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Courts - Australia - Some Jurisdictional Questions

Family Courts - Some Jurisdictional Questions

The Honourable Mr Justice McCall Chief Judge Family Court of Western Australia
Fifth National Family Law Conference

In 1911 Sir Samuel Griffiths, the first Chief Justice of the High Court of Australia in Federated Engine Drivers and Firemen's Association of Australia v. B.H.P. Co. Ltd. made the statement that:
"... The first duty of every judicial officer is to satisfy himself that he has jurisdiction ..."
This statement was made with respect to the Commonwealth Court of Conciliation and Arbitration, a federal court established under the Australian Constitution, and a court of limited jurisdiction. This statement probably represents the high water mark in imperatives to a judge of a federal court with limited jurisdiction.
His Honour continued:
"...if only to avoid putting the parties to unnecessary risk and expense. In this respect a grave responsibility rests upon the President, whose jurisdiction is limited both by the Constitution and the Act. This responsibility is not diminished by the possibility that he may be misled by imperfect or erroneous information. The mode of satisfying himself may vary in different cases."
In some other early cases in the High Court the same judge made further comments relating to the jurisdiction of courts of limited jurisdiction. For example, in Ridley v. Whipp he said:
"But consent cannot give jurisdiction over subject matter which is itself not within the cognisance of the Court".
* Chief Judge, Family Court of Western Australia
1 (1911) 12 C.L.R. 398 at 415
2 (1916) 22 C.L.R. 381 386
And again, in Federated Amalgamated Government Railway and New South Wales Railway Traffic Employees the Chief Justice commented further:
"Nor is a Court justified in making an order which it has no jurisdiction to make by the mere fact that no objection is offered".
The strength of the statement by Sir Samuel Griffiths in Federated Engine Drivers case has been somewhat diminished by the more recent statement by Brennan J. in Re Ross Jones; ex parte Green. There his Honour after pointing out that the Family Court, although a superior court of record, was one of limited jurisdiction but, nevertheless, had the power to determine whether it had jurisdiction to entertain an application, or to make a particular order, went on to say:
"If the Court makes an order on the application before it, it is implicit in the order that the Court has determined that it has the jurisdiction to do so (Peacock v. Bell and Kendall (1667) 1 Wms. Saund. 73."
The Family Courts and their Jurisdiction
The question that then arises is, do these strictures concerning jurisdiction enunciated in these decisions apply to the Family Courts? This, in turn, involves an examination of the origins of the courts and the sources of their powers.
The judicature and judicial power of the Commonwealth is contained in Chapter III of the Constitution. By Sec. 71 this judicial power is vested in the High Court of Australia and such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. Pursuant to this provision the federal Parliament over the years created five federal courts. There are now only two existing, the Family Court of Australia and the Federal Court of Australia. In Family Law the federal Parliament has invested federal jurisdiction in State courts of summary jurisdiction and the Family Court of Western Australia.
The Family Court of Australia is a Court created under Sec. 71 of the Constitution and for its jurisdiction relies upon Sec. 77(1) and (ii) and Secs. 75 and 76. The jurisdiction is exclusive of State Supreme Courts as a result of the
3 (1906)4C.L.R.488 at 495
4 (1984) F.L.C. 91-555 at 79,496
5 Commonwealth Court of Conciliation and Arbitration 1904; Federal Court of Bankruptcy 1930; Federal Court of Claims 1947; Family Court of Australia 1975 and Federal Court of Australia 1976.
6 For jurisdiction over Territories reliance is place upon Sec. 122.
Proclamations made under the Family Law Act terminating the jurisdiction of State Supreme Courts.
On the other hand, the Family Court of Western Australia is a State Court created under a State statute (the Family Court Act 1975 (W.A.)) but is invested with federal jurisdiction pursuant to Sec. 77(iii) of the Constitution and Sec. 41(3) of the Family law Act. Again, its jurisdiction is made exclusive of the Supreme Court of Western Australia as a result of the provisions of the Family Law Act. The consequence is that the general investing of federal jurisdiction in State Courts contained in Sec. 39(2) of the Judiciary Act to this extent in Family Law is excluded.
Apart from the family Ñîurts, courts of summary jurisdiction in the States also exercise jurisdiction in Family Law matters under the Family Law Act. Their jurisdiction is limited, both by the terms of the investing contained in Sec. 39(6), and also by the requirement to transfer proceedings to a Family Court where, for example, the property the subject of the proceedings exceeds $20,000 (see Sec. 46(1)) or, in the case of childrem,if the parties do not consent to a court of summary jurisdiction hearing this matter (see Sec. 63D(1)).
There is a difference between the position in the State of Western Australia and the other States, and Territories of the Commonwealth. As a result of a Proclamation made poursuant Sto Sec. 39(7) of the Family Law Act. the jurisdiction of courts of summary jurisdiction in the metropolitan area of Perth is invested in one court of summary jurisdiction alone, being a count sitting at the premises known as 45 St. George's Ter race Perth. This Court is a court of summary jurisdiction which is comprised of the Registrare of the Family Court of Western Australia who have been given warrants as State Stipendiary Magistrates. In Western Australia
7 See Proclanmrtions under Sec. 40(3) which terminated the right institute in or transfer proceedings to the Supreme Courts of the States (other than Western Australia) or Territories (other than the Northen Territory).
8 If a Proclamation is made withrespect to a State Family Court under S.41(2) then references in the Act to the Supreme Court of that State are to be taken to be references to the State Family Court.
