Kotsis v Kotsis
Case
•
[1970] HCA 61
•24 December 1970
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Menzies, Windeyer, Owen, Walsh and Gibbs JJ.
KOTSIS. V. KOTSIS
(1970) 122 CLR 69
24 December 1970
Constitutional Law (Cth)—Matrimonial Causes
Constitutional Law (Cth)—Judicial power of the Commonwealth—State court invested with federal jurisdiction—State Supreme Court—State law providing for exercise of a part of Supreme Court's jurisdiction by registrar—Whether registrar invested with federal jurisdiction—Composition of Supreme Court of a State—The Constitution (63 &64 Vict. c. 12), ss. 71, 77 (iii.)*—Matrimonial Causes Act 1959-1966 (Cth), ss. 23, 127—Matrimonial Causes Act, 1899-1958 (N.S.W.)—Supreme Court and Circuit Courts Act, 1900-1969 (N.S.W.)—Administration of Justice Act, 1968 (N.S.W.). Matrimonial Causes—Federal jurisdiction vested in State Supreme Court—Jurisdiction to hear and determine matrimonial cause—Order for wife's costs of suit made by registrar—Validity—The Constitution (63 &64 Vict., c. 12), ss. 71, 77 (iii.)*—Matrimonial Causes Act 1959-1966 (Cth), ss. 23, 127.
Decisions
December 24.
The following written judgments were delivered: -
BARWICK C.J. Section 23 (2) of the Matrimonial Causes Act 1959-1966 (Cth) (the Act) in exercise of the constitutional power given to the Commonwealth by s. 77 (iii.) of the Australian Constitution, invests the Supreme Court of each State with federal jurisdiction to hear and determine matrimonial causes instituted under the Act. Section 23 (1) of the Act provides that "subject to this Act, a person may institute a matrimonial cause under this Act in a Supreme Court of a State". Section 23 (3) expressly subjects this invested jurisdiction to the provisions of s. 39 (2) of the Judiciary Act 1903-1959 (Cth) so far as applicable. A matrimonial cause is defined in s. 5 (1). It includes proceedings with respect to costs in relation to pending proceedings which are themselves a matrimonial cause within the definition. Section 8 (1) of the Act provides that a matrimonial cause shall not be instituted after the commencement of the Act (1st February 1961) except under this Act. Section 127 of the Act gives the Governor-General power to make rules, not inconsistent with the Act in relation to the practice and procedure of the courts having jurisdiction under the Act, including rules -
"(c) authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to the custody of children or maintenance or any other matter before the court ;
(f) authorizing an officer of a court to perform and exercise, on behalf of the court or otherwise, in relation to proceedings under this Act, functions and powers not involving the exercise of the judicial power of the Commonwealth and enabling the court to review the decision of that officer in relation to the performance or exercise of any function or power ;".Section 127 (4) provides :
"(4) The power of a Judge or Judges, or of another authority, under the law of a State or of a Territory to which this Act applies to make rules of court or other provisions in relation to the practice and procedure of the Supreme Court of that State or Territory extends, by force of this Act, to the making of rules of court or other provisions (not inconsistent with this Act or with any rules made by the Governor-General for the time being in force under this Act) providing for a matter in respect of which rules may be made under sub-section (1) of this section."Section 127 (6) provides :
"(6) Until rules or other provisions have been made in accordance with this section, and so far as rules or other provisions so made do not provide for the circumstances of any particular case, the practice and procedure, immediately prior to the commencement of this Act, of the Supreme Court of a State or of a Territory to which this Act applies (including powers of the Court as regards costs) shall, subject to this Act and the Constitution, apply, as far as practicable, to and in relation to matters arising in that Court under this Act." (at p74)
2. The petitioner commenced in the Supreme Court of New South Wales a suit for judicial separation from the respondent. This was a matrimonial cause under the Act. She applied to that Court for an order for preliminary costs. This was also a matrimonial cause under the Act. A deputy registrar of the Supreme Court heard this application and made an order that the respondent pay the sum of $600 by way of interim costs. An order was drawn up to effect the decision of the deputy registrar. The order was said to be "by the Court" and apparently sealed with the seal of the Court. The respondent did not comply with the terms of the order. Consequently the petitioner applied to the Supreme Court for the issue of a writ of attachment. The respondent thereupon applied to that Court for a declaration that the deputy registrar's order was a nullity. The respondent's application came before the Judge in Divorce who stated a case pursuant to s. 91 of the Act for the opinion of this Court. The question asked is "Did Mr. Deputy Registrar Brown have jurisdiction to make the orders dated 24th April 1969 ?", i.e. the said order for payment of interim costs and the orders ancillary thereto. (at p75)
