R v Cook; Twigg, Ex p [1980] HCA 36

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. R v Cook; Twigg, Ex p [1980] HCA 36

ORDER The order nisi in so far as it relates to certiorari is made absolute and in so far as it relates to prohibition is discharged. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 9 Barwick C.J.

Mr. Peter Twigg, the applicant for prohibition or certiorari, was convicted by the Family Court of Australia (Cook J.) of contempt of court and fined therefor $1,000.

I have had the advantage of reading the reasons for judgment in this application prepared by my brother Gibbs. The relevant facts and circumstances are there set out and I have no need to repeat or supplement them.

I agree with my brother's conclusion that the Family Court lacked jurisdiction to entertain a charge of contempt not committed in the face of the Court otherwise than upon an application in that behalf properly made.

I further agree that there was no evidence before the Family Court to support the conviction purported to be made of the applicant by the Court. I agree with my brother's analysis of and conclusion from the material on which that Court purported to act.

I also agree that the grant of certiorari to quash is appropriate in the circumstances of the case.

In my opinion, there was no warrant whatever for the conviction of the applicant or for the imposition of any fine, let alone a fine of the amount imposed.

I would quash the conviction and order of the Family Court by writ of certiorari. As the Commonwealth has offered to pay the applicant's costs and as the applicant is prepared to accept that offer and not seek an order for costs, I say nothing as to what attitude I would otherwise have adopted in relation to an order for the applicant's costs.