Colina and ANOR Exparte Torney M85/1998 [1998] HCATrans 488 (14 December 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M85 of 1998

In the matter of -

An application for Writ of Prohibition against HERMIE GENEROSO COLINA (Marshal of the FAMILY COURT OF AUSTRALIA) and THE HONOURABLE JUSTICE BURTON OF THE FAMILY COURT OF AUSTRALIA

Respondents

Ex parte -

PRESIDENT TREVOR DONALD TORNEY

Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 14 DECEMBER 1998, AT 9.35 AM

(Continued from 23/11/98)

Copyright in the High Court of Australia

MR D.A. PERKINS: I appear for Mr Torney, if your Honour pleases. (instructed by Kuek & Associates)

MR H.J. LANGMEAD: I appear for the respondents. (instructed by the Australian Government Solicitor)

HIS HONOUR: Mr Perkins, what is the position?

MR PERKINS: Your Honour, the position is that I do not propose to put further submissions to your Honour in relation to the section 80 point. I propose not to do that because of the appearance that that matter has been, for the purposes of a possible order nisi or a possible referral to a Full Court, considered sufficiently.

Your Honour, in relation to the other proposed grounds, I do desire to proceed to ask for orders nisi or an order in place of an order nisi, including the other proposed grounds - that is grounds 5 on. I am aware that those grounds raise matters which in some respects, irrespective of their merits, may be thought not to be convenient grounds to add to or have in conjunction with the grounds relating to section 80. Your Honour, notwithstanding that, my application is to proceed with those grounds.

HIS HONOUR: What is the most convenient place in which to find the additional grounds, Mr Perkins?

MR PERKINS: It is a document which has been put forward as a draft, the draft order, which has been filed last Friday, I think, your Honour. Does your Honour have a copy of that?

HIS HONOUR: Yes, it is document 21, I think. Yes. What is the difficulty you see about grounds 5 to 8 going forward to a Full Court?

MR PERKINS: Your Honour, with respect, it is not that I see a difficulty but I would have to accept, I think, that those are of rather a different nature to the grounds raised about section 80 and I would simply raise a question about whether your Honour is of the view that those matters are suitable to go forward to a Full Court. I would submit that they are but I simply wished to raise the fact that they are not matters which, in a sense, involve - on one view might merely involve a technical reading of provisions of legislation. They are matters which involve perhaps - - -

HIS HONOUR: Ground 8 raises a question of principle, whether "The offence of scandalising the Court is obsolete". That, on its face, seems to be a bare point of law. It would need fact to raise it and at least my present impression is that there may be sufficient fact there now to raise the question that underlies ground 8. Grounds 5 to 7 may, however, stand in a different case in that I do not know whether there is any dispute of fact or other like controversy surrounding grounds 5 to 7. Nor do I, for the moment, feel confident that I understand quite the way in which they are put. As it stands, ground 5 is cast in such general terms of extra-curial statements and opinion that it might cover a wide-ranging factual inquiry whereas ground 6, on the other hand, fastens on a particular speech and says, as I understand it, at least, because of that speech a question of apprehended bias arises. Ground 7, on one view of ground 7, that may be argumentative more than a separate basis of challenge, but those are perhaps matters that could emerge at a hearing.

It is, uninstructed by anything Mr Langmead may have to tell me about it, more ground 5, I think, than grounds 6 and 7 that might raise a question about putting it straight into a Full Court.

MR PERKINS: Your Honour, it is not intended by what I agree, with respect, is a wide casting in paragraph 5, to ultimately ask the Court for a decision without confining the statements or opinions, but the difficulty that I perceive is that the learned Chief Justice has regularly, and from time to time, but nonetheless within a short time span, expressed out of court and frequently to the media his views and opinions and those views and opinions have been, if not concerning the applicant, concerning a class of people of which the applicant is one, and the way in which I would seek to address that - and I would concede that it needs particularity - would be that I would seek the sort of direction that was made in the Canadian case to which I referred your Honour where the learned Chief Justice in that case - I withdraw that - where the court required the Attorney-General's Department to provide details of actual contacts.