3. The hearing of a matrimonial cause and the making of an order therein is clearly an exercise of the judicial power of the Commonwealth on the narrowest view of that power. The Act in its substantive provisions is an exercise of the power of legislation given to the Commonwealth by ss. 51 (xxi.), (xxii.) and (xxxix.) of the Constitution. The deputy registrar in making the order in question was thus purporting to exercise federal jurisdiction : having regard to s. 8 of the Act there was no other relevant jurisdiction available to him. But the federal jurisdiction derived from the Act was vested in the Supreme Court. The question asked in the stated case will therefore be answered by deciding whether it was the Supreme Court which made the order for payment of interim costs. Was the deputy registrar the Court ? Clearly he was not a judge of the Court : he was an officer of the Court. (at p75)
4. I have had the advantage of reading the reasons for judgment prepared in this matter by my brother Menzies. I agree entirely with his analysis of the relevant legislation of the State of New South Wales and with his conclusion that the Registrars are not members of the Supreme Court nor in any presently relevant sense the Court or a constituent part of it. (at p75)
5. However, I am unable to agree that it is entirely for the State to determine of whom the Supreme Court may consist for the exercise of federal jurisdiction. Consequently, I desire to add a few observations of my own in that particular connexion. (at p75)
6. At the time the Constitution Act was passed, each colony had a Supreme Court. Each was composed of judicial officers appointed as members of the Court. Each such Court was known as the Supreme Court of the colony and each such Court became the Supreme Court of the State to which the Constitution refers. The concept of a Court as consisting of judicial officers but attended by officers to do its bidding and attend to the necessary administrative work associated with the work of the Court was well understood and entrenched. Cf. per Isaacs J. in Le Mesurier v. Connor (1929) 42 CLR 481, at p 511 (at p76)
7. Before proceeding further, I ought to notice an argument which the Attorney-General for the Commonwealth advanced, namely, that the Act manifested an intention to give the masters and registrars of the Supreme Courts as officers of those Courts power to exercise federal jurisdiction, as well as I understood the argument, in all matrimonial causes. The argument, in my opinion, is without the least foundation. It seems to me impossible to maintain it in face of the terms of s. 127 (1) (f) of the Act and of the analysis of the Act which Zelling J. made in Ullrich v. Ullrich (1969) 15 FLR 478 ; (1969) SASR 107 I agree with that analysis and the conclusion to which it led his Honour. Further, it is not possible, in my opinion, to distinguish in relation to the power to adjudicate and make orders under the Act between principal and ancillary relief. Each involves a matrimonial cause and is alike governed as to jurisdiction by s. 23 of the Act. No intention express or implied to invest the masters or registrars of the Supreme Courts with federal jurisdiction is discoverable, in my opinion, from the terms of the Act. Indeed, the analysis made in Ullrich v. Ullrich points to the opposite conclusion. If the masters or registrars are to be able to exercise federal jurisdiction it can only be because they are members of the Supreme Court, of which at least prima facie they are administrative officers. (at p76)
8. Of course, a State when providing for the exercise of any part of the jurisdiction of its Supreme Court derived from State law may authorize the performance by administrative officers of judicial functions. Indeed, so far as their constitutions are concerned the States have no need to distinguish between the judicial and administrative functions, at least in relation to the identity and status of the person authorized to perform them. The State of New South Wales did authorize the exercise by the registrar of some of the functions of the Court under the Act. But, in my opinion, this is an irrelevant consideration so far as the present question is concerned. That would not be, in my opinion, a matter of practice and procedure within either s. 127 (4) or s. 127 (6). (at p76)
9. I return now to the Australian Constitution. It recognized the existence of the Supreme Courts of the States. It allowed the Parliament to invest federal jurisdiction in them. I have adverted to the distinction traditionally maintained between the Court and its officers, a distinction well entrenched in relation to the Supreme Courts of the colonies at the inception of the Constitution. In my opinion, the reference to the Supreme Courts of the States in ss. 73 (ii.) and 77 (iii.) is to the then highest court in the judicial hierarchy of the State composed entirely of judicial officers, known generally as judges. It must be remembered that it was a considerable step to authorize the exercise of federal jurisdiction by the State Courts. The entrenchment of a right of appeal from such courts to this Court though not limited to matters of federal jurisdiction was a significant concomitant of that investiture. Consequently, in my opinion, such a court not so composed would not satisfy the terms of the Constitution which refer to the Supreme Courts of the States. If State law were to change this composition in a radical way what the State continued to call the Supreme Court would not satisfy, in my opinion, the references in the Constitution to the Supreme Courts of the States. (at p77)
