Drury and Maloney

[2016] FCCA 2434

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRURY & MALONEY [2016] FCCA 2434

Catchwords:
FAMILY LAW – Review of Registrar’s decision – issue of the standing of a lawyer without a practising certificate to appear and make submissions on behalf of the Applicant Wife – questions of the proper form of documentation in divorce application with the Wife resident in (country omitted) – signature witnessed by non-legal practitioner over Skype – power of Registrar to reject documents for filing – rules dispensed with – divorce granted.

Legislation:

Family Law Rules 2004 , r.24.10

Federal Circuit Court of Australia Act 1999 (Cth), ss.59(2) & (3), 104(2)

Federal Circuit Court Rules 2001, r.1.05, 2.06, 20.00A, 20.03
Judiciary Act 1903 (Cth), ss.55B(1), 55C
Legal Profession Act (ACT) 2006, ss.7, 8, 16(1), 34

Cases cited:

APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322

Totev v Sfar (2008) 167 FCR 193

Zdrilic v Hickie [2016] FCAFC 101

Applicant: MS DRURY

Respondent: MR MALONEY

File Number: CAC 886 of 2016

Judgment of: Judge Neville

Hearing date: 16 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Canberra

Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant: Self-represented but appearance by her amicus

Counsel for the Respondent:

Solicitors for the Respondent:

ORDERS

1. The Applicant for the Application for Review be changed and Ms Drury be substituted for Mr A.

2. Compliance with section 59(2) of the Federal Circuit Court of Australia Act 1999 (Cth) be dispensed with.

3. The Divorce Application filed by the Applicant be granted.

4. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.  

IT IS NOTED that publication of this judgment under the pseudonym Drury & Maloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 886 of 2016

MS DRURY

Applicant

And

MR MALONEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6^th June 2016, an Application for Review was filed in relation to a decision by the Registrar of the Court to refuse to accept the Applicant’s Application for Divorce.  The Review Application was filed by Mr A.

2. Mr A is a friend of the Applicant, who resides in (country omitted).  He holds a law degree, has been admitted to practice, but has never held a practising certificate.  For current purposes, he cannot be a “McKenzie friend” because the Applicant is not present and because I permitted him to make submissions, which such a “friend” would not be granted leave to do.  I will treat him, for current purposes, as an amicus of the Applicant.

3. For the reasons that follow, the Application for Review, as brought by Mr A, must be dismissed. However, on the basis that the Applicant herself brings the Application, and is substituted for Mr A, the Court takes the view that the Application should be granted, and a divorce certificate should issue. To achieve this the Court must and does dispense with formal requirements in relation to the Applicant’s affidavit under s.59(2) of the Federal Circuit Court of Australia Act 1999 (“the FCC Act”).

The Evidence

1. It is uncontentious that a review of a Registrar’s decision must be a hearing de novo.[1]

   [1] See Federal Circuit Court of Australia Act 1999, s.104(2); Federal Circuit Court Rules 2001, r.20.03. See the general discussion in Totev v Sfar (2008) 167 FCR 193, and most recently in Zdrilic v Hickie [2016] FCAFC 101.

2. By letter dated 17^th May 2016, the Registrar informed the Applicant, by letter addressed to her but sent to the address of Mr A, that her Application for Divorce was deficient because it had not been properly witnessed.  The Registrar informed the Applicant of the requirements of s.59 of the Federal Circuit Court Act 1999 and provided a copy of that section.  The Registrar also provided information regarding the relevant officers who could witness her signature overseas.  And finally, in the same letter, the Registrar informed the Applicant of the difficulties in relation to Mr A representing her.  In short, such a course was not possible because he did not hold a practising certificate.

3. By letter dated 18^th May 2016, the Registrar again wrote to the Applicant, care of the address of Mr A.  In that letter, the Registrar advised that (a) Mr A held himself out as a lawyer, but (b) because Mr A “does not hold a practising certificate he cannot represent you or prepare documents on your behalf.”

4. By letter dated 20^th May 2016, the Registrar set out in detail the difficulties posed by Mr A for the Applicant, Ms Drury.  This letter was sent to Mr A.  Relevantly, the Registrar said:

   Section 55B(1) of the JudiciaryAct1903(Cth) ("the Act") sets out the right to practice as a solicitor in federal courts and courts exercising federal jurisdiction. A person must be entitled to practice in a State Supreme Court or a Supreme Court of the Territory. In order to be entitled to practice in a State Supreme Court or a Supreme Court of the Territory, a person must have a practising certificate. You will see that the application form for the Register of Practitioners (see section 55C of the Act) requires a copy of a current practising certificate.  

