09AUTH8d Amended 091222

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By GERRIT HENDRIK SCHOREL-HLAVKA of MAY JUSTICE ALWAYS PREVAIL®
Case Notes - Aust - HARRY BRANDY v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
AND ORS.doc (60KB)
This case is worth reading in the light of this new decision from the High Court. we belive that this applies to the
Land & Environment Court as well, in one case a "judge" described himself as a "coram" -
Law Encyclopedia: Coram
[Latin, Before; in the presence of.]
The term coram is used in phrases that refer to the appearance of a person before another
individual or a group. Coram non judice, "in the presence of a person not a judge," is a
phrase that describes a proceeding brought before a court that lacks the jurisdiction to hear
such a matter. Any judgment rendered by the court in such a case is void.
.
The legal doctrine of “ex turpi causa non oritur action” denies any remedy to a litigant (including a
prosecutor) who does not come to court with clean hands.
If your own action is very unlawful and very unethical, if you come to court with “Dirty Hands” best not
to question others legality, morality, and ethics!
Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003

QUOTE
Modern principle of litigation demands that substantive justice should be dispensed readily
without undue regard to technicalities. What matters is that the pleading must be clear enough
on the remedy the court should award. In the instant case I do not consider citing the wrong law as
compelling enough to dismiss the application. It was an innocent oversight which did not occasion
any mischief on the respondent. It was not fatal to the application as it was subject to amendment
without prejudice to the respondent.
END QUOTE
.
QUOTE
Constitution needles to mention is a supreme law of the land.
END QUOTE
.
QUOTE
The purpose of a review is to correct a glaring absurdity in light of discovery of new facts
and circumstances. It is in light of the above that even courts of law also review their
judgments and orders.
END QUOTE
.
Please note; The Author has sought to provide this LIST OF AUTHORITY to assist those who desire some information,
however, one ought to consult all authorities referred to as to check if the judgment is in fact relevant to once own case.
The Author takes no responsibility in regard of any person using any material of this LIST OF AUTHORITY. Please, do
check with the relevant Authorities quoted if the details are correct.
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The book "Law Made Simple" by Colin F. Padfield, LL.B.,D.P.A.(Lond.) on page 55:
QUOTE
"The Rule against Bias. A true judicial decision can be reached only if the judge himself is
impartial. This is an obvious requirement in a court of law or a tribunal. In R. v Rand (1866) it was
held that a judge is disqualified where (i) he has a direct pecuniary interest, however small, in the
subject-matter in dispute; or (ii) there is real likelihood that the judge would have a bias in favour
of one of the parties.
For example, if a judge is related to, or is a friend of, one of the parties to a dispute there would be
real likelihood of bias. It is immaterial whether a judicial decision was in fact biased, for as was
said by Lord Chief Justice Heward in R. v Sussex Justices, ex parte McCarthy (1924): 'Justice
should not only be done, but should manifestly and undoubtedly be seen to be done.'
As an example of pecuniary bias we may quote:
Dimes v. Grand Junction Canal (1852). Lord Chancellor Cottenham made decrees in a
Chancery suit in favour of a canal company. Lord Cottenham held several shares in the company.
Held: (by the House of Lords): that the decrees be set aside on the ground of pecurniary interest.
No bias was proved in fact, nor could it be shown that Lord Cottenham was in any way influenced
by his shareholding.
As an example of likelihood of bias we may quote:
R. v Sussex Justices, ex parte McCarthy (1924). A was summoned before magistrates for a
motoring offence. The acting clerk to the justices was a member of a firm of solicitors representing
A in civil proceedings arising out of the same accident. The acting clerk did not advise the
magistrates, but he retired with them to consider their decision. Held: that as the acting clerk was
connected with the case in the civil action he ought not to advise the magistrates in the criminal
prosecution. Conviction accordingly quashed, despite the fact that the acting clerk took no part in
the decision to convict and had not been asked by the justices to give his opinion or advice. "
END QUOTE
.
Again:
QUOTE
The Commonwealth of Australia Constitution Act as such must be read in accordance to the legal
provisions of the Section 17 of the Act Interpretations Act 1901, which under the heading “17
Constitutional and official definitions” refers to “Proclamation shall mean Proclamation by
the Governor-General published in the Gazette;”
END QUOTE
.
Director of Public Prosecutions v Serratore Nos. Ca 40642/95 and Crd 72680/95
Criminal Law and Procedure - Statutes - Human Rights - Telecommunications - Law
Reform [1995] NSWSC 154 (14 November 1995)
QUOTE
It is well established that the Court should not impute to the legislature an intention to
interfere with fundamental rights, freedoms or immunities; such an intention must be clearly
manifested by clear and unmistakable language: Coco v The Queen [1994] HCA 15; (1994)
179 CLR 427 at 436-437. ... The close link between the fundamental right to be secure against
trespass and the right to privacy is illustrated by the observations by Lord Scarman in Morris v
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Beardmore (1981) AC 446 ... Parliament itself has ... recognised, in the context of
telecommunications, the fundamental importance of protecting individual privacy, although also
recognising that the value of privacy can be over-ridden where it conflicts with other significant
community values, provided that detailed safeguards are observed. The recognition and protection
of privacy in the Intercept Act, in my view, justifies a restrictive approach to the construction of
the statutory exceptions to the prohibitions on interception. ... where there is a genuine doubt as to
whether the statutory language authorises the use of intercept information for a particular purpose,
that doubt should be resolved in favour of a narrow, rather than a broad construction of the
statutory authorisation.
END QUOTE
SCHOREL v. SCHOREL (1982) C 66117 of 1982 Unreported Transcript 11-3-82 and 12-3-82 before
Emery SJ.
(In regard of the former husband’s statements from the bar table earlier during the proceedings about
matters on the lists)
QUOTE Page 115: (Emery SJ examine-in-chief Mr Schorel in the witness box)
You made or gave me some information while you were standing at the bar table just a
little while ago about the two lists of furniture that your wife produced this morning,
exhibits A and B. What you said from the bar table is true, is that right?- - - That is correct,
your Honour.
Yes. Well, that makes it all evidence that you have given instead of just a statement.
END QUOTE
.
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann; Spi
[1999] HCA 27 (17 June 1999)
QUOTE
For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can
prevail against the Constitution. Mr Gould is entitled to disregard the orders made in Gould v
Brown. No doubt, as Latham CJ said of invalid legislation, "he will feel safer if he has a
decision of a court in his favour". That is because those relying on the earlier decision may
seek to enforce it against Mr Gould.
END QUOTE
.
DPP v Field [2001] VSC 472 (29 November 2001)
QUOTE
24. Section 35 of the Interpretation of Legislation Act 1984 provides that in the interpretation of the
provision of an Act consideration may be given to any matter or document that is relevant,
including reports of proceedings in any House of the Parliament. The section further provides
that a construction that would promote the purpose or object underlying an Act is to be preferred to a
construction that would not promote that purpose or object. Those provisions are well known.
QUOTE
.
.
The following applies as much to Federal laws of the Commonwealth of
Australia as it does to federal laws in the USA;
http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/A
uthOnJurisdiction.htm
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QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every
transaction and all contracts. Indeed, the principle is often
stated, in broad and sweeping language, that fraud destroys the
validity of everything into which it enters, and that it vitiates
the most solemn contracts, documents, and even judgments."
END QUOTE
And
QUOTE
The general misconception is that any statute passed by legislators bearing the appearance of law
constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any
statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law
violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though
having the form and name of law, is in reality no law, but is
wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and
not merely from the date of the decision so branding it. An
unconstitutional law, in legal contemplation, is as
inoperative as if it had never been passed. Such a statute
leaves the question that it purports to settle just as it
would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles
follow that it imposes no duties, confers no rights, creates
no office, bestows no power or authority on anyone, affords no
protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An
unconstitutional law cannot operate to supersede any existing
valid law. Indeed, insofar as a statute runs counter to the
fundamental law of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are
bound to enforce it.
END QUOTE
Sixteenth American Jurisprudence
Second Edition, 1998 version, Section 203 (formerly Section 256)
.
QUOTE CHH 92-217 page 78485 (1991)
The Court could not make an order which otherwise fell outside its jurisdiction merely because
the parties consent to it..
END QUOTE
.
QUOTE Scuderi v Morris [2001] VSCA 190 (29 October 2001
In order to resolve this appeal and to determine the relevant principles, we have had to look at a
considerable number of additional reported decisions as well as a variety of text books, many
of which we have had to find for ourselves with the invaluable assistance of the researchers
engaged by the Court.
END QUOTE
.
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Hansard 2-4-1897 Constitution Convention Debates
QUOTE Mr. HIGGINS:
I think it is advisable that private people should not be put to the expense of having
important questions of constitutional law decided out of their own pockets.
END QUOTE
.
QUOTE Main v. Thiboutot, 100 S. Ct. 2502 (1980).
The law provides that once State and Federal jurisdiction has been challenged, it must be
proven.
END QUOTE
QUOTE Hagens v. Lavine, 415 U.S. 533,

Once jurisdiction is challenged, it must be proven
END QUOTE
QUOTE Standard v. Olsen, 74 S. Ct. 768,

No sanctions can be imposed absent proof of jurisdiction.
END QUOTE
QUOTE Basso v. Utah Power & Light Co., 495 2nd 906 at 910,
Jurisdiction can be challenged at any time, even on final determination.
END QUOTE
.
QUOTE Thompson v. Tolmie, 2 Pet. 157, 7 L.Ed. 381; Griffith v. Frazier, 8 Cr. 9, 3L. Ed. 471.
Where there is absence of jurisdiction, all administrative and judicial proceedings
are a nullity and confer no right, offer no protection, and afford no justification,
and may be rejected upon direct collateral attack.
END QUOTE
.
Act Interpretation Act 1901; (Cth)
15A Construction of Acts to be subject to Constitution
QUOTE
Every Act shall be read and construed subject to the Constitution, and so as not to exceed the
legislative power of the Commonwealth, to the intent that where any enactment thereof would, but
for this section, have been construed as being in excess of that power, it shall nevertheless be a
valid enactment to the extent to which it is not in excess of that power.
END QUOTE
.
The High Court of Australia held that where a party pleads the non-application of a State Act because
of Commonwealth legislation then the State Court is exercising Federal jurisdiction. (However only if
the State Court can invoke jurisdiction, which VCAT cannot and neither is a court!) Troy v
Wrigglesworth (1919) 26 C.L.R. 305; 25 (1926) 38 C.L.R. 441; 33 A.L.R. 66.
.
Held by the High Court of Australia that the expression “Court or judge of a State” does not include a
Judge sitting in Chambers exercising the jurisdiction of the Supreme Court. Wilcox v Donohoe, (1905)
3 C.L.R. 83; 12 A.L.R. 54.
.
Held by the High Court of Australia that the federal jurisdiction which is conferred on a State Court by
the section is subject to any limitations imposed by the laws of the State upon its state jurisdiction,
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unless otherwise expressly declared. Federated Saw-mill Timberyard and General Woodworkers
Employees Association v Alexander, (1912) 15 C.L.R. 308; 19 A.L.R. 22.
.
Held by the Full Court of the Supreme Court of Queensland that the police magistrate exercising Federal
jurisdiction is not an officer of a Federal Court within the meaning of this paragraph (Section 39 of
the Judicial Act 1903) R. v. Archdall and Others; Ex parte Taylor, 1919 St. R. Qld 207; 13 Q.J.P.R. 22
C.L.R. 437 in which the High Court (Isaacs, Higgins, Gavan Duffy and Ricch JJ ; Griffith CJ and Barton
J dissenting) held that a Judge of an inferior Court of a State invested with and purporting to exercise
Federal jurisdiction is not an officer of the Commonwealth within the meaning of s. 75 (v) of the
Constitution.
.
Held by the High Court of Australia that a State Court, the appellated jurisdiction of which is limited by
a State Act, has no federal appellated jurisdiction beyond those limits. R. v. Whitfield and Others’
Ex parte Quon Tat, (1013) 15 C. L.R. 689; 19 A.L.R. 97
.
Held by the High Court of Australia that under this section the Courts of the several States have federal
appellated jurisdiction, as regard the matters enumerated in ss75 and 76 of the Constitution, to the same
extent that, and subject to the same conditions as, under the State laws they have appellated jurisdiction
in matters to which State laws apply. Ah Yick v Lehmert, (1905) 2 C.L.R. 593; 11 A.L.R. 306
.
Held by the High Court of Australia (Williams J.) that under this section 40 of the Judiciary Act 1903
the Attorney-General for the Commonwealth or a State may apply for the removal into the High Court
of a cause or part of a cause whether or not he is a party to the proceedings in which the cause arises,
and if the cause really and substantially arises under the Constitution or involves its interpretation, the
court MUST grant the removal as of right notwithstanding that the matter is apparently concluded by
authority. Any distinct and divisible question may be “part” of such a cause within the meaning of this
section. In re an Application by the Public Service Association of N.S.W. , (1947) 75 C.L.R. 430
.
Per Evatt J. ; Each question as to the limits inter se is involved where State Legislature is
challenged on the grounds that it contravenes s. 90 of the Constitution. Hopper v Egg and Egg
Pulp Marketing Board (Vic), (1939) 61 C.L.R. 665, at p 681; A.L.R. 249, at p 255
.
Per Evatt J.; Each question of the validity of the Commonwealth legislation in s51 of the
Constitution (and a fortiori in s. 52) necessarily raised a question as to the limits of
Commonwealth and State powers. Ibid at p. 682 C.L.R. and p 255 A.L.R.
.
Held that a State Court exercising federal jurisdiction when it erroneously applies Commonwealth
Act to subject matter before the Court. Commonwealth v Cole, (1923) 32 C.L.R. 602 and
Commonwealth v Dalton, (1924) 33 C.L.R.. 452; 30 A.L.R. 85
.
Judiciary Act 1903 (Cth)
39 Federal jurisdiction of State Courts in other matters
QUOTE
(1) The jurisdiction of the High Court, so far as it is not exclusive of the jurisdiction of any
Court of a State by virtue of section 38, shall be exclusive of the jurisdiction of the several
Courts of the States, except as provided in this section.
(2) The several Courts of the States shall within the limits of their several jurisdictions, whether
such limits are as to locality, subject-matter, or otherwise, be invested with federal
jurisdiction, in all matters in which the High Court has original jurisdiction or in which
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original jurisdiction can be conferred upon it, except as provided in section 38, and subject to
the following conditions and restrictions:
(a) A decision of a Court of a State, whether in original or in appellate jurisdiction, shall
not be subject to appeal to Her Majesty in Council, whether by special leave or
otherwise.
Special leave to appeal from decisions of State Courts though State law prohibits appeal
(c) The High Court may grant special leave to appeal to the High Court from any decision
of any Court or Judge of a State notwithstanding that the law of the State may prohibit
any appeal from such Court or Judge.
Exercise of federal jurisdiction by State Courts of summary jurisdiction

