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Slater, Ex parte; Re Justice Finn & Ors C100/1996 [ 1996] HCATrans 212  (6 May 1996)

Registry No C100 of 1996

In the matter of -

An application for Writs of Mandamus and Certiorari against THE HONOURABLE JUSTICE FINN, THE HONOURABLE JUSTICE KAY, THE HONOURABLE JUSTICE HOLDEN, (Judges of the Family Court of Australia)

Respondents

Ex parte -

MERRILEE MARGARET SLATER

Applicant

Registry No C101 of 1996

In the matter of -

An application for Writs of Mandamus and Certiorari against THE HONOURABLE JUSTICE DAWSON, THE HONOURABLE JUSTICE GAUDRON, THE HONOURABLE JUSTICE GUMMOW, (Justices of the High Court of Australia)

Respondents

Ex parte -

MERRILEE MARGARET SLATER

Applicant

Applications for leave to issue proceedings

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 6 MAY 1996, AT 10.16 AM

Copyright in the High Court of Australia

HIS HONOUR: Yes, Mrs Slater.

MRS SLATER: Your Honour, I am here to seek or ask that the writs be issued on the honourable Full Court Judges.

HIS HONOUR: Yes, I have read the papers, Mrs Slater. The problem seems to be that you see yourself as being at the end of the line, as it were. Is that right?

MRS SLATER: Yes, your Honour, that is right, but I have tried - it is nearly two years since I put the first application into this Court.

HIS HONOUR: Yes. The difficulty is, Mrs Slater, that it seems that you, perhaps, have not fully understood what the writs are that you are applying for. Do you know what they are?

MRS SLATER: Yes, I know what they are. I understand that whoever dealt with the case last, you can put a writ on if they did not do their duty.

HIS HONOUR: If they did not have the power to do what they did, and the question is did they have the power to do what they did. That is the problem, Mrs Slater. You see, you do not agree with what was done but you are not able to show that there was no power to do it.

MRS SLATER: Your Honour, this case concerns a decree nisi and those orders have never been acted upon or carried out or proceeded with and the decree nisi remains as it began 20 years ago, and that has caused my whole problems. The Family Court, if they did not have the power of a decree nisi, why did they accept it? That raises the question of did they accept it?

HIS HONOUR: Yes. I am sorry, Mrs Slater, I am afraid that on the material that you have put on the file, it is not sufficient to allow the application to go forward.

MRS SLATER: Regardless to what I might say, your Honour?

HIS HONOUR: Mrs Slater, if you can say something that is relevant, I will listen to it, but unless you can demonstrate that there is something to be said, I have only the papers to go on. The papers reveal that you have misunderstood the nature of this relief, and that the Court cannot be involved in the exercise in which you seek to invoke its jurisdiction.

MRS SLATER: The only thing that I can really say is the Full Court judges, they did not carry out their duty. They did not carry out their duty to proceed with the decree nisi or act upon the decree nisi. They changed the order and did their own order. They changed it to an alteration of property interests. I stressed to the Full Court judges that I wanted the title changed. They did not change the title.

HIS HONOUR: Now, is there anything else you want to say?

MRS SLATER: That leaves me in a situation where, after three years, it remains unresolved. I have not got anywhere - and the High Court Judges refused special leave. It did contain errors of law and the error of law was that the orders in the decree nisi were not proceeded with or acted upon by the honourable Full Court judges, and that was one order of law that it contained. All they did was an alteration of property interests, the Full Court judges, and I believe the law is, in section 79.1 of the Family Law Act, it does provide for the Full Court judges, when they are making an order for property interests, they are required by law to also include a property settlement and that was not done, your Honour. It also contained public interests.

HIS HONOUR: Now, these are arguments about the correctness of the order that was made, not about the power of the judges to make it and I am afraid I will have to refuse your applications, Mrs Slater.

MRS SLATER: All right.

HIS HONOUR: So, the order that I propose to make is that the applications for leave to issue the process in both instances are refused.

MRS SLATER: Thank you, your Honour.

AT 10.22 AM THE MATTER WAS CONCLUDED