FEDERAL COURT OF AUSTRALIA

COURTS AND JUDICIAL SYSTEM – Federal Court of Australia – Mandamus – jurisdiction of Federal Court to issue to a Judge of the Supreme Court of the Australian Capital Territory - s 39B of the Judiciary Act 1903 (Cth)

COURTS AND JUDICIAL SYSTEM – Federal Court of Australia – Supreme Court of the Australian Capital Territory - whether the Chief Justice and Justices of the Supreme Court of the Australian Capital Territory are “officers of the Commonwealth” – whether the Registrar and the Sheriff of the Supreme Court of the Australian Capital Territory are “officers of the Commonwealth” – whether matter arose under a law of the Parliament

Matrimonial Causes Act 1959 (Cth), s 86

Family Law Act 1976 (Cth), s 40(3)

Judiciary Act 1903 (Cth), s 39B(1), s 39B(1A)(c)

Australian Capital Territory Supreme Court Act 1933 (Cth), s 3, s 4, s 20(1), s 46, s 47, s 50

Australian Capital Territory (Self-Government) Act 1988 (Cth), s 7, s 22, s 34, s 48D

ACT Supreme Court (Transfer) Act 1992 (Cth)

Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 (Applied)

Kruger v The Commonwealth (1997) 190 CLR 1 (Referred to)

Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 (Referred to)

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 (Referred to)

R v Anderson;  Ex parte Bateman (1978) 21 ALR 56 (Referred to)

Trimbole v Dugan (1984) 3 FCR 324 (Referred to)

Re McJannet;  Ex parte Australian Workers’ Union of Employees, Queensland [No 2] (1997) 189 CLR 654 (Applied)

MERRILEE MARGARET SLATER (Applicant) v THE HONOURABLE JEFFREY ALLAN MILES (Respondent)

AG 16 of 1998

MERRILEE MARGARET SLATER (Applicant) v REGISTRAR ALLAN JEFFREY TOWILL (First Respondent) SHERIFF JILL CIRCOSTA (Second Respondent)

AG 24 of 1998

FINN J

CANBERRA

16 OCTOBER 1998

THE COURT ORDERS THAT:

            1.         The Attorney-General for the Australian Capital Territory be added as a respondent in AG 16 of 1998 and AG 24 of 1998.

            2.         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”.

            3.         The applications in AG 16 of 1998 and AG 24 of 1998 be dismissed.

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

REASONS FOR JUDGMENT

The applicant, Mrs Slater, is a well-known litigant both in the Supreme Court of the Australian Capital Territory and, increasingly, in this court.  The various proceedings, appeals and interlocutory motions she has brought relate in differing ways to a matrimonial cause (MC 600 of 1975) instituted in the Supreme Court in 1975 under the then operative Matrimonial Causes Act 1959 (Cth).

That 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, 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 matter 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.  It was that direction that gave rise to the two applications with which I am presently concerned.

Before turning to them there is one other matter of chronology that requires mention.  Mrs Slater later appealed against Miles CJ’s order of 28 October 1994 and, importantly for present purposes, sought leave to appeal against the Chief Justice’s order of 7 February 1997.  The Full Court of this 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.

I would note in passing that O’Loughlin J observed in the Full Court:

“ … Mrs Slater just cannot accept that her rights to a property settlement have been concluded.

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.”

Mrs Slater then sought and was refused special leave to appeal to the High Court, Brennan CJ then observing:

“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.”

The present applications are yet another illustration – and a vexatious one at that – of Mrs Slater’s refusal to accept decisions that are binding on her.  Yet again she seeks to impugn Miles CJ’s order of 7 February 1997, this time in proceedings under s 39B of the Judiciary Act 1903 (Cth).

The Applications

In AG 16 of 1998 Mrs Slater seeks an order of mandamus against Chief Justice Miles requiring, in substance, that he determine the matters referred to in the notice of motion she sought to file on 16 January 1997.

In AG 24 of 1998 Mrs Slater seeks mandamus against the Registrar and Sheriff of the Supreme Court directing them to accept documents to be placed before a judge in chambers as required by Miles CJ’s orders of 28 October 1994.

Submitting appearances, appropriately, were made by the respondents in both of the above proceedings.  There being no controverter of Mrs Slater’s applications the Attorney-General for the ACT was invited to and did intervene in the two proceedings.  Given the course he was to take, I ordered he be joined as a respondent in each application.

The Attorney by amended notices of motions applied for orders (inter alia):

“2.       That the following questions be decided separately and before any trial in the proceedings:

            (1)        Does the Court have jurisdiction to entertain the proceedings?

            (2)        If “yes” to (1) does the Court have power to make the order sought?”

My present concern is with the jurisdictional question so raised.  In dealing with it in each application I have ordered that the two matters be heard together and that, insofar as relevant, the evidence in one will be taken as evidence in the other.

I should preface what I have to say on the jurisdictional question with the following observation.  Mr Gageler for the Attorney-General properly raised with me the question whether the Attorney’s motions were strictly necessary given the order of the Full Court of 27 June 1997.  In relation to AG 16 of 1998 it unquestionably is the case that Mrs Slater is inviting me to ignore a Full Court decision that is binding both on her and on me.  That would be sufficient to dispose of that matter and, consequently, of the other proceeding as well.  However, given the background to both applications it seemed to me appropriate to deal with the notices of motion in any event.