(d) The federal jurisdiction of a Court of summary jurisdiction of a State
shall not be judicially exercised except by a Stipendiary or Police or
Special Magistrate, or some Magistrate of the State who is specially
authorized by the Governor-General to exercise such jurisdiction, or
an arbitrator on whom the jurisdiction, or part of the jurisdiction, of
that Court is conferred by a prescribed law of the State, within the
limits of the jurisdiction so conferred.
END QUOTE
.
39A Federal jurisdiction invested in State Courts by other provisions
QUOTE
(1) The federal jurisdiction with which a Court of a State is invested by or under any Act,
whether the investing occurred or occurs before or after the commencement of this section,
including federal jurisdiction invested by a provision of this Act other than the last preceding
section:
(a) shall be taken to be invested subject to the provisions of paragraph (a) of subsection (2)
of the last preceding section; and
(b) shall be taken to be invested subject to the provisions of paragraphs (c) and (d) of that
subsection (whether or not it is expressed to be invested subject to both or either of
those provisions), so far as they are capable of application and are not inconsistent with
a provision made by or under the Act by or under which the jurisdiction is invested;
in addition to any other conditions or restrictions subject to which the jurisdiction is
expressed to be invested.
(2) Nothing in this section or the last preceding section, or in any Act passed before the
commencement of this section, shall be taken to prejudice the application of any of sections
72 to 77 (inclusive) in relation to jurisdiction in respect of indictable offences.
END QUOTE
.
From the above it already ought to be clear that a State Court, subject to certain provisions, can
exercise Federal jurisdiction.
While the authorities below are USA Authorities, the legal concepts nevertheless are of a general nature
that can be applied within the Commonwealth of Australia.
.
QUOTE
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• JURISDICTION the power to hear and determine a case. 147 P.2d 759, 761. This power may
be established and described with reference to particular subjects or to parties who fall into a
particular category. In addition to the power to adjudicate, a valid exercise of jurisdiction requires
fair notice and an opportunity for the affected parties to be heard. Without jurisdiction, a court's
judgment is void. A court must have both SUBJECT MATTER JURISDICTION and
PERSONAL JURISDICTION (see below). See also territorial jurisdiction; title jurisdiction."
END QUOTE
.
QUOTE
SUBJECT MATTER JURISDICTION refers to the competency of the court to hear and
determine a particular category of cases. Federal district courts have "limited" jurisdiction
in that they have only such jurisdiction as is explicitly conferred by federal statutes. 28
U.S.C. §1330 [EDITOR'S NOTE: see also 40 U.S.C.S. §255] et seq. See LIMITED
[SPECIAL] JURISDICTION. Many state trial courts have "general" jurisdiction to hear
almost all matters. The parties to a lawsuit may not waive a requirement of subject matter
jurisdiction.
END QUOTE
.
QUOTE
TERRITORIAL JURISDICTION the territory over which a government or a subdivision
thereof has jurisdiction, 147 P.2d 858, 861; relates to a tribunal's power with regard to the
territory within which it is to be exercised, and connotes power over property and persons
within such territory. 94 N.E. 2d 438, 440.
END QUOTE
.
QUOTE
TERRITORIAL COURT a court established by Congress under Art. IV, Sec. 3, Cl. 2 of the
Constitution, which gives Congress the power to make "all needful rules and regulations
respecting the territory or other property belonging to the United States." 370 U.S. 530, 543;
371 F.2d 79, 81. Above definitions from: Barron's Law Dictionary, Fourth Edition.
END QUOTE
.
Commonwealth v Brisbane Milling Co. Ltd. (1916) 21 C.L.R. 559; A.L.R. 272.
QUOTE Barton J,
the parliament cannot give the word a meaning not warranted by s73 of the Constitution.
END QUOTE
The State Court is acting under normal legal procedures applicable to State Court rules and the
Commonwealth of Australia has no constitutional powers to interfere with this. It can only provide
legislation regarding certain matters provided they do not seek to interfere with the State Courts legal
procedures.
.
QUOTE Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995)
Jurisdictional error
10. In considering what constitutes "jurisdictional error", it is necessary to distinguish between, on
the one hand, the inferior courts which are amenable to certiorari and, on the other, those other
tribunals exercising governmental powers which are also amenable to the writ. Putting to one side
some anomalous exceptions, the inferior courts of this country are constituted by persons with
either formal legal qualifications or practical legal training. They exercise jurisdiction as part of a
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hierarchical legal system entrusted with the administration of justice under the Commonwealth and
State constitutions. In contrast, the tribunals other than courts which are amenable to certiorari are
commonly constituted, wholly or partly, by persons without formal legal qualifications or legal
training. While normally subject to administrative review procedures and prima facie bound to
observe the requirements of procedural fairness, they are not part of the ordinary hierarchical
judicial structure. In what follows, the anomalous courts or tribunals which fall outside the above
broad descriptions can be ignored. Since the District Court of South Australia is undoubtedly a
court, the primary focus of discussion will be upon what constitutes jurisdictional error on the part
of an inferior court.
11. An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of
jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a
case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect
either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or
order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes
an order or decision (including an order or decision to the effect that it lacks, or refuses to
exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a
misconception or disregard of the nature or limits of jurisdiction.
END QUOTE
And
QUOTE
22. Judge Russell's conclusion that the appellant "could not receive a fair trial unless he is properly
represented by counsel" and his order staying the proceedings were based on a number of
particular preliminary findings of fact. Those findings were directed to the matters identified in the
above extract from the judgment of Mason CJ and McHugh J in Dietrich. They included the
following: that the appellant was charged with "major indictable offences"; that the appellant was
"an indigent accused" who had "been refused legal aid" and had "no means, or no sufficient means,
to fund the cost of (proper) representation"; that it could not be said that the appellant's lack of
legal representation resulted from any "fault" on his part; that there were no "exceptional
circumstances which would prevent" the making of a stay order; that the appellant had no legal
training and suffered from an impediment of speech. Clearly, if those findings are accepted, the
present case was one in which the decision of this Court in Dietrich required that the
proceedings should be adjourned, postponed or stayed. Indeed, the extract from the transcript
which has been set out earlier in this judgment indicates that counsel for the Crown effectively
conceded that that was so. The Crown's attack on his Honour's order staying the proceedings has,
at all stages, been directed at one of those findings, namely, the finding that the appellant's
inability to obtain legal representation had not been brought about through his own fault. The basis
of the Full Court's decision that an order in the nature of certiorari should be made was a
conclusion of the majority judges that that finding was vitiated by error amounting to jurisdictional
error.
END QUOTE
.
Sinanovic v R (No 1) [2001] HCA 35; (2001) 179 ALR 520; (2001) 122 A Crim R 524 (8 June 2001)
QUOTE
5. Despite the foregoing, bail has sometimes been granted prior to the provision of special leave.
Thus Dawson J granted bail in Peters before special leave had been granted[8]. Bail might, for
example, be granted peremptorily following an important ruling by this Court which has clear
application to other cases where special leave has been sought and awaits a hearing. This is what
occurred following Cheatle v The Queen[9] when this Court held that State laws providing
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for majority verdicts could not validly apply to the trial on indictment of an offence against
federal law, by reason of s 80 of the Constitution. The cases affected were clear. The principle
was clear. And the consequences for pending cases secured prompt intervention, usually with the
consent of the prosecution and a grant of bail.
END QUOTE
.
Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
QUOTE
“The basic of the right to fair comment is the Right of Freedom of speech and the inalienable
right of everyone to comment fairly upon matters of public importance.”
END QUOTE
.
In FELTON v. MULLIGAN [1971] HCA 39; (1971) 124 CLR 367 (2 September 1971) the High Court
said: Menzies J: As the Court said in Lorenzo v. Carey (1921) 29 CLR 243, at p 252 : (at p383)
QUOTE
A State Court must recognize the laws of the Commonwealth and be guided by them in exercising
its State jurisdiction
END QUOTE
.
In LEWIS v. JUDGE OGDEN [1984] HCA 28; (1984) 153 CLR 682 (15 May 1984 High Court of
Australia Mason(1), Murphy(1), Wilson(1), Brennan(1) and Dawson(1) JJ.
QUOTE
At common law words or conduct in the face of the court or in the course of proceedings, in order
to constitute contempt, "must be such as would interfere, or tend to interfere, with the course of
justice" (Parashuram Detaram Shamdasani v. King-Emperor (1945) AC 264, at p 268 ). Instead of
making interference, or tendency to interfere, with the course of justice an element in the offences
which it created, subs. (1) introduces the new element of conduct which is wilful in pars. (a) and
(c). In these two paragraphs the word "wilfully" means "intentionally", or "deliberately", in the
sense that what is said or done is intended as an insult, threat, etc. Its presence does more than
negative the notion of "inadvertently" or "unconsciously" (Bell v. Stewart (1920) 28 CLR 419, at p
427 ). The mere voluntary utterance of words is not enough. "Wilfully" imports the notion of
purpose. (at p688)
END QUOTE
.
S 199 Contempt District Court Act 1973:
QUOTE
(1) In this section, "contemnor" means a person guilty or alleged to be guilty of contempt of court
committed in the face of the Court or in the hearing of the Court.
(2) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt
of court committed in the face of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that the contemnor be brought before the Court, or
(b) issue a warrant for the arrest of the contemnor.
(3) Where the contemnor is brought before the Court, the Court shall:
(a) cause the contemnor to be informed orally of the contempt with which he or she is charged,
(b) require the contemnor to make his or her defence to the charge,
(c) after hearing the contemnor, determine the matter of the charge, and
(d) make an order for the punishment or discharge of the contemnor.
(4) The Court may, pending disposal of the charge:
5(a) direct that the contemnor be kept in such custody as the Court may determine, or
(b) direct that the contemnor be released,
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and such a direction is sufficient authority for the contemnor’s being kept in custody or released,
as the case may be.
(5) The Court may give a direction under subsection (4) (b) on terms, which may include a
requirement that the contemnor give security, in such sum as the Court directs, for his or her
appearance in person to answer the charge.
(6) A warrant for the arrest or detention under this section of a contemnor shall be addressed to the
Sheriff or a bailiff and may be issued under the hand of the Judge constituting the Court.
(7) The Court may punish contempt by a fine not exceeding 20 penalty units or by imprisonment
for a period not exceeding 28 days.
(8) The Court may make an order for punishment on terms, including a suspension of punishment
or a suspension of punishment in case the contemnor gives security in such manner and in such
sum as the Court may approve for good behaviour and performs the terms of the security.
END QUOTE
.
On the 5th September 2006, the High Court in Forge v Australian Securities and Investments
Commission [2006] HCA 44 5 September 2006 C7/2005 made a binding ruling that there is a “Kable
Principle” and the “Kable Principle” is that Courts must be restored to what they were
.
Keeping in mind the well-settled role that the citizen is exempt from taxation unless the same is imposed
by clear and unequivocal language, and that where the construction of a tax law is doubtful, the
doubt is to be resolved in favor of those upon whom the tax is sought to be laid... Spreckels Sugar
Refining Co. v. McClain, 192 U.S. 397,24 S.Ct. 376,418, U.S. 1904
Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169

QUOTE
When a court has jurisdiction, it has a right to decide every question that occurs in the cause; and
whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every
other court. But if it acts without authority, its judgments and orders are regarded as
nullities. They are not voidable, but simply void; and form no bar to a recovery sought in
opposition to them even prior to a reversal.'
END QUOTE
And
QUOTE
Where there is absence of jurisdiction, all administrative and judicial proceedings are a
nullity and confer no right, offer no protection, and afford no justification, and may be
rejected upon direct collateral attack.
END QUOTE
.
The following applies as much to Federal laws of the Commonwealth of Australia as it does to federal
laws in the USA; http://familyguardian.tax-
tactics.com/Subjects/LawAndGovt/ChallJurisdiction/AuthoritiesArticle/AuthOnJurisdiction.htm
Sixteenth American Jurisprudence, Second Edition, 1998 version, Section 203 (formerly Section 256)
QUOTE
37 Am Jur 2d at section 8 states, in part: "Fraud vitiates every transaction and all contracts. Indeed,
the principle is often stated, in broad and sweeping language, that fraud destroys the validity of
everything into which it enters, and that it vitiates the most solemn contracts, documents, and even
judgments."
END QUOTE
FORM
LIST of AUTHORITY
And
QUOTE
The general misconception is that any statute passed by legislators bearing the appearance of law
constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any
statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law
violating it to be valid; one must prevail. This is succinctly stated as follows:
The general rule is that an unconstitutional statute, though having the form and name of law,
is in reality no law, but is wholly void, and ineffective for any purpose; since
unconstitutionality dates from the time of its enactment, and not merely from the date of the
decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as
if it had never been passed. Such a statute leaves the question that it purports to settle just as
it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties,
confers no rights, creates no office, bestows no power or authority on anyone, affords no
protection, and justifies no acts performed under it. . .
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to
supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law
of the land, it is superseded thereby.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
END QUOTE
.
TAYLOR v. TAYLOR [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979) (Folder 1)
Similarly in Commissioner of Police v. Tanos (1958) 98 CLR 383, at p 395, Dixon C.J. and Webb J.
said that
QUOTE
it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his
person or property by any judicial or quasi-judicial proceeding he must be afforded an
adequate opportunity of being heard.
END QUOTE
Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942

QUOTE
Common expressions such as: 'The Courts have declared a statute invalid'," says Chief Justice
Latham, "sometimes lead to misunderstanding. A pretended law made in excess of power is not
and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally,
he will feel safer if he has a decision of a court in his favor, but such a decision is not an element,
which produces invalidity in any law. The law is not valid until a court pronounces against it - and
thereafter invalid. If it is beyond power it is invalid ab initio.
END QUOTE
(Residual Assco Group v Spalvins & Ors A5/2000 (11 May 2000) High Court of Australia Transcripts)
Scuderi v Morris [2001] VSCA 190 (29 October 2001

In order to resolve this appeal and to determine the relevant principles, we have had to look at a
considerable number of additional reported decisions as well as a variety of text books, many of
which we have had to find for ourselves with the invaluable assistance of the researchers engaged by the
Court.
QUOTE -John Jay, 1st Chief Justice United States Supreme Court, 1789
FORM
LIST of AUTHORITY
The jury has a right to judge both the law as well as the fact in controversy.
END QUOTE
.
QUOTE -Samuel Chase, U.S. Supreme Court Justice, 1796, Signer of the unanimous Declaration
The jury has the right to determine both the law and the facts.
END QUOTE
.
QUOTE -Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902
The jury has the power to bring a verdict in the teeth of both law and fact.
END QUOTE
.
QUOTE -Harlan F. Stone, 12th Chief Justice U.S. Supreme Court, 1941
The law itself is on trial quite as much as the cause which is to be decided.
END QUOTE
.
QUOTE -U.S.vs Dougherty, 473 F 2nd 113, 1139, (1972)
The pages of history shine on instance of the jury's exercise of its prerogative to disregard
instructions of the judge...
END QUOTE
.
QUOTE -(State of Georgia vs. Brailsford, et al, 3 Dall 1)
You have a right to take upon yourselves to judge of both, and to determine the law as well as the
fact in controversy.
END QUOTE
.
QUOTE -U.S.vs Dougherty, 473 F 2nd 1113, 1139, (1972)
The JURY has an unreviewable and unreversible power...to aquit in disregard of the instructions
on the law given by the trial judge...
END QUOTE
QUOTE -Thomas Jefferson

The opinion which gives to the judges the right to decide what laws are constitutional and what
not, not only for themselves in their own sphere of action, but for the legislative and executive also
in their spheres, would make the judiciary a despotic branch.
END QUOTE
.
Re:- HILTON v. WELLS [1985] HCA 16; (1985) 157 CLR 57 (14 March 1985)
http://www.austlii.edu.au/au/cases/cth/HCA/1985/16.html
QUOTE
Most of the authorities in which the question is discussed, apart from
those already cited, concern the question whether the decision of a
judge who was a member of the Supreme Court of a State but who was
exercising particular statutory functions was the decision of the
Supreme Court within s.73 of the Constitution, so that an appeal lay
to this Court. In the first case in which the question arose, Holmes v.
Angwin (1906) 4 CLR 297, a statute of Western Australia provided that
disputed elections were to be heard and determined by the "Supreme
Court" to be constituted by a single judge. It was held that no appeal
lay to the High Court from the decision of this tribunal, because it
was not a decision of the Supreme Court within s.73 of the Constitution.
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LIST of AUTHORITY
Griffith C.J. said, at pp.306-307, that "the real tribunal is a new
tribunal consisting of a Judge of the Supreme Court as a persona
designata ...". The judgments of all the members of the Court reveal
that in reaching this conclusion they were influenced by the nature of
the power conferred, which was regarded as "different from the kind of
matters which the Supreme Courts of this and the other States were
primarily constituted to deal with"
END QUOTE
Conspiracy
Commonwealth v. Hunt
QUOTE
(1842), American legal case in which the Massachusetts Supreme Court ruled that the common-
law doctrine of criminal conspiracy did not apply to labour unions. Until then, workers' attempts
to establish closed shops had been subject to prosecution. Chief Justice Lemuel Shaw asserted,
however, that trade unions were legal and that they had the right to strike or take other steps of
peaceful coercion to raise wages and ban nonunion workers.
The case stemmed from a demand by the Boston Journeymen Bootmakers' Society that an
employer fire one of its members who had disobeyed the society's rules. The employer, fearing a
strike, complied, but the dismissed employee complained to the district attorney, who then drew an
indictment charging the society with conspiracy. The Boston Municipal Court found the union
guilty.
Justice Shaw, hearing the case on appeal, altered the traditional criteria for conspiracy by holding
that the mere act of combining for some purpose was not illegal. Only those combinations
intended “to accomplish some criminal or unlawful purpose, or to accomplish some purpose,
not in itself criminal or unlawful, by criminal or unlawful means” could be prosecuted. Shaw,
in effect, legalized the American labour union movement by this decision.
END QUOTE
.
QUOTE EMAIL
From: Themis justice96@msn.com justice96@msn.com
To: AMOJ_MAIN@yahoogroups.com
Cc:
Date: Monday, November 07, 2005 03:17 am
Subject: [AMOJ_MAIN] Examples of Civil Contempt
EXAMPLES OF CIVIL CONTEMPT -- Note: The organization or company can also be fined.
U.S. Supreme Court Reports
GOMPERS v. BUCKS STOVE & RANGE CO., 221 U.S. 418 (1911)
CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
No. 372.
FORM
LIST of AUTHORITY
Argued January 27, 30, 1911.
Decided May 15, 1911.
For example: If a defendant should refuse to pay alimony, or

to surrender property ordered to be turned over to a receiver, or
to make a conveyance required by a decree for specific
performance, he could be committed until he complied with the
order. Unless these were special elements of contumacy, the
refusal to pay or to comply with the order is treated as being
rather in resistance to the opposite party than in contempt of
the court. The order for imprisonment in this class of cases,
therefore, is not to vindicate the authority of the law, but is
remedial and is intended to coerce the defendant to do the thing
required by the order for the benefit of the complainant. If
imprisoned, as aptly said in In re Nevitt, 117 F. 451,
"he carries the keys of his prison in his own pocket." He can end
the sentence and discharge himself at any moment by doing what he
had previously refused to do.
On the other hand, if the defendant does that which he has

been commanded not to do, the disobedience is a thing
accomplished. Imprisonment cannot undo or remedy what has been
done nor afford any compensation for the pecuniary injury caused
by the disobedience. If the sentence is limited to imprisonment
for a definite period, the defendant is furnished no key, and he
cannot shorten the term by promising not to repeat the offense.
Such imprisonment operates, not as a remedy coercive in its
nature, but solely as punishment for the completed act of
disobedience.
It is true that either form of imprisonment has also an

incidental effect. For if the case is civil and the punishment is
purely remedial, there is also a vindication of the court's
authority. On the other hand, if the proceeding is for criminal
contempt and the imprisonment is solely punitive, to vindicate
the authority of the law, the complainant may also derive some
incidental benefit from the fact that such punishment tends to
prevent a repetition of the disobedience. But such indirect
consequences will not change imprisonment which is merely
coercive and remedial, into that which is solely punitive in
character, or vice versa.
The fact that the purpose of the punishment could be examined

