Jacups v Kay & Ors [2004] HCATrans 282 (6 August 2004)

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Jacups v Kay & Ors [2004] HCATrans 282 (6 August 2004)

Last Updated: 20 August 2004

[2004] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S529 of 2003

B e t w e e n -

GRAHAM DUDLEY JACUPS

Applicant

and

HIS HONOUR JOSEPH V. KAY J, JUDGE OF THE APPEAL DIVISION FAMILY COURT OF AUSTRALIA

First Respondent

HIS HONOUR IAN R. COLEMAN J, JUDGE OF THE APPEAL DIVISION FAMILY COURT OF AUSTRALIA

Second Respondent

HIS HONOUR PAUL MARSHALL GUEST J, ACTING JUDGE OF THE APPEAL DIVISION FAMILY COURT OF AUSTRALIA

Third Respondent

HIS HONOUR STEPHEN R. O’RYAN J, JUDGE OF THE FAMILY COURT OF AUSTRALIA

Fourth Respondent

HIS HONOUR ALWYNNE R.O. ROWLANDS J, JUDGE OF THE FAMILY COURT OF AUSTRALIA

Fifth Respondent

REGISTRAR JOAN CAIN

Sixth Respondent

ANNETTE MARY TESORIERO

Seventh Respondent

PAUL ANDREW DOOLAN, JOHN ANDREW BARKUS AND FRANCES MARY EDWARDS CARRYING ON BUSINESS AS BARKUS EDWARDS DOOLAN

Eighth Respondent

Application for leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 AUGUST 2004, AT 2.03 PM

Copyright in the High Court of Australia

MR D. KNAGGS: May it please your Honours, I appear for the applicant. (instructed by the applicant)

MR M.P. KEARNEY: Your Honours, I appear for the seventh and eight respondents. (instructed by Barkus Edwards Doolan)

GUMMOW J: Yes. The Court holds a certificate from the Deputy Registrar that she has been informed by the solicitor for the first, second, third, fourth, fifth and sixth respondents that they submit to the orders of the Court save as to costs. Yes, Mr Knaggs.

MR KNAGGS: Your Honours, the applicant apprehends that having to satisfy your Honours that leave should be given he has a lower threshold to get over than special leave applications, but, even if this were a special leave application, he would point to the fact that the administration of justice, in his submission, requires that leave ought to be given by your Honours because this involves administrative aspects of the Family Court, including the issuing of certificates of taxation and generally orders for costs and enforcing those orders.

Your Honours, could I please begin by asking for leave to file an affidavit, which, although not exactly soon, is to bring your Honours up to date with what has happened in the matter, and is all within the knowledge - - -

GUMMOW J: What do you mean by “up to date in the matter”?

MR KNAGGS: Your Honours, when the applicant - - -

GUMMOW J: This is an application for leave from a decision of the Chief Justice. We look at the record as it was before the Chief Justice.

MR KNAGGS: Yes, your Honours. Your Honours, the case is about constitutional relief, as your Honours know, and although his Honour - - -

GUMMOW J: The relevant authority on the distinction between leave and special leave is Ex Parte Bucknell [1936] HCA 67; (1936) 56 CLR 221. I think it was that to which you were averting.

MR KNAGGS: Thank you, your Honour, yes. Your Honours, the Chief Justice in an incisive way went through the arguments that had been raised by the applicant before him, but he said that he did not need to decide on the arguments because he was going to dismiss the matter purely on the question of delay. In essence - - -

GUMMOW J: Five years, is it not?

MR KNAGGS: Not exactly, your Honours, because - - -

GUMMOW J: It is at least three, is it not?

MR KNAGGS: Well, your Honours, no, because there was an appeal to the Full Court against orders of Justice O’Ryan. He was the judge who made the order for sale by way of enforcement of costs in the first place, which is at the root of all this. There was an appeal from Justice O’Ryan which came before the Full Court - - -

GUMMOW J: I was referring to the assertion that your client had no knowledge of the taxation proceedings in February 1999.

MR KNAGGS: Yes, your Honours. We do not rely on that though, because we say that the questions of the taxation certificates, anyway, went before Justice O’Ryan, and then from there to the Full Court. In our submission, it was proper for the applicant to go to the Full Court before coming before this Court on the constitutional matters, and, in fact, this Court has often held that that is desirable. Looked at in those terms, the Full Court decision was only handed down in – I am sorry, your Honours, I have added a chronology here.

GUMMOW J: Why does this come here in any event? I mean, come into the High Court under 75(5)? Why would not the ordinary procedure be to go through the Family Court appellate structure and then to seek special leave?

