Family Law - Conference - Inadmissibility of evidence - Inconsistency with Act.

Constitutional Law - Judicial power of Commonwealth - Family Law Rules - O 36A r 5(2) - Time limit of seven days on application for review of exercise by registrar of delegated powers of the Court - Whether effective supervision and control by Family Court over exercise of delegated powers - Validity of time limit for review.

Statutes - Delegated legislation - Family Law Rules - Severance - Substantial purpose and effect of impugned provision - Acts Interpretation Act 1901 (Cth).

Family Law Act 1975 (Cth), ss 37A, 79, 79A, 123.

Acts Interpretation Act 1901 (Cth), ss 15A, 15C, 28, 46, 48, 48A, 48B, 49, Family Law Rules.

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Family Court of 14 March

3. Remit the matter to the Full Court of the Family Court (a) to determine any outstanding issues on appeal from the primary judge, and (b) to make such order (if any) as the Full Court considers just as to the costs in the proceedings to date before the primary judge and in the Full Court of the Family Court.

4. The respondent pay the appellant's costs of this appeal.

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ. This appeal is brought from the Full Court of the Family Court of Australia (Ellis, Lindenmayer and Chisholm JJ) (1). The Full Court set aside orders made by a judge of that Court (Moss J) and remitted for rehearing certain applications by the appellant. Both Moss J and the Full Court made costs orders pursuant to s 117(2) of the Family Law Act 1975 (Cth) ("the Act"). It is accepted by both parties that, if the appeal to this Court succeeds, there will still remain for disposition various grounds of appeal against the decision of the primary judge with which, given the course it took, the Full Court did not deal. Accordingly, if this Court allows the appeal, the consequential order must be the remission of the matter to the Full Court for further hearing of the appeal to it.

2. The issues which attracted the grant of special leave by this Court, and which were pursued at the hearing of the appeal, involve two questions of general importance as to the validity of certain provisions of the Family Law Rules ("the Rules") made by the judges of the Family Court in reliance upon the rule-making power conferred by s 123 of the Act. The rules in question are those in O 24 r 1(8) and (9), dealing with the inadmissibility of certain evidence, and O 36A r 5(2). This prescribes a period of seven days for the making of an application to the Court to review the exercise by a registrar of certain delegated powers of the Court. We conclude that O 24 r 1(8) and (9) is invalid and that O 36A r 5(2) is valid.

3. Before setting out the text of the impugned provisions of the Rules and of the relevant provisions of the Act, it is appropriate to outline the course of the litigation which gives rise to these questions.

4. The parties are both medical practitioners. They married in 1978 and their marriage was dissolved by decree of the Family Court on 28 January 1986. The one child of the marriage was born in 1985. The husband, the respondent, remarried in 1989.

5. In 1990 the appellant determined to commence proceedings with respect to the property of the parties to the former marriage. The lapse of time since 1986 had the result that such proceedings might not be instituted except by leave of the Family Court given under s 44(3) of the Act. Such leave was given in January 1991 and the appellant commenced proceedings pursuant to s 79 seeking an alteration in the property interests of the parties to the former marriage. Section 79(9) requires that the Family Court not make an order under s 79, other than an order until further order or an order by consent, unless, in the circumstances of this dispute, the parties had attended a conference with a registrar or deputy registrar of the Family Court. Order 24 r 1 of the Rules provides that where in any proceedings s 79(9) of the Act makes it necessary to do so, the Family Court or a registrar shall order the parties to attend a conciliation conference in relation to the matters to which the proceedings relate. Order 24 r 1(3) states that the parties who attend such a conference "must make a bona fide endeavour to reach agreement on relevant matters in issue between them".

6. The parties attended such a conference on two occasions, the second in October 1991. At that second conference it appears that an oral agreement was reached for the resolution of the contested property proceedings. After much correspondence between the solicitors for the parties and the circulation of various drafts, consent orders were made in chambers by a deputy registrar on 22 October 1992. Order 31 r 8 provided (2) that the parties to proceedings such as those in question may file a written consent to the making of orders and that the registrar may make an order in accordance with the terms of the consents. Order 31 r 8(4) required the order to state that it is made by consent and provided that the order shall be of the same force and validity as if it had been made after a court hearing.

7. The order made by the registrar on 22 October 1992 stated that, by consent and pursuant to O 31 r 8, "Declarations and Notations" were made in terms of the document titled "Minutes of Notations and Consent Orders" dated 25 August 1992 and signed by the parties in the presence of their respective solicitors. Order 5 of that document since has become a bone of contention between the parties. It obliges the appellant, upon compliance by the respondent with certain of his obligations, to pay certain sums to her former husband by way of property settlement. The sum is so defined in order 5 as to represent certain percentages of the value of various parcels of real property.

8. On 2 April 1993, the respondent filed an application to enforce the consent orders, in particular claiming payment of $432,497 plus interest as the sum properly calculated in accordance with order 5. On 20 May 1993, the appellant sought relief by proceeding under s 79A(1) of the Act, on the footing that the consent orders, in particular order 5, did not reflect the agreement reached between the parties at the conference in October 1991 and that, at the time of her execution of the consent orders in August 1992, she mistakenly believed that they did reflect the agreement. The appellant also contended that her mistake was then apparent to the respondent but that he let her continue under that error. This sharp practice was said to make it an equitable fraud for him to hold the appellant to order 5, or to estop him from doing so (3), and to supply a "circumstance" which attracted the operation of s 79A(1)(a) of the Act.

"Where, on application by a person affected by an order made by a

court under section 79 in proceedings with respect to the property of the parties to a marriage or either of them, the court is satisfied that -

(a) there has been a miscarriage of justice by reason of fraud,

duress, suppression of evidence, the giving of false evidence or any other circumstance;

...

the court may, in its discretion, vary the order or set the order

aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside."

The term "court", when used in relation to any proceedings, is defined in s 4(1) as meaning the court exercising jurisdiction therein by virtue of the Act. Section 31(1) confers jurisdiction on the Family Court with respect to, inter alia, matters arising under the Act and, moreover, s 15C of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") states that, where a provision of a statute expressly or by implication authorises, in relation to a matter, the institution of a civil or criminal proceeding in a particular court, that provision is deemed to vest that court with jurisdiction in that matter.

10. A crucial element in the appellant's case under s 79A(1) was the tendering of evidence of conversations which occurred at the second conference held pursuant to O 24. The primary judge allowed receipt of such evidence and concluded that the appellant entered into the consent orders in the mistaken belief that they gave effect to the agreement reached at the conference. There was a further finding that the respondent knew that his former wife was entering into the consent orders in that mistaken belief but nevertheless allowed the matter to go forward. The primary judge ordered that order 5 in the orders made by consent on 22 October 1992 be set aside.

11. Order 24 r 1(8) and (9) had presented an obstacle on the path to this conclusion by, on its face, rendering inadmissible evidence of anything said or any admission made in the course of the October 1991 conference. However, the primary judge held that, to the extent that O 24 r 1(8) and (9) purports to exclude relevant and otherwise admissible evidence, the sub-rules were ultra vires the rule-making power conferred by s 123 of the Act and therefore invalid.

12. With that conclusion the Full Court disagreed. It held the sub-rules valid and therefore applicable to proceedings under s 79A(1) of the Act and decided that the primary judge had erred in admitting the evidence as to the conversations which took place at the conference. Because findings based upon that evidence were crucial to the decision of the primary judge upon the s 79A(1) application, the appeal to the Full Court succeeded.

13. Upon the appeal to this Court, the appellant seeks to reinstate the conclusion reached by the primary judge as to the invalidity of O 24 r 1(8) and (9).

14. In order to appreciate the second branch of the appeal to this Court, further reference is necessary to the proceedings before the primary judge. In addition to the application under s 79A(1), there was before his Honour an application by the appellant in which she sought review by the Family Court of its own motion of the exercise of the delegated power by the registrar in making the consent orders on 22 October 1992. In the alternative, the applicant sought an extension of time pursuant to O 36A r 6(2) of the time prescribed by O 36A r 5(2) for the institution of an application to the Court to review the exercise by a registrar of a delegated power. The statutory basis for such applications and for the exercise of jurisdiction by the Family Court is found in s 37A(9) and (10) of the Act. This states:

"(9) A party to proceedings in which a Registrar has exercised any

of the powers of the Court pursuant to a delegation under sub-section (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or a majority of them for the purposes of this sub-section, apply to the Court to review that exercise of power.