with a view to determining whether it was civil or criminal, is
recognized in Doyle v. London Guarantee Co., 204 U.S. 599,
605, 607, where it was said that "While it is true that the fine
imposed is not made payable to the opposite party, compliance
with the order relieves from payment, and in that event there is
FORM
LIST of AUTHORITY
no final judgment of either fine or imprisonment. . . . The
proceeding is against a party, the compliance with the order
avoids the punishment and there is nothing in the nature of a
criminal suit or judgment imposed for public purposes upon a
defendant in a criminal proceeding." Bessette v. Conkey,
194 U.S. 328; In re Nevitt, 117 F. 448; Howard v.
Durand, 36 Ga. 359; Phillips v. Welch, 11 Nev. 187.
The distinction between refusing to do an act commanded, —

remedied by imprisonment until the party performs the required
act; and doing an act forbidden, — punished by imprisonment for a
definite term; is sound in principle, and generally, if not
universally, affords a test by which to determine the character
of the punishment.
END QUOTE EMAIL
.
The Commonwealth and Others -v- Kreglinger & Fernau Limited and Another [1926] HCA 8; (1926)
37 CLR 393 (20 April 1926)
QUOTE
On the hearing of the appeal counsel for the present appellants contended that the Full Court had
no jurisdiction to entertain the appeal because the jurisdiction exercised by Cussen J. was Federal
jurisdiction conferred by sec. 39 of the Commonwealth Judiciary Act 1903-1920, and sub-sec. 2
(a) of that section provided that the only right of appeal was to the High Court, the decision of the
trial Judge being a decision of the Supreme Court within the meaning of that sub-section. It was
not denied that Cussen J. in entertaining and deciding the cause was exercising Federal jurisdiction
with which the Supreme Court was invested by sec. 39 (2) of the Judiciary Act, but it was said that
sec. 39 (2) (a) did not operate to take away the right of appeal to the Full Court from his decision
for the following reasons, namely: (1) that on its true construction the sub-section did not apply to
the judgment pronounced on the trial of the action; (2) t! hat if the sub-section did so apply it was
rendered ineffective by the operation of the Colonial Laws Validity Act, and (3) that the sub-
section was beyond the legislative competence of the Commonwealth Parliament.
----------------------------
It is not contended now, as I understand, that there is here any conflict between Federal powers of
legislation and State powers of legislation; but it is said that the powers of "the State as judge" are
in conflict with the powers of the Commonwealth as legislator. I must say, first of all, that I cannot
recognize the propriety of the expression "the State as judge"—the State has not the function of
judging any more than the Commonwealth has the function of arbitrating (under sec. 51 (XXXV.)
of the Constitution). The State has the power of appointing officers to be the King's Judges in
the State, to fulfil the King's judicial functions for his subjects. But, apart from this, even if it
be conceded that "constitutional powers" are not confined to legislative powers, the power of the
Full Supreme Court t! o entertain an appeal from a single Judge is not a constitutional power of
the State; nor is the power of the Supreme Court to grant leave to appeal from its own judgment to
the Privy Council, in pursuance of the Act 7 & 8 Vict. c. 69 and the Order in Council thereunder, a
constitutional power of the State. It is a power granted to the Supreme Court, not under the State
Constitution, but by the King and the Imperial Parliament. As regards appeals to the Full Supreme
Court, the power of the State Parliament to enact secs. 30 and 38 of the Supreme Court Act 1915
FORM
LIST of AUTHORITY
was not impugned by anyone; nor is it impugned now. This is simply a case of a Federal Act being
! attacked as being ultra vires.
END QUOTE
BROWN v. THE QUEEN [1986] HCA 11; (1986) 160 CLR 171 No. F.C. 86/010 (20 March 1986)
QUOTE
3. The question for decision is whether s.80 contains an imperative and indispensable requirement
that the trial must be by jury whenever the accused is charged on indictment with an offence
against a law of the Commonwealth, or whether the section is intended to secure for the benefit
and protection of any person so charged a right or privilege which the accused may waive if the
law governing the conduct of the trial permits it. The argument that the requirement is
indispensable and cannot be waived is an obvious enough one. The words of s.80 appear to be both
clear and mandatory; read literally, they appear to mean that "if there be an indictment, there must
be a jury", as Higgins J. said in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928)
41 CLR 128, at p 139, and they do not expressly admit any exception to that rule.
4. It then becomes necessary to consider the purpose which the framers of the Constitution had, or
must be supposed to have had, in including the provisions of s.80 in the Constitution. The
requirement that there should be a trial by jury was not merely arbitrary or pointless. It must be
inferred that the purpose of the section was to protect the accused - in other words, to provide the
accused with a "safeguard against the corrupt or over-zealous prosecutor and against the
compliant, biased, or eccentric judge": Duncan v. Louisiana (1968) 391 US 145, at p 156 (20
L.Ed.2d 491, at p 500). Those who advocate the retention of the jury system almost invariably
place in the forefront of their argument the proposition (sometimes rhetorically expressed but not
without some truth) that the jury is a bulwark of liberty, a protection against tyranny and arbitrary
oppression, and an important means of securing a fair and impartial trial.
The successful appellant pays cost!

END QUOTE
.
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20 (29 April
2004)
QUOTE
For the other reasons I have given the appeal must be allowed.
The effect of the orders of the Full Court was that the primary judge rehear the applications which
were made at first instance. Those orders should be set aside. The judgment and orders of the
primary judge should be restored. In consequence, the interlocutory orders in purported exercise of
the jurisdiction which the Family Court has now been held not to have, can have no operation. The
appellant accepts and accordingly it should be ordered that the appellant pay the respondents' costs
of the appeal.
END QUOTE
.
I understand that in the case of MORIATY v LONDON, CHATMAM & DOVER RY Queen’s Bench
1870 L.R. 5 Q.B. 314;39 L.T.Q.B. 109;22 L.T. 163;34 J.P. 692;18 W.R. 625 in which the plaintiff sued
a railway company for personal injuries sustained and this plaintiff has gone about suborning false
evidence and it was held by the Court that even so the plaintiff would have had a genuine and justify to
case to sue normally, by the plaintiff conduct to suborn false evidence this was seen by the Court
FORM
LIST of AUTHORITY
that this conduct amounted to an admission that he had no case.
Chu v Henham [1999] VSC 139 (4 May 1999)

QUOTE
44. In the course of his judgment Hedigan, J stated -
"The right of citizens to resist unlawful search and arrest is as old as their
inclination to do so. The role of the courts in balancing the exercise of police
powers conferred by the State and the rights of citizens to be free from unlawful
search and seizure may be traced through centuries of cases."
45. His Honour referred to previous decisions of this court including to McLinley v. Minster
[1911] VLR 347, in which case Madden, CJ at p.350-351 said -
"The whole question was - did Minster assault McLinley ... if the question of the assault
on McLinley had been deliberately and properly investigated it would have become
important to ascertain whether or not the assault was justified and that would depend on
whether the constable had lawfully arrested and was lawfully holding Minster because it
is an important principle of law that no man has the right to deprive another of his liberty
except according to law, and if he does so the person so unlawfully deprived has a perfect
right to use reasonable efforts to beat him off and to get out of his custody."
ENDQUOTE
.
Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
QUOTE
The basic of the right to fair comment is the Right of Freedom of speech and the inalienable right
of everyone to comment fairly upon matters of public importance.
END QUOTE
No wrong committed in criticism of administration of justice:

LORD ATKIN in AMBARD v ATTORNEY-GENERAL for TRINIDAD and TABAGO (1936) A.C.
332, at 335
QUOTE
But whether the authority and position or an individual judge, or the due administration of justice, is
concerned, no wrong is committed by any member of the public who exercises the ordinary right of
criticising, in good faith, in private or public, the public act done in the seat of justice. The path of
criticism is a public way, the wrong headed are permitted to err therein: provided that members of
the public abstain from imputing improper motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to
impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be
allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary man
END QUOTE
.
The right for the public to be informed about the judicial process being properly applied or acts:
THE COMMENTS OF SIR JAMES MARTIN C.J., IN THE MATTER “THE EVENING NEWS”
(1880) N.S.W. LR 211 AT 239.:
QUOTE
The right of the public to canvass fairly and honestly what takes place here cannot be disputed. Our
practice of sitting here with open doors and transacting our judicial functions as we do, always in the
FORM
LIST of AUTHORITY
broad light of day, would be shown of some of its value if the public opinion respecting our
proceedings were at all times to be rigidly suppressed. We claim no immunity from fair, even though
it be mistaken criticism.
END QUOTE
.
As to value of criticism, keeping judge subject to rules and principles of honour and justice;
(a) R v FOSTER (1937) St. E Qd 368
(b) Re WASEMAN (1969) N.Z.L.R. 55, 58-59
(c) Re BOROVSKI (1971) 19 D.L.R. (34) 537
(d) SOLICITOR-GENERAL v RADIO AVON LTD (1978) 1 N.Z.L.R. 225, at 230-31
.
Nadarajamoorthy v Moreton [2003] VSC 283 (4 August 2003) Supreme Court of Victoria.
For the Respondent; Ms K Judd, Office of Public Prosecutions
This is a decision dealing with;
QUOTE
Criminal law - appeal - stalking - course of conduct - sufficiency of evidence - what constitutes -
"loitering" - "following" - s 21A Crimes Act 1958.
END QUOTE
And
QUOTE At 33;
As in order to find the charge proved the Magistrate would have had to be satisfied that the
appellant was "loitering", in a circumstantial case such as this he would have had to exclude all
reasonable hypotheses consistent with his not having been "loitering" beyond reasonable doubt.
Having regard to his findings as to what the various parties (including the appellant) were doing at
the temple on the relevant date regarding the protest which was in progress and the appellant's part
in it he could not have excluded beyond reasonable doubt the possibility that the appellant was
there for a purpose or purposes other than one of the statutory purposes set out in s 21A(2). Thus
he could not exclude the possibility that he was not loitering within the meaning of the section.
The protest, as found by the Magistrate, involved more people than just the appellant, was directed
at an audience wider than the alleged victim and involved acts (such as handing out pamphlets)
which were inconsistent with the concept of "loitering" as set out in the Act.
END QUOTE
.
OMYCHUND v BARKER (1744) Chancery 1 Atk, 21; Willes 538; 1 Wils K>B> 84; 26 E. R. 15
QUOTE PARKER C.B.

It is plain that the policy of all countries, oaths are to be administered to all persons according to
their own opinion, and as it most effects their conscience, and laying the hand was originally
borrowed from the Pagans.
It is said by the defendant’s counsel, that no new oath can be imposed without an Act of
Parliament, and for this purpose several cases were cited.
My answer is: This is no new oath…
END QUOTE
And
QUOTE Willis C.J.
There can be no evidence admitted without oath, it would be absurd for him to swear according to
the Christian oath, which he does not believe; and therefore, out of necessity, he must be allowed
to swear according to his own notion an oath…
I cannot say I lay a great stress upon the authors which give am account of the Gentoo religion,
because it must depend upon their veracity and private judgment; but I found my opinion upon the
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LIST of AUTHORITY
certificate which says, the Gentoos believe in a God as the Creator of the universe, and that he is
rewarder of those who do well, and an avenger of those who do ill
END QUOTE
And
QUOTE Lee C.J.
I agree entirely with the opinions of Lord Chief Baron Parker and Lord Chief Willes; that where it
is returned by the certificate the witness is of a religion, it is sufficient; for the foundation of all
religion is the belief in god. Through difficult to have a distinct idea of an infinite and
incomprehensible Being as god is; yet mankind may have a relative idea of the being of a God, as
dependent creatures upon Him.An oath is a religious function that mankind have universally
established…
END QUOTE
And
QUOTE LORD Hardwickle L.C.
Suppose a Heathen, not an alien enemy, should bring an action at common law, and the defendant
should bring for an injunction, would anybody say that the plaintiff at law should not be admitted
to put in an answer according to his own form of an oath? If otherwise, the injunction must be
perpetual, and this would manifest denial of justice…
This falls in exactly with what Lord Strair, Puffendorf, etc say, that it has been the wisdom of all
nations to administer such oaths, as are agreeable to the notion of the person taking, and does not
at all effect the conscience of the person administering, nor does it in any respect adopt such
religion: it is not near so much a breaking in upon the rule of law, as admitting a person to be an
evidence in his own cause……
Upon the special circumstances of this case, I concur in opinion with my Lords the Judges, that the
depositions of those witnesses ought to be read as evidence in this cause, and do not therefore
order that the objection be overruled, and the depositions read.
END QUOTE
See also; Phipson 482, 483; Nokes 392 as to various modes to administer oaths to non-Christians.
R. v. Moore (1892) 61 L.J.M.C. 80 (C.C.R.), Nash v Ali Khan (1892) 8 T.L.R. 444 (C.A.), R.
v.Clark[1962] 1 W.L.R. 180 (C.C.A.)
.
NOTE; For many years, the compiler of this List of Authorities Mr G. H. Schorel-Hlavka, questioned
lawyers as to what Bible was being used for each witness to administer the oath. Lawyers as yet never
knew which Bible was used. When he ( Mr G. H. Schorel-Hlavka) himself had to make an oath, and for
this presented his own Bible in the Dutch language, the trial judge then allowed this.
.
Maugham v. Hubbard King’s Bench: 1828 6 L.J (o.s.) K.B. 229
QUOTE
While a witness memory can be refreshed as to use a document written by him it must be realized
that unless the document so used is actually filed as an exhibit it (the document) itself is not part
of evidence.
However a party that calls for inspection a document in the possession of another party is required
then to use it as evidence (See Wharam v. RoutledgeNisi Prius: 1805 5 Esp. 235:170 E.R. 797
END QUOTE
.
Nichols v Dowding and Kemp Nisi Prius; 1815 1 Stark, 81; 171 E.R. 408
QUOTE
LEADING QUESTIONS ARE ENTITLED TO BE ASKED ONLY IN EXAMINATION-IN-
CHIEF OR RE-EXAMINATION, IF THEY ARE NECESSARY TO BRING THE MIND OF
THE WITNESS TO THE SUBJECT OF INQUIRY, OR THEY RELATE TO INTRODUCTORY
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LIST of AUTHORITY
MATTERS OR THOSE IN DISPUTE.
END QUOTE
.
PLACES OR RELIGIOUS WORSHIP ACT, 1812, Geo. 3, c. 155
QUOTE
12…..If any person or persons…shall willfully and maliciously or contemptuously disquiet or
disturb any meeting, assembly or congregation of persons assembled for religious worship,
permitted or authorized by this Act…or shall in any way disturb, molest, or misuse any preacher,
teacher, or person or persons there assembled, such person or persons so offending, upon proof
thereof before any justice of the peace by two or more credible witnesses, shall find two sureties…
to answer for such offence…and upon conviction of the said offence at…quarter session, shall
suffer the pain and penalty of forty pounds.
END QUOTE
NOTE: A person may be held having disturbed a religious meeting under the standard of proof in a
Magistrates Court, for purpose to determine to issue an INTERVENTION ORDER, whereas the same in
a criminal case may not be acceptable as then the STANDARD OF PROOF must be upon the prosecutor
to proof that the Defendant cause a disturbance, and not merely spontaneously reacted while being part
of the meeting.
.
Doncaster v Day (1810) Common Pleas 3 Taunt, 262; 128 E.R. 104 Sir Mansfield CJ.
QUOTE
You do not want a rule of court for what purpose. What a witness, since dead, has sworn upon a
trial between the same parties, may, without any order of the court, be given in evidence, either
from the judge’s notes, or from notes that have been taken by any other person, who will swear to
their accuracy; or the former evidence may be proven by any person who will swear from his
memory to its having been given.
END QUOTE
See also; Morgan v Nicholl Common Pleas 1866 L.R. 2 C.P. 117
Llanover v Homfray Court of Appeal 1881 19 Ch. D. 224; 30 W.R. 557
Re ENOCH AND ZARETZKY, BOCK & CO’S ARBITRATION. Court of appeal [1910] K. B. 327
In this case the arbitrator was held to be equally to a judge in civil cases that he cannot call a witness
without the consent of both parties. In criminal cases a judge may also call a witness.
See also R. v. Harris Court of Criminal Appeal [1927] 2 K.B. 587
.
R.v Baines King’s Bench Division 1908 [1909] 1 K.B. 258
Regarding that any party to legal proceedings may subpoena any person as a witness. Without the leave
of the court. If the Court is satisfied that the process is being abused, the Court has the jurisdiction to set
aside the subpoena.
See also; McKinley v. McKinley [1960] 1 W.L.R. 120
In this case an unnecessary subpoena was set aside, however an application to set aside the subpoena
may be refused , when the grounds of the application is privileged, which the witness may claim after he
has attended in pursuance of the subpoena.
See also Broome v Broome (195)
.
S v Sadler (1830) 4 C. & P 218
In a criminal case any person who is present in Court, albeit not served with a subpoena may be
obliged to give evidence . Yet, in M2944 of 21989 Schorel v Elms, Family Court of Australia, in quasi
criminal proceedings the trail judge refused to leave the bench and take the witness box, when so
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requested to do so by the Defendant, in view that the Judge was giving evidence as to the authentication
of a purported Court order, where in fact the Defendant knew it was not a true Court order. The
Defendant then produced another version, being the correct version, to prove the judge had been bias to
identify an incorrect version as being the Court order he had claimed he had issued. The judge
nevertheless refused to disqualify himself and afterwards was found to have signed the 21 day
imprisonment sentence a day before the hearing took place for pre-trail sentencing report, etc. Upon
appeal to the Full Court this was ignored, and leave to appeal to the High Court of Australia was also
refused, it was argued that the issue of the signed order with the 21 day imprisonment sentence was
“obviously” an error. The legal principle that a judge having signed a Court order a day before the
hearing then invalidated the orders and subsequent proceedings appeared to be of no consequences to the
Court.
Kenny’s Outlines of Criminal Law (18th ed., 1962), Dr J. W. C. Turner says at p 138;
QUOTE
If a felonious attack is made upon a man he has the legal right to stand his ground and to resist,
and if he kills his assailant the homicide will be justifiable…But if the assault is not felonious, then
the person attacked must if safely possible retreat, and must not use force against his assailant
unless he cannot otherwise evade the attack; as it used to be said, he must flee until he is driven to
the wall.
END QUOTE
See also R. v. Hussey, 18 App. R. 160
.
R. v Butterwasser Court of Appeal 1947 , 1K.B. 4; 63 T.L.R., 463; 111 J.P. 527; 91 S.J. 586; 32 Cr.
App. R. 81; [1947] 2 All E.R. 415
QUOTE
There is no obligation on a court to hear evidence after verdict. One small point which shows the
distinction between evidence after the verdict and evidence before the verdict is the different oath
which use to be administered to the witness. The form of the oath which was formerly
administered to the witnesses during the trial is well known; The evidence you shall give to the
court and the jury sworn between the Sovereign Lord, the King, and the prisoner at the Bar, shall
be the truth,” and so forth. After verdict, the witness who came into the box to give evidence was
sworn on what was called the voire dire, that is to say; “You shall true answer make to all such
questions as the court shall demand of you.” The court could then demand any information it saw
fit to ask for..
END QUOTE
.
Marchesi v. Barnes at p.439
QUOTE
If the particulars are not supplied the court has an inherent power to dismiss the information.
END QUOTE
See also Whitehead v. Koulouklidis Supreme Court which held that the informant must supply sufficient
particulars so as to identify not only the transaction or occurrence, but every ambiguous or non-specific
element of the offence.
.
Johnson v. Miller (1938 A.L.R 104 at 112 per Dixon J.
QUOTE
The defendant is not only entitled to be appraised of the legal nature of the offence. But also with
the particular act, matter or thing alleged as the foundation of the charge.
END QUOTE
.
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PLEADING AND PROCEDURE STATE AND FEDERAL, Cases and materials-FIFTH EDITION,
University Casebook Series.
QUOTE At page 32;
•Maybe the adversary system would be satisfactory if there were no jury. But abolishing the jury
system would require constitutional change that is practically impossible. Further more, in the
participants’ view many of the judges are not much better; at least with the jury there is always a
chance of getting someone who is reasonably concerned, intelligent, and disinterested.
• There are good versions of the adversary system. A trial before a capable federal judge presented
by competent counsel is a fair trial. But this doesn’t happen very often.
• Just results can often be achieved when the judges are simply terrible. Litigants confronted by the
ordeal of trial before a judge who is an idiot or bigot will quickly compose their differences-the
Quasimodo techniques of justice.
END QUOTE
QUOTE At page 269
a. Personal Service. At common law, process had to be served by actual personal delivery of the
summons. Delivery to defendant’s home or to someone on his behalf was regarded as
insufficient.
END QUOTE
The Law of Contract (fourth edition) by G. H. Treitel