MR KNAGGS: Your Honour, what happened is that it went to the Family Court appellate structure, and then came here as a constitutional matter - - -

GUMMOW J: It comes here as a special leave application. Otherwise we would be sitting here endlessly hearing 75(5) applications in every case where the Commissioner of Taxation was upset, or the Commissioner of Patents was upset with the Federal Court, and so on and so forth.

MR KNAGGS: Well, can I put it this way, your Honours - - -

GUMMOW J: It has been said in several decisions that that is a powerful factor against the Court getting involved in a 75(5) application if there was an alternative path, which is not to be bypassed by trying to get here as of right. I mean, other litigants have to get here through the special leave mechanism.

MR KNAGGS: Your Honours, we are here because Chief Justice Gleeson gave a decision - - -

GUMMOW J: I realise that, but what I am putting to you is an added reason the case might have been unsuccessful before the Chief Justice.

MR KNAGGS: Yes. He did not find it so, though, your Honours.

GUMMOW J: I know he gave very detailed reasons.

MR KNAGGS: Yes, and based it solely on - - -

GUMMOW J: And the need to do so rather underlines the point I was putting to you. He could have been occupied in other tasks.

MR KNAGGS: He did base it solely on delay, though, your Honours, and not the ground that one should not come here except by special leave. In any event, your Honours, we seek leave to appeal. Looking at the grounds which were raised by the applicant before the Chief Justice, there were three altogether. His Honour acknowledges two of them, and, as your Honours have seen, the first one was that the certificates of taxation, we say, should not have been issued in favour of non-parties to the proceedings. Although sometimes orders for costs and other orders are made against non-parties, it is unheard of and inappropriate for an order to be made in favour of a non-party. The certificates of taxation should not have been made in favour of the solicitors, we say, because - - -

GUMMOW J: I am sorry to interrupt you, but what was the date of the Family Full Court decision?

MR KNAGGS: The Family Full Court was - - -

GUMMOW J: Back in 2002, is that right? May? There seem to be several decisions.

MR KNAGGS: The one in question, I am sorry, your Honours, is in an annexure to one of the affidavits, I recall. There it is – the order was made on 24 July 2002 and the application before your Honours was filed on 18 March 2003, so he exceeded the six months that is the time limited by the orders of the High Court by one month, three weeks. He was an unrepresented litigant at the time. Your Honours, before his Honour Chief Justice Gleeson we cited the Ross-Jones Case, which is in fact at the back of the authorities that were filed by the applicant. We - - -

GUMMOW J: What do you get out of Ross-Jones?

MR KNAGGS: We get out of Ross-Jones page 194, which says this:

“while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority” –

Your Honour, we add to that, in terms of the prohibition ground, the case of Hibble, which is cited in the summary of argument of the applicant at page - - -

GUMMOW J: You have to show absence of jurisdiction.

MR KNAGGS: Yes, your Honour. Just before I leave Hibble, Hibble says that:

so long, at any rate, as a judgment or order made without jurisdiction remains in force so as to impose liabilities upon an individual, prohibition will lie –

So there is a more specific but not a time-wise limitation, and that is as long as something still remains undone by way of enforcing liabilities on the individual.

Your Honours, so far as the excess of jurisdiction argument goes, as his Honour the Chief Justice notes, the effect of granting certificates of taxation in favour of the solicitors instead of the mother – which was not required, by the way, by any order of any judge of the court – the effect is that – and this is where we go to page 98 of the application book, where his Honour says Order 38 rule 63 as it then stood provided:

(1) The total amount payable for costs specified in a certificate of taxation is:

(a) immediately due and payable; and
(b) recoverable in any court of competent jurisdiction;

as if the certificate were a judgment for a debt of the amount specified in the certificate.

So the effect of the certificates of taxation being ordered in favour of the solicitors was that they became the judgment creditor of the applicant. Then what happened here, as his Honour goes on to say, proceedings were in the Local Court, which had been stayed since 21 February. If you go up to the fourth line of page 98, he says that:

The registration of the certificates of taxation as a judgment of the Local Court was effected pursuant to O 38 r 63 of the Family [Court] Rules –

So what has happened here is that the core actions of the court which led to the judgment against Mr Jacups were the registration of certificates of judgment in the Local Court. Now, while those certificates of the Local Court were still on the record of the Local Court – still judgments unassailed by anybody, and in fact attempted to be enforced by writs – then the Family Court made its order that precisely the same debt the subject of the certificates of taxation would be enforced by its own enforcement procedures, including the sale.

The argument there is that the judgment that came about in favour of the solicitors was in excess of jurisdiction, because certificates of taxation, as his Honour notes, can only be made in favour of the person entitled to the costs. The certificates of taxation appear in the application book at page 76, and the wording of the regulation is – sorry, not page 76 - - -

GUMMOW J: Where was the explanation for the delay, Mr Knaggs?