(10) The Court may, on application under sub-section (9) or of its

own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised."

Part IV of the Act comprises ss 20-38 and s 20 states that in that Part "Court" means the Family Court.

15. The primary judge did not make any order granting to the appellant an extension of time to apply for such a review, nor did his Honour conduct such a review. Yet to the Full Court it was clear from the judgment that, had the primary judge not set order 5 aside under s 79A, he would have done so pursuant to the review applications. However, the primary judge appears to have made no orders disposing of the appellant's applications for review by the Court on its own motion, or for an extension of time within which to enliven the other review procedure under s 37A. Nevertheless, the Full Court appears to have treated an appeal from the review applications as before it (4). The review applications and the application under s 79A were all dated 20 May 1993. The Full Court allowed the appeal, set aside the orders of the primary judge and ordered that the applications filed 20 May 1993, "the subject of the said orders", be remitted for rehearing. It is these orders of the Full Court which found the grant of special leave to appeal to this Court.

16. The appellant contends that the institution of her application for review under s 37A(9) of the Act was unimpeded by the delay which had occurred. In particular, she asserts that there has been no time limit validly prescribed by the Rules. Her case is that O 36A r 5(2), limiting the period to seven days, is beyond the rule-making power because s 123 does not authorise a rule which impermissibly inhibits the constitutional requirement of the exercise of control by the Family Court over the exercise of delegated powers by registrars. Reliance is placed upon the reasoning in Harris v Caladine (5) as indicating that conclusion.

17. That is the second branch of the appeal. In our view, there is no strength in it. First, the prescription by O 36A r 5(2) of seven days may be extended (i) by the Court or a registrar upon such terms as are thought fit and (ii) by consent of all the parties. Order 36A r 6(2) so provides. Secondly, the Court may dispense with compliance with any requirements of the Rules, either before or after the occasion for compliance has arisen (O 4 r 1). A provision in these terms appears in the Rules of other courts (6) and enables "the court in a proper case to relieve a party of an obligation to comply with particular provisions of the Rules, for instance, as to time or the filing of pleadings and suchlike" (7). Thirdly, as s 37A(9) and (10) demonstrates, the Court in any event retains the authority to review "of its own motion".

18. The result is the observance of the constitutional imperative by retention by the Family Court itself of "effective supervision and control over the exercise of its functions by its officers" (8). There has been no exercise of rule-making power beyond the scope of the authority conferred by s 123 of the Act.

19. We turn now to consider the validity of O 24 r 1(8) and (9). In the course of her judgment in Harris v Caladine (9), Gaudron J said:

"It was not suggested that the appellant was precluded from

litigating the question whether the terms of the order were agreed by the parties. Rather, it was said that a document which the parties signed came into existence in the course of or as a result of something said during a registrar's conference convened under O 24, r 1 and that, by O 24, r 1(8) and (9), evidence could not be given of what was said at that conference. No argument was put as to the proper construction or validity of O 24, r 1(8) and (9). It was merely asserted that the effect of O 24, r 1(8) and (9) was to preclude a consideration of the question whether the terms of the order were agreed by the parties. That is not so. At most, the provisions limit the evidence admissible on that issue."

At the relevant time, the text of r 1(8) and (9) was as follows (10):

"(8) Subject to sub-rule (9) evidence of anything said, or of any

admission made, in the course of a conference held pursuant to this rule is not admissible in a court (whether or not exercising Federal jurisdiction) or before a person authorised to hear evidence by consent of parties or by or under the Act, the Regulations or these Rules.

(9) Sub-rule (8) does not prevent evidence of anything said, or of

any admission made, in the course of a conference being admitted in evidence -

(a) in a court upon the trial of a person for an offence committed

(b) upon the hearing of an application under section 112AP of the

Act in relation to any statement made or act done at a conference;

(c) upon the hearing of an application for costs arising out of the

and in such a case the Court in which the evidence is admitted

shall treat the evidence in the manner necessary to preserve, so far as is practicable, the confidentiality of the conference."

20. It will be apparent that sub-rr (8) and (9) do more than encompass the general law as to evidentiary privilege in respect of "without prejudice" communications. Whilst the person enjoying the benefit of the privilege may waive it, these sub-rules deny in absolute terms, subject to sub-r (9), the admission into evidence of anything said or any admission made in the course of the conference. This denial of admissibility extends beyond the exercise of jurisdiction in matters arising under the Act and to proceedings in any court.

21. Section 123 of the Act, so far as material, states:

"(1) The Judges, or a majority of them, may make Rules of Court not

inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts ...

(2) Sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act

1901 apply in relation to Rules of Court made under this section as if references in those sections of that Act to regulations were references to Rules of Court."

Sections 48, 48A, 48B and 49 of the Interpretation Act establish, by the medium of disallowance, parliamentary control over the making of regulations in exercise of powers conferred by statute. Section 50 deals with the effect of repeal of regulations and preserves vested rights. What is not made expressly applicable are the provisions of s 46(1)(b). This is a reading down provision in relation to rules, regulations and by-laws, which corresponds to the provision, as regards statutes, made in s 15A of the Interpretation Act. It will be necessary to refer later in these reasons to s 46(1)(b).

22. In the course of argument, reference was made to the antecedents of O 24 r 1(8) and (9), commencing with r 167(4) and (5) of the Matrimonial Causes Rules made by the Governor-General in Council in exercise of the power conferred by s 127 of the Matrimonial Causes Act 1959 (Cth) ("the 1959 Act"). But that history cannot confer validity where it is absent.

23. Counsel also referred to the principle that, even where the words "without prejudice" are not used, privilege will attach to communications which are made in the course of genuine negotiations with intent to compromise an existing dispute. The purpose is to encourage compromises by sparing the parties the embarrassment which might be caused to them if the negotiations fail and later their communications are liable to be put in evidence (11). In particular, negotiations undertaken between spouses in an effort to achieve reconciliation or to reach an agreement regarding financial arrangements for the future are taken to be "without prejudice" negotiations whether or not the spouses are parties to a subsisting matrimonial cause or contemplating such proceedings (12). Thus, in Rodgers v Rodgers (13), it was said in the joint judgment of this Court:

"That husband and wife who are parties to a subsisting cause in the

Matrimonial Causes jurisdiction, or, who contemplate such proceedings, should be able to negotiate with a view to reconciliation or as to what financial provision should be made for one party freely and without fear that, FAILING AGREEMENT, what is said or done by them may later be used in evidence is, in our view, not open to question." (emphasis added)

24. As we have indicated, O 24 r 1(8) and (9) goes well beyond, in respect of matters arising under the Act, the implementation of any such rule of evidence or precept as to the policy of the law. Further, in so doing, sub-rr (8) and (9) do more than provide for or in relation to the practice and procedure to be followed in courts exercising jurisdiction under the Act, as required by the rule-making power conferred by s 123(1). Indeed, the sub-rules in question go so far as to be inconsistent with the operation of the Act itself, again contrary to s 123(1).

25. It should be noted that the regulation-making power, unlike that provided in s 127 of the 1959 Act, is conferred not upon the Executive but upon the judges of the Family Court. In R v Davison (14), Dixon CJ and McTiernan J, in the course of discussing those functions which might be committed to Ch III courts by the legislature, although the same functions might be performed administratively, said:

"An extreme example of a function that may be given to courts as an

incident of judicial power or dealt with directly as an exercise of legislative power is that of making PROCEDURAL rules of court. ... (I)t is clear enough that making RULES OF PROCEDURE may in one point of view be regarded as a legislative function, though in another point of view it may be considered as an incident of judicial power." (emphasis added)

The insistence upon the procedural nature of the rule-making power which might be so conferred upon the Ch III court is found in the later emphasis (15) by their Honours upon the distinctive legislative function of changing existing conditions by making a new substantive rule to be applied thereafter to those subject to its operation (16). The result is to emphasise the constitutional underpinning of the limitation of the power conferred upon the judges of the Family Court by s 123 of the Act to the making of provision for or in relation to practice and procedure (17).