10. I would now wish to say something as to a group of cases on which much reliance was placed in argument, namely, Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v. Alexander (1912) 15 CLR 308 ; Le Mesurier v. Connor (1929) 42 CLR 481 ; Peacock v. Newtown Marrickville and General Cooperative Building Society No. 4 Ltd. (1943) 67 CLR 25 ; Reg. v. Davison (1954) 90 CLR 353 (at p77)
11. The oft repeated aphorism that in conferring a new jurisdiction upon an existing State Court the Parliament takes the Court as it finds it owes its origin to the dictum of Griffith C.J. in the first of these cases, see report p. 313. Like all aphorisms it is as like to mislead as to assist. In any case it is clearly not a universal truth, see for example per Latham C.J. in Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR, at p 39 . And further, as originally formulated the statement expressed only a prima facie situation. In that case, the invested court had limits of jurisdiction under which the investiture by s. 29 of the Judiciary Act was made. The jurisdiction depended upon a complaint made within certain limits of time. No occasion arose in that case, in my opinion, for any use to be made of the Chief Justice's remarks. (at p77)
In Le Mesurier v. Connor(1929) 42 CLR 481 a person served with a bankruptcy notice challenged the authority of the Registrar in Bankruptcy to issue it. The objection to the appointment of the Registrar which succeeded was that by the Bankruptcy Act 1924-1928 (Cth) the Parliament had sought to make an officer of the Commonwealth Public Service, an officer of the Supreme Court of Western Australia. It was said on a review of the relevant provisions of the Bankruptcy Act that (1929) 42 CLR, at p 495:
"These provisions which are inter-dependent make it plainthat the Registrar is to form part of the organization of the Court and is to exercise his powers and functions, whether derived directly from the statute or from the authority of the Court as its officer and in the administration of its jurisdiction." Drawing a clear distinction between the constitution of the Supreme Court and the organization through which its jurisdiction and powers are exercised, this Court concluded that s. 77 (iii.) does not enable the Parliament to make a Commonwealth officer a functionary of a State court and authorize him to act on its behalf and administer part of its jurisdiction. It was said that that subsection contemplates the selection by the Parliament of an existing judicial organ which depends alike for its structure and its being upon State law and the grant to that Court of powers of adjudication upon specified subjects of federal jurisdiction. The Court concluded that the reconstruction of the Court itself or of the organization through which its powers and jurisdiction are exercised could not be considered to be a matter falling within s. 51 (xxxix.). (at p78)
13. The Court was not unanimous in expressing these views. But in any case the decision of the majority goes no further than the denial of power to the Commonwealth to appoint an officer of the Commonwealth to be an officer of the State Court. It was however basic to the reasoning of all the justices that the registrar did not form part of the Court itself. It was the distinction which the majority drew between the Court and its administrative organization which led to their conclusion that the Commonwealth could not alter the administrative concomitant of the Court either under s. 77 (iii.), or any paragraph of s. 51 and particularly under paragraph (xxxix.). (at p78)
14. I am unable myself to see any relevance in this decision to the resolution of the question in this case beyond the clear indication of the whole of the Court that the Supreme Court itself, separate from its administrative machinery, was constituted exclusively of judicial officers, that is to say, of judges. (at p78)
15. In Peacock v. Newton Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR 25 the aphorism that "the State Court must be taken as it exists" was repeated but its implication not explored beyond the statement "that its constitution or structure cannot be changed by the Federal Parliament". (at p79)
16. In Reg. v. Davison (1954) 90 CLR, at p 365 it is said that "a court is composed of the judges who form it but courts are provided with officers . . .". The separation under the Bankruptcy Act 1924-1950 of the registrars in bankruptcy from the Court, consequential on the decision of Le Mesurier v. Connor (1929) 42 CLR 481 is observed upon. Otherwise I find no assistance in this case for the decision of the present case. (at p79)