MR KNAGGS: Your Honours, the explanation he gave for the delay was that he went to the Full Court under appeal as a precursor to coming to this Court. He was not aware that there was a six month limitation on making the application to that Court, and, as I say, exceeded it by less than two months, but he has no other reason that justifies - - -

GUMMOW J: Is there any explanation for not filing a special leave application within time?

MR KNAGGS: No, your Honour, except he said he was unaware of the limitation.

GUMMOW J: Yes, very well.

MR KNAGGS: Your Honours, he, of course, still argues that on the test of the Ross-Jones Case, if he is someone who has suffered from an action of the court by excess of jurisdiction, he should have the writ as of right, unless there is some other compelling ground which was not raised or identified by his Honour or in submissions.

Your Honours, the other aspect that his Honour identifies that the applicant complained of was that the enforcement provisions that include sale of realty only apply to the enforcement of a decree for payment of money. Now, to take things one at a time, Justice O’Ryan made a judgment that included enforcement of the payment of costs by the father to the mother – the applicant to the seventh respondent – by sale of realty. His Honour the Chief Justice identifies the argument that was put to him where he says, at page 101:

The source of the Court’s power to order the sale of land is contained in O 33 r 7 of the [Family Court] Rules. At the time O’Ryan J’s orders were made, that rule provided as follows:

In order to enforce a decree of the Court for the payment of money, the court may order that any interest in real property of a party be sold –

Your Honours, the argument was – this is in the middle of the page:

The applicant submits that the “decree of the Court” that is necessary to enliven O 33 r 7 is a decree that specifies the amount to be paid. Moore J’s orders of 9 September 1997 did not specify the amount of costs payable. Although the costs payable are specified in the certificates of taxation, the applicant submits that neither of these is a “decree of the Court” within O 33 r 7. That is because a certificate of taxation is invested by O 38 r 63 (set out above) with the character of a judgment for debt –

and the debt has been subsumed, as we say, in the third last line –

“subsumed” in the judgment, and so there is no longer any “decree” –

But then, your Honour, we say the clinching argument about that point of view being right is that it says, at the top of page 102:

that a certificate of taxation is not a decree is fortified by an examination of O 38 r 63(2) –

That provides:

payment of an amount specified in a certificate of taxation may be enforced, under these Rules as if the certificate were an order made under the Act for the payment of costs of that amount.

I am sorry, I have read myself into error there, your Honours. At the top of page 102:

the conclusion that a certificate of taxation is not a decree is fortified by –

that rule that says, for “a particular rule” – for amendment, that was – it applies to a certificate of taxation “as if it were a decree”. That was the applicant’s final argument, that it cannot be a decree, or that would not have been a necessary provision.

Your Honours, the other argument, though, by the applicant I have already alluded to, if I can call it his third ground in front of the Chief Justice, was that as long as there is a judgment in the Local Court, then anything the Family Court does to enforce that is outside its jurisdiction.

Now, your Honours, the other point that his Honour found was that he had not been addressed on the question of a declaration, but it was certainly part of the application before his Honour. The declaration was one of the orders that were sought. Of course, the result of a declaration would have been that the Family Court would naturally follow that declaration, and would have desisted from whatever action they had in train that was outside jurisdiction.

Your Honours, as we say, the only other ground identified by his Honour is delay. In our respectful submission, in the first place, he should have been speaking of the delay only since the Full Court decision, rather than over several years. In the second place, the Full Court did have in fact the same question before it, your Honours. The Full Court certainly had before it the question of the certificates of taxation, because if you go to the Full Court decision, which starts at page 34, you will see at the bottom of page 38:

it has been drawn to our attention that the Certificates of Taxation that ultimately issued did not issue in the name of the wife in the proceedings but issued in the name of her solicitors. That would be a procedural irregularity, which, in my view, could not stand as the basis for a successful appeal.

Your Honours, those are essentially the three arguments why we say that the Family Court acted in excess of jurisdiction, and we say that there are powerful reasons, because this is a matter of administration, why leave should therefore be given.

GUMMOW J: Yes, we will take a short adjournment.

AT 2.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.32 PM:

GUMMOW J: We do not need to call on you, Mr Kearney.

The present doctrine of the Court respecting the interrelation between section 75 of the Constitution in its application to decisions of Federal Courts and the appellate jurisdiction in section 73 of the Constitution and its conditioning by the requirement of special leave is indicated by the Full Court in Glennan v Commissioner of Taxation (2003) 77 ALJR 1195 at 1198, paragraph [17]. The existence of the alternative appellate structure with its requirement of special leave is a matter going to the exercise of discretion.

In any event, there are no prospects of success in this case in any appeal from the decision of the Chief Justice. Accordingly, leave is refused with costs.

AT 2.33 PM THE MATTER WAS CONCLUDED