QUOTE
Again, the better view is that a member of the armed forces is not in any contractual relationship
with the Crown, even if he enlists voluntarily. 22
END QUOTE
See Grant v S. of S. for India (12877) 2 C.P..D. 445;; Mitchell v R. (1890) [1896] 1 Q.B. 121n.;
Leaman v. R. [1920] 3 K.B. 663; Kynaston v. Att.-Gen. (1933) 49 T.L.R. 300; dicta in Owners of
S.S. Raphael v. Brandy [1911] A.C. 413, 415 perhaps suggest the contrary: cf. Mitchell, contracts
of public Authorities, p. 41
(Note: Consider then the issue of “Office for profit” regarding Section 44 of the Commonwealth of
Australia Constitution Act.)
QUOTE
The Truck Act 1831 made illegal any agreement to pay a workman otherwise then in the current
coin of the realm.
END QUOTE
Marriage of McJarrow Fam LR6, 746 (1980)

QUOTE
(iii) Where a properly instituted application for contempt which was civil in nature was before the
court, the court could not properly proceed to hear and determine the application of its own motion in
the absence of the applicant.
“No formal order was taken out as to the dismissal of the wife’s application and the question was
raised by the Principal Registry on the filing of the notice of appeal as to whether or not there was an
order from which an appeal could arise. By arrangment a formal order was taken out and the appeal
proceeded.
In my judgment the signing by the registrar of an order is irrelevant to the question as to whether or
not an order was made. The signing and sealing of an order is no more that an administrative act
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passing and entering the order into the records of the court. Once an order has been pronounced by
the court then there is in existence an order which can be appealed pursuant to S94 of the Act.”
END QUOTE
And
QUOTE
“The powers of the High Court are those of the Queen’s Courts of Common Law and Equity ie of
superior courts of record.
Halsbury 3rd ed Vol 8 at p2 deals with contempts of superior courts of records and states; Contempt of
court is either criminal contempt, consisting of words or acts obstructing or tending to obstruct, the
administration of justice or contempt in procedure, consisting of disobedience to the judgment,
orders, or other process of the court, and involves a private injury.” At page 3 it pointed out that
criminal contempt is a misdemeanour punishable on indictment by fine or imprisonment or by order
to give security for good behavior.
The distinction is set out in Oswald”s Contempt of Court 3rd ed p36 and quoted with approval by the
Full Court of Canada in Tony Poje v A-G BC (1953) 2 DLR 785 at 792”… generally, the distinction
between contempts criminal and not criminal seems to be that contempts which tend to bring the
administration of justice into scorn, or which tend to interfere with the due course of justice, are
criminal in their nature; but that contempt in disregarding orders or judgments of a Civil Court, or in
not doing something ordered to be done in a cause, is not criminal in its nature. In other words, where
contempt involves a public injury or offence, it is criminal in its nature, and the proper remedy is
committal – but where the contempt involves a private injury only it is not criminal in its nature..”
END QUOTE
And
QUOTE
A contempt in procedure by disobedience of an order of the court or by breach of an undertaking
given to it may be accompanied by such contumacy or defiance on the part of the party against whom
the contempt proceedings are brought as evidences a criminal as well as a civil contempt.
END QUOTE
.
R v Cook; Ex parte Twigg (1980) Fam LR6 161
QUOTE
(d) When an alleged contempt of the Family court is not committed in the face of the court, the
offender can only be punished upon application (Family Law Act 1975(Cth) s 44) and the judge who
makes the application cannot hear it.
END QUOTE
.
In the Marriage of Cooper (1980) Fam LR 288
QUOTE
(i) Contempt in the face of the court is distinguished from contempt not in its face on the footing
that all the circumstances of the alleged contempt are within the personal knowledge of the
judge. The solicitor’s actions were committed in the face of the court as the record is in file
containing the affidavit and no disputed issues of fact arise. The argument that the court has
no jurisdiction should therefore be rejected.
Balogh v Crown Court (1974) 3 All ER 283; McKeowen v R (1971) 16 DLR 3d) 390,
applied
(ii) The filing of an affidavit by a child without leave of the court was prima facie a contempt in
the face of the court. However, as the solicitor appeared to answer the charge and sought to
withdraw the offending affidavit, no further action should be taken and the solicitor should
be discharged.
END QUOTE
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.
Marriage of Witmoth 6 Fam LR (1981)
QUOTE
Having concluded that the court has an inherent power to prevent the institution of further
proceedings by the husband unless he obtains the leave of the court, I would stress that this power
is to be the exercise with utmost caution. Ready access to the court by a litigant or prospective
litigant should not be burdened with conditions, unless it is necessary to do so in the interest of the
due administration of justice between the parties.
ENDQUOTE
And
QUOTE
The final application which I granted leave to make orally is that of the wife seeking mutual non-
molestation orders. Thus it can be seen that every possible form of litigation between these parties
is still alive waiting determination. One can only hope that the husband’s statement that the death
of the marriage ought to be followed by its burial is seen by him in the light that I am now
interring the remains if this marriage. One can hope the remains can remain well and truly buried.
END QUOTE
.
Law of Contract Case law dictates that when an offer is made then the respondent is deemed to have
accepted the offer by mailing the response of the offer of acceptance and the moment the acceptance has
been mailed and this can be confirmed by the Postal Authorities then the Post Office act as an Agent for
the offerer and so the agreement is deemed completed regardless if the mail of acceptance never arrives.
This is applicable unless pre-conditions are set otherwise.
Denning L.J. in Entores Ltd v. Miles Far East Corporation [1955] 2 Q.B. 327.
QUOTE
When a contract is made by post it is clear law throughout the common law countries that the
acceptance is complete as soon as the letter of acceptance is put into the post box, and that is the
place where the contract is made. But there is no clear rule about contracts made by telephone
or by Telex. Communications by these means are virtually instantaneous and stand on a
different footing.
The problem can only be solved by going in stages. Let me first consider a case where two
people make a contract by word in the presence of one another. Suppose, for instance, that I
shout an offer to a man across a river or a courtyard but I do not hear his reply because it is
drowned by an aircraft flying overhead. There is no contract at that moment. If he wishes to
make a contract he must wait till the aircraft is gone and then shout back his acceptance so that
I can hear what he says. Not until I have his answer am I bound. I do not agree with the
observation of Hill J., in Newcomb v. De Roos.
Now take a case where two people make a contract by telephone. Suppose, for instance, that I
make an offer to a man by telephone and, in the middle of his reply. The line goes “dead” so
that I do not hear his words of acceptance. There is no contract at that moment. The other man
may not know the precise moment when the line failed. But he will know that the telephone
conversation was abruptly broken off, because people usually say something to signify the end
of the conversation. If he wishes to make a contract, he must therefore get through again so as
to make sure that I heard. Suppose next that the line does not go “dead”, but it is nevertheless
so indistinct that I do not catch what he says and I ask him to repeat it. He then repeats it and I
hear his acceptance. The contract is made, not on the first time when I do not hear, but only the
second time when I do hear. If he does not repeat it, there is no contract. The contract is only
complete when I have his answer accepting the offer.
Lastly take the Telex. Suppose a clerk in a London office taps out on the teleprinter an offer
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which is immediately recorded on the teleprinter in a Manchester office, and a clerk at that end
taps out an acceptance. If the line goes dead in the middle of the sentence of acceptance, the
teleprinter motor will stop. There is then obviously no contract. The clerk at Manchester must
get through again and send his complete sentence. But it may happen that the line does not go
dead, yet the message does not get through to London. Thus the clerk at Manchester may tap
out his message of acceptance and it will not be recorded in London because the ink at the
London end fails or something of that kind. In that case the Manchester clerk will not know of
the failure but the London clerk will know of it and will immediately send back a message “not
receiving”. Then, when the fault is rectified, the Manchester clerk will repeat his message. Only
then is there a contract. If he does not repeat it, there is no contract. It is not until message is
received that the contract is made.
In all the instances I have taken so far, the man who sends the message of acceptance knows
that it has not been received or he has reason to know it. So he must repeat it. But suppose that
he does not know that his message did not get home. He thinks it has. This may happen if the
listener on the telephone does not catch the words of acceptance, but nevertheless does not
trouble to ask for them to be repeated: or if the ink on the teleprinter fails at the receiving end,
but the clerk does not ask for the message to be repeated: so that the man who sends an
acceptance reasonably believes that his message has been received. The offeror in such
circumstances is clearly bound, because he will be estopped from saying that he did not receive
the message of acceptance. It is his own fault that he did not get it. But if there should be a case
where the offeror without any fault on his part does not receive the message of acceptance-yet
the sender of it reasonably believes it has got home when it has not-then I think there is no
contract.
My conclusion is that the rule about instantaneous communications between the parties is
different from the rule about the post. The contract is only completed when the acceptance is
received by the offeror: and the contract is made at the place where the acceptance is received.”
END QUOTE
.
The criteria therefore isn’t if the ink having run out or paper may have run out but rather that where the
sender was notified that all pages had not been received then the obligation was to the sender to rectify
such. With facsimile facilities a facsimile machine normally issue a sheet after each facsimile details
send if the communication was whole or in part or not at all successful and so from this, unlike with
TELEX the respondent (so her lawyers) knew immediately that there had been a break down in
communication. As such, as like with a contract the onus was upon the respondent mother (so her
lawyers) to provide a proper copy, this they failed to do. Accordingly no service could have be deemed
to have been done.
.
QUOTE
Thus the clerk at Manchester may tap out his message of acceptance and it will not be recorded
in London because the ink at the London end fails or something of that kind. In that case the
Manchester clerk will not know of the failure but the London clerk will know of it and will
immediately send back a message “not receiving”. Then, when the fault is rectified, the
Manchester clerk will repeat his message. Only then is there a contract. If he does not repeat it,
there is no contract. It is not until message is received that the contract is made.
In all the instances I have taken so far, the man who sends the message of acceptance knows that it
has not been received or he has reason to know it. So he must repeat it.
END QUOTE
.
R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
QUOTE
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However in some cases the words or conduct of a judge may be suck as to lead the parties
reasonably to think that the judge has prejudged an important question in the case, and then
prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly
conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly
established" that such a suspicion may reasonably be engendered in the minds of the parties or the
public, as was made clear by the court in R v Commonwealth Conciliation and arbitration
Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v
Watson; Ex parte Armstrong (132 CLR at 262).
The critical question, however, is not whether a judge believes he or she has prejudged a question,
but whether that is what a party or the public might reasonably suspect has occurred (see per Lord
Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a
judgment cited with approval by this court in R v Commonwealth Conciliation and Arbitration
Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553; In some circumstances
repeated denials of prejudging might well convey the impression of "protesting to much"...
END QUOTE
.
Dow Jones & Company Inc v Gutnick [2002] HCA 56 (10 December 2002)
QUOTE
1. In this regard, the estoppel was seen to be an aspect of "the extended principle expressed by Sir
James Wigram VC in Henderson v Henderson[59]"[60].
2. It was said in Henderson v Henderson that:
"where a given matter becomes the subject of litigation in, and of adjudication by, a
Court of competent jurisdiction, the Court requires the parties to that litigation to bring
forward their whole case, and will not (except under special circumstances) permit the
same parties to open the same subject of litigation in respect of matter which might have
been brought forward as part of the subject in contest, but which was not brought
forward, only because they have, from negligence, inadvertence, or even accident,
omitted part of their case."[61]
END QUOTE
And
QUOTE
1. Reformulation of the common law of Australia
2. Reasons for restraint: The responsibilities of this Court extend to the re-expression of the
common law of Australia. However, the Court is bound by the Constitution. No principle of the
common law may be inconsistent with its language or implications[80]. Nor may the common
law be inconsistent with valid applicable legislation, whether federal, State or of a Territory[81].
In re-expressing the common law from time to time, regard may be had to the general
developments of statute law[82].
3. Sometimes, asked to reformulate an established principle of the common law, this Court will
decline the invitation, considering that any alteration of the law should be left to the legislature.
Factors relevant to such decisions have included the effect on competing interests that should be
consulted before any alteration of the law[83]; the existence of significant economic implications
of any change[84]; the enactment of legislation evidencing parliamentary attention to the
subject[85]; the perceived undesirability of imposing retrospective liability, especially criminal
liability, on persons[86]; and the desirability, in particular cases, of not making any change until
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after intensive analysis of social data and public consultation, facilities typically unavailable to a
court[87]. The fundamental restraint upon substantial judicial innovation in the expression of the
law is imposed by the character of a court's functions as such and an acceptance that, under the
Constitution, major legal changes in the Australian Commonwealth are the responsibility of the
other branches of government, not of the courts[88].
4. Reasons for action: Despite these expressions of restraint, important reformulations of the
common law have been made by this Court, including in recent times[89]. Some of these have
had very great significance. They have reversed long held notions of common law principle.
Sometimes they have been stimulated by contemporary perceptions of the requirements of
fundamental human rights[90]. In the present case, in support of its arguments, the appellant
invoked the "revolutionary" features of the technology that supplies the Internet. It submitted that
those features permitted, and required, a reconsideration of the law governing the elements of the
tort of defamation.
END QUOTE
And
QUOTE
By posting information on a website, the publisher makes the content available to anyone,
anywhere, having access to the Web. However, accessibility will depend on whether there is open
access (under which any web user can access the site); subscription access (under which only web
users who register, and commonly pay, for the service can secure access); combination access
(where only a portion of a site may be accessed after registration and/or payment of a fee) and
restricted access (access limited to specified users authorised by the website operator to view the
website, eg employees of a particular company).
END QUOTE
And
QUOTE
1. We were reminded of Judge Learned Hand's observation[103]:
"The respect all men feel in some measure for customary law lies deep in their nature;
we accept the verdict of the past until the need for change cries out loudly enough to
force upon us a choice between the comforts of further inertia and the irksomeness of
action."
In Theophanous v Herald and Weekly Times Limited[104], Brennan J, citing these
remarks, noticed that some judges "find the call to reform more urgent". In the context
of the development of the Internet, the unique features that I have described and the
many beneficial advantages which I acknowledge, I am one of those to whom Brennan J
referred.
The idea that this Court should solve the present problem by reference to judicial
remarks in England in a case, decided more than a hundred and fifty years ago,
involving the conduct of the manservant of a Duke, despatched to procure a back issue
of a newspaper of minuscule circulation[105], is not immediately appealing to me. The
genius of the common law derives from its capacity to adapt the principles of past
decisions, by analogical reasoning, to the resolution of entirely new and unforeseen
problems. When the new problem is as novel, complex and global as that presented by
the Internet in this appeal, a greater sense of legal imagination may be required than is
ordinarily called for. Yet the question remains whether it can be provided, conformably
with established law and with the limited functions of a court under the Australian
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constitution to develop and re-express the law.
[103] Hand, "The Contribution of an Independent Judiciary to Civilisation", in Winters (ed),
Handbook for Judges, (1975) 43 at 44.
END QUOTE
And
QUOTE
As a result of this conclusion, the respondent enjoys the advantage of properly constituted
proceedings in an Australian court. The objections that the appellant is not present in this country,
has no office or assets here (as I would be prepared to infer); has only minimal commercial interest
in the sale of Barron's magazine or online services in Victoria or to Australians; and publishes
them principally for the benefit of, and sale to, United States readers, are considerations irrelevant
to the issue of jurisdiction once the propounded long-arm rule is found valid and applicable.
END QUOTE
.
Legal Principals.
B AND B Full Court of the Family Court at Brisbane Appeal NA 35 of 1996 9-7-1997 in particularly
parts 9.63, 9.65, 10.46 to and inclusive 10.64 it is notable that with the Reform Act in place and
QUOTE 9.65
However, in relevant proceedings under Part VII the ultimate issue is the best interest of the
children and to the extent that the freedom of a parent to move impinges upon those interests
then it must give way.
END QUOTE
And
QUOTE 10.62; -
We consider that there is power to make an order that may have indirect effect of restricting the
movement of a contact parent.
END QUOTE
And
QUOTE 10.45
Further, we think that the economic factors referred to by her as affecting women who are the sole
caregivers of children are also relevant and should not be overlooked by a court when considering
a child's best interests.
END QUOTE
And
QUOTE 10.46
Nevertheless the essential point is that the question must always come back to the best interests
of the particular child in each case, and rights of the type discussed above must give way to
those best interests.
END QUOTE
And
QUOTE
(b) Rights of Children
END QUOTE
And
QUOTE 10.47
The Reform Act (s.60B) is expressed in terms of "rights" of children and the balance of Part
VII is notable for the absence of "rights" in relation to parents, even in its definition of
"parental responsibility" (s.61B) and which is in contrast to the U.K. equivalent.
END QUOTE
And
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QUOTE 10.49
Any view that until the Reform Act the law in Australia spoke in terms of the rights of parents to
custody or access seriously misunderstands the development of the law long before 1995. For
example, in Brown and Pedersen, supra, the Full Court said (at 79,010):-
"Whatever may have been the accepted principle in the past, this Court has long laid to rest any
notion that a parent has a right to "access."
END QUOTE
And
QUOTE 10.50
The Full Court then referred to several earlier cases in this Court where the discussion was in
terms of the right of children. The Full Court had some difficulty with a full acceptance of that
concept because "the difficulty with the use of the word "right" is that it detracts from the principle
that the welfare of the child is the paramount consideration as stated in sec 64(1)(a) of the Act.
END QUOTE
And
QUOTE 10.51
By this time the movement from rights of parents to rights of children and their inter-relationship
had further developed in the remarks of Lord Denning M.R. in Hewer v Bryant [1970] 1 QB 357
at 369 and the "Gillick-competent" test enunciated by Lord Scarman in Gillick v West Norfolk
and Wisbech Area Health Authority [1986] 1 AC 112 at 183 et seq, namely:-
"Parental rights clearly do exist, and they do not wholly disappear until the age of majority.
Parental rights relate to both the person and the property of the child - custody, care and
control of the person and guardianship of the property of the child. But the common law has
never treated such rights as sovereign or beyond review and control. Nor has our law ever
treated the child as other than a person with capacities and rights recognised by law. The
principle of the law, as I shall endeavour to show, is that parental rights are derived from
parental duty and exist only so long as they are needed for the protection of the person and
property of the child."
END QUOTE
And
QUOTE 10.52
His Lordship went on to say at 186:-
"The underlying principle of the law was exposed by Blackstone and can be seen to have been
acknowledged in the case law. It is that parental right yields to the child's right to make his own
decisions when he reaches a sufficient understanding and intelligence to be capable of making
up his own mind on the matter requiring decision.”
END QUOTE
And
QUOTE 10.55
For a more detailed discussion of these issues and of the emerging emphasis on the rights of
children within the concept of best interests see the judgments of the members of the Full Court in
Re Z, supra, and also N and S and The Separate Representative (1996) FLC 92-655, at 82,708.
END QUOTE
And
QUOTE 10.56
By the time the Reform Act came into operation any concept of rights of parents in relation to
residence and contact have long been abandoned. Those issues were seen as involving the rights of
children, not in an absolute sense but in the sense that the issue was to be determined from that
perspective, great weight being attached to children's rights and wishes but ultimately subordinate
to the criterion of their best interests.
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END QUOTE
And
QUOTE
(c) Can a contact parent be inhibited from relocating?
END QUOTE
And
QUOTE 10.58
Mr Hamwood, for the husband, submitted that, consistently with s.60B(2)(b), the Court's power to
prevent a residence parent from relocating applied equally to a contact parent. This is because the
loss to the children of the right of contact with the contact parent would be diminished to precisely
the same extent whether it was the children or the contact parent who moved from the previous
location. Consequently, in order to protect the right of the children to contact in an appropriate
case the contact parent could be inhibited from relocating. Otherwise it may appear that the law is
discriminatory, preventing relocation by the residence parent, usually female, who has the greater
responsibilities for the children, whilst allowing the contact parent to relocate without restriction
and regardless of the impact on the rights of the children. The Attorney-General expressed no view
on this issue.
END QUOTE
And
QUOTE 10.59
In this context one difference between the resident parent relocating with the children and the
contact parent relocating needs to be recognised. In the former situation the children would also
move from their previously known environment whereas that would not be the case in the latter
situation. But it is the right of contact with parents to which s.60B(2)(b) is directed.
END QUOTE
And
QUOTE 10.62
We consider that there is power to make an order that may have the indirect effect of restricting
the movement of a contact parent. That issue would ordinarily arise when a contact parent seeks to
relocate and applied to the Court to vary the existing contact order. If the Court refused to do so
because it considered that it would be contrary to the children's best interests to have contact
reduced, it may do so by refusing that application, and this may place the contact parent under an
obligation to adhere to the existing order. It may also arise in other ways - for example, an
application by the residence parent for contact orders to be made in particular terms which may be
inconsistent with relocation by the contact parent. The use of injunctions is much less clear
because it would raise the issue whether the best interests of the children is the paramount
consideration in such applications: see s.68B.’
END QUOTE
And
QUOTE 10.63
In any of those eventualities it is possible that the failure of the contact parent to comply
with those orders may amount to a breach of the orders in respect of which proceedings by
way of enforcement could be brought.
END QUOTE
And
QUOTE 10.64
However, we are not aware of any such order ever having been made in Australia and we think it
unlikely that in the exercise of its discretion a court would do so. Essentially the reason is that it
would be most unlikely that the children's best interests would be served by requiring the contact
parent to have contact which he or she did not wish to have, although it is possible to envisage
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circumstances where the continuance of contact is so overwhelmingly in the best interests of the
children as to nullify that circumstance.
END QUOTE
.
Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-
QUOTE
We recognise that each party is entitled to a Fair and Proper trial and to an adequate opportunity
to adduce relevant evidence and to test the quality and veracity of the evidence adduced by the
other party.
END QUOTE
.
Marriage of Baines (1981) 7 Fam LR 226 at 229
QUOTE
The adversary system involves the presentation of facts ascertained by questions put to witnesses,
or legal representations to the court. The role of the judge is that of adjudicator. This does not
mean that he can ask no questions but he is at common law restricted in that he cannot in general
call witnesses himself.
END QUOTE
.
In Preston Ice and Cool Stores Pty Ltd. v. Hawkings (1955) V.L.R. 89; (1955) Austin Digest 337.
QUOTE
It was held that where there is a review/appeal the party having sought such review/appeal is not
bound by the grounds used in the original hearing but may refer to other grounds even so, such
grounds had not been upon which the original order was based.
END QUOTE
.
Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II,L.C. 759
QUOTE
The fundamental rule of English (Australian) law is that "No man can be a judge in his own
case". It has long been held that if there is bias or the appearance of bias such as to deny justice
or create the impression that justice has not been done, then that bias, or apparent bias, is
sufficient to invalidate the decision of those who made the decision.
END QUOTE
Reg v. The London County Council (1894) XI .L.R. 24
Sharp v. Carey (1897) 23 V.L.R. 248 Austin Digest 17.
Reg. v. Moleswort (1893) 23 V.L.R. 582 Austin Digest 17.
Black v. Black (1951) N.Z.L.R. 723
Ex Parte Blume (1958) W.N. (N.S.W.) 411Austin Digest 93,339,457,458
In Re O (infants) (1971) Ch 748,754 and 755

