Gottschald v Foster

[2002] FCA 485

FEDERAL COURT OF AUSTRALIA

Gottschald v Foster [2002] FCA 485

PRACTICE and PROCEDURE – application for an extension of time to seek review of a decision of the Family Court of Australia – whether decision under enactment – whether applicant has reasonable prospect of success

Administrative Decisions Judicial Review Act 1977 (Cth) s3
Family Law Act 1975 ss 38A, 38B

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Hutchins v Commissioner of Taxation (1996) 65 FCR 269 followed
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 referred to
Schokker v Commissioner of Taxation (1998) 82 FCR 113 followed
Salerno v National Crime Authority (1997) 75 FCR 133 followed

RICHARD H GOTTSCHALD v
RICHARD FOSTER, CHIEF EXECUTIVE OFFICER OF THE FAMILY COURT OF AUSTRALIA

N121 OF 2002

TAMBERLIN J
SYDNEY
10 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N121 OF 2002

BETWEEN:	RICHARD H GOTTSCHALD APPLICANT
AND:	RICHARD FOSTER CHIEF EXECUTIVE OFFICER OF THE FAMILY COURT OF AUSTRALIA RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N121 OF 2002

BETWEEN:	RICHARD H GOTTSCHALD APPLICANT
AND:	RICHARD FOSTER CHIEF EXECUTIVE OFFICER OF THE FAMILY COURT OF AUSTRALIA RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	10 APRIL 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter an application for an order of review has been filed by the applicant on 20 February 2002.  A notice of motion was also filed on the same date, seeking an extension of time within which to file the application.  The application is made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the Act”) in respect of what is said to be a decision under an enactment by the Chief Executive Officer of the Family Court of Australia made on 2 January 2002.

2. In a letter to the applicant, dated 2 January 2002, the Chief Executive Officer of the Family Court concludes, after giving an explanation as to the position of the applicant as he sees it, that he did not believe that he could take the applicant’s matter any further.  There is no undue prejudice claimed on the part of the respondent to the proceedings and the question has been argued before me purely on the legal basis as to whether there is any argument reasonably open to the applicant in the proceedings which would warrant the granting of the relief sought.  This is a relevant matter to take into account in deciding a question as to an application for an extension of time: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

3. There is no prejudice shown but the question I have to consider is whether the application has any real prospect of success. The basis of the objection is that the decision made by the Chief Executive Officer of the Family Court was not within the definition of a decision to which the Act applies, as specified in s 3 of the Act. I have been referred by Ms Watson for the respondent to two authorities of the Federal Court of Australia in which there is discussion of the relevant provisions.

4. The first is a decision in Hutchins v Commissioner of Taxation (1996) 65 FCR 269. In particular, my attention has been drawn to a statement from the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 by Mason CJ where his Honour said that:

   “… a reviewable ‘decision’ is one for which provision is made by or under a statute.”

5. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue or fact falling for consideration. 

6. In the decision of Black CJ in Hutchins his Honour said at 273:

   “The authorisation [in that case] is very general and the acts so authorised will necessarily include decisions to recover tax by proving in the estates of bankrupt taxpayers and decisions made to attend and vote at meetings of creditors where tax is owed by the debtor.

   In my view, however, the combination of ss 8 and 208, although authorising the decision in question, does not ‘make provision’ for it in the sense in which that expression was used by Mason CJ in Bond.  The relationship between the text of the sections, even in combination, and the decision that is said to have been made ‘under’ them is, in my opinion, too remote and non-specific for it to be said that provision is made for such a decision by the Income Tax Assessment Act.”

7. The Chief Justice had stated earlier, at 273, that:

   “A decision that is neither expressly authorised or required nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment.”

8. The decision in Hutchins was referred to and applied by R.D. Nicholson J at first instance in Schokker v Commissioner of Taxation (1998) 82 FCR 113. In that case, his Honour referred to another decision of the Full Federal Court in Salerno v National Crime Authority (1997) 75 FCR 133. In that case, the appellant sought to review a decision of the National Crime Authority to raid his premises using a general warrant under s 67 of the Summary Offences Act 1953 (SA) as a step in a wider investigation.

9. The Full Court in Salerno held that the determination by the National Crime Authority to raid the premises by using the general warrant had the necessary qualities, including its effect on the appellant's legal rights and the character of finality, to enable it to be regarded as a decision that could be reviewed.  R.D. Nicholson J referred to and applied the principles laid down by Black CJ in the Hutchins case. His Honour, at 123, also applied the statement in Salerno at 143-144 by the Full Court to the following effect:

   ‘“[i]f a general authorisation in a statute for a decision ... is sufficient to make it a decision under the statute... every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision would be examinable by the court.’”

10. Mr Gottschald has set out his submissions in a clear and detailed manner in a letter dated 8 April 2002 which I have had the opportunity of considering. He squarely addresses the provision of the Act and the necessity to demonstrate that the decision is made under an enactment and in reliance on that criterion he refers to s 38A of the Family Law Act 1975 (Cth). This section relevantly provides:

    “38A   Management of administrative affairs of the Court

    (1)The Chief Judge is responsible for managing the administrative affairs of the Court.

    (2)For that purpose, the Chief Judge has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

    (a) entering into contracts;

    (b) acquiring or disposing of personal property.

    (3)The power given to the Chief Judge by subsection (2) are in addition to any powers given to the Chief Judge by any other provision of this Act. …”

11. Section 38B refers to the Chief Executive Officer and states that in the management of the administrative affairs of the Court, the Chief Judge is assisted by a Chief Executive Officer. The argument presented by Mr Gottschald is that the Chief Executive Officer of the Family Court in effect is also charged with the management of the administrative affairs of the Court pursuant to these sections and that this is sufficient to make the decision in the present case a decision to which the Act applies in the sense that it is a decision under an enactment.

12. Whilst there may be some force in what has been advanced by Mr Gottschald, the question appears to me to have been determined by the earlier decisions of the Full Court of this Court which are binding on me.  The argument which is squarely put is that the decision made is in the management of the administrative affairs of the Family Court pursuant to statute.  This is precisely the type of argument which was rejected in Hutchins and in Salerno and accordingly, it is not open to me, applying the Full Court authorities, to reach a conclusion that the decision which is complained of is a decision made under an enactment.

13. Accordingly, since I consider that on the binding authorities, including what was enunciated by the High Court in its decision in Bond, which has been applied in many other cases up to the present time, there was no decision under enactment in the present case, this application  must be refused.  Even if an extension of time were to be granted, I consider that there is no reasonable prospect of success for the applicant, taking into account the history of the case in the Family Court.  Accordingly there is no point, it seems to me, and no purpose to be served, by granting leave to extend the time in the present case and accordingly I refuse the application.

14. Normally the principle which applies in cases of this kind is that the Court will make an award of costs to the successful party.  However in the circumstances and having regard to what has been put to me by Mr Gottschald, I do not think that this is an appropriate case in which to follow the usual rule.  I think there are circumstances which justify the refusal of an order for costs in this case against Mr Gottschald.  Accordingly the application is dismissed with no order as to costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             18 April 2002

Applicant was self-represented
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 April 2002
Date of Judgment:	10 April 2002