   I invite you to check this information with the Registry at the High Court of Australia.

   In terms of assisting your friend I note that in accordance with section 59(2) of the Federal Circuit Court Act 1999 (Cth) the affidavit with an Application for Divorce can be witnessed by

   (f) a notary public who is exercising his or her function in that place; or

   (g) a person who is:

   (i)   qualified to administer an oath or affirmation in that place; and

   (ii) certified by the person mentioned in any of paragraphs (b), (c), (d), (e) and (f), or by the superior court of that place, to be so qualified. [This requires evidence of such certification.]

5. On 16^th June, the matter came before me.  Mr A attended.  By leave, I permitted him to make submissions generally.  Among other difficulties I pointed out to him was that, in my view, he appeared to lack any relevant standing to make the Application for Review, and because he was not a party to the proceedings, there was no other basis I could see that would remedy this deficiency in relation to standing.  Other difficulties as set out in the Registrar’s letter were also canvassed.

6. Among other things, Mr A pointed out a range of practical difficulties in the Applicant being able to secure an appropriate person to witness her signature.  There was also some discussion in relation to the Respondent, who is resident in Australia bringing the Application himself.

7. Mr A advanced three primary submissions at the hearing on 16 June 2016.

8. First, I queried in what capacity Mr A appeared before the Court in this matter. Mr A submitted that he had a right to appear before the Court by virtue of being an admitted as a lawyer in the Australian Capital Territory. He submitted that there was no requirement that he obtain a practising certificate. When questioned about the significance of section 55B(1) and 55C of the Judiciary Act 1903 (Cth) that the Registrar had directed him to, Mr A submitted that these were merely ‘empowering’ provisions rather than being mandatory requirements.

9. Mr A also submitted that by refusing to accept the documents for filing, the Registrar had acted beyond her powers. He maintained that the Registrar had no power to refuse applications of this kind. He cited rule 2.06 of the Federal Circuit Court Rules 2001. When asked whether rule 24.10 of the Family Court Rules 2004 was relevant to these proceedings, Mr A did not accept that this provision may give the Registrar the power to refuse to accept documents that are, on their face, deficient.

10. Mr A also submitted that there had been compliance with sections 148 and 149 of the Evidence Act 2011 (ACT), meaning that the documents in question were able to be filed. When asked about the applicability of section 59(2) of the Federal Circuit Court Act 1999 (Cth) relating to the swearing of affidavits at a place outside of Australia, Mr A repeated his submission that these sections were merely empowering rather than mandatory, and further that because these provisions had their genesis in the 19^th century, such provisions should not be applied by the Court. As I indicated to Mr A during the hearing, I note here that the Federal Circuit Court Act 1999 (Cth) was given royal assent on 23 December 1999.

11. Finally, Mr A submitted that the Court should dispense with strict compliance with its rules in the interests of justice. This was because of the nature of the Court’s rules emphasising informality and expedience.

12. On 23^rd June 2016, the Applicant emailed a letter directly to my Chambers in which she said that (a) she was content to become the Applicant in the Application for Review (thereby resolving any issues of standing), and (b) she had now secured her Application for Divorce being witnessed by a notary public.  However, for reasons outlined shortly, this was an “informal” witnessing without appropriate certification by the Notary Public.

13. Following further inquiry of Mr A by my Chambers, he replied by letter dated 15^th July.  In passing, his tone and comments about apparent delay show no understanding of the immense demands on this Court.  Be that as it may, his letter relevantly said:

    The document signed by the Notary Public was signed by the notary in a way he saw as “informal”. It involved no cost. When the applicant asked for the document to be signed in a “formal” way, it was a different situation.

    An email I received yesterday from the applicant is attached which indicates the “formal” position. The cost is prohibitive, and the legal validity of the document would be doubtful, as I have previously mentioned.

    It seems clear enough that the applicant cannot have her signature witnessed by anyone in the (country omitted) as a matter of practical reality. That was the situation from the beginning.

    The respondent could, of course, become the applicant. That would involve him in some trouble and expense and I doubt if he would be interested in going down that path for those reasons. I have not discussed the possibility with him because he had previously had a concern about any expense he might have regarding the applicant's application.

    This matter is dragging on, and the applicant would be grateful to have it progress.