Now, I think, if I may say so, absent more particularity in 5, and a way of resolving that or a way of removing the lack of particularity, I would not seek to press it as it is, your Honour. I do accept that it cannot be left at large.

HIS HONOUR: Recognising for the moment that ground 5 is something to which we have to return and work out what we do with ground 5, otherwise are the grounds as now identified in the draft, which is document 21 on the file, the grounds on which you would seek to move?

MR PERKINS: Yes, it is, your Honour.

HIS HONOUR: And is the material that we now have, again leaving aside this question of ground 5, all of the material upon which you would seek to move?

MR PERKINS: Yes, your Honour.

HIS HONOUR: Perhaps if I hear Mr Langmead and we might then return separately to what we do about ground 5, Mr Perkins.

Mr Langmead, can we leave ground 5 aside for a moment and then I will ask for your submissions on that. Leaving 5 apart, is there any reason - or what do you say about directing that the application be made returnable in the first instance before a Full Court?

MR LANGMEAD: As to that broad proposition, we are prepared and in a state where we can put submissions, the gist of which would be that the section 80 point has been considered repeatedly by the High Court, including statements to the effect that it is by this time settled. That notwithstanding, we are obviously aware that there are two dissents some 50 years apart which put a contrary argument which may interest the High Court at this point because, in effect, it is a bit of a numbers versus substance argument, because there are some interesting aspects to what appears to be overwhelming judicial unanimity - - -

HIS HONOUR: Contempt by scandalising, if that is a convenient shorthand, may, it may not, stand apart from other offences. It seems to bring with it its own baggage of history, does it not?

MR LANGMEAD: Precisely, yes.

HIS HONOUR: History which, I suspect, each side will say is their way.

MR LANGMEAD: Yes. Clearly our preferred course would be that the matter not go forward and that if your Honour were - if it were possible to persuade your Honour that the matter is settled at this point on the section 80 point, then our preferred course would be to put such argument as you required in that regard to satisfy you. Failing that, of course, we concede readily that there are arguments both ways, as your Honour is aware, and it really is a matter for your Honour. But we are prepared to put that argument today. That is points 1 to 4, of course.

Point 8 we agree that the argument that scandalising the court is an offence is obsolete is a point of principle that could go to the Full Court, albeit we find it a more surprising point to go on to the Full Court and an unlikely point than a section 80 point by reason of the - the more one has to argue, the more cases we can point to where it has been put unsuccessfully that it is obsolete might suggest that, indeed, it is not at all. But that aside, it is a point of principle that is in apt form.

HIS HONOUR: Is there any factual basis that would be needed to agitate ground 8 that is not there already?

MR LANGMEAD: No, because - - -

HIS HONOUR: From your side, you would be wishing to put on further affidavits about ground 8?

MR LANGMEAD: As to point 8, no, because the interesting history of practice and principle intermingling here we would rely on the facts, of course, of the judicial history of the offence of scandalising the court, but that appears adequately from the judgments. So there are no facts pertaining to this case that we would need to put. Which brings us then to the troublesome 5, 6 and 7.

HIS HONOUR: Now 6 and 7, 6 refers to a particular speech. Do not answer if this would in any way embarrass you, but is it likely that there will be some controversy of fact about whether something was said and if it was, what was said? As I say, do not answer if that would embarrass you?

MR LANGMEAD: I can answer that. I file an affidavit which I will not ask your Honour to look at at this point, but it does contain factual material in that regard. But I will seek simply to - - -

HIS HONOUR: Yes. Has Mr Perkins seen this?

MR PERKINS: Yes, I have, your Honour.

HIS HONOUR: Yes.

MR LANGMEAD: There is one example that I would like to take your Honour to. We say that with this affidavit the factual material we need before the Court is there but the reason it is needed is, if your Honour would look at paragraph 14 of Mr Torney's affidavit - - -

HIS HONOUR: Yes. Which of Mr Torney's - - -

MR LANGMEAD: This is Mr Torney's affidavit of 10 December.

