High Court and Federal Judiciary - Judicial power - Administrative power distinguished - Registrar of High Court - Striking of name out of Register of Practitioners.

Judiciary Act 1903 - Part VIIIA

Evans v. Friemann [1981] FCA 85; (1982) 35 ALR 428

Farbenfabriken Bayer A.G. v. Bayer Pharca Pty. Ltd. [1959] HCA 32; (1950) 101 CLR 652

Letts v. Commonwealth (1985) 8 FCR 585

The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49

The Queen v. Davison [1954] HCA 46; (1954) 90 CLR 353

The Queen v. Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1

Solicitor for the Respondent : Australian Government Solicitor

Objection to the competency of an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision made by the respondent.

2. The decision in respect of which an order of review is sought was specified in the originating application as "the respondent's decision of 27 March 1990 to strike the applicant's name off the Register of Practitioners kept under section 55C of the Judiciary Act 1903". Section 55C is in Part VIIIA of that Act, of which the first three sections read:

"PART VIIIA - LEGAL PRACTITIONERS

55A. A person who has been admitted to

practice as a barrister or solicitor, or as

both, under rules made in pursuance of

paragraph (ga) of section 86 of this Act is,

subject to those rules, entitled to practise in

any federal court as a barrister or solicitor,

or as both, as the case may be.

55B. (1) Subject to this section, a person who -

(a) is for the time being entitled to

practise as a barrister or solicitor, or

as both, in the Supreme Court of a State; or

(b) is for the time being entitled, under a

law (including this Act) in force in a

Territory, to practise as a barrister or

solicitor, or as both, in the Supreme

Court of that Territory,

has the like entitlement to practise in any

federal court.

(2) A person is not entitled to practise in a

federal court as a solicitor by reason of paragraph

(b) of the last preceding sub-section unless -

(a) he has been admitted to practise as a

solicitor or legal practitioner by the

Supreme Court of the Territory; or

(b) he practises as a solicitor in the

Territory and his sole or principal

place of business as a solicitor is in

the Territory.

(3) A person is not entitled to practise as

a barrister or solicitor in a federal court by

reason of sub-section (1) unless his name

appears in the Register of Practitioners kept

in accordance with the next succeeding section

as a person entitled to practise in that capacity.

(4) A person who is, by virtue of this

section, entitled to practise as a barrister or

solicitor, or as both, in any federal court has

a right of audience in any court of a State in

relation to the exercise of federal

jurisdiction by that court.

(5) The Chief Justice of the Supreme Court

of a State may direct the Registrar or other

proper officer of that Supreme Court to keep a

Register of Practitioners for the purposes of

sub-section (4) and, where such a Register is

kept in a State, a person is not entitled, in a

court of that State, to the right of audience

referred to in sub-section (4) unless he is

registered in that Register.

(6) Where a Register is kept in a State in

accordance with sub-section (5), a person who

satisfies the Registrar or other officer

keeping the Register that he is a person

referred to in sub-section (4) is entitled to

be registered in that Register.

(7) Where it is proved to the satisfaction

of the Supreme Court of a State constituted by

2 or more Judges that a person who is

registered in the Register kept in that State

in accordance with sub-section (5) has been

guilty of conduct that justifies it in so

doing, the Supreme Court may order that

person's registration be cancelled or be

suspended for a specified period, but the

Supreme Court may, at any time, order that the

registration of the person be restored or that

the suspension be terminated.

(8) The Registrar or other proper officer of

the Supreme Court shall make such alterations

and notations in a Register kept by him as are

required by reason of orders of the Supreme

Court under sub-section (7).

(9) Notwithstanding sub-section (6), where

the registration of a person has been cancelled

in accordance with sub-section (7) and has not

been restored, or is for the time being

suspended, that person is not entitled again to

be registered in the Register except pursuant

to an order under sub-section (7).

55C.(1) For the purposes of section 55B, the

Registrar of the High Court shall cause a

Register of Practitioners to be kept at the

Registry of the High Court.

(2) Where it is shown to the satisfaction of

the Registrar that a person would, but for

subsection

(3) of the last preceding section, be

for the time being entitled by reason of that

section to practise as a barrister or solicitor,

or as both, in federal courts, the Registrar

shall cause the name of the person, and the

capacity in which he is to be entitled to practise,

to be entered in the Register of Practitioners.

