Harris v Caladine

[1990] HCATrans 204

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S87 of 1990

B e t w e e n -

DONNA THERESE HARRIS

Appellant

and

ALAN_ CALADINE

Respondent

and

ATTORNEY-GENERAL OF THE

COMMONWEALTH

Intervener

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

Harris(2) 1 31/8/90

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 AUGUST 1990, AT 10.19 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, OC:  May it please the Court, I appear

with my learned friend, MR R.G.L. DAVIES, for the

appellant. (instructed by Kobin & Co)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court please, I understand there is to be no

appearance for the respondent. I appear with my

learned friends, MR D.J. ROSE and MRS. GAGELER, if

the Court pleases, to intervene for the Attorney-

General of the Commonwealth. (instructed by

Australian Government Solicitor)

MASON CJ:  Yes. The Registrar has been advised by the

respondent's solicitors that he does not intend to

be represented at the hearing of the appeal.

Yes, Mr Bennett.

MR BENNETT:  I have handed up an outline of submissions.

MASON CJ:  Thank you. Yes.

MR BENNETT: In the judgment of Your Honour the

Chief Justice in the HCF case and, indeed, in the

judgments of the Family Court in this case,

particularly Mr Justice Fogarty, and in a number of

other cases in this area, one sees reference to the

extent to which courts are overworked and much of

modern judicial work is tedious and repetitive and

how necessary it is that some part of that burden

be assumed by masters and registrars, and usually

such statements are accompanied by warm references

to the skill and diligence with which those

officials have been conducting their duties in the

past.

What is important about this type of

consideration is that it should not blind one to
the significance of the basic constitutional

principle of judicial independence, and it should

not lead one to permit an abnegation of the

judicial function to persons who do not have the

independence that can only truly be achieved by
life appointment under section 72.	Now, this

appeal involves provisions of the Family Law Act

which authorize the delegation of any or all

judicial functions of that court, with certain

exceptions: to registrars - registrars I should

say, for this purpose, include deputy registrars.

The Family Court has three classes of

registrars; in descending order they are: judicial
registrars, registrars and deputy registrars; and

this case involves deputy registrars, to whom, as I

have said, there is power to delegate any or all of

the judicial functions with limited exceptions.

Certainly the judicial function delegated here is

Harris(2) 2 31/8/90

not one of the most important of the judicial functions of the court, but nevertheless, it is one

which has clearly been held, and was held below, to

be a judicial function.

One does not need to descend to example an

illustration to point up how far one can go or

might go in delegating judicial power because the

relevant provisions of the Family Law Act in this

case provide the clearest example.

Now, Your Honours, we have put in the

submissions what I have described as the short

route and the long route, although they lead to the

same destination.	The short route is a simple
matter of statutory construction.	One starts with

section 71 of the Constitution which refers to

vesting judicial power "in such other Federal

courts as the Parliament creates".

Now, might I hand to Your Honours a bundle of relevant provisions of the Family Law Act. I

appreciate Your Honours probably have the Act on

the bench but it may be easier to use this bundle

which has the relevant provisions in order, to

avoid going through the whole of the Act.

The starting point is on the second page of

this document, section 21 and Your Honours see

that:

21(1) A Court, to be known as the Family

Court of Australia, is created by this Act.

21(~) The Court is a superior court of

record.

21(3) The Court consists of -

and then there are three categories of judge.

There is no reference there to registrars.

parts of the Act that registrars seem to be Although Your Honours will see from other officers of the court - one provision for example

which has that effect is a provision we have not

reproduced which is section 38M(l) added at the

very beginning of this year.

MASON CJ:  You mean, it is not in these?

MR BENNETT: It is not in these, Your Honour, no. It was

not in force at the time of the events in this

case. What is important about registrars is that
even though they seem to be officers of the court

they are not part of the court in the sense that

judges are. The Court consists of, under section

Harris(2) 3 31/8/90

21(3), the judges, as one would expect to find, and

the short conclusion which I only have to justify

now by reference to distinguishing the HCF case is

that one would have thought, unaided by authority,
that section 71 simply does not confer the relevant

power. It is conferred on the court and the court

is the judges.

The HCF case was, of course, concerned with

State courts and obviously Your Honours will be

hearing a great deal about the judgments in that
case during this appeal because it is the principal

case in the area and, of course, the major matter

upon which we rely is the distinction between State

and federal courts and that is what I have

described as the "long route".

But just taking the short route and ignoring

that distinction, that case involved masters and if

Your Honours go to the case, it is reported in

150 CLR 49, Your Honours will see at page 54 the

relevant provisions of the New South Wales Supreme

Court Act about masters set out. Your Honours will

see that there is a reference to assignment in

subsection (2) at the top of the page.

Subsection (4) provides that:

a judgment directed to be entered or an order

made or direction given by a divisional master

in any Division shall have effect as a

judgment, or order or direction of the Court

in the Division .....

(5) A divisional master in any Division shall constitute the Court in that Division.

Then, there is a section roughly corresponding to section 21 referred to half-way down the page that:

"The Court -

this is the Supreme Court of New South Wales -

shall be composed of -

the judges and the conclusion which His Honour the

Chief Justice drew at point seven on the page

is:

The proper conclusion to be drawn from these provisions is that the master is not a -

I think that should be component rather than

competent -

component part of the court, in the sense that

a judge is, but that he constitutes the court

Harris(2) 4 31/8/90

for the purpose of the exercise of the powers
conferred upon him - that is, of course, not

for all purposes.

Now, even that distinction would not operate here

because a registrar does not constitute the court

when he makes an order. The provision in relation

to what the registrar does appears in

section 37A(3) in the bundle I have handed to

Your Honours.	Your Honours will see section 37A(3)
provides that:

A power delegated by Rules of Court under sub-

section (1), when exercised by a Registrar,

shall, for all purposes, be deemed to have

been exercised by the Court.

I need not take Your Honours to the authorities which show that the normal use of the word

"deemed", although not its invariable use, is to

deem something to exist which does not otherwise

exist and to create a fiction. One cannot deem something to be within the constitutional power.

One could not deem a statute concerning road

traffic to be a statute relating to lighthouses so

as to bring it within the constitutional power.

This provision does not provide, as the New

South Wales provision did, that the master

constitutes the court. It provides merely that

exercise of the power by a person who is not part
of the court is deemed to be an exercise by the

court.

That short route, we would submit, really

produces the answer before one gets to the more

elaborate and important constitutional question of

the distinction between State and federal courts.

In relation to deeming in this context, I

should remind Your Honours briefly of what was said

by Mr Justice Gibbs as he then was, in

Kotsis v Kotsis in his dissenting judgment which

was ultimately upheld in the HCF case. That is

reported in 122 CLR 69, and the passage is at

pages 103-104. Your Honours will see at the bottom

of page 103 a section very similar to the present

section is referred to:

"The registrar ..... shall be deemed to be

exercising the jurisdiction and powers of the

Supreme Court."

This section did not extend the meaning

of the term "the court" to include a registrar

or deputy registrar and did not provide that a

Harris(2) 31/8/90

registrar or deputy registrar when exercising

the powers conferred upon or delegated to him

should be deemed to be the court. Indeed it

seems to have added little to the provisions

already in force. Certainly it did not make

the deputy registrar a part of the court.

So that, we would respectfully submit, is

applicable to these provisions, and if that is

right that is the end of this appeal.	I am asked
to read the next paragraph on page 104:

But although the deputy registrar was not

part of the court he was the delegate of the

court. The powers he exercised were those of

the court and in exercising them he acted for
the court, and subject to its review. It does
not appear to have been expressly provided
that his orders should operate as orders of
the court, but it appears to be a consequence

of making him a delegate of the court that

they should operate in that way. It would not

seem inappropriate to refer to a proceeding

before him as a proceeding in the court.

Clearly he was part of the organization of the

court.

That, of course, does not detract from the

central proposition which is that under section 71

the power has to be conferred upon the court, and a mere deeming his actions to be actions of the court

cannot answer that description.

Your Honour, may I turn to the major submission, which is 1.3 on page 3 of the outline.

GAUDRON J: Both these submissions, Mr Bennet, assume that

it is judicial power we are talking about?

MR BENNETT:  Yes, Your Honour, and in relation to that

GAUDRON J: Well, I should perhaps say that is not an

assumption I would necessarily make.

MR BEN~ETT:  Your Honour, certainly that was held by both

judgments in the Full Court below. It is page 40

in the judgment of Mr Justice Fogarty, and pages 96

to 97 in the judgment of the majority of the court,

and we have had no notice of contention suggesting

that the contrary would be contended and we have

rather taken the view that is not an issue. But

may I just say this about that. If Your Honour

goes to The Queen v - - -

DAWSON J:  You mean by judicial power that that is the power

of finally to determine rights?

Harris(2) 6 31/8/90

MR BENNETT:	I am sorry, Your Honour.
DAWSON J:	You mean by judicial power the power finally to

determine rights?

MR BENNETT:  Yes, Your Honour. I mean the judicial power of

the Commonwealth as referred to in section 71.

DAWSON J: Yes.

MR BENNETT:  And it was held below in the Full Court that

the particular exercise of power in this case,

under section 75 of the Family Law Act, to make an

order by consent under that section, sorry 79 I

should say, was an exercise of judicial power.	I
will briefly justify that proposition because I
have been asked to do so. But it is not in the

outline because I had assumed, not having received

a notice of contention, that it was not in issue.

First of all, in The Queen v Davison,

90 CLR 353 - this case, Your Honours will recall,

involved the making of a sequestration order by a

registrar in bankruptcy on a debtor's petition and

most of the argument is devoted to the question of

whether it is a judicial function or not, and at

page 377, at about point 7, Mr Justice Fullagar

said, it is five lines from the end of the long

paragraph:

Nor does it, of course, make any difference

if, in a particular case, no actual

controversy between persons interested arises.

An order which would otherwise be a judicial

order does not lose that character through

being made without opposition or even by

consent.

In the same case, Mr Justice Kitto, at page 384

point 5:

These considerations lead me to conclude

that, while it may well not be correct to say

of a power to bring into operation with
respect to a debtor statutory provisions such

as are contained in the Bankruptcy

Act ...•. that it is necessarily judicial in

character simply because it has that result,

yet it is certainly true that the grant to a

court of a power to produce that result by the

particular process of receiving a debtor's

petition for the sequestration of his estate,

hearing the petition in conformity with the

settled principles governing judicial

proceedings, and granting the prayer of the
petition by making a sequestration order, is a

grant of judicial power.

Harris(2) 31/8/90

In other words, although one could imagine a

regime in which a sequestration Order was made on a

debtor's petition by simply handing a document over the counter and having it stamped by a clerk behind

the counter, and that would not involve judicial
power, once the power to carry out that process is

conferred upon a court and there are elements of

discretion in it, it becomes a judicial power.	Of
course the whole of the court, except
Mr Justice Webb, in that case held that the particular exercise of the power was a judicial
power, although it was without controversy, the
debtor's own petition, no respondent.

GAUDRON J: That was not what I was thinking of, Mr Bennett.

MR BENNETT:	I am sorry.
GAUDRON J:	What I was thinking of was that in the Family

Law area there is not always and not invariably an

ascertainment of rights and liabilities by

application of the law. Rather there is a

determination of what their rights and liabilities

shall be as to the future within a legal framework.

MR BENNETT: Yes, well Your Honour, if one goes to

section - - -

GAUDRON J:  And given to a court, clearly enough, it can

aptly be called a judicial power and if delegated

further down the line, it may be something else.

MR BENNETT: Well, Your Honour, one starts with the

proposition that it is a power delegated to a
court. Secondly, the power, leaving aside the
consent for the moment, involves more than the mere

exercise of discretion. It involves, to begin with

in most cases, a contested determination of facts.

The power under section 79 is one which involves a

determination of what contributions parties have

made; what their assets are and a whole host of

factors which are set out in the section, some of

which involve the application of discretions, often
very wide discretions of the Mallet v Mallet type,
but the starting point is necessarily the

determination of factual matters.

If Your Honour goes to section 79 in the

volume I have handed to Your Honours, Your Honour
will see one starts with section 79(1):

In proceedings with respect to the property of the parties to a marriage or

either of them, the court may make such order
as it considers appropriate altering the

interests of the parties in the property -

Harris(2) 31/8/90

Just stopping there, one needs therefore to

determine what the property is, and that has always

been said in the Family Court to be the first step

in any section 79 case. One asked what it is, then

one says, "How should one alter it?". -

including an order for a settlement of
property in substitution for any interest in

the property -

That again involves determining the property in

order to see what is to be substituted -

and including an order requiring either or

both of the parties to make, for the benefit
of either or both of the parties or a child of
the marriage, such settlement or transfer of

property as the court determines.

Then the provisions about death and adjournment,

then subsection(2):

The court shall not make an order under

this section unless it is satisfied that, in

all the circumstances, it is just and

equitable to make the order.

And that applies whether there is consent or not.

So the Court has to consider the appropriateness of

it. Then under subsection (4) there is a list of

the matters the Court has to take into account, all

of which involve two steps or three steps, I

suppose: first, determining the factual question

of what the financial contribution; contribution;

effect of the order and so on, is. Secondly what, as a matter of justice, that means one needs to do

and then thirdly, how that interacts in the

Mallet v Mallet sense with all the other factors to produce the correct result.

And even if it be said that, for the reason

Your Honour put to me, that ·the third step in that

process or even the second step is not an exercise

of judicial power, although I would not concede
that proposition, the first step must be.	And one
can see that even further.	If Your Honour looks at

paragraph 79(4)(e), that refers to the matters

referred to in section 75(2) and that brings in, if
Your Honour goes back two pages, a whole host of

other matters, all of which involve determinations

of questions of fact, as well as questions of

appropriateness. And even where there is a consent

order in the Family Court, there is a distinct

judicial function to be exercised, considering the

appropriateness of the order, and indeed, I

suppose, in the context of family law, the

Harris(2) 9 31/8/90

voluntaryness of the consent which was, in a sense,

one of the issues in this case.

DAWSON J:  You would not be contending that there was no

power to give registrars jurisdiction to make

interim orders, perhaps in relation to property,

certainly in relation to custody and that sort of

thing?

MR BENNETT:	Your Honour, they have no powers in relation to custody. There is an express exclusion.
DAWSON J:	Yes, but I am putting a hypothetical question. the question of interim orders. In a sense one can
MR BENNETT:	Your Honour, we had not given consideration to

see an argument which would say that interim orders

might not be exercises of judicial power, but that

is not a matter which I am really in a position to

assist Your Honour on to any great extent.

Certainly there are matters which can clearly be

administrative. When one gets down to the level of

substituted service and matters of that sort, one

may get down to a level where one is beneath

judicial power, but it is my submission that in the

present case the Full Court was correct in holding

that the order made by the learned deputy registrar

in this case was an exercise of judicial power.

Section 71 of the Constitution - and I

apologize for taking Your Honours back to it but it

is necessary to look at the precise words of it -

Your Honours see that:

The judicial power of the Commonwealth shall

be vested in a Federal Supreme Court, to be

called the High Court of Australia, and in

such other courts as the Parliament creates -

and in Alexander v Waterside Workers Federation

there is a passage in the judgment of Chief Justice

Sir Samuel Griffith in which he says that

section 71 is not actually the enabling provision.

It assumes the power, presumably under section 51,

to create the courts, but it certainly refers to a

constitutional power and although in 1.3.2 in my

submissions I have called this the empowering

provision, that may not be strictly accurate, but
it does not affect the argument because the federal

courts are created by virtue of constitutional

warrant and that is what is important. It goes on:

and in such other courts as it invests with

federal jurisdiction.

The basic distinction between those two categories

is that one is a category which the Constitution

Harris(2) 10 31/8/90

itself is authorizing the creation of; the other

assumes that there is something already there and

something set up by a polity over which the

Commonwealth and the Commonwealth Parliament has no

control.

One does not know what a State is going to

call a court. It could have all sorts of

characteristics. It may or may not have persons

described as judges. They may or may not have life

tenure. It may or may not operate on an adversary

procedure, or I suppose it could operate validly on

an inquisitorial procedure. It is assumed by the

Constitution that the States will create something;

one does not know what it is going to be. There is no requirement certainly of life tenure, as in

section 72, whereas the federal courts referred to

before that are courts to be set up as provided by

the Constitution and, in particular, as provided by

section 72.

This is one of those rare cases, we would

therefore submit, where the word "courts" where it

appears in the two adjacent lines does not have

precisely the same sort of meaning, and the

clearest possible example is that a State court may

be a body that does not give life tenure. There

would be nothing invalid in a State court having

judges appointed as in some places for two year

terms and in that sense, at least, the word "court"

is used differently.

That, in our respectful submission, explains

much of the decision in the HCF case. I will show

Your Honours this in a moment, but much of the

reasoning in that case - except for certain dicta

to which I will come in the judgments of

Your Honour the Chief Justice and

Mr Justice Murphy - but leaving those to one side

for the moment, most of the rest of the decision

can be explained, and indeed appears to be put

primarily on the basis that the Commonwealth is

cannot impose across to them requirements which, in because it is taking them as it finds them, one taking the State courts as it finds them, and section 72, are only appropriate to federal courts.

DAWSON J:  Just looking at the text, Mr Bennett, section 71

does not require courts which are created merely to

consist of justices, does it, or judges?

MR BENNETT:  Your Honour, in my submission that follows from

section 72, because otherwise section 72 would have

no real effect. One could create a federal court,

either without judges on one view of it, or on

another view of it, with one person who was a judge

who was given judicial power vested, and a large

Harris(2) 11 31/8/90

number of Commonwealth public servants, to whom all

his powers were delegated, and who could act and

make decisions and exercise judicial power in the face of section 72.

It would be a very easy way of avoided the

life tenure provision, and in my respectful

submission, the juxtaposition of section 71 and

section 72 shows a clear implication that, so far

as the High Court is concerned, and so far as the

federal courts are concerned, they shall consist of

judges. And, indeed that has been picked up, both

in the High Court Act and in the Family Court

Act - - -

DAWSON J: Well that may be so.

MR BENNETT:  - - - because both Acts say, "The Court shall consist of the judges". The court does not consist

of the judges and its officers, even less the
judges and the functionaries of the court who are

not its officers.

Now, in the HCF case, 150 CLR 49, and the

first passage is at page 57, and Your Honours see

in the middle of the page, against the word

"nevertheless" in the left-hand margin on page 57,

His Honour, the Chief Justice says:

In Kotsis v Kotsis, Menzies J. stated the

position in a way with which I would

respectfully agree when he said that the

Parliament "can do no more than invest a State

Court, as it is or as it may become, with

federal jurisdiction."

In other words, it is an important part of the

consideration that the State court is something

over which the Commonwealth has no control and for

that reason there is a real difficulty in applying

federal standards to it. At page 58, in the long

paragraph in the middle of the page, His Honour

says that having reconsidered the question he

adheres to his dissent in Kotsis:

I need not repeat what I there said, but would

add some further observations. The question

is whether "court" in s.77(iii) and "Courts"

in s.39(2) -

of the Judiciary Act -

mean the persons of whom a court is composed

(in the present case, the judges), or a court

as an institution, "an organization for the

administration of justice, consisting of

judges and with ministerial officers having

Harris(2) 12 31/8/90

specified functions" ..... One would expect

invested jurisdiction -

and we stress the word "invested" -

to be conferred on the court regarded as an

entity, rather than on the individual persons

who compose its membership, and some passages

in ..... Silk Bros tend to support this view.

If the investiture of State courts with federal jurisdiction which is made by ..... the Judiciary Act is understood to be an investiture of the persons who compose the

courts, the question will arise why that

jurisdiction cannot be exercised by all or any

of the members of the court, so that for
example, a single judge might exercise the

jurisdiction normally exercised by the Court

of Appeal, or vice versa. The answer of

course is that it is clear that the State law

must determine the organization through which

the powers and jurisdiction of the State

courts are exercised.

Pausing there - whereas federal constitutional law

such as section 72, determines how it is done in a

federal court:

But if that is so, how is it possible to

exclude officers of the court -

et cetera. So the ratio of the decision, we would

respectfully submit, is that one is investing a

body and clearly one has to have a different

approach.in relation to that. Your Honour, the

present chief Justice, at page 60, said in the

middle of the page:

As s.77(iii) grants power to invest jurisdiction in courts, and does not deal with

their composition, structure or organization,

it supplies in itself no reason for

restricting the content of the expression "any

court of a State" to judges or judges and

other judicial officers who comprise its

membership. A more natural reading is to take

the expression in its application to the

possible recipients for federal jurisdiction

as referring to the curial institutions of the

State as they happen to be organized from time

to time.

Now, I will come to the dicta which put the other

factor later on, but at the moment I am concerned

with the ratio of the decisions in this case.

Harris(2) 13 31/8/90

Mr Justice Wilson, at page 71, said at about

point 6 against the word "concept" in the left-hand

margin:

There is much to be said for the distinction

which Miss Gaudron drew between the fact of
conferring jurisdiction on a court and the

manner of its exercise. Jurisdiction is

vested in a court, and in that sense the word

"court" identifies an institution consisting

both of the persons who compose the court, and

the officers and procedures through which its

judicial function is performed. On this view,

there is no problem in giving effect to an exercise by the Parliament of the power to

invest federal jurisdiction in a Supreme

Court. That invested jurisdiction in the absence of any qualification attached to the

investiture is intended by the Parliament to

be exercised in the same manner as the state

jurisdiction of the court.

So again, it is the investing and Your Honour

Mr Justice Brennan, at page 76 point, four lines

from the end of the page, used a phrase upon which,

with respect, strongly rely:

The Parliament, taking the court as it finds

it -

a statement almost reminiscent of the Electric

Light and Power Supply Corporation case approach

that one takes

the.court as one finds it, must be taken to

intend that the ordinary incidents of the
procedure of that court are attached to the

exercise by that court of its invested

jurisdiction.