17. Clearly the State is unable to authorize an officer of a court to exercise federal jurisdiction. Nor may the Parliament do so. Such an officer could only exercise such jurisdiction if he was a member of the Court itself. In that event he would be capable of exercising jurisdiction in any matrimonial cause because the Supreme Court of which he would be a part is invested with such jurisdiction. (at p79)
18. None of the cases to which I have referred and, in particular, Le Mesurier v. Connor (1929) 42 CLR 481 lends any countenance to the view that either the Parliament or the legislature of a State may authorize the registrar to exercise any part of the jurisdiction invested by the Act in the Supreme Court. Nor does it support the view that the registrar is for any purpose a member of the Court. Indeed, as I have said, in my opinion, the reasons of all the justices who participated in the decision of the case deny that proposition. (at p79)
19. I conclude, therefore, that even in relation to the exercise of the jurisdiction of the Supreme Court under the Act, the deputy registrar was not a member of the Supreme Court. He was its officer. (at p79)
20. But it seems to me that the situation under the State Act is not relevant to the present question. It concerns federal jurisdiction which so far as the Supreme Court is concerned can only derive from the investiture effected by s. 23 (2) of the Act. In my opinion, the registrar is not and, in relation to the Supreme Courts to which the Constitution refers, cannot, as an officer, be part of a Supreme Court. If not invested with federal jurisdiction as a member of the Supreme Court, quite clearly he may not exercise any part of such jurisdiction. It follows that I am unable to accept the reasoning or the decision of the Supreme Court of South Australia in Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 . The question, in my opinion, should be answered in the negative. (at p79)
21. Since writing the above I have had the advantage of reading the reasons for judgment prepared by my brother Walsh. I express agreement with those reasons. (at p80)
MCTIERNAN J. The question in the case stated by the learned judge in divorce for the determination of this Court is whether the deputy registrar of the Supreme Court of New South Wales had jurisdiction to make certain orders dated 24th April 1969 in which it was directed that the respondent husband in this suit pay $600 to the petitioner wife by way of interim costs. The orders were made in a matrimonial cause as defined in s. 5 (1) of the Matrimonial Causes Act 1959-1966 (Cth). Section 5 (1) (d) includes in that definition "proceedings with respect to . . . costs". (at p80)
2. Section 23 (2) of that Act reads as follows:
"Subject to the succeeding provisions of this section, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory to which this Act applies, to hear and determine -
(a) matrimonial causes instituted under this Act ; and
(b) matrimonial causes (not being matrimonial causes to which section one hundred and fifteen of this Act applies) continued in accordance with Part XIII of this Act." (at p80)
3. The question for decision therefore is whether the term "Supreme Court" (in this case of New South Wales) comprehends the deputy registrar of the Court in his exercise of the judicial function entailed in the orders in question. (at p80)
4. Section 91 (2) of the Matrimonial Causes Act, 1899-1958 (N.S.W.) reads thus:
"The judges of the Supreme Court or any three of them may by rules of court made in that behalf delegate to the registrar power to do such things and transact such business and to exercise any such authority and jurisdiction as is now done, transacted, or exercised by the court except in respect of the hearing of suits or in respect of matters relating to the liberty of the subject :
Provided that the registrar may in case of doubt or difficulty refer any matter to the court :
Provided also that the court may direct any matter in which an order has been made by the registrar to be re-argued before the court upon giving a direction to that effect within the prescribed time after such order has been made by the registrar."Subsection (3) states that "registrar" includes a deputy registrar. Rule 198, made pursuant to s. 91 (2), states, inter alia, as follows :
"(1) The registrar is hereby empowered to do all such things, and transact all such business, and exercise such authority and jurisdiction in respect of the same as is now done, transacted or exercised by the Court or a judge thereof in respect of the proceedings and matters set forth in the Schedule hereunder, and all matters incidental thereto.
(2) The registrar may refer any matter, which in his opinion should be so referred, to the Court, which may dispose of the matter or give directions thereon.
(3) Upon production of a certificate by the registrar that he has refused to make an order in an ex parte matter, application may be made to the Court for such order.
