PJB, Ex parte - Re Chisholm & Ors S155/2003 [2003] HCATrans 768 (2 June 2003)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S155 of 2003

In the matter of -

An application for Writs of Mandamus and Prohibition and an Injunction against JUSTICE RICHARD CHISHOLM, A JUDGE OF THE FAMILY COURT OF AUSTRALIA

First Respondent

JRL

Second Respondent

JLB

Third Respondent

COMMONWEALTH OF AUSTRALIA

Fourth Respondent

Ex parte -

PJB

Applicant/Prosecutor

HEYDON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 JUNE 2003, AT 9.19 AM

Copyright in the High Court of Australia

__________________

PJB appeared in person.

MS K.A. REES: Your Honour, I appear for the second respondent. (instructed by Mallesons Stephen Jaques)

MR B.J. SKINNER: May it please your Honour, I appear for the fourth respondent. (instructed by Australian Government Solicitor)

HIS HONOUR: The Registrar has issued a certificate to the effect that she has been informed that the first respondent submits to any orders of the Court, save as to costs, and that the third respondent does not wish to be represented at the hearing of the matter and will submit to any order of the Court, save as to costs. I have read, Mr B, your affidavit. You want to rely on that in this application, I take it.

PJB: This morning, your Honour, I would like to seek an adjournment - - -

HIS HONOUR: I see.

PJB: - - - as a result of late notification that I am required to issue section 78B notices to all the State Attorneys-General as well as late receipt of submissions from the second and fourth respondents, which I think I ought to respond to prior to the hearing.

HIS HONOUR: What is your attitude, Ms Rees, to - - -

MS REES: We oppose any such adjournment. I understand that our submissions were served in accordance with the usual timetable put down by the Court. So far as 78B notices are concerned, it does not affect the application for a writ which is made against my client, a solicitor. There are no issues arising under the Constitution in relation to that part of the application and we would oppose any adjournment, at least against us.

HIS HONOUR: Yes. Mr Skinner.

MR SKINNER: Your Honour, any adjournment is opposed by the Commonwealth of Australia. We share the same view, that we do not consider that the section 78B notices are required. So far as service of submissions were concerned, that was done within the timetable and, indeed, had to be dealt with by courier because Mr B did not have a facsimile address for anywhere close in the city, but he nevertheless received those submissions.

HIS HONOUR: The timetable of which you and Ms Rees have spoken, that was a timetable ordered by the Registrar?

MR SKINNER: That is correct.

HIS HONOUR: What do you say about the timetable?

PJB: I think everything has been done in accordance with the timetable, your Honour, but I would still press the issue of an adjournment, perhaps a week at a minimum, because there are some significant issues that are raised in submissions by the second and fourth respondents and I think they need to be addressed by me.

HIS HONOUR: When did you get the two sets of submissions?

PJB: They came late on Friday. In fact, I confirmed receipt of those very early this morning to them.

HIS HONOUR: What are the constitutional issues that you say occasions the need for you to issue 78B notices?

MR SKINNER: I should just interrupt perhaps - - -

HIS HONOUR: Before you answer that, I have read - - -

PJB: Perhaps I could hand up something that would summarise my view, your Honour.

HIS HONOUR: I just want to say this: I have read your affidavit and I appreciate the difficult financial position you are in. To issue section 78B notices may attract a very heavy financial exposure on your part because it may bring along, not only the Commonwealth of Australia, who is already here, but possibly eight representatives of Attorneys-General and they may wish to enforce any costs order that is made and your financial position will be a lot worse after that event than it is now.

PJB: Perhaps I could clarify that issue, your Honour. My understanding is that they do need to receive it. As I read the excerpt from the Commonwealth Attorney-General received late last week - - -

HIS HONOUR: So you are referring to - - -

PJB: It is paragraph 1, section 78 - - -

HIS HONOUR: Are you referring to Mr Skinner's written submissions which were filed on 29 May?

