LFDB v Deputy District Registrar

BACKGROUND 4 The Application that was before the primary judge was made against a background of litigation between the applicant (LFDB) and his ex-partner (SM) that had been before the courts in Australia and New Zealand for many years. The history of the proceedings in New Zealand is set out in more detail in LFDB v SM (No 3) [2017] FCA 80 (Griffiths J). 5 On 16 December 2015, a Deputy District Registrar registered two judgments of the High Court of New Zealand pursuant to s 68 of the Trans-Tasman Proceedings Act (New Zealand judgments). The Deputy District Registrar issued Certificates of Registration in respect of the New Zealand judgments under the Trans-Tasman Proceedings Act. 6 In early 2016, the applicant applied to set aside the registration of the New Zealand judgments, under s 72 of the Trans-Tasman Proceedings Act. That application was dismissed by Griffiths J in LFDB v SM (No 3). A subsequent appeal was dismissed by the Full Court: LFDB v SM [2017] FCAFC 178 (Besanko, Jagot and Lee JJ). 7 By the Application, which was filed on 30 June 2023, the applicant sought an extension of time in which to bring an application under the ADJR Act for review of the Deputy District Registrar's decision, made on 16 December 2015, to issue the Certificates of Registration under the Trans-Tasman Proceedings Act. 8 The Application was heard by the primary judge on 27 November 2023. 9 On 14 December 2023, the primary judge made orders dismissing the Application. In doing so, his Honour rejected the applicant's submission that registration of the New Zealand judgments pursuant to the Trans-Tasman Proceedings Act was an exercise of administrative power capable of review under the ADJR Act. As a result, his Honour said that it followed that there would be no utility in extending the time for the applicant to seek judicial review under the ADJR Act and the Application was dismissed. 10 The applicant now seeks leave to appeal the primary judge's orders.

Grounds 11 An applicant for leave to appeal must generally demonstrate, first, that the relevant decision is attended with sufficient doubt to warrant its reconsideration on appeal and, second, that substantial injustice would result if leave were refused, assuming the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ). 12 The applicant submitted that leave to appeal should be granted because the primary judge erred in a number of respects. The main grounds, as best they can be understood, on which the applicant submitted error on the part of the primary judge were as follows: (a) the primary judge erred in the classification of the decision exercised by the Deputy District Registrar; (b) the primary judge erred in not considering that the Court did not have jurisdiction in the matter and that the Trans-Tasman Proceeding Act was not applicable; (c) the primary judge erred in not considering the case of Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94 (Lucev J); (d) in the subsequent case of De Lange v De Lange [2024] FCA 158, the primary judge applied a different test in a case that was factually similar and reached a conclusion that should have been reached in the present case, (e) the primary judge demonstrated Wednesbury unreasonableness. 13 The applicant addressed these grounds in written submissions and orally at the hearing. To a significant degree, the applicant's submissions were directed to the merits of the proposed application for review under the ADJR Act or the Deputy District Registrar's lack of power to register the New Zealand judgments under the Trans-Tasman Proceedings Act. I will come back to the latter issue, later.

