the nature of the decision
31 The nature of a decision not to accept or issue documents pursuant to FCR, O 46 r 7A, or similar powers, has been considered in several cases.
32 In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154, the Commission sought to file in the Family Court of Western Australia a notice disputing a bill of costs presented by a firm of solicitors acting for a legally aided party. The Registrar of the Family Court declined to accept the notice on the ground that the Court had no jurisdiction to deal with the dispute. The Commission sought judicial review in the Federal Court of the Registrar's decision, invoking s 5 of the ADJR Act.
33 Toohey J held that:
(i) the Registrar's refusal to accept the notice was a 'decision' made by him;
(ii) the decision was made 'under an enactment', namely the Family Law Act 1975 (Cth) and the regulations thereunder; and
(iii) the decision was of an administrative character.
34 Toohey J pointed out (at 601) that the decision had been made by a Deputy Registrar on his own initiative, with the consequence that there would be no assessment of costs. His Honour said (at 602) that the decision:
'had none of the formal or procedural attributes associated with judicial decisions. There was no hearing, albeit reasons were offered for the decision.'
Accordingly, his Honour considered that the Registrar's decision could be reviewed pursuant to the ADJR Act.
35 In Letts v Commonwealth (1985) 8 FCR 585, a Registrar of the High Court, acting in accordance with the High Court Rules 1952, O 58 r 4(3), sought the direction of a Judge in relation to initiating process Mr Letts sought to have issued. The sub-rule required the Registrar to take this step where the process presented to the Registry appeared to him to be an abuse of the Court's process. (See now High Court Rules 2004, r 6.07, which is in substantially the same terms as FCR, O 46 r 7A.) Mason ACJ, pursuant to the same sub-rule, directed the Registrar not to issue the process without prior leave of a justice. Mr Letts challenged the decision of the Registrar to refer the matter to a justice under the ADJR Act.
36 Toohey J held that although the Registrar had made a decision, it was not a decision of an administrative character. His Honour reasoned as follows (at 587):
'The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was … part of the organisation through which the powers and jurisdiction of the court were exercised…": see Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, [r 4(3)] provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission of Western Australia v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court.
Furthermore Mr Letts was not truly a person aggrieved by the Registrar's decision. The Registrar's actions did not of themselves materially affect him; it was the decision of the Acting Chief Justice that precluded the Registrar from accepting Mr Letts' documents and that decision had built into it the machinery by which Mr Letts may seek leave to issue process.'
37 In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, the issue was the competency of an application for leave to appeal from a direction given by a Judge of the Court to the Registrar, pursuant to FCR, O 46 r 7A, not to accept an application. The Full Court held that the application for leave to appeal was incompetent because the direction was a determination of administrative obligations with respect to the presentation of documents to a Registrar.
38 The Court pointed out (at [13]) that O 46 r 7A, in its original form, was inserted into the FCR in 1983. At that time it read as follows:
'If a document in any proceeding, including any originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar shall seek the direction of a Judge who may direct him to issue it or to refuse to issue it without the leave of a Judge first had and obtained by the party seeking to issue it.'
39 Their Honours considered (at [15]-[19]) that the rule in its current form, which was introduced in 1985:
'removed a clog on the Registrar's discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.
No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.
Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A.
A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the judge being unable to form a view on the face of the document that the Registrar is entitled to reject it. Further, the Registrar may be directed by the judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a Judge to lodge or file the document. An application to a judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.
It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.' (Emphasis added.)
40 It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts. Had the reasoning in Letts been followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal.
41 In my opinion, there is, with great respect, some doubt about the reasoning in Bizuneh insofar as it classifies a direction by a Judge pursuant to O 46 r 7A as 'administrative in character'. However, I am bound by the decision. Even if the Court's observations on this issue could be regarded as obiter, I would follow them on a summary dismissal application.
42 In any event, the Council did not dispute that the refusal by the Registrar to accept the applicant's initiating process was a decision to which the ADJR Act applies (although the Council's written submissions did not make clear whether the relevant decision was that of the Judge or of the Registrar acting at the direction of the Judge). The Council also accepted for the purposes of the summary dismissal application that the applicant is a 'person aggrieved' within the meaning of s 5(1) of the ADJR Act.