PJB: No, it is a letter I received from the Commonwealth Attorney-General. It is dated 26 May.

HIS HONOUR: I do not think I have that. Have you a copy, Mr Skinner? Do you know anything about it?

MR SKINNER: Your Honour would like to see that?

HIS HONOUR: Yes, I think, so that I can understand Mr B's position. Well, I have seen the letter. Thank you. I think I can hand that back. You say that the Commonwealth Parliament had no power to enact a law in 1975 giving the Family Court of Australia the power to grant divorces.

PJB: To create a non-Chapter III court, your Honour, that is correct.

HIS HONOUR: Section 51(xxii) of the Constitution, however, grants the Commonwealth Parliament power to make legislation about divorce.

PJB: Yes, I understand - - -

HIS HONOUR: That is a wholly baseless contention on your part, is it not, with respect?

PJB: No, no, I would not accept that proposition, your Honour, with respect.

HIS HONOUR: All right. That is one constitutional point. Is there any other constitutional point?

PJB: That is the primary one, but there are a number - may I hand up something which will make it easier for me to explain?

HIS HONOUR: Yes.

PJB: My view about this, your Honour, and the dividing line in the centre of the page indicates the English.....and the Australian response and we might say that there is a structure in the English environment, given some legislation and some law which we might refer to as the English Constitution, going back to 1215 and coming forward to 1824 and then resulting in the Commonwealth of Australia Constitution Act 1900 . As a result of the acceptance by Australia of independence from Britain in internal matters which is guaranteed by section 128 of the Constitution, the following Acts apply: the Acts Interpretation Act 1903 , the Judiciary Act and the High Court Procedure Act.

In Australia the structure is different at the present time - and this is the way I read it and this is how I would like to argue it - that the High Court of Australia is supreme at the present time. Although there may be some political motions to assert parliamentary supremacy, that is not presently the case. So this brings up the second issue that I would argue in relation to the role of juries in criminal and civil matters, and that is why I am seeking an adjournment, because I think on that point it is appropriate to respond to the submissions by the second and fourth respondents.

HIS HONOUR: Section 80 of the Constitution says, in effect, that the trial of offences against laws of the Commonwealth shall be by jury. Justice Chisholm was not dealing with any offence against the law of the Commonwealth. How does that raise a constitutional point?

PJB: Well, that is what I would like to put in a written submission, your Honour.

HIS HONOUR: But how does it raise a constitutional point? The respondents have been put to some cost to come here this morning. They are not to be turned away unless there really is an occasion for issuing - - -

PJB: Well, I advised them and I acknowledge that was late in the piece to say that I would be seeking an adjournment on the basis of two issues and - - -

HIS HONOUR: But they have to be real issues, not wholly imaginary issues. What is the constitutional point in relation to section 80 of the Constitution?

PJB: Well, I do not have section 80 in front of me at the moment, your Honour, but there are two issues that I think are appropriate to argue. One is in relation, as I mentioned first, to the Chapter III court, the necessity for the Family Court to be a Chapter III court in accordance with the legal structure handed down by Britain and according to the Commonwealth of Australia Constitution Act 1903 and those subsequent Acts. The other one is in relation to the appropriateness, or otherwise, of a jury in relation to matters in such a Chapter III court.

HIS HONOUR: Your first point is that there is a necessity for the Family Court to be a Chapter III court, right?

PJB: That is the point I am arguing, yes.

HIS HONOUR: Well, it is a Chapter III court.

PJB: That is my position.

HIS HONOUR: Well, if it is a Chapter III court, then there is no constitutional question, is there?

PJB: My understanding is that it is not, its creation is not, that it only could be by referendum of the people of Australia, which has not happened. In fact, it applies to the Federal Court as well, and this has been mentioned in obiter dictum in a couple of cases but never directly addressed as an issue.

HIS HONOUR: You submit the Federal Court is not a Chapter III court either?

PJB: Well, there are other people that hold that view. I am only concerned with the Family Court.