QUOTE
In my considered opinion the law now is that if an appellate court is satisfied that the decision of
the lower court is wrong, it is it's duty to say so and act accordingly.
END QUOTE
.
Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
QUOTE
As an advocate he is a minister of Justice equally with a judge, A Barrister cannot pick or choose
his clients...He must accept the brief and do all he honourably can on behalf of his client. I say
'All he honourably can' because his duty is not only to his client. He has a duty to the court which
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is paramount. It is a mistake to suppose that he is a mouthpiece of his client to say what he
wants: or his tool to do what he directs. He is none of those things. He owes his allegiance to a
higher cause. It is the cause of truth and Justice. He must not consciously misstate the facts. He
must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is,
without evidence to support it. He must produce all relevant authorities, even those that are
against him. He must see that his client discloses, if ordered, all relevant documents, even those
that are fatal to his case. He must disregard the specific instructions of his client, if they conflict
with his duty to the court.
END QUOTE
.
Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF AUSTRALIA.
QUOTE
Although the Family Court is a court created by statute, it never the less possesses an inherent
jurisdiction to set aside a judgement obtained by default - there is no indication in the Family
Law Act of an intention to displace this inherent jurisdiction.
END QUOTE
And
QUOTE
In my opinion, the words 'false evidence' in s79A(1) do not mean evidence which is willfully
false. The sub-section should be read according to its terms. To say that 'false evidence should be
read as 'willful false evidence' is to introduce a provision not expressed by the provision; cf s6H
of the Royal Commission Act 1902 which speaks of a witness 'who knowingly gives false
testimony'. This interpretation is reinforced by reference elsewhere in s79A(1) to the separate
grounds of fraud and suppression of evidence which would comprehend cases of willful false
evidence. At common law, a judgement will be set aside if it has been obtained by fraud. In the
exercise of this jurisdiction, it has been held that an applicant must show something more than
perjury, ie. new facts (Baker v. Wadsworth [1898] 67 LJQB 301; Everett V. Ribbands [1946]
175 LT 143). This tends to suggest that the words 'false evidence' should be given their literal
meaning
END QUOTE
And
QUOTE
In my opinion, the jurisdiction extends not only to the setting aside of judgements which have
been obtained without service or notice to a party (Craig v. Kanssen [1943] KB 256 at 262 -
263) but to the setting aside of a default or ex-parte judgement obtained when the absence of the
party is due to no fault on his part. I can find no indication in the Family Law Act of an intention
to displace this inherent jurisdiction.
END QUOTE
.
QUOTE R.V. Crimmins (1959) VR 270

