Prime Minister John Piss the Family Court and Legal Aid v Electoral Registrar [2000] VSC 512

Supreme Court of Victoria|2000-11-22|Before: Gillard J

The application came on before the learned Magistrate on 28 October 1998 and was heard on that day and on 12th and 13 November 1998 when Her Worship reserved her decision.

Mr Perkins of counsel appeared for the plaintiff and Mr Colbran for the Registrar.

On 18 December 1998 the Magistrate published written reasons and dismissed the application brought by the plaintiff. She ordered the plaintiff to pay the Electoral Registrar's costs fixed at $1,500 and granted a stay of six months.

On 2 March 1999 the plaintiff instituted the present proceeding by filing an originating motion. The plaintiff seeks to invoke the common law supervisory jurisdiction which is now regulated by Order 56 and is known as judicial review. In former years it was known as an application for a prerogative writ. It is a limited jurisdiction. The originating motion contains some 23 grounds, the last alleging: "The decision, judgment and orders were contrary to the law."

The proceeding came on for hearing before Ashley J on 23 August 2000. On that occasion Mr M. Crennan of counsel for the Registrar submitted that the court did not have jurisdiction to hear a judicial review of a final order made by a Magistrate, because there was available to the aggrieved party, a right of appeal pursuant to s.109 of the Magistrates' Court Act 1989.

In the alternative it was submitted that in any event as a matter of discretion, the court should not entertain the application because the plaintiff failed to exercise the right of appeal that he had pursuant to the said section.

At that time Mr Perkins who appeared for the plaintiff raised what he submitted were constitutional questions and sought an adjournment to enable notice to be given to the Attorneys-General for the States and Commonwealth pursuant to s.78B, of the Judiciary Act.

His Honour adjourned the matter to enable the plaintiff to take what steps were appropriate and reserved the costs.

The matter came on for hearing before the court on 20 November 2000 and Mr Caleo of counsel now appears for the Registrar and made the same submissions.

At the outset of the hearing I raised with Mr Caleo the question whether s.109 of the Magistrates' Court Act could apply because the section only applied where there was a "Civil Proceeding." I drew his attention to the fact that the Act did not define expressly the phrase and referred to Part 5 of the Act which was concerned with "CIVIL PROCEEDINGS."

Section 100 states the extent of the jurisdiction which is: "to hear and determine any cause of action for damages or death or liquidated demand within jurisdictional limits", and "to hear and determine any claim for equitable relief", again if the value is within the jurisdictional limit.

Section 100(1)(d) provides for jurisdiction where the court is given it by another Act.

At the relevant time s.129 of the Amendment Act provided what was described in the heading to the section as "Appeal to Magistrates' Court."

Sub-section (1) gives jurisdiction to the Magistrates' Court to hear an application where any person whose enrolment on the Electoral Registrar has been refused or whose name has been removed from the Registrar pursuant to an objection.

The person may make application to the Magistrates' Court for an order directing that his name be enrolled or reinstated on the Roll. See s.129(1) of the Amendment Act.

On any view, the jurisdiction entertained by the Magistrate pursuant to s.129 of the Amendment Act does not involve a breach of any right resulting in damages nor does it involve a hearing or determination of any cause of action as that phrase is ordinarily used. It does not involve a lis between the parties. Further, one must doubt whether in fact it is an appeal in any sense of the word. It is an application to the court for an order directing enrolment or reinstatement.

Having raised the matter I gave Mr Caleo the opportunity over night to further consider his argument. He frankly conceded if s.109 of the Magistrates' Court Act 1989 was not available to the plaintiff then the only avenue open to him was by way of judicial review.

The following day Mr Caleo submitted that the proceeding before the Magistrate pursuant to s.129 of the Amendment Act was a "Civil Proceeding" in a Magistrates' Court. He accepted that there was no definition of the phrase "Civil Proceeding" in the Magistrates' Court Act 1989 but he submitted, on a proper construction of the Act, the proceeding before the Magistrate was a Civil Proceeding.

As I have already stated, Part 5 of the Act deals with Civil Proceedings and s.100 concerns the jurisdiction of the Magistrates' Court. It relevantly provides -

"(1) The court has jurisdiction subject to sub-s.(2) -

(a) to hear and determine any cause of action for damages or a debt or a liquidated demand if the amount claimed is within the jurisdictional limits;

(d) to hear and determine any other cause of action if the court is given jurisdiction to do so by or under any Act other than this Act."