9 This Court was created in 1979 by an anendment to the Family Court Act. By Sec. 74 the Court is given the federal Jurisdiction with which it is invested by or under the Family Law Act. In this way ths family Court of Western Australia has a two-tiered structure with Magistrates and Judges. The Registrar/Magistrates hear General, Duty, Maintenance and Divorce lists, the Judges principally being confined to hearing defended trials. This was the Western Australian alternative to the delegation of powes by Judges to Registrars and Judicial Registrars in the Family Court of Australia which came some years later.
10 With respect to child matters there is a similar investiture of federal jurisdiction (see Sec. 63(2)) and there is a similar restriction with respect to the Perth metropolitan area pursuant to a Proclamation made under Sec. 63(3).
11 Family Law Act Sec. 21(2) therefore, federal jurisdiction is invested in the courts of summary jurisdiction in the country areas but in the Perth metropolitan area, the investiture is restricted to the court of Summary Jurisdiction constituted by the Registrars/Magistrates of the Family Court.
In all other States and Territories of the Commonwealth, the courts of summary jurisdiction, including metropolitan courts, exercise jurisdiction under the Family Law Act.
Characteristics of the Family Courts
The Family Court of Australia is created as a superior court of record whereas the Family Court of Western Australia is a court of record. At common law being a court of record meant that it was a Court which had the power to fine or imprison for contempt. Also, as Brereton J. said in Ex parte Power: Re
"At common law the proceedings of court of record can be proved only by the production of the record."
However, in a careful analysis of the meaning and history of the term, Madden C.J. in Cooper and Sons v. Dawson seemed to indicate that the conclusiveness and incontravertibility of the record related to a superior court and not a lesser court.
The Family Court of Australia, although it is described as a superior court of record, does not enjoy the characteristics which a superior court normally enjoys. This is necessarily so because of its constitutional origins and the nature of its jurisdiction. The High Court has consistently pointed this out. The most recent and strongest statement to this effect is to be found in the judgment of Dawson J. in D.M.W. v. C.G.W. There, His Honour said:
12 See Sec. 7 Family Court Act 1975 being a State Court and, accordingly, within the hierarchy of State Courts it was presumably thought that it was inappropriate to designate any Court other than the State Supreme Court as a superior court of record.
13 See 10 Halsbury (4thEd) para.709
14 (1957) S.R.(N.S.W.) 253 at 260
15 (1916) V.L.R. 381 at 392-393
16 (1982-83) 151 C.L.R. 491 at 509
"The Family Court is, by s. 21(2) of the Family Law Act. declared to be a superior court or record. This legislative assertion cannot, however, be taken at face value. A superior court is a court of general jurisdiction, which is not to say that there cannot be jurisdictional limits but rather that it will be presumed to have acted within jurisdiction. This presumption is denied to inferior courts. It has been held that "nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to oe within the jurisdiction of an Inferior Court but that which is so expressly alleged". See Peacock v. Bell (1667) I Wms. Saund. 69, at p.74 [85 E.R. 81, at pp. 87:88]. these characteristics of a superior court are not, and for constitutional reasons cannot be, conferred upon the Family Court. A federal court created by Parliament, such as the Family Court, cannot have a general jurisdiction conferred upon it. Its jurisdiction can be no wider than that permitted by ss. 75 ana 76 of the Constitution and in so far as jurisdiction is conferred, as is the case with the Family Court, in matters arising under a law or laws made by Parliament, there is a further limit to be found in the definition of Commonwealth legislative power. The limited nature of the jurisdiction which can be conferred upon federal courts created by Parliament is reflected in s. 75(v) of the (constitution which gives to this Court original jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth."
As was pointed out further in the judgment, because of the presumption as to jurisdiction, to a superior court generally prohibition does not lie: (see Mayor of London v. Cox). However, as far as the Family Court and the Federal Court of Australia are concerned, prerogative writs do in fact lie, such power being specifically given by Sec. 75(v) of the Constitution. Accordingly, the Family Court cannot conclusively determine the question of whether it has jurisdiction. The High Court can examine the question of jurisdiction for itself and determine that question on the material before it. In this sense the finding of jurisdiction by the Family Court is susceptible to collateral attack.
It is interesting to see in the judgment of Dawson J. the comment that
"It is difficult to avoid the further conclusion that if the same question were validly to be raised in proceedings in the Supreme Court of New South Wales, that Court would also be free to determine for itself whether the facts existed upon which the jurisdiction of the Family Court depended and, if not, treat the order of the Family Court as a nullity".
17 (1867) L.R. 2 H.L. 239
18 Supra at 510
The general statement concerning the nature of the Family Court of Australia was reaffirmed in the later case of The Queen v. Ross Jones: ex parte Green^ where again, it was said that the Court, although described as a superior court nevertheless was a court of limited jurisdiction. This, in turn, meant that it had the power to determine the existence or otherwise of facts upon which its jurisdiction depended but its determination was not conclusive. In particular, any such question of jurisdiction was reviewable by the High Court by way of prerogative writ.
From as early as 1910 in Rex v. Commonwealth Court of Conciliation and Arbitration: Ex parte Whybrow and Co. the High Court held that the holder of a judicial office was an officer of the Commonwealth for the purposes of Sec. 75(v) of the Constitution and, accordingly, against whom prohibition would lie. In short, it held that "the use of the word prohibition' in itself implied that the officer referred to may be an officer exercising judicial or quasi-judicial functions". This decision was followed subsequently by the High Court and applied to judges of the Family Court of Australia beginning with the case of The Queen v. Watson: Ex parte Armstrong in 1976. There the High Court simply said:
"It was not in the present case doubted that prohibition would lie to a judge of the Family Court."
Prohibition was subsequently obtained in later cases against Family Court judges, for example, in 1980 in The Queen v. Cook: Ex parte Twigg and in 1984 in The Queen v. Ross Jones: Ex parte Green.