14. It is unnecessary to set out the attachment to his letter, being the brief email from the Applicant.

Consideration & Disposition

1. By way of summary, the following matters are proper to record.

2. This dispute has essentially three limbs: (a) the ability of Mr A to witness Ms Drury’s divorce documents, (b) his ability to appear in Court, and (c) the power of the Registrar to refuse documents for filing.  There are other matters to be addressed along the way or in consequence of these issues, such as the power of the Registrar to refuse documents for filing, and ultimately the appropriate course for the Court to take with the substantive Application for Divorce.

3. With respect to (b), a person who is admitted but is without a practicing certificate is a ‘lawyer’, not a ‘legal practitioner’.[2] Admitted lawyers do not have a ‘right of appearance’ – a person must hold a practicing certificate to engage in legal practice under s.16(1) of the Legal Profession Act 2006 (ACT). Notably, one of the many things identified in that Act that is prohibited is a person/lawyer without a practising certificate acting “as an advocate.”

   [2] S.8 of the Legal Profession Act 2006 (ACT) defines “Australian lawyer” as a person holding a practising certificate.

4. In his affidavit, filed 6^th June 2016, Mr A deposed (at par.16) that he was admitted to practise as a barrister and solicitor of the Supreme Court of the ACT, and that he had signed the High Court Register of Practitioners. He confirmed that he had never had a practicising certificate.

5. In APLA Limited v Legal Services Commissioner (NSW), the High Court summarised the requirements for practise as a lawyer.  At [21] and [22], Gleeson CJ and Heydon J said (internal citations omitted; emphasis added):[3]

   [21] Legal practitioners are admitted to practise by the Supreme Court of a State or Territory. Each State or Territory has its own regulatory regime, commonly involving a principal statute and rules made pursuant to that statute. There is a substantial, and increasing, degree of uniformity and reciprocity in those regulatory regimes. Generally speaking, the right to practise, and the right of audience in a State or Territory court, depends upon admission by a State or Territory Supreme Court and the holding of a current practising certificate. Practising certificates, which must be renewed periodically, are normally issued by the Law Society or Bar Association of a State or Territory, although that pattern is not universal. The detail of the requirements for obtaining a practising certificate is presently irrelevant. Complaints against legal practitioners are dealt with pursuant to State or Territory legislation which establishes bodies with disciplinary powers. In each State or Territory, the inherent power of the Supreme Court to discipline legal practitioners is preserved. A legal practitioner is an officer of the Supreme Court of the State or Territory which admits that person to practise. The Supreme Court maintains a roll of practitioners. The Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner.

   [22] This Court is described in the Constitution as the Federal Supreme Court, but it does not admit people to practise as legal practitioners. Section 86 of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) envisages the possibility of Rules of the High Court providing for the admission of persons to practise as barristers or solicitors in any federal court. There are no such rules. Rather the Judiciary Act, in ss.55B and 55C, accommodates the State and Territory based scheme of admission and regulation in the following manner. Section 55B(1) provides that, subject to S.55B(3), a person who is for the time being entitled to practise as a barrister or solicitor or both in the Supreme Court of a State or Territory has the like entitlement to practise in any federal court. Section 55B(3) provides that such entitlement depends upon a person's name appearing in the Register of Practitioners kept in accordance with s.55C. Section 55C requires that a Register of Practitioners shall be kept at the Registry of the High Court. It is to be kept by the Chief Executive and Principal Registrar of the High Court. Entry in the Register is determined by reference back to s.55B, which, in effect, means entitlement to practise in the Supreme Court of a State or Territory. Section 55B(4) provides that a person who is entitled to practise in a federal court has a right of audience in any State or Territory court exercising federal or “federal-type” jurisdiction. Section 55C(5) empowers the High Court to order that the name of a person be struck off the Register of Practitioners if it is proved to the satisfaction of the Court that the person has been guilty of conduct that justifies that course.

   [3] APLA Limited v Legal Services Commissioner (NSW) (2005) 224 CLR 322.

6. In short, ss. 55B and 55C of the Judiciary Act make it clear that the right of appearance in a federal court is dependent upon entry upon the Register of Practitioners in the Supreme and High Courts.  And the decision of the High Court also makes it plain that a right of appearance is also dependent upon holding a current practising certificate.

7. In my view, the outline of statutory requirements provided by the High Court in APLA Limited stands directly in the way of Mr A being able to act on behalf of the Applicant and in particular to appear on her behalf in Court.

8. Further, while there is power of this Court to waive compliance with its own Rules of Court, that power does not extend to waiving compliance with Commonwealth and other statutes, not to mention the clear outline of principle provided by the High Court.