HIS HONOUR: Just a moment. It is remarkable how quickly you get out of practice of organising a file, is it not? Paragraph - - -?

MR LANGMEAD: Paragraph 14, starting with the words, "In this television program".

HIS HONOUR: Yes, I have that.

MR LANGMEAD: If I could ask your Honour then to turn to the exhibit JC-5 of the affidavit of Mr Cranston which I have just filed.

HIS HONOUR: Yes, I have that.

MR LANGMEAD: What is put in a sequence in paragraph 14 is that in an interview with the Chief Justice on the "Four Corners" programme, the interviewer said:

They claim that you favour women.

Chief Justice - "well that's nonsense".

Interviewer - Is it possible there's some justification?

Chief Justice - Yes.

That sequence creating a clear impression that the Chief Justice was successfully cross-examined in four sentences into resiling from what he had originally stated.

If one looks at the lower half of the third page of exhibit JC-5, your Honour can see that what was actually said was - JB being the interviewer:

JB: They claim of course that you favour women in disputes?

JN: Well, that's just nonsence.

HIS HONOUR: Sorry, where are you reading?

MR LANGMEAD: I am reading from halfway down the page.

HIS HONOUR: On page - pagination at the bottom right?

MR LANGMEAD: Yes, it would be page 3. Your Honour, I apologise. I had a draft that had the exhibit numbers the other way around. It is JC-6, page 3. There is a large paragraph in the middle of the page underneath which the initial "JB" appear and the sentence, "They claim of course that you favour women in disputes?"

HIS HONOUR: Yes.

MR LANGMEAD: The answer was:

Well that's just nonsence.

The interviewer went on:

Given the difficulties you've outlined because of Legal Aid because of the low number of judges, is it possible they have some justice to...

and that is to be compared with, "Is it possible that some justification", and the Chief Justice says:

Ah yes. I think that people who are complaining about delay have got lots of cause to complain.

Now, that is an example of a misleading paraphrasing and, to a greater or lesser degree, there are numerous examples of that which I take your Honour through. So, to that extent, the factual matters are in dispute. But it has been my understanding - and I note that my learned friend has not raised this with you - that in respect of ground 5, that the statements to be relied on in fact were the two television interviews and the speech. My friend says that he is, in fact, not going beyond two television interviews and the speech given by the Chief Justice referred to in paragraph 6, so it would appear that there is more particularity intended than appears from the grounds.

But we say as to those grounds that, moving backwards and forwards between rhetoric and substance, 5, 6 and 7, in effect, are bias - claims of apprehended bias and they are claims of apprehended bias on the entirely novel ground that the entire court is incapable of providing what could be apprehended to be a fair hearing by reason of a statement made by the Chief Justice. Now, it is submitted that the Tobias Case does not even support that proposition because there you had the Chief Justice dealing with one of the parties.

HIS HONOUR: But those are arguments directed to saying that you should win on these grounds. What do you say I should do about dealing with the proposed ground? How do you say I should go about dealing with the dispute that is thus created? There seems to be a difference between the parties on the facts and, hardly surprisingly, there is a difference between the parties on the consequence of the application of principle but what do you say I should do about it? How should I deal with it?

MR LANGMEAD: Our first proposition is that unlike the section 80 point or the argument that the defence of scandalising the court is obsolete, not only are these 5, 6 and 7 grounds not likely to succeed, but they are untenable at the outset and ought not be proceeded with. They ought be struck out.

Your Honour, can I add an overview matter that I perhaps should have raised earlier which is that our favoured course for progressing this matter would be that there be a case stated pursuant to section 18 of the Judiciary Act to, as it were, provide an effective mechanism for framing the grounds in their most suitable form and also an effective mechanism for deleting not simply grounds that are arguable or arguably unsustainable but any grounds that your Honour is persuaded today are absolutely untenable.