26. The power conferred by s 123 makes provision for or in relation to practice and procedure, and matters and things incidental to such practice and procedure or necessary or convenient to be prescribed for the conduct of court business. These are broad but limited terms. The power does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with (18), the positive provisions of the Act such as s 79A(1), or (ii) go beyond the field of operations marked out by the Act, in particular beyond the exercise of federal jurisdiction by courts doing so in respect of matters arising under the Act (19). However, in our view, the sub-rules in question offend in both respects.

27. They deny admissibility in any court, not merely in "courts exercising jurisdiction under (the) Act", these being the courts to which s 123 is in terms addressed. Further, they operate beyond power even in relation to the Family Court itself. As the very decision of the Full Court here, setting aside the findings of fact by the primary judge, illustrates, the sub-rules stultify the operation of s 79A(1) of the Act. They do so by denying to the court to which an application under the section is made the means of effective exercise of its jurisdiction to determine the justiciable controversy by deciding whether there has been a miscarriage of justice by reason of fraud, duress and the other circumstances to which s 79A(1)(a) is addressed. It is to be remembered that the "unique and essential function of the judicial power is the quelling of ... controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion" (20).

28. Section 79A(1) presupposes an order made by a court under s 79. The power to make that order is conditioned upon (save for exceptions not here relevant) there having been attendance at an O 24 conference (s 79(9)). Such an order might be made under s 79 by consent. Section 79A creates rights and invests a jurisdiction which, as it operates in a case such as the present, is analogous to that under the general law to set aside a consent order upon a ground which would invalidate the underlying agreement between the parties by rendering it void or voidable or entitling the applicant to equitable relief against it (21).

29. The Act contemplates that the circumstances giving rise to the miscarriage of justice identified in s 79A(1)(a) may have occurred at the O 24 conference mandated by s 79(9).

30. Order 24 r 1(8) and (9), as we have indicated, does much more than re-state the law as to evidentiary privilege in respect of "without prejudice" communications. That privilege is concerned with the admissibility of evidence at trial after the failure of negotiations and even then does not provide a legal norm which is absolute in nature (22). Thus, in a proceeding in which the ordinary rules of evidence apply, "without prejudice" material will be admissible if the issue is whether or not the negotiations resulted in an agreed settlement (23). So also where what is in issue is the entry into an impugned agreement as a consequence of engagement in misleading and deceptive conduct by another party (24).

31. To forbid the admission of evidence to establish the central facts in issue in an application under s 79A(1), as the sub-rules do in the present case, is not to facilitate the practice and procedures of the Court in disposing of such an application. Rather, it is to vary or depart from the positive provisions of the Act and to impose an inconsistent regime. Accordingly, the Full Court erred in holding the sub-rules wholly valid and as applying in the present litigation.

32. That is not to deny that the sub-rules may have some area of valid operation if it be permissible, despite the presumption they are to be read as a whole and indivisibly (25), to read and construe them as valid to the extent they are not in excess of the power conferred by s 123 of the Act. However, in view of the limited submissions made upon this question at the hearing of the appeal, and of the importance and difficulty of the question, we do not express any concluded view upon it. It is sufficient for present purposes to conclude that the Full Court wrongly treated the sub-rules as having a valid operation in respect of the evidence tendered on the appellant's application under s 79A(1).

33. Reference was made in argument to s 46(1)(b) of the Interpretation Act. This states:

"(1) Where an Act confers upon any authority power to make, grant

or issue any instrument (including rules, regulations or by-laws), then:

...

(b) any instrument so made, granted or issued shall be read and

construed subject to the Act under which it was made, granted or issued, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power."

This provision has its counterpart, as regards legislation in excess of constitutional power, in s 15A of the Interpretation Act. Section 15A was added by the Acts Interpretation Act 1930 (Cth) and that in turn had its precursor in s 2(2) of the Navigation Act 1912 (Cth). The operation of s 2(2) was identified as follows in the joint judgment of this Court in Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (26):

"We think this provision is a legislative declaration of the

intention of Parliament that, if valid and invalid provisions are found in the Act of Parliament, however interwoven together, no provision within the power of Parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with."

This involved the enactment of that which Higgins J had found (by analogy with the principles saving partly defective exercise of powers of appointment) was the position under the general law (27). It has been dubbed "the relative invalidity doctrine" (28) whereby the provision in question may be "applied distributively so that it is read as covering those applications within power" (29). But, as decisions upon s 15A, including Re Dingjan; Ex parte Wagner illustrate, the doctrine is not without limitations in its application. It was not accepted as representing the common law by the majority of this Court in decisions including R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co (30), Owners of SS Kalibia v Wilson (31) and Waterside Workers' Federation of Australia v J W Alexander Ltd (32), and more recently was rejected by the House of Lords (33).

34. The application of s 46(1)(b) of the Interpretation Act to O 24 r 1(8) and (9) turns upon the question whether, to use the language in s 123(1), "(t)he Judges (of the Family Court), or a majority of them" are an "authority" within s 46(1)(b) upon which there is conferred by a statute power to make, grant or issue any instrument, including rules, regulations or by-laws. It is significant that s 123(2) of the Act specifically renders s 48, 48A, 48B, 49 and 50 of the Interpretation Act applicable to Rules of Court made under s 123 as if references in those provisions to regulations were references to Rules of Court. No such specific provision was made as regards s 46 of the Interpretation Act. There is a decision upon the 1959 Act which suggests that omission from s 123 of the present statute of reference to s 46 indicates that the legislature did not regard the judges, as a collegiate body, as an "authority" within the meaning of s 46(1) (34).

35. However, s 28 of the Interpretation Act is to be taken into account. It states:

"(1) In any Act, unless the contrary intention appears, the

expression 'Rules of Court' when used in relation to any court shall mean rules made by the authority having for the time being power to make rules or orders regulating the practice and procedure of such court.

(2) The power of such authority to make Rules of Court shall,

unless the contrary intention appears, include a power to make Rules of Court for the purpose of any Act which directs or authorizes anything to be done by Rules of Court."

It would be consistent with this use of the term "authority" in relation to the making of Rules of Court for "authority" in s 46(1) also to embrace such a rule-making body. Further, it would be an anomalous result if, as regards Rules of Court, they were to be denied the benefit of a savings provision such as s 46(1)(b) available where the rule-making body is an emanation of the Executive or some other institution, and the matter of severability was left to the more stringent requirements of the common law.

36. As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the "blue pencil" rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be (35).

37. In the present case, it is unnecessary to determine whether O 24 r 1(8) and (9) may, by operation of s 46(1)(b) of the Interpretation Act (if, upon its proper construction, it applies to Rules of Court made by the judges of the Family Court) or by common law principles, be saved so that it has in some respects a valid operation. As we have said, issues of severance, notoriously difficult, were not developed in the submissions on the appeal. What is significant is that O 24 r 1(8) and (9) had no valid operation to prevent the primary judge in this case from admitting the evidence in question upon the application under s 79A(1) of the Act. Because the Full Court differed, it fell into error in treating the decision of the primary judge as fundamentally flawed.

38. The appeal to this Court should be allowed and the orders of the Full Court of the Family Court set aside. The respondent should pay the costs of the appellant of the appeal to this Court. The matter should be remitted to the Full Court of the Family Court to determine outstanding issues on the appeal from the primary judge. Questions of costs of the proceedings to date before the primary judge and in the Full Court of the Family Court and of the form of any order under s 117(2) of the Act should be for re-determination by that Court after it has dealt fully with the appeal.

KIRBY J. In Harris v Caladine (36) this Court, by a majority (37), upheld the constitutional validity of order 36A rule 2(1) of the Family Law Rules made to give effect to s 37A(1) of the Family Law Act 1975 (Cth) ("the Act").

2. That section empowers the judges of the Family Court of Australia to make rules of court delegating to the registrars of that Court all or any of the powers of the Court. The facility of delegation was subject to certain exclusions (38). These are not presently relevant. The scheme of the section permits a party to proceedings in which the registrar exercises a delegated power to apply to the Court, ie a judge exercising the judicial power of the Commonwealth, for a review of the registrar's exercise of delegated power (39).