So much then for what section 71 says about State

courts.	When it refers to federal courts, the
creation of which is authorized by the

Constitution, we submit it is referring to a body

constituted by its judges and that goes back to the

question Your Honour Justice Dawson asked me.

That goes back first to the juxtaposition of

section 72. Secondly, it goes back to some dicta

in Le Mesurier v Connor, 42 CLR 481. That case

involved the power of a registrar in bankruptcy to

issue a bankruptcy notice as part of a State court.

The ratio of the case does not really concern us

today except in the historical sense. What

happened was, that jurisdiction in bankruptcy was

conferred on State courts but there was a federal

registrar who was in no way part of that court's

Harris(2) 14 31/8/90

structure and the question was whether he, a

complete stranger to the court, could exercise the
power of that court to issue bankruptcy notices and

it was held that he could not.

Two of the Justices who dissented were

Justice Isaacs and Justice Starke and because they dissented they needed to consider a question which did not arise in relation to the majority of the

Justices and may I just show Your Honours how they

put it? Mr Justice Isaacs, first, at page 511 said

this - at the bottom of page 510 he goes back to

Blackstone and shows that courts always consisted of judges and having referred to that and to

Holdsworth, on the fifth line on page 511

His Honour says this:

A court consists, then, of the Judges, and of

them only. They are the only judicial

officers of the King. This High Court, as the

Constitution declares, shall "consist of a

Chief Justice, and so many other Justices, not

less than two, as the Parliament prescribes."

That was the constitutional creation of the

High Court, its personnel and activity being

dependent on provision being made by

Parliament in conformity with the

Constitution. That is the first conception

which it is necessary to fix upon firmly.

Officers of the Court are not part of the

"Court" in the strict sense. The distinction

is indicated, for instance, in Holdsworth's

History of English Law ..... which speaks of the Court's "jurisdiction over its own officials."

So closely is the term "Court" restricted to

the body of Judges constituting the Court,

that even a Judge sitting at Nisi Prius under

a commission to try the issue does not

constitute the Court, and cannot give

judgment.

It needs but little reflection to see how

Court for the purposes of section 77(III) as	utterly impossible it is to regard the State	including all the official staff, from the
Clerk of the Court to the bailiff and doorkeeper. If that were the case, the "Federal jurisdiction" invested would fall
upon the whole indivisible body, from Chief
Justice to doorkeeper alike, for
section 77(III) makes no distinction. And
once that is done, then, as will be presently
seen, section 71 would vest in the whole
staff, considered as one body, the judicial
power of the Commonwealth with undiscriminating completeness. There would
certainly remain one crowning difficulty.

Harris(2) 15 31/8/90

While section 79 enables the parliament to prescribe the number of Judges to exercise the

jurisdiction, nothing is said about bailiffs

and ushers and doorkeepers. Apparently they

would all have to form part of the tribunal.

But, in truth, the official staff of Courts are no more part of the Court than the parliamentary official staff are part of Parliament.

Mr Justice Starke, at page 523, said this, and this is just about point 2, just below His

Honour's name in the right-hand margin:

Now, there are many administrative and

ministerial functions incident to the exercise

of judicial power which in no wise require the

exercise of that power, and which may be performed by various officers and clerks

attached to the Court. That is, matters which are not the exercise of that

power.

It cannot be doubted, in my opinion, that

provisions relating to the staff of a Court

invested with Federal jurisdiction, and

conferring upon that staff powers and

functions that do not involve the exercise of
the judicial power, are well within the
authority of the Parliament. Such, for
instance, would be the duty of keeping and
preserving records, the issue of process, the
taking of affidavits, the examination of a

bankrupt, and other similar administrative and

ministerial functions and duties. So too, in

my opinion, the Parliament might authorize the

appointment of Commonwealth officers for the

performance of such functions and duties. I

agree that the power of investment and the

incidental power would not warrant any

alteration in the structure of the Court, or

the investment of judicial power in such

officers. By judicial power I mean the power

which can only be exerted by the tribunals

named or indicated in the Constitution.

Now, those matters did not arise for decision

by the other Justices in that cases because their

ratio concerned the superimposition of a federal

official on a State court and the question of power

to do that but, in my respectful submission, those

passages remain as useful as they were then.

I should also mention to the Court a statement

by Mr Justice Evatt in Dignan's case which is

conveniently set out in the appeal book; it is not

Harris(2) 16 31/8/90

on the list of authorities. It appears at page 65

of the appeal book and Your Honours will see at the

bottom of page 65, in Dignan's case, (1931) 46 CLR

73 at page 116, His Honour said:

tton the other hand, a catena of cases decided

by this Court has enforced the principle that

the judicial power of the Commonwealth cannot

lawfully be conferred upon organs other than -

and I ask Your Honours to note the way he describes

them -

the High Court, the Judges of the Federal

Courts created by Parliament, and the Courts
of a State."

His Honour draws a distinction between the judges

of the federal courts and the courts of a State.

ttThis principle has prevented the attempts of

the Federal Parliament either (a) to vest what

is strictly judicial power upon Commonwealth

authorities -

et cetera, and that is another judicial

recognition, we would respectfully submit, of the

distinction between the two uses of "court" in

section 71.

Now, in Reg v Davison, (1954) 90 CLR 353, the question did not arise. What happened, and the

history is set out fairly clearly in that case, is

that after Le Mesurier v Connor, there were
amendments to the Bankruptcy Act which rather went to the other extreme and which carefully separated
the registrar from the bankruptcy court and made

him a Commonwealth public servant with no

particular connection with the court so that one

would get over the Le Mesurier problem of making

him an official of State courts. What that did was

expose the problem in relation to the bankruptcy

court itself and, as a result, the decision in that

case seems to have been largely on the basis that

the registrar was separated.

But the decision could have been justified on

the basis which I am putting today and, indeed, Your Honour the Chief Justice's counsel put the matter primarily in that way. If Your Honour's look, for example, at page 355, at the very

beginning of the submission:

If Your Honours look, for example, at page 355

the very beginning of the submission:

Harris(2) 17 31/8/90

Each of the offences with which the debtor was

charged involves the allegation he is a

bankrupt. Whether or not he is a bankrupt

depends on the order made by the Deputy

Registrar ..... whether the making of the sequestration order by the deputy registrar is

an exercise of Federal judicial power. The

deputy registrar was not appointed for life.

That was the primary submission.

Accordingly, under ss. 71 and 72 of the

Constitution, there has been a purported conferring of Federal judicial power on a

person who is not a court and a person who was

not appointed for life. Waterside Workers -

and so on.

The real question ..... is whether the

making ..... of a sequestration

order ..... involves the exercise of Federal

judicial power -

and that is then discussed.

It is true that Your Honour then went on to

say, what was picked up in a number of places in

the judgments, that:

The provisions of s. 12 ands. 18 ..... which

vest jurisdiction in the court and in the

officers of the court, show that neither the

registrar nor the deputy registrar is an

officer of the court but each is a stranger to

the court.

But certainly none of the judgments suggest that

Your Honour's first argument was rejected. If

Your Honours go to Mr Justice Kitto's judgment, at

page 380 point 3, Your Honours see that in the

crucial paragraph which is the ratio of

His Honour's decision, he puts it both ways.

His Honour starts by saying at point 2:

A registrar is not a court officer, for the amendments made ..... in consequence

of ..... Le Mesurier ..... succeeded in making him

"a stranger to the Court ..... Though he is

under the control of the court, his duties are

those which the Attorney-General directs or

the Governor-General prescribes. He is an

officer of the executive government, and that

being so it is constitutionally impossible to

invest him with any form of judicial power.

Harris(2) 18 31/8/90

And that, we respectfully submit, is picking up the

first part of the argument. But I cannot say that

the case is, itself, authority for the first

proposition.

Now, I mentioned earlier that in the HCF case

there were dicta by Your Honour the Chief Justice
and Mr Justice Murphy, contrary to the submission I

am putting and I should take Your Honours to those.

The first passage is at page 63, 150 CLR and

Your Honours see at the bottom of page 63 point 8:

The proposition that the exercise of

Commonwealth judicial power by the High Court and other federal courts must be undertaken by

judges alone is likewise not expressed by the

Constitution. It has the support of some

•dicta - see Le Mesurier v Connor -

and Your Honour there refers to the two passages to

which I have referred in the judgments of

Mr Justice Isaacs and Mr Justice Starke -

and the decision of Long Innes J. in Re Grant;

Ex parte Edgley.

That was a case where a State court held that the

registrar did not have the relevant power. It was

decided, I think, the year before Le Mesurier

v Connor.

But in Davison the Court did not decide the

question. The decision there turned on the

unique situation of the registrar and deputy

registrars in bankruptcy.

And, with respect, we accept that -

Kitto J. described them as officers of the

executive government whose duties were

prescribed by the Attorney-General or the

Governor-General. Dixon C.J. and McTiernan J.

said that they were not officers of the court

but functionaries placed under its control,

having earlier stated that it "must not be

supposed" that they "are officers of the

Federal Court of Bankruptcy or form part of
the staff or organization of the court".

Their Honours merely referred to the earlier

dicta and to Grant.

Section 71 vests the judicial power in

the High Court, the federal courts and ..... It

also provides that the High Court shall

consist of a Chief Justice -

et cetera.

Harris(2) 19 31/8/90

However, as I see it, the vesting of judicial

power in a High Court consisting of a

Chief Justice and justices should not

necessarily exclude the exercise of some

jurisdiction and powers by a master or

registrar of the Court, whether as a delegate
or otherwise, provided that the exercise is

subject to review or appeal, more particularly

now that the Court is autonomous by virtue of

the High Court of Australia Act. In the case

of other courts created by Parliament, whose

membership is not confined by s.72 to judges,

there is perhaps even less reason for denying
that part of their jurisdiction and powers may

be exercised by officers who are not judges,

whether as delegates or otherwise, provided of

course that they are officers who truly form

part of the court's organization.

Well, Your Honours, that is a passage which we

respectfully ask Your Honours not to follow. It

is, of course, a dictum which was not necessary for
the purposes of that case, and the reasons we have
put forward, it is respectfully submitted, go in

the opposite direction.

Mr Justice Murphy expressed a similar view at

page 66 where, having stated the proposition for

which we contend the case is authority, at point 3

against the words "preliminary matters" in the

margin, His Honour states that part of the rule

this way:

Parliament has not stated otherwise,

investment of any State court with federal

jurisdiction should be taken as investment of
the court as it is organized from time to time
under State law, so that not only its members,

but its officers and other persons under its supervision and control may exercise federal jurisdiction in the San\e way as they would

State jurisdiction.

That, as I indicated, is what other members of

the Court all said as the ratio. His Honour then

adds similar dicta to Your Honour the Chief Justice

by saying:

There is no provision express or implied

in the Constitution which would prevent
exercise of the jurisdiction of the High Court
(or other courts created by the Parliament) by

officers or others who are not justices but

act under the supervision of the justices (in

the sense that their decisions are subject to

review or appeal).

Harris(2) 31/8/90

I will say something about that in a moment.

Thus in respect of any federal court created by the Parliament, Parliament may authorize

the exercise of its jurisdiction by officers

or others who are not justices provided that
these are under the real supervision and

control of the justices of the court.

And again I will come to the significance of that

in a few minutes.

DAWSON J:  When they speak of "exercise of jurisdiction"

there do they mean exercise of judicial power?

MR BENNETT:  Your Honour, I had assumed so in the context of

that case.

DAWSON J:  They carefully avoid saying so.

MR BENNETT: Yes, that is so. That is so, although it

refers to "its jurisdiction" which one would -

DAWSON J: Most jurisdiction would include some things which

did not involve the exercise of judicial power.

MR BENNETT:	Yes, it certainly can be read that way.
DAWSON J:	And what does "review" mean there?

MR BENNETT: Well, that is something which becomes more

important in the second part of the case, and I am

going to say a little bit about it. It is my

submission that judicial power is no less judicial

power because it is subject to appeal, even if the

appeal is by way of rehearing and even if it is by

way of rehearing de novo. And as Your Honours will

see, the powers we are talking about in this case are subject to something less than that. Indeed, that is the second part of this appeal.

It is my respectful submission that one simply

does not avoid the consequence by imposing that

requirement. What is difficult to understand about

these passages is that they refer to "persons under

its supervision and control", and there is a real

question as to what that means. Presumably the

judge of the Family Court cannot telephone the

registrar and say, "I require you to decide this

case in a particular way". It does not mean that,

and indeed, as Your Honours will see when I come to

it, there are sections of the Act which suggest it

does not mean that.

What then does "supervision and control" mean? Does it mean that the judges give seminars in which

they tell the registrars in general terms how to

Harris(2) 21 31/8/90

administer justice? Does it mean that they are

subject to dismissal for misconduct less than

review of their decisions of one of the various	judicial misconduct? Does it mean that there is a
gradated scales of review which may be available in
different forms of appellate process?
It is very difficult to see what can be meant by it. And in my respectful submission, it is part
of the problem which arises once one admits that
judicial power may be exercised in the federal
sphere by a person other than a judge who has
section 72 tenure.

I should show Your Honours the sections that

deal with that. If Your Honours go to

section 37A(8) Your Honours see there is an attempt

to achieve almost the opposite result because what

is said is:

Notwithstanding any other provision of this

Act -

and I will take Your Honour to the other provision

in a moment -

and any provision of the Public Service Act or

of any other law, a Registrar is not subject

to the direction or control of any person or

body in relation to the manner in which he or

she exercises powers pursuant to a delegation.

So the actual exercise of the office, as one would

expect, is free of direction or control. So if it

is that sort of direction or control which is being

referred to, clearly it is not present. I will

come to appellate direction or control in a moment.

I should also inform Your Honours of one passage

which unfortunately we did not have photocopied,

and I apologize for that, and that is section 37B

of the Family Law Act. Your Honours see, under

the perhaps judgmental heading Independence of

Registrars, the section says: 

Notwithstanding any provision of this Act

other than sub-section (3), and any provision
of the Public Service Act 1922 or any other
law, in the performance of a function or the
exercise of a power under this Act, under the
regulations or under the Rules of Court (other
than a power delegated by Rules of Court under
sub-section 37A(l) -

(a) the Principal Registrar is subject to the

direction and control of the Chief Judge and

is not subject to the direction or control of

any other person or body;

Harris(2) 22 31/8/90

(b) a Registrar is subject to the direction

and control of -

(i) the Chief Judge;

(ii) any other Judge authorized by the Chief

Judge ..... and

(iii) the Principal Registrar,

and is not subject to the direction or control

of any other person or body; and

(c) a Deputy Registrar is subject to the

direction and control of -

(i) the Chief Judge;

(ii) any other Judge authorized by the Chief

Judge to direct and control that Deputy

Registrar;

(iii) the Principal Registrar; and

(iv) the Registrars,

and is not subject to the direction or control
of any other person or body.

There were then various provisions about arrangements, and so on, but it would seem that

section 37A(8) is intended to override that because

that says:

Notwithstanding any other provision of this

Act ..... a Registrar is not subject to the

direction or control of any person or body in

relation to the manner in which he or she

exercises powers -

under a delegation. So it seems to be an attempt

to have it a little bit each way, but whichever way

one has it one thing is clear, and that is that

when the registrar sits the registrar is not

subject to anyone's direction or control as to what

orders he or she makes or how he or she exercises

the powers. Indeed, it is hard to see how it

could ever be otherwise. It would be an impossible

situation if a person was sitting hearing some type

of proceeding and then was subject to direction or

control as to the orders made by a person not

present. Clearly that would create enormous

problems.

BRENNAN J:  Is it right to read section 37A(8) as governing

the exercise of delegated powers under

Harris(2) 23 31/8/90

section 37A(l), and the provisions that you have

read from section 37B as relating to other powers?

MR BENNETT:  That is so, Your Honour, yes. That is clear.

So the relevant powers we are concerned with are all delegated powers under section 37A(l). So, in a sense, one could ignore section 37B for the purposes of this case, but it is an indication of an extent to which they are under control, but it

is only under control in relation to powers not

presently relevant.

BRENNAN J:	And how is the Public Service Act relevant?
MR BENNETT:	That has provisions about discipline,

Your Honour, and about, I suppose holidays, and

tenure, matters of that sort.

BRENNAN J:  And are these officers appointed under the

Public Service Act?

MR BENNETT: 

Yes, Your Honour. Judicial registrars are

not, and I will come to that, but we are not
concerned with judicial registrars in this case.

His Honour Mr Justice Fogarty dealt with the

problem by suggesting that there was a distinction

which we respectfully submit does not appear in any

decisions of this Court between core powers and

other powers. At pages 75 to 77 of the appeal

book he draws a distinction between powers which
can be delegated and powers which can not, and he

says at line 8 on page 75:

The crucial matter in my view in this

case is the issue ..... on the basis that the
Court can (one way or another) delegate

judicial powers to non-judicial officers of

the Court - what powers can it delegate? Is
there any limitation, that is, is there a

"core" of non-delegatable power; is it wholly

a matter of the judgment and discretion of the

Judges exercising their rule making power; can the legislature expand this power or impose limitations upon it?

The judgments referred to above clearly

support the view that there are limits upon

the power and scope of delegation.

These are all references, of course, to State law

except the passages from the dicta of

Your Honour the Chief Justice and

Mr Justice Murphy.

MASON CJ: Your argument does accept, does it, that you can

have a power of delegation?

Harris(2) 24 31/8/90

MR BENNETT: In relation to non-judicial functions, yes,

Your Honour, but not in relation to the judicial

power of the Commonwealth.

MASON CJ: Yes, and you will be giving us some examples

later on so that we can see what is the scope and

extent of your notion of delegable power.

MR BENNETT:  Yes, Your Honour, although, in a sense, the

Court does not need to decide that in this case.

MASON CJ:  No, but it is very difficult to make decisions of

this kind in the abstract unless one can clearly

see what the consequences are.

MR BENNETT: There is no doubt, Your Honour, that the

constitutional division does create a difficult

problem because, as I said in opening, there is no

doubt that in these days of congestion in courts
and large numbers of matters which are clearly

within the judicial power which are routine but

time consuming, there is very great pressure on

courts to delegate where they can and a clear

public interest in favour of such delegation. The

question is whether it can ever be permitted and, if so, in what circumstances, and we would put it

on two bases, I suppose: the primary basis is that

the judicial power, as such, simply cannot be
delegated although there are ways one can perhaps

delegate portions of proceedings to enable a

distinction to be drawn.

MASON CJ:  Well, that may be vitally important and you will

be more specific about that in due course?

MR BENNETT:	Yes. Well, Your Honour, one example, while I am on that, is the practice in New South Wales for
years about company winding up petitions prior to
the HCF case.  The view was taken that, consistent
with Kotsis, where the Commissioner of Taxation was the petitioning creditor, which was the case in a very large proportion of company winding up
petitions, a master who normally heard winding up
petitions could not hear the matter so the practice
which developed was that whenever the Commissioner
of Taxation was the petitioner the matter went before the master; he looked at the papers;
satisfied himself after submissions, if necessary,
that the matter was in order for an order to be
made and then wrote on the file words to the
effect, "I am satisfied this is an appropriate case
for an order" and the two counsels would take the
file, go upstairs to the judge, and the judge would
make the order more or less automatically.

Now, that is an example of, I suppose, a

delegation in practice which enables the routine

Harris(2) 25 31/8/90

part of the task to be exercised for all practical
purposes by a non-judicial officer while the judge

accepts the responsibility for the making of the order and is satisfied, no doubt having seen the master's certificate, that it is an appropriate

case.

DAWSON J: This was the problem I had in mind when I was

asking about interim orders - I have not got that

particular one here - because, of course, so many

orders that are made in the Family Court are of, in

one way or another, an interim nature.

MR BENNETT:  Yes, Your Honour. Your Honour, it may well be

suggested - - -

DAWSON J:  Do not answer it now.

MR BENNETT:  No. Your Honour, one can understand the

proposition which says that an interim order is

more administrative than judicial, because it is

not concerned so much with justice between the

parties in the ultimate sense, as it is with the

practicalities of the best interim accord, of an

administrative nature in a sense, so that the court

can then exercise its judicial powers and one can

understand an argument which would say that many

interlocutory matters do not fall within the

judicial power. That is an argument which, as I

said before, I am not in a position to deal with

today and it does not arise in this case, but it

illustrates that there may well be room for a

solution to part of the practical problem by

considering in future cases the scope of judicial
power and of course there is a wealth of authority

already.

DAWSON J: Really what you are being asked is, how far on

your argument would it be possible to delegate

functions to registrars?

MR BENNETT:  Your Honour, the answer, which perhaps is not a

satisfactory answer and not the answer the Court is

looking for, is wherever there is an exercise, as

such, of the judicial power of the Commonwealth.

MASON CJ: That is the problem I raised with you earlier.

It seems to be most unsatisfactory if we are asked

to determine the argument that you are putting

forward in the abstract, without having a clearer

appreciation of the consequences of what is

involved.

MR BENNETT: Well Your Honour, if one looks at the actual

delegation which has taken place, if Your Honours

go to section 37A of the Family Law Act Your

Honours see a list of powers. Now many of those

Harris(2) 26 31/8/90

are matters which one would have thought would not

involve the exercise of judicial power:

(a) the power to dispense with the service of

any process under this Act;

(b) the power to make orders in relation to

substituted service;

Those matters one can well understand being

regarded as administrative.

(c)

the power, ..... to make orders in relation of documents in the possession -

would be the same.

(d) the power, ..... to direct a party to the

proceedings to answer particular

questions;

That of course is delegated to administrative

officials every day under both Commonwealth and

State legislation.