Although it is now clearly established that a judge of the Family Court of Australia is an officer of the Commonwealth, and thus subject to a prerogative writ in the High Court, it is also clearly established that a judge of a State court exercising federal jurisdiction is not an officer of the Commonwealth and thus not subject to a prerogative writ in the High Court. This appears to have first been determined by a majority (Isaacs, Higgins, Gavan Duffy and Rich JJ.; Griffiths C.J., Barton and Powers JJ. dissenting) in 1916 in The King v. Murray and Cormie. As pointed out by Isaacs J. a State judge holds his position entirely under
19 (1984-85) 156 C.L.R. 185
20 (1910) 1 C.L.R. 1
21 See page 41
22 136 C.L.R. 248
23 (1980-81) 47 C.L.R. 15
24 (1984-85) 156 C.L.R. 185
25 (1916-17) 22 C.L.R. 437
the State. He is paid by the State, removable by the State and the Constitution knows nothing of him personally, but recognises only the institution whose jurisdiction, however conferred, he exercises. In short, he said, that -
"The expression "officer of the Commonwealth' has not a fictional meaning. It has a real meaning that the person referred to is individually appointed by the Commonwealth; and therefore the Constitution takes his Commonwealth official position as in itself a sufficient element to attract the original jurisdiction of the Commonwealth High Court,...".
That case was dealing with a District Court judge exercising federal jurisdiction pursuant to the Commonwealth Workmen's Compensation Act. The case was cited by the High Court as the authority which it intended to follow, and declined the invitation to reconsider the point, in the later case in 1978 of R. v. Anderson: Ex parte Bateman. There the High Court held it had no jurisdiction to deal with an application for prohibition against a judge of the Family Court of Western Australia as he was not an "officer of the Commonwealth'.
Subsequently, an application was made to the Supreme Court of Western Australia for a writ of prohibition against the State Family Court Judge. The application was dismissed on the merits, there being no case of bias shown, but Burt C.J. expressed considerable doubt as to whether the State Supreme Court had jurisdiction to prohibit a State judge from exercising federal jurisdiction which has been invested on the court of which he is a member. The matter, however, had not been argued and Burt C.J. said it would be unwise to say anything more about it. This, of course, does not mean that there can be no judicial supervision over the exercise of jurisdiction by a State Family Court invested with federal jurisdiction. The question of jurisdiction can always be taken on appeal which would then lie to the Full Court of the Family Court of Australia and from there, to the High Court. In fact, as the High Court has indicated in The Queen v. Ross Jones: Ex parte Green. this is the first course of action to be taken by a litigant questioning the jurisdiction of a Family Court judge and that a prerogative writ may only issue if a want or excess of jurisdiction is clearly shown.
Both Family Courts are courts of limited jurisdiction. The limits to their jurisdiction are to be found in the provisions of their creating statutes and the proclamations made thereunder. The limits on their jurisdiction relate to persons, subject matter, and geographical area. The jurisdiction of the Family Court of Australia, as far as subject matter is concerned, is to be found in Sees. 31 and 63 of the Family Law Act.
26 (1978) 21 A.L.R. 56
27 See R. v. Anderson; Ex parte Ioppolo (1979) 5 Fam.L.R. 305 at 306
28 (1984-85) 156 C.L.R. 185
Little more need be said about the content of those sections as the matters referred to in them are the matters which the Family Court is dealing with each day, except perhaps those referred to in Sec. 31(l)(d). It is pursuant to that paragraph that the additional jurisdiction is conferred on the Court by the Family Court of Australia Additional Jurisdiction and Exercise of Powers) Act 1988.
The jurisdiction relating to subject matter of the Family Court of Western Australia is to be found in Sec. 27 of the Family Court Act (W.A.) 1975, the difference being that the Court, being a State court invested with federal jurisdiction, has both the federal jurisdiction invested in it by the Family Law Act and, in addition, non federal jurisdiction which is given to it under State Acts such as the Adoption of Children Act 1896 and the Child Welfare Act 1947. Again, these provisions are well known and need not be elaborated upon here. Perhaps what is less well known is the geographical limitation placed on each Court.
The jurisdiction of the Family Court of Australia under the Family Law Act is to be exercised in accordance with proclamations made pursuant to Sec. 40. By the proclamations' the jurisdiction of the Family Court of Australia under the Family Law Act may be exercised in all States of the Commonwealth (except Western Australia), the Australian Capital Territory, the Northern Territory and Norfolk Island. In Western Australia the Court can exercise jurisdiction in respect of appeals from the Family Court of Western Australia and to hear questions of law referred to the Full Court by way of a case stated under Sec. 94A
The geographical limitation on the exercise of its jurisdiction by the Family Court of Western Australia is to be found in Ss. 27(1) and (2). By those subsections the State Family Court has jurisdiction throughout the State in both federal and non- federal matters.
The result is that the Family Court of Australia, by virtue of the proclamation, cannot as such sit in Western Australia except to hear appeals and the State Family Court cannot as such sit outside Western Australia.
These geographical limitations on the places where the Courts may sit and exercise jurisdiction are not to be confused, as sometimes they have in the past, with the area of operation of the decrees of the Courts. Where each is exercising federal jurisdiction the operation of the decree runs throughout Australia. For example, an
29 The additional jurisdiction was not conferred upon the Family Court of Western Australia as it was not thought that the judges of that Court needed a 'change of diet' as they had non-federal jurisdiction in other areas which the Family Court of Australia did not.