(3) Where, otherwise than by reason of an

order by the High Court under sub-section (5),

the Registrar is satisfied that a person whose

name appears in the Register of Practitioners -

(a) is not for the time being entitled by

reason of the last preceding section -

(i) to practise in federal courts, or

(ii) to practise in federal courts in a

capacity specified in the Register; or

(b) would, but for sub-section (3) of the

last preceding section, be for the time

being entitled by reason of that section

to practise in federal courts in a

capacity not specified in the Register,

the Registrar shall cause the particulars in

the Register in relation to the person to be

struck out or amended, as the case requires.

(4) Where the Registrar is satisfied that a

person whose name appears in the Register of

Practitioners has died, the Registrar shall

cause the particulars in the Register in

relation to the person to be struck out.

(5) Where it is proved to the satisfaction

of the High Court that a person whose name

appears in the Register of Practitioners has

been guilty of conduct that justifies it in so

doing, the High Court may -

(a) order that the person be not entitled to

practise in federal courts and that his

name be struck off the Register; or

(b) order that the person's entitlement to

practise in federal courts be suspended

for a specified period,

but the High Court may at any time, by order,

revoke or vary such an order.

(6) Where the High Court makes an order

under the last preceding sub-section, the

Registrar shall cause such entries or

amendments to be made in the Register of

Practitioners as are necessary to give effect

to, or show the effect of, the order.

(7) Where the Registrar causes an entry to

be made in the Register of Practitioners, or

causes an entry in the Register to be struck

out or amended, he shall cause the ground on which,

and the date upon which, the entry is so made,

struck out or amended to be noted in the Register."

Section 55D makes provision with respect to entitlement to practise in a Territory other than the Northern Territory. Nothing in the section applies in relation to practice in the Northern Territory or in a federal court. The last section in Part VIIIA, s.55E, makes provision with respect to the Australian Government Solicitor. The respondent's decision, in respect of which the application is made, is described by the respondent in a letter dated 27 March 1990 from the respondent to the applicant:

. . . . "I am satisfied that you are not entitled

to practise either as a Barrister or Solicitor

or as both in Victoria, and therefore have no

entitlement to practise in a like capacity in

federal courts.

I have accordingly caused your particulars in

the Register to be struck out, with the effect

that you are now no longer entitled to practise

in federal courts."

The evidence establishes that it was upon his entitlement to practise as a barrister and solicitor in the Supreme Court of Victoria that the applicant rested his claim to remain on the Register of Practitioners. The ground specified in the notice of objection to competency filed under O.54 R.4 is that the decision sought to be reviewed is not of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977.

3. Mr. Tracey of counsel for the respondent submitted that in deciding whether to exercise the power conferred on him by s.55C(3)(a)(i) the Registrar of the High Court was exercising judicial power in his capacity as a part of the organisation through which the powers and jurisdiction of the High Court are exercised. It was submitted, and I accept, that there is no constitutional incapacity or impediment by reason of which the jurisdiction of the High Court of Australia or of another federal court created by the Parliament might not be exercised by an officer of the court who is not a judge of the court: The Commonwealth v. Hospital Contribution Fund [1982] HCA 13; (1982) 150 CLR 49 at 64, 66. It was submitted, and I accept, that the respondent is such an officer : High Court of Australia Act 1979, s.26. It was submitted, and I accept, that the characterisation of a legislatively conferred function as judicial or administrative may turn on - or at least be influenced by - the character of the principal function performed by the person or institution to whom or to which the function to be characterised has been assigned : Evans v. Friemann [1981] FCA 85; (1981) 35 ALR 428 at 433; The Queen v. Quinn; Ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1. And it was submitted, and I accept, that when in 1927 the power now conferred by s.55C(3) was first conferred on the Registrar of the High Court control of the right to practise as a barrister or a solicitor in the States had long been a function committed to the Supreme Courts of the States and, before federation, to the Supreme Courts of the Australian colonies, and that the characterisation of a function as judicial or administrative may be influenced by the circumstance that such a function, or similar functions, have been historically associated with one or the other branch of government : The Queen v. Davison [1954] HCA 46; (1954) 90 CLR 353.