He correctly submits that the court is given jurisdiction by the Amendment Act to hear the application pursuant to s.129. He submits that the application is a cause of action within the meaning of the Magistrates' Court Act.

The Magistrates' Court is a statutory court and accordingly its jurisdiction, powers, duties and rights are to be found within the four corners of the Act which established it. In addition, jurisdiction can be given to it by other Acts of the Victorian Parliament. This is the position with the Amendment Act jurisdiction.

Mr Caleo submitted that the court's jurisdiction was divided up into criminal and civil. There is no section in the Act which sets out what its jurisdiction is and it is therefore necessary to consider Part 4, which is concerned with criminal proceedings and Part 5, which is concerned with civil proceedings.

He submitted that the application before the Magistrate could not possibly be a criminal proceeding and hence was a civil proceeding.

He submitted that the phrase "cause of action" has a variety of meanings and that there is no warrant for confining it to a cause of action in the sense of a common law claim for damages, debt or liquidated demand.

He referred the court to a number of definitions of cause of action which includes claim, cause or matter or facts which are relied upon for judicial redress. See Reid v Brown [1888] 22 QBD 128. Claim also includes the assertion of a right or a claim to a remedy. In addition reference to s.100(2) of the Act tends to support the argument that "cause of action" should not be construed in a narrow sense.

Also as a general proposition when a new power is given to a court, it is usually exercisable in the same way and subject to the same conditions and incidents as the general powers and jurisdiction of the court. See Australian Tramway and Motor Omnibus Employees v Commissioner for Road Transport [1935] HCA 77; (1935) 54 CLR 470 at 502-503 per Dixon J; Powell v Lenthall [1930] HCA 43; (1930) 44 CLR 470 and National Telephone Co Ltd v Postmaster-General (1913) AC 546 at 552 and 562.

In light of the conclusion I have reached in this proceeding it is unnecessary for me to decide this interesting point.

Further, in the course of preliminary submissions I also raised with counsel whether or not the plaintiff was a person described in s.129(1) of the Amendment Act and whether he was entitled to apply for an order.

(1) Any person -

(a) who has sent or delivered to a Registrar a claim for enrolment or transfer or enrolment and who has not been enrolled pursuant thereto; or

(b) whose name has been removed from a Roll by the Electoral Registrar pursuant to an objection -

may at any time within one month after the receipt of the notice of the rejection of the claim or have notice of the determination of the objection (as the case may be) in a prescribed manner make application to the Magistrates' Court for an order directing that his name be enrolled or reinstated on the Roll (as the case requires)."

The point raised was that his enrolment had not been refused. In fact he had been enrolled, his name was removed and his former name reinstated allegedly by reason of some mistake - see s.122(1)(a) and (h) of the Amendment Act. There was no question of his name being removed as a result of an objection. In those circumstances was the plaintiff a person within the meaning of s.129(1)(a) of the Amendment Act?

Mr Caleo informed the court that the point had not been taken below, that it was not intended to be taken before this court and that the court should proceed on the assumption that the Magistrates' Court did have jurisdiction by reason of the facts that in correcting the mistake which had been made, effectively the plaintiff's application was to enrol his new name and the refusal was within the meaning of s.129(1)(a) - thereby giving jurisdiction to the Magistrates' Court.

Mr Perkins argued that the Magistrates' Court had no jurisdiction despite the facts that his client had instituted the proceeding, the point was not taken below, Mr Perkins appeared for the plaintiff at the hearing, the Registrar was represented by experienced counsel and no argument was advanced before the Magistrate that on a proper analysis of the facts the plaintiff was not "a person" within the meaning of s.129(1)(a) of the Amended Act.

The court gave Mr Perkins the opportunity over night to consider his position. On the following day I raised with Mr Perkins the issues involved in him taking the point at this late stage that the Magistrate did not have jurisdiction to decide the matter and should have dismissed the application on that ground. The question of practical benefit to his client was raised if the objection was pursued and the merits were not considered.

Mr Perkins was informed that there may be cost consequences as a result of taking the point. The plaintiff was present in court during these discussions.

Mr Perkins informed the court that he wished to submit that although the Magistrate had jurisdiction to decide the facts as to whether she could entertain the application, it was clear that upon proper analysis of undisputed facts the plaintiff was not "any person" within the meaning of s.129(1) of the Amendment Act and accordingly, the court had no jurisdiction to entertain the application by the plaintiff seeking an order for reinstatement on the Roll.