HIS HONOUR: Is there anything else you want to say about the adjournment?

PJB: I beg your pardon?

HIS HONOUR: Is there anything more you wish to say in support of the adjournment application?

PJB: No, your Honour. I think that it would be appropriate for me to respond to the submissions made, because they argue a point in opposition to the arguments that I have put up so far and the authorities and I think they need to be rebutted in writing.

HIS HONOUR: Yes, thank you.

The prosecutor, Mr B, applies for an adjournment of these proceedings on two grounds. The first ground is that he only received written submissions from the second respondent and the fourth respondent on Friday. Initially, he submitted that they have not been served in accordance with the timetable directed by the Registrar, but that submission appears to have been withdrawn. He submits that the arguments propounded require that he be given time in order to deal with them. In my judgment, he has had sufficient time since the receipt of the submissions to develop any answer that can be developed.

The second ground for the adjournment is that Mr B says notices under section 78B of the Judiciary Act (Cth) should be issued by reason of his contention that the present application involves a matter arising under the Constitution or involving its interpretation. If that contention is sound, it is the duty of the Court not to proceed further in this hearing until it is satisfied that notice has been given to the Attorneys-General of the Commonwealth and of the States and that a reasonable time has elapsed since the giving of the notice for the relevant Attorneys-General to consider whether to intervene.

One question raised is, in effect, whether there is power for the Family Court to grant divorces. The power of the Family Court to grant divorces stems from the Family Law Act 1975 and that, in turn, stems from section 51(xxii) of the Constitution. On the true construction of section 78B, it cannot be said that the mere assertion of a manifestly unarguable proposition about the Constitution thereby creates a matter arising under the Constitution or involving its interpretation. In my opinion, the contention that the Family Court when it grants divorces, as it does every day, is acting beyond power is so hopelessly untenable that no matter in a section 78B sense can be said to arise.

The second constitutional question raised by Mr B turns on the contention that it is necessary that the Family Court be a court within the meaning of Chapter III of the Constitution and that it is not a court of that character. That, too, is so wholly untenable a proposition as to fall outside section 78B.

The third contention is related to one of the primary arguments advanced in the documents filed so far by Mr B which relates to the scope of section 80 and to the question whether it compelled Justice Chisholm not to proceed in the Family Court hearing in this matter unless he empanelled a jury of 12 persons. That contention also is so baseless as not to raise a section 78B matter. Accordingly, I refuse the application for an adjournment.

I should mark for identification a document which Mr B handed up - have you copies of that Mr Skinner - and will note merely that he supported the application for an adjournment under the second and third constitutional heads by reference to that document. Mr B, I have the following documents, your outline of submissions, and I have some authorities and legal materials of that kind and I have your affidavit that was filed on 29 April 2003 with the exhibits. You rely on that affidavit, Mr B?

PJB: I am sorry, your Honour.

HIS HONOUR: You rely on that affidavit?

PJB: Yes, I do, your Honour.

HIS HONOUR: And you rely on all the exhibits?

PJB: The exhibits, yes.

HIS HONOUR: Is there any objection to any part of the affidavit or to the exhibits?

MS REES: There is an objection to, I think it is, the second exhibit, which appears to be Mr B's personal summary of the proceedings. It is PJB2 to the affidavit.

HIS HONOUR: Yes, it does appear to be that, but what is wrong with it?

MS REES: Well, it does not appear to me, in my submission, to be admissible as a business record or such like. It may well be an aide-mémoire or something which I would not object to going forward as a submission only, but so far as it purports to be an accurate summary of the proceedings below, in my submission, it is not admissible.

HIS HONOUR: You are happy for it to have the same status as your chronology?

MS REES: Yes, I am, your Honour.

HIS HONOUR: Mr B, you are relying on exhibit PJB2 as your summary, in effect, of the key events in the litigation to date.

PJB: That is correct, your Honour, yes.