HIS HONOUR: I am not conscious of a section 18 case having been stated in a prerogative relief application. It is simply that I am not aware of it. I am not saying it has not been done or that it cannot be done. It would need, I think, obviously some consideration of whether it can be done and, if it can, how it is to be done. Does it come to this: 6, as it presently stands, raises questions of fact; questions of fact which presently are not agreed between the parties. I would see it also raises then questions of the application of principle to those facts and what consequences follow.

MR LANGMEAD: Yes.

HIS HONOUR: Questions which you say are so obviously to be resolved in favour of the interests for whom you appear that they should not be permitted to go forward.

MR LANGMEAD: Yes, it clearly raises the question of principle as to whether the conduct alleged, whether it can raise some basis for permanently staying the proceedings in the Family Court on the basis of - how is it put - "interference with due process" or "perceived bias", whichever principle one chooses, as to whether or not that conduct is capable of breaching what would perhaps be at least, at a basic level, common ground as to what the principles of perceived bias are. It is submitted that that cannot be so. But to the extent that we rely on an analysis of the factual material, it becomes merely arguable as distinct from absolutely untenable.

HIS HONOUR: Ground 7, as I said, I think, to Mr Perkins, may be seen, perhaps, as an argumentative ground.

MR LANGMEAD: Yes.

HIS HONOUR: It may represent a lesser form of ground 8 in that if the offence of scandalising is not obsolete, as is there contended, it may be that it is subject to limits; one of the limits relevantly being identified by reference to considerations of freedom of speech.

Well, you have raised the possibility of a section 18 stated case. That could go forward only on agreed facts or facts as found. It seems to me that a section 18 case cannot proceed otherwise. As I say, for the moment, I see ground 6 as raising disputed questions of fact.

MR LANGMEAD: Your Honour, it is conceded there are difficulties with the case stated as far as grounds 5, 6 and 7 go, and we saw the section 80 point, in particular, as suited to a case stated because the facts are not in issue, it is purely a point of principle or there is a sufficient substratum of facts there for the matter to proceed. Grounds 5, 6 and 7 do rely on clearly disputed versions of fact that may make them inappropriate.

The recommended procedure of case stated for section 18 is in conjunction with the argument that 5, 6 and 7 are so untenable that they ought not be proceeded with. It is also to be noted that these bias grounds have not been put to Justice Burton at all. That is not necessarily fatal but it is still a factor that, we submit, ought weigh in your Honour's consideration of these matters.

HIS HONOUR: Yes. Is there anything you wish to add?

MR LANGMEAD: No, your Honour.

HIS HONOUR: What about ground 5? Do you add anything, Mr Langmead, in relation to ground 5? I have given you no opportunity to say anything about that. It is, at the moment, a roving inquiry which seems, at least to me, to have some difficulties in it.

MR LANGMEAD: I understood my learned friend, from the Bar table, to indicate to me that the factual basis of ground 5 was to be restricted to the speech of the Chief Justice complained of in ground 6, together with two television interviews, the transcript of which is attached in full to the affidavit of Mr Cranston. Now, if that is the case, it would appear to have requisite particularity, subject to the dispute of fact as to the matters I have already alluded to. But, as a point of principle, again, it really seems to raise the same point that somehow or other conduct of the Chief Justice entirely outside the bounds of the case in question can nonetheless poison the entire court with some apprehended bias such that the matter is permanently stayed which we say is not just novel but without any foundation in law and, for that reason, unsustainable and so untenable it ought not proceed.

HIS HONOUR: Yes. Now, Mr Perkins, two things, particularly I think, and then such other matters as you would want to add, but the two particular things are, first: so far as ground 6 is concerned, what do we do about what seems to be a dispute on the affidavit material about what was said? Is that a dispute that is capable of resolution in any way?

MR PERKINS: Absolutely, yes, your Honour.

HIS HONOUR: How would we go about resolving that apparent dispute so that it does not get to a Full Court with it unresolved?

MR PERKINS: Your Honour, the source of what is in Mr Torney's affidavit is my writing down what I heard on a tape. The quality was not such as to make me think that I would have any expectation at all that I would not simply accept what has been put forward by Mr Cranston. I really would expect that I will do that.

