Djl v Central Authority

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 13 April 2000
• Neutral Citation: [2000] HCA 17,1999-1118 HCA A
• Docket Number: S75/1999
• Date: 13 April 2000

[2000] HCA 17

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S75/1999

DJL

Appellant

and

The Central Authority

Respondent

Constitution, ss 71, 73.

Family Law Act 1975 (Cth), ss 93A, 95.

DJL v The Central Authority

Appeal — Family Court of Australia granted certificate under s 95(b) of Family Law Act 1975 (Cth) regarding ‘important questions of law and public interest’ — Whether Family Court has power to set aside its own perfected orders — Scope of inherent powers of common law courts — ‘Slip rule’ — Ambit of appellate jurisdiction determined by the terms of the statute granting right of appeal — Impermissibility of applying common law analogies to statutory courts.

Family Law — Family Court of Australia — Orders of Full Court — Orders perfected — Whether Full Court has inherent or implied power to set aside orders.

Practice — High Court — Appeal — Certificate by Family Court of Australia — Family Law Act 1975 (Cth) — Validity of requirement of — Specification of question certified.

Words and phrases — ‘inherent jurisdiction’, ‘inherent power’, ‘superior court of record’, ‘slip rule’.

1 Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. What follows are our reasons for joining in the order made at the conclusion of the hearing on 18 November 1999 dismissing the appeal.

Gleeson CJ

The history of the litigation

2 It is necessary first to outline the circumstances in which the matter came before this Court.

3 On 10 October 1996, the Full Court of the Family Court of Australia (‘the Family Court’) (Baker, Lindenmayer and Smithers JJ)1 ordered that an appeal from orders made by a judge of that Court (O'Ryan J) on 20 February 1996 be dismissed. The orders made by O'Ryan J had been made following the hearing of an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the 1986 Regulations’). The orders, the appeal from which was dismissed, were2:

‘1. That upon the Central Authority being satisfied that the father has given undertakings to the Superior Court, Gwinnett County, Georgia that he will pay to the Central Authority sufficient moneys to enable the mother and the child J, born on 9 November 1993 to travel by air from Sydney to Atlanta, Georgia or paid to the Central Authority sufficient moneys to pay the cost of such air travel then the Central Authority shall, as soon as reasonably practicable on or after 15 March 1996 cause the child to be returned to the United States in the company of the wife.

2. That liberty is reserved to the Director-General of the Department of Community Services to apply to a single judge of this Court for further directions for the implementation of order 1.’

Jurisdiction to entertain the appeal was conferred upon the Full Court by s 93A(1)(a) of theFamily Law Act 1975 (Cth) (‘the Family Law Act’).

4 On 7 August 1998, this Court refused an application for an extension of time within which to present an application for special leave to appeal against the order of the Full Court. The application had been filed on 9 April 1998. It was brought out of time because the applicant, the mother of the child J, had gone into hiding with the child for some 14 months following the dismissal of the Full Court appeal.

5 On the same day that the Full Court had delivered its decision, this Court delivered judgment inDe L v Director-General, NSW Department of Community Services (1996) 187 CLR 6403. As a result of the reasons for judgment of this Court in De L (1996) 187 CLR 640, the view thereafter was taken that O'Ryan J had erred in that he had applied the Family Law (Child Abduction Convention) Regulations (Amendment) 1995 (Cth) (‘the 1995 Regulations’) instead of the 1986 Regulations. The 1995 Regulations, which commenced on 26 October 1995, amended the 1986 Regulations, but the latter continued to apply, in the unamended form, to applications made before 26 October 19954. Whether or not his Honour erred in this respect5, the Full Court had determined the appeal on the erroneous basis that the 1995 Regulations applied6.