Again, I emphasise that the Magistrates' Court of Victoria is a statutory court and the jurisdiction powers, duties and rights of the court are to be found in the legislation which created it and any other Act which may give it jurisdiction. It follows that the jurisdiction given to it by s.129 of the Amendment Act depends upon whether the person who is entitled to bring the application is a person within the meaning of s.129(1) of the Act.

As it is a statutory court, in the absence of any statutory provision is it not possible for parties to consent to give it jurisdiction which it does not otherwise have. By way of example, s.100(1)(c) of the Magistrates' Court Act does give the court an increased jurisdiction where the parties consent in writing.

There is nothing in s.129 of the Amendment Act or any other provision of the Act which gives the court any wider jurisdiction than that found in s.129(1) of the Act.

The facts concerning the events which led to the plaintiff's name being removed from the Roll and his former name reinstated are not in dispute. The facts are set out in an affidavit sworn by the plaintiff on 18 February 2000, and the affidavit sworn by William Edward Lang, the Electoral Registrar for the State District of Carrum, on 26 October 1998 and filed in the Magistrates' Court.

In addition to the facts which I have set out above it is necessary to add further facts.

After receiving information from the plaintiff, Mr Lang was concerned that the name may be regarded as offensive and sought advice from the Australian Electoral Commissioner.

By letter dated 8 May 1998 the senior general counsel, Mr Frank Marris of the Australian Government Solicitor advised that there was no discretion under the Commonwealth Electoral Act 1918 to reject the name on the ground that it was offensive. He further opined the view that there was no general principle of law that would prevent enrolment of a name considered to be offensive.

Having received that advice, Mr Lang enrolled the plaintiff on the Commonwealth Electoral Register for the Division of Isaacs. Subsequently and without further consideration, Mr Lang, without consulting with the Victorian Electoral Commission enrolled the plaintiff under the same name for State enrolment purposes. In his affidavit he swore that he assumed the collection of words would constitute a valid name for the purposes of the law.

On 14 July 1998 he received a letter from the Victorian Electoral Commission from Dr Lyons asking him to explain the process whereby he enrolled the plaintiff under the purported name. Mr Lang responded to the request by providing information and on 22 July 1998 he was instructed by Dr Lyons to remove the name and reinstate for State enrolment purposes, the name, John Zabaneh.

Mr Lang then wrote to the plaintiff and advised him what had been done and provided a statement of reasons as to why he had done it. In the letter to the plaintiff, then called Mr John Zabaneh, he stated that the Electoral Commissioner for Victoria had directed him "to reject - for State enrolment purposes - the name 'Prime Minister John Piss the Family Court and Legal Aid' and to reinstate - for State enrolment purposes - the name, 'John Zabaneh.' I have carried out this direction."

The letter went on to state that the reasons why he was directed to reinstate the name, "John Zabaneh" were set out in an attached statement. He wrote that the statement was provided under s.119(1)(c) and (3)(a) of the Amendment Act.

Section 119 is concerned with the registration of a claim and sub-s.(1)(c) provides that if the claim is not in order "or the Registrar is not satisfied that the claimant is entitled to be enrolled in the sub-division .. forthwith notify the claimant in writing that the claim has been rejected."

Sub-section (3)(a) requires the Registrar to give a statement of his reasons if he rejects the claim. It is arguable that s.119 did not apply to the circumstances of the plaintiff's enrolment, subsequent removal and reinstatement of his former name.

The letter went on to inform him that he had a right of appeal to the Magistrates' Court and that he had one month to do so. The statement of reasons is headed by reference to the Amendment Act and a number of sections are referred to including s.122(1) of the Act.

Section 122(1) of the Amendment Act gives power to the Registrar to alter any Roll kept by him by

"(a) correcting any mistake or omission in the particulars of an elector's enrolment;

(h) reinstating any other name removed by mistake or which has been accidentally omitted."

The statement of reasons reveals a number of grounds for the removal of the plaintiff's present name and the reinstatement of his former name.

The first reason was that "Mr Prime Minister John Piss the Family Court and Legal Aid" is not a valid name. Reasons were then given as to why that is so.

Secondly, it was pointed out that there are two ways of establishing a new name: first, under the Birth Deaths and Marriages Registration Act 1996 and secondly, by common usage. The Registrar went on to state that he was not persuaded that the plaintiff had acquired a new name by common usage.

In conclusion paragraph 14 of the statement of reasons provided -

"14. In all the circumstances the material submitted by the elector falls well short of establishing that a change of name has been effected by common usage. The material submitted does not span a reasonable time frame, does not include evidence of the abandonment of the name John Zabaneh (e.g. a newspaper advertisement and/or notification sent to all family, friends, work colleagues, doctor, dentist et cetera) and does not include any evidence that the name is used in a social sense by the elector."