(4) If any party is dissatisfied with the decision of the registrar in any other matter, he may, within twenty-one days from such decision or within such further time as may be allowed by the Court or the registrar, file a request that the matter be referred to the Court, and shall within the same time serve upon the other party or parties notice of such request having been filed." (at p81)
5. One of the proceedings enumerated and referred to in the schedule to the rule is "Orders for a sum on account of costs". (at p81)
6. In my opinion an examination of these provisions indicates that the registrar (or deputy registrar) is a delegate of the Supreme Court of New South Wales rather than part of the Court. The whole tenor of the provisions quoted is to distinguish between the registrar and the Court, not to identify them as one and the same. (at p81)
7. Counsel for the petitioner also relied upon s. 8 of the Administration of Justice Act, 1968 (N.S.W.) which provides as follows :
"8. The Matrimonial Causes Act 1899, as amended by subsequent Acts, is amended by inserting next after subsection three of section four the following new subsection : -
(4) The registrar, when exercising the jurisdiction and powers conferred upon or delegated to him under this Act, shall be deemed to be exercising the jurisdiction and powers of the Supreme Court." (at p81)
8. In my opinion, however, the fact that the registrar is deemed to be exercising the jurisdiction of the Court in no way assists the extension to him of federal jurisdiction if he is not comprehended by the Court on which that jurisdiction has been solely conferred. (at p81)
9. Finally, s. 127 (6) of the Commonwealth Matrimonial Causes Act was relied upon to support the orders made. Section 127 (6) provides :
"Until rules or other provisions have been made in accordance with this section, and so far as rules or other provisions so made do not provide for the circumstances of any particular case, the practice and procedure, immediately prior to the commencement of this Act, of the Supreme Court of a State or of a Territory to which this Act applies (including powers of the Court as regards costs) shall, subject to this Act and the Constitution, apply, as far as practicable, to and in relation to matters arising in that Court under this Act." (at p82)
10. But I am of the opinion that the phrases "powers of the Court as regards costs" and "subject to this Act" negative any suggestion that this section was intended to apply to an order of the deputy registrar who could not be identified with the Court on which jurisdiction has been conferred by s. 23 (2). (at p82)
11. The question stated should therefore be answered "No". (at p82)
MENZIES J. The wife petitioner, in proceedings for judicial separation in the Supreme Court of New South Wales in its matrimonial causes jurisdiction, applied to the registrar for an order directing that the husband respondent pay a sum by way of interim costs. Upon that application an order of 24th April 1969 was made as follows :
"UPON APPLICATION made to the Court this day AND UPON HEARING Counsel for the Petitioner and Counsel for the Respondent and the evidence adduced THE COURT ORDERED : -
1. That the Respondent pay to the solicitor for the Petitioner the sum of six hundred dollars ($600.00) and that such sum be retained in the trust account of such solicitors to abide the further order of the Court.
2. That the said sum of six hundred dollars ($600.00) be paid at the rate of Ten dollars ($10.00) per week as from 24th April 1969 and that the first of such payments be made on 1st May 1969.
3. That the costs of and incidental to this application be the costs of the Petitioner in the cause.
BY THE COURT 'B. L. CLIFFORD L. S.' DEPUTY REGISTRAR" (at p82)
2. The respondent did not comply with the foregoing order and an application was made for a writ of attachment against him. The respondent thereupon applied to the Supreme Court for an order "that the order of Mr. Deputy Registrar Brown of 24th April 1969 was made without jurisdiction and is a nullity". This matter coming on before the judge in divorce, his Honour has stated a case for the determination by this Court of the question "Did Mr. Deputy Registrar Brown have jurisdiction to make the orders dated 24th April 1969?". (at p82)
3. It did not appear who was the "B. L. Clifford" who signed the order of 24th April 1969, but nothing turns upon his identity since it seems to be common ground that the order was made by Mr. Deputy Registrar Brown. (at p83)
4. In making the order - which, it is common ground, was made in a matrimonial cause as defined in the Matrimonial Causes Act 1959-1966 (Cth) and purported to be an exercise of federal jurisdiction - the deputy registrar was exercising the power conferred upon him by rules made by the judges of the Supreme Court by virtue of s. 91 (2) of the Matrimonial Causes Act, 1899-1958 (N.S.W.). Rule 198 (1) is as follows :
