Slater v Honourable Chief Justice Miles (includes corrigendum dated 23 March 1999) [1999] FCA 185 (25 February 1999)

Last Updated: 5 May 1999

FEDERAL COURT OF AUSTRALIA

Slater v Honourable Chief Justice Miles [1999] FCA 185

MERRILEE MARGARET SLATER v THE HONOURABLE JEFFREY ALLAN MILES

AG 110 OF 1998

SPENDER, HIGGINS & WEINBERG JJ

25 FEBRUARY 1999

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 110 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	THE HONOURABLE JEFFREY ALLAN MILES First Respondent REGISTRAR ALAN JEFFREY TOWILL Second Respondent SHERIFF JILL CIRCOSTA Third Respondent ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY Fourth Respondent
JUDGES:	SPENDER, HIGGINS & WEINBERG JJ
DATE:	25 FEBRUARY 1999
WHERE MADE:	CANBERRA

CORRIGENDA

Amendment to the Reasons for Judgment of Weinberg J delivered on 25 February 1999.

In para 28 of the Judgment of Weinberg J, delete the first sentence and replace with:

"I also agree for the reasons given by the learned presiding judge that this appeal should be dismissed as an abuse of process".

In para 28, in the last line the citation should read:

"Walton v Gardiner (1993) 177 CLR 378."

Bernadine Patrick

Associate to Justice Weinberg

23 March 1999

FEDERAL COURT OF AUSTRALIA

Slater v Honourable Chief Justice Miles [1999] FCA 185

MERRILEE MARGARET SLATER v THE HONOURABLE JEFFREY ALLAN MILES

AG 110 OF 1998

SPENDER, HIGGINS & WEINBERG JJ

25 FEBRUARY 1999

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY	AG 110 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	THE HONOURABLE JEFFREY ALLAN MILES First Respondent REGISTRAR ALAN JEFFREY TOWILL Second Respondent SHERIFF JILL CIRCOSTA Third Respondent ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY Fourth Respondent
JUDGES:	SPENDER, HIGGINS & WEINBERG JJ
DATE OF ORDER:	25 FEBRUARY 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

The motion for a stay of the appeal is dismissed.

The appeal is dismissed with costs, to be taxed if not agreed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORYDISTRICT REGISTRY	AG 110 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MERRILEE MARGARET SLATER Appellant
AND:	THE HONOURABLE JEFFREY ALLAN MILES First Respondent REGISTRAR ALAN JEFFREY TOWILL Second Respondent SHERIFF JILL CIRCOSTA Third Respondent ATTORNEY-GENERAL FOR THE AUSTRALIAN CAPITAL TERRITORY Fourth Respondent

JUDGES:	SPENDER, HIGGINS & WEINBERG JJ
DATE:	25 FEBRUARY 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT ON STAY APPLICATION

SPENDER J:

1 This morning, on 25 February 1999, the day appointed for the hearing of the appeal by Merrilee Margaret Slater from the judgment of Finn J of 16 October 1998, Mrs Slater filed a notice of motion seeking that this court grant a stay of proceedings. The basis for the application is contained in an affidavit filed this morning as well, which tersely states (1) that Mrs Slater is "in the process of having proceedings No ACTG 110 (sic) of 1998 removed into the High Court of Australia", and (2) she is "seeking a stay in the proceedings".

2 Annexed to that affidavit is a document which is a notice of motion in the High Court of Australia seeking, on a return date to be fixed, an order that the whole of these proceedings be removed into the High Court, pursuant to s 40 of the Judiciary Act 1903. That notice of motion indicates that the proceedings involve questions of:

"(i) Is it just to leave the Supreme Court ACT Decree Nisi Order's (sic) not Enforced?
(ii) Does the Judiciary Act s 39B(1A)(c) allow a Writ of Mandamus to be placed upon the Supreme Court officers to do their duty to Enforce their Decree under the Service and Execution of Process Act?
(iii) Parliment (sic) provides for the Execution of Decree's (sic) under s 51(xxiv) of the Constitution, is it right to contravene this?"

3 These issues were the subject of the judgment of Finn J on 16 October 1998, where his Honour ordered that:

"The answer to the question "Does the Court have jurisdiction to entertain the proceedings?" contained in the Amended Notice of Motion of the Attorney-General of the Australian Capital Territory of 16 October 1998 is "No"."