3. In the Family Court, the registrar made a consent order for the settlement of property under s 79 of the Act. That section confers on the Family Court a wide discretion to make orders appropriately altering the interests in property of the parties to a marriage. The majority in this Court concluded that neither s 37A of the Act nor O 36A contravened the limitations which Chapter III of the Constitution places upon the exercise of the judicial power of the Commonwealth. Important to the determination of the majority on the point was the consideration that judges would continue to carry the principal responsibility for the exercise of judicial power in contested matters and that the delegation was subject to review by, or appeal to, a judge or judges. In this sense, the provision affording a review by a judge of a decision of a registrar was identified as an essential pre-condition to the constitutional validity of the delegation provided for in the Act and carried into effect by the Rules.

4. In the course of her reasons for supporting the orders of the Court, Gaudron J (40) noted, in passing, the question which has now arisen in this appeal. She referred to the effective reviewability of an order made pursuant to a document which the parties signed and which came into existence in the course of, or as a result of, something said during a registrar's conference held under O 24 r 1. She noticed that, by O 24 r 1(8) and (9) evidence could not be given of what was said at that conference. She proceeded (41):

"No argument was put as to the proper construction or validity of O

24, r 1(8) and (9). It was merely asserted that the effect of O 24, r 1(8) and (9) was to preclude a consideration of the question whether the terms of the order were agreed by the parties. That is not so. At most, the provisions limit the evidence admissible on that issue. That being so and whatever the effect of O 24, r 1(8) and (9), the question raised is not one touching the validity of O 36A, r 2. Rather it is a question of the power of the Family Court to make a Rule of Court purporting to render inadmissible what would otherwise be admissible evidence in a proceeding properly instituted under the Act. That question was not raised in the Family Court nor in the notice of appeal. It is not appropriate for that question to be further explored".

That question now falls for decision. It was not submitted that Harris v Caladine resolved the controversies of this appeal. But the answers must be given with a clear understanding of the importance of the pre-conditions established by this Court for the constitutional validity of the delegation to registrars of the Family Court of what would otherwise be judicial functions. Depart from those pre-conditions and neither statute nor a rule of court may sustain what is done for it is forbidden by the Constitution.

5. Dr Maureen Harrington (the appellant) married Dr Kevin Lowe (the respondent) in June 1978. They separated in October 1984, continuing to live together in the same premises until 1986 when Dr Lowe left. Their marriage was dissolved in that year.

6. In January 1991 Dr Harrington, with leave, commenced proceedings for an order under s 79 of the Act with respect to the property of the parties to the marriage. On 8 October 1991 both parties attended a conference conducted by a registrar of the Family Court pursuant to O 24 of the Family Law Rules. The primary judge (Moss J) found that the issues between the parties were resolved at this conference. It was agreed that Dr Harrington's solicitor would prepare draft orders to give effect to their agreement.

7. In October 1992, after a number of false starts, consent orders were made by the registrar in chambers. The property interests of the parties were complicated. Because of these complications, compounded by oversight on the part of Dr Harrington's then solicitor, the solicitor's correspondence allegedly did not give effect to the parties' agreement at the registrar's conference. To establish the variance, and to identify the alleged mistake, Dr Harrington sought, before Moss J, to rely on sworn evidence as to what was said, and agreed between the parties, at the O 24 conference. Such evidence, she asserted, would make it absolutely clear that an obvious mistake, known to her husband, had occurred in her solicitor's correspondence, and thus in the consent order entered by the registrar. Dr Harrington therefore applied to have the consent order set aside. She relied upon the power afforded to the Court by s 79A of the Act. She also applied, being well out of time, for an extension of time for a review by a judge of the consent orders made by the Registrar. Additionally, she invited the Family Court, of its own motion, to review the exercise of power by the registrar in her case.

8. Standing in the way of such review were two procedural barriers, upon which Dr Lowe relied. The first was a provision in the Rules requiring that any application for review by a judge of an order of a registrar be made within seven days of that order (42). The second was another provision of the Rules (43), which in its terms, imposed significant limitations upon the admissibility, relevantly, in the Family Court, of anything said or any admission made in the course of a registrar's conference held pursuant to O 24. Certain exceptions were provided by the Rules (44). None of these exceptions applied to Dr Harrington's case.

9. Dr Lowe resisted the reopening of the orders made by the registrar. He had paid the sum required of him pursuant to the orders. On the merits, he asserted that they did, in fact, reflect the parties' agreement. He had only subscribed to that agreement because of the advantages to him of a prompt and final settlement of the property dispute. Principally, he contended that Dr Harrington could not undermine the orders because the relevant rules of court forbade the admission of evidence which would intrude into the strict confidentiality of the conduct of the registrar's conference provided by the Act.

10. By inference (although not by express finding) Moss J provided the extension of time necessary for review of the consent orders entered by the registrar or resolved to review the registrar's decision of his own motion. Over objection, he admitted into evidence conversations which Dr Harrington said had taken place at the O 24 conference. Accepting that evidence, he concluded that Dr Harrington had indeed mistakenly entered the agreement upon which the consent orders were founded. He then held that O 24 r 1(8) and (9) were beyond the power of the judges of the Family Court to make rules on procedural matters. There being no obstacle to doing so, he therefore admitted the evidence of Dr Harrington. He accepted it. He found that a mistake had occurred. He found that Dr Lowe knew that Dr Harrington was proposing the consent orders in a mistaken belief that they reflected the earlier agreement but allowed the orders to be made notwithstanding. On the basis of affidavit evidence of the parties, cross-examination and voluminous documentary evidence, his Honour decided to grant relief to Dr Harrington under s 79A of the Act. He did so on the footing that a miscarriage of justice had occurred. He acknowledged that further proceedings would follow, unless the parties were able to resolve the outstanding issues between them.

11. It was at that stage that Dr Lowe appealed to the Full Court of the Family Court. Dr Harrington filed a purported cross-appeal. Apparently in the Family Court there is no procedure akin to a notice of contention. Dr Harrington did not challenge the actual order (or decree) of Moss J. But she wished to preserve certain constitutional and legal arguments by which she had sought to attack the time limit of seven days imposed for the bringing of a review under O 36A r 5(2) and also the provisions of the Act (45) which were relied upon to sustain the severe time limit in that regard. Moss J had rejected Dr Harrington's constitutional arguments concerning O 36A r 5(2) and had circumvented the strict time limits either by extending the time, as he was empowered to do (46),or by proceeding to exercise the Family Court's own power of review, in conjunction with the very wide discretion conferred upon it by s 79A of the Act itself.

12. The Full Court of the Family Court (Ellis, Lindenmayer and Chisholm JJ) (47) upheld Dr Lowe's appeal. The Court rejected the challenges to the validity of s 37A of the Act and O 36A. The time limit contemplated in s 37A(9) and contained in O 36A r 5(2) was held to be constitutionally valid conformably with what their Honours took to be the reasoning of this Court in Harris v Caladine. They rejected the submission that, on its true meaning, O 24 r 1(8) permitted the admission of evidence of things said in the course of an O 24 conference as if there were an exception of a general kind to protect the interests of justice or to correct a mistake. They decided that O 24 r 1(8) was a valid exercise of the rule-making power of the judges of the Family Court. It was procedural in character. It contributed to the objectives of the legislation of promoting mediation, protected by confidential conferences, such that the parties would be encouraged to resolve matters between themselves. They concluded that Moss J had therefore erred in admitting evidence about the conversations which had occurred at the registrar's conference. There being no other admissible evidence to sustain the provision of relief under s 79A of the Act, or otherwise, such relief ought to have been refused.

13. The Full Court was not confident that it could simply dismiss Dr Harrington's motion. It remitted it to be reconsidered at first instance, freed from the inadmissible evidence which, it ruled, should have been excluded. It determined the costs of the appeal separately (48). Dr Lowe pressed for his costs. Dr Harrington was ordered to pay the costs of the appeal and most of the costs before Moss J.

14. By special leave, the appeal by Dr Harrington now comes to this Court. The issues raised are four:

1. The construction issue: Do the relevant Rules of the Family Law

Rules, upon their proper construction exclude the reception into evidence, in the circumstances of this case, of anything said, or any admission made, in the course of a conference under O 24 where the proof of such matters is relevant to:

(a) The exercise by the Family Court of its jurisdiction under s

79A of the Act to set aside an order made by that Court under s 79 in proceedings with respect to property of the parties to a marriage where the Court is satisfied that there has been a miscarriage of justice by reason of "any other circumstance" within s 79A(1)(a) of the Act? or

(b) In the conduct by the Court of a review of consent orders made

by a registrar exercising the delegated powers of the Court, following the conclusion of a conference under O 24?