(e)	the power to direct the parties ..... to
attend conferences conducted by court counsellors or welfare officers;

None of those would give rise to any problem. I have not checked what (f)(i) refers to. (f)(ii)

would depend upon the resolution of the question

asked of me by Justice Dawson. I do not venture a

firm answer to that question, beyond saying that

there is a substantial argument to the effect that that would not involve exercise of judicial power.

(g) on the other hand clearly can do. (g) in its

application to section 79 certainly does, because

that involves determinations of factual issues and

satisfaction in the light of those factual issues

of what has occurred. There may well be some

consent orders not in that category, but that is

not the case under section 79.	(h), one would have
thought is not judicial. (j) certainly is.	(k) is

not. (m) probably is not. And then there are some

express exclusions.

So one can run through that list and find very

little in section 37A which creates a problem.	The
preamble - - -

BRENNAN J: Is the criteria this, Mr Bennett, that where an order is made, the execution of which may require, for the protection of those who are charged with

its execution, the protection of a judicial order,

then it is a judicial power.

Harris(2) 27 31/8/90

MR BENNETT:	At that point it must be.
BRENNAN J:	I do not know whether I have quite put it

correctly, but there are some cases where you do

not need to have execution of an order. There are

some where you do. It would seem a curious thing

if those who need the protection of a judicial

order in the execution of it were not able to say

this is a judicial order.

MR BENNETT: Well, precisely, Your Honour. That is a useful

part of the distinction which I think this Court

has referred to a number of times. The real

problem, of course, in this case arises under (g),

but the real problem arises from the preamble,

because Your Honour sees that there is power to

make rules delegating all or any powers of the

court,

including, without limiting the generality of

the foregoing, all or any of the following

powers of the Court.

So, it is not as if the powers which can be

delegated are limited to (a) to (m) and the

exceptions in (2) are quite narrow. The exceptions

as to which are the powers which cannot be

delegated are:

the power to make:

(a)a decree of dissolution of marriage -

itself - power to make:

(b)a decree of nullity of marriage;
(c)a declaration as to the validity of a
marriage or the dissolution of annulment of a
marriage; or
(d)an order in relation to the custody,

guardianship or welfare of, or access to, a

child -

although there, there is an exclusion which we

would submit would be well within judicial power -

other than an order made in undefended

proceedings or with the consent of all the

parties to the proceedings.

A custody order made by consent, one would have

thought is a classic exercise of judicial power,

particularly in the manner in which it is

conferred.

DAWSON J: Well, what are you asking us to do? Are you

asking us to read down the first part of

Harris(2) 28 31/8/90

subsection(!), and if so, read it down to what

point?

MR BENNETT: Well, Your Honour, I have made a submission.

The submission is that it should be read down so

that anything falling within the judicial power of
the Commonwealth may not be delegated - anything

which is an exercise of judicial power. One then

has to look at each one and say, "Is that within

it, or not?" in order to apply section lSA of the

Acts Interpretation Act.

DAWSON J: Because it would not satisfy you just to strike

out (g).

MR BENNETT:  It would certainly satisfy me, Your Honour. I

appear for a client who has one interest.

DAWSON J: Yes, but it would not, because you have got the

general power which is given in the first part of

MR BENNETT:  Yes, it would (g) and so much of the preamble as would authorize - - -

DAWSON J: That requires you to draw a line somewhere and we

would like some more specificity where the line is

to be drawn.

MR BENNETT:  Yes. Your Honour, the submission is it is

wherever the actual exercise involves judicial

power. As I have indicated, a large part of these

matters can be delegated and one may indeed - - -

DAWSON J:  Does that mean wherever an issue is determined

which would create an issue estoppel or a res

judicata because many things in the Family Court do

not do that, you know.

MR BENNETT:  No, they do not. It is certainly anything

which involves the ascertainment of a factual

situation and certainly som·ething which involved

ultimately the - what I called earlier the second

and third factors in relation to section 79, the

weighing process - - -

DAWSON J: It cannot be anything that requires to determine

a factual situation. A number of the things that

you have said are not within judicial power require

a determination of a factual situation.

MR BENNETT:  Your Honour, it is a question of how it is to

be determined. A clerk who issues a driver's

licence may have to determine a factual situation

as to age, or something else. He does not exercise

judicial power, but if an Act said, "The power to

issue drivers' licences is conferred upon the

Harris(2) 29 31/8/90

Federal Court of Australia," assuming Commonwealth

power over drivers' licences, and "A person shall

be entitled to a licence if he demonstrates to the
court that he is a fit and proper person who can

drive a car", and there is provision for it to be

opposed by representatives of the department and

for hearings, then it would be an exercise of

judicial power.

DAWSON J:	I am not sure that that is so.
MR BENNETT:	Your Honour, that is certainly what seems to be

suggested in Davison's case and in Le Mesurier's

case, certainly Davison, where what is said is that

the fact that a power is given to a court to be

exercised in a particular way may make that an

exercise of judicial power.

DAWSON J: That may be an indication but you come back to

the problem that Justice Gaudron raised: granting a

privilege in that way whilst dressed up in the form

of an exercise of judicial power may not be.

MR BENNETT: Well, Your Honour, it is my submission that it

would be, but obviously there are difficult lines

to be drawn.

DAWSON J: That is what we are asking you to say where you

draw them.

GAUDRON J:  The problem is, is it not, that one of the

theories in this area is that you classify, at

least in some circumstances, the power according to the nature of the person exercising it, and that it

what was being referred to by Justice Murphy in

Hegarty that he refers to at the beginning of his

judgment in HCF. It may aptly be described as

judicial if it is being exercised by a court, but it may aptly be described as something else if it

is being exercised by somebody else.

MR BENNETT: Yes, but, Your Honour, one does not get into

the second category if one starts with the power

being conferred on a court.

GAUDRON J: Are you talking about "confer" as distinct from

"exercise"?

MR BENNETT: Yes. If one has a power such as making a

sequestration order on a debtor's petition which

may be judicial if exercised by a court and

administrative if exercised by an adrninisterial

official, if one has such a power what one cannot

do is say, "We confer this power on the Federal

Court" - so it is at that point judicial - and then

say somewhere else in the Act that "that particular

power may be exercised by a non-judicial officer".

Harris(2) 30 31/8/90

GAUDRON J:	I do not see why not.
MR BENNETT:	Your Honour, because the character comes from

the initial conferral of the power - - -

GAUDRON J: But, what you find in the example you have given

is a non-exclusive conferral and perhaps that is

also what you get in section 37. It is conferred

on two people, two different people, and the

character may, therefore, differ according to who

has exercised it.

MR BENNETT:  The other difficulty, Your Honour - perhaps the

answer to that lies in the distinction between the

conferral of the power and the manner of its

exercise. The conferral of the power is on the

courts. The manner of the exercise, which is the

unauthorized part, is permitting that power whose

judicial nature is defined by the nature of its

conferral, on a ministerial official.

GAUDRON J: But, you cannot say it is conferred on a court

when you have a provision saying "it is conferred

on a court and on the registrar as the court shall

determine " .

MR BENNETT: 

The difficulty with that is, that the provision

for conferral.on the registrar is general and
applies to powers which, on any view of it, are

clearly judicial. For example, the section 79
power in a contested case - it could not seriously

be suggested that was not a judicial power for the

Commonwealth and yet that is indiscriminately with

substituted service - - -

GAUDRON J: Well, I am not sure about that either.

DAWSON J: In other words, rearranging the parties rights.

MR BENNETT:  But determining what they are first,

Your Honour, and determining in a contested context

what they are.

DAWSON J:  In no binding way, though. Would there be an

issue as to that, an issue estoppal?

MR BENNETT: Normally yes, Your Honour - perhaps not an

issue estoppal, certainly - yes, there would be;

there might not be a res judicata but there would

be an issue estoppal because the nature of the

process under section 79 is to ask two questions:

one, what does each have; secondly, what should we

do about it? It is the first question which very

often takes a significant part of the hearing time

in this sort of application and, of course, the

consent order as to custody is another example.

Harris(2) 31 31/8/90

DAWSON J: But where there is a maintenance order where the

parties have no property?

MR BENNETT:  There cannot be a maintenance order if there is

no property, Your Honour.

DAWSON J:  No, no pre-existing property.

MR BENNETT: In a pre-existing - well, we would still need

to determine as a fact the income to be able to

make a maintenance order. That would arise under

section 75 - I think I have included section 75

here - no, I am sorry, section 74 which I have not

reproduced. Yes, it is a combination of section 74

and section 75. One starts with 72 that:

A party to a marriage is liable to maintain

the other party, to the extent that the first-

mentioned party is reasonably able to do so,

if, and only if, that other party is unable to

support herself or himself adequately -

for certain reasons.

Now, there are clear factual

determinations one has to make there.

to decide to what extent one is reasonably able to
do so, to what extent the other is unable to

One has

support herself or himself, and then there are all
the factors in section 75(2), many of which involve

determination of issues of fact, issues of fact

that one would expect to be contested and, of

course, which often they are.

BRENNAN J:	Mr Bennett, could I just raise the problem about 37A(l) and the generality of the powers that
are therein referred to.  Is it right to say that
the powers referred to in 37A(l) must, conformably
with Boilermakers, be either judicial powers or powers which are ancillary to judicial powers and
if that be right, then can there be a power of delegation of a power which, ex hypothesi on its
investiture, is a judicial power?

MR BENNETT:  As opposed to a power which is ancillary to a

judicial power?

BRENNAN J: Ancillary to it.

MR BENNETT:  I would submit not, Your Honour.

BRENNAN J: That answer presumes that a power, once invested

in a court, is incapable of transformation by

delegation. Is that your proposition?

MR BENNETT:  Yes, Your Honour. That is put, with respect,

very much more elegantly than I put it a moment ago

in reply to Justice Gaudron, but that is the

proposition, yes, Your Honour.

Harris(2) 32 31/8/90

In so far as the character is determined by

the body on which it is conferred, one does not go

down to the subdelegation, if one likes, to alter

that character; the subdelegation is simply

unauthorized at that point.

DAWSON J:  But then, you really have to ..... judicial power

much more closely than that, do you not? .....

amount to the final resolution of the controversy

between the parties by readjustment of their rights

in a final way.

MR BENNETT:  I would certainly be content to accept that

limitation, but I am concerned that there may well

be decisions of which I am not presently aware

discussing the question of the extent to which

interlocutory matters do or do not fall within the

phrase "judicial power of the Commonwealth", and

that is something which I am concerned that I

cannot give you any of the assistance I would like

to give Your Honour on because I have not looked at

that.

DAWSON J: And what rights are they? Do they have to be the

rights which determine the controversy in which

case there may be ancillary rights which can be

determined in another way, for instance the

Registrar determines rights, I suppose, when he

taxes costs.	No one says he is exercising judicial
power there.

MR BENNETT:  No, Your Honour - - -

DAWSON J: But that is a merely incidental of the

determination of the controversy, the final

determination of the rights of that purpose.

MR BENNETT:	It would be more difficult, of course, if he had power to make an order for costs having looked
at the result of an appeal. That would be a step
away from that. But certainly, Your Honour, it has always been recognized - - -
DAWSON J: But he certainly determines facts.

MR BENNETT: Yes, he does. It has always been recognized

that there are matters which, of necessity, one has

to regard as ancillary simply as a practical

matter. There are numerous examples. A judge
might delegate to his associate the power to decide

what number would be given to a particular exhibit.

One could have all sorts - and we could conceivably

imagine a case where the parties argued about that.

Clearly, that would not be an exercise of judicial

power in any sense at all. It is an ancillary

administrative function which is necessary for

the - - -

Harris(2) 33 31/8/90

DAWSON J: 

We are not talking about rights here and the

determination of some rights seems to involve an
exercise of judicial power and determination of

other rights does not.

MR BENNETT: 

Yes.

DAWSON J: It is a question of drawing that line.

MR BENNETT:  There is no doubt that the drawing of the line

is not an easy question and there are a very large

number of cases in this Court, I think the most

under which the court gave a

recent one may be the decision involving the the provisions

Federal Proceedings Costs Act, in the Victorian

certificate and the Attorney-General decided

whether or not he chose to make a payment pursuant

to that certificate were valid, and the

Attorney-General was not exercising judicial power

by deciding whether or not he would grant costs on

the court certificate.

So, in a sense, costs have always been,

perhaps traditionally and an ex necessitate,
regarded as something outside - - -

DAWSON J: Not only costs, I mean decision as to -

interlocutory decisions involve a decision as to

rights, that you can classify them as interlocutory

and, therefore, say that they do not necessarily

involve an exercise of judicial power.

MR BENNETT:  There is not quite the same measure of fact

determination, I suppose, in an interlocutory case in that the Court does not determine the facts, it

merely - - -

DAWSON J:	..... substituted services for instance.
MR BENNETT:	The line is not a bright line, Your Honour.

All one can say is that there are decisions of this

Court which one must go to in relation to any

individual case to see whether it is on the one

side or the other side, but in relation to this

type of decision, there is clear authority and the
decision of the Full Court is not challenged that
this type of decision does involve the exercise of

the judicial power of the Commonwealth.

DAWSON J:  But you are asking us to read down the section,

so we have to draw a line, right or not.

MR BENNETT:  The section can be read down. I appreciate

that the Court is concerned to understand the
consequences of its action, but the section can

and, in my respectful submission, should be read

Harris(2) 34 31/8/90

down simply by importing the constitutional phrase.

All the Court has to say is the section is read

down by saying, "One cannot delegate what is

squarely within the exercise of a judicial power of

the Commonwealth", and then say, "This case is

clearly within that because it involved a consent

order under section 79 which has the following
elements", and in that sense affirm the Full Court,

and the consequences for the future, of course, are

simply that the same lines which the Court has

applied when it looks at the various industrial

courts over the years or the various powers of

registrars in bankruptcy over the years have to be

applied here, and one has to say, "Is the

particular Act which is sought to be delegated

judicial or not?"

One has that consequence, however one looks at

it, because even if one permits a power of

delegation of the type which Mr Justice Fogarty

referred to, reference to core powers, one then has

to have an appeal to this Court every time there is

an argument as to whether something is a core power

or not a core power. At some stage there is going to have to be a determination of where the line is

drawn and that will be done, no doubt, on a

case-by-case basis as has been done in the past in

relation to industrial courts and bankruptcy

powers, but the Court does not in the case which
lays down the broad principle need, except in a

general way, to see the general effect of what it

is doing to analyse precisely which powers are

within which category.

The central question in this case is simply,

does the decision in the HCF case apply to federal

courts? If it does, then the conclusion in this

case which I have submitted necessarily follows,

and the problems to which Your Honour refers are

problems for another day.

Your Honours, I should say a little bit about

the inherent power question. There is a passage

in the judgment of Your Honour Mr Justice Brennan
in the HCF case which refers to the significance of

inherent powers of the courts, and Your Honour

refers in that to a number of old English cases

where courts have been said to have inherent

powers.

Mr Justice Fogarty regarded the power to

delegate to registrars as being something which was

inherent in a court. We would simply submit that,

first of all, if there is any such inherent power

it must, of course, be read subject to

constitutional limitations but, secondly, there is

a serious question as to how far that inherent

Harris(2) 35 31/8/90

power can go and I simply wanted to remind

Your Honours of the decision of this Court in

Commonwealth Trading Bank v Inglis, 131 CLR 311,

which I have had placed on the bench for

Your Honours.

It is a case where the Court held that it had

no inherent power to preclude a person from
commencing vexatious proceedings in the Court and

the rejection of the proposition that there was

such an inherent power was partly based on general

principle and partly on an expressio unius from the

existence of certain powers in relation to
vexatious litigants. If Your Honour sees at
page 314 in the judgment of the Court, the Court in

the long paragraph in the middle of that page and

to a lesser degree in the next paragraph firmly

rejected the proposition that inherent power

extended to that extent.

Now, we would submit that while there may well

be some scope for inherent power to delegate

totally ministerial functions in the course of

running proceedings to a registrar, it is difficult

to see how there can be an inherent power which

extends to the delegation of judicial power,
certainly to the extent that section 71 would need

to be read subject to that sort of inherent power.

It would be, we would respectfully submit,

totally subversive of section 72 if the judicial

power could be exercised by any person provided he
answered the description "officer of the court" and
had matters delegated to him. It would authorize -

and we have put the extreme example in 1.3.7 - the

delegation of this Court's appellate power to the
clerk or the marshal or, for that matter, a deputy
clerk or a deputy marshal, because they are

officers of the court and, of course, the

registrar, but it is a more extreme example to take

the others. They are officers of the Court and

they fit squarely within the description referred

to in Davison's case but, clearly, section 71,

which confers power on this Court would not be

satisfied by a delegation to those persons of a

power to hear appeals even if there were some sort

of review or appeal to the Judges of the Court from

that decision. Similarly, deeming their decisions
to be decisions of the Court would not solve the

problem. There must be, we would submit, a clear

line once one has something squarely within the

judicial power as to who may exercise it.

Now, in relation to the question Your Honour

the Chief Justice asked me, I do not think I can do

much more than - I have gone through section 37A; I

have given an indication there of which of the

Harris(2) 36 31/8/90

powers expressly referred to would be powers that

could validly be delegated but ultimately the
question in relation to each one must be the
question that one has in all the judicial power

cases: is this or is this not within the judicial

power and for this case, the answer is very simple.

Now, the second part of the case involves a

question of far less general importance than the

first although it is, nevertheless, a question of

considerable importance within the context of the

administration of the Family Court, and it does

have some relationship to the first because of the

question as to the extent to which the existence of

an appeal is sufficient to solve the problem.

Now, may I first show Your Honours the relevant provisions in relation to appeal and then

show how the problem arose in this case. The

appeal from the decision of the registrar appears

in section 37A(9), which provides that:

A party to proceedings in which a Registrar

has exercised any of the powers of the Court

pursuant to a delegation under sub-section (1)

may, within the time prescribed -

et cetera -

apply to the Court to review that exercise of

power.

The Court may, on application under

sub-section (9) or of its own motion, review

an exercise of power ..... pursuant to a

delegation under this section and may make

such order or orders as it considers

appropriate.

So one starts with a broad general power in

the Act. What the rules have done is to define

that a little more precisely. On the very last

page of the document Your Honours have,

Your Honours see Order 36A rule 7. Subrule (4)

provides:

A court reviewing an exercise of power by a

Judicial Registrar or a Registrar:

(a) shall proceed by way of a hearing de novo;

and

(b) may receive as evidence any affidavit or

exhibit tendered before the Judicial Registrar

or Registrar; and

Harris(2) 37 31/8/90

(c) may by leave receive further evidence;

transcripts -

and so on. And it is taken to be an appeal for the

purposes of the Act.

So it is to proceed as a hearing de novo, and

it is described as a review. That, of course, does

not answer the question which arises when one has

an appeal from a consent order. And that question,

of course, is whether the party who has consented

is entitled to appeal and then say to the court

before which the appeal or review is heard, "I

withdraw my consent. The matter must now proceed".

That is the issue with which Your Honours are concerned in this case.

Now, the basis on which the Full Court dealt

with the matter was to characterize the power
exercised by the registrar by reference to the

delegation rather than by reference to the nature

of the power. What the court did was to say, well,

one starts with section 37A(l) which says that

there can be delegated to the registrar -

(g) the power to make, in proceedings under

this Act, an order the terms of which have

been agreed -

Then, to see whether that has been done one goes to

Order 36 rule 2 which is towards the back of the

materials:

The following powers of the Court are

delegated to each Registrar -

and then (n) on the top of the next page is -

the power to make an order the terms of which

have been agreed upon by all the parties to

the proceedings.

So the Full Court says one starts with that.

What the registrar was about was making an order

the terms of which had been agreed by all parties.

That is what was before him. When there is a

review of that, there is a review of the decision

to make an order the terms of which have been

agreed by all parties. And therefore there is no

question of withdrawing the consent. The

proceedings without the consent were never before

the deputy registrar because what was before him,

the court says, was a consent order. And therefore

the appeal is whether he should have made a consent

order, and the only question I suppose on that is

whether there was a consent and whether, there

Harris(2) 38 31/8/90

being a consent, it was appropriate to make the

order.

Now, what we submit is that that reasoning is

a mischaracterization of what is before the

registrar. What is before the registrar is not an

order under 36A 2(l)(n). What is before the

registrar is an application under section 79.	Now,
it is true that the reason he has power to deal

with it is that a condition is satisfied, namely

that it is an order, the terms of which have been

agreed, and that is why he has jurisdiction. That

is why it is within his delegated power. But that

is merely a condition of the order being an

appropriate one for him to make.	What he is doing
is making an order under section 79.	And when

there is a review, there is a review of the order

under section 79.

DAWSON J: Why is that? What is the rehearing of?

MR BENNETT:  The application under section 79 that came

before the registrar.

DAWSON J:	An application for a consent order?
MR BENNETT:	No, Your Honour, an application for an order

and one of the reasons why he was asked to make it

is that there was a consent. That is one factor;

a very powerful factor, no doubt, in inducing him

to make it and it is the condition of his

jurisdiction.

DAWSON J:  It depends how you look at it. He was asked to

make an order by consent. An order by consent is

in a different category from an order which is not by consent and the way in which the application is

dealt with is - - -

MR BENNETT: Yes, I accept that, Your Honour, but that does

not alter the way in which it is dealt with is

different, but the nature of the power being
exercised is the same.	The power being exercised

is the power of the Family Court - - -

DAWSON J: That may be so, but what you rehear is the

application, not the power.

MR BENNETT:  It is the review under section 37A(9) that

refers:

A party to proceedings in which a

Registrar has exercised any of the powers of the Court ..... may, within the time prescribed

by ..... apply to the Court to review that

exercise of power.

Harris(2) 39 31/8/90

The exercise of power was the exercise of the

court's power to make an order under section 79.

It happened to be that there was consent - - -

DAWSON J:  An order by consent under section 79.