As a consequence, Finn J dismissed applications in AG 16 of 1998, which sought prerogative relief against the Chief Justice of the Supreme Court of the ACT, and in AG 24 of 1998, which sought prerogative relief against the Registrar and the Sheriff respectively of the Supreme Court of the Australian Capital Territory.

4 Before the court this morning Mrs Slater made it plain that she was seeking a stay of these proceedings, because she perceived that there was a forensic advantage to her in pursuing her claim in the High Court by way of a motion for removal, rather than having to proceed by way of special leave proceedings from her feared dismissal by this court of her appeal. The basis for her stay application is the achieving of what is seen by her to be that tactical advantage.

5 The second aspect of the stay application is its lateness. The Attorney-General for the Australian Capital Territory (who seeks to be heard on the appeal) had no notice of the application for an adjournment or stay until Mrs Slater rose in court this morning. The lateness of the application supports the view that the real reason for the stay, as Mrs Slater has indicated, is her estimation that the Full Court will dismiss her appeal, and she seeks to forestall that consequence by the making of the stay order.

6 In the circumstances as I have outlined, it seems to me to be plain that this court ought to decline the relief which Mrs Slater seeks by her notice of motion filed today and we ought to proceed to hear the appeal.

7 In that regard, Mrs Slater has put extensive written submissions before the court on which she can rely and she will, of course, have the opportunity to add to those submissions should she so choose, but in my opinion, we ought to decline to make an order staying these proceedings or to adjourn the hearing of the appeal.

HIGGINS J:

8 I would agree.

WEINBERG J:

9 I also agree that the application for a stay should be refused.

REASONS FOR JUDGMENT ON THE APPEAL

SPENDER J:

10 In my opinion, this appeal should be dismissed as an abuse of process. It is useful to set out at least a brief history of the matter.

11 Mrs Slater has brought a large of number of proceedings, appeals, and interlocutory motions which relate in different ways to a matrimonial cause, MC 600 of 1975, instituted in the Supreme Court of the Australian Capital Territory in 1975 under the then operative Matrimonial Causes Act 1959 Cth. The history is set out in the judgment under appeal, that of his Honour Finn J on 16 October 1998.

"The matrimonial cause was transferred to the Family Court of Australia on 29 November 1993 by an order of the Supreme Court. On 28 October 1994, when Mrs Slater sought to file a motion in the same cause in the Supreme Court of the Australian Capital Territory, Miles CJ held that that court lacked jurisdiction to entertain the matter as a result of the transfer of the proceedings to the Family Court and of the proclamation made under s 40(3) of the Family Law Act 1976 Cth. His Honour further ordered that no further application was to be filed in the matter without an order of a judge in chambers. Those orders notwithstanding, Mrs Slater sought on 16 January 1997 to file a notice of motion in the Supreme Court in the same cause in respect of claimed entitlements under s 86 (settlement of property) of the Matrimonial Causes Act 1959. The Registrar referred the matters to Miles CJ. On 7 February 1997 the Chief Justice again reiterated that the Supreme Court lacked power in the matter and directed that the notice of motion not be accepted for filing."

12 It was that direction that gave rise to the two applications with which Finn J was concerned. Mrs Slater later appealed against Miles CJ's order of 28 October 1994 and, importantly, for the purposes before Finn J, sought leave to appeal against the Chief Justice's order of 7 February 1997. The Full Court of the Federal Court on 27 June 1997 both dismissed the appeal and refused leave to appeal, the court being unanimously of the view that the Supreme Court was without jurisdiction in the matter.

13 In the meantime, an order was made in the Family Court in alteration of property interests by Treyvaud J. He, on 5 July 1994, ordered:

"That by the 5^th of October 1994 the husband pay to the wife the sum of $30,000.00."

He also made other orders concerning costs.

14 Mrs Slater appealed to the Full Court of the Family Court. On 10 August 1995, the Full Court (constituted by Finn, Kay and Holden JJ) ordered:

"(1) That the appeal be allowed.
(2) In lieu of Order (1) made by the Honourable Justice Treyvaud on 5 July 1994 the following order be made:
(a) That by 5 October 1994, the husband pay to the wife the sum of $30,000.
(b) That within 60 days of this order the husband pay to the wife a further sum of $70,000 together with interest calculated as and from 5 October 1994, at the rate provided by the Family Law regulations.
..."