2. The validity issue: Assuming the answer to 1 be yes, is such a

rule within the rule-making power granted by the Parliament to the judges of the Family Court whether under the general power to make rules of court (49) or under the special power granted to make rules of court governing the delegation to the registrar of the powers of the Court (50)?

3. The constitutional issue: If the answer to 2 is yes, are the

(a) The admission into evidence of anything said or any admission

made in the course of a conference held pursuant to O 2451; and

(b) The availability of the facility of review to an application

and the statutory provisions which purport to sustain such rules,

beyond power under the Constitution, conformably with the principles established by Harris v Caladine, being impermissible limitations on the supervision of the exercise by registrars of their delegated powers? and

4. The severability issue: If the answer to questions 2 and/or 3 be

yes, is there any basis under the Acts Interpretation Act 1901 (Cth), or otherwise, to sever that part of the impugned statutory provision or rule which is invalid so as to sustain the remainder and, if so, with what consequences for the outcome of this appeal?

15. Having stated the matters which are in issue in the appeal, it is appropriate to put out of the way certain matters raised in argument which are not relevant but should perhaps be noted:

1. It appears that O 24 has been amended since the proceedings

between the parties were commenced. This Court is only concerned with the rule as it appeared at the time of the conference and the application before Moss J to admit evidence of what was said at, and of admissions made in the course of, that conference. It was not suggested that the change to the rule, or any change to the Act, was material. The problem presented by the appeal is a continuing one of general importance. This is amply demonstrated by earlier decisions of the Family Court in which the validity of O 24 r 1(8) and (9) was not contested (53);

2. The Commonwealth, which intervened to support the validity under

the Constitution of the challenged provision of the Act, and to suggest the validity of the rules made by the judges, drew attention to the provisions of the Evidence Act 1995 (Cth), s 131 (54). It was suggested that since 18 April 1995 (when that Act commenced) the admissibility in Family Court proceedings of evidence of settlement negotiations would be covered generally by that section. As it has no application to the proceedings before the Court, was not argued below and its relevance has been contested, the implications of the new Evidence Act for the problem now before us can safely be ignored;

3. Counsel for Dr Lowe drew attention to the similarity of other

Rules in the Family Law Rules which could be in danger of invalidity if those under challenge in this appeal were found, for constitutional or other legal reasons, to be invalid (55). It will be enough in this appeal to deal with the orders relevant to the present matter. It can safely be left to the Parliament and the rule-makers to draw any inferences which follow; and

4. The Commonwealth suggested that, as the notice of appeal had

not, in terms, raised the validity of O 36A rr 5 and 6 (as distinct from the challenge to s 37A(9) of the Act), this Court should exclude argument on the point. However, as such argument was clearly signalled in the special leave application and as Dr Lowe took no similar procedural point, this objection should be over-ruled so that this Court may contribute to the earliest possible resolution of this extended saga of litigation. For like reasons, the Court should not concern itself in the validity of Dr Harrington's purported "cross-appeal" to the Full Court. It was common ground that there are outstanding factual matters yet to be decided by the Full Court. The resolution of those matters has been postponed having regard to the Full Court's conclusions and this appeal.

16. Before turning to the issues in contention, it is appropriate to set out the relevant legislative provisions.

17. O 24 r 1(8) and (9) have a long history in federal family law. When the Matrimonial Causes Act 1959 (Cth) was enacted, s 127 gave the Governor-General the power to make rules "for or in relation to the practice and procedure of the courts having jurisdiction under this Act, or any of them".

18. Pursuant to that power, the Matrimonial Causes Rules were made to come into effect, with the Act, in 1961. Sub-rule 167(4) provided that, subject to r 167(5):

"evidence of anything said, or of any admission made, in the course

of a conference for the purpose of this Division is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorised by a law of the Commonwealth or of a State or Territory of the Commonwealth, or by consent of the parties, to hear, receive and examine evidence".

Sub-rule 167(5) provided that this prohibition did not prevent evidence being given upon the trial of a person for an offence committed at the conference.

19. With the passage in 1975 of the Family Law Act, s 123, as originally enacted, empowered the Governor-General to make regulations not inconsistent with the Act for carrying it out or giving effect to it. Specifically, s 123(2) permitted regulations to provide:

"for or in relation to the practice and procedure to be followed in

the Family Court and in other courts exercising jurisdiction under this Act, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts".

The Family Law Regulationsn (56), presumably in reliance upon this power (for at that time none other existed), contained sub-regs 96(5) and (6) which were substantially in the same terms as r 167, but with some simplification of language. The only specified exception to the admission of evidence of a conference was in the trial of a person for an offence committed at the conference.

20. The 1975 regulations continued in force until January 1985. Pursuant to the Family Law (Amendment) Act 1983 (Cth), ss 73 to 76, two forms of subordinate legislation were thereafter provided for. These were Rules of Court (s 123) and regulations (s 125). The rule-making power was expressed in the terms presently appearing in s 123:

"(1) The Judges, or a majority of them, may make Rules of Court not

inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other court exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts".

There follow a number of particular heads of power which may be noted but upon which neither party laid specific emphasis (57).

21. Order 24 r 1(8) remained unchanged after it came into effect in January 1985 until the events of this appeal. It provides:

"Subject to sub-rule (9) evidence of anything said, or of any

admission made, in the course of a conference held pursuant to this rule is not admissible in a court (whether or not exercising Federal jurisdiction) or before a person authorised to hear evidence by consent of parties or by or under the Act, the Regulations or these Rules."

Order 24 r 1(9) has been amended since originally made but not in ways material to this matter. It provides:

"Sub-rule (8) does not prevent evidence of anything said, or of

any admission made, in the course of a conference being admitted in evidence -

(a) in a court upon the trial of a person for an offence committed

(b) upon the hearing of an application under section 112AP of the

Act in relation to any statement made or act done at a conference;

(c) upon the hearing of an application for costs arising out of the

and in any such case the Court in which the evidence is admitted

shall treat the evidence in the manner necessary to preserve, so far as is practicable, the confidentiality of the conference."

Section 112 AP provides for cases of contempt of court (58).

22. Three further provisions of the Act must be noticed. Sub-section 79(1) affords the Court an extremely wide power, in proceedings with respect to the property of the parties to a marriage or either of them, to make orders considered appropriate for altering their interests in the property. Section 79A affords a power, also expressed in very wide terms, to set aside orders made under s 79. Relevantly, the section provides:

"79A(1) (Miscarriage of justice) Where, on application by a person

affected by an order made by a court under section 79 in proceedings with respect of the property of the parties to a marriage or either of them, the court is satisfied that -

(a) there has been a miscarriage of justice by reason of fraud,

duress, suppression of evidence, the giving of false evidence or any other circumstance;

...

the court may, in its discretion, vary the order or set the order

aside and, if it considers appropriate make another order under section 79 in substitution for the order so set aside." (Emphasis added)

When the scheme for the delegation of powers to registrars of the Family Court was introduced, provisions were added to the Act to provide for the independence of registrars in the exercise of delegated functions (59); and for their taking of an oath or affirmation of office (60). But the bulk of the regulation of such delegated powers was to be governed by rules made by the judges of the Family Court. Relevantly, s 37A provides:

"(1) The Judges, or a majority of them may ... make Rules of Court

delegating to the Registrars all or any of the powers of the Court, including, without limiting the generality of the foregoing, all or any of the following powers of the Court": There follow a wide set of powers, including:

"(m) the power to make an order exempting a party to proceedings

under this Act from compliance with a provision of the regulations or Rules of Court."

Sub-s 37A(4) provides that the "delegation of a power by Rules of Court ... does not prevent the exercise of the power by the Court or a Judge". Clearly, this provision was included for constitutional reasons. There is a general provision, in effect, substituting "the registrar" for a reference to "the Court" in the regulations or the Rules of Court (61). There then follow two provisions relevant to review by the Court of the exercise of power by a registrar:

"(9) A party to proceedings in which a Registrar has exercised any

of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, Rules of Court made by the Judges or majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.

(10) The Court may, on application under subsection (9) or of its

own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised."