HIS HONOUR: Yes. Would it be possible for you to be in a position to state a position that is binding on the party at some point?

MR PERKINS: Yes, I will do it now. I will accept the transcript that has been provided. I do that in the full expectation that proper and good facilities have been provided for the transcribing. I will do it now.

HIS HONOUR: Yes. So, less there be any misunderstanding, I take what you are telling me to be an acceptance of the accuracy of the transcripts of interview that are appended as exhibits to Mr Cranston's affidavit? Do I have it right?

MR PERKINS: Yes, your Honour.

HIS HONOUR: Yes. Thank you, Mr Perkins. That resolves that apparent dispute about what was said. What then do we do about 5 and 6 in so far as they seem to be - 5, particularly, in so far as it seems to be roving? Is it intended to go beyond the television transcripts that we have and the speech that we have to base ground 5?

MR PERKINS: Your Honour, it was, and if I may say so, you may have observed I changed my mind halfway through the morning, through the proceeding. I would be content to confine it to the extra-curial statements of opinions that are presently in evidence.

HIS HONOUR: Then if you had leave to amend proposed ground 5 to read, "The extra-curial statements and opinions of the Chief Justice of the Family Court which are - - -"

MR PERKINS: I am sorry, I think I have confined it a little too much.

HIS HONOUR: Yes.

MR PERKINS: We have exhibited two newspaper articles. I want to include those as well.

HIS HONOUR: Which are recorded in exhibits - and then could I have an identification of the exhibits concerned, do you think, Mr Perkins, "which are recorded in exhibits - - -"?

MR PERKINS: It is exhibit A, those two articles.

HIS HONOUR: Yes, to affidavit of Mr Torney sworn - - -?

MR PERKINS: Of 10 December.

HIS HONOUR: And Mr Cranston's exhibits are which?

MR PERKINS: I am grateful to my learned friend. I want to include paragraph 10 which includes a quote which I would have cause to be confident about.

HIS HONOUR: Yes, I see that.

MR PERKINS: And that is it, your Honour.

HIS HONOUR: I will just get these extra - Cranston - can you help me, Mr Langmead? What are the exhibits to Mr Cranston's affidavit or affidavits that identify the speech and interviews?

MR LANGMEAD: Exhibit JC-4 is an exhibit which is a media release but then contains the outline of the speech of the honourable Chief Justice in its entirety. Can I just interpose there, your Honour, that this raises one potential problem if my friend is now relying on newspaper articles which is the problem born of there being a pre-prepared text of a speech which we do not know and cannot assist the Court as to whether or not it was followed verbatim by his Honour. Similarly, that casts a small cloud over the newspaper extracts. The veracity of those, to the extent that there is any difference between the prepared text of his speech and the newspaper reporting of it, we do not have an actual transcript of what his Honour said. So, that does create a potential problem for agreed facts.

HIS HONOUR: I understand that. I am not seeking to have some agreement reached about the facts. What I am seeking to do is to identify the basis of ground 5. My present understanding - and I would be glad if both counsel could, (a) take a careful note of it and, (b) then check the accuracy of the note, is that it is intended that ground 5 would read, the:

Extra-curial statements and opinions of the Chief Justice of the Family Court which are recorded in paragraph 10 of the affidavit of Mr Torney of 10 December 1998, exhibit A to the affidavit of Mr Torney of 10 December 1998, and exhibits JC-4, JC-5, and JC-6 to the affidavit of Mr Cranston, of 11 December 1998 - - -

MR LANGMEAD: We would say that the following words concerning the applicant are tendentious and perhaps ought be deleted as adding nothing to it.

HIS HONOUR: Maybe, but it is his ground, not yours, Mr Langmead.

MR LANGMEAD: That is true.

HIS HONOUR: Settling your opponent's drafting is always such fun, is it not, but it is his drafting, not yours.

concerning the applicant or concerning persons including the applicant in a class which does or may or would be perceived as including the applicant, have, in connection with the pending contempt proceedings against the applicant, created an appearance, apprehension, or actuality of -

and then (a), (b) and (c) as drawn.