30 The latest being a proclamation dated 23 November 1983
31 With the transfer of jurisdiction over the Indian Ocean Territories from the Commonwealth to the State of Western Australia it is proposed that the Family Court of Western Australia may be given the power to sit in those Territories. The Territories are Cocos (Keeling) Islands and Christmas Island order made by either Court is equally efficacious outside the boundaries of its permitted geographical sitting area as within them. An order made in Sydney by the Family Court of Australia is as effective in Western Australia as an order made by the State Court of Western Australia is in Sydney. Warrants issued by either Court run throughout the Commonwealth.
But the corollary to the proposition that the presumption that applies to a superior court that it has acted within its jurisdiction is a presumption which is denied to the Family Court (see Re Ross Jones: Ex parte Green), is that it becomes necessary for each of the Family Courts to satisfy itself that it has jurisdiction before proceeding in a case before it.
This in turn may well mean that the pleadings should allege or show that the subject matter or persons are within the jurisdiction of the Court. This has significance when consideration is being given to the simplified procedures that are proposed for matters in the Family Courts. If the pleadings do not show jurisdiction, is the judge required to satisfy himself aliunde?
The necessity to show jurisdiction was referred to by Wrottesley L.J. in Rex v. Chancellor of St. Edmundsbury and Ipswich Diocese. The Court of Appeal was considering the question of whether the ecclesiastical courts were inferior courts. Wrottesley L.J. said:
"And the more this matter was investigated the clearer it became that the word "inferior" as applied to courts of law in England had been used with at least two very different meanings. If, as some assert, the question of inferiority is determined by ascertaining whether the court in question can be stopped from exceeding its jurisdiction by a writ of prohibition issuing from the King's Bench, then not only the ecclesiastical courts, but also Palatine courts and Admiralty courts are inferior courts. But there is another test, well recognized by lawyers, by which to distinguish a superior from an inferior court, namely, whether in its proceedings, and in particular in its judgments, it must appear that the court was acting within its jurisdiction. This is the characteristic of an inferior court, whereas in the proceedings of a superior court it will be presumed that it acted within its jurisdiction
32 The same applies to State Courts of Petty Sessions. Different questions arise when the two Family Courts exercise jurisdiction with respect to ex nuptial children but this is beyond the scope of this paper.
The distinction between where the Court can sit and the area of operation of its decree when exercising federal jurisdiction does not always appear to be appreciated. An order of the Family Court of Western Australia giving custody of a child to the wife and issuing a warrant for her return after the child had been abducted to N.S.W. from W.A. was stayed by the Court in Sydney "without prejudice to any submissions that the [W.A.] orders were made without jurisdiction". (S. 590 of 1984)
33 [1948] 1 K.B. 195
unless the contrary should appear either on the face of the proceedings or aliunde.
Where then does this leave the two Family Courts? The Family Court of Western Australia is not expressed to be a superior court of record and therefore is subject to disadvantages relating to jurisdiction that are experienced by inferior courts. The Family Court of Australia is by statute expressed to be a superior court of record. Nevertheless, because it is a court of limited jurisdiction, it also suffers from the disadvantages of an inferior court to the extent that it must show it has jurisdiction. It can find facts and determine its own jurisdiction, but not conclusively being always subject to the overriding review by prerogative writ of its jurisdiction by the High Court. The State Family Court to this extent, appears to be in a rather more privileged position if the comments by Burt C.J. In Re Anderson are, in fact, correct. The jurisdiction of each is reviewable on appeal.
That the Family Court of Australia is expressed to be a superior court is, as the editor of the C.C.H. has suggested, indicative primarily of the formal status of the Court and not of its substantive characteristics. It is a status upon which the Court, and others, can rely when considering non-judicial matters relating to the Court, such as its general working conditions and resources. It was no doubt in this sense that the Advisory Committee to the Constitutional Commission in 1987 when dealing with the Family Court of Australia, reported as follows:
"... at the level of Court facilities and organisation, the Commonwealth should first commit itself to the renovation of the Family Court by equipping it with staff and general conditions appropriate to a federal superior court, while taking steps to limit its workload to that part of its jurisdiction which warrants the attention of a superior court. "—
For political purposes therefore the fact that the Court is designated as a superior court, is, and has been, extremely useful. This indicates its formal status in the hierarchy of courts. Despite the statements that the designation as a superior court cannot be taken at face value when looking at the legal characteristics of the Court, nevertheless, provided it is understood that the Court is a court of limited jurisdiction and is subject to the supervisory control of the High Court via the prerogative writs, it has also been recognized that the two concepts are not inconsistent. This was said by McTiernan J. in Carneron v. Cole where he explained it in these terms when referring to the Federal Court of Bankruptcy:
34 At 205-206
35 Constitutional Commission - Australian Judicial System Advisory Committee Report, 22 May 1987, para. 3.137
36 (1943-44) 68 C.L.R. 571
"The Federal Court of Bankruptcy is not, of course, a superior court of record having general jurisdiction. The Court is created by statute and vested by statute with jurisdiction in bankruptcy. This is a special Jurisdiction, and for that reason limited. Its jurisdiction is limited to bankruptcy, but it has substantially all the powers of a superior court of record as to the subject matter of its jurisdiction and its incidents. Though a court of limited jurisdiction, it is a superior court. The two characters are not inconsistent: and this is true even if prohibition would lie should the court act beyond its jurisdiction (James v. South Western Railway Co. (1872) L.R. 7 Ex. 287 at p. 290.—
This statement was referred to with approval by Brennan J. in Re Rosi Jones 38
Inherent or Implied Jurisdiction of the Family Courts
The significance of the nature of the Court is well illustrated when an examination is made of the inherent (if any) or implied jurisdiction of the Court. The starting point can be taken from the judgment of Menzies J. in The Queen v. Forbes: Ex parte Bevan. The case concerned the question of whether the Commonwealth Industrial Court, expressed to be a superior court of record, had jurisdiction to grant an injunction to preserve property pending the hearing of the proceedings.