15 It is noteworthy that on that appeal Mrs Slater sought an order for the transfer to her of one half of the parcel of land making up the property "Wondarra", after the property had been dissected by a proposed highway. The court noted that by the amended notice of appeal Mrs Slater sought an order that Mr Slater transfer to her all his right, title, and interest in a property known as "Wondarra" at Murrumbateman in return for Mrs Slater paying to Mr Slater an amount equal to 40 per cent of the valuation of the "Wondarra" property in its 1973 condition.

16 The appeal to the Full Court of the Federal Court (constituted by Gallop, O'Loughlin and Drummond JJ) gave judgment on 27 February 1997. Gallop J, in his reasons for judgment, said at paragraph 2:

"It became clear at the commencement of the hearing that what is really before us today is an appeal against an order of the Chief Justice of the Supreme Court of the Australian Capital Territory, that that court had no jurisdiction to entertain the motion which was then before it, it being a motion instituted by notice of motion of 18 October basically seeking an order that the respondent husband transfer to Mrs Slater his interest in the former matrimonial home called Wandara, and that he pay her the sum of $1,000,000 in compensation and certain other orders."

His Honour said at paragraph 11 of his reasons for judgment:

" In my opinion, his Honour was correct in holding that the Supreme Court of the Australian Capital Territory no longer had jurisdiction to entertain the application for property settlement."

At paragraph 13, his Honour said:

"Mrs Slater has complained in a general way that the transfer of the proceedings to the Family Court has deprived her of justice. One can understand her saying that. She is plainly seriously aggrieved by the results that she obtained in the Family Court and in a frank answer to a question asked from the bench, she has said that by instituting these proceedings, what she wants is somehow to get the maintenance which has not been paid pursuant to the order that was made on pronouncement of the decree nisi on 28 July 1976, she wants the property, Wondara, and she wants compensation for "What she has been put through"."

17 O'Loughlin J, in his reasons for judgment, said in paragraph 2:

"Notwithstanding that members of this court have told her orally during the course of these proceedings that the Family Court has finalised her entitlements to a property settlement, it seems to me that she just refuses to accept what we have told her. She has told us this morning that she is prosecuting these proceedings because at the end of the day she wants arrears of maintenance, compensation and the former matrimonial home. Her identification of her wish to get the former matrimonial home discloses to me the realisation that Mrs Slater just cannot accept that her rights to a property settlement have been concluded.

And at paragraph 3:

"As I have said, this is most unfortunate because she will continue to bear that sense of grievance, that sense of grievance will never leave her unless and until she is able to accept that, even though she is dissatisfied, nevertheless her entitlements to a property settlement have been concluded."

18 Drummond J went further. He agreed with the reasons of Gallop J and said:

"[I] would add only this, in my opinion the order of Higgins J of 29 November 1993 was effective to divest the Supreme Court of the Australian Capital Territory of the entirety of the jurisdiction it had up to that point in relation to the matrimonial proceedings involving Mrs Slater, not merely the jurisdiction that it had in respect of her then pending application for property settlement.
In my opinion, as a result of Higgins J's order of 29 November 1993, the only court that has any jurisdiction to make any orders in the future in relation to those matrimonial proceedings is the Family Court of Australia."

19 From the judgment of the Supreme Court, Mrs Slater sought and was refused special leave to appeal to the High Court. Brennan CJ, in refusing special leave said:

"Mrs Slater has reached the end of the appeal process. No error appears in the judgment of the Full Court of the Federal Court which warrants a grant of special leave to appeal to this court. Special leave must be refused and, whether Mrs Slater accepts the decisions or not of the courts below, they are binding upon her. Accordingly, special leave is refused."

20 The application before Finn J was a further effort by Mrs Slater to get what she says she is entitled to. She admitted in the course of the discussion with this court that this appeal is directed to making the Supreme Court listen to her claims in relation to the enforcement of the orders made by Connor J in 1976.

