Harris v Caladine

Harris v Caladine - [1991] HCA 9 - HCA 1991 case summary — Zoe

[28]

In making a consent order determining the matters in issue between the parties in an application under s. 79(1), is the Court bound to take into account the matters prescribed by s. 79(4)? If the Court is bound to do so, the making of a consent order is no mere formality. Prima facie, the parties to a marriage are at liberty to agree in whatever terms they choose upon the interests they should respectively hold in the property owned by them or either of them. It has been held that an agreement between the parties, on separation or divorce, affecting their respective interests in such property can be specifically enforced: Wilson v. Wilson [25] . However, such an agreement in writing between the parties to a marriage falls literally within the definition of maintenance agreement in s. 4(1) of the Act as "an agreement that makes provision with respect to financial matters". If an agreement provides that it should operate in relation to those financial matters in substitution for any rights of the parties under Pt VIII of the Act - the Part which includes s. 79 - the agreement is unenforceable unless it has been approved by the Court: s. 87(1), (2). Section 87 does not have any direct application to the present case, however, for the Short Minutes were not in substitution for the rights of the parties under Pt VIII. The Short Minutes were evidently intended to be incorporated into, and to take effect as, an order of the Court under s. 79 and thus to determine the rights of the parties under Pt VIII. The terms of the consent were in conformity with the requirements of s. 81 that the Court should, as far as practicable, "finally determine the financial relationships between the parties and avoid further proceedings between them". Section 87 nevertheless manifests an intention that consensual arrangements as to financial matters between parties should, if those arrangements dispose of financial rights, be approved by the Court. If the contracting parties were entitled as of right to the making of a consent order in an application under s. 79(1), the provisions of s. 87 would be largely otiose. The parties could simply require the Court to make an order giving effect to their agreement rather than seek the Court's approval of their "maintenance agreement". Presumably, the reason why court approval of a "maintenance agreement" in any of its possible forms is required when the agreement is in substitution for rights under Pt VIII of the Act is that the community has an interest in ensuring that "provisions with respect to financial matters are proper", to use the words of s. 87(3). The same reason equally calls for the exercise of a discretion in the making of a consent order with respect to financial matters when the parties have reached agreement on their respective interests in their property. To ascertain whether a provision is "proper" it is necessary to take account of the factors listed in s. 79(4). The provisions of s. 87 thus suggest that the direction given to the Court by s. 79(4) to have regard to the factors therein mentioned applies to the making of consent orders as well as to the making of orders not by consent.

[34]

In the present case, though no evidence of circumstances warranting the setting aside of the consent order was placed before Maxwell J., we were informed that the wife claims to have been misled by advice given at the conference as to her right to resile from the consent which she was asked to give to the proposed order. That ground arguably falls within s. 79A(1)(a) of the Act. The majority of the Full Court put aside the jurisdiction under s. 79A as distinct from the jurisdiction to review the consent order pursuant to s. 37A of the Act. Their Honours were of the view - incorrectly, in my respectful opinion - that the review of such a consent order was confined to the two issues earlier stated. It is not clear whether their Honours would have included in the first issue - "whether the terms of the order were agreed" - the question of fraud vitiating the wife's consent. However, in the way in which the proceedings were conducted before Maxwell J. the question whether the wife's consent to the order made by the Deputy Registrar had been procured by fraud did not arise. In the Full Court, it seems, that question was not addressed. But what was addressed was the scope of the power conferred by s. 37A(10) to review a consent order made by a Registrar. Assuming for the moment that the power to make a consent order in a s. 79(1) matter may validly be delegated to a Registrar, the power to review the order seems to me to be conferred in the widest terms. The Court's jurisdiction is "to review an exercise of power", being the particular exercise of power which has resulted in the making of the order: see the phrase "that exercise of power" in s. 37A(9). The Court may then make such order or orders "as it considers appropriate with respect to the matter with respect to which the power was exercised": s. 37A(10). The Court may receive fresh evidence as well as the evidence given in the proceedings before the Registrar: O. 36A, r. 7(4). Most significantly, the reviewing Court is directed to "proceed by way of a hearing de novo": O. 36A, r. 7(4)(a). The Act intends the view of a Judge on review to prevail over any inconsistent view by a Registrar or Deputy Registrar with respect to the matter dealt with by the order. Although the Registrar exercises (or purports to exercise) judicial power in making a consent order in a s. 79(1) matter, the jurisdiction to review conferred on the Court is, in my opinion, original jurisdiction to be exercised on the evidence laid before the Court and on the law as it stands at the time of the review: see Re Coldham; Ex parte Brideson [No. 2] [35] ; Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. [36] . If the order of the Deputy Registrar was validly made, in my opinion the jurisdiction of the Court on review is not confined in the manner in which either Maxwell J. or the Full Court would confine it. It is a jurisdiction to consider afresh not the propriety of making a consent order but the making of a proper order on the original s. 79(1) application. The consent order, though final in effect so long as it stood, was liable to be set aside if an application for review was made within the prescribed period. In the present case, on a review the Court would be entitled to consider afresh - de novo - the order which ought to be made altering interests in the parties' property. That is, of course, if the consent order was validly made. If the purported delegation of power to make a consent order be invalid, there is no order susceptible of review and the wife's s. 79 application remains undetermined.

