it corrected; the court refuses to attend to it. There is nothing I can do, your Honour, otherwise. And I am saying then that I feel that in the circumstances this court should take some action because I have not got the money, your Honour, to battle appeals all the time, and this is the injustice I am getting.

Now, I understand that also in case law, it has been pointed out in the past by the court that a person - and this one was in the case of a threat, your Honour, that the cost incurred to the parties were . . . . .inaudible. . . . . justice of the case demands that appeal be allowed, and his Honour's orders squashed, you see. And they refer also to the court in itself is an injustice to a person.

Your Honour, I have had now two cases, and both I - no doubt this appeal should be successful because of using 62 and everything else. But they already are having a third one on line to re-hear. You know, I have not got no money to do that. My daughter's life is getting destroyed. I had to refinance my house to pay the cost, and I think it is totally unfair. In this regard, your Honour, I hope that your Honour accepts this form 69 to at least consider that. I am not trying to avoid an appeal. I have set everything in motion. I am not trying to do that.

I am just saying that what I want to do is that this court tomorrow, if it has an appeal hearing and numerous other matters, it has been ordered to conduct its case according to law. So far it has not done so. This full court, your Honour, and this is what is very important, as your Honour understands, it upheld my appeal. There is only one thing they did. They handed down a judgment so biased that his Honour Hase J, having read it, then when he sentenced me said:

The father, in my view, has reached a point where the only option -

so - and also here:

The indicated continuation of most improper behaviour by the father.

Now, that was not because of the evidence before the court; it was because his Honour was relying on what was stated in his reason of judgment. That reason of judgment denied me a fair and proper trial because it is referring to matters - - -

HIS HONOUR: But you have an appeal against that order of Hase J - - -

MR SCHOREL: Yes, your Honour.

HIS HONOUR: - - - and it is to be heard tomorrow.

MR SCHOREL: But the issue is this full court, if that is going to do the same thing saying, oh, well, Mr Schorel won his appeal but, in our view, there can still be a guilt or something like that, it undermines any fair and proper trial in future. I know I have got an appeal, your Honour. I have taken that step but nevertheless I feel that without orders from this court, if this court is going to adjourn it, I can end up back in jail, have another appeal, and it is kept going, and in the end they are still going to find I am innocent.

There is a welfare report out to support that but that is not going to serve justice or society. I believe, your Honour, that therefore that there should be - I tend to feel, your Honour, I may ask you to consider Neil v McNaught which is a High Court matter ruling of that where a person is self-represented, the court assumes the burden of endeavouring to ensure that the rights of the parties which are obvious . . . . .inaudible. . . . . by their own advocacy.

Your Honour, I think that you should take into consideration also, your Honour - I know what your Honour is saying about there is a right of appeal, but we also quote . . . . .inaudible. . . . . and Bennett (1820) and that case says that a person should not be burdened to answer charges or whatever in a court unless there has been a case established, a prima facie case. Now, twice in a row the full court has refused - the court has refused that. It has ordered another court case.

Now, I might - and your Honour said, yes, but Mr Schorel you are going to have your appeal hearing tomorrow. That is right but, see, when I had my appeal hearing in December last year - in June last year, it took six months, your Honour, before the full court handed down a decision. It refused interim orders and in those six months, your Honour, the court went ahead as if - - -

HIS HONOUR: But the full court in this case has not refused an interim order. There is a stay against the order made by Hase J, is there not?

MR SCHOREL: Only the one order; not both. It is only the stay of the order.

MR SCHOREL: Yes, I follow. But it has not ordered a stay regarding the order from Strauss J which I am saying was only typed up by a typist; it was not done by his Honour, Hase J. It was a stamp used for his name. That is what they do in the Family Court. So the judge himself does not sign the documents, and I can prove that because I have put it in the next bits that - so the judge himself is totally unaware of the order being issued like that.