There was no statutory power to make this order but it was argued that the Court had an inherent power to preserve property to prevent proceedings that were properly before it from being rendered nugatory by the act of the parties before the proceedings could be heard and determined.
In dealing with the submission Menzies J. made the following observations:
" 'Inherent jurisdiction' is the power which a court has simply because it is a court of a particular description. Thus the courts of common law without the aid of any authorising provision have inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as inherent jurisdiction which, as the name
37 At 599
38 (1984-85) 156 C.L.R. at 214
39 (1971-72) 127 C.L.R. 1
indicates, requires no authorising provisions. Courts of unlimited jurisdiction have "inherent jurisdiction'."
After pointing out that the Industrial Court was not concerned with property and the protection of property and being a court of limited jurisdiction, it did not by virtue of being a superior court of record, have jurisdiction in relation to property of an organisation which was party to litigation in the court, he concluded:
"Furthermore, I am far from satisfied that all superior courts of record have power to make orders for the interim preservation of whatever it may be is the subject pending litigation. It is well known that in the days of the division between law and equity resort was had to the Court of Chancery to preserve the property the subject of proceedings at law. "
His Honour here was clearly drawing a distinction between implied powers of a court and inherent jurisdiction. The latter, in his view, were not enjoyed by a court of limited jurisdiction.
In the early case of Vergis and Vergis in 1977 the Family Court took a very narrow view of ifs powers. There if was said that:
" the Family Court is not a court of Common Law or a Court of Equity as are the Supreme Courts of the States with inherent jurisdiction. The Family Court is a creature of statute and has no powers other than those given to it by statute.'"
Shortly after in Taylor v. Taylor the High Court made it clear that the Family Court did enjoy powers beyond those strictly contained within the confines of its statute. The question was whether the Court had the power to set aside a property judgment on grounds other than those that fell within Sec.79A of the Family Law Act. The litigant, through no fault of his own, had not been given an opportunity to present his case at the hearing when the property order was made. There was no specific provision in the Act or the regulations which empowered the Court to set aside the order in the circumstances that had arisen. The High Court
40 At 7
41 At 9. The Family Courts have the specific power to make orders with respect to preservation of property. See 0.21. Hence the power to grant Anton Piller orders
42 (1977) F.L.C. 90-275
43 At 76,470
44 (1979-80) 143 C.L.R. 1
then considered whether the Family Court had an inherent power to set aside an order.
After referring to the statement by Menzies J. in Reg, v. Forbes: Ex parte Bevan (supra) that ' such inherent jurisdiction as the Court may have could not go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the Act', Gibbs J. said that:
"It follows from these statements that any inherent power of the Family Court to set aside its own orders will not be conferred, expressly or by implication, by the provisions of the Family Law Act. although the Act may contain provisions which negative the existence of any inherent power...'
He then concluded that it was clear from the earlier cases and, in particular, Cameron v. Cole. the case dealing with the jurisdiction of the Court of Bankruptcy, that:
"... a court whether superior or inferior has inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case. It seems immaterial in the present case whether the family Court is regarded as a superior court or an inferior court.
However, since the appellant in fact had no notice of the hearing, the court had inherent power to set the order side."
There followed, in 1980, The Queen v. Bell: Ex parte Lees . The question there was whether a Family Court Judge had the power to order a solicitor to disclose information which would lead to the discovery of the whereabouts of a child, the subject of a custody order. The Court held that the trial judge had the power to make the order that he did. Gibbs J. said:
"Although I do not agree that there is express statutory power to order the disclosure of information of this kind, in my opinion the Family Court had an inherent power to make the order wnich it did. "
45 At 6
46 (1944) 68 C.L.R. 571
47 (1979-80) 143 C.L.R. at 8
48 (1980-81) 146 C.L.R. 141
49 At 148
His Honour pointed out that for many years courts had required persons to give information as to the place of concealment of a ward and that there was no reason why this principle should not be extended to cases of custody. He concluded:
"There is no reason why the Family Court, which in Australia now has power to make orders with respect to custody of a child of a marriage, and which is a superior court of record, should not possess this inherent power: c.f. Taylor v. Taylor."
It is interesting to note that, although in the earlier case of R. v. Forbes: Ex parte Bevan, Menzies J. was at pains to distinguish between inherent and implied jurisdiction, the basis of the Court's decision in the last two decisions was expressed to be an inherent jurisdiction of the Family Court.
But in 1984 limits were placed on the inherent jurisdiction in Re Ross Jones; ex parte Green. An interim injunction had been granted restraining a third party from proceeding to enforce ajudgment obtained against the husband. Reliance was placed upon Sec. 114 of the Act or, in the alternative, the inherent jurisdiction of the Court. The High Court found that Sec. 114 was only available when the Court was exercising jurisdiction under the Act - it did not confer jurisdiction, and here there was no such jurisdiction. Gibbs C.J. then went on to deal with the question of inherent jurisdiction. He said:
"The provisions of Sec. 114, which are precisely limited as they are, no doubt to ensure that they do not exceed constitutional power, cannot be extended by resort to the so called inherent jurisdiction. Such inherent jurisdiction as the Family Court may have could not go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the Act: cf. Reg. v. Forbes: ex parte Bevan ..."52
The Federal Court has considered the question of whether it has inherent powers being a court of limited jurisdiction in the same way as is the Family Court. In Jackson v. Sterling Industries Ltd. Bowen C.J. said:
50 At 149
51 (1984-85) 156C.L.R. 185
52 At 200
53 (1986) 69 A.L.R. 92
"Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power, for example, to prevent an abuse of process is similar to, if not identical with, inherent power."