9. With respect to the first issue, (i.e. the witnessing of the Applicant’s documents), it appears that Mr A is permitted to witness documents for use in Australian Courts under the Evidence Act, specifically s 148 and s 186. However, this does not extend to the Court’s Rules (as identified by the Registrar) in relation to witnessing documents outside Australia under s.59(2).

10. Section 59(2) of the Federal Circuit Court Act 1999 (Cth) states that an Affidavit may be witnessed or affirmed outside of Australia before:

    (a)  a commissioner of the High Court who is authorised to administer oaths or affirmations in that place for the purposes of the High Court; or

    (b)  a commissioner of the Supreme Court of a State or Territory for taking affidavits who is empowered and authorised to act in that place; or

    (c) an Australian Diplomatic Officer or an Australian Consular Officer, as defined by the Consular Fees Act 1955 , who is exercising his or her function in that place; or

    (d)  an employee of the Commonwealth who is:

    (i) authorised under paragraph 3(c) of the Consular Fees Act 1955 ; and

    (ii)  exercising his or her function in that place; or

    (e)  an employee of the Australian Trade and Investment Commission who is:

    (i) authorised under paragraph 3(d) of the Consular Fees Act 1955 ; and

    (ii)  exercising his or her function in that place; or

    (f)  a notary public who is exercising his or her function in that place; or

    (g)  a person who is:

    (i)  qualified to administer an oath or affirmation in that place; and

    (ii)  certified by the person mentioned in any of paragraphs (b), (c), (d), (e) and (f), or by the superior court of that place, to be so qualified.

11. Mr A does not fit into any of these categories.

12. Section 59 (3) makes it clear that an affidavit sworn or affirmed outside Australia otherwise than before a person referred to in subsection (2) may be used in a proceeding in the Federal Circuit Court of Australia in circumstances provided by the Rules of Court.

13. With respect to the third issue, (i.e. the Registrar’s power to refuse documents for filing), the Federal Circuit Court Rules 2001 (Cth) provide for three circumstances under rule 2.06 where a Registrar may refuse documents for filing. None of these circumstances arise in this matter. However, rule 20.00A delegates the powers contained in item 20 to the Registrar, allowing them to direct that a proceeding is void for non-compliance with the Family Law Rules 2004 (Cth), the Federal Circuit Court Rules or any procedures relating to these rules. As such, it was within the Registar’s power to reject Mr A’ documents on the basis of non-compliance in relation to the rules of this Court.

14. Moreover, under rule 1.05 of the Federal Circuit Court Rules, the Family Law Rules may be applied in circumstances where the rules of this Court are insufficient. Under rule 24.10 of the Family Law Rules, a Registrar may reject a document filed or received if the document is not in its proper form. In my view, the Federal Circuit Court Rules require augmentation from the Family Law Rules in this respect. The Registrar is necessarily given the power to reject documents that are deficient for the purposes of managing the large volume of matters that this Court deals with. Should documents be accepted not in their proper form, this would result in proceedings occupying more of this Court’s already limited time and resources.

15. In this case, the document was not witnessed in accordance with section 59(2) of the Federal Circuit Court of Australia Act. The signature was instead witnessed over Skype by an Australian lawyer. As such, I consider that it was within the Registrar’s powers to reject the documents that Mr A filed on Ms Drury’s behalf on the basis of non-compliance. In my view, any comments that Mr A has made in relation to any pre-determination or conspiracy (my words) that his documents were not going to be filed by the Registry are irrelevant.

1. In all of the circumstances, the most appropriate course is to dispense with requirements, or defects (of which there are a few), in relation to compliance with affidavits regarding the Applicant.  Further, in the interests of less expense and the already undue consumption of Court resources, it is apposite that the Applicant be substituted for Mr A.

2. Accordingly, on the basis of the communication with the Court by the Applicant directly, the divorce application should be granted.

3. Finally, a word of caution to Mr A: he should be very circumspect in his dealings with the Court, including all Registry staff.  They do not make decisions.  The Court knows from daily experience that they are diligent in seeking out the appropriate person, usually the Registrar, in relation to unusual Applications or those with problems that are apparent on their face, such as the current Application.  They should not be the subject (still less the butt) of regular if not constant harassment in unnecessary inquiries and or comment.  Likewise, there is a formal protocol in dealing with Chambers.  Letters should not be addressed directly to a Judge. 

4. Finally: the dispensation by the Court of compliance with its Rules is not easily or readily given.  The Rules of Court, still less legislation, are not like Roman street signs – merely suggestions as to whether and when they will be complied with.  Let this be the end of the lesson.

I certify that the preceding thirty-six(36) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date: 30 September 2016