Third alternative, review of Registrar's decision to refuse to accept the application
53 In the course of oral argument, it was contended for the applicant that the relief sought against the third respondent (the Federal Circuit Court) encompassed relief in respect of the conduct by the Registrar in refusing to accept the application that was filed within time. However, counsel for the Minister submitted that the third respondent as named would not encompass conduct by the Registrar in the making of an administrative decision. An oral application was made to join the Registrar and an order was made joining the Registrar as a party to the application for relief under s 39B of the Judiciary Act. As I have already noted, the Registrar has since filed a submitting appearance.
54 As to refusing to accept documents, the Registrar has the power conferred by r 2.06 of the Federal Circuit Court Rules 2001 (Cth) (Rules). It states that a Registrar may refuse to accept a document for filing if:
(a) the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c) the rules relating to the electronic filing of documents have not been complied with.
55 In this instance, we are not concerned with a document that was sought to be filed electronically. On the evidence, the application was sent by facsimile transmission on 16 January 2020. Nor are we concerned with a document that was filed in an inappropriate registry. Finally, the Refusal Letter does not identify any of the matters in r 2.06(a) as a reason for not accepting the document. Therefore, refusal of the application for the reasons stated in the Refusal Letter does not appear to have involved the exercise of the power conferred by r 2.06.
56 As to other provisions in the Rules, unless otherwise provided, an application must be started by filing an application in accordance with the approved form: r 4.01(1). It must be filed with an affidavit (unless a stated exception applies): r 4.05(1). In the case of an application under the Migration Act of the kind sought to be raised by the applicant, the rules provide for the application to be made in accordance with the approved form: r 44.05(1). By r 44.05(2), it must also be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought - the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension
57 There are a number of other requirements expressed in the Rules as to the form of documents.
58 However, there appears to be no equivalent to r 2.27 of the Federal Court Rules 2011 (Cth) which provides, amongst other things, that a document will not be accepted for filing if 'it is not substantially complete' or 'it does not substantially comply with these Rules'. The absence of any such rule conforms to the nature of the procedure in the Federal Circuit Court because its Rules are made with the express object of helping the Court, amongst other things, to operate as informally as possible: r 1.03(2). A person who is in doubt about the procedure for starting a proceeding may apply to the Court for an order about the procedure: r 1.07. Strict compliance with forms is not required and substantial compliance is sufficient: r 2.04. At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document: r 7.01. A Court ordered amendment may be made by a Registrar, an associate or another appropriate person: r 7.02.
59 The Rules also provide for the listing of a first court date at which the Court or a Registrar is to give orders or directions for the conduct of the proceedings: r 10.01. The Court is given ample procedural powers under the Rules to enable the efficient conduct of the proceedings in an informal manner, including by the making of orders or directions as to the amendment of documents.
60 These aspects of the Rules reflect the terms of the Federal Circuit Court of Australia Act 1999 (Cth) which identify an express statutory object of the legislation as being, 'to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power': s 3(2)(a). Further, the Court 'must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted': s 42. It is in that context that the legislation states that the Rules may provide for the practice and procedure to be followed in registries of the Court: s 81(1)(a). Therefore, it is not to be expected that the Rules would provide for undue technicalities or formalities as to the filing of documents or that the Registry of the Court would be administered in a manner that would have that effect.
61 The registry of any Court acts under the administrative direction of the judges of the Court. The purpose of a rule such as r 2.06 is to identify the circumstances in which a Registrar may refuse to accept or issue a document without the Registrar being required to obtain authority from a judge to do so: Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. Outside the terms of a rule such as r 2.06, it would appear that the Registrar should obtain a direction from a judge before rejecting a document unless the matter is confidently within an implied power to protect the Court's procedures by abuse: at [15]. I would add that the administrative practice of the Court as supervised by its judges may result in the recognition of well established procedures to be implemented by Registrars. They take effect by custom or usage as part of the day to day operations of any court registry. To implement such matters would be to give effect to the administrative direction of the judges of the Court.
62 To refuse the acceptance of a document for filing is an unusual step, properly reserved for clear cases. Though administrative, it has the potential to affect substantive rights, as the circumstances of this case show. Where there is no applicable rule and there is doubt as to power, the appropriate course is for a direction to be sought from a judge. Otherwise, the preferable approach is for documents to be accepted so that they form part of the record and any decision as to the consequence of any failure to conform to the requirements of the Rules or other procedures of the Court can then be determined by a judge.
63 Any direction given by a judge that a document should not be accepted for filing may itself be administrative in character: Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [25] (Nettle J); and Bizuneh at [11] (compare, McDonald v Federal Court of Australia [2017] FCA 1216 at [60]-[68] (Kerr J)). A direction by a judge to a Registrar not to issue a particular form of document without the leave of a judge would be an interlocutory order: In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70. A direction in that form speaks judicially because it is conditioned upon a requirement for leave and therefore is in a form that requires a party to apply to a judge for an interlocutory order granting leave. To impose such a requirement is to exercise judicial power. Otherwise, it is not necessary for present purposes to determine whether a direction by a judge to a Registrar not to accept a document for filing is an exercise of administrative rather than judicial power. Having previously expressed agreement with the view of Kerr J in McDonald v Federal Court of Australia as to the nature and extent of the power to direct the Registrar not to accept a document for filing (Frigger v Banning (No 10) [2019] FCA 1664 at [14]), regard to the statement of Nettle J in Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate indicates that it may be correct to view that power as being administrative rather than judicial.