In its most recent exposition on inherent powers of courts the High Court has endorsed the more restrictive approach that became apparent in Re Ross Jones.
Grassby v. R. was a case where a magistrate in committal proceedings, although having found a prima facie case, did not commit the applicant for trial on a charge of criminal defamation but granted a permanent stay of proceedings on the charge. The Court of Criminal Appeal set aside the magistrate's decision and the applicant sought special leave to appeal. Although the magistrate in committal proceedings was fulfilling a function of an administrative character, nevertheless, the Court considered the nature of powers which might be described as inherent when he was exercising judicial functions. Dawson J. denied that a magistrates' court had any powers that could be properly described as inherent even when exercising judicial functions. He referred to the judgment of Menzies J. in R. v. Forbes (supra) and the distinction between inherent and implied powers and continued:
"But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge or that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court or New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrates court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse ïîï potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, out it is, as Menzies J. points out, fundamental."
54 At 96-97
55 (1989) 87 A.L.R. 618
56 At 628
His Honour illustrated the point by reference to the principle that a superior court not only has power to punish contempt against itself committed out of court, but in the exercise of its inherent jurisdiction it could prevent and punish summarily as a contempt, any interference with the due course of justice in an inferior court. This was because without a statutory power to punish for contempt, inferior courts were unable to protect themselves by punishing for contempt. Now, of course, most inferior courts are given this power by statute.
His Honour did not attempt to specify the occasions when an inferior court would possess powers by way of necessary implication. He concluded on this topic by saying:
"Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction', There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings:"^
It becomes clear from the above that what additional powers or jurisdiction a court may have, does not depend upon whether a court is created by statute or not, as all courts in Australia generally speaking are created by statute, nor does it depend upon whether the creating statute designates the court as a superior court or not. What appears to be the determining criterion is whether the court is one of limited or unlimited jurisdiction. If the former, then it has jurisdiction by implication only. This jurisdiction extends to protecting its function as a court which is implied from the statutory provisions conferring jurisdiction on it.
In the various quotations taken from the cases referred to above there seems to be an equation between courts of limited jurisdiction and inferior courts when determining the limits of a court's jurisdiction. The terms are used interchangeably. Or, perhaps it would be more accurate to say that in determining the extent of the jurisdiction of a court of limited jurisdiction, reference is made to an inferior court. As the Family Court is by statute a superior court, it is preferable to discuss its implied or inherent jurisdiction in the context of its being a court of limited jurisdiction.
Despite their different characterisations it appears then that there is no difference between the two Family Courts in Australia. Each would have 'implied powers' but not 'inherent powers'. The implied powers are as indicated in Grassby's Case, limited in their extent.
57 At 628-629
The Family Court has relied on its inherent jurisdiction in the past in a number of instances to justify the making of certain orders. Even under the more restrictive approach of Dawson J. in Grassby's Case. there would seem to be no doubt that these orders would be justified. For example, the power to grant a stay of execution Mollier and Van Wyk (No. 2) the power to grant an adjournment Emmett and Emmett. the power to prevent an abuse of process of the court by prohibiting a vexatious litigation from instituting proceedings without leave Willmoth and Willmoth the power to allow a person to apply to set aside a subpoena on the ground that it is frivolous or vexatious Blann and Blann.
Courts also have an inherent power to define their own practice and procedure, which includes a power of delegation to officers of the Court of certain powers, jurisdiction and functions of the Judges constituting the Court. The delegation may be limited which was the issue in Harris and Calladine but also the inherent power to delegate may be restricited by the statutory provisions. As Mason C.J. and DeaneJ. said:
"The Judges of a superior court have power to delegate which they may exercise by rules of court, whether pursuant to a general rule- making power or in the exercise of an inherent jurisdiction. They stand in no need of a statutory power to delegate. However, the terms of a relevant statutory power may serve to restrict any inherent power to delegate."
In the area of adjudicating upon the validity of cost agreements, there would still appear to be some doubt as to whether the Family Court has the necessary (implied) inherent jurisdiction. In addition, there is the further question of whether, following the decision of the House of Lords in Harrison and Ors. v. Tew, the 'inherent' jurisdiction has been ousted by the statutory provisions which purport to cover the field.
58 (1981) F.L.C. 91-030
59 (1982) F.L.C. 91-212
60 (1981) F.L.C. 91-030
61 (1983) F.L.C. 91-322
62 See The Commonwealth v. H.C.F. (1981-82) 150 C.L.R. 49 per Brennan J. at 77
63 (1991) F.L.C. 78-464
64 At 78-69
65 (1990) 2 A.C. 523
66 This question is discussed in the paper by Andrea Cotter-Moroz annexed to the Family Court's submission on reference (f) to the Joint Select Committee. See pages 40, 42-49
Cross-Vesting and Inherent Jurisdiction
The extent of the 'inherent' jurisdiction was briefly discussed by Nicholson C.J. in Gilbert and Gilbert where his Honour relied upon the 'inherent' jurisdiction to justify the power to order the wife to undergo a psychiatric examination. The wife had applied for spousal maintenance and property settlement. The husband applied for an order that the wife have such an examination for the purpose of testing her claims relating to her psychiatric condition relevant to the issues before the court. The state of health of the parties was relevant to these issues. Accordingly, in order that injustice was not done to the husband by requiring him to proceed to trial without affording him the opportunity of an independent psychiatric examination of the wife, his Honour was prepared to make the order based on the principle that the "inherent' jurisdiction of the Court was to enable it to exercise its statutory jurisdiction with justice and efficiency.