HIS HONOUR: Yes, I will admit it over Ms Rees' objection as a chronology.

PJB: Thank you, your Honour.

HIS HONOUR: That affidavit can be taken as read and the exhibits will be exhibits under the exhibit markings which they already have. Now, I have read those materials and I have also read the written argument you have filed. Is there anything you want to add to the written argument or any part of it you want to develop orally?

PJB: Only what I have handed up this morning, your Honour.

HIS HONOUR: Yes, I see. Thank you.

The prosecutor and the third respondent were married on 27 March 1982. In 2001 various forms of litigation began between the prosecutor and his wife. On 20 August 2001 a registrar of the Family Court of Australia made orders having the effect of terminating the prosecutor's right to live in the matrimonial home from 10 September 2001. On 25 September 2001 Justice Rose upheld the registrar's orders. The prosecutor has explained in his affidavit of 29 April 2003 what adverse financial impact his exclusion from the matrimonial home has had.

On 24 December 2002 Justice Chisholm made orders, including an order for sale of the matrimonial home, the proceeds to be distributed in the proportion 25 per cent to the wife and 75 per cent to the prosecutor. On 24 January 2003 the prosecutor appealed and on 6 February 2003 his wife cross-appealed against Justice Chisholm's orders. The prosecutor has sworn that he cannot pay $6,000 for transcripts and $2,000 for photocopying in relation to the eight appeal books required by the Family Court.

The prosecutor applies to this Court for an order nisi calling on the respondents to show cause why a writ of prohibition and a writ of mandamus and injunctive relief should not issue out of this Court preventing any further action on Justice Chisholm's orders of 24 December 2002, and why a writ of mandamus commanding the Family Court of Australia to make an order that the prosecutor reside until further order in the matrimonial home should not be made.

The first respondent is Justice Chisholm; the second respondent is the solicitor for the wife in the Family Court; the third respondent is the wife; and the fourth respondent is the Commonwealth of Australia. Relief is also sought against the second respondent for what is alleged to have been his conduct of the Family Court proceedings in a humiliating and aggressive manner.

The grounds of the application, at least in their main elements, are twofold. The first is that Justice Chisholm was constitutionally obliged to sit with a jury of 12 by reason of section 80 of the Constitution, the International Covenant on Civil and Political Rights and the Habeas Corpus Act 1640. The second principal ground is that the Family Law Act is unconstitutional so far as it permits divorce, or at least so far as it grants power to the Family Court to grant divorces.

So far as the application is made in relation to the fourth respondent, no relief is sought against it and the application should be dismissed. So far as the application is made in relation to all respondents, it should be dismissed on the ground that the prosecutor's appeal to the Full Court of the Family Court of Australia remains on foot but undetermined. As a matter of discretion, it would be, in the present circumstances, wrong to grant the relief sought until remedies by way of appeal have been exhausted: see Re Baker; Ex parte Johnston (1980) 55 ALJR 191 at 192. The prosecutor points to a claimed financial inability to proceed with the Family Court appeal. No less a difficulty will apply if an order nisi were granted and a Full Court hearing proceeded in this Court.

So far as the application is made under section 75(v) of the Constitution, it must fail against the second respondent since he is not an officer of the Commonwealth, nor is the third respondent. Further, in many respects, if not all, the relief claimed against the second respondent is outside that which is available in relation to the writs of prohibition and mandamus.

In addition, the substantive grounds advanced by the prosecutor are unsound. First, section 80 of the Constitution requires trial by jury in relation to offences against the Commonwealth. Justice Chisholm was not trying any party for an offence against the Commonwealth. Secondly, it has not been demonstrated that Article 26 or any other part of the International Covenant on Civil and Political Rights compels trial by jury in this type of case. In any event, that treaty is not part of domestic law. Thirdly, the Habeas Corpus Act 1640, assuming it to be in force in Australia, does not require trial by jury in this type of case.