64 In any event, the implementation by a Registrar of any such direction would not be open to review as an exercise of judicial power by the Registrar: Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426 at [20].
65 Therefore, absent (a) an express power under the Rules; (b) an implied power; or (c) a well-established procedure as to the circumstances in which documents will not be accepted for filing, all documents presented for filing should be accepted and held as part of the Court record, unless there is a direction from a judge not to accept the document. If a Registrar has a concern about the appropriateness of accepting a document but the circumstances fall outside of the Registrar's power not to accept, the issue should be raised with a judge for direction. It will then be a matter for a judge to make the direction or, in the later conduct of the matter, to consider making any appropriate direction to the Registrar for the removal of the document from the record where it fails to meet the requirements of the Rules or to require a document to be amended if it fails to conform to any of those requirements.
66 In the Federal Circuit Court where there is a first hearing where consideration is to be given to the overall conduct of each application, such a process ensures that orders or directions are made that are consistent with the statutory requirement of proceeding without undue formality and also to shape the process to suit the fair administration of justice in the particular circumstances of each case.
67 For completeness, I note that in addition to the administrative powers of a Registrar, the exercise of judicial power may be delegated to a Registrar as permitted by s 103 of the Federal Circuit Court of Australia Act. This has been done: r 20.00A(1). Consistently with its character, the exercise of such delegated judicial power by a Registrar is subject to a right of review (and therefore oversight) by a judge. The procedure for the review is set out in the Rules: r 20.01 to r 20.03. However, the power to refuse to accept a document is not a delegated judicial power. It is an administrative power. It is exercised by the Registrar at the direction of the judges of the Court by means of the Rules or some other form of direction.
68 Turning then to the particular application for review of the refusal by the Registrar in this case to accept the application and affidavit for filing. The Registrar is a Commonwealth officer and the decision was made under the Rules or the Federal Circuit Court of Australia Act. Therefore, the decision to exercise the power is amenable to review for jurisdictional error as part of the present application. (As there was no claim that the Registrar made a decision that could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) it is not necessary to consider that possibility: as to which, see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [50]).
69 It was contended for the applicant that the application and supporting affidavit (filed before the Refusal Letter) substantially complied with the Rules and therefore were documents that should have been accepted for filing. Therefore, the argument for the applicant assumed that the Registrar had power to refuse the application if, in the view of the Registrar properly formed, it did not substantially comply. Put another way, the argument assumed that the Registrar had power to refuse to accept the document if it did not substantially comply with the Rules, even without any direction from a judge of the Court to refuse to accept the document. It also assumed that no issue arose as to the exercise of the power to amend the document so that it did comply. For reasons I have given, it may be that the power of the Registrar was not as broad as the argument may suggest. Nevertheless, given the manner in which the issue was joined, I will assume that the Registrar had a power of that kind.
70 Approaching the applicant's argument in the manner in which it was presented, I am not satisfied that the application substantially complied with the Rules. I accept that the following aspects should have been treated as insubstantial (in the sense that they did not mean that the application failed to comply substantially with the relevant requirements of the Rules):
(1) The failure to delete the inapplicable parties in the form used. The form itself stated that the decision in respect of which the application was made was the Authority. It was obvious from the form that the other options were not applicable.
(2) The failure to select the relevant application for extension of time box. It was apparent from the application that it was made within the period of 35 days. The application stated the date of the decision of the Authority as being 17 December 2018 and it was apparent to any reader that the application was within time. Further, the usual consequence of not checking an option of that kind would be to assume that no extension was sought.
(3) The failure to include a copy of the decision the subject of the application. As the form identified both the applicant and the Authority as the decision-maker and the date of the decision, the failure to include a copy of the decision in the case of an application to review a migration decision was not substantive because it was obvious that the respondents would have ready access to the decision. The requirement to include a copy of the decision aids the Court in understanding the nature of the application, but that is a matter that could be remedied by appropriate direction.
(4) The fact that the affidavit was not sworn or affirmed. In the case of an application to review a migration decision, the affidavit is a formal requirement by which the decision under review is produced. For reasons already given, that is a matter that may be redressed by appropriate direction.
71 However, the fact that the details of the address for service were not completed on the application or the affidavit meant that the application did not substantially comply. Such details are necessary in order for the proceedings to be properly conducted. Without an identified contact address, hearings cannot be convened with any confidence and respondents do not know where to serve documents. It was not argued that there was some power of amendment by which the Registrar might have completed those parts of the document by reference to the available information (but without some authority from the applicant). Rather, it was submitted that the applicant was in immigration detention and those details could have been ascertained from the information provided when the application was sent by facsimile to the Registry. However, it is one thing for information of that kind to be known, it is a quite different thing for a Registrar to assume that those are the correct details and to complete the application without any direction from a judge to do so (perhaps after inquiries have been made of the applicant).
72 For those reasons, I do not accept that the application filed before the Refusal Letter substantially complied with the Rules and on that basis and for that reason I would refuse the application to review the decision of the Registrar not to accept the application.