MR BENNETT: Well, Your Honour, we submit that is not part

of the description. It is a characteristic of it, but it is not what the proceedings were. That, on

its own, does not mean one can withdraw the

consent. One has then to look at other factors and

I will come to those in a moment but, in my

respectful submission, the starting point is that, what is before the court on the review is the same thing that was before the registrar, namely an

application under section 79, in which, as it

happens, the evidence before the registrar was,

there is a consent and the consent - - -

TOOHEY J:  Mr Bennett, I take it there is no such thing as

an appeal from a registrar, is there?

MR BENNETT:  It is called a review rather than an appeal.

TOOHEY J: Well, I am using the language deliberately.

There is no such thing as an appeal from a

registrar?

MR BENNETT: That is so, Your Honour, as I understand it.

TOOHEY J:  I wonder why that is. It may be that because the

registrar is exercising the power of the court, if

there were an appeal, presumably it would have to

go to the Full Court, would it?

MR BENNETT: Unless one worded it carefully, yes,

Your Honour, that would follow.

TOOHEY J: What is it that dictates that the review of a

decision of the registrar goes to a single justice
of the court?

MR BENNETT:  Because Your Honour, under section 37A(9)

and (10) the review is to the court and my

recollection is that there is a section in the Act

which makes it clear that all matters which are

before the court are heard by a single judge,

except - if Your Honours would just pardon me a

moment I will find that - yes, it is section 28,

Your Honour.

The original jurisdiction of the court may be

exercised by one or more judges.

So it would normally be exercised by one, but

might, if the court so desired, be exercised by

more than one.

Harris(2) 40 31/8/90

TOOHEY J: Yes, thank you.

DAWSON J:  Is there any time limit within which the court

must review its own notion and order of the

registrar?

MR BENNETT: That is dealt with in the rule, Your Honour, it

is order 36A rule 5(2), the time prescribed is

seven days.

DAWSON J: Order 36. That is for an application that the

court can review of its motion.

MR BENNETT:  I am sorry, yes, Your Honour, the court could

do that at any time.

DAWSON J:  So that whatever the registrar does remains

contingent for ever more?

MR BENNETT:  Yes, but that would be so in any event,

Your Honour, because the time can always be

extended. So, if a party were to invoke it, the

party could always seek an extension of time and,

indeed, as Your Honour will see, most of the cases

involving reviews of registrar's decisions, no

doubt because of the shortness of that period, have

been applications for extension of time.

DAWSON J: But if in a subsequent proceeding the matter came

up and the court did not approve of what the

registrar had done, it could review it there and

then?

MR BENNETT:  Assuming the parties were the same or were

present or were given notice and an opportunity to

be heard and so on, yes, Your Honour.

I need to have a short excursus, which is

paragraph 2.3 of my submissions on page 7, because

of the way the problem actually arises in this

case.There is - - -

McHUGH J: Before you do, do you place any reliance on

section 37A(l0):

The Court ..... may make

such .•... orders ..... with respect to the matter with respect to which the power was exercised.

MR BENNETT: Yes, I am indebted to Your Honour, that

certainly widens it because the matter with respect

to which the power was exercised must go back to

section 79 even if the power does not. So, that

would certainly include a power to go behind the

consent.

Harris(2) 41 31/8/90

The problem - I want to deal by way of a very

short excursus, and I will not spend a lot of time

on this - is the problem of what is the appropriate

procedure where it is alleged that the consent is

vitiated. That, in fact, is the problem which

arises in this case although nothing in the appeal

book makes that clear.

But where the consent is alleged to have been

vitiated, if the decision of the Full Court is

right there is no real redress and the way the

matter has been sent back rather suggests that the

only issue is whether there was, in fact, a consent

and whether the order was appropriate assuming

there has been a consent.

Now, I have provided a copy of a case called

Huddersfield Banking Company v Henry Lister and

Sons. Your Honours need not go to that unless

Your Honours wish to, but that lays down the

principle which has been applied, of course, for a

long time that a consent order may be challenged on

any basis on which a contract can be challenged.

So if there is mutual mistake, or if there is a right of rectification, or if there is any other

contract law right in relation to the underlying

consent, then the consent order may be set aside on

that basis. The problem is, how under the present

structure can that be done?

BRENNAN J: This is in the same action this can be done, can

it?

MR BENNETT:  Your Honour, the rule of law is it can be done

either in the same action or in a separate action

constituted for that purposes. There is a detailed

discussion of that in a textbook which I have not

put on the list called Foskett's Law of Compromise, which discusses it in some detail and refers to the

cases, but the general view seems to be that one

may proceed in either way; either by motion in the

same action or by way of separate proceedings.

GAUDRON J:  If it could be done in any proceedings

separately constituted, the validity of point 2.3

falls away, does it not?

MR BENNETT:  No, Your Honour, that is where the problem

comes in. The problem is Order 24 rule 1(8) and

if Your Honours go to the materials, it is at the

beginning of the section with the rules in it.

What happened in the present case, as Your Honours

can see from the affidavit in support of the

special leave application - and I have had copies

of that made available if Your Honours need to

refer to it - but what occurred in this case was

that there was an Order 24 conference. What is

Harris(2) 42 31/8/90

alleged by my client is that at the Order 24

conference before one deputy registrar, she was
told that if she gave her consent, she would have
a locus paenitentiae for whatever the period of

appeal was.

The order was then made within half an hour by

consent before another deputy registrar.	The
problem is that under Order 24 rule 1(8):

Evidence of anything said ..... in the course of

a conference held pursuant to this rule is not

admissible in a court (whether or not

exercising Federal jurisdiction) or before a

person authorised to hear evidence by

consent -

So, there are real difficulties if she is not

entitled to withdraw her consent in proving a case

for vitiation of the consent and one of the matters

we rely on is the presence of this rule as

demonstrating that it is a reason why one must be

able on the hearing of an appeal to withdraw one's

consent and have the matter determined again.

MASON CJ: But is the rule consistent with section 37A in so

far as section 37A provides for a review?

MR BENNETT: Well, the problem is it is not before the same

deputy registrar; there is no appeal against the
Order 24 conference. What happens is one has the

Order 24 conference before one deputy registrar who

talks to the parties and endeavours, no doubt, to

bring them together and assist them in reaching

agreement; then if one does reach agreement, one

leaves that deputy registrar, goes next door and

sees another deputy registrar who exercises the

delegated power and makes the order. The problem

then is, if one wants to say, "Well, because of

something which occurred at the first conference,

my consent is vitiated", one is met with the

answer, "You can't say that because of Order 24
rule	1 ( 8) ".

DEANE J: But, if the rule is valid, is the question on a

hearing de novo,"Was there a consent?" or is it,

"Is there a consent?"

MR BENNETT: Well, Your Honour, we submit that it is

neither; we submit that on the hearing de novo one

starts without the consent unless it is a
continuing consent so, if one stands up and says,

"I no longer consent", there is just a hearing.

DEANE J: Then, your answer is that the question is, is

there a consent?

Harris(2) 43 31/8/90

MR BENNETT:	I am sorry, yes, Your Honour, that is so.
DEANE J:	Well, then, that raises the question the

Chief Justice put to you and that is, is a rule saying that the hearing will be a hearing do novo consistent with a statutory provision saying that

what will take place is a review of the decision

already made?

MR BENNETT:  Yes. It certainly has not been suggested

against us that the rule is invalid and that it is

the statute which authorizes the result which was

reached. That suggestion has not been put against

us and, of course, again there is no contention to

that effect by the respondent. We simply, for this

purpose, rely on the validity of the rule and in

the absence of challenge to it, we simply rely on

the rule. The question whether the rule is invalid

is really a question for another day which has not

been raised in these proceedings, although

certainly, I can appreciate there may be a

question.

BRENNAN J: It raises a more fundamental problem, does it

not, coming back to your first argument, and that

is: if there be fraud inducing the giving of

consent and that fraud cannot be proved before a

judge, how is there any delegation which is

susceptible of supervision in its exercise by the

judges?

MR BENNETT: That, Your Honour, is the way in which I relate

to the two parts of the case; it is the very way in

which I relate to them, that the fact that Order 24 rule 1 ( 8 ). creates that problem and the difficulties
which arise in relation to the appeal from a

consent order show very clearly that if the test is

that there can only be a delegation of judicial

power with a total right of rehearing before a

judge, that has not been achieved.

I should, very briefly, take Your Honours

under this heading to three cases in which the

issue has been referred to. The first is Johnston

v Johnston, (1986) FLC 91-710 and Your Honours will

see that there is a difference between courts as to

how this problem is to be solved. This was a

decision of the Supreme Court of Western Australia

in an appeal from the Family Court of Western

Australia. Your Honours will recall that there is

a different hierarchy of family courts in that

State. The Chief Justice Mr Justice Burt at

page 75,156 in the last paragraph in the second

column said this:

In my opinion, if the parties at a

conference reach agreement upon a relevant

Harris(2) 44 31/8/90

matter in issue between them evidence may be

given establishing in terms. The agreement

reached has to that extent achieved the

purpose of the conference and it brings it to

an end. The agreement is not "anything said

or any admission made, in the course of the

conference ... ". It is as a fact the end

result of it. If it were otherwise, the

parties would achieve the purpose for which

the conference is held but no one can give

evidence to establish that fact. And that

would be absurd.

So, His Honour took the view that one could at

least prove that one reached an agreement at the

conference, notwithstanding this rule.

Mr Justice Kennedy reached the result in a slightly

different way. In the second column, three-

quarters of the way down, after the reference to

rule 1(3), His Honour says:

The rule should be construed so as to avoid

absurdity. This can be done, I consider, by

regarding the words "in the course of a

conference" as not extending to the actual

formation of the agreement which the
conference itself was designed to achieve.

It is the same as the "without prejudice" discussions where you cannot have the discussions

but you can have the agreement that is reached at

the end of them.

Mr Justice Olney dealt with the matter at the

end of the report and he said, at the bottom of the

first column:

It appears that many thousands of pre-

trial conferences of the type referred to in

his Honour's reasons are held every year and

it seems quite remarkable not only that there

is no body of established judicial

opinion ..... but also that it falls for this

Court to break new ground in that area .....

The appellant's case ..... was based upon

something she claims the respondent said at

the pre-trial conference. She now says in

effect that if the respondent had not said

what she claims he said she would not have

agreed to the consent order that followed the

agreement reached at the conference. That may

well be the case but it is just that sort of

case which Order 24 rule 1(8) is designed to

avoid being litigated. If the facts had been

different, for instance, if the facts asserted

by the appellant had been that notwithstanding

Harris(2) 45 31/8/90

the agreement reached at the pre-trial
conference, in the period after the conclusion

of the conference and before the consent order

was made, she had second thoughts and in the

end only agreed to the consent order -

because of an undertaking et cetera, then it would

be different.

So, His Honour takes the view that if

something is said at the conference which amounts

to fraud by the other party, that order forbids one

to refer to it. That was approved by

Mr Justice Kay in Marriage of Borninkhof,

(1986) 11 Fam LR 151, and His Honour there sitting

as a judge of the Family Court in Melbourne

disagreed with the Full Court of Western Australia

and rather took the view taken by Mr Justice Olney,
and at the bottom of page 156 His Honour says:

With the greatest respect to the majority decision of the Supreme Court of Western

Australia, I do not agree with their approach.

What had been agreed to at the O 24

conference, if I am to admit the evidence, is

an agreement to enter into as 87 agreement.

An unapproved s 87 agreement ..... does not

have any evidentiary value which would assist

me in exercising my discretion in this case.

In my view, the exceptions set out in

0 24 r 1(9) -

and that is certain exceptions from the

confidentiality of the proceedings -

are designed to cover the field. They are

much wider than their predecessors in reg 96.

They were introduced to overcome the

difficulty of making cost orders ..... The only

exception ..... was the admissibility upon trial

of a person of an offence committed at the

conference. The rule-making authority, namely

the Judges of this court, have expanded
considerably the exceptions, but in my view,

there is no room for suggesting that the

conference has concluded the moment the

agreement is reached -

et cetera. So there are now two Family Court

judges on each side of that controversy. In

Marriage of Gray, (1986) 11 Fam LR 548, which is

the last of the cases dealing with it, all in the

same year - they are all 1986 - His Honour

distinguished Mr Justice Kay's decision and
approved the judgment of the other parties, and he

refused the wife's application to lead evidence of

Harris(2) 46 31/8/90

the alleged agreement at the conference. So that

is a major problem in relation to this type of

appeal.

TOOHEY J:  Is that why the first registrar sent the matter

to the second registrar for, as it were,

endorsement of the agreement reached by the parties

at the first conference?

MR BENNETT:  Your Honour, one does not know, but one

surmises that is the purpose of the practice.

TOOHEY J:  So it is, as it were, to protect the integrity of

what was said at the first conference?

MR BENNETT:  Yes, even if what was said at the first

conference would vitiate a consent, it is protected

by these provisions. Now, the problem which

arises under the orders of the Full Court arises

out of an ambiguity in the way they are drawn. If

Your Honours go to page 102 of the appeal book - I

am told that what normally happens, and indeed what

happened in this case - I had not appreciated

this - is that there is in fact no appearance

before the second registrar. He simply receives

the papers from the first registrar and makes the

order without the parties being there. That rather

supports both aspects of what I am putting.

Your Honours see the order made on page 102.

The ultimate order made is simply remitting the

matter but the review which is said to be remitted

is said to involve two main issues, whether the

terms of the order were agreed upon and whether the

terms were in a form appropriate to the type of

order sought.

What that leaves ambiguous is whether the

first phrase, "whether they were agreed" is

intended to extend to a party who says, "Well, yes

I went through the forms of agreement, but my

agreement was vitiated by something I had been told

before which was incorrect".

TOOHEY J:  Mr Bennett, what does the term "appropriate" mean

in that context? Does it mean appropriate having

regard to the financial position of the parties

and, as it were, all relevant considerations, or is

it to be concerned with the form of the order?

MR BENNETT: Well, the second part is the form of the order,

that is (b). The first part, I would submit is

simply, was there a consent to all the orders that

were made? It is simply the factual inquiry which

the other cases suggest one cannot make.

Harris(2)	31/8/90
TOOHEY J:	Does that imply there is no, as it were,

overriding power by the registrar to refuse to make

a consent order?

MR BENNETT:  Oh no, Your Honour, no. That I would assume

is - I follow what Your Honour is putting to me -

one would assume that that is intended to be

covered by the reference to form, although it is an

unhappy way of describing it. Certainly there

should have been theoretically a third inquiry

which is whether, not withstanding the consent, it

was appropriate to make an order.

TOOHEY J: But does the Act or the rules envisage that third

type of inquiry?

MR BENNETT:  The Act does in section 79, Your Honour, and I

am reminded the answer to Your Honour's question is

- I am grateful to my learned friend, the

Solicitor-General - two lines further down, at

line 21:

The latter may involve a consideration whether

the terms of the order agreed upon are such as
to constitute an order all the terms of which

are enforceable.

But it may go further than that because it no doubt

ought to cover whether it is an appropriate case

under section 79 for an order at all, because, for

example, of the means of the parties, matters of

that sort. But certainly that is part of the

registrar's function, although it appears

questionable whether it was exercised in this case.

MASON CJ: But (a) seems to be limited to the existence of

consent as distinct from whether the consent was
voidable, does it not? If you look at what follows

(a) and (b)?

MR BENNETT:  Yes, and that is the way the grounds of appeal

are, that we have asked the Court to review that

and add that one of the matters to be looked at is
whether the consent is vitiated or voidable.	I
have dealt with that in 2.4.

Now, I should briefly mention the question of

withdrawing a consent. The decision in Gardiner v

Gardiner, (1978) FLC 90-440, where the Full Court

held that an order should not be made on the basis of a consent where the consent is withdrawn before

the order is made. Now that is a case where the

consent was withdrawn before the primary hearing.
The hearing took place before Mr Justice Watson and
the husband had signed a consent order and then by
the time the matter was put before the judge for

the purpose of making the orders, the husband said,

Harris(2) 48 31/8/90

"I withdraw my consent". The judge said, "Well,

you are not entitled to do that, you have signed

the consent; I propose to make the order on the

basis of your written consent". And the Full Court

held that that was an error; that one ought not to

make an order by consent unless the consent

subsists at least up to the moment of the making of

the order.

Now the corollary of that, and this relates to

the question Your Honour Justice Deane asked me

earlier about is or were in relation to the review,

but the corollary of that, we would submit, is that
where there is a hearing de novo, a withdrawal of

consent before the hearing de novo means that there

is no consent and therefore the wife is entitles to

withdraw her consent before Justice Maxwell in the

present case, as she purported to do.

Now there are two cases which decided that and

Your Honours will see that one of those cases was,

in our respectful submission, misapplied by the

Full Court in this case. The first of those cases

is a decision in Van Der Veer v Van Der Veer,

(1981) FLC 91-043. This was a case where the

primary order was made by a magistrate under the

old procedure and there was an appeal to the Family

Court and there was an attempt to withdraw consent

on the hearing of the appeal and Mr Justice Pawley

held that that consent could be withdrawn. That

appears, perhaps most clearly, at page 76,379, in

the second column about a quarter of the way down

the page, against the words "the appeal" in the

left-hand margin. His Honour was dealing with an

application for extension of time to appeal and

His Honour then said this:

Whether the issue can be said to be

substantial or not does not appear to me to be

of much concern because I am of the view that

were an appeal to be m~de it must necessarily

succeed. Such an appeal would be brought

under section 96 of the Act. This has been replaced	by the rules I have shown
Your Honours, but Your	Honours will see it refers
to a hearing de novo.	It is almost identical, for
practical purposes, to	the present rules.

I am of the view, therefore, that without

at all considering the merits of the appeal

the court would be obliged to uphold it and to

set aside the agreement with which I am

concerned. If the section is to be given any

meaning when applied in matters of this kind,

it must follow that the appeal court would be

asked to consider whether its approval should

Harris(2) 49 31/8/90

be given to the agreement concerned by way of

"a hearing de novo". At such a hearing, it

would be necessary only for the applicant to

withdraw her consent for the court to declare

that the agreement was not to have any force

or effect and, indeed, presumably was rendered nugatory from the beginning. See Gardiner and Gardiner.

Now that decision, we respectfully submit, is

correct. Section 96 is still there in relation to

appeals from magistrates and, of course, it

corresponds for present purposes with what we are

dealing with.

Now, the third case is the one which has given

rise to the problems.

DEANE J: Is there anything that says that on such an appeal

the function of the appellate court will be to

review the magistrate's decision? If there is, it

would help you in relation to the question I asked,

or that the Chief Justice asked.

MR BENNETT: The phrase, Your Honour, is this - it is

section 96(4):

The Court hearing an appeal under this

section -

shall ..... proceed by way of a hearing de novo,

but may receive as evidence -

certain matters -

and may make such decrees as it considers

appropriate, including a decree affirming,
reversing or varying the decree the subject of

the appeal -

and it has power to refer it to the Full Court.

So it is de novo with such decrees as it

considers appropriate, including affirming, reversing, et cetera. But the word used is "appeal", and the word - - -

DEANE J: It does not help you, does it, because the Act

itself distinguishes between a review and an appeal

de novo?

MR BENNETT: Well, Your Honour, my answer to that is that we

are proceeding under the rules, and the rules use

the word "de nova", and this - - -

DEANE J:  My question was directed to the validity of the

rule.

Harris(2) 50 31/8/90

MR BENNETT:  Yes. Well, Your Honour, it is my submission

that this Court would not act on the basis that a

rule was invalid, or consider the invalidity unless

asked by a party to do so.

DEANE J:  I can see the force of that, but how can we do

otherwise here when you are asking us to determine
the function and the statutory provision creating

the function says it is a function of reviewing?

MR BENNETT:  Your Honour, the draftsman of the rules has

obviously taken the view that the word "review" has

a wide generic meaning rather than a narrow

technical meaning.

DEANE J:  He has taken the view, on your submission, that

you can say a review of what the registrar has done

can begin by disregarding what the registrar has

done and starting afresh.

MR BENNETT: Yes, Your Honour. It is, but the word "review"

is not a technical word. It is a word which one

might generally think suggests that one starts with

what one has below, rather like an appeal strictu

sensu rather than an appeal by way of rehearing.

But it is my submission that the word "review" is

not inconsistent with an appeal by way of hearing

de novo. One reviews in the sense that one looks

at the facts afresh, and if the decision one comes

to is different from the registrar's decision, one

reviews it. Review in other words can relate to

the result rather than the process.

TOOHEY J:  What would happen, Mr Bennett, if a judge rather

than the registrar or a registrar made an order by

consent. Are there comparable provisions which

would allow the matter to be tested before the

Full Court of the Family Court?

MR BENNETT: Probably not, Your Honour, because there one is

dealing with a different sort of appeal.	The
sections which deal with that type of appeal are -

section 94 which provides simply that:

An appeal lies to the Full Court of the Family

Court from

(a) a decree of the Family Court.

And under section 93A(2) the court:

has power to draw inferences of fact ..... to
receive further evidence upon questions of

fact -

and so on, and section 94(2) provides that:

Harris(2) 51 31/8/90

Upon such an appeal, the Full Court may

affirm, reverse or vary ..... make such

decree ..... as ..... ought to have been made in

the first instance, or may,

if ..... appropriate, order a re-hearing.

It rather seems to suggest that it is an appeal in

the strict sense and, indeed, if anything that the

word "review" is used in section 37A in contrast to

that, which would assist the argument I have just

put to Justice Deane.

But the third and last of the cases and the

one which, we submit, was misconstructed is

Robinson v Willis, (1982) FLC 91-215. Now, what

each of the three judges in this case did was to

say, in effect, whether or not one can withdraw

one's consent on an appeal from a consent order

depends upon the nature of the appeal.	And that,
with respect, is clearly correct.	And it is
convenient to go to the judgment of

Mr Justice Fogarty, although the other two judges

follow very much the same course.