Suppression of relevant evidence
END QUOTE
.
QUOTE Byrne v Byrne (1965) 7 FLR 342 at 343
Fraud: Usually takes the form of a statement of what is false or the suppression of what is true.
END QUOTE
.
QUOTE Schorel v Elms (1994) Unreported M2944X of 1989 SA27 of 1993 Page 16 and 17: -
It is clear from the transcript of the proceedings of 2 August 1993 that at no time was the charge
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contained in the wife's application formally read or otherwise orally put to the Father, nor indeed
was he given an opportunity to plead to that charge.
END QUOTE
And
QUOTE
Justice must not only be done but must be seen to be done
END QUOTE
.
QUOTE Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
A frequent consequence of self representation is that the court must assume the burden of
endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy
END QUOTE
.
QUOTE Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
The basic of the right to fair comment is the Right of Freedom of speech and the inalienable right
of everyone to comment fairly upon matters of public importance.
END QUOTE
.
QUOTE Magna Carta Charter (Chapter 29)(1115)
No free man shall be taken or imprisoned, or be diseased of his freehold, or Liberties, or from
custom, or be outlawed, or exiled, or otherwise destroy & deny will we not pass upon him, nor
condemn him, but by lawful judgement of his peers, or by law of the land, We will sell to no man,
We will not deny or defer to any man either Justice or right.
END QUOTE
.
QUOTE In the marriage of D.J. and E.M. Cavanough (1980) FLR 6 note 3 HELD:-
Where the welfare and interest of the children are the paramount consideration and where a parent
believes honestly and on reasonable grounds that to act in accordance with an order would be
against their interest, His/her failure to do so is excused.
END QUOTE
.
QUOTE Chapman v Palmer (1978) 4 FLR 462 at 469 (Full Court)
In exercising the jurisdiction to control or to ignore the parental right the court must act cautiously,
not as if it were a private person acting with regard to his own child, and acting in opposition to the
parent. Only when Judicially satisfied that the welfare of the child requires that the parental right
should be suspended or superseded.
END QUOTE
.
R v Butterwasser, Court of Criminal Appeal (947)(1948) 1 K.B. 4;63 T.L.R. 463;111J.P. 527;91 S.J.
586;32 Cr App R. 81(1947)ALL E.R. 415
QUOTE HELD
Evidence of the bad character or conviction of an accused person is not generally admissible.
END QUOTE
And
QUOTE
But it is admitted that there is no authority, and I do not see on what principal it could be said, That
if a man does not go into the witness box and put his own character in issue, he can have evidence
given against him of previous bad character when all he has done is to attack the witness for the
prosecution. The reason is that by attacking the witnesses for the prosecution and suggesting they
are unreliable, he is not putting his character in issue; he is putting their character in issue
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END QUOTE
.
QUOTE In the Marriage of Helliar (No 3) 5 FLR 756 at 758/759
That qualification is that the spirit and philosophy of the Family Law Act, as evidenced by s70,
s107, and s114, as well as many provisions aimed at encouraging conciliation, discourage resort
to contempt power where it is appropriate to use other remedies first: Sahari and Sahari (1976)
2 Fam LR 11,126; ALR 679; (1976) FLC 90-086, at 75 and 407;. Legal Practitioners who have
their own duties under the Act, should be loathe to advise the invoking of the contempt power
until all other avenues of compliance or agreement have been reasonably considered and
explored. Never the less cases will remain where invocation of the contempt power is the only
appropriate course. Where such a course is necessary, the relevant procedures must be strictly
complied with.
END QUOTE
.
QUOTE Sahari and Sahari (1976) 2 FLR 11,126 ;ALR 679;(1976) FLC 90-086 at 75,407
On the evidence before me, I am satisfied that the respondent has disobeyed the order of the
Court. Can it be said then, that such disobedience is more than casual or accidental and
unintentional? It seems to me that I cannot be satisfied beyond a reasonable doubt that this is so.
The parties are in dispute about the meaning of the order .... In any event suspicions, however
grave, do not form a sufficient basis upon which a committal for contempt can be made".
However, before the respondent can be committed for contempt, I must be satisfied that
contempt is constituted by 'Willful disobedience ' of a decree.
END QUOTE
.
QUOTE Stancomb v Trowbridge Urban District Council (1910) 2 Ch 190
"On the evidence before me in this case I am satisfied that the respondent has disobeyed the order
of the court. Can it be said then, that such disobedience is more than casual or accidental and
unintentional?. It seems to me that I cannot be satisfied beyond a reasonable doubt that this is so.
The parties are in dispute about the meaning of the order...". "In any event, suspicions, however
grave, do not form a sufficient basis upon which a committal for contempt of court can be made".
END QUOTE
And
QUOTE
However, before the respondent can be committed for contempt, I must be satisfied that
contempt is constituted by ' willful disobedience' of a decree.
END QUOTE
.
Heatons Transports Ltd v TGWU (1972) 3ALL E.R. 101
QUOTE Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164, Griffith CJ.
When an order is made Ex Parte, the court or Judge making it may, upon application of any
person prejudicially affected by the order, review and, if necessary, discharge it. This is a rule of
natural Justice. But, when a judgement or order is pronounced or made after hearing both sides,
it is generally the rule that the Court which pronounced or made the judgement, or made the
order cannot reverse or vary it” Griffith went on to point out that there were exceptions to the
rule.
END QUOTE
.
QUOTE First of Paramount? ' The interest of the Child in Matrimonial Proceedings (1968) 42 ALJ96
Purely as a matter of semantics, the word 'Paramount' in the present context has the effect of
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subordinating all other considerations to the welfare of the child. The expression 'paramount
consideration' is meaningless, except in relation to other subordinate considerations. Other
considerations are therefore not excluded from evaluation by the court, provided they are put in
their proper, that is, subordinate place.
END QUOTE
.
Champion v Champion (1968) 18 FLR 1
.
QUOTE Ingram v Crouch (1979) 5 FLR 326 at 330 (Supreme court of NSW)
Unfortunately the plaintiff and the defendant apparently live some 300 miles apart. I can
appreciate the difficulties in the plaintiff having access periods of less than say a week or more,
but I think that I should make an order which would grant access to the plaintiff on any weekend
that he wishes to have access to the child, provided that he picks up the child at Yamba and
returns him to Yamba on the Sunday evening. No doubt arrangements can be made between the
parties for the precise time of picking up the child and returning him, but I would anticipate that
a reasonable basis for weekend access would be that the child be picked up early Saturday
morning and returned not to late on Sunday evening
END QUOTE
.
QUOTE In the Marriage of Waghorne and Dempster (1979) 5 FLR 503 at 505
It is my respectful view that to suggest that the advocate, whether council or solicitor, has a duty to
express his personal opinion as to the child’s interest or welfare misunderstands the role of an
advocate. Advocacy as understood and practiced in this country demands that the advocate conducts
his clients a case objectively, and without necessarily holding, and certainly not expressing any
personal opinion or view as to the case, or any aspect of it. To permit otherwise would be to fly in
the face of Australian and English understanding of the role of an advocate. So far as counsel are
concerned, the law is that a barrister shall refrain from expressing his personal view or opinion of
the case in court, or from becoming personally involved in any way;
END QUOTE
See Ryers v A.G. (1886) Annual Register 265
See Lord Herschell - The rights and duties of an advocate. p10
.
In the Marriage of Spano (1979) 5 FLR at 506
Capacity of a respondent to pay a lump sum maintenance
.
In the Marriage of J. (1979) 5 FLR 547 at 547 and 548
Injunctions against taking children oversees
.
QUOTE Penfold and Penfold (1980) 5 FLR at 579 High Court
“Presentation of a false Statement of Financial Circumstances, which puts the other party to trouble
and expense of disproving it is a circumstance which justifies an order for costs.”
END QUOTE
.
QUOTE In the Marriage of Tennant (1980) 5 FLR 777 at 780
As no grounds for appeal are required to be specified in the notice of Appeal, which, on filing
institutes the appeal (reg 122), there is no limitations of the scope of the appeal and all findings of
fact and law made in the lower court in relation to the decree appealed are in challenge and cannot
be relied on by the appellant or the respondent. All the issues (unless by consent) must be reheard.
This of course brings me to the point of the absence of reason for the magistrate’s decision in this
case. Perhaps reasons were given orally but not recorded for the record. Apart from the requirement
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of such reason for the purpose of the appeal process, there is the basic ground of criticism that
litigants who go to court, put their witnesses up, argue their case and attempt to controvert the
opposing case are entitled to know, if they lose, why they lost. If they are given no reason they
may be entitled to feel the decision against them was conceived in prejudice, bias, or caprice. In
such a case not only the litigant, but justice itself, is the loser.
Magistrates should realise, even more than they seem to do, that this class of business is not mere
ordinary trivial work, and they should deal with these cases with a due sense of responsibility which
administrations of the summary jurisdiction Act and the far reaching consequences of the orders that
they make thereafter entail. [Baker v Baker (1906) 95 LT 549; In Robinson v Robinson (1898)
p135; and again in Cobb v Cobb (1900) p145] it was stated that when making orders of this kind,
from which lies an appeal to other courts, it is the duty of the magistrate not only to cause a note to
be made of the evidence, and of his decision, but to give the reasons for his decision and to cause a
note to be made of his reasons... Elaborate judgements are not required, but the reasons which lead
the magistrate to make his order must be explicitly stated.
END QUOTE
.
QUOTE In the Marriage of Horman (1967) 5 FLR 796 at 796, 797,798 and 799
HELD The welfare of the child is of paramount importance [Fam. Law Act s64 (1)(a).
A parent should, except in compelling circumstances, be granted access to a child. Roberts v Roberts
(1971) VR 160, approved A parent has no "right" as such to access [M v M (1973) 2 ALL ER 81]
relied upon "The compelling circumstances would be where it not be consistent with the child's
welfare to grant access. [Bennet v Bennet (1973) 2 ALR 19; Chisolm v Chisolm (1966) NSWR
125; Thompson v Thompson (1962) 2 NSWR 534; Innes v Innes (1970) ALR 506} approved {Re
Basant (1879) 11 Ch D 509; Evers v Evers (1972) 17 FLR 296] Relied upon {Campbell v
Campbell (1974) 9 SASR 25] considered.
END QUOTE
.
QUOTE In the Marriage of Rossi (1980) 6 FLR 148, 149 etc.
This case has had an horrific history in this and other courts
END QUOTE
And
QUOTE
But where the continuation of access can only occur in circumstances of conflict and pressure, I must
say my own view is that, that circumstances outweighs the general or theoretical advantages that
access is otherwise said to have...
END QUOTE
And
QUOTE
In some cases, that circumstance may, with others, call for reconsideration of the custodial position.
But in the majority of cases that is not really a viable alternative, and in the latter situation, in my
view real weight should be given to the real welfare of the child, and that in most cases would compel
a situation where access is suspended or terminated.
END QUOTE
.
QUOTE In the Marriage of K. and M. Hughes (1977) 6 FLR at 2005 Note 6
If the conduct of the non-custodian parent during access periods has the effect of undermining the
stability of the relationship between the child and the custodial parent, or there is a real risk or
likelihood that such conduct will occur, or there is a likelihood or real possibility that orders
governing conditions of access will either be flouted or ignored by the non custodial parent
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without regard to the effect upon the child or child's relationship with the custodial parent, then the
court must protect the ongoing relationship with the custodial parent and the child particularly
where that relationship is both emotionally stable and environmentally secure, by suspending
access or in appropriate case refusing access altogether.
END QUOTE
.
QUOTE De Vires v Wilkens (1980) 6 FLR 2009 Note 15
HELD: "If ex-nuptial children are to placed in the same position as lawful children, as far as possible,
then the procedure in affiliation actions should be the same as in other ancillary actions under the
Family Law Act."
END QUOTE
.
QUOTE R. Watson; Ex Parte Armstrong: Full Court of the HIGH COURT: (1976) 1 FLR 11, 297;
9 ALR 551;(1976) FLC 90-059
exercises judicial power and must discharge his duties judicially.
END QUOTE
This about a judge of the Family Court, even so having the ability of exercising a very wide discretion (ref
R108 (2))
.
QUOTE Evans v Bartlam (1937) AC 473
The courts however, have laid down for themselves rules to guide them in the normal exercise of
their discretion. One is that where the judgement was obtained regularly there must be an affidavit
of merits, meaning that the applicant must produce to the court evidence that he has a prima facie
defense. It was suggested in argument that there is another rule that the applicant must satisfy the
court that there is reasonable explanation why judgement was allowed to go by default, such as
mistake, accident, fraud or the like. I do not think that any such rule exist, though the reason, if any,
for allowing judgement and thereafter applying to set it aside is one of the matter to which the court
will have regard in exercising its discretion. If there were a rigid rule that no one could have a
default judgement set aside who knew at the time and intended that there should be a judgement
signed, the two rules would be deprived of most of their efficiency. The principal obviously is that
unless and until the court has pronounced a judgement upon the merits or by consent, it is to have
the power to revoke the expression of its coercive power where that has only been obtained by a
failure to follow any rules of procedure. But in any case in my opinion the court does not, and I
doubt whether it can, lay down rigid rules which deprive it of jurisdiction. Even the first rule as to
affidavit of merits could, in no doubt rare but appropriate cases, be departed from.
END QUOTE
.
QUOTE In the Marriage of Sandilands (1979) FLR 882 at 886
The whole tenor of the total passage from his honour's judgement which I have quoted in two parts
is, in my opinion, that despite the use of the word 'willfully' in the relevant rule of court, civil
contempt is constituted by any breach of the relevant order or undertaking, provided that such
breech was not merely casual or accidental or intentional, and that it is not necessary that there be
any deliberate disobedience such as could be categorised as contumacious, the same position obtains
under S108 of the Family Law Act and it is not necessary to establish the breach which is alleged to
constitute the contempt in question was both willfully and contumacious."
"He was in court when the order of Bully J. was made and his undertaking given. He was legally
represented at the time, and nowhere in his evidence, either on affidavit or orally, did he say that the
nature of his undertaking and the obligations which they impose on him were not fully explained to
him by his then solicitor. In the absence of such denial I infer that they were.
END QUOTE
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.
In the Marriage of Mathiesen (1977) 6 FLR at 127
.
R v Cook; Ex Parte Twigg (1980) 6 FLR at 161
.
In the Marriage of Ensabella (1980) 6 FLR at 174
.
QUOTE R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
However in some cases the words or conduct of a judge may be such as to lead the parties
reasonably to think that the judge has prejudged an important question in the case, and then
prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly
conclude that the judge may reasonably be suspected of bias in this sense; it must be "firmly
established" that such a suspicion may reasonably be engendered in the minds of the parties or the
public, as was made clear by the court in R v Commonwealth Conciliation and Arbitration
Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553-4, in the passage cited in R v
Watson; Ex Parte Armstrong (132 CLR at 262).”
“The critical question, however, is not whether a judge believes he or she has prejudged a question,
but whether that is what a party or the public might reasonably suspect has occurred (see per Lord
Denning MR in Metropolitan Properties Co. (FGC Ltd v Lannon (1969) 1 QB 577 at 599, a
judgement cited with approval by this court in R v Commonwealth Conciliation and Arbitration
Commission; Ex Parte Angliss Group (1969) 122 CLR 546 at 553; In some circumstances
repeated denials of prejudging might well convey the impression of "protesting to much...
END QUOTE
.
QUOTE In the Marriage of Attreed (9180) 6 FLR 453 and 456 Held –
In relation to a charge of contempt, there is an onus of proof upon the applicant to establish each
element of the offence beyond reasonable doubt. One such element is that the offence was
committed knowingly and without reasonable cause or excuse. The respondent is not required to
establish on the balance of probabilities that he had just cause or excuse.
In my view the husband has only to satisfy me on the civil standard of proof
END QUOTE
.
In the Marriage of Rice and Asplund (9178) 6 FLR at 570 and 572
.
QUOTE In the Marriage of Woolley (1981) 6 FLR 577 Held –
The rate of maintenance should be assessed not merely in the light of the standard of living to which
the parties were accustomed before separation, but also the needs of the wife and the current
lifestyle of the husband should be considered.
END QUOTE
.
QUOTE In the Marriage of Dew-Sainter (1979) 6 FLR at 684 Held –
The husbands financial capacity in the Future, including his relatively assured financial future with
respect to superannuation, should have to be considered.
END QUOTE
.
In the Marriage of Buckeridge (1981) 6 FLR 718
.
QUOTE In American Cyanamide v Ethicon Ltd. (9175) AC 396 at 405 and 407
..The object of the interlocutory injunction is to protect the plaintiff against injury by violation of
his right for which he could not be adequately compensated in damages recoverable in the action
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if the uncertainty were resolved in his favour at the trial; But the plaintiff's need for such
protection must be weighed against the corresponding need of the defendant to be protected
against injury resulting from his having been prevented from exercising his own legal rights for
which he could not adequately be compensated under the plaintiff's undertaking in damages if
the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one
need against the other and determine where the 'balance of convenience' lies
END QUOTE
And
QUOTE at 407
The court must be satisfied that the claim is not frivolous or vexatious; in other words, that there is
a serious question to be tried.
END QUOTE
.
In the Marriage of Stowe (9180) 6 FLR at 758
.
In the Marriage of Sieling (1979) 24 ALR 357; 4 FLR 713(1979) FLC 90,627/628
.
George v Nolan (9180) 6 FLR 2001
.
QUOTE Re: Sidebotham (1880) 14 Ch D 458 James LJ
A person aggrieved must be a man who has suffered a legal grievance, a man against whom a
decision has been pronounced which has wrongfully deprived him of something or wrongfully
refused him something, or wrongfully affected his title to something.
END QUOTE
.
QUOTE Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617
But the definition of James LJ is not to be regarded as exhaustive. Lord M R pointed out in Ex
Parte Official Receiver, re Reed Bowen and Co. (1887) 19 QBD 174 at p178. The words person
aggrieved are of wide import and should not be subjected to a restrictive interpretation. They do not
include, of course, a mere busy body who is interfering in things that do not concern him; but they
do include a person who has a grievance because an order was made which prejudicially affects his
interests.
END QUOTE
.
QUOTE In R v Hall (Warwick & Asizes, 1-4-1845. Maule J.) (1845)
Be it so; yet you had no right to take the law into your own hands, I will tell you what you ought to
have done, and if you did know, I will tell you that the law conclusively presumes that you did.
END QUOTE
.
QUOTE Farrelley v Farrelley 9 ALR Full Court of the High Court at 138 Mason J –
The marriage power enabled the commonwealth to provide for the enforcement of such rights,
duties and obligations as may be created in exercising of the marriage power.
END QUOTE
.
QUOTE Martins v Fowler (1926) AC 746
Headings are not in my opinion mere marginal notes but the sections & group to which they belong
must be read in connection with them" (per GRIFFIN CJ in Saunders v Borthisle (1904) 1 CLR
379 at 389) where an act is divided into parts or heads it is PRIMA FACIE to be presumed that
those heads were intended to indicate a certain group or clauses relating to a particular subject, and
the court will not hold that a clause in a group relating to one subject matter was intended to apply
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to another matter in another part of the act, unless such intention is clear; The PRIMA FACIE object
of the division is to enable everybody who reads the act to discriminate as to what clauses relate to a
particular subject matter;
END QUOTE
.
QUOTE Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith CJ.)
It is necessary, in construing an act which alters the law, to inquire what was the state of the law
before the alteration was made, what was the mischief intended to be remedied, and what was the
nature of the remedy provided.
END QUOTE
.
QUOTE In Constantine v Guilfoyle (1915) 32 W.N. (N.S.W.) 74 per Fergusson
No doubt it is the duty of the court to look at the object of an act in determining what is the meaning
of the language which the legislature had used; but it is no part of the duty of the court to endeavour
to carry out that object by making something an offence which the legislature itself has not made an
offence.
END QUOTE
.
QUOTE Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
This court however must take the act as it finds it, and cannot do violence to its language in order to
bring within its scope, cases, which although within its mischief are not within its words.
QUOTE Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)
The act should be construed according to its intention of the legislature. Where the legislature has
stated the mischief for which the common law did not provide, consideration of the nature and
extent of that mischief is relevant to the interpretation of the act.
END QUOTE
.
QUOTE Dowling v Dowling, Exchequer (Ireland) (1869) 10 ICLR 236
Facts showing the circumstances and position of the parties whose conduct is in question are
generally relevant to such conduct. So, evidence of opportunity is relevant to the question whether a
certain act was done. Circumstantial evidence is admissible not only in the absence of direct
evidence, but also in aid of direct evidence.
END QUOTE
.
QUOTE Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
That case (a previous decision of the High Court, Foggit, Jones & Co v NSW (1915) 21 CLR
357) was very briefly, and I regret to say, insufficiently argued and considered on the last day of
the Sydney sitting..... The arguments which now commend themselves to me as conclusive did not
find entrance to my mind. In my judgment that case was wrongly decided, and should be overruled.
END QUOTE
.
QUOTE Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
The oath of a justice of this court is ' to do right to all manner of people according to law' Our
sworn duty is to the law itself and to the organic nature of the constitution first of all. If, then, we
find the law to be plainly in conflict with what we or any of our predecessors errornously thought
it to be, we have, as I conceive no right to choose between giving effect to the law, and
maintaining an incorrect interpretation, It is not, in my opinion, better that the court should be
persistently wrong than that it should be ultimately right..
Whatever else may be said with respect to previous decisions - and it is necessary here to
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consider the principals upon which a court should act in particular cases - so much at least
emerges as is undoubtedly beyond challenge, that where a former decision is clearly wrong, and
there are no circumstances countervailing the primary duty of giving effect to the law as the
court finds it, the real opinion of the court should be expressed.
END QUOTE
And
QUOTE
In my opinion, where the prior decision is manifestly wrong, then, irrespective of the
consequences, it is the paramount and sworn duty of this court to declare the law truly....
END QUOTE
.
QUOTE Braddock v Tillotson's Newspapers Ltd.; Court of Appeal (1949)(1950) 1KB 47 (1949) 2
ALL E.R. 306;65 T.L.R. 553: 93 S.J. 464
Leave to call fresh evidence on appeal in relation to an issue will be granted only when the
evidence could not reasonably have been discovered before the trial, and would probably have
led to a different result. When the fresh evidence relates to the credit of a witness, its effect must
be more certain.
END QUOTE
.
QUOTE Grey v Pearson (1857) 6 H.L.C. (per Lord Wensdayle)
In construing wills and indeed, statutes and all written documents, the grammatical and ordinary
sense of the word is to be adhered to unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which case the grammatical or
ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency but
no further.
END QUOTE
.
QUOTE Abley v Dale (1850) 20 L.J.C.P. 35 (per Jervis C.J.)
We assume the function of legislation when we depart from the ordinary meaning of the precise
terms used, merely because we see, or fancy to see, an absurdity or manifest injustices from an
adherence to their literal meaning
END QUOTE
.
QUOTE Camden Marquis v Inland Revenue Commissioners (1914) 1 KB 641 (per Latham C.J.)
In Bendixon v Coleman (1945) 68 CLR 401 at 415
Stitt v Radford (1926) 26 SR (NSW) 263 at 265 43 WN at 75
Re Rippon housing confirmation order 1938
White v Minister for Health (1939) 2 KB 838
The court takes judicial notice of the meaning of ordinary words, and evidence is not admissible to
expound their meaning; though the court, in addition to using its own knowledge, may refer to
standard authors and authoritative dictionaries in order to obtain assistance in interpretation.
END QUOTE
.
QUOTE Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
The golden rule of construction is, that words are to be construed according to their natural
meaning, unless such a construction would render them senseless, or would be opposed to the
general scope and intent of the instrument, or unless there is some cogent reason of convenience
in favour of a different interpretation.
END QUOTE
.
FORM
LIST of AUTHORITY
QUOTE Maxwell, Interpretation of Statutes 8th Ed. p2;
Hotel Kingston Ltd. v Federal Commissioner of Taxation (1944) 69 CLR 221; 28 Austin
Digest 752
The first and most elementary rule of construction is that it is to be assumed that the words and
phrases are to be used in their technical meaning if they have acquired one and in their popular
meaning if they have not, and that the phrases and sentences are to be construed according to the
rules of grammar; and from this presumption it is not allowable to depart, where the language
admits to no other meaning, nor, where it is susceptible of another meaning, unless adequate
grounds are found, either in the history or cause of the enactment or in the context or in the
consequences which would result from the literal interpretation, for concluding that that
interpretation does not give the real intention of the legislature.
END QUOTE
.
QUOTE Sorell v Smith (1925) Lord Dunedin in the House of Lords
In an action against a set person in combination, a conspiracy to injure, followed by actual
injury, will give good cause for action, and motive or instant where the act itself is not illegal is
of the essence of the conspiracy.
END QUOTE
.
QUOTE In the Marriage of P.N. and J.S. Axtell 7 FLR 931
The test of judicial bias as laid down by the high court is ‘whether it has been established that it
might reasonably be suspected by a fair minded person that the judge might not resolve the
question before him with a fair and unprejudiced mind’
END QUOTE
And
QUOTE
An appellated court has to consider whether on a reading of a transcript it should conclude that a
fair minded person would consider that the husband did not have a fair hearing and that the
issues raised by his case were not fairly considered.
END QUOTE
Official Solicitor v K. (1936) AC 201;
Reynolds v Reynolds (1975) 1 ALR 318;47 ALJR 501;
Corbett v Corbett (1953) 2 ALL E.R. 69 referred to
That a court of appeal in exercising its discretionary power to rectify a miscarriage of justice should not
permit a conceivable miscarriage of justice to occur, particularly in relation to a custody case which is
concerned with the question of the right of children.
.
QUOTE Re: Neeld, Ingles-Jones v Ingles-Jones (1969) 2 ALL E.R. 1025 at 1028
I begin with the word family. Certain authorities have been put before me on the use of the word
adjectively, as in family mansion; but I think that by common consent these authorities are to be
regarded as standing some distance away from what I have to decide. The word appears in many
combinations, from family jewels, and family home to family tree, family history and even
family way. I think it is a Janus like word, often looking backwards ancestrally, but sometimes
looking forward to posterity. In relation to arms, I can see no real reason why the word should be
used merely ancestrally, especially when it is said to exclude the maternal line and apply only to
the paternal line. It seems to me that the function of the word is far more general than that.
Counsel for the first, second and third defendants contended that its function was to indicate arms
that were descendible. Arms could be said to be Family arms if they were arms that had been
lawfully granted as to descend to the grantee's family. The terms thus excludes arms unlawfully
assumed, which were not descendible, and also arms granted to the grantee alone without any
FORM
LIST of AUTHORITY
limitations to his descendants... This explanation appears to me to satisfy the requirements both
of technical accuracy and of ordinary usage, and I accept it.
END QUOTE
.
QUOTE R v National Liquors Ltd. (1922) 2 AC at 156; (1922) ALL ER Rep at p 351
Its jurisdiction is to see that the inferior court has not exceeded its own, and for that very reason
it is bound not to interfere in what has been done within that jurisdiction for in doing so it would
itself, in turn, transgress the limits within its own jurisdiction of supervision, not of review, is
confined. That supervision goes to two points; one is the area of inferior jurisdiction and the
qualifications and conditions of its exercise; the other is the observance of the law in the course
of its exercise.
END QUOTE
.
QUOTE Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997 (1968) 1 ALL ER
694 House of Lords - Lord Upjohn and Lord Hodson Upjohn: - (Irrelevant consideration)
Here let it be said at once, he and his advisers have obviously given a bona fide and painstaking
consideration to the complaints addressed to him; the question is whether the consideration was
sufficient in law.
END QUOTE
.
QUOTE In the marriage of Smith v Saywell (1980) Fam LR 6 245 at 258
Where a case pending in a federal court other than the HIGH COURT or in a court of a state or
territory involves a matter arising under the Constitution involving its interpretation, it is the duty of
the court not to proceed in the cause unless and until the court is satisfied that notice of the cause,
specifying the nature of the matter has been given to the Attorney General of the commonwealth
and (a) if the cause is pending in a court of a state - to the Attorney General of that state; or (b) if the
cause is pending in a Federal court and was initiated in a state - to the Attorney General of that state,
and for a reasonable time elapsed since the giving of the notice for consideration by that Attorney
General or by those Attorney General, of the question of intervention in the proceedings or the
removal of the cause to the HIGH COURT.
END QUOTE
.
QUOTE Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362
Not inexact proof, indefinite testimony or indirect inference (By prosecution)
END QUOTE
.
QUOTE Re: Ratten (Vic Full Supreme Court) (1974) VR201 at 214
Fair Trial Present Evidence
END QUOTE
.
QUOTE The Victorian Police Guide Fifth Ed. 1969 P156 2nd last Paragraph:
Accordingly where the person does not regularly plead guilty, all the material allegations of fact
and of law are put in issue or in question
END QUOTE
.
.
1. DICTIONARY’S
1.1. WEBSTER'S Unabridged dictionary 1953 edition
1.1. The word ‘Fair’’, according to the Webster's unabridged dictionary (1953 edition) in the
FORM
LIST of AUTHORITY
4th definition of the adjective of the word, means Open; Frank; Honest; hence, equal;
Just; equitable; impartial; as, his offer is fair. and in the 5th definition
1.2. The adjective 'reasonable' in that same dictionary, again the 4th definition, means not
immoderate; not excessive; not unjust; tolerable; moderate.
1.3. The adjective 'competent' in the same dictionary, the second definition, means Having
ability or capacity; duly qualified; as, a competent workman.
2. "The Constitution" of Australia