21 It is clear that the object of this litigation is to pursue matters which have been conclusively and authoritatively determined against her. It is an abuse of process in those circumstances to commence and maintain these proceedings.

22 In my opinion, this appeal is an abuse of process and indeed the proceedings before Finn J were an abuse of process. What constitutes an abuse of process was the subject of discussion in Williams v Spautz [1992] HCA 34; (1991-92) 174 CLR 509, in particular by Mason CJ, Dawson, Toohey and McHugh JJ at 518-520. Parts of those observations are as follows. Their Honours said:

"It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v NSW Bar Association [1960] HCA 40; (1960), 104 CLR 186, at p 201; Barton v The Queen [1980] HCA 48; (1980), 147 CLR 75, at pp 96, 107, 116; Jago. The existence of that jurisdiction has long been recognized by the House of Lords; Metropolitan Bank v Pooley (1885), 10 App Cas 210; Connelly v Director of Public Prosecutions, [1964] AC 1254; Reg v Humphrys, [1977] AC 1. The jurisdiction extends to both civil and criminal proceedings. As Lord Morris of Borth-y-Gest observed in Connelly v Director of Public Prosecutions [1964] AC, at p 1301:
`[A] court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction.... A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process.' "

At 519, their Honours said:

"If...a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the Court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the court should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it."

At 520, speaking of the fundamental policy considerations which must be taken into account, their Honours said:

"The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice."

23 In this particular appeal, what Mrs Slater is seeking to achieve is relief which the Full Court of the Federal Court in 1997 held was not within the power of the Supreme Court to grant. It seems to me that these proceedings are being used for an improper purpose and that the Court ought not be party to, or condone in any way, the prosecution of these proceedings for that purpose.

24 There is a further basis upon which, in my opinion, these proceedings are an abuse of process, and that is simply that they are doomed to fail. In my opinion, therefore, this appeal should be dismissed as an abuse of process.

25 I accept that there are important questions involved in the reasons for judgment of Finn J. They include: are judges of the Supreme Court of the Australian Capital Territory officers of the Commonwealth? Even if they are officers of the Commonwealth for the purposes of s 39B of the Judiciary Act 1903, can the Federal Court direct mandamus to a court of co-ordinate jurisdiction? Thirdly, is the matter in which mandamus is sought a matter "arising under a law of the Commonwealth" so as to bring the matter within the jurisdiction of the Federal Court, pursuant to s 39 of the Judiciary Act?

26 These questions were addressed by Finn J. For my own part, on the present state of the law, I see no error in the answers which his Honour gave, but it is not necessary for this court to go that far for the purpose of dismissing the appeal. I prefer to dismiss the appeal on the basis that it is a clear abuse of process. For the reasons which I have attempted to express, I would dismiss the appeal.

HIGGINS J:

27 I would also dismiss the appeal and I agree with the reasons given by the learned presiding judge. I would add only this: the contention that there is an undisclosed, unexecuted order for property settlement arising from a reserved judgment, undisclosed until November 1997, made apparently without any application or request for it, or without hearing any evidence from any party, would be rejected in any event as being not only fanciful but obviously fictitious. It is, unsurprisingly, supported by no credible evidence. In any event it was the subject of an inquiry in proceedings before Bell J in the Family Court of Australia on 12 January 1998, where his Honour found no support for that contention either. I would also, as I have said, dismiss this appeal.

WEINBERG J:

28 I also agree that the reasons given by the learned presiding judge at this appeal should be dismissed as an abuse of process. I would add only that, in my view, as the authorities stand, this appeal involves an abuse of process also because it is clearly foredoomed to fail, to use the language of the High Court in Walton v Gardener (1992-1993) 177 CLR at 378.

SPENDER J:

29 The appeal is dismissed. The respondents having asked for costs, there seems to be no reason why we should not order them.

30 The order of the Court is that the appeal is dismissed with costs, to be taxed if not agreed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender, the Honourable Justice Higgins and the Honourable Justice Weinberg.

Associate:

Dated: 25 February 1999

The appellant appeared in person.
Counsel for the Respondents:	Mr D Jarvis
Solicitor for the Respondents:	Australian Capital Territory Government Solicitor
Date of Hearing:	25 February 1999
Date of Judgment:	25 February 1999