4. Upon those submissions Mr. Tracey grounded the argument that, although the principal functions of the Registrar of the High Court could not be characterised as judicial, he was an officer forming part of the organisation of the High Court to whom had been committed a function historically committed in this country to the superior courts and exhibiting the essential elements of judicial determination : one which results in the affecting of a right by force of the determination.

5. At its first enactment the Judiciary Act 1903 included the following provision:

"49.(1) Any person entitled to practise as a

barrister or solicitor or both in any State

shall have the like right to practice in any

federal Court.

(2) Provided that before so doing he shall

produce to the Principal Registrar evidence

showing that he is so entitled and in what

capacity, and the Principal Registrar shall

thereupon enter his name in a Register of

Practitioners to be kept at the Principal Registry.

(3) A copy of the Register shall be kept at

every District Registry.

(4) The High Court may direct the name of

any person to be struck off the Register upon

proof that he has been guilty of conduct which

renders him unfit to be allowed to continue to

practise as a barrister or solicitor, or that

he has been deprived by the Supreme Court of

the State, by virtue of his right to practise

wherein he was registered, of the right to

practise in that State as a barrister or solicitor."

By s.6 of the Judiciary Act 1927 s.49 was amended to read thus:

"49.(1) Any person entitled to practise as a

barrister or solicitor or both in any State

shall have the like right to practise in any

federal Court or in any Court of a Territory

under the control of the Commonwealth.

(2) Provided that before so doing he shall

produce to the Principal Registrar evidence

showing that he is so entitled and in what

capacity, and the Principal Registrar shall

thereupon enter his name in a Register of

Practitioners to be kept at the Principal Registry.

(3) A copy of the Register shall be kept at

every District Registry.

(4) The High Court may direct the name of

any person to be struck off the Register upon

proof that he has been guilty of conduct which

renders him unfit to be allowed to continue to

practise as a barrister or solicitor.

(5) Upon proof that any person has been

deprived by the Supreme Court of the State, by

virtue of his right to practise wherein he was

registered, of the right to practise in that

State as a barrister or solicitor, the

Principal Registrar shall strike the name of

that person off the Register of Practitioners

of the High Court."

6. The right to practise in a federal Court or in a Court of a Territory under the control of the Commonwealth which s.49 conferred was a right which the Commonwealth Parliament attached to an entitlement to practise in a State, and was not conditioned upon entry of the name of the person on whom the right was conferred in the Register or upon any specified determination that the right existed. Entry on the Register was no more than an administrative means of recording the existence of the right. And even if it be assumed that, before the 1927 amendment, a direction of the High Court for striking off the Register, "upon proof . . . . that he has been deprived by the Supreme Court of the State, by virtue of his right to practise wherein he was registered, of the right to practise in that State as a barrister or solicitor", was given in exercise of judicial power - as to which it is, I think, unnecessary to express an opinion - the function conferred upon the Registrar in 1927 by sub-section 49(5) is not thereby shown, in my opinion, to be a judicial function. The entitlement to practise was not then, as it now is by s.55B(3), conditioned upon the existence of an entry in the Register, and would not, as I think, have been extinguished by the Registrar's exercise of the power conferred by s.49(5) to strike the name off the Register. However that may have been, the present provisions do give to the Registrar's exercise of any of the powers conferred by sub-sections (2) and (3) of s.55C an effect on entitlement to practise - by creating or extinguishing or modifying the entitlement. The determination of the Registrar that such a power will be exercised therefore does not lack the essential characteristic of judicial power to which I have referred. And, like the determinations in question in The Queen v. Quinn; Ex parte Consolidated Foods Corporation, supra, the determinations here in question were, as I have assumed, the subject of judicial power, conferred on the High Court by s.49(4) of the Judiciary Act 1903 before the amendment of 1927. But, like the power conferred in the same sentence which constituted s.23(1) of the Trade Marks Act 1955 on both the High Court and the Registrar of Trade Marks, the powers conferred on the Registrar of the High Court do not in my opinion fall within a class so clearly and distinctively appertaining to one branch of government as to be incapable of exercise by another. It may in my opinion be said of the rights affected by the exercise of the powers conferred by sub-section 55C(3) what Jacobs J., in whose reasons five other members of the High Court concurred, said of the rights affected by an order made by the Registrar of Trade Marks under s.23(1) of the Trade Marks Act 1955 that a trade mark be removed from the Register of Trade Marks (138 CLR at 10):

"The rights involved spring from the statute

which governs their creation and continuance.