"198. (1) The registrar is hereby empowered to do all such things, and transact all such business, and exercise such authority and jurisdiction in respect of the same as is now done, transacted or exercised by the Court or a judge thereof in respect of the proceedings and matters set forth in the Schedule hereunder, and all matters incidental thereto."In the schedule there referred to there is listed "orders for a sum on account of costs". In the same list, among the thirty-five descriptions there appearing, there is to be found matters such as "permanent alimony or maintenance" and "maintenance and education of infants". (at p83)
5. The petitioner's contention that the order in question was validly made was supported by the Attorney-General for the Commonwealth, the Solicitor-General for South Australia, and by counsel for the State of New South Wales. (at p83)
6. The basis for the attack upon the order was simply that s. 23 (2) of the Commonwealth Matrimonial Causes Act, in investing the Supreme Court of the State of New South Wales with federal jurisdiction to hear and determine matrimonial causes, did not confer any part of that jurisdiction upon the registrar because that officer was not comprehended by the description "the Supreme Court". The question is, therefore, whether the registrar, in the exercise of judicial functions, is the Supreme Court. (at p83)
7. It is to be observed that a like question to that now before this Court has arisen in South Australia and in that State there have been conflicting decisions of the Supreme Court. First, the decision of Chamberlain J. in Nicholls v. Nicholls (1962) 3 FLR 478; (1962) SASR 290 , upholding the validity of an order made by the master of the Supreme Court of South Australia varying an existing order for maintenance ; secondly, the decision of Zelling A.J. in Ullrich v. Ullrich (1969) 15 FLR 478; (1969) SASR 107 ; that the deputy master's order for a property settlement by a respondent upon a petitioner was made without jurisdiction ; and finally, the decision of the Full Court of the Supreme Court of South Australia in Thomas v. Thomas (1969) 16 FLR 113; (1969) SASR 177 , that orders made by masters of the court were validly made in the exercise of the federal jurisdiction conferred upon the Supreme Court of South Australia by s. 23 (2) of the Commonwealth Matrimonial Causes Act. In these decisions there is to be found a most helpful discussion of the problem which now faces this Court. Those members of the Supreme Court of South Australia who upheld the jurisdiction of the master, did so upon the ground that the Supreme Court of South Australia is a court composed not of judges alone but partly of judges and partly, for some purposes at least, of masters. (at p84)
8. As I see the principal question, it is whether, by investing the Supreme Court of a State with federal jurisdiction, the officers of the court empowered by State law to exercise judicial functions are, in the exercise of such functions, to be regarded as the Supreme Court invested with federal jurisdiction by s. 23 (2) of the Commonwealth Matrimonial Causes Act enacted by virtue of s. 77 (iii.) of the Commonwealth Constitution. (at p84)
9. It can now simply be asserted, without more, that s. 77 (iii.) of the Constitution does not authorize legislation doing more than investing a court, as constituted by the law of the State, with federal jurisdiction. It is a State court which answers the description in the Commonwealth statute that is invested with federal jurisdiction. The question has been agitated, notwithstanding the observations in Thornton's Case (Queen Victoria Memorial Hospital v. Thornton) (1953) 87 CLR 144 , whether or not the investiture of federal jurisdiction made by the Parliament may be subject to conditions other than those as to the number of judges by which it may be exercised - see Commonwealth Constitution, s. 79 - but that question, in my opinion, does not require consideration here because, in my view, s. 23 (2) did unquestionably invest with federal jurisdiction those courts which, according to State laws, are the Supreme Courts of the States. The investiture was done without limitation, except those appearing in ss. 23 (2) and 119. These limitations do not relate to the question whether or not a registrar is, in a relevant sense, part of the Supreme Court. Section 23 (2) cannot be read as an investment of judges but not registrars, if, upon the proper construction of the laws of New South Wales, the Supreme Court does consist of registrars as well as judges. Everything, therefore, depends upon the laws of New South Wales constituting the Supreme Court. (at p85)
10. The relevant State legislation is as follows :
(1) the Supreme Court and Circuit Courts Act, 1900-1969 ;
(2) the Matrimonial Causes Act and the rules made thereunder; and
(3) the Administration of Justice Act, 1968, which, by s. 8, provides as follows :
" 8. The Matrimonial Causes Act 1899, as amended by subsequent Acts, is amended by inserting next after subsection three of section four the following new subsection : -
(4) The registrar, when exercising the jurisdiction and powers conferred upon or delegated to him under this Act, shall be deemed to be exercising the jurisdiction and powers of the Supreme Court." (at p85)