[38]

Section 71 of the Constitution provides for the judicial power of the Commonwealth to be vested in the courts therein mentioned: a federal Supreme Court (called the High Court of Australia), federal courts created by the Parliament and other courts. Section 77(iii) creates the legislative authority to make laws investing "any court of a State" with federal jurisdiction with respect to any of the matters mentioned in ss. 75 and 76 of the Constitution. "[A]ny court of a State" falls within the third class of courts mentioned in s. 71, namely, "such other courts as [the Parliament] invests with federal jurisdiction." In the H.C.F. Case [37] it was held by a majority of this Court that the "court of a State" in s. 77(iii) of the Constitution means the court as an institution and not the judges who comprise its membership. A State court invested with federal jurisdiction is that court as it happens to be organized from time to time, so that a federal judicial power invested in that court by a law enacted pursuant to s. 77(iii) may be exercised by any person to whom the organization of that court entrusts the exercise of analogous powers, whether or not that person is a judge of that court. That view being taken by the majority, there was no occasion to determine whether a State court invested with federal jurisdiction could be empowered, or possessed inherent power, to delegate the federal judicial power with which it was invested to another institution or to a person standing outside the organization of that court. However, when the Parliament invests part of the judicial power of the Commonwealth not in a court of a State but in the High Court or in a federal court created by the Parliament, s. 77(iii) has no relevance: see Le Mesurier v. Connor [38] . The decision in the H.C.F. Case does not determine whether any and what part of the judicial power of the Commonwealth, when invested in the High Court or in a federal court created by the Parliament (hereafter collectively referred to as "federal courts"), must be exercised by Justices appointed in accordance with s. 72 of the Constitution (hereafter "Chapter III judges").

[44]

a catena of cases decided by this Court has enforced the principle that the judicial power of the Commonwealth cannot lawfully be conferred upon organs other than the High Court, the Judges of the Federal Courts created by Parliament, and the Courts of a State. This principle has prevented the attempts of the Federal Parliament either (a) to vest what is strictly judicial power upon Commonwealth authorities without creating those authorities as a Federal Court consisting of Judges appointed pursuant to s. 72 of the Constitution, or (b) to compel the High Court to exercise jurisdiction beyond the limits of secs. 75 and 76 of the Constitution. (Emphasis added.) I respectfully agree. There are some inconclusive dicta in other cases which leave open the extent of the power of Ch. III judges to delegate the exercise of parts of the judicial power of the Commonwealth vested in their respective courts: see Le Mesurier v. Connor [42] ; Bond v. George A. Bond & Co. Ltd. and Bond's Industries Ltd. [43] ; Kotsis v. Kotsis [44] ; and the H.C.F. Case [45] . In my opinion, the necessity to reserve to Ch. III judges the sole authority to hear and determine matters dictates the limits of delegation of jurisdiction vested in a federal court either by the Constitution or by a federal law. Before the H.C.F. Case, when it was understood that there were limits on the powers which could be delegated to non-judicial officers by State courts, the limits of delegation were stated in reference to reserving to judges the sole authority to hear and determine matters. Thus Windeyer J. in Kotsis said [46] : I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to an adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called "proceedings for ancillary relief". They must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made. The taxation of costs by a taxing master is an example of a matter of the first kind. The taking of accounts or an inquiry as to damages for the purpose of reporting the result to the court to enable a judgment to be given are of the latter kind. So too are proceedings before a registrar for a certificate of means pursuant to the Matrimonial Causes Rules 211-213. Reports and certificates rendered to a court resemble in substance the verdicts of juries impanelled to try facts according to the tradition of the common law. Jurymen must arrive at their verdict after considering the evidence in a judicial manner; but they are not part of the court. Their verdict only becomes binding upon the parties when it is accepted by the court, and provided it is not set aside on a motion non obstante veredicto. Indeed at one time the judge sitting at nisi prius did not give judgment when the jury returned its verdict - Why? Because he was not the court: see Wilson v. Hood [47] .