Now, if the full court does not stay that and it has made clear it does not like making interim orders, then with the third case now going against me a judge could then convict me again on the same issues regardless that the full court is reserving its judgment because reserving a judgment can be another six months like the previous one, and in those six months I can be convicted, end up back in jail again, and then afterwards they can say, yes, that one is innocent and win the appeal again. It is not good to me winning my appeals if I am in the meantime serving the sentences and getting nowhere. This is what the issue is.

Your Honour, I have taken the steps now to re-file my case in the Supreme Court so that clearly there is a conflict of jurisdiction. The moment I filed the notice of motion in the Supreme Court the child automatically is and remains a ward of the court, even if for any reason they could have said it was not, because the child was not for the marriage. Therefore, your Honour, there is a clear conflict of jurisdiction which I had not done before.

When I came before your Honour a month ago I had not filed that fresh notice of motion, which I have done now, nor I had to - the chief justice became involved of the Supreme Court and I am saying that now with the chief justice being involved I think that this court then say, well, look, we have now changed the situation, different than last month, right. And to be fair, let us give the Supreme Court its time to sort it out and we make interim orders so Mr Schorel does not get harmed in the meantime, and even so the appeal can go ahead.

But, you see, besides the appeal tomorrow, your Honour, there are numerous other applications before the full court and so they will go ahead, too, and that is my danger. I believe that first the full court should only establish whether or not that appeal was justified. And everything else should be held on hold *because if it is not, I am down the drain. Your Honour, I hope that I have stayed within the 50 minutes.

HIS HONOUR: You have, Mr Schorel.

MR SCHOREL: I hear you, your Honour. I hope that your Honour realised that it is an injustice to me and that there are extraordinary circumstances that I was jailed. Thank you, your Honour.

HIS HONOUR: Yes, well, I realise your concern, Mr Schorel.

HIS HONOUR: This application arises from protracted proceedings in the Family Court concerning the applicant's custody of his daughter Gabrielle Mary Wilhelmina Schorel. In 1988 the applicant was granted custody of the child. In the same year the child was made a ward of the Supreme Court of Victoria. The mother of the child was granted access by an order of Strauss J in the Family Court dated 14 December 1992. Mr Schorel has made numerous applications to the Family Court in respect of matters arising out of the mother's access.

On 15 December 1994 I refused an application by Mr Schorel for orders nisi for prerogative relief related to a number of orders made by the Family Court. On 22 December 1994 Hase J ordered that Mr Schorel be convicted of a charge under section 112AD of the Family Law Act for breach of the access order made by Strauss J. Mr Schorel was sentenced to 21 days imprisonment for this breach. On 6 January 1995, the full court of the Family Court ordered that Hase J's order of 22 December 1994 be stayed pending the hearing of an appeal set down for the sittings commencing tomorrow.

Mr Schorel was released pending the hearing of the appeal. Mr Schorel seeks to prohibit any further proceedings in the Family Court relating to the enforcement of the access order made by Strauss J on 14 December 1992 on the ground that the child in question is a ward of the Victorian Supreme Court. This is the same issue which was raised in the application I refused on 15 December 1994. For the same reasons as I gave on that occasion that form of relief is unavailable and the application for an order nisi for a writ of prohibition is dismissed.

Further, Mr Schorel seeks to have what purports to be an order of Hase J dated 21 December quashed. It appears that two documents are in existence which purport to be orders of the Family Court. Both purport to record the order made by Hase J that Mr Schorel be convicted of the charge pursuant to section 112AD of the Family Law Act and that he be imprisoned for 21 days. The documents are identical save for minor grammatical changes and additions and the date of course. One of the documents is dated 21 December 1994 and the other 22 December 1994.

Mr Schorel is concerned that having been successful in having the order made on 22 December stayed pending an appeal, an order dated 21 December appears to remain on foot. While the origin and purpose of the document dated 21 December are unclear, the evident error is something which may be corrected by the Family Court and no doubt will be corrected upon the hearing of the applicant's appeal against his conviction. The application for an order for certiorari must therefore also be refused. The applications are refused.

AT 10.02 AM THE HEARING WAS CONCLUDED