11. In the Supreme Court and Circuit Courts Act "the Court" means the Supreme Court of New South Wales. By Pt II, headed "The Judges", provision is made for the appointment, qualifications and tenure of office of the Chief Justice and other judges of the Court. There is a part of the Act - Pt IIA headed "The Prothonotary" - wherein provision is made for the appointment of "a Prothonotary of the Supreme Court". Part III is headed "Jurisdiction of the Court, and how Exercised" and the jurisdiction therein defined is clearly enough given to "the Court and the respective Judges thereof". Division 3 of Pt III is headed "The Registrar" and s. 21M is as follows :
"21M. The Governor may, under and subject to the Public Service Act, 1902, as amended by subsequent Acts, from time to time appoint a Registrar of the Court of Appeal and such other officers as may be required."This, of course, is a reference to the registrar of the Court of Appeal and makes it clear that that registrar is not the Court but is an officer of the Court. (at p85)
12. Part IV is headed "Sittings of Court elsewhere than at Sydney" and quite clearly relates to judges sitting and exercising the jurisdiction of the Court. Part VI, headed "Rules", confers power upon the judges to make rules inter alia "for the government and conduct of the officers and ministers of the Court". In 1912 the following provision was included in this Part :
"39A. The judges may make rules -
(a) for empowering the Prothonotary or Deputy Prothonotary of the court to do such things and transact such business and to exercise any such authority and jurisdiction in the same as by virtue of any statute or custom or by the rules and practice of the court, or any of them respectively, are done, transacted, or exercised by a judge sitting at chambers and as may be specified in any such rule, except in respect of matters relating to the liberty of the subject.
(b) for regulating the attendance of the said Prothonotary or Deputy Prothonotary at chambers, the course of practice to be there pursued, and the scale of costs to be there adopted, and for fixing the scale of fees in respect of business transacted before the said Prothonotary, or abolishing or altering any scale of fees so fixed." (at p86)
13. It seems to me that, notwithstanding s. 39A, this Act indicates that the Supreme Court of New South Wales consists of judges of the Court and that the prothonotary and registrars are but officers of that Court. The power of the judges to empower an officer of the Court to exercise part of the judicial power of the Court does not, as I read the Act, make such officer either the Supreme Court or part of that Court. (at p86)
14. The New South Wales Matrimonial Causes Act does, it seems to me, maintain the clearest distinction between the Court and the registrar and nowhere does this more clearly appear than in the section that has been most relied upon to constitute the registrar the Court for some purposes. The relevant provision is s. 91 (2) which is as follows :
"91 (2). The judges of the Supreme Court or any three of them may by rules of court made in that behalf delegate to the registrar power to do such things and transact such business and to exercise any such authority and jurisdiction as is now done, transacted or exercised by the court except in respect of the hearing of suits or in respect of matters relating to the liberty of the subject :
Provided that the registrar may in case of doubt or difficulty refer any matter to the court :
Provided also that the court may direct any matter in which an order has been made by the registrar to be re-argued before the court upon giving a direction to that effect within the prescribed time after such order has been made by the registrar." (at p86)
15. It is true that there has been a delegation of judicial power to the registrar but that, in my opinion, does not lead to an identification of the delegate either with the judges who make the delegation or with the court, particularly when it is expressly provided that "the registrar may in case of doubt or difficulty refer any matter to the court" and "that the court may direct any matter in which an order has been made by the registrar to be re-argued before the court". It seems to me that, in this provision, the distinction between the registrar and the court is emphasized, not obliterated. (at p87)
16. Other sections of the Act that deny the identification, for any purpose, of the registrar with the court itself are s. 3 - definition of "The Court" ; s. 4 - particularly sub-s. 3 which vests jurisdiction under the Act in particular judges ; and s. 83 - providing an appeal from the registrar to the court as defined in s. 3 (1). (at p87)
17. As I have said, the Rules of Court made under s. 91 (2) should be looked at as part of the relevant State legislation but they assist but little because they merely define the extent of the delegation which has been made and I have already referred to r. 198 of the schedule thereto. (at p87)
18. To complete this examination of the relevant New South Wales statutory provisions I need only say that the deeming provisions of the Administration of Justice Act, 1968, seem to me to tell against, rather than in favour of, the petitioner's contention. The provision would be without point if the registrar had, in fact, been exercising the jurisdiction of the Supreme Court. It is only necessary to add that, although it is a State court as constituted by State law that is invested with federal jurisdiction under s. 77 of the Constitution, a State cannot extend the investment of federal jurisdiction by deeming somebody, not the court so invested, to be exercising the jurisdiction of the court which has been invested with federal judicial power. (at p87)