The Jurisdictional Question

Mrs Slater’s applications are made under s 39B(1) and s 39B(1A)(c) of the Judiciary Act 1903.  These provide:

“39B   (1)        The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

            (1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

…

            (c)        arising under any laws made by the Parliament.”

It is clear that in the respective capacities in which the respondents were acting in these proceedings, they were not officers of the Commonwealth.  Neither were the duties they were alleged not to have performed ones arising under laws made by the Commonwealth Parliament.

The ACT Statutory Setting

The Supreme Court was established by the Australian Capital Territory Supreme Court Act 1933 (Cth) (“the Supreme Court Act”).  After 1 July 1992 that Act is to be taken to be an enactment of the Legislative Assembly of the ACT by virtue of s 34(2) and (3) of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (“the Self-Government Act”).  The ACT Supreme Court (Transfer) Act 1992 (Cth) provided for the transfer of responsibility for the Supreme Court from the Commonwealth to the Territory.

The Supreme Court Act establishes the Supreme Court as a superior court of record: s 3.  It consists of the Chief Justice and other judges who are appointed by the Executive:  ss 3, 4.  The Self-Government Act likewise provides for the procedures to be followed in removing a judge from office:  s 48D.

The jurisdiction of the Court encompasses –

“(a)     all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b)       jurisdiction conferred by a Commonwealth Act or a law of the Territory.”:  Supreme Court Act, s 20(1).

Prior to the Self-Government Act it had been held that the then Supreme Court was not a federal court or a court exercising federal jurisdiction:  Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591.  Despite the criticisms made of that view in Kruger v The Commonwealth (1997) 190 CLR 1 at 108-109 and 170ff, it represents both the law I am to apply and the foundation of the Self-Government Act as it applies to the Supreme Court.

The Supreme Court Act, additionally, creates the offices of Registrar and Sheriff, appointments to which are by the Attorney-General:  s 46.  And it prescribes the functions of each office:  ss 47, 50.

Turning now to the Self-Government Act, it established the ACT as a body politic separate from the Commonwealth:  s 7;  and conferred law-making power for the Territory on the Legislative Assembly:  s 22.  As already noted, by virtue of s 34 of the Self-Government Act, the Supreme Court Act, though originally a Commonwealth statute, is now to be taken as an enactment of, and hence as a law of, the Legislative Assembly.  I should emphasise that the Legislative Assembly in the exercise of its law-making power does not act in any sense as an agent or delegate of the Commonwealth Parliament:  Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 281-282.

Section 39B

In the scheme created by the self-government legislation it is not open to argument in this court that the Chief Justice and Justices of the Supreme Court are, as such, “officers of the Commonwealth”.  They hold only Territory appointments under what now must be regarded as Territory legislation and it is in virtue of those appointments that they constitute the Supreme Court.  For present purposes it is coincidental that some, but not all, members of the Court hold Federal Court commissions as well.  Insofar as the present matter is concerned, Chief Justice Miles was exercising an office now to be regarded as created by Territory law and he was exercising jurisdiction under a Territory statute, ie the Supreme Court Act, in making his order of 7 February 1997. 

It is likewise with the Registrar and the Sheriff.  They are officers of the Territory exercising functions conferred by legislation of the Territory, ie the Supreme Court Act.

Mrs Slater entertains the view, apparently in relation to all of the respondents, that, as her motions relate to the Matrimonial Causes Act 1959 (ie a Commonwealth statute), this has the effect both of making them officers of the Commonwealth and of transforming the duties she seeks to enforce in these applications into ones arising under (ie owing their existence to) a law of the Commonwealth:  cf LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.

It is of course the provenance of the office held and not of particular powers the office holder may in fact be empowered to exercise that determines whether that officer is or is not an officer of the Commonwealth:  R v Anderson;  Ex parte Bateman (1978) 21 ALR 56;  Trimbole v Dugan (1984) 3 FCR 324.  Likewise, if the right or duty in question in a matter does not owe its existence to Federal law or depend upon Federal law for its enforcement,  the matter itself does not arise under a Federal law:  Re McJannet;  Ex parte Australian Workers’ Union of Employees, Queensland [No 2] (1997) 189 CLR 654 at 657;  notwithstanding that if that right or duty is enforced it would allow consideration to be given in turn in another court to a right etc that does owe its existence to a Federal law.  The present matter concerns the enforcement of the respective duties of a judge and of court officers arising in virtue of the Supreme Court Act.  That “Territory matter” is not transformed into one arising under a law of the Federal Parliament merely because the subject of the motion Mrs Slater wishes to have determined in the Supreme Court relates to alleged rights etc under such a law.

Accordingly I do not have jurisdiction in any event to entertain Mrs Slater’s applications.  I will, then, answer the preliminary question “No”.  In consequence I will dismiss both applications.

It is necessary, but regrettable, to have to observe that both applications are oppressive and vexatious.  Whatever may be Mrs Slater’s sense of grievance in relation to her matrimonial cause, it provides no justification for the abuse of the processes of this court that these applications represent.

Finally, I would wish to express my appreciation to the Attorney-General for the assistance provided the court in this proceeding.

Associate:

Dated:              16 October 1998