At the directions hearing before the Magistrate the plaintiff submitted to the Magistrate that the Registrar had no power under the Act, having enrolled him in his new name, to remove that name and reinstate his old name. The plaintiff submitted the position was clear and accordingly there should be an order that his new name be reinstated to the Roll.

Mr Colbran submitted that the plaintiff had overlooked the power found in s.122 of the Amendment Act which empowered the Registrar to alter any Roll to correct any mistake and to reinstate any name removed by mistake. He submitted that that was the real issue before the court and he accepted that his client had the onus of proving that he had made a mistake. He accepted that that was the first issue and the second issue was whether or not the plaintiff's new name was in fact a name for the purposes of enrolment on the Register. I refer to s.117(1) of the Amendment Act.

After the directions hearing the parties exchanged affidavits, made discovery and provided documents to each other.

When the matter came on for hearing, as I have already stated, Mr Perkins appeared for the plaintiff and Mr Colbran appeared for the Registrar. The issues were whether Mr Lang had made a mistake within the meaning of s.122 of the Amendment Act and, secondly that if he did, was he justified in removing the plaintiff's name which had been placed on the Roll and finally whether the plaintiff's new name was in fact a name for purposes of enrolment on the Register.

The issue arises as to whether or not those issues could be heard and determined pursuant to s.129(1) of the Amendment Act. Whether or not those issues could be determined depended on whether or not the plaintiff was a person within the meaning of sub-s.(1). Mr Perkins in this court submitted that he was not and that once the Magistrate was seized with all the facts concerning the question, she ceased thereafter to have jurisdiction to hear the application.

Mr Caleo submitted before me that the point was not taken by either party at any moment in the proceeding, either below or in this court, until raised by the court, that arguably s.129(1)(a) applied in that the original registration was in error, it had no effect and what in effect Mr Lang was doing was to restore the status quo before the change and then to consider the application and refuse it. Mr Caleo accepted the plaintiff's name was not removed from the Roll pursuant to any objection and accordingly s.129(1)(b) could not apply.

In my opinion, the submission that the Registrar was in effect restoring the status quo and treating the application for an enrolment afresh is contrary to the actual facts. Whilst I was initially attracted to the submission, I accept the submission of the Mr Perkins that one must consider all the facts. On a proper assessment of the facts the Registrar was not dealing with a claim for enrolment but in fact sought to correct the Register pursuant to s.122(1)(a) and/or (h) by removing a name and reinstating the former name.

Section 129(1)(a) is concerned with a claim for enrolment which has not been successful and this is made clear by the concluding words of the paragraph of the sub-section "who has not been enrolled pursuant thereto" - the word, "thereto" refers to a claim for enrolment. The fact was the plaintiff had made a claim for enrolment which had been successful. The plaintiff was not a person who had made a claim for enrolment and had not been enrolled pursuant to that claim.

It follows that in my opinion once those facts emerged before the Magistrate, it was clear that she had no jurisdiction to continue with the application under s.129 of the Amendment Act. The plaintiff's pursuit of a remedy was elsewhere.

This brings me to the preliminary point that was raised before Ashley J and before me in this court. The submission was put on behalf of the Registrar that this court had no jurisdiction to hear the proceeding because the common law supervisory jurisdiction has been excluded by reason of the right of appeal found in s.109 of the Magistrates' Court Act 1989.

Section 109 gives the right to a party to "a Civil Proceeding" in the Magistrates' Court to appeal to the Supreme Court "on a question of law from a final order of the court in that proceeding." For the purposes of this argument I will proceed on the assumption that the proceeding before the Magistrate was "a Civil Proceeding" within the meaning of s.109 of the Act.

Alternatively, the submission is put that since there is available an alternative remedy of appeal under s.109 of the Act, that this court should in its discretion refuse the relief.

The foundation for the first submission is found on the obiter dicta remarks of McHugh J in Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 at 415-6. In that case the court was concerned with the Equal Opportunity Act 1984 of this State.

"Any party to a proceedings before the Board may within 28 days after the day on which the Board makes an order under this Part and having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of the Magistrates' Court and the provisions of Part(XI) of the Magistrates' Court Act 1971 shall, with such adaptations as are necessary apply accordingly."