MR PERKINS: Yes.

HIS HONOUR: Now, first, Mr Perkins, do I capture the material on which ground 5 is intended to be advanced, namely, paragraph 10 of Mr Torney's affidavit, exhibit A of Mr Torney's affidavit, and exhibits JC-4, JC-5 and JC-6 of the Mr Cranston's affidavit?

MR PERKINS: Yes, your Honour.

HIS HONOUR: Are you content to go forward on ground 5 amended in that form?

MR PERKINS: Yes, your Honour.

HIS HONOUR: Now, Mr Langmead, that being so, do we now know what the target is in relation to ground 5?

MR LANGMEAD: Yes, we know what the target is, albeit, of necessity, there cannot be agreement as to the facts.

HIS HONOUR: No, not asking for agreement. It is, after all, Mr Torney's application, not yours. But it may mean that we go forward on a defined basis of what the facts that we fight about. Now, that being so, just as to ground 6, Mr Perkins, I am sorry to play this like a ping-pong match between you both, but is it clear that ground 6 is the speech as recorded in, I think it is one of the exhibits of Mr Cranston's affidavit? Do we need to amplify ground 6?

MR PERKINS: I do not believe so. If a contention is made that the speech as given differed from the speech as proposed or written, I would - - -

HIS HONOUR: We will hear about it.

MR PERKINS: Yes. I would consent to that being put forward as fact.

HIS HONOUR: Well then, in the circumstances, what I am minded to do is to direct that the application be made by notice of motion to a Full Court, to give you both directions about filing further material and liberty to apply and then to say, as plainly as I may, that the fact that it goes forward to a Full Court in no way inhibits the way in which that Court then deals with it. In particular, in may be that some, perhaps all of the grounds, would be sent for hearing before a Court differently constituted than by a Full Court. So, it may come back to a single Justice or to a Bench of three or some other arrangement may have to be made. I do not want the parties going forward under any misapprehension of that. Though I will direct that it be returnable before a Full Court, it will then come under the control of the Full Court and it will be for that Court, as constituted, to determine which, if any, of the parts of the controversy between the parties are dealt with by the Bench in that form.

Now, further material, gentlemen: I think that we may be in a position where there should be no occasion to have further material but if I give you that opportunity then I will admire your courage if you come to a Full Court saying that you need to put on still further material. If I give you, say, Mr Perkins, what, until Christmas?

MR PERKINS: If your Honour pleases, I must say I do not have any intention of using the leave that your Honour gives.

HIS HONOUR: Well, if I said, say, until 21 December, would that be - - -

MR PERKINS: Certainly, if your Honour please.

HIS HONOUR: Given that January then intervenes, Mr Langmead, if I were to say until, say, the third week, January?

MR LANGMEAD: Yes, subject to there being no surprises from the prosecutor - - -

HIS HONOUR: There would be liberty to apply.

MR LANGMEAD: Yes. We would see the only factual matter requiring resolution is for us to confirm that the speech given did not depart or, if it did, as to what extent and what particulars from the text. That is the only factual issue that we see outstanding, unless there was something further raised by the prosecutor.

HIS HONOUR: Well, what I would be minded to direct, subject to what counsel may say, is further material by the applicant by 21 December; further material by the respondent by 22 January, and then liberty to apply on seven days written notice.

MR LANGMEAD: We are content with that, your Honour.

HIS HONOUR: Now, subject to the form of the order, have you anything further to say, gentlemen?

MR LANGMEAD: We are content with that. We would only ask that there be an order for the reserved costs of today and certification for counsel. And then there is the outstanding matter, your Honour, of costs from the previous appearance.

HIS HONOUR: Yes. What do you say I should do about those? Why should I not simply make them the respondent's costs in the cause? If the respondent succeeds, the respondent will have its costs; if the respondent fails, nobody will have them.

MR LANGMEAD: This is in relation to 9 November appearance?

HIS HONOUR: Yes.

MR LANGMEAD: Yes. Did your Honour receive an outline of submissions as to costs?