[50]

If it be said that this view imposes undue restrictions on the court's power of delegation and an undue burden on the Justices who compose the court to deal with matters of small import, it can be said in reply that there are some remedies for alleviating the burden. Windeyer J. in Kotsis [51] , mentioned the adoption of procedures of reference and report. Another is the conferring and exercise of a power to remit matters to courts of limited jurisdiction. But whether or not the available remedies are adequate to relieve the burden, the existence of the burden is no justification for denying the implication of the constitutional text. To the contrary, the Constitution stands as a brake upon expediency in the interests of litigants who bring their cases to court for adjudication. This is not a matter of merely theoretical concern. The pressure on the Family Court to adopt measures for relieving Ch. III judges of the burden of adjudication is enormous. Fogarty J. furnished some statistics showing the volume of applications to the Family Court; he cited the Minister's reasons for introducing amendments to enhance the Registrars' powers as including the experience of State courts in minimizing the number of judges and his Honour suggested that, by a vigorous exercise of the power of delegation "in a substantial number, if not the majority, of cases under s. 79 the parties may be compelled to have that matter determined by a non-judicial officer". Noting that there is a changed perception as to the effect of divorce on the status of the parties, his Honour suggests that the determination of the 40,000 applications for divorce each year - mostly undefended and "dealt with routinely in the matter of a few minutes each" - might be dealt with by non-judicial officers. It seems that the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act. That is the section which speaks of the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (par. (a)) and the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children (par. (b)).

[85]

As appears from that case, the fact that a court must consist only of judges, as a federal court must, does not mean that it cannot exercise its functions through an appropriate organization which is made available to it. Nor does that conclusion result, as Isaacs J appears to have thought it did, in judicial power being vested in every officer of the court. It merely means that the court may, subject to any restrictions imposed upon it by Parliament, delegate to such of its officers as are suitable such of its functions as it thinks fit. It may do so pursuant to express powers given to it, pursuant to its rule-making power or pursuant to an inherent power to order its own affairs. No doubt it is beyond the power of Parliament to compel a federal court to exercise any of its judicial functions through an officer of the court. The exercise of those functions by that officer would not then be as a delegate of the court and that would be inconsistent with the requirement that the court consist only of judges. For the same reason a federal court must retain effective supervision and control over the exercise of its functions by its officers. If it does not do so, those functions may be seen to be exercised by an officer of the court, not as a delegate, but as a person of independent authority. A federal court must be able to exercise a real choice for itself over those matters, if any, which are to be delegated. Effective supervision and control will not be maintained if there are insufficient judges for the purpose or if for any other reason the court lacks the necessary capacity. Where the judicial power of the Commonwealth is vested in a federal court, the exercise of that power must be by or on behalf of the court itself, that is, the court consisting of judges, notwithstanding that the court may employ for that purpose an organization extending beyond the judges themselves. Whether or not the exercise of judicial power is by or through the court itself will be a matter of practical as much as of theoretical judgment.

[201]

Although the limitations imported by the complete and exhaustive nature of s. 71 of the Constitution are each expressed in terms of judicial power, each limitation is directed to a different concept. The first is directed to that power which, by reason that it is essentially judicial, must be vested in courts. In general terms, that is the power that is brought to bear in determining the guilt of, or punishment for, breach of the law and in making final and binding determinations in controversies as to the existence of a legal right, power or obligation or as to legal status: see Re Tracey; Ex parte Ryan [49] , per Deane J. See also Huddart, Parker [50] , per Griffith C.J., and per Isaacs J. [51] ; Alexander's Case [52] , per Griffith C.J., and per Isaacs and Rich JJ. [53] ; Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [54] , per Kitto J. The second limitation is directed to those powers which, although not essentially judicial, may be vested in courts named or indicated in s. 71. In general terms, they are powers which are appropriately vested in courts. The latter powers were described by Dixon C.J. and McTiernan J. in Davison [55] as bearing a "double aspect" in that "[t]he legislature may commit [them] to courts falling within Ch. III although much the same function[s] might be performed administratively." Powers which bear this "double aspect", if vested in a court as named or indicated in s. 71, form part of the judicial power of the Commonwealth with all the consequences dictated by Ch. III of the Constitution: see Federal Commissioner of Taxation v. Munro [56] , per Isaacs J.; Queen Victoria Memorial Hospital v. Thornton [57] . See also the Boilermakers' Case (Privy Council) [58] . Conversely, if vested in some other person or body, such powers stand outside the reach of Ch. III. See Reg. v. Hegarty; Ex parte City of Salisbury [59] , per Mason J., and per Murphy J. [60] ; Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [61] .