Section 88 of the Magistrates' Court Act 1971 did provide for an appeal and went on to provide that the appeal was without prejudice to such other right or remedy which may exist.

McHugh J at p.415 considered the provision and came to the opinion that the Public Transport Corporation, a party in the proceeding, was not entitled to appeal from the decision of the Board on a point of law out of time by resorting to the originating motion process under Order 56.

His Honour made the point that s.49(4) of the Equal Opportunity Act did not convert an appeal under the sub-section into an order of a Magistrates' Court. The appeal was one under s.49(4) and must be lodged within 28 days. Section 88 of the Magistrates' Court Act provided for appeal by way of order nisi within one month. His Honour's reasoning is encapsulated at p.415 in the following -

"The policy of s.49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged within 28 days after the day on which the Board makes an order under this Part and having first served notice of that party's intention to do so and every other party."

Mason CJ and Gaudron J at p.371 indicated their general agreement with what was said by McHugh J; Brennan, Dawson and Toohey JJ declined to express any view.

It is noted that the Equal Opportunity Board provided a right of appeal and that the procedural matters set out in the Magistrates' Court Act 1971 were incorporated in relation to the appeal.

The practical effect of McHugh J's obiter dicta was that he was satisfied that the Act provided the only means of attacking the decision and that the common law jurisdiction of the court was thereby excluded.

In Stefanovski v Murphy an unreported judgment delivered 24 May 1994, Ashley J with some hesitation considered that a proceeding could be brought by way of judicial review despite a right of appeal by statute. On the contrary Eames J in the The Roads Corporation v Gurkins in an unreported judgment delivered 28 May 1993, was firmly of a view that existence of a right of appeal in the Magistrates' Court Act from a decision made by a Magistrate did not exclude the common law jurisdiction of this court.

In Chessells v Berg & Anor an unreported decision delivered 19 June 1997, I expressed the view obiter that the Supreme Court jurisdiction was available even though there was a right of appeal given by s.109 of the Magistrates' Court Act, unless the Legislature clearly excluded that right to prerogative writ-type relief. I held that there was nothing in the Magistrates' Court Act 1989 or the Rules of Court which expressly excluded relief in the nature of the prerogative writs. The matter went on appeal and the Court of Appeal approached the matter as one relating to the exercise of discretion under Order 56, rather than as a matter of jurisdiction. See DJC v Berg (1998) VSCA 139.

In Gabriel Kuek v Victoria Legal Aid and the Magistrates' Court of Victoria at Melbourne, Warren J in an unreported decision delivered 15 November 1999 expressed the view obiter that the right of a party to a Magistrates' Court proceeding to appeal under s.109 of the Magistrates' Court Act resulted in the common law supervisory jurisdiction of this court being not available. Her Honour dismissed the proceeding on the basis that the court had no jurisdiction to hear the matter.

Sometimes statutes establish a right exercisable in a court of law and the court concludes that the statutory provisions constitute an exclusive code which must be followed. See by way of example Houston v Dewy Thomas Pty Ltd [1967] VicRp 33; [1967] VR 300 at p.305.

Sometimes the Legislature expressly excludes the jurisdiction. See by way of example s.159 of the Justices Act 1928 which provided that convictions and orders of the courts of Petty Sessions were not to be quashed for want of form or removal by a certiorari "or any other writ or process whatsoever in the Supreme Court."

If it was the intention of the Victorian Parliament to exclude the ancient and important common law supervisory jurisdiction of the court, then it would have been open to the Legislatures to expressly say so. It has not done so.

This ancient jurisdiction was referred to by Atkin LJ in R v Electricity Commissioners ex parte London Electricity Joint Committee Coy. (1924) 1 KB 171 at 204. His Lordship said -

"Both writs are of great antiquity, forming part of the process by which the King's Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding in excess of jurisdiction; certiorari requires the record or order of the court to be sent up to the King's Bench Divison, to have its legality inquired into, and, if necessary, to have the order quashed."

What was the intention of Parliament; did it intend that the only avenue of attacking a Magistrate's final order was by way of appeal under s.109 in Civil Proceedings, thereby excluding the common law jurisdiction of the court?

There is nothing in the Act or the policy behind s.109 which would lead to that conclusion.

It is well established that in construing legislation there is a presumption against alteration of common law rights, unless the Legislature has expressly so provided.

In Potter v Minehan [1908] HCA 63; [1908] 7 CLR 277, O'Connor J at p.304 said:

"It is in the last degree improbable that the Legislature would overthrow fundamental rights, infringe rights or depart from the general system of law without expressing its intention with irresistible clearness. And to give any such effect to general words simply because they have that meaning in their widest or usual or natural sense, would be to give them a meaning in which they were not really used." (Emphasis added).