His Honour, started on page 77,161, by dealing with the situation in relation to an appeal.	He
says, in the first column:

The meaning of the term "appeal" is not uniform in English law and has a variety of

meanings ...... legion of cases -

and some of them are set out.	I will not take
Your Honours to any of them.	It says:

From a consideration of those cases and a

number of others to which they refer ..... the

following principles may be extracted:

1.      The fact that an order is made by

consent does not make that order of any

different nature from an order made otherwise.

That rather harks back to my submission earlier

about the nature of the jurisdiction exercised by

the deputy registrar.

The order derives its force from the

circumstances that it is a valid order made by
the court in question, not from the agreement

of the parties.

And, with respect, I adopt that.

2. Amongst other conclusions which

follow from that is that such an order

may ..... be the subject of appeal in the same

Harris(2) 52 31/8/90

way as any other order. The important

qualification is that as a consent order is

made as a consequence of the consent of the

parties to the Court making that order and not of an adjudication by the Court, the order may not be challenged by an appeal -

and we stress the word "appeal" -

which is directed to the correctness of that

order, that is, it cannot be appealed against

on the merits. However other grounds of

appeal remain available as for example fraud,

mistake, fresh evidence, absence of

jurisdiction .....

3. Consequently, if the procedure under

section 96 is in reality an appeal then in my

view the order here may not be

challenged ..... because the husband seeks to

challenge the correctness of that order,

something which may not be done .... .

4.      The fundamental issue ..... is to

characterise the nature of the process under

section 96.

which he then does.

Now, we do not take issue with any of that,

but what His Honour then does is to consider

section 96. At page 77,163, he comes to his

conclusion on section 96 and he says in the first

column, at about point 3 after the number 8:

It appears to me that the process now

provided under section 96 is something of a

hybrid with some of the characteristics of an appeal and some of the characteristics of the exercise of original jurisdiction.

and he sets out the characteristics in each

category, "it is called an "appeal", Notice of

Appeal", form of "order", "On the other hand" its
"a hearing de novo" no "grounds of appeal" are

stated, and so on and then he says:

Given those rather diverse matters, it is

not easy to characterise the process so as to answer the fundamental question in this case.

However, it appears to me that, construing the

statute since the amendment in 1979, the

process is really a unique one which one

should not attempt to slot into any particular

category. In my view, it ought to be

characterised not as an appeal in any real

Harris(2) 53 31/8/90

sense, but as a process enabling a party to

have in effect a second hearing on the merits.

MR BENNETT:  So, the conclusion His Honour comes to, having

said, "If it's an appeal, one result follows and if

it's not, the other result follows", is that it is

in the other category and each of the other

justices does that. What happens in this case is

that both judgments in the Full Court pick up the

first part of that, refer to it and cite it and do

not refer to the second part at all. So, what they

say is, "Here are the passages which I read to

Your Honours from 77,161, saying that you can't

withdraw consent on an appeal" and then they stop

there and say that decides the case without

appreciating that this is a case where almost the

same words appear in the rule as appear in
section 96. If I can just very quickly show

Your Honours where that occurs in the judgments.

Your Honours will see page 103 at line 10:

In this connection we consider the views

expressed by Fogarty Jin Robinson and

Willis ..... as to the nature of an appeal from

a consent order are opposite.

They then cite a passage from 77,161, the first

part we have read to Your Honours, saying:

" ... it (the order) cannot be appealed against

on the merits. However, other grounds of

appeal remain available .....

Section 79A can only apply where, as

here, the order under regulation 36A(2)(n) was

an order under section 79 ..... In such a case,
the avenues for challenge ..... are not mutually

exclusive -

and, therefore, no appeal available.	The same
applies to Mr Justice Fogarty's citation of his own
judgment at page 85.	He refers to the first bit
and not to the second bit.	He refers, at the top

of the page, to the order and he cites two

passages, both at 77,161. Your Honours will see

the two passages are both followed by the citation,

77,161. Their each passages saying, where it is an

appeal, one cannot do it and as I have submitted

this case involves a regulation almost identical to

section 96.

McHUGH J: Why? That is very similar to the old quarter

sessions appeals in New South Wales. I mean, you

could plead guilty before a magistrate to an
offence and then appeal to quarter sessions and
insist on the Crown proving its case from the

beginning, plead not guilty.

Harris(2) 31/8/90

MR BENNETT:  Yes, precisely, Your Honour, and we would

respectfully adopt that analogy.	The phrase "de
novo" is, indeed, reminiscent of	those provisions.
That is what section 96 was held	to say and that
what was said here.

I have referred Your Honours at the bottom of

page 8 to Smith v Smith. Your Honours need not go

to that but it is merely put there for the purpose
of showing that in that case the Full Court did
exactly what it did in this case. It referred to
that earlier decision as if it governed all types

of appeal and, of course, it does not apply, we

would submit, to a hearing de novo.

Your Honours, for those reasons, it is our submission that in this case - - -

McHUGH J:  I am sorry, I just do not follow that last

sentence of your submissions:

Indeed, the Full Court misunderstood the

decision in Harris in exactly the same -

MR BENNETT:  What they did in that case was exactly what

they did in this case, Your Honour.	They
said -

McHUGH J:  Now, which case are you talking about, Harris?

What is Harris a reference to, the present case?

MR BENNETT:  I am sorry, Your Honour, Harris is a mistype

for Willis. I am sorry, that is my fault. I was

referring to Robinson v Willis, not to Harris.

BRENNAN J: Mr Bennett, if there were an action brought to

impeach the order that was made by consent outside

the particular proceedings in which the order was

made, what court would have jurisdiction to

entertain it?

MR BENNETT:  Your Honour, certainly it would probably not

decisions for fraud as to which it was held under the old law, before the Family Law Act, that the State supreme court at common law could set aside a decree of the divorce division of the State supreme court which was a consent order induced by fraud.	come within the common law power to set aside a State supreme court under its general
jurisdiction would have this power in view of
section 109 and the general referral of
jurisdiction to the Family Court so one would have
thought for that reason the answer would be either a fresh proceeding in the Family Court or a motion
in this proceeding in the Family Court.

Harris(2) 55 31/8/90

We would submit it could also be done on

appeal even if Your Honours are against me in

relation to the proposition about withdrawal of

consent.	One could do it in proceedings of this
type by saying the consent was voidable.	One of

the matters the Court is entitled to inquire into

on a review is whether there was a consent. If the

consent is voidable, then, subject to its being
avoided, there was no consent and, therefore, the

Court, for that reason, can deal with it on the appeal. So, the ultimate answer is in three ways,

Your Honour.

I see it is a quarter to one; I have almost

finished but I would like, perhaps, just for a
minute or two this afternoon to tie together what I

have said about the appropriate form or orders but,

subject to that, I have completed my submissions.

MASON CJ:  We will adjourn but, before we do so, I would ask

the Solicitor how long he expects that his argument

will take this afternoon.

MR GRIFFITH: Less than an hour, Your Honour.

MASON CJ: Yes, very well, but would you hand in your

outline of argument so that we can have the benefit

of that before we resume? Thank you.

The Court will now adjourn until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

MASON CJ: Yes, Mr Bennett.
MR BENNETT:	If Your Honour pleases. Your Honours, there are four, very brief, loose ends from this morning.
The first is: in answer to a question from
Justice Toohey, I submitted that one possible
reason for the use of two registrars was to enable
the provisions of Order 24 to be invoked. I have been informed over the luncheon adjournment that,
in fact, the reason for it is that some registrars
have delegations which authorize them to make the
particular orders and some do not. That is the

Harris(2) 56 31/8/90

reason rather than the reason which I surmised this

morning.

The second matter is that in relation to that

provision there are two cases which I referred

Your Honours to which I will just mention very

briefly. The first is In the Marriage of Riley,

(1980) 6 Fam LR 178, in which Mr Justice Hunt held

that the former provisions which corresponded to

Order 24 rule 1(8) did not prevent a party using something in his favour as opposed to something

against him. That was a case where the father was
criticized for discussing a matter with the child
of the marriage and the father's answer was that,
"the marriage guidance counsellor told me I should
discuss that with the child". That evidence was

objected to by the wife on the basis of this rule

and Mr Justice Hunt said that it did not apply to

preclude that sort of use of it to explain one's

own conduct.

The opposite result was reached and that

decision was disapproved by Mr Justice Joske of the

Family Court in Marriage of Marshall, (1983) 9 Fam

LR 43. I need not take Your Honours to that except

to say that on indistinguishable facts, His Honour
took the view that Mr Justice Hunt was wrong and

that in that situation one could not give the

evidence. Certainly, if Mr Justice Joske's

decision is right, and we submit it is not, we

would not be entitled to give evidence as to a

statement made which otherwise vitiated a consent.

The third of the matters I wish to refer to

was in relation to judicial power and all I want to

say is this, that probably the best discussion of

it that one finds, apart from the original

definition in Huddart-Parker, is in the judgment of

Sir Owen Dixon and Mr Justice McTiernan in Reg v

Davison - I will simply give Your Honours the

reference - 90 CLR 366-367. It is the familiar

passage beginning:  Many attempts have been made to define

judicial power, but it has never been found

possible to frame a definition -

and then there was some pages of discussion as to

what the phrase does mean. There is also useful

discussion of the topic as, I think, I was reminded

this morning, by the present Chief Justice in Reg v

Hegarty, 147 CLR 617, where particularly at

page 627 it is said that:

The application of prescribed criteria to

facts may be, and frequently is, an element in

Harris(2) 57 31/8/90

the administrative, as well as the judicial function.

There is then a passage saying it is recognized

that there are functions which can be either

depending on the tribunal on which they are put.

The final matter concerns the orders sought in the form of possible orders. I discussed with my

learned friend, the Solicitor-General, over the

luncheon adjournment, the possible declarations

which might be made. Might I hand to Your Honour a

draft which I have prepared and then as to

declarations which might deal with the matter.	Can
I just hand those to Your Honours.	The first is

alternative to the second and third. If the first

is made, the second and third become unnecessary.

In relation to the third, my learned friend has

suggested a modification, which I gratefully and

respectfully accept, and that is that there be

added at the end of three, words to the effect:

"Which are relevant to the issue whether the

consent of the appellant was vitiated or

avoidable". May it please the Court.

MASON CJ:	Yes, thank you, Mr Bennett. Yes, Mr Solicitor.
MR GRIFFITH:	If the Court pleases, we could turn to this

question of the order in respect of this particular

evidence. One problem for my learned friend is

that his ground 2(a) of appeal on page 107, in our

submission, does not reflect accurately the

judgment of the court. We would submit,

Your Honours, that on page 103, it is a joint

judgment·, it would seem explicit in what is there

said that Their Honours were leaving open the

possibility that this evidence would be receivable at the hearing and it is to be remembered that the

order on page 105, which is appealed from, also

ordered that the appeal be allowed, so there is no

issue as to that, and remitted the matter for

rehearing. But we would submit that the plain
reading of Their Honours' judgment on page 103 and

Mr Justice Fogarty at page 86, would seem to leave this issue, which my learned friend now seeks to

have determined in this Court, open.

At the same time, as we mention, we would

submit ground 2(a) does not represent a ground of appeal from the judgment so read, but having said

that, if the Court were minded to, because it is

before the Court, resolve the issue of the
receivability of this evidence which my learned
friend would asser·t would .go to vitiate or void the
consent, we have no objection to the Court

following that course, but we do point out that it

does seem to be outside the grounds of appeal when

Harris(2) 58 31/8/90

the matters is at issue on the appeal and of course
the respondent is not here, but that is perhaps

another matter.

We would, however, submit to the Court that

the first alternative ground is not open for my

learned friend. My friend's submission in effect

is that the effect of an order before the registrar

is to operate merely as a conditional order,

subject to any review which is required to be

within seven days, with the possibility of that

time being extended, or subject to the Court on its

own motion, reviewing the matter in respect of

which there is no time limit. In our submission,

that construction is not open on the reading of the

rules of the Act. If that construction were made,

it would have the effect of negating any effect

whatsoever, in our submission, of the making of the

order.

We would submit that if there was no further

operative effect to an order other than it has

effect subject to being regarded as de nova on

appeal, whether an application to review or a

review on the court's own motion; in that case

certainly no party before the court, applicant or

respondent, who was seeking to obtain an order

would, if they were intending to be bound by that

order and to have the opposite party bound by that

order, accept the order of the registrar because we

would submit that it would follow that the order
would be merely a conditional order subject to the

other party being able to file a notice for review,

possibly apply out of time even after the time

allowed, or to induce a judge, or more than one judge, of the court to act on its own motion to review the matter, and we would submit that that

would be an absurd construction to make of the

rules.

Having made those submtssions, it is our

submission that Order 24 rule 1(8) should not be

read in these circumstances as covering the

situation which my learned friend has indicated to

the Court and which was covered in the affidavit
for special leave which I think my learned friend

has said has been placed before Your Honours today. We would not seek to argue that rule 1(8) should be

construed so as to prevent my learned friend

leading such evidence on a review made within time.

On this issue of review on the grounds that

the consent should be regarded as something to be

voided or vitiated we would refer the Court to

section 79A of the Family Law Act. That is not one

of the sections reproduced by my friend. That

section is a particular provision enabling

Harris(2) 59 31/8/90

application to be made to the court in respect of
orders made altering property interests under

section 79 on various grounds, including that under

ground (a) subsection (1):

Where ..... the court is satisfied that -

(a) there has been a miscarriage of justice by
reason of fraud, duress, suppression of

evidence, the giving of false evidence or any

other circumstance.

We would suppose that if it were the case that an

order had been made, for example, because of a

statement by a registrar as to its effect which was

misleading in a material manner, which we

understand to be the basic substance of the matter

that my learned friend seeks now to argue, we would

submit that that would seem to be something which

would constitute a miscarriage of justice within

section 79A(l) of the Act and therefore could be

made the subject-matter of a discrete separate

original application to set aside the consent

order.

For that reason, we would submit to the Court

it would seem that in this case, whatever is the

outcome of this appeal, it would be open to my

learned friend's client to make application under

the section. That being the case, we would submit
that it would seem to confirm the circumstance that
there could be no objection on the review

proceeding which has been taken under the Act to

bring forward evidence of the same sort which

could, in any event, be brought before the Court

under a separate application under this provision.

It would seem to be that there are two routes

to the same result, but even if my learned friend

is regarded as having been shut out because of the

raise it within the grounds of appeal, none the	failure to raise the matter in this appeal, and to
less there would seem to be a remedy available to
him.

DAWSON J:  Mr Solicitor, just having a look at that

declaring once and for all the parties' rights in

section, apart from the decree of dissolution or

nullity, are there any orders which the Family

relation to the matter in dispute?

MR GRIFFITH: Well, Your Honour, there is always the

possibility of reconsideration, of course, in most

of the orders.

Harris(2) 60 31/8/90

DAWSON J: Dissolution and nullity of - - -

MR GRIFFITH: Yes, dissolution, nullity - property orders

are intended to be final, Your Honour, but of

course, they are subject to some - - -

DAWSON J: Well, they are not, not in the sense of

determining rights.

MR GRIFFITH: It is interesting, Your Honour - I do not know

whether it is a direct answer - that

Justice Williams really referred to this issue in

the Boilermakers' case - it is not in our list of

authorities - 94 CLR 308. Justice Williams said:

Apart from the Matrimonial Causes Act 1945

there is, of course, no legislation yet

enacted under s. 51, par. (xxii.) of the

Constitution but it is clear that, if a

uniform divorce and matrimonial causes law was

enacted for the Commonwealth, a great part of

the functions which would have to be performed
to make such legislation effective, such as

the provision of alimony and maintenance, the
variation of settlements and the custody of
the children of the marriage, would be of an
administrative character and the legislation

might well include provisions for attempts to

be made to effect a reconciliation between the

spouses pending the curial proceedings for a

divorce.

And that seems very much consistent with the

question that Your Honour put with me, or the
circumstance underlying Your Honour's question

that, indeed, many - it is difficult, Your Honour,

to think of one specific aspect other than that.	I
suppose an aspect of exercise of power under the
Act might be in respect of contempy but that is a
separate issue. But dealing with what one might regard as matters of the absolute essence of
judicial power, offhand, Your Honour, we cannot
Your Honour has.
identify anything further than those that

If we could turn then to the first issue -

perhaps if we can hope to take a short route and

not have a long route - we submit that section 37A

involves no challenge to the settled doctrine that

Chapter III of the Constitution requires the

judicial power of the Commonwealth to be vested

exclusively in courts referred to in section 71.

And we say that it does not involve any challenge

to the orthodox view that membership of a federal

court is constitutionally confined to justices

holding tenure in accordance with section 72.	And
of course, the position in the State courts can

Harris(2) 61 31/8/90

vary. My learned friend referred to the position in respect of masters of the Supreme Court of New

South Wales, discussed by the judgment of

Justice Gibbs. In the case of the Victorian

masters, the Victorian Constitution 1975, section

75(2) provides that the court is constituted by the

judges and the masters, and I think that was

referred to in passing by Justice Gibbs.

Jurisdiction under the Family Court is vested

by section 31 of the Act as we have seen in the

Court which consists only of the judges,

section 21(3), and it is our submission that the

judicial power exercised by the registrars under

section 37A remains at all times vested in the

Court. Our basic contention is that jurisdiction

and powers of the Family Court do not cease to be

its jurisdiction and powers merely because they are

exercised by the registrars under the rules of the

court made in accordance with section 37A and we

submit that this is very much consistent with what

Justice Gibbs said in the HCF case, particularly

at 159 CLR 59. There, of course, His Honour the

Chief Justice was referring to the position in the

State court. This is a passage which was not read

by my learned friend, but at page 59 point 2,

His Honour the Chief Justice said:

The jurisdiction and powers of the court do

not cease to be its jurisdiction and powers

because they are exercised by an officer of
the court, under the rules of the court. In
the present case the jurisdiction and powers

which Master Allen was called on to exercise were undoubtedly the jurisdiction and powers

of the Supreme Court. He was the officer of
the court by whom the jurisdiction and powers
of the court in the matter in question were
normally exercised, and an order made by him,
if not set aside or varied by the court, would

take effect as an order of the court.

Although he was not a member of the court he

was, in my respectful opinion, part of the

organization through which the powers and

jurisdiction of the court were exercised in

matters of State jurisdiction, and through

which they were to be exercised in matters of

federal jurisdiction also, once the court was
invested with federal jurisdiction.

We submit that that analysis is an analysis which applies equally in respect of the exercise of the federal jurisdiction within a federal court.

BRENNAN J:  What is the implication of that, Mr Solicitor?

Harris(2) 62 31/8/90

MR GRIFFITH: Well, Your Honour, we say that it is not an

exercise, then, of federal judicial power by other

than the court.

BRENNAN J:  So that it is open to the Parliament to vest

federal judicial power in any particular respect in

a federal court and to ordain its exercise by non-

judges.

MR GRIFFITH:	Not to ordain, Your Honour; to vest it in the court and then to vest in that court, Your Honour, power for the court to act as the court regards as appropriate in its own unfettered discretion,
having regard to the administration of justice and the discharge of that court's functions in respect of the extent to which delegations may be made to
officers of the court under its control.

BRENNAN J: So, it is then open for the judges of the court

presumably - - -

MR GRIFFITH: Completely, yes, Your Honour.

BRENNAN J:  - - - and one wonders why it should be the

judges alone that should so ordain the persons who

are to exercise the power. Why should that power

not itself be exercised by the court consisting of

judges and other officers?

MR GRIFFITH: Well, Your Honour, the Family Law court, for

example, is the judges; it is constituted by the

judges.

BRENNAN J:  Be it so, but that is no constitutional

imperative as I understand your argument.

MR GRIFFITH: Well, Your Honour, we say that the judicial

power is to be vested in the judges but the judges,
then, can determine the extent to which officers
within their control and subject to their direction
may be delegated powers with respect to the

exercise of the judicial power vested in the court.

BRENNAN J: But my question is, why should that power, that

is the power to prescribe the delegation, be

regarded as a power vested in the judges?

MR GRIFFITH:  Your Honour, because it is the judges who are

to exercise the judicial power pursuant to

Chapter III.

BRENNAN J: That, then, takes us back to the question of, if

they are the persons who are to exercise the

judicial power pursuant to Chapter III, whence can

there be any power for delegation?

Harris(2) 63 31/8/90

MR GRIFFITH:  We would say, firstly, Your Honour, that when

one has regard to judicial power, it should be

regarded as similar as legislative power; that

there is an implied power of delegation merely by

being the recipient of the power. So, secondly,

Your Honour, in this case, there is specific statutory authorization for that delegation, in

this case by section 37A.

BRENNAN J:  You mean, that the nature of judicial power when

invested carries with it a power of its own

delegation?

MR GRIFFITH:  Your Honour, that is not a question which need

arise for decision in this case because there is a

specific legislative power, 37A, which provides for

that.

BRENNAN J: But, the legislative power itself may be in

question. The question is whether or not the power is susceptible of delegation and, if susceptible of delegation, is the delegation to be effected by the exercise of judicial power by judges or in the

exercise of legislative power by Parliament?

MR GRIFFITH: Well, Your Honour, one has a dichotomy, of

course, because one has the question of federal judicial power vested in State courts and there

we

BRENNAN J: Well, are we speaking here only of Federal

courts then?

MR GRIFFITH: Yes. Well, Your Honour, firstly, we have

regard to the context and the way in which it has

been held acceptable for federal judicial power

vested in State courts to be exercise by those

State courts, including the structure in respect of delegation of exercise of judicial power in State courts.

