Finlayson v Baker & Anor A55/1997 [2000] HCATrans 459 (10 August 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A12 of 1997

B e t w e e n -

GREGORY JAMES FINLAYSON

Applicant

and

CLARE ELIZABETH FINLAYSON

First Respondent

HELENE RAYE GILLAM

Second Respondent

GEORGE DOUGLAS GILLAM

Third Respondent

Office of the Registry

Adelaide No A55 of 1997

B e t w e e n -

GREGORY JAMES FINLAYSON

Applicant

and

THE HONOURABLE JUDGE ERIC RAINSFORD BAKER, THE HONOURABLE JUDGE JOSEPH VICTOR KAY and THE HONOURABLE JUDGE DOREEN BULBECK

First Respondents

CLARE ELIZABETH FINLAYSON

Second Respondent

Office of the Registry

Adelaide No A56 of 1997

B e t w e e n -

GREGORY JAMES FINLAYSON

Applicant

and

THE HONOURABLE JUDGE ERIC RAINSFORD BAKER, THE HONOURABLE JUDGE JOSEPH VICTOR KAY and THE HONOURABLE JUDGE DOREEN BULBECK

First Respondents

CLARE ELIZABETH FINLAYSON

Second Respondent

Applications for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 12.50 PM

Copyright in the High Court of Australia

__________________

GUMMOW J: We are dealing with these applications on the papers. The Court holds a certificate from the Deputy Registrar that she has been informed by the Australian Government Solicitor, solicitor for those Judges of the Family Court who are named as the first respondents, that they do not wish to make any submissions in these matters and will abide by any orders of the Court save as to costs.

The Deputy Registrar also certifies that the party, Ms Clare Finlayson, seeks to make no submissions in respect of the application for leave to appeal which is A56 of 1997 and would seek, however, to preserve her rights in respect of any appeal if leave were granted.

Three applications are before the Court. A12 of 1997 is an application for special leave to appeal from orders of the Full Court of the Family Court of Australia (the Full Court). Those orders dismissed an appeal to that Court from orders of Justice Murray at first instance which included an order granting a decree nisi for dissolution of the marriage of the applicant and his former wife. The Full Court also ordered that, in the circumstances, the order nisi should be made absolute instanter.

The second application, No A55 of 1997, is a purported appeal from an order of Justice Toohey in this Court refusing an application for the constitutional writ of prohibition and a writ of certiorari directed to the Full Court.

The third, No A56 of 1997, is an application for leave to appeal from the foregoing order of Justice Toohey.

As indicated, the applicant has informed the Deputy Registrar that he does not wish to supplement his written material with oral argument, nor has any other party sought to be heard orally.

The Court has considered the written arguments of the applicant in so far as these criticise and challenge the reasons of the Full Court and of Justice Toohey. In

our view the decision of the Full Court is not attended by doubt either in the disposition of the appeal to that Court from the orders of Justice Murray or in the order which that Court made making the order nisi for dissolution of the marriage absolute instanter. For the reasons given by Justice Toohey in disposing of the application before him, it was open to the Full Court to act as it did; and that it did so was scarcely surprising in the circumstances.

This decision removes the substance of the dispute between the applicant and his former wife. All that remains, on the challenges to the orders of Justice Toohey, are certain highly disputable contentions about the jurisdiction of the Full Court both under the Family Law Act 1903 and by reason of the Judiciary Act4 (Cth) section 78B. In our view, none of those contentions is reasonably arguable in the circumstances of this matter. assuming that they have any continuing practical relevance. Accordingly, Justice Toohey was correct to refuse the constitutional writ and other relief sought by the applicant.

The order of Justice Toohey was interlocutory and an appeal from it requires leave. Accordingly, the purported appeal, the subject of A55 of 1997, should be struck out as incompetent. The application for leave to appeal from Justice Toohey, the subject of A56 of 1997, is dismissed.

AT 12.55 PM THE MATTER WAS CONCLUDED