In my opinion before the jurisdiction of this court could be excluded as a matter of law it would be necessary for the Legislature to make that intention plain and beyond doubt. The reasoning McHugh J in Waters does apply in circumstances where one can divine the intention of Parliament, as clearly establishing an exclusive right and remedy, thereby excluding any common law jurisdiction. That is not the case with s.109 of the Magistrates' Court Act 1989.

In my opinion this court does have a common law supervisory jurisdiction in a case where the decision under review is a final order made by a Magistrates' Court in a Civil Proceeding.

That is not to say that the court does not have a discretion to refuse prerogative-type relief where there is an adequate alternative remedy such as an appeal. See R v Federal Court of Australia ex parte Western Australia National Football League [1979] HCA 6; [1979] 143 CLR 190 at 23-31. R v Commonwealth Court of Conciliation and Arbitration ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; [1949] 78 CLR 389 at 400 and R v Chief Constable of Merseyside Police ex parte Calveley (1986) QB 424 at 433 and 435.

In R v Commonwealth Court of Conciliation and Arbitration etc (Supra) at p.400 the High Court stated -

"There are well recognised grounds upon which the court may in its discretion withhold a remedy (i.e. prerogative writ.) For example, a writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensure if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The courts discretion is judicial and if the refusal of a definite public duty is established the writ issues unless circumstances appear making it just that the remedy should be withheld." (Emphases added).

In my opinion the court does have common law jurisdiction to grant prerogative-type relief pursuant to Order 56 of the Rules of Court, even though the decision under review is a Magistrates' Court final order and the aggrieved party could have appealed under s.109 of the Magistrates' Court Act 1989. But the fact that that remedy was available and was not availed of may be a discretionary basis for refusing the relief in this court.

As I have found in the present case that once the facts were established before the Magistrate, the plaintiff was not a person entitled to bring an application before the Court, which meant that the court no longer had jurisdiction, it would be inappropriate in those circumstances to refuse relief on the ground that there was another avenue open to attack the decision.

In giving her reasons the Magistrate correctly identified what was the real issue between the parties. She accepted that Mr Lang did not think he had made a mistake in registering the name but asked the question, "Was there in fact a mistake because it was not a name?" She answered that in the affirmative after considering the evidence from a number of experts, concluding:

"The words used by the applicant do not constitute a name within the conventions of the State of Victoria at the present time."

She also found the plaintiff's name had not been sufficiently adopted. In other words, not established by usage or repute. She therefore concluded that Mr Lang had made a mistake, was empowered to correct the mistake and the plaintiff failed in his application.

The order of the court was an order dismissing the application and ordering the plaintiff, who was the applicant, to pay the respondent's costs fixed in the sum of $1,500.

I have found that the Magistrate had no jurisdiction once the facts were established that the plaintiff had in fact been enrolled pursuant to his claim for enrolment. I do not dispute that there was a real issue between the parties as to the power of the Registrar to do what he did and whether it was a proper exercise of any power but, in my opinion, the procedure adopted of applying to the Magistrate pursuant to s.129(1) of the Amendment Act, was not available to the applicant.

It follows that the proper order for the Magistrate to make was to dismiss the application on the ground that she had no jurisdiction to hear it.

This court has wide powers under Order 56 to make any order in the nature of the old prerogative writs in the form of a judgment or order.

Once the Magistrates' Court ceased to have jurisdiction the proper course to follow was to dismiss the application. The learned Magistrate in fact did dismiss the application but after considering the merits. The result in this proceeding leads to the same result.

Accordingly, my provisional view is that this court should not make any order but merely make a declaration in the following terms - "That on the facts before the Magistrates' Court, the court did not have jurisdiction under s.129 of the Constitution Act Amendment Act 1958 to determine the application."

That leaves the order for costs made by the learned Magistrate. This court will not make any order that is realistically futile. To set aside the costs order and to remit the matter back to the Magistrate may, on a proper analysis, have no practical effect and merely incur further costs.

However, I will hear the parties on the form of order and the issue of costs, not only in the Magistrates' Court but in this court.

I certify that this and the 19 preceding pages are a true copy of the reasons for judgment of Gillard J of the Supreme Court of Victoria delivered on 22 November 2000.

Birth Deaths and Marriages Registration Act 1996

Magistrates' Court Act 1971

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