2.1. (Chapter 1)
2.1.1. A man has the right to be presumed innocent until proven guilty
2.1.2. A man has the right to defend himself
2.1.3. A man has the right to a fair trial
2.1.4. A man has the right to express his opinion
2.1.5. A man has the right to the freedom of speech
2.1.6. A man has the right to love his child
2.2. Chapter 12 s63and s64 Victoria
2.2.1. s75 (III)
3. Commonwealth of Australia Constitution Act (1900) s118
3. "Rules of the Family Court of Australia"

3.1. Order 23A Rule 2(b)
3.2. Order 32 Rule 4
4. Family Law Act of 1975

4.1. S4 (1) "made"
5
4.2. s60H (2)
4.3. s66A (1)
4.4. s114 (3)
4.5. s117
5. Legal Principals.
5.1. Marriage of Baines (No. 2) (1981) 7 Fam LR 232 at 237;-
5.1.1. Marriage of Baines (1981) 7 Fam LR 226 at 229
5.2. In Preston Ice and Cool Stores Pty Ltd. v. Hawkings (1955) V.L.R. 89; (1955) Austin Digest
337.
5.3. Dimes v. Proprietors of the Grand Junction Canal (1852) 3 II, L.C. 759
5.4. In Re O (infants) (1971) Ch 748,754 and 755
5.5. Foster (1950) S.R. (N.S.W.) 149, at p151 (Lord Denning, speaking on the role of an advocate)
5.6. Taylor v. Taylor (1979) Fam LR 5, 289289 at 290 298 and 300 HIGH COURT OF
AUSTRALIA.
5.7. R.V. Crimmins (1959) VR 270
5.8. Bringinshaw v Bringinshaw (1938) 60 CLR 336 at 361,362
5.9. Re: Ratten (Vic Full Supreme Court) (1974) VR201 at 214
5.10. Byrne v Byrne (1965) 7 FLR 342 at 343
5.11. The Victorian Police Guide Fifth Ed. 1969
5.12. Schorel v Elms (1994) Unreported M2944X of 1989 SA27 of 1993
5.13. Neil v Nott (1994) 68 ALJR 509 at 510 (High Court)
5.14. Ambard v Att Gen for Trinidad and Tabaco (1939) AC 322 at 335
5.15. Magna Carta Charter (Chapter 29)(1115)
FORM
LIST of AUTHORITY
5.16. In the marriage of D.J. and E.M. Cavanough (1980) FLR 6 Note 3
5.17. Marginson v Blackburn Borough Council (1939) 2 KB 426
5.18. Chapman v Palmer (1978) 4 FLR 462 at 469 (Full Court)
5.19. Bowers v Smith (1953) 1 ALL ER 320 (Re Clarke Hall) and (Morrison on Children, 7 Ed, P3)
5.20. R v Butterwasser, Court of Criminal Appeal (947)(1948) 1 K.B. 4; 63 T.L.R. 463; 111J.P. 527;
91 S.J. 586; 32 Cr App R. 81(1947) ALL E.R. 415
5.21. In the Marriage of Helliar (No 3) 5 FLR 756 at 758/759
5.22. Sahari and Sahari (1976) 2 FLR 11,126; ALR 679;(1976) FLC 90-086 at 75,407
5.23. Stancomb V Trowbridge Urban District Council (1910) 2 Ch 190
5.24. Heatons Transports Ltd v TGWU (1972) 3ALL E.R. 101
5.26. Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164, Griffith CJ.
5.27. In the Marriage of E (No. 2) (1979) 5 FLR, 244 AT 245
5.28. In the Marriage of E (No. 2) 1978) 5 FLR, 244 at 244
5.29. Anderson v Anderson (1960) 34 ALJR 65 at 66 High Court (Joint Statement by Dixon CJ;
McTierman; Kitte; Menzies JJ)
5.30. First of Paramount? ' The interest of the Child in Matrimonial Proceedings (1968) 42 ALJ 96
5.31. Champion v Champion (1968) 18 FLR 1
5.32. Ingram v Crouch (1979) 5 FLR 326 at 330 (Supreme court of NSW)
5.33. Paleopoules v Paleopoules; Ex Parte Bank of N.S.W savings bank Ltd. (1979) 5 FLR 461
5.34. In the Marriage of Waghorne and Dempster (1979) 5 FLR 503 at 505
5.35. In the Marriage of Spano (1979) 5 FLR at 506
5.36. On the Marriage of J. (1979) 5 FLR 547 at 547 and 548
5.37. Penfold and Penfold (1980) 5 FLR at 579 High Court
5.38. In the Marriage of P.W. and A.J. Hall (1979) 5 FLR 609
5.39. In the Marriage of Tennant (1980) 5 FLR 777 at 780
5.40. In the Marriage of Horman (1967)5 FLR 796 at 796, 797,798 and 799
5.41. Barnett v Barnett (1973) 2 ALR 19 at 25
5.42. Re: Basant (1879) 11 Ch D 509 at 521
5.43. In the Marriage of Rossi (1980) 6 FLR 148, 149 etc.
5.44. In the Marriage of K. and M. Hughes (1977) 6 FLR at 2005 Note 6
5.45. De Vires v Wilkens (1980) 6 FLR 2009 Note 15
5.46. White v Haymes (1981) 6 FLR 2011 Note 19
5.47. Clackson v Clackson (1972) 19 FLR 112 at 114
5.48. Full Court of the HIGH COURT: R. Watson; Ex Parte Armstrong (1976) 1 FLR 11, 297; 9 ALR
551;(1976) FLC 90-059
5.49. Evans v Bartlam (1937) AC 473
5.50. Order 36 Rule 26 High Court Rules
5.51. In the Marriage of J. and E. Wilks (9181) 7 FLR 58 at 66 and 67
5.52. Lee v Clarke (1981) 7 FLR 258
5.53. T. v J.(1981) 6 FLR 852 and 857
5.54 In the Marriage of Sandilands (1979) FLR 882 at 886
5.57. Hayman (1976) 6 FLR 570; FLC 75,679 and 680
5.58. In the Marriage of Mathiesen (1977) 6 FLR at 127
5.59. R v Cook; Ex Parte Twigg (1980) 6 FLR at 161
5.60. In the Marriage of Ensabella (1980) 6 FLR at 174
5.61. R v. Lusink and another; Ex Parte Shaw (1980) 6 FLR 235 and 236
5.62. R v. Lambert; Ex Parte Plummer (1980) 6 FLR 355, 356 and 361,362 High Court
5.63. General Rules of Procedure in Civil Proceedings 1986 Supreme Court Act 1958
5.64. In Re: Ross-Jones; Ex Parte Beaumont (1979) 4 FLR 598 at 601; 23 ALR 179
(1979) FLC 90,606 at 78 and 102
FORM
LIST of AUTHORITY
5.65. Re: Fegen (1980) 5 FLR 813,814 and 822
5.66. In the Marriage of Attreed (9180) 6 FLR 453 and 456
5.67. In the Marriage of Asplund (9178) 6 FLR at 570 and 572
5.68. In the Marriage of Woolley (1981) 6 FLR 577
5.69. In the Marriage of Dew-Sainter (1979) 6 FLR at 684
5.70. McKee v McKee (1951) AC 352
5.71. In the Marriage of Buckeridge (1981) 6 FLR 718
5.72. In American Cyananmid v Ethicon Ltd. (9175) AC 396 at 405 and 407
5.73. In the Marriage of Stowe (9180) 6 FLR at 758
5.74. In the Marriage of Sieling (1979) 24 ALR 357; 4 FLR 713 (1979) FLC 90,627/628?
5.75. Parry v Cooks (9180) 6 FLR 824 at 824 and 827
5.76 T v J(1981) 6 Fam LR 852 at 857
5.76. George v Nolan (9180) 6 FLR 2001
5.77. Re: Sidebotham (1880) 14 Ch D 458 James LJ
5.78. Privy Council in Att Gen of Gambia v N'Jie (1961) AC 617
5.79. In Re: Rudolf and a Solicitor (9178) 5 FLR 898 at 900
5.80. In Crotty v Clarke (1896) 22 VLR 22
5.81. Children and Young Persons Act 1989 s109 (ref s99, 100,101,102,103,105)
5.82. In R v Hall (Warwick & Asizes, 1-4-1845. Maule J.) (1845)
5.84. Farrelley v Farrelley 9 ALR Full Court of the High Court at 138
5.85. Martins v Fowler (1926) AC 746
5.86. Weeden v Davidson (1907) 4 CLR 895 at 898 (per Griffith C.J.)
5.87. In Constantine v Guilfoyle (1915) 32 W.N. (N.S.W.) 74 per Fergusson
5.88. Ex Parte Lovell; Re Buckley (1938) 38 S.R. N.S.W. 155 at 158; 55 W.N. 63 Jordan C.J.
5.89. Woolworths v Crotty (1942) 66 CLR 603 at 618 (per Latham CJ)
5.91. Dowling v Dowling, Exchequer (Ireland) (1869) 10 ICLR 236
5.92. Duncan v Queensland (1916) 22 CLR 556, 582 (per Griffith C.J.)
5.93. Australian Agricultural Co Ltd. v F.E.D.F.A of Australasia (1913) 17 CLR 261 and 278
5.94. Braddock v Tillotson's Newspapers Ltd.; Court of Appeal (1949)(1950) 1 KB 47(1949) 2 ALL
E.R. 306;65 T.L.R. 553: 93 S.J. 464
5.95. Grey v Pearson (1857) 6 H.L.C. (per Lord Wensdayle)
5.96. Abley v Dale (1850) 20 L.J.C.P. 35 (per Jervis C.J.)
5.97. Camden Marquis v Inland Revenue Commissioners (1914) 1 KB 641 (per Latham C.J.)
5.98. Powell v Trantor (1984) 3 H & C 458 at p461 (159 E.R. 610 at 611)
5.99. Maxwell, Interpretation of Statutes 8th Ed. p2; Hotel Kingston Ltd. v Federal Commissioner of
Taxation (1944) 69 CLR 221; 28 Austin Digest 752
5.100. Sorell v Smith (1925) Lord Dunedin in the House of Lords
5.101. In the Marriage of P.N. and J.S. Axtell 7 FLR 931
5.102. Official Solicitor v K. (1936) AC 201; Reynolds v Reynolds (1975) 1 ALR 318; 47 ALJR 501;
Corbett v Corbett (1953) 2 ALL E.R. 69 referred to
5.103. Butterworth's "Words and Phrases" legally defined Australian Issue
5.104. Re: Neeld, Ingles-Jones v Ingles-Jones (1969) 2 ALL E.R. 1025 at 1028
5.105. Armah v Government of Ghana (1968) AC at 234; (1966) 3 ALL ER at 187
5.106. R v National Liquors Ltd. (1922) 2 AC at 156; (1922) ALL ER Rep at p 351
5.107. Padfield v Minister of Agriculture & Fisheries and Food (1968) AC 997; (1968) 1 ALL ER 694
House of Lords - Lord Upjohn and Lord Hodson
5.108. Chester v The Council of Municipality of Waverly (1939) 62 CLR 1 sup, 22
5.109. Smith v Leurs (1945) 70 CLR 256;(1945) ALR 392 High Court
FORM
LIST of AUTHORITY
5.110. Chandler v Crane, Christmas and Co. (1951) 2 KB 164;(1951) ALL ER 567
5.111. The Standard Penal Code of the State of California (1965) s 1074
5.112. Donoghue's Case (1932) ac 562 508 -1; Lord Atkin
5.113. Woods v Martins Bank (1959) 1QB 55; (1958) 1 WLR 1018; (1958) 3 ALL ER 166
5.114. Rookes v Bernard (1948) AC 1129 House of Lords- Lord Devlin
5.114. National Bank of Greece v Metliss (1958) AC 509 and 525 Viscount Simonds
5.116. Dun v Dun (1957) 31 ALJ 825 - High Court
5.117. Chapman v Pickersgill (1762) 2 Wils 146; 95 ER 734 Pratt C.J.
5.118. Grant v Australian Knitting Mills Ltd Privy Council (1935) (1936) AC 85
5.119. House of Lords (1966) Lord Gardiner (Reported 1966) 1 WLR 1234
5.120. Fifoot, Judge and Jurist in the reign of Queen Victoria (1959) pp130, 131
5.121. Everett v Ribands (1952) 2 KB 198 at 206 Denning L.J.
5.122. Ex Parte Bellante Re: Prior (1963) 63 S.R. (N.S.W.) 190
5.123. Re: London Scottish Permanent Building Society (1893) 63 LJ (QB) 112 at p113
5.124. In R v North; Ex Parte Oakley (1927) 1 KB 491 Scrutten J.
5.124. Racecourse Betting Control Board v Secretary of State for Air (1944) Ch
at p119; (1944) 1 ALL ER at p61 - Lord Green HR Court of Appeal
5.125. Walsell Overseers v London and North Westers Ry Co. (1978) 4 App Cas
30 at p39 Lord Cairns L.J.
5.127. Duke of Athell v Reads, Kings Bench Division (1934) 2 KB 92
5.128. Justice Act 1958 s89
5.129. Justice Act 1958 Ch III Regulation 4
5.130. Imperial Acts Application Acts (1922) No. 3270 Ref. Div 14 and s4 Part II
5.131. 34 EDWARD III c.1
5.132. 25 EDWARD III St v c.II
5.133. R v Sharky (1949) 79 CLR 121 at 163 Webb J.
FORM
LIST of AUTHORITY
5.134. Kuebler v Kuebler (1978) 4 FLR No. 4; (1978) FLC 90,434
5.135. Donoghue v Stevenson (1938) AC 562, supra, p106
5.136. In the River Water Commission v Adamson 2 App. at p763
5.137. Bowers v Smith (1953) 1 ALL ER 320
5.138. Royal Commission on the Constitution; Evidence, p773; P.B. Phillips
5.139. Taylor v Taylor (1979) FLC 90,674 at pp78,589-90,78,594-95;