HIS HONOUR: Yes, I did and I have read that.

MR LANGMEAD: We say that the exceptional circumstance is that there was delay both in the presentation of affidavit material but, more importantly than that - if your Honour were not persuaded on that point - the 78B notices had not gone out in time for any reasonable response to be made. The proceeding, accordingly, on 9 November, the hearing, was rendered entirely abortive on those two counts. There has been no explanation proffered - I am working on the assumption that the applicant has not filed any written submissions in this regard as we have not received any, and we say that in accordance with authority that appears in the outline, Colgate Palmolive and other cases which are really not contentious principles, that it is a clear ground for costs on a solicitor/client basis where there is misconduct causing loss of time to the Court and other parties.

We say that with ordinary diligence and reasonably prudent conduct of the matter, this matter could have been at the state that it is now at the conclusion of the hearing on 9 November. I apologise, your Honour, I have been referring to the 9th. It was the second of the hearings. On 23 November this matter could have been progressed to its current state. That it was not is a matter on which there is no explanation and, accordingly, the departure from the usual rule is justified and we do seek costs on the solicitor and client basis.

HIS HONOUR: Yes. Well, Mr Perkins, I need not hear you on the scale of costs issue. Do you have anything to say against my making the costs of that adjournment the respondent's costs in the cause, such that if the respondent wins at trial, it will have its costs; if the respondent fails at trial, no one will have the costs and they will lie where they fall?

MR PERKINS: Only this, your Honour: in terms of whether that would be an appropriate exercise of discretion, assuming your Honour may make that order, I do not suggest that it might not be an appropriate exercise of discretion, with respect, but there is a question about whether the Crown should have costs in this type of action, it being an action which involves a criminal prosecution, perhaps not by the Crown directly but certainly by or on behalf of the Crown. I would ask that your Honour reserve the costs, if your Honour pleases.

HIS HONOUR: Yes. There will be orders in accordance with the following minutes:

1. Leave to applicant to amend proposed ground 5 to read as follows:

Extra-curial statements and opinions of the Chief Justice of the Family Court which are recorded in paragraph 10 of the affidavit of President Trevor Donald Torney, sworn 10 December 1998 and exhibit A to that affidavit, and in exhibits JC-4, JC-5 and JC-6 to the affidavit of Jefffey Marris Cranston, affirmed 11 December 1998, concerning the applicant or concerning persons including the applicant in a class which does or may or would be perceived as including the applicant, have, in connection with the pending contempt proceedings against the applicant, created an appearance, apprehension, or actuality of -

(a) institutional bias in the Family Court of Australia

(b) a lack of judicial independence

(c) irredeemable unfairness and prejudice.

2. Direct pursuant to Order 55 rule 2 of the Rules that the application for prerogative relief under section 75(v) of the Constitution by made by notice of motion to a Full Court.

3. Any further affidavit to be relied on by the applicant to be filed and served on or before 21 December 1998.

4. Any further affidavit to be relied on by the first respondent to be filed and served on or before 21 January 1999.

5. Liberty to apply on seven days notice in writing.

6. Certify for the attendance of counsel in chambers.

7. The costs of the hearing on 23 November 1998 be the respondent's costs in the cause but otherwise costs of the proceedings before me be costs in the cause.

Is there anything that counsel wish to say about the form of those orders?

MR LANGMEAD: Just a technicality, your Honour, in respect of the 23/11; the costs issue was adjourned absolutely and certification for counsel would be required for that appearance as well.

HIS HONOUR: Yes. Then I would certify that the hearing on 23 November 1998 was a matter proper for the attendance of counsel in chambers.

MR LANGMEAD: If your Honour pleases.

MR PERKINS: May it please your Honour.

HIS HONOUR: I will let the Registry know in Canberra the orders I have made. It will no doubt be appropriate for counsel to keep in touch with the Registry here to discover the progress of the matter towards hearing. I cannot say when the hearing will come on. Thank you, gentlemen.

AT 10.24 AM THE MATTER WAS CONCLUDED