Richmond v BMW Australia Finance Limited

REASONS FOR JUDGMENT BLACK CJ 1 This is an appeal from a sequestration order made against the estate of the appellant, Mr Richmond, by a federal magistrate. The sole ground of the appeal is that the magistrate did not deliver his reasons for decision contemporaneously with the making of the order. 2 The application for the sequestration order came on for hearing before the federal magistrate in circumstances of some urgency, as the 24 month period of the creditor's petition was about to expire: see Bankruptcy Act 1966 (Cth) s 52(4)(b). 3 The matter was contested. The federal magistrate had a busy list and evidently did the best he could to deal with the matter without delay. Having heard and considered the submissions of the parties, the magistrate concluded that a sequestration order should be made and he pronounced such an order. The magistrate observed, however, that he had not had time to prepare written reasons for his decision. He announced that he would endeavour to give reasons as quickly as possible and especially within a period of 21 days, a reference no doubt to the time limited for filing a notice of appeal. 4 Written reasons were published, as the magistrate said they would be. They bear a certification by his associate on the twenty-first day after the hearing. No complaint is made on the appeal about the sufficiency of those reasons, which reveal a careful analysis of the issues by the federal magistrate. The issue on appeal, however, is that the magistrate, having made a sequestration order, did not give his reasons for doing so at that time and I take the appellant - who is unrepresented - to be saying that, as a consequence, the order for sequestration was not validly made. 5 The issue thus arising is to be resolved by reference to the powers conferred upon the Federal Magistrates Court by the Federal Magistrates Act 1999 (Cth) (the Act). The Act establishes the Court as a federal court under Ch III of the Constitution and as a court of record. The Court was established with the object of operating as informally as possible in the exercise of judicial power, and with a further object of enabling the Court to use streamlined procedures: see s 3 of the Act. 6 The Act provides in Div 6 for the making of the orders and judgments of the Court, and it is that Division that is determinative of the present matter. Section 74(1), which is in Div 6, provides that: An order of the Federal Magistrates Court must: (a) be in writing; or (b) be reduced to writing as soon as practicable. 7 The next section is directly on point. Section 75 authorises the publication of a reserved judgment by a federal magistrate other than the federal magistrate who had heard the proceeding and prepared reasons. The section also draws the distinction between the reservation of a judgment in the proceedings and the giving of reasons. 8 Section 75(1) provides: If: (a) the Federal Magistrates Court reserves judgment in a proceeding; and (b) the Federal Magistrate who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons; those orders and reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding. 9 It is assumed by s 75(1) that the Federal Magistrates Court has power to reserve judgment in a proceeding. In that context, the provisions of s 75(2) are determinative of this appeal, for whilst s 75(1) deals with the reservation of judgment, s 75(2) deals with the reservation of reasons. Section 75(2) provides: If: (a) the Federal Magistrates Court reserves reasons for its decision in a proceeding; and (b) the Federal Magistrate who heard the proceeding has prepared reasons, but is not available to publish those reasons; those reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding. 10 Thus, having assumed that the Federal Magistrates Court can reserve judgment, s 75(2) proceeds upon the further assumption that the Court may, from time to time, reserve its reasons for a decision in a proceeding; that is to say, it allows for a disconformity between the delivery of judgment and the reservation of reasons. 11 The conclusion that must be drawn is that the Parliament intended to create a Chapter III court endowed with the capacity to reserve its reasons for judgment where the exercise of its jurisdiction to hear and determine matters made it desirable to do so. 12 There are cases that discuss the common law obligation to deliver reasons promptly and in public. The authorities have not always proceeded in the same direction, but it would seem to me that the analysis of the general position by the Court of Appeal of Victoria, in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28, is particularly valuable and reflects the practices accepted in this Court. The same may be said of the observations of the learned Chief Justice of New Zealand, Sir Thomas Eichelbaum, in Stratford v Ministry of Transport [1992] 1 NZLR 486. 13 Accordingly the provisions of the Act, read in the context of the common law tradition of public justice, make it perfectly plain that the Federal Magistrates Court has a power to reserve judgment, and a power, having delivered judgment, to reserve reasons. There is no basis for any suggestion that the period of 21 days or thereabouts between the pronouncement of judgment and the publication of reasons was, in the circumstances, beyond appropriate limits. 14 For these reasons I conclude that Mr Richmond's ground of appeal has not been made out. 15 It should be noted that underlying this whole matter is the prime importance of justice being administered in public. Reflecting the common law tradition, the Act specifically provides that the jurisdiction of the Court must be exercised in open court: see s 13(2). It was not, however, contended by the appellant that the reasons were not delivered in public. 16 Another objection was raised by leading counsel for the respondent in the course of his helpful submissions, namely that the point now raised on appeal should have been taken in the proceedings before the federal magistrate, in which Mr Richmond was represented by counsel. There is substance in that contention, but in the circumstances of this case I would prefer to decide the appeal on the footing that the federal magistrate had the power, which he properly exercised, of reserving his reasons for decision for publication within a reasonable time after the making of the sequestration order. 17 The appeal should be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.