It is in purported reliance upon s 37A(9) that O 36A r 5(2) has been made by the judges of the Family Court, fixing a time limit of seven days for an application to the Court to review the exercise of power by a registrar. By O 36A r 6(2) provision may be made for an extension of that time. A general provision exists for dispensing with the application of the Rules. But otherwise, subject to the Act, the practice and procedure of the Family Court are required to be in accordance with the regulations and the Rules of Court (62) or, where applicable, directions of the Court or of a judge as to practice and procedure (63).

23. The first argument for Dr Harrington was that O 24 r 1(8) was not as absolute as at first it appeared. Quite apart from the power of general dispensation (not invoked here), rules were to be read as subject to well-known exceptions. Thus the first step of the Court was to find the true meaning of the rule (64). If a meaning could be found which kept the rule within the Constitution and the statutory grant of power, that construction would be preferred, for it would be presumed that such was the intention of Parliament and of the rule-makers.

24. An analogy was drawn to the way in which the strictness of the rule prohibiting the admission of evidence of without prejudice communication in the course of litigation has been mollified by legal doctrine. Exceptions have been sanctioned by the judges focussing attention on the purposes of the rule. Those purposes include promoting settlement of disputes and protecting parties against having their negotiations and concerns used against them at trial (65). Such purposes do not extend to preventing the admission of evidence of communications where, for other legal purposes, they have significance in their own right (66). Thus, use of such communications has been permitted to ascertain whether a binding agreement was in fact reached (67); or to demonstrate misleading and deceptive conduct in the course of negotiations resulting in an "agreement" which was impugned; or to permit demonstration that an option had been exercised in the course of without prejudice correspondence (68). Where it is claimed that a party has entered into a written contract under a serious mistake about its contents in relation to a fundamental term, that party is entitled, in equity, to an order rescinding the contract if the other party is aware that circumstances exist which show that the first-mentioned party is entering the contract under such a serious mistake or misapprehension and the other party deliberately sets out to ensure that the first party does not become aware of that mistake or misapprehension (69). Without prejudice communications, ordinarily inadmissible, have been received in evidence to support rescission or rectification of a contract and to prevent entry of a judgment that would work an injustice (70). These exceptions are acknowledged to prevent a beneficial rule of the law from being distorted in its application.

25. By analogy, Dr Harrington argued that O 24 r 1(8) would be read in such a way as to permit evidence of a mistake to be given. It would be confirmed to apply to the ordinary case but not such an exceptional case as the present. Here, proof of what had occurred at the conference was essential to establish the true terms of any agreement to which the parties had given effect by the consent orders. Those consent orders were nothing more than a reflection of the parties' alleged agreement arrived at during the registrar's conference. Ordinarily, a consent order may be set aside on any basis on which the underlying agreement may be set aside (71). The apparent prohibition in O 24 r(1)(8) should be read as subject to these well-established principles although they are not expressly provided for in the rule. If this construction were not adopted, it would demonstrate the impermissible ambit of the rule so construed.

26. These arguments must be rejected. They fail to accord proper weight to the plain language and purpose of the sub-rule, read in its context. That context includes not only the specificity of the exceptions provided to the application of sub-r (8) by the terms of O 24 r 1(9). It also includes the long history of attempts, by regulation as well as Rules of Court, to enforce a strict and wide-reaching prohibition on the use of anything said, or admissions made, in the course of a conference. The provision is an attempted reflection of widely worded prohibitions in the Act itself protecting the confidentiality of conferences with marriage counsellors (72) and with court counsellors or welfare officers (73). Where the Parliament has enacted the prohibition on the admissibility of evidence, different considerations arise (74). But in respect of O 24 r 1(8) it is impossible to read down the very wide language used by the rule-maker so as to permit exceptions beyond those expressly listed in sub-r (9) or elsewhere expressly provided for by the Act itself (75). The construction argument therefore fails.

27. So understood, is O 24 r 1(8) within the power afforded by the Parliament to the rule-makers? For three reasons it is not:

1. In so far as the rule purports to control the exercise by the

Family Court of the jurisdiction to set aside orders altering property interests, it is inconsistent with the large terms in which that jurisdiction has been conferred on the Court. The Court is entitled, notwithstanding an order made under s 79 with respect to the property of parties to set such an order aside if it is satisfied that there has been "a miscarriage of justice by reason of ... any other circumstance". It is not for the rule-maker, by prescribing the evidence that may be given to establish such a "miscarriage of justice" in "any other circumstance" to attempt to control access by the Court to evidence which the Parliament has necessarily contemplated will be within a wide compass. The scheme of the Act shows clearly that the Act contemplates that the miscarriage which gives rise to a claim for relief under s 79A(1) may have occurred at a conference under O 24 r 1 as contemplated by s 79(9). It is different where the Act itself provides prohibitions on the admission of evidence. Such provisions of the Act must then be reconciled with the wide language of s 79A(1). In other jurisdictions of Australia, mediation conferences are subject to express statutory requirements of confidentiality which prohibit the admission of evidence as to what took place at the conference (76). For Dr Lowe it was submitted that this showed the universality of the beneficial protection of confidential mediation conferences which should not be denied to those conducted by registrars in the Family Court under O 24 r 1. But where such conferences are provided for by rules, the latter, both by the terms of the rule-making grant of power and by conventional theory, must be subject to the Act. Where, as here, the Act affords a broad jurisdiction to the Court to set aside orders previously made altering property interests, relevantly, for a proved "miscarriage of justice", the rules may not, by their terms, diminish that jurisdiction for it is given to the Family Court by the Parliament;

2. In any case, the sole grant of power which supports the subject

rule is one confined to matters "in relation to the practice and procedure to be followed in the Family Court". That compendious phrase has conventionally been given a broad operation (77). Especially in the context of a power to make rules, to cover the multitude of subsidiary matters which can arise in the operation of a court with a complex jurisdiction, the phrase should not be narrowly construed. Nor should what is "practice and procedure" be fixed in time so that court proceedings are unable to adapt to new community needs and different techniques of judicial administration. But in the end, a point will be reached where a rule-maker will exceed the boundaries of permissible rule-making on matters in relation to "practice and procedure" and intrude into rule-making with respect to the substantive rights of the parties. I do not pretend that there is a bright line which divides rules with respect to practice and procedure from rules with respect to substantive rights. The two are often inter-connected. Indeed, such has been the history of the common law where procedural remedies have often given rise to substantive rights. Minds may therefore differ as to the whereabouts of the boundary. The task of a court is to characterise a rule which is challenged on the ground that it has exceeded the legislative grant of power. Such a rule may exhibit the appearance of having a dual character: pertaining in some ways to procedural matters but in other way having an effect on substantive rights (78). In deciding how to characterise the challenged rule, caution should be exercised in adopting definitions of what is "procedural" devised for other purposes of the law, eg in private international law (79). The purpose of the classification here must be kept in mind if it is to be accurately performed. That purpose, relevantly, is to decide whether the subject matter of the challenged rule is no more than a procedural pre-condition to the enjoyment of rights judicially recognised or an abrogation of substantive rights, beyond the power of the subordinate law-maker (80). The mere fact that a procedural rule has effect upon substantive rights is not enough to strip it of its procedural character (81). But if the rule goes beyond the provision of the means by which substantive rights are to be enforced or protected (82), the decision-maker will be entitled to conclude that what has been done, under the guise of a procedural rule, is, in fact, impermissibly to alter substantive rights. By law, that is forbidden to the rule-maker. It is reserved to those with the power to alter substantive rights. This means principally a legislature, the Executive acting under delegated power clearly conferred or judges acting in the time-honoured fashion of the common law. It is not to be done in a quasi-legislative way by rule-making (83).