Now, in that context, it is our submission

that there is no implication from Chapter III of

the Constitution which prevents the court which, in

this case is comprised of the justices of the

court, being specifically authorized by statute to

make any delegations - none if they wish - such as

they regard as appropriate if they do wish in
respect of the discharge of the judicial power

which is vested in the court and the reference we

just made to the judgment of the Chief Justice in

HCF was to make the point, Your Honour, that that

exercise of judicial power by the delegates of the court is, in our submission, to be regarded as the exercise of judicial power by the court, not as the

exercise of judicial power by some persons instead

of the court.

Harris(2) 64 31/8/90

BRENNAN J:  I understand the proposition, I think, but I

have difficulty in understanding whence is derived

a power of delegation, that is, whether it is an

incident of judicial power or whether it is said to

be some legislative power which has to be

conferred.

MR GRIFFITH: Well, Your Honour, we would submit - perhaps

it is circular - but if there is specific
legislative power, we submit that is sufficient,

Your Honour. Absent specific legislative power, we would submit that there would be power inherent in

to organize its business for the proper administration of justice and the discharge of the exercise of judicial power vested in it.

the court to delegate as is appropriate, court

DAWSON J: It must be. It has power to make rules. It can

make rules.

MR GRIFFITH: Yes, of course. I am sorry, Your Honour, I

should have been direct and said, "Yes, the court

can make rules". And our submission is just as the

State supreme courts have made rules, so federal

courts may make rules.

BRENNAN J:  It has never been doubted that the rule-making

power is a legislative power incidental to the

judicial power.

MR GRIFFITH: Yes.

BRENNAN J: But we are talking here about a judicial power,

a power to delegate a judicial power.

MR GRIFFITH: Well, Your Honour, we submit that a delegated

judicial power in these circumstances is not an

alienation of the judicial power from the court.

We submit it is part of the exercise of the

judicial power by this Court, and that that is the

authority for it, Your Honour. The Court has this

judicial power. The question is, "How is it

exercised?"

GAUDRON J: If it is itself the exercise of judicial power,

then it would seem that it cannot be dealt with

legislatively. And you have the problem that the

legislature could not, for example, pass a law

saying the judicial power to convict people of an

indictable offence shall not be delegated to the

registrar.

MR GRIFFITH: Well, Your Honour, if we could approach it

from the other end, Your Honour. We would submit

that the legislative could be silent on the issue

or could pass legislation which authorizes the

Harris(2) 65 31/8/90

court. It is only an authority. Section 37A as it
was in its previous version purported to vest the

jurisdiction directly in the officers of the court.

Now, we would acknowledge there would be

difficulties with respect to revision in those

terms. But in this case of merely authorizing the

delegation, in our submission, the legislature does

nothing more than perhaps that which would be

implicit in the first place, namely, to indicate

that the court has a free discretion to act as is

appropriate in the discharge of its duties to

exercise a judicial power to determine the extent

to which there will be participation of its

officers under its supervision.

GAUDRON J: Well, can it be 100 per cent?

MR GRIFFITH: Well, Your Honour, what we submit is that the

touchstone is for the court to do what is

appropriate. And we submit, Your Honour, that one

should not look at possibilities on the assumption

that the court will delegate all its powers and

adjourn and go and play golf. That is not the

purpose of these functions. These powers to

delegate as is appropriate, in our submission, are

powers for a purpose, and they need to facilitate

the due exercise by the court of the exercise of

the judicial power which is vested in it. And it

is for the judges to determine what is appropriate.

And, in our submission, Your Honour, the question

of whether or not that power has an extent so far

or no further is to be determined by regarding the

judges as the repository of common sense as to what

is the - well, not common sense, Your Honour,

perhaps I should put it more strongly than that -

to be the repository of the wisdom as to the manner

in which there should be participation to obtain

appropriate efficiency in the conduct of the

court's business having regard to the fact that it

is a judicial power being exercised in making

relevant delegations.

In this case, of course, under section 37A,

although there is a list of matters, none of them

is necessarily delegated to any registrar. It

would be quite possible for the court to delegate

none. As it is Order 36A delegates a further list

than those that are included in section 37A(l), for example, the power to make orders of dissolution in undefended matters is vested under the rules, and

we submit that that is a final order of the sort

that Your Honour Justice Dawson referred to but,

none the less, that is a matter of saying that the

Family Court is a repository of the power to decide whether or not it is appropriate if there is an

undefended proceeding, in the context of the number

of proceedings of the sort that Justice Fogarty

Harris(2) 66 31/8/90

indicated in the appeal book, I think, page 44.

Justice Fogarty indicated:

in the Family Court in 1988 just under 40,000

applications for divorce were filed and

approximately 50,000 other applications were

filed.

He says:

A process which would require that each of

those matters and each step in each of those

matters be dealt with only by a Judge of the

Court is unnecessary and undesirable.

In our submission, one should test the appropriateness of this provision by having regard

to the circumstance that it is the court to

determine what is appropriate, whether to exercise

this power of delegation at all, and if so, to what

extent. Of course, there are qualifications and

they are the propositions we make in paragraph 2 of

our contentions, namely that, we would submit, it
is appropriate that this delegation be in the
context that registrars are subject to the review

of the court and also, of course, should be

officers of the court.

We submit that the registrars are part of the

organization of the court and my learned friend, I
think, has sufficiently taken the Court to the
provisions of section 38B of the Act and also

section 37(1). The Family Court is now

institutionally autonomous in much the same way as

the High Court is under the High Court of

Australia Act 1979. This has been brought about through amendments to the Family Law Act contained in the Courts and Tribunals and Administration

Amendment Act 1989, which commenced on 1 January,

1990. That is, of course, after the events which

are covered by the appeal to day, but we would

refer to those provisions, particularly the new

and in particular section 38N(3), indicating that	Part lV(A) of the Act, section 38A to section 38X
officers of the court, including registrars, are
now appointed by the Chief Executive Officer of the
court, who is himself appointed by the Governor
General on the nomination of the Chief Judge.

Turning to the exercise of powers by the

registrars, we would submit that it is closely

circumscribed. The powers are limited to those delegated under the rules, and they are in turn

subject to the limitations under section 37A(2), so

it is not the case that section 37A(l) authorizes

the delegation of all powers of the court, because

Harris(2) 67 31/8/90

that general provision is subject to the limitation

contained in particular matters in subsection 2.

BRENNAN J:  You mean, subsection (2) is necessary to save

the validity of subsection (l)?

MR GRIFFITH:  Your Honour, we would submit not.

Your Honour, we would submit that the expression

"all/or" could be deleted from the provision and it

would have exactly the same operative effect and I

was going to take the Court, and I shall, to the

comparative provisions in the State Supreme

Court Acts which, in substance, give a power just

as complete which would in theory enable complete

delegation, whilst not putting it in such a broad

expression of all or any but, in our submission,

Your Honour, the appropriate qualification is to be found not in the expression of the power to

delegate but by having regard to the competence of

the court to determine what is appropriate,

particularly considering that what is being dealt

with is not merely administrative matters but also

the exercise of judicial power. We accept

Your Honour Justice Brennan's statement to my

learned friend this morning that one must regard

all these powers as being the vesting of judicial

power or that which is ancillary to it and we do

not seek to pick through the various paragraphs of

the delegation in order 36A to say this one might

be regarded as particularly administrative because,

in our submission the whole context is the context
of the court acting to discharge its function to
exercise judicial power vested in it including
matters ancillary to that which, of course, in the

case of family law include many matters which on

their own may be regarded as administrative orders,

but that is part of the vesting in a federal court

of the judicial power in respect of marriage and

matrimonial causes.

It is the case, as my learned friend,

Mr Bennett, pointed out that all cases are subject

to review by the court on the application of a

party as of right under section 37A(9) or by the

court on its own motion and, of course, there may

be a problem of construction when one has regard to

order 36A rule 7 using the expression de novo

because, in our submission, the operative provision

is the Act itself rather than the rule which

provides for a review. And it is on that

distinction that we would, as we have, draw some
objection from my learned friend's first

alternative form of order which provides, in

effect, that de novo hearing enables consent to be

withdrawn and the matter to proceed as if it is and

has never been a consent matter.

Harris(2) 68 31/8/90

We would submit that when it comes to an issue of review then it is review of the proceeding which

is before the registrar which, in this case, was a

consent proceeding, although in the special

circumstance of this case where my learned friend's
contention in effect is that there has been a
miscarriage of justice, as we have indicated to the

Court, we would accept that evidence may be brought on the review as to that matter just as it could be

brought if there was a separate proceeding for the
consent order to be set aside for reasons of a

miscarriage of justice.

We point out that section 37A(4) makes it

clear that a:

delegation of a power by Rules of Court .....

does not prevent the exercise of the power by

a court or a judge.

Registrars, under subsection (11) may refer any

matter to a judge and subsection (12) authorizes a judge to "order that the power" not "be exercised"

by a registrar but "be exercised ..... by a Judge".

So, that there is this capacity of the court

to control the exercise by a registrar of the

jurisdiction although, of course, not to direct the registrar as to how to exercise his discretion in a particular matter.

We would submit, therefore, that section 37A

is valid under section 71 of the Constitution as an

incident of the power to constitute and create the

Family Court or, secondly, we would submit, that it

is valid under the incidental power,

section Sl(xxxix), incidental to the exercise of

the power vested in the Federal Court by

section 71. It is our submission that the term

"court" in sections 71, 77(i) and 77(iii) has the

same meaning, meaning a court is an institution and

not limited to the persons of whom it is comprised, and as to that we would refer to the historical	position, which was discussed by Justice Gibbs in
Kotsis v Kotsis, my learned friend took the Court
briefly to that, 122 CLR 69, in particular if I
could take the Court to the passages not read by my
learned friend at pages 109 and 110.

The conclusion that I have reached on

authority conforms with my own view. For many

years before Federation courts in England, and

in some at least of the Australian colonies,

had exercised part of their jurisdiction

through officers such as masters and

registrars. This system does not in any way

involve a relaxation of the safeguards of

Harris(2) 69 31/8/90

individual liberty which are provided by the

existence of a separate and independent

judiciary. The judges control the officers of

the courts and can call their orders in

question whenever necessary. On the other

hand, the system entails the great benefit

that the judges are not obliged to perform

functions which can with equal efficiency be

performed by masters and registrars so that

the time of the judges is spared for matters
of greater importance. If the judges

themselves are obliged to exercise all the

jurisdiction that is quite satisfactorily

exercised by masters and registrars, some of

which is of a comparatively minor and routine

character, a considerable increase in the

numbers of the judiciary will be required.

If I may pause then and refer to the numbers of

40,000 or 50,000 mentioned by Justice Fogarty in

the context of matrimonial law, it is not difficult

to form a rough estimate of the number of increased

members of the judiciary which would be required.

BRENNAN J:	Of course, the converse to that proposition is that, let the number of judges be restricted to few
and let the number of less expensive public servants be numbered many and the options that the
Court has, in relation to the delegation of powers,
is automatically restricted.

MR GRIFFITH:  Your Honour, we would dissent from that. We

would say that the court has complete discretion as

to whether to delegate and if the court regards it

as inappropriate to delegate, well then, the

delegations would not be made and we would not

suppose for a moment, Your Honour, that a court and

any of the members of the court would abrogate

their responsibilities as a member of the court in

making delegations by reason of, if one likes,

economic necessity and, Your Honour, we would cavil

at that as even a possibility. We would submit,

Your Honour, that this power would only be

exercised by the court, being the justices of the

court, if the court were of the view that the power

was an appropriate one to be exercised by the

delegates of their power.

We would submit, Your Honour, that it could

not be countenance for a moment, that a court would

let itself be run down by having a reduced number

of judges so that there were insufficient judges to

exercise the judicial power which should be
exercised by judges themselves rather than by their

delegates.

Harris(2) 70

McHUGH J: But, if you got power to delegate, does it not

mean that the federal jurisdiction of the courts

are being exercised by persons other than judges?

MR GRIFFITH:  Your Honour, if one accepts that it is still

the exercise of the jurisdiction by the court and

the court is constituted by the judges, that is to

adopt the approach of Justice Gibbs that I referred

the Court to.

McHUGH J: That is not what section 79 of the Constitution

says. When you read 71, 72 and 79 together, they

certainly seem to carry an implication that federal

jurisdiction is to be exercised only by judges.

MR GRIFFITH:  Your Honour, 79, we would construe as being

more directed to the issue of composition of State

courts and we would not regard it, Your Honour, as

having a message in respect of the relevant - - -

McHUGH J: But it must be federal, is it not? It says:

The federal jurisdiction of any court may be exercised by such number of judges as the

Parliament prescribes.

MR GRIFFITH:  Yes, well, Your Honour, it is our submission

that that provision is directed at the vesting of

jurisdiction in State courts which enables the
vesting of federal jurisdiction to not take the

courts as it finds them but to - because section 79

authorizes it - make specific requirements as to

the composition of the court and, we would submit,

Your Honour, section 79 has not been given any

wider operation than that but we do particularly,

Your Honour, rely upon the terms of section 71,

77(i) and 77(iii) as we say, Your Honour,

indicating a similar meaning.

If it is accepted as it is, Your Honour, that

the vesting of federal jurisdiction for the reasons

now stated in this extract from Justice Gibbs, that

I was reading to the Court, are appropriate to be

exercised in the State courts, including those who

by the ordinary practice of the State court have

powers delegated to them, we submit, Your Honour,

that the same reason why that should be regarded as

appropriate should apply in federal courts and we

submit, Your Honour, that there is nothing in the

construction of section 71, 77 or other of contrary result.

Your Honour, if it is regarded as a matter

where there is a possibility of an implication

being derived from Chapter III, we would rely upon

the statements such as those of Justice Gibbs and

Harris(2) 71

the content of his remarks as indicating,

Your Honour, very strongly that the implication

should not be drawn to say that federal

jurisdiction exercised by a federal court is

different from federal jurisdiction exercised by a

State court.

DAWSON J: 

Mr Solicitor, given that legislation is not

necessary, are there any limits upon the power to
delegate?

MR GRIFFITH: Your Honour, there are limits. Firstly, we

would suppose, Your Honour, that delegation should

be to those who are officers of the court.

DAWSON J:	No, with regard to subject-matter.
MR GRIFFITH:	Your Honour, we would submit there is no

requirement to draw limits because - - -

DAWSON J: Then, if one looked at section 37A(2), the

matters which are accepted there are matters in

which there could be a valid declaration; that is,

in respect of the:

decree of dissolution ..... a decree of

nullity ..... declaration as to ..... validity.

MR GRIFFITH:  Yes. Well, Your Honour, they are the sort of,

one might say, pure judicial power functions of the

sort that one - - -

DAWSON J: Well, what I am asking you is, on your argument,

could they be delegated as well?

MR GRIFFITH:  Your Honour, we would suppose that it could be

within the discretion of the court to delegate that

so long as there is a review as of course, by the

court.

Now, my learned friend had the example of the Clerk of this Court being delegated with a function
to hear appeals.	Now, we would submit,

Your Honour, that that should not be regarded as a

possible example because there is no possibility

whatsoever that this Court would make a rule to

authorize the Clerk or the Registrar to hear appeals. If that did happen, Your Honour, a
corollary would be that it would be an absolute

right of review before the Judges, so one would

make a circle and would be back here after a

formality which - - -

DAWSON J: What do you mean by right of review?

Harris(2) 72 31/8/90

MR GRIFFITH: It must mean, Your Honour, that there is a

right to come to the court to argue the matter

again.

DAWSON J:  An appeal, in effect.

MR GRIFFITH: Well, Your Honour, not limited merely to

appeal on a question of law. When one says

"appeal", one normally means a question of law.

DAWSON J: Well, appeal on a question of facts, but

"appeal" you mean. If you like, appeal by way of

review.

MR GRIFFITH: Well, Your Honour, we would say appeal by way

of review would include the capacity to canvass the

facts.

DAWSON J: Yes, but what I am getting at is if neither of

the parties chose to do so, then the rights of the

parties would be determined by, if there are

delegation of these matters in 37A(2), the

Registrar.

MR GRIFFITH:  Yes, Your Honour.

DAWSON J: And they would be rights which are final.

MR GRIFFITH: Yes, and we would say, Your Honour, that would

be an order of the Court.

DAWSON J:  You see, the draftsman seemed to have some

different thing in mind, did he not, when he chose

those particular subjects as being subjects

which - ~ -

MR GRIFFITH: Yes. Well, Your Honour, one then is talking

about what are the possible limits and what are the

limits in the Act. One can understand why,

although there was a broad power, it was

appropriate to retain those ones. They are the

sort of matters that Your Honour identified as

being those most obviously judicial although, as I

pointed out, Your Honour, there is not a complete
overlap because there is under Order 36A a
delegation of the power to make orders nisi for

divorce in undefended matters vested in the

registrar. That is equally such an order.

DAWSON J: But, anyway, coming back to it, your proposition

is that a court, provided that it did itself and

there is an appeal from the decision, can delegate

all of its functions to a registrar?

MR GRIFFITH: Well, perhaps I - could I say any of its

functions, Your Honour?

Harris(2) 73 31/8/90

DAWSON J: Yes, well, any of its functions: any and/or.

MR GRIFFITH:  Yes, and by "appeal", we mean a review on the

facts as well as on the law; that one could

reagitate the facts, not just confine to appeal on

the law. In other words, run the case again.

We would submit that is the case, Your Honour, and we submit there is no difficulty about that.

In an extreme example of saying, "Oh well, that means the Clerk can hear appeals to this Court" is

one that, we submit, is not relevant. Of course,

this is a court of original jurisdiction. If, for

example, the Commonwealth conducted a lottery on

the basis of how many jelly beans there are in a

bottle and a person who was the unsuccessful

entrant sued for the prize on the basis that the

beans had been miscounted, we would submit there

would be nothing objectionable for this Court

giving the Registrar or the Clerk, if one likes

that, the power to determine the issue of how many

beans there were in the bottle. It would be a

question as to what was the view of the Court as to

what was appropriate to determine that issue and we

would submit that if the Court took the view that

that matter could be delegated to the Registrar or

the Clerk, it would be perfectly appropriate; the
parties could sit there and see him count the

beans. If they wished to dispute it, they could

appeal to the Full Court and the Full Court could

count the beans but, in our submission, it is a

matter of discretion where one says the repository

of the Court being the decision-maker on that issue

is the safeguard.

So that we say that one does not deal with

extreme examples and say, "Well, that means there's

a complete destruction of the concept of Chapter

III which requires the judicial power to be vested

in the court." It is the court which determines

what is appropriate to discharge its functions and

we would submit that one cannot have any a priori

list of matters or core matters which are
appropriate.

Twenty years ago the issue of dissolution of marriage, of course, was something which required anxious consideration by justices of the supreme

courts perhaps with the intervention of a proctor,

or something of the sort. Nowadays they are

regarded as administrative matters, magistrates may

be vested with the jurisdiction and in undefended

matters registrars are, and we would submit that it

is a question of what is appropriate as determined

by the court which determines the extent to which

there is delegation, rather than being an

Harris(2) 74 31/8/90

implication from the provisions of Chapter III as

to the extent to which there may be delegation.

DEANE J:  Mr Solicitor, is there any significant

discussion of section 79 in any of the cases other

than Le Mesurier v Connor?

MR GRIFFITH:	No, not that we know of, Your Honour.
DEANE J:	Thank you.
MR GRIFFITH:	We will let the Court know if that is a

mistake on our - - -

DEANE J:	I would be grateful if you would.
MR GRIFFITH:	I was referring to Justice Gibbs at page 110

at Kotsis. His Honour said:

The Constitution itself discloses no reason,

and I can think of none, why its framers, in

adopting the expedient of allowing State

courts to be vested with federal jurisdiction,

should have intended at the same time to

reject the organization through which the

State courts operated, when that organization was established in practice and useful in

operation. The exercise of federal

jurisdiction is not necessarily any more

difficult, complicated or important than the

excise of State jurisdiction, and in fact, of
course, some matters which formerly fell

within State jurisdiction are now within

federal jurisdiction;	matrimonial causes and
bankruptcy are obvious examples.	The nature

of federal jurisdiction did not require any

different kind of organization, and there was

no less need for courts exercising federal

jurisdiction to be organized so that their

officers, acting subject to confirmation or

review by the judges, might perform on behalf

of the court judicial functions where were of

which could for other reasons be safely	a routine or comparatively minor character or
entrusted to them. There is no reason of
which I am aware why the exercise of federal
jurisdiction should necessarily be less flexible and more costly than the exercise of State jurisdiction. When, therefore, the
Constitution spoke of investing State courts
with federal jurisdiction, it meant to refer
to State courts with the organization and
structure provided by State law, including in
appropriate cases masters and registrars who exercised some judicial power.

Harris(2) 75 31/8/90

The general position in England, both

historically and as a matter of contemporary

practice, is dealt with in Silberman in the article

we refer to in our contentions Masters and

Magistrates Part I: the English Model,

(1975) 50 New York Law Review 1070. I will not

take the Court to that article, but if we may give

to the Court an example derived from that article

of delegation of judicial power to the court's

officers and that is the Judges Chambers (Despatch

of Business) Act Act 1867, if I could hand copies

of that to the Court.

We refer the Court to this provision because

it is an example of a general power of delegation

which we would submit is equivalent to saying any

or all and section 1 provides:

It shall be lawful for a Majority of all the Judges of the said Courts, which Majority

shall include the Two Chief Justices or One of

the Chief Justices and the chief Baron, from

Time to Time to make and publish General Rules

for the following Purposes; that is to say:

(l.)For empowering the Masters of the said

Courts, or some One or more of them, to do any

such Thing and to transact any such Business,

and to exercise any such Authority and

Jurisdiction in respect of the same, as by

virtue of any Statute or Custom, or by the

Rules and Practice of the said Courts or any

of them respectively, are now done,

transacted, or exercised by a Judge of the

said Courts sitting at Chambers, and as shall

be specified in any such Rule, except in

respect of Matters relating to the Liberty of

the Subject.