Fourthly, section 51(xxii) of the Constitution gives the Parliament the power to legislate with respect to divorce. Parliament had the power to confer on the Family Court of Australia a jurisdiction in divorce because the Family Court of Australia was a court within the meaning of Chapter III of the Constitution. Any contention to the contrary, as I indicated in refusing the adjournment, is totally unarguable.

Fifthly, the contention that Article 17 of the International Covenant on Civil and Political Rights has the result that Justice Chisholm acted arbitrarily because he did not sit with a jury is baseless, partly for the reasons given above and partly because, whatever else might be said in criticism of Justice Chisholm, he was not acting arbitrarily. No other substantive argument advanced by the prosecutor has merit. On those grounds, the application must be dismissed.

MS REES: Your Honour, we would seek our costs of this application.

HIS HONOUR: Mr Skinner?

MR SKINNER: We seek costs, your Honour.

HIS HONOUR: Mr B, they want their costs of the application. Do you have anything to say against that stand?

PJB: Yes, your Honour. I would oppose costs. I have overlooked handing up some correspondence which I think - may I seek leave to do that?

HIS HONOUR: Certainly. Do Ms Rees and Mr Skinner have a copy?

PJB: This correspondence, your Honour, confirms the fact that my application for appeal in the Family Court has been deemed abandoned for the reasons outlined, that I cannot afford it, and that is as far as I can take it. So I would submit, your Honour, that it is not feasible for me to take this matter any further in the Family Court and I would reiterate and press the same arguments as I have already, that the only course open to me at the present time is to seek prohibition of further proceedings in the Family Court pending the proper argument of the issues I have raised.

Now, what this correspondence also demonstrates in relation to the documents submitted by the second respondent is that what is submitted in the second respondent's submission is not the case. This has been the situation I have been enduring for two years. This does not indicate to the Court the facts demonstrated in this correspondence. First, there is a letter dated 8 May, copied to me, from the appeals registrar in the Family Court. The second one is also from the appeals registrar in the Family Court. It demonstrates that they are going ahead with an appeal. The third one is dated 16 May, copied to me, which is a letter from the wife's solicitor to the appeals registrar.

The contents of these three letters confirm that they are going ahead with an appeal, that my appeal has been deemed abandoned, and that is not what is in the submission. That is exactly what I have been enduring for two years, the efforts to mislead courts and proceedings at every turn. For that reason, I oppose costs and seek that these submissions be dismissed.

HIS HONOUR: Yes. The second respondent and the fourth respondent each apply for orders that Mr B pay the costs of these proceedings. In opposing those applications Mr B drew attention or handed to the Court three letters - is there any objection to them being marked as an exhibit?

MS REES: No, your Honour.

HIS HONOUR: Which I will mark as exhibit 1. They are letters from the Family Court to Mr B and to the second respondent of 8 May, from the Family Court to the second respondent of 14 May and from the second respondent's firm, Dettmann and Dettmann, to a deputy registrar of the Family Court of 16 May.

EXHIBIT 1: Letter from the Family Court to the prosecutor and the

second respondent dated 8 May

Letter from the Family Court to the second respondent

dated 14 May

Letter from Dettmann and Dettmann to the Family

Court dated 16 May

Mr B points out that those letters evidence the fact that the Family Court has informed him that under the Family Law Rules his appeal stands abandoned. He also contends that they show misleading conduct on the part of the second respondent of a type which he has been enduring for two years.

Those documents, in the first place, do not cause me to alter the opinions expressed in the reasons I expounded a little while ago. They reveal that, according to Marianne Stow-Smith, Deputy Registrar, it is possible for Mr B to reinstate the appeal and I reiterate that the appeal process should be exhausted before any application for an order nisi to this Court is granted. Despite the other contentions urged by Mr B, I am of the opinion that there is no alternative but for each of the second and fourth respondents to have an order for their costs of these proceedings be paid by him.

Is there anything else? Thank you.

AT 9.51 AM THE MATTER WAS CONCLUDED