Marriner v Smorgon [1989] HCA 69; (1989) 167 CLR 368; (1990) 93 ALR 78; (1989) 63 ALJR 518 (8 June 1989)

MARRINER v SMORGON and ANOTHER
HIGH COURT OF AUSTRALIA
Mason CJ, Deane, Toohey, Gaudron and McHugh JJ

8 June 1989

Mason CJ (delivering the judgment of the court)

Counsel for the respondents has submitted that the warrant issued by King J which authorised the sheriff to arrest the appellant and bring him before the court to answer a charge of contempt and detain him in the meantime was justified as an exercise of the Supreme Court's inherent power to preserve the subject matter of the litigation.

Even if it be assumed that the court had power to issue a warrant ex parte for that purpose and that the facts were such as to justify the exercise of the power, we have reached a clear conclusion that, notwithstanding the respondent submissions, the form of the warrant in this case was inappropriate to the exercise of that power. It was in a form appropriate only to a charge of contempt in the face of the court. The warrant, which was issued at the request of and in the form suggested by the respondents, was irregular and should not have issued.

Notwithstanding this conclusion, we consider that the appellant's submissions in support of the appeal cannot be accepted. The warrant was executed. The sheriff and his officers and, presumably the gaoler, acted in reliance on the authority of the warrant in arresting the appellant and detaining him. As the warrant was spent, the Full Court was right in concluding that it should not set it aside.

In the circumstances, the appropriate order is: rescind the grant of special leave to appeal.

Solicitors for the appellant: Freehill Hollingdale & Page.
Solicitors for the respondents: Purves Clarke Richards.