The Registrar is given the administration of

the statute. It is his administrative duty to

keep the register in the state which the

legislature has prescribed. In so doing he

must make decisions not only upon what should

or should not be placed but also upon what

should remain on the register in accordance

with the statutory prescriptions."

Gibbs J. cited the observation of Dixon C.J. in Farbenfabriken Bayer A.G. v. Bayer Pharca Pty. Ltd. [1959] HCA 32; (1950) 101 CLR 652 at 660 that "words which might otherwise be sufficient to confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power is conferred and may be construed as going no further than granting administrative power" and added (138 CLR at 6):

"The fact that the grant of power is contained

in one compendious section does not mean that

the nature of the power must remain the same

although the character of the functionary

called on to exercise it is different."

7. I have acknowledged that control of the right to practise as a barrister or a solicitor has been exercised in this country by courts. Concerning what he called the "historical approach to the question whether a power is exclusively a judicial power" Jacobs J. observed in Quinn's Case (138 CLR at 12):

"If the legislation requires the exercise of a

power to determine questions the determination

of which will affect what are traditionally

regarded as basic legal rights, the judicial

nature of the power springs from the effect

which the exercise of the decision-making

function under the legislation will have upon

the legal rights rather than from the history

of similar legislation reposing the function in

a judicial tribunal."

If the right of a legally qualified person to have audience in the courts of his country be assumed to be a basic legal right, yet exercise of the powers conferred by s.55C(3) does not in my opinion have upon that right an effect of a kind which would influence to a conclusion that they are judicial powers. Subject to the provisions of s.55A and s.55C(5), the legislative scheme embodied in the first three sections of Part VIIIA of the Judiciary Act 1903 is to commit control of the right to practise in federal courts to the Supreme Courts of the States and Territories. The right to practise in federal courts will thus, subject to s.55A and s.55C(5), be gained and lost and modified in accordance with the operation of the judicially supervised legislative schemes for the control of that right in force in the States and Territories. The Register of Practitioners which s.55C(3) authorises and requires the Registrar of the High Court to amend is directed by s.55C(1) to be kept for the purposes of s.55B. The amendments authorised and required by s.55C(3) to be made are to be made only so that the exercise by the Supreme Courts of the States and Territories of their powers to control the right to practise in those States and Territories is accurately reflected and, by force of s.55B(3), given effect in relation to the right to practise in federal courts. None of the powers conferred by s.55C(3), thus considered, can in my opinion be thought to be, on historical grounds, judicial power.

8. Reliance was placed on the opinion which Toohey J. expressed in Letts v. Commonwealth (1985) 8 FCR 585 at 587; 62 ALR 517 at 519-520 that a decision by a Registrar of the High Court to seek the direction of a Justice if a writ, process or commission appears to him on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding was not a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977. Order 58 Rule 4(3) requires a Registrar to seek that direction if that appears to him. His Honour said:

"The Judicial Review Act applies only to

decisions of an administrative character and in

turn only to conduct leading to the making of

such decisions. If the actions of the

Registrar constituted a decision, I do not

think it was a decision of an administrative

character. 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 . . . ': Commonwealth of Australia v.

Hospital Contribution Fund of Australia (1982)

[1982] HCA 13; 150 CLR 49 per Gibbs C.J. at 59. Order 58, r3(4)

provides convenient machinery by which a matter

may be brought to the attention of a justice of

the High Court."

It is in my opinion sufficient to say that there is no relevant similarity between the function ordained by O.58 R.4(3) and any of the functions ordained by s.55C(3).

9. There is nothing in the legislative scheme to suggest that Parliament contemplated, much less provided for, review by, or appeal to, the High Court in respect of the Registrar's exercise of the powers conferred on him by s.55C(3). Nor, so far as I am aware, has the High Court itself made any such provision. If it were conceived that the judicial power of the Court was being exercised under the subsection, some such provision, beyond that which s.75(V) of the Constitution might be thought to afford, would have been expected.

10. My conclusion is that the decision in respect of which an order of review is sought is "a decision of an administrative character", within the meaning of that phrase in the Administrative Decisions (Judicial Review) Act 1977. The objection to competency will be overruled.