28. When the foregoing principles are applied to the present case, the proper characterisation of O 24 r 1(8) is, in my view, substantive. It is not immaterial to comment that other limitations on disclosure of conference proceedings, whether of the Family Court itself or of other Australian courts, are generally found in the legislation (84). The right of a party to correct consent orders on the basis of mistake and to seek the relief of equity against a written agreement which reflects the mistake, is a well-settled substantive entitlement of our law. To deprive a person of such a right, by a procedural device preventing the admission of evidence necessary to establish the right, interferes in the exercise of that person's substantive rights. To deprive a person of such a right needs not only clear legislative language (85). Where the purported deprivation appears in subordinate legislation, it must be founded upon a clear grant of power. If it depends, as it does here, upon nothing more than a grant to the judges of the Family Court of a general power to make rules for practice and procedure, any rule that purports to deprive a person of such long-established substantive rights is not of the permitted character. It has gone beyond the power granted by the Parliament to the rule-maker and is, to that extent, invalid (86); and

3. Alternative ways of stating the foregoing proposition have been

offered in the context of testing whether a particular rule travels beyond power. The tests offered in the cases include those of intuitive impression; the purported ascertainment of what the legislature "had in mind" in enacting the grant (87) (although this is obviously imprecise, circular and even mythical) and the application of the test of reasonable proportionality, derived by way of recent constitutional decisions from civil law jurisprudence (88). If a rule is apparently procedural in character but, in its terms, has such a disproportionate impact upon apparently unforeseen circumstances, thereby diminishing the substantive rights of parties, it will be said to offend the test of reasonable proportionality, thereby demonstrating its invalidity. Hesitations about this test have been expressed where it is invoked for the purpose of constitutional characterisation (89). They have been repeated in the present context (90). It is unnecessary to explore that controversy in this case. If a test of proportionality is helpful, as I am inclined to think, and if it is applied, O 24 r 1(8) is disproportional, as construed, to the achievement of its legitimate objectives of safeguarding the confidentiality of mediation conferences. It is cast too broadly. Its exceptions are too narrowly expressed.

29. These conclusions result in the prima facie invalidity of O 24 r 1(8) and of sub-r 1(9) which is connected to it. Subject to what follows, they leave the judge of the Family Court, whose jurisdiction is invoked under s 79A of the Act, with unfettered power to receive evidence of anything said, or of any admission made in the course of a conference held under O 24 relevant to the exercise of the s 79A jurisdiction. To the extent that he relied upon such evidence, therefore, Moss J was entitled to do so. The Full Court of the Family Court erred in holding otherwise.

30. Given that conferences held under O 24 would hitherto have assumed the validity of O 24 r 1(8) and (9) and have proceeded on an expectation of confidentiality, and given also that such expectation would usually arise from the very nature and purposes of such conferences, other rules of general law, not excluded by the Act and Family Law Rules, would govern the use that may be made of such evidence. But O 24 r 1(8) did not prohibit such use as Moss J made of such evidence in the proceedings before him. Nor was it suggested that such use offended such other general rules protecting the use of confidential matter.

31. The foregoing conclusion, without more, requires that the appeal be allowed. I can therefore deal briefly with the remaining issues in the appeal.

32. For Dr Harrington it was put that two of the further rules which were said to stand in the way of the consideration of her application under s 79A of the Act, and of her application for a review of the registrar's orders (viz O 24 r 1(8) and O 36A r 5(2)) and any statutory provisions which purported to sustain those rules, were invalid as being beyond the law-making power afforded to the Parliament by the Constitution. Thus, it was said that O 24 r 1(8), that sub-rule applied, unreasonably impeded the conduct of the effective judicial supervision of the registrar's delegated functions which this Court made it plain in Harris v Caladine was a pre-condition to the constitutional validity of such delegation. Alternatively, it was put that O 36A r 5(2), by establishing such an unreasonably short time limit within which to seek a review, seriously inhibited the effective exercise of control by judges of the Family Court over registrars and thus offended the principles expressed in Harris.

33. So far as O 24 r 1(8) is concerned, it is unnecessary to determine this point because I have concluded that the sub-rule goes beyond the grant of power provided by s 123 of the Act. The question of constitutional validity which might have arisen if the rule had been held to be within power under the Act does not therefore arise.

34. Similarly, because it is open to a party, such as Dr Harrington, to invoke the jurisdiction of the Family Court under s 79A(1), without the inhibition applied, by way of time limit, upon a review of the orders of a registrar, it is unnecessary to determine, in this matter, the constitutional validity of the rule providing the time limit. It is by no means unusual to impose time limits upon the exercise of appellate and review functions of courts. Provision of a time limit for applications would not itself be inconsistent with a normal legislative regulation of the exercise of the judicial power, at least so long as a facility existed for dispensation from the rigidity of the rule, where the particular circumstances of the case required it. Such a power clearly exists under O 36A r 6(2). The Act, s 37A(10) makes it plain that the Court may, in any case, of its own motion, review an exercise of power by a registrar pursuant to a delegation under the section. That power is plenary. It is not confined, as an application by a party under s 37A(9) is, to being made "within the time prescribed by, or within such further time as is allowed in accordance with" the Rules of Court. Very properly, Moss J appears to have exercised one of these powers to cure Dr Harrington's suggested time default.

35. The Full Court of the Family Court was affected in what it did by the view which it took of the scheme of the Act and Rules and the consequent unavailability of the evidence tendered by Dr Harrington of what had happened at the mediation conference. But once that suggested impediment is removed, this was a clear case for the exercise by the primary judge of his powers. Both under the Act and the Rules, and of constitutional necessity, those powers were very large. They were recognised to be so by Moss J and so exercised by him. The Full Court erred in disturbing that exercise. It is unnecessary to rest this conclusion on the suggested constitutional invalidity of ss 37A(9), 123 or the provisions of the Rules. So far as it matters, I see no such constitutional invalidity.

36. Various other constitutional points were mentioned during argument, or hinted at. These included questions concerning the power of the Parliament, and of a rule-maker under legislative power, to impose mediated outcomes upon parties who are before federal courts and the power of the rule-maker to extend the ambit of a rule such as O 24 r1(8) to affect not only what is done in the Family Court but also before other courts and persons. As such questions were not covered by the notices given under the Judiciary Act they could not be dealt with. In the event, they do not require determination in these proceedings.

37. Where subordinate legislation appears to be outside the grant of power, and invalid for that reason, a final question arises as to whether it is possible to save part of the regulation or rule in question, upholding some provisions and denying effect to others (91). Thus, s 46(1) of the Acts Interpretation Act 1901 (Cth) provides, relevantly:

"Where an Act confers upon any authority power to make, grant or

issue any instrument (including rules, regulations or by-laws), then:

...

(b) any instrument so made ... shall be read and construed subject

to the Act under which it was made ... and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power."

A question arises as to whether the judges of the Family Court of Australia constitute an "authority" within s 46(1) of the Acts Interpretation Act. The word is not relevantly defined. Giving the section a broad and purposive construction, as being intended to apply a general principle of statutory construction to federal Acts, I am inclined to consider that the word "authority", in the context, is sufficiently wide to include judges with a delegated power of rule-making. Other provisions of the Acts Interpretation Act (eg s 28) suggest that this was so and it would be anomalous if it were not.

38. However, it is unnecessary to decide this point because, ultimately, the Act and the co-ordinate principles of the common law, make the determinant to be the intended operation of the subordinate rule to be imputed from its language and context of the Act. In Bread Manufacturers of New South Wales v Evans (92) it was suggested that, in deciding whether a subordinate rule is capable of severance, regard must be had to whether the rule-maker could have intended the rule in question to operate with a limited application (93). Of course, such intention is to be found objectively. It is imputed by the court to the law-maker based upon an assessment of the purpose and scheme of the law.

39. When O 24 r 1(8) is examined by this criterion it is tolerably clear that the rule-maker intended it to operate in its entirety, according to its terms. Subject to any statutory exceptions specifically provided for, a regime of absolute confidentiality, protected by the inadmissibility of evidence, was clearly intended and plainly expressed with such exceptions as were to be allowed stated in terms. In my view, the rule cannot therefore be severed and left to operate with only the exceptions provided in sub-r 1(9) and with an implied statutory exception for evidence necessary to an application under s 79A of the Act. In the language of Mason and Wilson JJ in Evans94 the rule "is either good or bad" in its totality. In my view it is bad.

40. A minor dispute arose at the conclusion of argument in this Court concerning the costs of the appeal to the High Court. It was urged for Dr Lowe that, as the problems had arisen from the meaning and validity of legislation and subordinate legislation, the Commonwealth, which had intervened in the proceedings, should pay the costs of the appeal. This would not be a correct order. The Commonwealth was not a disputing party. It intervened only to assist the Court on constitutional and related questions. It would be inappropriate to inhibit such assistance by a costs order of the kind requested. In any case, Dr Lowe pressed for his costs before the Full Court of the Family Court. It is therefore not unreasonable that the ordinary rule should apply to him. It was agreed by the parties that the matter must be returned to the Full Court of the Family Court for the resolution of issues that remain outstanding in the appeal. It may be hoped that the saga of this litigation will soon be brought to a close and that the legal representatives will assist the parties to that end.