CONSIDERATION 14 The purpose of the Trans-Tasman Proceedings Act, as set out in s 3, is to: (a) streamline the process for resolving civil proceedings with a Trans-Tasman element in order to reduce costs and improve efficiency; and (b) minimise existing impediments to enforcing certain New Zealand judgments and regulatory sanctions; and (c) implement the Trans-Tasman Agreement in Australian law. 15 Part 7 of the Trans-Tasman Proceedings Act deals with the enforcement in Australia of specified judgments of New Zealand courts and tribunals. Essentially, to be enforceable in Australia, the judgment has to be a 'registrable NZ judgment', which requires satisfaction of the criteria set out in s 66, and it must be registered in an 'Australian court': see s 64. 'Australian court' is defined to include 'a federal court'. 16 The power to register a New Zealand judgment is vested in this Court by s 68(1) of the Trans-Tasman Proceedings Act, which provides: An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part. 17 Section 67 of the Trans-Tasman Proceedings Act sets out the application requirements. 18 A registered New Zealand judgment has the same force and effect and may give rise to the same proceedings for enforcement as if the judgment had been given by the Australian court in which it is registered: see s 74. 19 In the primary judgment, the primary judge addressed the applicant's submissions that the registration of a judgment under s 68(1) was an exercise of administrative, rather than judicial, power that fell within the purview of the ADJR Act. 20 Before the primary judge, the applicant had relied on the decision of Sarah C Derrington J in Herd v Haines [2023] FCA 325 at [11] where her Honour said "[t]he process established under the [Trans-Tasman Proceedings] Act is essentially administrative". 21 The primary judge held (at PJ [9]) that the above passage in Herd did not assist the applicant's case because: As the remainder of the paragraph demonstrates, her Honour was referring in the emphasised sentence to the mechanical nature of the process of registering judgments under the TTP Act. The application before her Honour was an application to register a judgment under s 68(1) to which she acceded. Plainly therefore her Honour cannot be taken to have been suggesting that the power was anything but judicial in character. 22 It is my view that there was no error demonstrated in the primary judge's conclusion at [9] of the primary judgment. The distinguishing feature of the case in Herd was that it was an application to register part only of a New Zealand judgment. It was in that context that Sarah C Derrington J observed that the process established under the Trans-Tasman Proceedings Act was "essentially administrative" and determined that there was no apparent reason why registration of part of a judgment was not permissible under the Trans-Tasman Proceedings Act. In my view, the above passage in Herd, which the applicant sought to rely upon, did not assist the applicant in his case before the primary judge for the reasons set out at [9] of the primary judgment. 23 The primary judge (at PJ [10]) said that he would accept the Applicant's submission (ie that registration of a judgment under s 68(1) is an exercise of administrative power) insofar as it entails the contention that due to its mechanical nature the power of registration, if conferred on the executive, would properly be characterised as administrative. However, the primary judge said, "some powers take their categorisation as judicial or administrative from the nature of the repository in which they are reposed". His Honour referred to R v Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277; [1957] HCA 81 where Kitto J observed at p. 305 that "sometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial". His Honour then noted that a similar point was made the previous year when a majority of the High Court observed that "[t]here are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap. III": R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 278 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). 24 Although it was not set out in full in the primary judgment, the full citation in Spicer at p. 305 warrants mentioning. The full citation, including the passage referred to in the primary judgment at [10], is as follows: It is true also that sometimes a grant of a power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial. But it by no means follows that whenever a power which has some similarity to an acknowledged judicial power is given to a judicial person or body there is a grant of judicial power. The reason for concluding in some such cases that the judicial character of the repository imparts a judicial character to the power is simply that the former provides a ground for an inference, which in those cases there is nothing or not enough in other considerations to preclude, that the power is intended and required to be exercised in accordance with the methods and with a strict adherence to the standards which characterise judicial activities. That is not a necessary inference, however, in every case of this kind. The authorised act itself, though not inherently incapable of judicial performance, may be by nature more appropriate for administrative performance. The possible effects of the act when done upon persons, situations and events may be such as to suggest the probability that decisions to exercise or to refrain from exercising the power were intended to be made upon considerations of general policy and expediency alien to the judicial