[207]

It must be accepted that Ch. III imposes limits on the delegation of powers and functions conferred on a court. If all such powers were, as a result of delegation, to be regularly exercised by persons not constituting the court, the powers (other than those which are essentially and, thus, exclusively judicial) would cease to fall within the concept of judicial power and the body on whom they were conferred would no longer properly be described as a court. However, in my view, the question is not whether the Act purports to authorize delegation beyond such limits but whether there has been an attempt in O. 36A, r. 2(1)(n) by the Family Court to delegate beyond those limits. The specific legislative powers conferred by ss. 73, 76, 77, 78 and 79, even when aided by s. 51(xxxix), touch the question of delegation only indirectly. Pursuant to the power conferred by s. 79, the Parliament may prescribe the number of judges necessary to exercise federal jurisdiction or some particular part thereof and, by a law of that nature, the Parliament can preclude the delegation of the power or powers associated with the exercise of that jurisdiction. Again, pursuant to s. 51(xxxix), the Parliament might prescribe rules of practice or procedure which would have the effect of precluding the delegation of some particular power. But to say that Parliament may preclude delegation is not to say that its authorization is necessary before a particular power or function may be delegated. Rather, the specific and limited legislative powers in ss. 73, 76, 77, 78 and 79 point to the conclusion that, unless the contrary is required by a law made pursuant to s. 79 or s. 51(xxxix), a federal court may, within the limits imposed by Ch. III and within the limits of what is practicable, determine for itself whether, and, if so, to whom and on what terms, particular powers and functions should be delegated. A law, such as s. 37A of the Act, which purports to authorize the delegation of particular powers and functions and specifies to whom and on what terms they may be delegated is thus to be seen as a law requiring that the powers and functions be performed by the court constituted by one or more of its judges as required by its constituting Act unless delegated in accordance with its provisions. As such, s. 37A(1) is a law validly enacted pursuant to s. 79 of the Constitution.

[231]

At first sight, there is considerable attraction in the submission that the word "court" has the same meaning throughout s. 77 of the Constitution and, therefore, if, as was held in the H.C.F. Case, the powers and jurisdiction of a State "court" invested with federal jurisdiction can be exercised by officers of the court who are not members of the court, it should follow that the jurisdiction of a federal "court" can also be exercised by officers of that court who are not members of it. But the submission, when pushed to its logical conclusion, leads to the result that the judicial power of a federal court can be exercised by persons who neither were appointed pursuant to s. 72 of the Constitution nor are subject to the supervision of the judges of that court. Nothing in the reasoning in the H.C.F. Case suggests that the masters and other officers of State courts can exercise invested federal jurisdiction only if the exercise of the jurisdiction is subject to review by the judges of those courts. If the holding in the H.C.F. Case is applied to the High Court and federal courts, there is no escape from the conclusion that the original jurisdiction of those courts can be exercised by persons who are not subject to review by the Justices or judges of those courts and who were not appointed in accordance with s. 72 of the Constitution. Such a conclusion can hardly stand with the decision in Alexander if, as the Commonwealth conceded, membership of a federal court is constitutionally confined to Justices and judges holding tenure under s. 72. Moreover, there is a real difference between the exercise of jurisdiction by State courts invested with federal jurisdiction and the exercise of jurisdiction by the High Court and federal courts created under s. 71 of the Constitution. To fail to perceive the difference is to overlook the unique role which the federal judiciary plays in a federal system of government and the need to ensure that the federal judiciary is independent of the federal Parliament and the Executive Government of the Commonwealth.

[235]

Now, the position of the High Court which is being established under Federation is entirely different in many respects from that which prevails in connection with the Supreme Court of the colony or the High Court in England. The Federal High Court is placed in a position to safeguard the liberties of the subject and the rights of the individual States against the encroachment of the Legislature. It is placed in a position in which its independence must be absolutely assured. At the same Convention, Mr. Kingston said (p. 946): I think we should be at great pains to secure the absolute independence of the Judges of the Federal Court, particularly of the Judges of the High Court of Australia, who are intended to adjudicate on matters which may affect the Federal Executive and the Federal Parliament. To my mind we shall be committing a glaring mistake if we do not protect these judges from ill-considered action either by the Federal Executive or by the Federal Parliament. It was to ensure the independence and impartiality of the Justices of the High Court and the judges of the federal courts that the framers of our Constitution enacted s. 72 so as to give security of tenure and remuneration to the federal judges who were to exercise the judicial power of the Commonwealth. It is plain that the framers intended that the judicial power of the Commonwealth should be exercised only by courts composed of Justices and judges appointed in accordance with s. 72 or State courts invested with federal jurisdiction under s. 77(iii) of the Constitution. Though the Parliament might confer federal jurisdiction on a State court whose members did not have the security of tenure and remuneration afforded by s. 72, this result would ensue only because the State concerned did not want its judicial officers to have the same security of tenure as given by s. 72. But the exercise of the judicial power of the Commonwealth by federal courts was another matter. 1. (1929) 42 C.L.R. 481. 2. (1986) 478 U.S. 833, at p. 848.

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