6 On 17 August 1998, the mother, the present appellant, made an application to the Full Court of the Family Court7. Orders were sought from the Full Court that it set aside its order of 10 October 1996 and in place thereof order that the order of O'Ryan J of 20 February 1996 be set aside and the matter be remitted for rehearing before a single judge. By amendment made during the hearing before the Full Court of this application, the relief sought was varied so as to include a declaration that the order of O'Ryan J was ‘spent’ and that the matter be remitted

for further hearing before a single judge8. The application was said to be made pursuant to s 21 of the Family Law Act in ‘the inherent jurisdiction of the Court’.

7 By majority (Finn, Kay and May JJ; Nicholson CJ, Moore J dissenting), the Full Court dismissed the application on 9 February 19999. It should be noted that the application proceeded on the footing, which is not challenged, that the order sought to be set aside, that of the Full Court dismissing the appeal, was a final order and had been perfected. No question arose in the Family Court and none arises here with respect to interlocutory orders made by the Full Court or the revision of its final orders after they have been pronounced but before they have been entered. It has been assumed, no doubt correctly, both in the Full Court and in this Court, that the Family Court has power to act in that way before the entry of its orders.

8 Of the majority, Kay J held that, as an intermediate appellate court in Australia, the Full Court could not re-open proceedings which had been completed and duly entered into its records10. Finn J, with whom May J agreed11, held that, assuming that the Full Court had power to re-open its previous orders for the alleged manifest error arising from the misapplication of the regulations, any such discretion should not be exercised in the circumstances of the present case12.

9 No application for special leave to appeal from the orders of the Full Court dismissing the application was made. However, a successful application was then made to the Full Court for the issue of a certificate purportedly pursuant to s 95(b) of the Family Law Act. Section 95 states:

‘Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:

• (a) by special leave of the High Court; or

• (b) upon a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved.’

Provision in substantially the same terms is made in s 104 of theChild Support (Assessment) Act 1989 (Cth) (‘the Child Support Act’). The Full Court ordered that the appellant:

‘be granted a certificate pursuant to section 95(b) of theFamily Law Act 1975 (Cth) that important questions of law and public interest are involved in the judgment of this Court dated 9 February 1999’.

A certificate in those terms was then issued by the Family Court.

10 Section 95 of the Family Law Act is an exercise by the Parliament of its power conferred by s 73 of the Constitution to regulate the exercise of the jurisdiction of this Court to hear and determine appeals from all judgments, decrees, orders and sentences of the courts mentioned in s 73, including any federal court13. The requirement in s 95(b) of a certificate of the Full Court of the Family Court is also to be read as conferring the necessary jurisdiction on the Family Court pursuant to s 77(i) of the Constitution to make an order for the grant of the certificate14. That the Full Court, in ordering that a certificate should be issued, was exercising the judicial power of the Commonwealth, with respect to a matter arising under a law made by the Parliament, was not called into question before this Court. Further, in our view, the Full Court was not exercising one of those administrative functions, such as the regulation of rules of procedure, which may properly be an incident of the exercise of the judicial power of the Commonwealth15.

11 The decision that a certificate be granted was implemented by a formal order of the Full Court. Before this Court, the appellant conceded in oral argument that that order itself would attract the operation of s 73 of the Constitution. Thus, if special leave were granted, the order might be set aside on appeal by this Court. The respondent challenged the scope and effectiveness of the certificate as part of its argument on the appeal, but it did not institute any cross-appeal seeking to set aside the order for the grant of the certificate.

The construction of s 95 of the Family Law Act

12 However, the circumstance that such an avenue was open throws light upon the construction of s 95. The construction of s 95 is to be approached keeping in mind the observations made by six members of the Court in the joint judgment of Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ inWillocks v Anderson (1971) 124 CLR 29316. That decision was delivered before the enactment of the Family Law Act. Their Honours said17:

‘Under the Constitution this Court is entrusted with the most important of judicial functions. To confer additional original jurisdiction upon it may well impair its ability to discharge its major functions with despatch. The question whether in any particular circumstances, original jurisdiction should be conferred on this Court is of such great significance as to warrant the careful attention of the Parliament. Even if the power to do so may be validly delegated to the Governor-General it is not a matter to be left to the initiative of the Executive except after that attention has been given to the question by the...