method. The circumstances in which the power is to be exercisable may be prescribed in terms lending themselves more to administrative than to judicial application. The context in which the provision creating the power is found may tend against a conclusion that a strictly judicial approach is intended. And there may be other considerations of a similar tendency. The problem in such a case ought therefore to be recognised as one of statutory construction, the task being to decide whether or not the provision should be understood as intending that in discharging the responsibility which possession of the power entails the person or body entrusted with it is to act strictly as a judge. The fact that the person occupies a judicial office, or that the body is or is not a judicial tribunal is only one matter to be considered. There may be many others. [emphasis added] 25 The primary judge then noted (at PJ [11]) that there are a number of examples of powers which, if reposed in the executive, would be administrative in nature but which, because they are reposed in a court, have been held to be judicial in nature. His Honour referred to the example of the obligation of the Court to issue an examination summons under s 596A of the Corporations Act 2001 (Cth) once its pre-conditions are satisfied, which was held to involve an exercise of judicial power in Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 at [31], [36] (per Kiefel, Keane, Nettle and Gordon JJ) and [101] (per Gageler J). 26 In Palmer, the plaintiffs sought declarations that summonses for examination issued by the Court pursuant to s 596A of the Corporations Act were invalid, as contrary to Ch III of the Constitution. The High Court held that s 596A of the Corporations Act did not confer non-judicial power on federal courts and courts exercising federal jurisdiction, and was not contrary to Ch III of the Constitution. Kiefel, Keane, Nettle and Gordon JJ (at [31]) held that the making of a summons order was a procedure directed at the future exercise of judicial power, namely, a determination of the court in due course, in possible further litigation, seeking to establish a potential right to relief. Gageler J (at [101), after having regard to the court's supervisory role in connection with examinations it had ordered, held that s 596A conferred judicial power. 27 After referring to Palmer and setting out s 596A of the Corporations Act, the primary judge continued: 12. So far as the present question is concerned, s 596A and s 68(1) are structurally analogous. Both involve an obligation being cast upon the Court to take a step upon demonstration of certain pre-conditions. 13. Thus, whilst I accept that if the power in s 68(1) was reposed in the executive it would be administrative in nature, the fact that it has been reposed in a court means that it must be characterised as judicial. 28 It is my view that there was no error in primary judge's reasoning or the conclusions reached at [12]-[13] of the primary judgment. The primary judge, having noted the language of s 596A and s 68(1), observed that both provisions involve an obligation upon the Court to take a step (eg. registering a judgment) if certain pre-conditions are met. In the case of s 596A of the Corporations Act, the procedure in issuing a summons might lead to a determination of the Court in the future and has been held to involve an exercise of judicial power: Palmer at [31], [36] (per Kiefel, Keane, Nettle and Gordon JJ) and [101] (per Gageler J). In the case of s 68(1) of the Trans-Tasman Proceedings Act, the registration of a New Zealand judgment might lead to engaging the Court's enforcement processes in the future. The concept of judicial power has been held to include enforcement: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10 at [268]-[269] (Deane, Dawson, Gaudron and McHugh JJ). As stated in Spicer at p. 305, it was open to find that the judicial character of the repository imparted a judicial character to the power in s 68(1) of the Trans-Tasman Proceedings Act. In my view, the primary judge made no error in concluding (PJ at [13]) that the fact the power in s 68(1) had been reposed in a court meant that it must be characterised as judicial. 29 Finally, the primary judge dealt with the applicant's submission that the Deputy District Registrar did not have the power to register the judgments under s 68(1) of the Trans-Tasman Proceedings Act. Before the primary judge, and at the hearing of the application for leave to appeal, the applicant pointed out that the power to register a judgment under s 68(1) does not appear in either s 35A(1) of the Federal Court of Australia Act or schedule 2 of the Federal Court of Australia Rules 2011 (Cth), which together set out the judicial powers exercisable by Registrars. Accordingly, the applicant submitted, the decision involved jurisdictional error and was 'no decision at all' (relying on Plaintiff S157/2022 v Commonwealth (2003) 211 CLR 496; [2003] HCA 2 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ), such that the judgments remained unregistered. 