And so that is an example of the general power

given to the Court. Subsection (2) is quite
interesting because it provides that: Every Rule to be made under this Act

shall be read aloud in open Court in each of

the said Courts Ten clear Days at least before
the date fixed for such Rule coming into

operation.

A practice which seems not to be practised here.

We do not base our contentions to the history

referred to by Justice Gibbs in Kotsis as is

perhaps confirmed by this 1867 Act. We would

submit that even if the historical material did not

disclose such wide powers of delegation, there is

no reason why the current processes of judicial

administration in federal courts should be frozen

Harris(2) 76 31/8/90

to reflect either 18th or 19th century practice,

and we would refer the Court, as I indicated,

briefly to the position in the States, by handing to the Court a summary of the position in respect

of each of the States.	We have a summary sheet
with the legislation attached.	The position in the
States presently is that:

The Supreme Court Act of every State

except Tasmania allows the Judges of the

Court, by Rules of Court to confer on the

Masters any jurisdiction of the Court -

and that is subject to an exception in Victoria as

we refer to. If by way of example we could take

the Court to the Supreme Court Act 1970 New South

Wales, first annexed on the second page of that,

section 124(1)(h), the rule-making power enables

the rule committee to make a provision:

prescribing what powers of the Court may be
exercised by any of the masters, acting

masters, registrars and other officers of the

Court.

TOOHEY J:  Mr Solicitor, to really assess the significance

of that document we might need to know whether, by
terms of the relevant Act the master was a member

of the court or not.

MR GRIFFITH:  Your Honour, the position, as we understand

it, is that the master of the Victorian Supreme

Court is a member of the court, and I refer - - -

TOOHEY J:  I think that is the position in Western Australia

as a result of an amendment made in the last few

years, but I am not sure.

MR GRIFFITH:  Your Honour, I am indebted to Your Honour for

adding that. We do have some materials headed:

The Present Position of Masters in State

Supreme Courts -

which is a compilation of the various provisions.

If I could hand that to the Court it may be of

assistance, but I must check whether we have got

the Western Australian position correctly. As we

understand it, at least in New South Wales, the

position is as it was described by Justice Gibbs in

the HCF case. Your Honour is quite right, on

page 5 of this summary, section 7(l)(c) of the

Western Australian Supreme Court Act provides that:

the Court includes the Masters.

So I am indebted to Your Honour.

Harris(2) 77 31/8/90

We would submit that the position in the

States seems to be a general position irrespective

of whether the masters are officers of the court or

not. And I think in HCF it was referred to the

fact that the Victorian amendments seemed to arise

after Kotsis to perhaps deal with the apprehension

that the position was difficult if the master was

not a member of the court.

I did not intend to take the Court through

this summary other than to indicate the extent to

which the rule-making power has been exercised, and

it is substantial but with variations.

So we would submit that the reasons referred to by Justice Gibbs in Kotsis as indicating that

there were benefits to be derived from the capacity

of State courts to delegate their functions to

masters and registrars, and that there was no

reason that federal jurisdiction should be regarded

as being in a special case as not to be amenable to

being administered when vested in State courts

under the same structure. We would submit that the

reasons stated by His Honour and also those stated

both by His Honour then the Chief Justice in the

HCF case, in particular in 150 CLR 57, where

His Honour then indicated that the decisions in Kotsis and Knight achieved no useful result, but led to considerable inconvenience. His Honour there and also Your Honour the present Chief

Justice as referred to by my learned friend, at

page 64, and His Honour Justice Murphy at page 65,

we would submit, made the point - and we would

adopt the approach - of indicating that federal

courts should not be regarded as being in any
different position and that federal jurisdiction

should not be regarded as having a special

characteristic when exercised by federal courts.

Of course, if it is the case that the exercise of federal jurisdiction by federal courts is to be

amenable to delegation to officers of the court,	regarded as being in a particular position and not
subject to the qualifications that those officers are to be under the direction of the court, and their decisions are to be amenable to review by the
court, in our submission, in that circumstance the
result of such a conclusion will only in the long run lead to the erosion of the function and status of federal courts.

The first obvious problem would be if there is

not a capacity to deal with the business in a way

and using the structures which have worked

effectively before Federation and which have worked

effectively in the State courts since Federation,

it would follow, if one has regard even to

Harris(2) 78 31/8/90

statistics of the sort referred to by

Justice Fogarty, that it would be a very difficult

task indeed for the court to bring the necessary
capacity to bear for a judge to deal with each and
every exercise of the power by the court.

The second and most obvious possibility, of

course, is that if the federal courts are not able
to organize their affairs in a way which the judges
regard as appropriate as the proper discharge of
their business, and therefore are not able to
discharge that function of administering the
federal judicial power, and there is available

structures which are capable of being adapted to

the proper discharge of the judicial power, one
would expect that in the long run, if not in the
short run, there would be an encouragement of the

vesting of federal power within the State courts

and a consequent reduction of the vesting of

jurisdiction within the federal courts.

We put it like that to make the point that we

would submit there must be a strong reason

identified by this Court before it vindicates the view that sections 71, 77, and the other sections

of Chapter III of the Constitution do implicitly

confine the delegation in respect of the vesting of

the exercise of federal judicial power to that when

exercised by State courts and do not permit
delegation of exercise of those powers which might,

for the reasons stated by Justice Gibbs amongst others, be appropriate for the discharge of the

exercise of the administration of the court in the

case of the Federal Court.

DEANE J: Where, in your context of within the court and a

requirement for full review, would proceedings such

as those adopted in New South Wales for referring

matters out to arbitration fit in? Would they be
outside - they are certainly outside the way you

put your argument.

MR GRIFFITH: Yes, well, Your Honour, it may well be that

provisions such as that sort, which might be

regarded as reflective of modern techniques for

dispute resolution, one might have to consider

whether one would not require some element of
acquiescence by the parties before one adopted a

mandatory system of reference out. That would seem

to be another step, Your Honour. We put our

submissions no higher than the court adopting a

mechanism within the court and if we may,

Your Honour, we would leave for another day the

possibility of the mandatory provisions of the sort

as I understand now the New South Wales commercial

list adopts.

Harris(2) 79 31/8/90

DEANE J: Except, if your submissions were just accepted, it

may be implicit in them that reference in some

circumstances to outside arbitration or

conciliation may be precluded from the exercise of

Commonwealth judicial, or federal judicial powers.

MR GRIFFITH:	Your Honour, as to that area, I would hesitate to say anything implicit because one can see,
Your Honour, the obvious difficulty that once one
says it is outside the court, then one is out of
this comfortable area where one says it is within
the control of the court.

DEANE J: Well, outside the court in that it is not to a

court officer and not subject to unqualified

review, but within the control of the court in that

the result of the reference out comes back for

action within the court which is the way the New

South Wales system works, as I follow it.

MR GRIFFITH:  Your Honour, as I understand the New South

Wales system, it comes back and then that really

determines the matter.	The court does not have an
independent discretion to review it.	Now,

Your Honour, at that point one can see real

difficulties in the postulation that we seek to put

today to accommodate that situation. Your Honour,

what we seek in our submissions today is to

reflect, what we say, has been the approach of this

Court to what is acceptable in the vesting of

federal jurisdiction in the State court and to

adopt the approach that for the same reasons that

that is acceptable when it is vested in the State

court, it is acceptable when vested in the federal

court.

The extension, Your Honour, to modern dispute

resolution proceedings to operate in mandatory form

without review could give rise, we would suppose,

to difficulties and we would not wish, Your Honour,

to say implicit in our submissions as embracing

that the court could, of its own motion, adopt that

as a dispute resolution procedure.

DEANE J:  What I was suggesting was, that implicit in your

resolutions was that, that was something that could

not be incorporated in a federal court system.

MR GRIFFITH: Yes, I think I have got Your Honour's drift on

that but it is not something, Your Honour, that we

would like to say, "Well, we'll give that away"

because it is for another day. For a start,

Your Honour, one can see that the establishment of

mediation procedures in federal jurisdictions might

be appropriate but one could characterize them,

appropriately drawn, as being administrative,

perhaps voluntary, perhaps preliminary to judicial

Harris(2) 80 31/8/90

rights and, therefore, one could develop a

structure with the same sort of operation, but not

in the same form, as the mandatory New South Wales

Supreme Court commercial list requirement, so that

it might be a matter of structure to get to that

form of mediation, which seems to be the

fashionable trend at the moment, and if we may,

Your Honour, we would not want to cut that off but

we would say, Your Honour, we would hesitate very

much to embrace that within the structure of saying that it would be a forced part of the delegation by

the court of its judicial power vested in the

court. There might be other dispute resolution

mechanisms which could adopt it.

We do make the point that we say that the two

words "all" or "any" does not add anything to

37A(l). Perhaps it raises the emotional level a

bit but, in our submission, that provision is, in

result, exactly the same in operation as provisions

such as the New South Wales Supreme Court Act

provision I referred to which merely says for

prescribing:

what powers of the Court may be exercised by

any of the masters.

The same issue of possibility that everything might be vested in the master could arise but we submit

that that does not alter the issue as to power and

we have already made the point, we say validity is

not to be tested by an extreme example of

inappropriate exercise of the power to vest

jurisdiction. If the powers is vest in the judges,

we would submit, one can rely upon the judges to

exercise that power as is appropriate and if it is,

as we submit it is, the case that one sees that

that power has comfortably been exercised by the

State courts, both when they were colonial courts

before Federation and since, we would submit, this

Court should be slow to spell out of Chapter III

any implication that there is to be a contrary

implication in the case of vesting of federal

jurisdiction in a federal court.

We would say, generally, that there is no

occasion for this Court to find any constitutional

implication to fix the exercise of federal judicial

power by a federal court within a special rigid

inflexible structural form. We would submit, to do

so would not serve any purpose other than to exert

pressure for the vesting of federal jurisdiction in

other mechanisms.

BRENNAN J:  Why would it do that, Mr Solicitor?

Harris(2) 81 31/8/90

MR GRIFFITH: Well, Your Honour, one has the requirement, we

would say, firstly, when one has regard, for added up, 90,000 applications - that does not seem
example, of family law that it is the case,

to include the interlocutory applications, but just

principal applications and made each year,

Your Honour. If the court is unable to adopt

procedures, for example, to enable officers of the
court to deal with matters which judges would
regard as appropriate to be dealt with by officers

of the court because of the constitutional

inhibition, Your Honour, one still has the problem

of the necessity for that judicial function to be

discharged.

Now, Your Honour, if one then has the

requirement for the judicial function to be

performed, and an incapacity in a federal body to
perform it in an efficient manner, one could see,

an obvious pressure to adopt the mechanism, for

example, of vesting in State courts jurisdiction in

that matter.

BRENNAN J: So, by "efficient manner" you mean, exerc.1.s.1.ng

the function by somebody other than a judge?

MR GRIFFITH:  Your Honour, we do emphasize "efficient"

because what we submit is that it is not a question
of lowering of stands that is involved in this

power of delegation but a matter of the court

acting as is appropriate to deliver, in effect, the

judicial service which is vested in it and that

includes, Your Honour, retaining judicial

standards.

BRENNAN J: Could you, perhaps, explain what is meant by

"appropriate" which does not involve a lowering of

judicial standards by indicating the way in which

the exercise of the power by judges were

inefficient?

MR GRIFFITH:  Your Honour, the problem is that as stated by

Justice Gibbs. Perhaps if I could uplift his words

Your Honour. There are many functions,

Your Honour, in the course of dealing with, say,

applications in family law which do not require the

full attention of a judge of the court, in our

submission. They can be conveniently dealt with by

persons such as registrars. Justice Gibbs accepted

that in the case of the supreme courts operating in

ordinary jurisdiction; we submit, Your Honour, and

we refer to the differences in family law that this

is even more the case in a case of exercise of

jurisdiction in family law.

Harris(2) 82 31/8/90

Now, Your Honour, it is for the court to

determine what is appropriate for the allocation of

the distribution of who shall exercise function in

respect of some matters and other matters. Now, on

the extreme case each and every matter must be

dealt with by the judge. We would submit,

Your Honour, that there is no constitutional

requirement for that.

McHUGH J:  Mr Solicitor, can I bring you back to section 79

again, because why should section 79 be read as

confined to State courts invested with federal

jurisdiction? It refers to jurisdiction of any

court.

MR GRIFFITH: Well, Your Honour, we would submit that it is

not necessary for the Constitution to deal with the

numbers of judges in federal courts, because that

can be dealt with quite directly. There is no need

to have a constitutional provision about that.

Section 79 is confined to judges and we say,

Your Honour, its purpose is, in relation to State

courts, if the Commonwealth were basing the

position of taking the State courts as it finds

them, there was a power, Your Honour, given by

section 79 to interfere with that to the extent of

making provisions as to who should exercise the

jurisdiction in the State court. Now there is no

necessity for a constitutional limitation in

respect of the Federal Court, in our submission.

McHUGH J: But it talks about any court, it does not talk

about any court of a State invested with federal

jurisdiction.

MR GRIFFITH: Your Honour, we appreciate that point can be

made, Your Honour, but what we say is that one

cannot go from section 79 and go back up, as it

were, to say that this infects what otherwise has

given to the meaning of "courts" as used in

section 72; section 77(1); section 77(3).

McHUGH J: But if you read sections 71, 72 and 79 together,

they seem to embody a legislative scheme requiring

judicial power to be exercised by judges and no one

else.

MR GRIFFITH:	Your Honour, I have given one answer to that to say that, just as it is accepted that the
exercise of power by masters, who are not judges or
part of the court in the State courts, as regarded
as an exercise of the jurisdiction of the State
court, vested with federal jurisdiction, we would
submit, in the same way, Your Honour, the exercise of federal jurisdiction vested in a federal court, exercised by someone the equivalent of the master
who is not part of the court, but an officer of the

Harris(2) 83 31/8/90

court, should be regarded as none the less the

exercise of the jurisdiction by the court, not by

someone else. We submit, Your Honour, that it is

the same - - -

DAWSON J: That is really to ignore the problem, is it not,

because the State court is not troubled by problems

of judicial power.

MR GRIFFITH:  No, Your Honour, but we would submit the High

Court could have been, if it thought, Your Honour,

that the - - -

DAWSON J: But it was not. It said you take the State

courts as you find them and if that means someone

who is exercising judicial power is not a judge, so

be it. That is what the Constitution says. That

solves nothing so far as federal courts are

concerned. One of the problems with the argument

is that, if you think that there may be some powers
which are delegable and some which are not, it may

be that only powers which involve judicial

functions, but not the exercise of judicial power,

then the argument simply does not assist. Do you have an alternative argument to put, that if what you say is not right and that judicial power

completely can be delegated, there are nevertheless

some functions which can be delegated and one has

to draw a line?	Do you have any alternative
argument?

MR GRIFFITH:  Your Honour, can I have two responses to

Your Honour's comment? We submit, Your Honour,

that is one aspect of regarding Kotsis as
establishing one takes the State courts as they

find them, but we submit, the other aspect,

Your Honour, is to accept the desirability of

having powers exercisable, not always by the judge,

and only by the judges and it is that - - -

DAWSON J:	It might be desirable, but that is not really the question either.
MR GRIFFITH: Well, Your Honour, we say that if it is a

matter of implication from the Cnstitution, we say

it is not specific, but implication. One should

have regard to the historical fact - this is a

rather long answer to the first part of
Your Honour's question, - but if we might put,
Your Honour, at 1900 this was accepted, for example

the 1867 Act I have referred the Court to, that

this is part of the ordinary structure of the

courts. It was accepted that it was part of the

structure of the State courts and we would submit,

Your Honour, there is no reason to imply into

Chapter III a repudiation of acceptance that that

was an appropriate means to organize a State court.

Harris(2) 31/8/90

So we would submit, it is not just a matter of

taking the courts as you find them. We submit,

Your Honour, that this is what one would, in 1900

even, in seeking to say what is meant by a court,

regard as the court. The court is constituted by the judges; it can include officers who exercise

powers of the court delegated to them; and that is regarded as being an exercise of the judicial power

vested in that court.

DAWSON J: Well, it would be more accurate to say there may

be exceptions. They exercise functions of the

court delegated to them.

MR GRIFFITH: Yes. Your Honour, as to Your Honour's second

question, which was really, I think, Your Honour's
main question, if I could answer that, Your Honour.

We, of course, prefer not to have any fall-back position, because we say the difficulty to define a fall-back position would tend, we submit, to

support our argument that one should leave it to
the court to act as is appropriate in determining

what matters should be delegated, rather than to

adopt a definition of identifying core powers or

something of that sort.	I think my learned friend
spelt "core".	I spell it "core" too.

Your Honour, if forced to make a proposition

because Your Honour invites me to do so, we would

say, Your Honour, that one could not regard such

core areas of judicial power, which cannot be

delegated by the court as - - -

DAWSON J:  Why do you need to talk about "core" areas? I

mean, there are judicial functions and there is the

exercise of judicial power, as was put this

morning. Some judicial functions, when they are

exercised by people other than judges, cease to be judicial functions, but when they are exercised by

judges are appropriately judicial functions. In

fact, judicial power is much more restricted than

that.

MR GRIFFITH: Well, Your Honour, one has regard to function

as well as power in this context; when one looks at

it; say, the situation in Hegarty, there is not all

that many things which cannot take their colour

from the - - -

DAWSON J: But we are only concerned with judicial power

here.

MR GRIFFITH: Well, Your Honour, in respect of the vesting

of judicial power in a federal court such as the

Family Court, the basic position must be that it is

judicial power which is vested in the court and

that which is ancillary to the judicial power.

Harris(2) 85 31/8/90

DAWSON J:  It may be that the judicial power that is vested

in the Family Court, important as it is, is within

a very narrow compass and that these ancillary

functions which do not involve an exercise of

judicial power really are very broad.

MR GRIFFITH: Yes. Well, Your Honour, to accept

Your Honour's invitation, if one says, "Well, what

is the essence of judicial power that should be

regarded as being within that ambit", we would
submit that in matters arising under the Family Law

Act, really, the only matter which one could regard as being within that essence would be the power to deal with contempt of court.

DAWSON J: What about 37A(2)(a), (b) and (c)?

MR GRIFFITH: Well, Your Honour, we would submit that that

is a matter of change of status,if you like, but

not something which should be regarded as the

essence of judicial power such as, for example, to

find criminality, to find guilt.

DAWSON J: Well, what is your criterion of finding judicial

power in this context? I mean, I know the

traditional definition is not all that helpful

here.

MR GRIFFITH: Yes. Well, Your Honour, could we refer to

what was said in Reg v Quinn, (1977) 138 CLR 1. It
is not on our list, I am afraid, Your Honour. At

page 8, Justice Jacobs, where His Honour referred

to Justice Isaacs in Munro's case, at the top of

the page, said:

"But there are many functions which are either

inconsistent with strict judicial action, as

the arbitral functions ..... or are consistent

with either ..... If inconsistent with judicial

action, the question is at once answered. If

consistent with either strictly judicial or

executive action, the matter must be

examined."

"Unless, therefore, it becomes clear beyond

reasonable doubt that the legislation in
question transgresses the limits laid down by
the organic law of the Constitution, it must
be allowed to stand as the true expression of
the national will."

Then, His Honour refers to the approval of these statements in the Shell Company case and then,

referring back to Isaacs, said:

" ... some matters so clearly and distinctively

appertain to one branch of government as to be

Harris(2) 86 31/8/90

incapable of exercise by another. An

appropriation of public money, a trial for
murder, and the appointment of a Federal Judge

are instances. Other matters may be subject

to no a priori exclusive delimitation, but may

be capable of assignment by Parliament in its

discretion to more than one branch of

government. Rules of evidence, the

determination of the validity of parliamentary

elections, or claims to register trade marks

would be instances of this class. The latter

class is capable of being viewed in different
aspects, that is, as incidental to
legislation, or to administration, or to
judicial action, according to circumstances.

Deny that proposition, and you seriously

affect the recognized working of

representative government."

DAWSON J: Well, now, could you add to those categories in

deciding what is the best regime in the break up of

a marriage for the family and children, with

respect to custody, maintenance, property, for the

time being?

MR GRIFFITH: Yes. Well, we referred Your Honour to

Justice Williams in Boilermakers, which seemed to indicate that.

DAWSON J: Yes, but I want to know what you say about it.

MR GRIFFITH:  Your Honour, we say that there are many

matters which, if one looks at them alone, they can

be regarded as purely administrative but the

structure of the Family Law Act, Your Honour, is to

vest the entire jurisdiction in the Family Court

and so vested, Your Honour, one has a vesting of

judicial power in respect of these matters and

matters ancillary to it.

DAWSON J: That is not to draw any line between functions,

which do not necessarily involve the exercise of

judicial power, and those which do.

MR GRIFFITH: Yes, well, Your Honour, in the family law

areas, we indicate the functions are very narrow

indeed. Now, Your Honour, it might be a matter of

argument as to whether they include those matters

Your Honour referred to in section 37A(2), that is

a matter of degree, but we would submit,

Your Honour, it goes really not much wider than

that.

DAWSON J: Well, do you say, here the delegation is not the

delegation of judicial power but merely the

delegation of what, when it is with the Family

Court, is a judicial function?

Harris(2) 87 31/8/90

MR GRIFFITH: Yes, Your Honour.

DAWSON J: Well then, that is the end of the question, is it

not?

MR GRIFFITH:  As we have submitted, Your Honour, the Family Court can vest that in its officers.

DAWSON J: Because it is not a matter of judicial power, but

a matter merely of a function which may be

exercised judicially.

MR GRIFFITH:  Your Honour, we sought to make the point that

so far as federal jurisdiction is vested in a State

court, there is no difficulty about following the train down to delegates and our basic proposition

is that the same position obtains in federal
courts.