However, in Gilbert's Case his Honour, as an alternate source of power, relied upon the cross-vesting legislation as giving him the inherent jurisdiction of the Supreme Court of Victoria.
If inherent powers of the Family Court can be acquired by virtue of the cross- vesting legislation the restrictions applicable as a result of Grassby's Case are overcome. The cross-vesting being from a State Supreme Court, all the inherent powers of a court of unlimited jurisdiction would then be acquired by the Family Court. To pursue the extent and limits of the Family Court's inherent jurisdiction would then be a purposeless exercise.
But two questions arise. The First is, does the Family Court acquire this inherent jurisdiction in this way and the second is, does a Supreme Court have inherent jurisdiction to make such an order? As to the first question, this would seem largely to depend upon the width of the interpretation of "State matter" in the cross-vesting legislation. For example, the Victorian cross-vesting Act^ provides that the Family Court of Australia has and may exercise original and appellate jurisdiction with respect to State matters (Sec. 4(2)). A State matter is then defined as follows:
"State matter" means a matter -
67 (1988) F.L.C. 91-966
68 The question arises as to whether this proposition needs consideration since the decision in Grassby's Case
69 Jurisdiction of Courts (Cross-Vesting) Act 1987
(a) in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State; or
(b) removed to the Supreme Court under section 8."
The meaning of the word "matter" being the basis of the jurisdiction conferred on federal courts by Parliament in Sec. 77 of the Constitution (or state courts invested with federal jurisdiction) has been given the widest interpretation. In In re Judiciary and Navigation Acts. the High Court rejected a suggestion that "matter" meant no more than legal proceeding. Instead, it meant the subject matter for determination in a legal proceeding. It concluded:
"All these opinions indicate that a matter under the judicature provisions of the Constitution [Sees. 75, 76, and 77] must involve some right or privilege or protection given by law for the prevention redress or punishment of some Act inhibited by law. The adjudication of the court may be sought in proceedings inter partes or ex parte ... "
If the word "matter" in the cross-vesting legislation is given the same wide interpretation as given to the word "matter" in the Constitution it would seem that there is no doubt that Nicholson C.J. was correct in utilising the cross-vesting legislation to determine the question of a psychiatric report in Gilbert's Case. It was "some immediate right to be established" and it was in proceedings inter partes. Presumably the framers of the cross-vesting legislation had the history of the interpretation of the word "matter" in the Constitution in mind when drafting the legislation. Presumably, they also intended to cross-vest the widest possible jurisdiction that could arise in the state or federal courts. There would accordingly be no reason why a different interpretation should be adopted for the purpose of the cross-vesting legislation to that determined by the High Court for the purposes of the Constitution and, in particular, the judicial power of the federal courts.
English Decisions
As to the second question, if the source of the inherent jurisdiction is the unlimited powers of the courts of Westminster, it is apposite to see whether such powers have been exercised by the English courts. There have been a number of cases dealing with personal injury or fatal accident claims in which applications have been made by the defendant for the plaintiff to undergo a medical or psychiatric examination. The courts have been careful to recognize that an order for medical examination of a party to an action has been well said to be an invasion of personal liberty. Nevertheless, it has effectively required medical examination to take place
70 (1921) C.L.R. 257 at 265
by utilising the inherent powers of the court to stay the plaintiffs action until such time as the examination has been undergone. It has not made a direct order for the examination but made it a condition for the plaintiff being able to proceed with his action.
As Lord Denning M.R. said in Edmeades v. Thames Board Mills
"This Court has ample jurisdiction to grant a stay whenever it is just and reasonable so to do. It can therefore, order a stay if the conduct of the plaintiff in refusing a reasonable request is such as to prevent the just determination of the cause."
This jurisdiction to grant a stay was reaffirmed by another Court of Appeal in Lane v. Willis. This was a case in which a stay of proceedings was granted until such times as the plaintiff had submitted to a psychiatric examination. The Court approved what had been said in Edmeade's Case and disapproved of a statement by the Judge at first instance who said he:
"did not find palatable the use of the court's jurisdiction to stay proceedings and thus achieve a result indirectly, which could not be achieved by a direct order. "
Edmeade's Case had in the meantime been referred to with approval by Lord Macdermott in S. v. S. He said:
"... much of the jurisdiction of the High Court can only be made effective by indirect means - such as a stay of proceedings, attachment or the treatment of a refusal to comply as evidence against the disobedient party. This is very much the case in one branch of the jurisdiction of the High Court, namely its inherent jurisdiction to make interlocutory orders for the purpose of promoting a fair and satisfactory trial. "
But the device of ordering a stay of proceedings until such time as a party has taken certain steps is both unsatisfactory and incompatible with the current interventionist trend of courts to concern themselves with the pace of litigation
71 See for example Sachs L.J. in Lane v. Willis (1972) All H.R. 430, at 435
72 [1969) 2 Q.B. 67 at 71. A request for a further medical examination of the plaintiff by the defendant's medical expert arising out of a new complaint which was for the first time revealed in the plaintiffs medical report, a complaint that had not been pleaded
73 (1972) All E.R. 430
74 (1973) All E.R. 107, 114
before them. As the Case Management Guidelines of the Family Court of Australia announce that "to do justice and to ensure promptness and economy, the Court must concern itself with the pace of litigation from commencement to disposition". Perhaps the strongest recent statement of the Court's role in managing caseflow is to be found in the information statement for the legal profession published by the Court Services Department explaining the changes to the Court system in South Australia. That statement announces that:
"Upon the initiation of proceedings within a court that court will itself assume control and management of the progress of the litigation in accordance with determined procedures ana having regard to time performance objectives developed for the particular type of litigation in question. The essential aim will be to eliminate any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for pleadings, discovery and other interlocutory activities essential to tne fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.'"