3 See, as to the principles involved at general law: A Roberts and Co Ltd v Leicestershire County Council (1961) Ch 555 at 570; Riverlate Properties Ltd v Paul (1975) Ch 133 at 140; Johnstone v Commerce Consolidated Pty Ltd [1976] VicRp 46; (1976) VR 463 at 468-469; Thomas Bates Ltd v Wyndham's Ltd [1980] EWCA Civ 3; (1981) 1 WLR 505 at 514-516, 520-521; [1980] EWCA Civ 3; (1981) 1 All ER 1077 at 1085-1086, 1090.

4 The primary judge, in addition to setting aside order 5, made the following order:

"That the parties and each of them have liberty to apply in respect of further directions as to any proceedings between the parties arising out of these orders (and) the preservation of assets pending the final disposal of relevant issues between the parties".

This suggests that the orders were interlocutory in nature because not all of the questions in issue had been determined, such that leave to appeal to the Full Court was necessary in conformity with s 94AA and the reasoning in such decisions of this Court as Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; (1984) 54 ALR 767. It does not appear that such leave was sought or granted. However, no point concerning this aspect of the litigation has been taken.

5 [1991] HCA 9; (1991) 172 CLR 84.

6 For example: Federal Court Rules, O 1 r 8; Supreme Court Rules (NSW), O 1 r 12; and General Rules of Procedure in Civil Proceedings 1986 (Vic), O 1 r 2.04.

7 Survival and Industrial Equipment (Newcastle) Pty Ltd v Owners of the Vessel "Alley Cat" [1992] FCA 242; (1992) 36 FCR 129 at 138. See also Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104 at 108-109.

8 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 122.

9 [1991] HCA 9; (1991) 172 CLR 84 at 153.

10 Paragraph (b) of sub-r (9) was amended by Statutory Rules 1995 No 371, r 36.6 by adding the words "section 112AD or" after the word "under". Section 112AP deals with contempt. Section 112AD provides sanctions for failure to comply with orders.

11 Field v Commissioner for Railways for NSW [1957] HCA 92; (1957) 99 CLR 285 at 291; Rush and Tompkins Ltd v Greater London Council [1988] UKHL 7; (1989) AC 1280 at 1300.

12 Heydon, Cross on Evidence, 5th Aust ed (1996), pars 25,355, 25,365.

13 [1964] HCA 25; (1964) 114 CLR 608 at 614.

14 [1954] HCA 46; (1954) 90 CLR 353 at 369.

15 [1954] HCA 46; (1954) 90 CLR 353 at 370.

16 Authorities which have applied this functional analysis are collected in Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 360-361.

18 See Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 260.

19 See Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245 at 250; Utah Construction and Engineering Pty Ltd v Pataky (1966) AC 629 at 640; Willocks v Anderson [1971] HCA 28; (1971) 124 CLR 293 at 298-299; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs [1995] HCA 11; (1995) 69 ALJR 558 at 562; 129 ALR 191 at 197.

21 Huddersfield Banking Company Limited v Henry Lister and Son Limited (1895) 2 Ch 273 at 280; Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243-244; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 696-697.

22 Rush and Tompkins Ltd v Greater London Council [1988] UKHL 7; (1989) AC 1280 at 1300.

23 Rush and Tompkins Ltd v Greater London Council [1988] UKHL 7; (1989) AC 1280 at 1300.

24 See Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd (1990) 27 FCR 86, where the misleading or deceptive conduct was alleged to contravene ss 52 and 53 of the Trade Practices Act 1974 (Cth).

25 See Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371.

26 [1921] HCA 31; (1921) 29 CLR 357 at 369. See also Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 516-520, 526-527; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 335, 347-348, 366-367, 371-372.

27 Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 315-317; Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 720-721.

28 Wade and Forsyth, Administrative Law, 7th ed (1994) at 886.

29 See Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 335.

30 [1910] HCA 33; (1910) 11 CLR 1.

31 [1910] HCA 77; (1910) 11 CLR 689.

32 [1918] HCA 56; (1918) 25 CLR 434.

33 DPP v Hutchinson [1988] UKHL 11; (1990) 2 AC 783, discussed in Bradley, "Judicial Enforcement of Ultra Vires Byelaws: The Proper Scope of Severance", (1990) Public Law 293.

34 Mangano v Mangano (1974) 4 ALR 303 at 320, a case concerned with rules made under s 127(1) of the 1959 Act.

35 Ex parte Whybrow and Co [1910] HCA 33; (1910) 11 CLR 1 at 26-27. See also de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed (1995), pars 6-101, 6-102; and DPP v Hutchinson [1988] UKHL 11; (1990) 2 AC 783 at 811; Commissioner of Police v Davis (1994) 1 AC 283 at 298-299; the first of these decisions, and Olsen v City of Camberwell [1926] VicLawRp 9; (1926) VLR 58 at 68-69, illustrate the dictum of Isaacs J in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 713 that no distinction in application of the common law principles is to be drawn between statutes and delegated legislation.

36 [1991] HCA 9; (1991) 172 CLR 84.

37 Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Brennan and Toohey JJ dissenting.

40 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 153.

41 Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 153.

42 O 36A r 5(2) and O 36A r 6(2). See also s 37(A)(9) and (10) of the Act.

48 Unreported, Full Court of the Family Court of Australia, 17 July 1995.

53 Johnston v Johnston (1986) 10 Fam LR 700; Marriage of Borninkhof (1986) 11 Fam LR 151; Marriage of Gray (1986) 11 Fam LR 548.

57 See eg the Act, ss 123(1)(c), (d), (s), (sb), (sd).

58 As originally expressed, O 24 r 1(9) referred to the Act, ss 108 and 114(4). These references were deleted following amendments to the Act in 1994 and 1995.

65 Rush and Tompkins Ltd v Greater London Council [1988] UKHL 7; (1989) AC 1280 at 1300.

66 Tomlin v Standard Telephones and Cables Ltd (1969) 1 WLR 1378 at 1383.

67 Quad Consulting Pty Ltd v David R Bleakley and Associates Pty Ltd (1990) 27 FCR 86.

68 Tenstat Pty Ltd v Permanent Trustee Aust Ltd (1992) 28 NSWLR 625 at 633.

69 Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 432.

70 cf Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528.

71 Huddersfield Banking Company, Limited v Henry Lister and Son, Limited (1895) 2 Ch 273 at 280. See also Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 96, 105, 133f.

74 See discussion Marshall v Marshall (1983) FLC 91-341.

76 See eg Supreme Court Act 1970 (NSW), s 110P.

77 Hooper v Hooper [1955] HCA 15; (1995) 91 CLR 529 at 538; White v White [1947] VicLawRp 65; (1947) VLR 434 at 440; Price v Price (1963) NSWR 1214 at 1222.

78 Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 158.

79 Circosta v Lilly (1967) 61 DLR (2d) 12 at 15; cf Nygh, Conflict of Laws in Australia, 6th ed (1995) at 254.

80 See discussion cited in Taylor v Guttilla (1992) 59 SASR 361 at 376.

82 Karasaridis v Kastoria Fur Products (1984) 37 SASR 345.

83 Campbell, Rules of Court (1985) at 139f. See also Republic Gear Company v Borg Warner Corporation [1967] USCA2 153; (1967) 381 F 2d 551 at 555; Taylor (1992) 59 SASR 361 at 365; Cleland v Boynes (1978) 19 SASR 464 at 472-474.

84 Supreme Court Act 1970 (NSW), s 110P.

85 Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322.

86 Re Grosvenor Hotel, London (No 2) (1965) Ch 1210 at 1243; cf Taylor (1992) 59 SASR 361.

87 See eg Cox J in Taylor (1992) 59 SASR 361 at 370; cf Elders Trustee and Executor Co Ltd v Registrar of Probates SA [1917] HCA 24; (1917) 23 CLR 169 at 174.

88 The emergence of the concept, via European legal institutions, is traced in State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 321-325.

89 See eg Dawson J in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 88; cf South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 165.

92 [1981] HCA 69; (1981) 180 CLR 404.

93 See eg [1981] HCA 69; (1981) 180 CLR 404 at 441.

94 [1981] HCA 69; (1981) 180 CLR 404 at 441.