DAWSON J: But, that is not the question. If you can divide off some functions which do not necessarily involve

the exercise of judicial power, which are judicial

functions when they are exercised by a judge, but

when exercised by someone else are not judicial and

if the function here is one which is the latter

category, then there is no problem, is there?

MR GRIFFITH: Yes, well, Your Honour, we submit that there

is no problem.

DAWSON J:	Do you say that that is the solution to the question?
MR GRIFFITH:	Your Honour, it is not our solution here

because we submit that there is no problem about

the Family Court delegating.

DAWSON J:  I suppose you would say if it is judicial power,

they can delegate that too, is that what you say?

MR GRIFFITH: Yes. It is only a problem if Your Honour has

a problem on that, Your Honour.

DAWSON J: Well, I do. It may be that you cannot delegate

judicial power, but there are many functions that

you can delegate and really, when one looks at it

traditionally, it is the sort of non-judicial power

function that is delegated; the matters of

procedure, non-dispositive functions.

MR GRIFFITH:  Your Honour, we entirely agree with you. I

think, where our difference is, is that we say we

leave it to the court to determine, that

Your Honour seeks to find a constitutional

demarcation point.

DAWSON J:	Yes.	I want to know where to draw the line.
Harris(2)	88	31/8/90

MR GRIFFITH:  Your Honour, we draw the line by saying we

leave it to the good sense of the court.

DAWSON J: That is a great deal of help to the court.

MR GRIFFITH:  Your Honour, we would submit, the Constitution

leaves it there. It is the court that decides the

issue as to what is appropriate.

DAWSON J:  It may be assisted by submissions as to where it

is appropriate to draw the line.

MR GRIFFITH:  Your Honour, we submit, that it is for the

Court to decide where is it appropriate to delegate

and that is something that is not capable of having
any outside input to the court. The court could, I

suppose, seek advice and ask for comments but at

the end of the day, we submit, it is a

responsibility of the court.

DAWSON J: But, if it is a question of being able to

delegate some functions which do not involve the
necessary exercise of judicial power and functions

which do, then it is not a matter for the court, it

is a constitutional line.

MR GRIFFITH: Yes, Your Honour, but what we submit,

Your Honour, particularly by the analogy with the

States and the fact that there was such a structure - - -

DAWSON J: The States are not troubled by this problem.

MR GRIFFITH:  No, but saying that this is how courts were

organized in England and in Australia at

Federation, our primary submission is, Your Honour, that federal courts should not be regarded as any

different, that when one has a reference to courts

in the Constitution in Chapter III - - -

DAWSON J: But, the Constitution requires them to be

regarded as different if you say that the exercise

of judicial power cannot be delegated.

MR GRIFFITH:  Your Honour, I was not saying that.

Your Honour was asking that as an alternative.

DAWSON J:  Well, that makes the situation in England and

the situation in the State courts largely

irrelevant.

MR GRIFFITH:  Your Honour, it is a question then of how one

approaches the construction of Chapter III. If one

says Chapter III imposes a limitation which had not

existed in the United Kingdom or in the colonial courts in 1900, that there was a limit - one has

seen the 1876 Act, how it expresses no limit - but

Harris(2) 89 31/8/90

if one says, "Implicit in Chapter III there is a

limit", well of course, Your Honours, it is

necessary to seek it out and we would say the limit

is no further than the point that Your Honour makes

out.

DAWSON J:  I understand you to say there is no limit; that

is your first position.

MR GRIFFITH:  Yes. So fall back, we say the limit is no

further than saying that there are these essential

powers that you must identify.

GAUDRON J:	Of course, there may be a limit inherent in the very term "judicial power" which operates, albeit
without express direction from something like Chapter III, in other regimes besides the federal
jurisdiction regime.
MR GRIFFITH:	Your Honour could well be right.
GAUDRON J:	And it may be that the matters which, at the

turn of the century, had been delegated at least

identify those limits in any event.

MR GRIFFITH:  Well, Your Honour, when one looks at the

delegation-making power such as the 1876 Act, it is

no more limited than the power under section 37A.

GAUDRON J:	But the way in which it was exercised may, in fact, signpost the limits.
MR GRIFFITH:	Your Honour, we would tend to cavil at that

because we say it is the capacity rather than the

exercise which is the relevant issue, but perhaps I

should put it another way, Your Honour; if it were

the case that the Family Court delegated all powers
to the registrars so judges did nothing, they did

play golf, there may be then an issue as to the

constitutional validity as to what has been done,

but that does not arise here·. Here it is a

question of particular -

GAUDRON J:  But you would say it would not arise either if

in the Federal Court the Federal Court judges

decided that the registrar - even without Act of should hear and determine all criminal appeals and

the registrar should exercise such of the criminal

jurisdiction as was vested in the Federal Court.

MR GRIFFITH:  Your Honour, criminal matters must be

regarded as particular matters.

GAUDRON J:  Why? On your argument you have made no

distinction.

Harris(2) 90 31/8/90

MR GRIFFITH:	Your Honour, one reason, of course, we have been dealing with the family law provisions; not
with criminal law and, in fact, there is almost no
criminal jurisdiction vested in the Federal Court.
GAUDRON J:	They have appeals, I think.
MR GRIFFITH:	In criminal matters?
GAUDRON J:	From the ACT.

MR GRIFFITH:  From the territories, yes, they do. Well,

in criminal matters the situation is different,

Your Honour. Firstly, if one has the question of jury trial and appeals from that, one can see that

there is really not scope for having delegation by
the Federal Court to a registrar or something of

the sort. It may be also that, just as perhaps one

can grant contempt of court as a power inherently

for the court and not one to be delegated, one

could regard the exercise of criminal jurisdiction,

for example,McGuinness's Case would perhaps tend to

point in that direction.

BRENNAN J:  Mr Solicitor, you have referred to the 1867

Act, but that refers only to the jurisdiction of a

judge in chambers, does it not?

MR GRIFFITH:  Yes, Your Honour.

BRENNAN J: Well, is this not an indication that perhaps what courts used to do was to say practice and procedure can be delegated? Substantive exercise of

jurisdiction is always exercised by the judges.

MR GRIFFITH: Well, Your Honour, we have attached a summary

also of what the State courts do where, of course,

it is not so limited. The masters, whether they be

officers of the court, have wide powers,

Your Honour, to act as for the court in making

orders which are final subject to whatever is

provided in respect of review or appeal.

DAWSON J: 

But that is only to say they may exercise

judicial power as we recognized before. That is
State courts. That does not solve the problem

here.

MR GRIFFITH: No, Your Honour, it does not.

But we say the

problem is solved, in our submission, by accepting

that the reasons why it is appropriate for a State

court and why the federal jurisdiction can be

properly exercised by State courts. It is not just

exercised because that is taking the State courts

as you find them, but because it is appropriate for

the proper exercise of that power. We submit there

is no obvious reason either of construction or

Harris(2) 91 31/8/90

implication from Chapter III or from principle, to

say that the position is different in the Federal

Court. That is our basic approach.

Now, if the Court is against us on that, well

then obviously the next question is to mark out the

point of whether any, or if so any delegation may

be permitted, and if it is not a complete

prohibition, what is the point of determining what

is permitted?

Now, that gives rise to the point that

Your Honour raises with me, and we, of course, do

not find it particularly attractive because of our

principal submission to seek to mark out a point

other than saying it is as little as restrictive as

the power to delegate as may be acceptable to this
Court. It is a matter of implication from the

Constitution, and I suppose once a court journeys

down that road it is for the court to determine the

point at which it finds that there is permissible

power to delegate; or if it is going the other way

where it becomes impermissible.

We would suggest then that one would adopt the

approach of looking at matters which were of their

essence. Now, even then, we submit, that it is

difficult to define that because although 20 years

ago the power to make an order nisi for divorce

would be regarded as of the essence. We would

submit nowadays in the case of uncontested divorce

matters which are really procedural, suggestions even that they can be obtained by post without a hearing, would be differently characterized.

DAWSON J: Well, one test is, does the decision finally

dispose of the matter? Is that a valid test?

MR GRIFFITH: Well, it may be, sir. The family law is

difficult - - -

DAWSON J:	And a decree absolute does.
MR GRIFFITH:	A decree nisi does not.
DAWSON J:	No.
MR GRIFFITH:	So that it means in family law there is not

all that many matters that one would identify, and

that is the difficulty we have.

McHUGH J: But you have to contend that the power of

delegation extends only to the case where the

judges can substitute their verdict or decisions

for that of the registrar, or the delegate. That

is why you cannot argue that there could be a

delegation of criminal jurisdiction.

Harris(2) 92 31/8/90

MR GRIFFITH:  Yes.

McHUGH J: And until comparatively recently in the history

of this nation, I mean even divorce cases were

tried by juries. If there had been a federal

divorce law in 1920 you would have probably had

juries. You could not have delegated to registrars

that, could you?

MR GRIFFITH:  No. I think it is one of our problems in

saying, "Well if we fix this by reference to 1900

it is by a false standard because one does not

characterize this really according to not just the

law, but the issues as it now stands.

BRENNAN J:  The legislature perhaps can do it by post, if

they wish. So long as there are issue of fact

which determine whether or not a party is entitled

to a decree nisi, and the decree nisi, I think,

still changes status, perhaps it does not, but I

thought it still did, then why is that not judicial

power par excellence?

MR GRIFFITH: Well, Your Honour, once one gets to those

questions, you have to pick over -

BRENNAN J:  I said "judgment nisi", I meant "judgment

absolute" of course.

MR GRIFFITH:  I am sorry, yes. Absolute, Your Honour is

different, but that is more or less automatic

unless there is some reason why - I mean, there are

ways in which status can change other than by

judicial-order, Your Honour. Under the

Immigration Act, that is done by just procedural

order and that, of course, is not judicial.	So
that it is difficult to use just status as a

touchstone. The problem we suggest to the Court is the problems in this area. If one looks at all the matters, for example, listed in Order 36A as being

delegated to the registrars, are to come to some

point where one vindicates this constitutional

implication that is found in a rational way that

makes a line where one says, "Well this is the

implication of the Constitution and these matters

must be exercised by a judge, and, in our

submission, it is a very difficult, if not

impossible, task to be done.

Of course, that does not inhibit the Court

from finding there is such a principle and has to be worked through on a case by case basis if that

is the constitutional requirement, but it does lead

us back to our basic proposition that the

expression of the implication, we would submit, is

very difficult and these lists of matters in

Harris(2) 93 31/8/90

Order 36A really confirm that problem, and we would submit that if, at the end of the day, the Court merely regards the order absolute and its

equivalent under the Family Law Act as being that

which vindicates this principle, we would submit

that if one got to that situation it would be

appropriate to consider whether or not it can be
the case that a constitutional implication which is
intended to be there for a purpose to vindicate the
proper administration of federal jurisdiction by

federal courts in jurisdiction vested under

Chapter III, is in fact something which is to be

implied from the Constitution, if that is all it

does.

I appreciate that is a bit circular, but

Your Honour Justice Dawson asked me to identify

fall-back positions and we thought about it but we

had great difficulty. We can start with

section 36A(2), but that does not provide it. We

would say it is no broader than that, probably a

bit less, but it is difficult to mark out functions

and certainly we would tend to disagree with my

learned friend Mr Bennett's approach of going

through tick, cross, tick, cross.

GAUDRON J: Could one have a law which said, "The parties to

a marriage shall be dissolved is the wife says,
'Please leave'", rudely or unrudely. The point is,

it is only part of our culture, is it not, that has

it dealt with by judges? In other areas it is a

matter which can be dealt with wholly consensually.

So there may be nothing at all in it that brings in

the essence of judicial power in the same way as

would be 'brought in, for example, in terms of guilt

of an offence.

MR GRIFFITH: With respect, we would agree with Your Honour,

"I divorce thee, I divorce thee, I divorce thee",

could be the Australian law, if it was so

prescribed by statute.

GAUDRON J:  And if it were there would be absolutely no

requirement at all for the exercise of judicial

power, one presumes - no necessity for it. There

might be - - -

MR GRIFFITH:  We refer to the remarks of Justice Williams in

Boilermakers at 308, and that is why I made the

suggestion earlier, "Well perhaps it is only the

power of contempt in the Family Law Act."

McHUGH J: Well, there is at least one decision, I think, of

Victorian Supreme Court judges which holds that you

could issue estoppels under these settlement

provisions of the Family Law Act.

Harris(2) 94 31/8/90

MR GRIFFITH: Well, with respect to Your Honour, there

should be no difficulty about that.

McHUGH J: Because you have to determine what the property

is before you start making alterations.

MR GRIFFITH: But, Your Honour, if there is no review sought

by the parties, for example, they make an agreement

and they agree to be bound by it; they seek no

review; the time for review has gone by; they do

not seek to set it aside because of any miscarriage of justice, we would submit, that that order should

be regarded as the order of the court, so there is

no difficulty about estoppel arising. We would

submit, there is no problem about accepting that

should be the position consistently with the

vesting of jurisdiction under Chapter III.

DEANE J:  May it not be that the delegation is permissible,

except to the extent that it would bring about a

situation in which you could not say that the court

was relevantly constituted by judges?

MR GRIFFITH: Yes, Your Honour, perhaps if it was expressed

in that form it would be an expressions to

vindicate Chapter III, but would not impinge upon

the processes such as are exemplified by

section 37A. I suppose our answer is to say, "We

have confidence in the court", but one could

accept, Your Honour, that it could become a point

where if one got to a point that there was only one

judge and he could not do the 40,000 matters and

refused to delegate, or the whole bench went and

played golf, that that would then constitute

unconstitutional structure.

We would accept that as a possibility,

Your Honour, but we say that is not the issue

before the Court here. Here, the particular issue

is a consent order which we say is a most obvious

one to be regarded as appropriate to be delegated

to a functionary of the court, subject to the

supervision of the court with a power to review.

MASON CJ: Mr Solicitor, do you have any other submission

about section 79 of the Constitution, apart from

the one you have already made that it is directed

to federal jurisdiction exercise by State courts?

The reason why I ask the question is that brief

reference to the convention debates indicates that

the submission may run aground at that point?

MR GRIFFITH:  Your Honour has the advantage of me.

MASON CJ: Well, that is the reason why I ask you, "Have you

an alternative submission?". The convention

debates rather suggest on the brief look we have

Harris(2) 95 31/8/90

had of them, that the primary focus may have been

upon the exercise of federal jurisdiction by

federal courts.

MR GRIFFITH:  Your Honour, I think I also made the

submission, Your Honour, that we say that

section 79 should not infect the way in which

sections 72 and 77 should be construed. I think

that was the point really made by Justice McHugh.

In effect, that is our primary submission,

Your Honour, that we say it is a question of, if

"courts" means one thing when one is dealing with

the vesting of federal jurisdiction in State

courts, it does not mean a different thing when one

is vesting it in a federal court. So that,

inasmuch as Your Honour says section 79, our

submission is, that section 79 does not determine

this issue; this issue is concerned more with

section 72 and section 77.

DEANE J: But, the real problem with 79 is that, if you

construe it literally, it can be read as saying,
"Unless the Parliaments prescribed a number of

judges, federal jurisdiction can't be exercised at

all". Now, that would have an extremely drastic

effect. Presumably, you would read it as

indicating, in the absence of prescription, the

section does not have any operative effect.

MR GRIFFITH: Yes, we would, Your Honour, and we would also

say in the absence of prescription there is no

constitutional inhibition upon federal jurisdiction

being exercised if it is vested in a State court in

the manner which has been accepted in HCF and, we

submit, there is no reason why it should be

separately regarded for a federal court.

DEANE J: In other words, section 79, you would submit, is a

purely enabling section in terms of legislative

power?

MR GRIFFITH:  We would also submit that, Your Honour. I did

refer to the form of the order which we would

suggest at the start of my submissions. I do not

think there is any need to go back to that and we

do submit that my friend has his procedural

difficulties because of the way in which his notice

of appeal and grounds of appeal have been drafted,

but inasmuch as he did flag on his affidavit for

special leave - a point that he wished to contend -

as we have indicated, we have no objection to an

order being made which enables him to establish the

admissibility.

As to Your Honour the Chief Justice's

invitation, may I hand to the Court copies of the

annotation of the Australian Constitution on

Harris(2) 96 31/8/90

section 79 which we would accept, Your Honour, but

I do not think it takes it really much further.	If
the Court pleases.

MASON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Bennett?

MR BENNETT:  If the Court pleases. Your Honours, in

relation to the notice of appeal, we simply remind
the Court that it was always clear that there was

an issue of this nature and that is, in particular,

the affidavit in support of the special leave

application. The respondent did appear on the

special leave application and, of course, was

served with that affidavit.

In relation to my friend's submission that a

consent order by a registrar would be useless if we

were correct, we simply point out this: first,

that any order of a court may be appealed out of

time if the court grants leave to appeal it out of
time and, in relation to the provision for review

by the court of its own motion at any time, that is something which is hardly likely to be exercised in

any but the most extreme of circumstances and if it

is exercised, no doubt, there would be good reason
for it, but it hardly has the effect of making a

consent order useless from the practical point of

view.

On Order 24 rule 1(8), my learned friend has supported my application. I simply make this

submission that if Your Honours feel it is

inappropriate to make a declaration, the same

purpose would be served if something in the

judgment were to make it clear that it was open to

us to call evidence of that type, notwithstanding

that Order, otherwise it does seem undesirable that
the matter should go back with that left open,

particularly the view of the unsatisfactory state

of authority in the Family Court.

Finally on that aspect of the case, my learned

friend referred to section 79A of the

Family Law Act, but there are two things that must

be borne in mind about that section: first, it is discretionary, where as if consent is vitiated, of

course, that would be mandatory; and secondly,

that section 79A, unless the court makes a

declaration or indication, runs into the same

problems in relation to Order 24 ru~e 1(8), in

fact, greater problems, because the proceedings

under 79A are rather more removed from the

proceedings before the registrar than a challenge

to that decision.

Turning to the constitutional question, my

learned friend made a number of submissions in

Harris(2) 97 31/8/90

relation to the nature of delegation and he

submitted that a delegation to a non-judicial

officer of judicial power is permissible if done by

judicial officers. There is, in my respectful

submission, simply no warrant for that distinction.

It is interesting to note that in the material he

handed up - the material in relation to the power

of each State to delegate jurisdiction - if

Your Honours go to the New South Wales material,

the second page of that document, Your Honours will

see that the rule committee of the New South Wales

Supreme Court includes amongst its membership one barrister and one solicitor and if one follows

through the permutations of quorums and chairman

and voting, it is possible for a quorum of the rule

committee to consist of two judges; the barrister

and the solicitor, and if one of the latter is

elected chairman by the meeting, he has a casting

vote, so that the barrister and solicitor could in

certain circumstances overrule the judges in

relation to the rules.

I simply refer to that to indicate that the

assumption that rules of court are made by judges

alone is not one which has had universal operation

in Australia, but more importantly, there is simply

no reason why one should assume that judicial power

may be delegated without limit, so long as those

deciding on the scope of the delegation are

themselves judicial. There is simply no warrant

for that assumption.

My learned friend referred to the example of the beans; there are a number of things one can say

about that example. One could hardly imagine a

clearer case for remittal to an appropriate State

or territory court in the first instance, and in

the second instance, one would have thought in any
event it was a case where there would probably be

little issue about the number of beans in the jar;

that is a matter which can almost be determined as

a matter of observation but the trial of trivial

issues of fact which are in issue is a very

controversial aspect of the delegation of powers.

Your Honours will appreciate that there was

the controversy in New South Wales some years ago

about the powers of the - whether rules of the

Supreme Court should be enacted which enabled the

commercial court to require a matter to be referred

to arbitration against the wishes of the parties
and there was a great deal of dispute about the

subject.

It is certainly not clear beyond doubt that it

is necessarily regarded as a normal part of the

Harris(2) 98 31/8/90

judicial process to delegate fact finding, even

tedious fact finding, to a non-judicial tribunal.

In relation to the 1867 Act, we respectfully

remind the Court of what Your Honour

Justice Brennan asked my learned friend and that is

the reference to the chamber jurisdiction. The

chamber jurisdiction was, no doubt, quite narrow

and the Act falls a long way short of providing a

general power of delegation.

Your Honour Justice Dawson put to my friend a number of matters in relation to judicial power.

we submit that whatever one says about what is and
what is not judicial power, it is reasonably clear

that section 79 of the Family Law Act involves an

exercise of judicial power. There is a lease inter

partes; there is, in the normal situation, a

dispute to be determined about who owns what and,

having determined that, how it should be allocated

and, in my respectful submission, certainly that

power is one which must be regarded as judicial.

In relation to divorce itself, the divorce

20 years ago would certainly, again, have been

regarded as a judicial power. It is true that one

could have a provision under which divorce was

something which took effect by operation of law on

some event occurring such as in Islamic law but

where there is a provision enabling that to be

determined by a court, enabling a dispute to be

resolved and requiring other considerations to be

taken into account, the matter then, we

respectfully submit, falls on the other side of the

line and becomes something which cannot be

delegated.

My friend referred to section 79 of the

Constitution and in relation to that I simply

remind Your Honours of one matter: that section 23

of the Judiciary Act certainly appears to have been

enacted on the assumption that section 79 applies

to federal courts, including this Court. That is

the provision which says that a constitutional case

must be determined by all the justices of the court

unless at least three are in agreement.

Now, that is a provision clearly enacted pursuant to section 79 and clearly assuming that it

applies to federal courts. We would respectfully

submit, in accordance with the convention debates,

that section 79 does apply to federal courts and is

a strong indication that their jurisdiction is

exercised by judges alone.	May it please the
Court.

Harris(2) 99 31/8/90

MASON CJ: Yes, thank you, Mr Bennett. The Court will

consider its decision in this matter.

AT 4.08 PM THE MATTER WAS ADJOURNED SINE DIE

Harris 100 31/8/90