Byrne v Byrne (1965) 7 FLR 342 at P343
6. Cross Reference
6.1. ADVOCATES
6.2. Advocacy
6.3. Aggrieved
6.4. Appeals
6.5. Applications
6.6. Access
6.7. BIAS
6.8. Compatibility of Acts
6.9. Constitution
6.10. Constitutional Rights
6.10.1. Presumption of Innocence
6.10.2. Defend oneself
6.10.3. Fair Trial
6.11. RIGHTS
6.11.1. Opinion
6.11.2. Speech
6.11.3. Love of Children
6.12. Cautious
6.13. Child Welfare
6.14. Contempt
6.15. Consent
6.16. Custody
6.17. Costs
6.18. Duty of Care
6.19. Distance
6.20. Evidence
6.21. FAIRTRIAL
6.22. Facts (Showing Circumstances
6.23. Fraud / False Evidence
6.24. In Junctions Interim Interlocutory
6.25. Irrelevant Considerations
6.26. JUDICIAL DISCRETION
6.27. Jurisdiction
6.28. Life Style
6.29. Maintenance
6.30. Miscellaneous
FORM
LIST of AUTHORITY
6.31. Natural Justice
6.32. Object of Act, Meaning of words,
6.33. Overruling Previous decision
6.34. Onus of Appellant
6.35. Orders
6.36. Putative Spouse
6.37. Party a Fresh Evidence Ex Parte
6.38. Psychological Tests
6.39. Prohibition (Injunctions)
6.40. RES JUDICATA
6.41. Taking the law into his own hands
6.42. Until Further Orders
6.43. WELFARE OF CHILD
6.44. Welfare reports (admissibility)
6.45. Witnesses
1. Dictionaries - (A = Websters 1953 Ed.) (B = Oxford) (C-= McQuarie)
1.4. Care
(A2) Provident; attentative to support and protect;
(A3) Watchful: Cautious: Giving good heed: as, be careful to maintain good works
1.5. Case
(A4) In the third instance of the word - A cause or suit in court
(B3) In the first instance of the word - Cause, Suit, for trial; Statement of facts in cause
drawn up for consideration by higher court; cause that has been decided
1.8. Circumvented
(A) To gain advantage over by stratagem or deception; To delude; to impose on.
1.11. competent
The second definition, means having ability or capacity; duly qualified; as, a competent
workman.
1.12. Constitution
(A3) The established form of government in a civil state; A system of rules, principals and
ordinances, for the government of a state or nation
(B2) ...; body of fundamental principals according to which a state is governed (Encl.) the
highest order of law defining the offices, powers, and procedures operative within a political
system.
1.13. Contempt
(A3) Disobedience to the rules orders or processes of a court or assembly
(B) ...; disobedience or open disrespect to authority or lawful commands of sovereign.
1.18. Duty
(A1) That by which a person is bound, by any natural, moral, or legal obligation, to pay, do, or
FORM
LIST of AUTHORITY
perform.
(A2) The natural, moral, or legal obligation, to follow a certain line of conduct, or to do a certain
thing; The force by which such obligation controls one's will or actions; as the struggle between
duty and desire.
(B3) Action, Act, due in way of moral or legal obligations.
1.19. Equal
(A) see three definitions in dictionary
The same in number, size value, and degree etc.; having strength, courage, ability etc; adequate
(to occasion); uniform in operation;
1.20. Express
A(1) Adjective - Given in direct terms; not implied or left to inference; clearly expressed; not
ambiguous; plain;
(A3) Verb - To communicate or set forth to the understanding or notice; to manifest plainly by
speech or written language; to show in general; to make known; to exhibit or indicate, as, a
state of mind or an impression, by a gesture, look, or the countenance;
(B2) Verb - ...;...; Represent in language, put into words;
1.21. Fair
The word “Fair”, according to the Webster's unabridged dictionary (1953 edition) in the 4th
definition of the adjective of the word, means Open; Frank; Honest; hence, equal; Just; equitable;
impartial; as, his offer is fair, and in the 5th definition of the word Moderately or passably good,
but not excellent; Free from serious defects; Nearly or fully up to the average; as, He gets a fair
salary; He has a fair reputation.
1.45. Reasonable
The 4th definition, means not immoderate; not excessive; not unjust; tolerable; moderate.
2. "The Constitution" of Australia

2.1. (Chapter 1)
2.1.3. A man has the right to a fair trial
2.1.4. A man has the right to express his opinion
2.1.5. A man has the right to the freedom of speech
3. Commonwealth of Australia Constitution Act (1900) Section 118

Full Faith and credit shall be given, throughout the Commonwealth to the laws, the public acts
and records. and the judicial proceedings of every State.
Section 71
Preamble to the Act
Schedule 1
Section xx Judges Oath
3. "Rules of the Family Court of Australia"
3.1.1 Order 31 Rule 4

The order shall state that it is made by consent and shall be of the same force and validity as if it
had been made after a hearing by the court.
FORM
LIST of AUTHORITY
3.1.2. Order 31 Rule 5
Except where the court or a registrar otherwise directs, all decrees, warrants and recognizances
made under the act, the regulations or these rules shall be drawn up and signed by the registrar of
the filing registry
Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL

for judgment IN THE CAUSE, SESSION 2005-06 [2005] UKHL 42 on appeal from: [2003]
EWCA Civ 168
QUOTE
Dicey & Morris, The Conflict of Laws, 9th ed (1973), p 96:
"It has been held that a domicile of choice cannot be acquired by illegal residence.
The reason for this rule is that a court cannot allow a person to acquire a domicile
in defiance of the law which that court itself administers."
END QUOTE

EWCA Civ 168
QUOTE
12. In Szechter (orse Karsov) v Szechter [1971] P 286, Sir Jocelyn Simon P held that the parties,
who had been given leave to stay in the United Kingdom for a limited period, had acquired a
domicile of choice in England by residing here with the intention of making this country their
permanent home. Following Boldrini v Boldrini and Martini [1932] P 9 and Cruh v Cruh [1945] 2
All ER 545, he said at p 294-G that it was immaterial that their intentions were liable to be
frustrated by the decision of the Secretary of State for the Home Department as to permission for
their continued residence here. This is a clear indication that, under our law, a domicile of choice
is not lost if the residence becomes unlawful at some later date.
END QUOTE

EWCA Civ 168
QUOTE
LORD PHILLIPS OF WORTH MATRAVERS
My Lords,
14. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord
Hope of Craighead and Baroness Hale of Richmond. I agree with their reasoning in relation both
to ordinary residence and to domicile and, for the reasons which they give, I would also dismiss
this appeal.
BARONESS HALE OF RICHMOND
My Lords,
15. The issue before us is whether a person can be either habitually resident or domiciled in
England and Wales if her presence in the United Kingdom is a criminal offence under the
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Immigration Act 1971. The immediate context is whether our courts have jurisdiction, under
section 5(2) of the Domicile and Matrimonial Proceedings Act 1973, to entertain her divorce
petition. But the domicile issue could arise in many other contexts, as a person can only have one
domicile, whereas habitual residence may have a different meaning in different statutes according
to their context and purpose.
Immigration control
16. It is worth remembering that the question could not arise until comparatively recently. As Ann
Dummett and Andrew Nicol explain in Subjects, Citizens, Aliens and Others (1990), pp 39 - 40,
"It is taken for granted today that any state's system of immigration
control is permanent and universal. That is, a permanent legal framework
exists for scrutinising all entrants and for determining which of them
may stay, for how long, and under what conditions. . . Such permanent,
universal control over immigration is of recent origin only. It would
have been unthinkable in early twentieth century Britain; for one thing,
it would have been regarded as a gross invasion of personal freedom; for
another, it would have been physically impossible to enforce. Passports
were not yet a general requirement. Modern controls depend upon universal
documentation, telecommunications, a large bureaucracy, and greater
powers to invade people's privacy within the country than then existed."
17. Monarchs did from time to time seek to expel or exclude aliens, although whether this was an
aspect of the royal prerogative is disputed. Blackstone put it this way (Commentaries on the Laws
of England, vol 1, 2nd ed (1766) p 259): "For so long as their nation continues at peace with ours,
and they themselves behave peaceably, they are under the King's protection; though liable to be
sent home whenever the King sees occasion." From time to time, temporary legislation was passed
to meet a temporary crisis. Lord Grenville's Aliens Act of 1793 was passed in response to the
excesses of the French revolution. This sought to identify aliens on arrival, prohibit some from
landing, and provided the machinery for removing those who were ordered to leave. It was
renewed until replaced by further legislation in 1802 and again in 1803 which concentrated on
identifying and removing aliens rather than prohibiting landing. This was to last until there was a
peace treaty. In 1814 and again in 1815 Parliament reverted to legislation which had to be renewed
from time to time. By 1826, the country must have felt sufficiently secure to replace the machinery
for removal with a permanent system of registration. But after the French Revolution of 1848, it
was once again thought expedient 'for the due Security of the Peace and Tranquillity of this Realm'
to resort, for a limited period, to the earlier machinery for ordering aliens to depart: see Aliens Act
1848. But the Crown also reserved the right to refuse to return aliens to their own countries
if they would face persecution there. The calls for permanent controls on entry began towards
the end of the 19th century in response to the arrival of large numbers of Jewish people escaping
the pogroms in Eastern Europe. These culminated in the recommendations of the Royal
Commission on Alien Immigration, 1903, Cd 1741. These were highly controversial and emerged,
much watered down, in the Aliens Act 1905. This contained powers to refuse entry to, and to
deport, defined types of 'undesirable' aliens. Immigration inspectors, the forerunners of the modern
immigration service, were appointed to do this. But the Act was comparatively easily evaded. The
Aliens Restriction Act 1914 was rushed through the day after war was declared, allowing Orders
in Council to be made imposing much more severe controls over all aliens in times of war,
imminent national danger or great emergency. After the war, however, it was continued and
extended by the Aliens Restriction (Amendment) Act 1919, which also repealed the 1905 Act. It
was renewed annually until superseded by the Immigration Act 1971.
18. The Aliens Acts did not apply to the inhabitants of the British Empire. They were not aliens.
Mostly they were British subjects owing allegiance to the Crown, although the British Nationality
Act 1948 drew a distinction between Citizens of the United Kingdom and Colonies and citizens of
the independent members of the Commonwealth. All were entitled to come here freely until the
first Commonwealth Immigrants Act of 1962. This regulated the entry of Commonwealth citizens
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coming here for a variety of purposes. The main effect was to restrict the numbers coming here to
work; family reunion was still allowed. During the 1960s, entry clearance officers were established
in Commonwealth countries to process dependants' applications for entry and under the
Immigration Appeals Act 1969, prior entry clearance became a legal requirement. The
Commonwealth Immigrants Act 1968 extended controls to United Kingdom citizens unless they, a
parent or grandparent had been born here. The 1962 Act made it an offence for a Commonwealth
citizen subject to immigration control to enter or remain within the United Kingdom without the
leave of an immigration officer.
19. The Immigration Act 1971 brought everyone under the same system of control. It abolished
the distinction between aliens and British subjects and introduced the distinction between patrials
with the right of abode, who were not subject to immigration control, and non-patrials who were
subject to immigration control. Under section 24 of the 1971 Act a person commits a criminal
offence, among other things, "if, having only a limited leave to enter or remain in the United
Kingdom, he knowingly either - (i) remains beyond the time limited by the leave; or (ii) fails to
observe a condition of the leave" (s 24(1)(b)).
END QUOTE

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Law Encyclopedia: Coram

[Latin, Before; in the presence of.]

Kikonda Butema Farms Ltd v The Inspector General of Government HCT-00-CV-MA-593-2003

As an example of pecuniary bias we may quote:

As an example of likelihood of bias we may quote:

QUOTE Hagens v. Lavine, 415 U.S. 533,

QUOTE Standard v. Olsen, 74 S. Ct. 768,

Exercise of federal jurisdiction by State Courts of summary jurisdiction

Thompson v Tolmie 27 U.S. 157 (1829) Page 27 U.S. 157, 169

Uniform Tax \case, 1942 (65CLR 373 at 408) 23-7-1942

Scuderi v Morris [2001] VSCA 190 (29 October 2001

QUOTE -Thomas Jefferson

U.S. Supreme Court Reports

CERTIORARI TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Argued January 27, 30, 1911.

Decided May 15, 1911.

For example: If a defendant should refuse to pay alimony, or

On the other hand, if the defendant does that which he has

It is true that either form of imprisonment has also an

The fact that the purpose of the punishment could be examined

The distinction between refusing to do an act commanded, —

The successful appellant pays cost!

Chu v Henham [1999] VSC 139 (4 May 1999)

No wrong committed in criticism of administration of justice:

QUOTE PARKER C.B.

QUOTE At page 32;

The Law of Contract (fourth edition) by G. H. Treitel

Marriage of McJarrow Fam LR6, 746 (1980)

In Re O (infants) (1971) Ch 748,754 and 755

QUOTE R.V. Crimmins (1959) VR 270

2. "The Constitution" of Australia

3. "Rules of the Family Court of Australia"

4. Family Law Act of 1975

5.112. Donoghue's Case (1932) ac 562 508 -1; Lord Atkin

5.114. Rookes v Bernard (1948) AC 1129 House of Lords- Lord Devlin

5.116. Dun v Dun (1957) 31 ALJ 825 - High Court

5.117. Chapman v Pickersgill (1762) 2 Wils 146; 95 ER 734 Pratt C.J.

5.121. Everett v Ribands (1952) 2 KB 198 at 206 Denning L.J.

5.122. Ex Parte Bellante Re: Prior (1963) 63 S.R. (N.S.W.) 190

5.124. In R v North; Ex Parte Oakley (1927) 1 KB 491 Scrutten J.

5.127. Duke of Athell v Reads, Kings Bench Division (1934) 2 KB 92

5.128. Justice Act 1958 s89

5.129. Justice Act 1958 Ch III Regulation 4

5.131. 34 EDWARD III c.1

5.132. 25 EDWARD III St v c.II

5.133. R v Sharky (1949) 79 CLR 121 at 163 Webb J.

5.135. Donoghue v Stevenson (1938) AC 562, supra, p106

5.136. In the River Water Commission v Adamson 2 App. at p763

5.137. Bowers v Smith (1953) 1 ALL ER 320

5.138. Royal Commission on the Constitution; Evidence, p773; P.B. Phillips

5.139. Taylor v Taylor (1979) FLC 90,674 at pp78,589-90,78,594-95;

1. Dictionaries - (A = Websters 1953 Ed.) (B = Oxford) (C-= McQuarie)

2. "The Constitution" of Australia

3. Commonwealth of Australia Constitution Act (1900) Section 118

3. "Rules of the Family Court of Australia"

3.1.1 Order 31 Rule 4

Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL

Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL

Judgments - Mark (Respondent) v. Mark (Appellant), OPINIONS, OF THE LORDS OF APPEAL

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