The information statement then proceeds to outline the power of the courts of their own motion to review the progress of proceedings and give orders and directions as may be required for the efficient and timely disposal of cases. There are wider powers given to the courts to strike out actions and applications for want of proper prosecution if parties do not proceed with the hearing of an action or application at the time fixed for it.
Striking out actions for want of prosecution in cases of inordinate or unreasonable delay appears to have been undertaken in earnest from the late 1960's in England. In Alien v. Sir Alfred McAlpine and Sons Ltd. three cases were struck out. Two were over nine years old and one, fourteen years old. As was later pointed out by Lord Diplock in Bremer Vulkan v. South India Shipping the mischief which the Court of Appeal sought to cure in Alien's Case was to protect the interests of plaintiffs who had the misfortune to be represented by negligent solicitors rather than the interests of defendants. As he said it was generally in the interests of a defendant to let sleeping dogs lie. The result was that on dismissal of the action against the defendant, a right of action by the plaintiff in negligence against the dilatory solicitor would be substituted for his former right of action against the defendant. The Rules of Court leaving the initiative to the defendant to take steps to compel a dilatory plaintiff to get on with the preparation for trial had
75 Legislative Changes To The Courts System (July 1992), p. 15
76 [1968] 2 Q.B. 229
77 [1981} A.C. 909, at 984
proved inadequate to prevent the risk of injustice being caused by neglect by solicitors for plaintiffs.
As Lord Diplock said:
"The High Court's power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice."
The result is that even if the Court does not have the express power to order a party, for example, to undergo a medical examination or take any action that the Court believes is necessary to enable the Court to deal with the proceedings justly between the parties, it could order a stay of proceedings until such time as such action had been taken. It would be possible to impose a time limit upon the taking of such action and if the action is not taken, the proceedings could be dismissed.
If it were a respondent who was required to take such action and he failed, then the appropriate order would be to strike out the defence.
But the rationale of Lord Diplock's statement, even though it is confined to the High Court in England, is broad enough to encompass other courts. In the context of the administration of Family Law in Australia there would seem to be no reason why it would not apply to other courts exercising jurisdiction under the Family Law Act which in turn would include Magistrates' courts. Lord Diplock said:
"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the
78 In fact in Alien's Case there were applications made by the defendants to have the proceedings dismissed under the rules. The change in practice was to dismiss the action without the defendant previously obtaining from the Court a peremptory order requiring the plaintiff to take within a specified time the next step in the proceedings and showing that the plaintiff had not complied with the order.
79 [1981] A.C. 909 at 977
80 At 977
81 See Jurisdiction of Courts (Cross-Vesting) Act 1987 (W.A.) Sec. 4 and Jurisdiction of Courts )(Cross- Vesting) Act 1987 (Vic.) Sec. 4(4)
82 [1965] A.C. 939
83 At 959
remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some or other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiffs choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability or arriving at a just decision of the dispute.
Where does this now leave courts or officers of courts exercising jurisdiction in Family Law with regard to inherent jurisdiction or implied powers. From the above, perhaps the following tentative conclusions can be reached.
1. The Family Court of Australia and the Family Court of Western Australia both being courts of limited jurisdiction do not have inherent jurisdiction but implied powers. These powers extend to ordering a stay of proceedings (see Grassbv's Case).
2. The Family Court of Australia can supplement its implied powers by utilising the cross-vesting legislation to assume the inherent jurisdiction of the Supreme Court of its own State (see Gilbert's Case).
3. The Family Court of Western Australia does not have the vested cross-vested jurisdiction with the Supreme Court of Western Australia. It does, however, have the vested cross-vested jurisdiction of the Supreme Court of another State and in this way may be able to assume the inherent jurisdiction of such a Supreme Court.
4. Magistrates Courts being courts of limited jurisdiction would appear to have similar implied powers to those enjoyed by the Family Court (see Grassby's Case). However, there is no cross-vesting of jurisdiction with Magistrates Courts and accordingly they cannot, as can the two Family Courts, rely on this source of jurisdiction to exercise further inherent powers. That Magistrates have an inherent right to regulate proceedings in their courts was recognized by the Privy Council in O'Toole v. Scott an appeal from New South Wales. The point at issue was whether the Magistrate had the power to allow a police officer other than the one who laid the information, to conduct the prosecution. Their Lordships said:
"There is no statutory limitation of the discretion; the discretion is not conferred by statute, but is an element or consequence of the inherent right of a judge or magistrate to regulate the proceedings in his court. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there is a strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice."
5. Judicial Registrars and Registrars. These officers exercise part of the jurisdiction, powers and functions of the Family Court of Australia by delegation. In particular, in some instances they exercise judicial power in that they hear and determine legal controversies. When doing so, it is reasonable to assume that they are acting judicially. Their decisions are final unless and until they have been altered on review or appeal. When acting in this capacity it is also reasonable to assume that they have the limited implied powers of a court of limited jurisdiction, such as a Magistrates Court. Many of the implied powers of the Family Court are, however, specifically delegated to them. For example, the power to grant adjournments and to stay proceedings.
What is not delegated is the inherent power of delegation, nor would they acquire any inherent or implied power by virtue of cross-vesting, as the equation of Registrars and Judicial Registrars with the Court is only when they exercise delegated powers.
84 See O.36A
85 See Secs. 37(A)(3), 37(A)(7), 26(B)(3) and 26(B)(5)

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