30 The character of the decision was the only issue that was relevant to the Application that was before the primary judge. I reiterate the primary judge's remarks at [17] of the primary judgment that the argument about the lack of power to register the New Zealand judgments under s 68(1) of the Trans-Tasman Proceedings Act was not made by the applicant in the course of his application to set aside the registrations before Griffiths J or on appeal before the Full Court. Nevertheless, the primary judge dealt with the applicant's submission that the Deputy District Registrar did not have power to register the New Zealand judgments (PJ at [17]) as follows: There is force in the Applicant's contention that Registrars of this Court are not empowered to register judgments under s 68 of the TTP Act. However, even assuming its correctness, that contention does not assist the Applicant on the present application. The Deputy District Registrar purported to be exercising power pursuant to s 68(1). As I have explained above, the power conferred by s 68(1) is of a judicial character. The Deputy District Registrar therefore purported to be exercising judicial power. The alleged want of jurisdiction would not alter the legal character of the purported decision. It may be debated on the hypothesis of such jurisdictional error whether the purported decision is a nullity or valid and binding until set aside as a decision of a superior court of record (cf. Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) [2000] FCA 599; 99 FCR 554 at [18]- [24] per Finn J) but by neither path does it become a decision of an administrative character. I note in passing that this argument was not made by the Applicant in the course of his application to set aside the registrations before Griffiths J or on appeal before the Full Court. [emphasis added] 31 In Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554; [2000] FCA 599 (Finn J), a Registrar had made a winding up order under the Corporations Law of a State prior to the decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27, in which the High Court held that this Court had no jurisdiction in respect of State Corporations Law matters. The Registrar had no actual power to make the winding up order. The issue in Nedlands was whether the order of the Registrar, when acting under s 35A of the Federal Court of Australia Act, should be attributed a different consequence than an order of a Judge in a like matter, that is, where the Registrar or Judge purport erroneously to exercise the original jurisdiction of the Court. 32 Orders of the Court are, at worst, voidable, not void, even if made without jurisdiction and are valid and binding unless and until set aside: Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [27] (Rares, Flick and Bromberg JJ), citing Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5 at [590] (Rich J, with whom Latham CJ agreed at [585]), [598] (McTiernan J) and [605] (Williams J); Re Macks; Ex parte Saint (2000) 204 CLR 158 [2000] HCA 62 at [20] (Gleeson CJ), [49], [57] (Gaudron J), [152]-[156] per McHugh J and [216] (Gummow J). 33 In Nedlands, Finn J held (at [24]): It remains accepted in this country that the orders of this Court are voidable not void if made without jurisdiction, the Court being a superior court of record even if one of limited jurisdiction: see Robins v Incentive Dynamics, above, at 429-430 and the cases referred to therein; see also Wright, Law of Federal Courts, 5th Ed, s 16. Where, as in the present case, the Registrar was purporting to exercise the Court's original jurisdiction subject to review by the Court and the order made purported to be one of the Court, I can see no reason for not giving like effect to that order as to an order made by a Judge acting without jurisdiction. Where the constitutional objection relates in substance to the jurisdiction purportedly exercised and not to the status and office of the person exercising it, then it is appropriate in my view to characterise the order by whomsoever made as an order of the Court and as such subject to the superior court of record rule. This conclusion is consistent with the intent of the FC Act as manifest in s 20, s 35 and s 35A of that Act. It is also consistent with the existence of the s 35A(5) review power itself: Trustees of the Franciscan Missionaries of Mary v Weir at [20]. As I indicated earlier in these reasons, the Registrar's order was, as made, amenable to review. It would seem anomalous that an order to wind up a company should be void or voidable depending upon whether a s 35A review took place. 34 Nedlands was affirmed on appeal, see Chisholm v Official Trustee in Bankruptcy [2000] FCA 1234 (Moore, Kiefel and Mansfield JJ). 35 Accordingly, for present purposes, the Deputy District Registrar's decision was valid and binding unless and until set aside, even if made without jurisdiction: Nedlands at [24] (Finn J). To the extent that the Deputy District Registrar lacked power to register judgments under s 68(1), the Deputy District Registrar's decision "purported" to exercise power pursuant to s 68(1). Therefore, the primary judge was correct to observe that the Deputy District Registrar "purported" to be exercising judicial power for the reasons set out above. Moreover, the primary judge did not err in his conclusion at PJ [17] that the "alleged want of jurisdiction" would not alter the legal character of the purported decision. That is undoubtedly correct. 36 The character of the decision was the only issue that was relevant to the Application before the primary judge. The failure to address other grounds on which the applicant may have sought to challenge the Deputy District Registrar's decision did not involve any error on the part of the primary judge. Nor am I required to consider those grounds any further in this application for leave to appeal.

conclusion 37 In my view, the decision of the primary judge is not attended with sufficient doubt so as to warrant its reconsideration. I would refuse leave to appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Neskovcin.