19. This review of the relevant New South Wales legislation satisfies me that there has always been maintained a complete distinction between the Supreme Court and a registrar. All that can be said in favour of an affirmative answer to the question asked in the stated case is that there has been a valid delegation of part of the Supreme Court jurisdiction to the registrar and this, despite all else, is sufficient of itself to warrant an affirmative answer. Is then such delegation enough to constitute the registrar the Supreme Court for the purpose of the exercise of the delegated jurisdiction ? I think not. If judges could, by rules, delegate part of their jurisdiction to a judge of a District Court, the judge to whom the delegation has been made, in the exercise of his delegated power, would remain a judge of the District Court. He would not become a judge of the Supreme Court, or any part of the Supreme Court. To delegate is to appoint a representative to exercise powers, but there is a clear distinction between the delegator and the delegate. It matters not that the registrar to whom the delegation here under consideration has been made is an officer of the Supreme Court. In the exercise of his delegated power he remains an officer of the court and can do what he is authorized to do only because he is, at the time, an officer of the particular description to be found in the delegation. (at p88)
20. I should refer to Le Mesurier v. Connor (1929) 42 CLR 481 , upon which the Attorney-General for the Commonwealth relied heavily to support the contention that the investiture made by s. 23 (2) extended to the registrar as part of the organization of the Supreme Court. To my mind the case cited hardly touches our present problem. The Commonwealth Bankruptcy Act had given bankruptcy jurisdiction to certain State courts and had provided for registrars to have such duties as the Attorney-General should direct. These registrars were made officers of the courts to which they were appointed and the Act had conferred certain powers and duties upon registrars and given the court power to delegate other functions to the registrars. What was so attempted failed because it was held that s. 77 (iii.) of the Constitution does not enable the Parliament to make a Commonwealth officer a functionary of a State court and authorize him to act on its behalf and administer part of its jurisdiction. In the course of the majority decision it was said on several occasions that State courts are created by State laws which determine their constitution and the organization through which powers and jurisdictions are exercised (see, for instance (1929) 42 CLR, at pp 495-496) From these statements it has been sought to extract a rule that the organization through which the court exercises its jurisdiction is part of the constitution of the court but the language used by the majority does not support this. Throughout a distinction is maintained between "the constitution of the Court" and "the organization through which its powers and jurisdiction are exercised". It is true that both are matters for the State and are outside Commonwealth legislative power under s. 77 (iii.) but it is emphasized throughout that the Commonwealth power is simply to invest a State court with federal jurisdiction. What was said bears little upon the problem which the Court now faces of determining what is the Supreme Court of New South Wales. The Attorney-General also relied upon some sections of the Commonwealth Matrimonial Causes Act to indicate that it was the intention of Parliament that investing of jurisdiction made by s. 23 (2) should extend to registrars of the Supreme Courts, but on the question of what is the Supreme Court of New South Wales Commonwealth legislation cannot assist. Le Mesurier v. Connor (1929) 42 CLR 481 makes it clear that the Parliament of the Commonwealth can do no more than invest a State court, as it is or as it may become, with federal jurisdiction. I should perhaps add that, in my opinion, none of the provisions referred to, do, in fact, indicate any intention of the Parliament of the Commonwealth to invest federal jurisdiction upon the registrars of the Supreme Court of the States. (at p89)
21. A final argument must be noticed which, it seems to me, was based not upon the investing of the Supreme Court of a State with federal jurisdiction in matrimonial causes but upon the exercise by the Commonwealth Parliament of powers under s. 51 (xxii.). (at p89)
22. This does not seem to me to be a case for considering whether the exercise of power under s. 77 (iii.) can be aided by legislation under s. 51 (xxii.) although, in Le Mesurier v. Connor (1929) 42 CLR 481, observations can be found that tend to support such a co-operative exercise of legislative power. However, if the occasion ever arises for the further consideration of these observations it will have to take into account the decision in the Boilermakers Case (Attorney-General(Cth) v. The Queen) (1957) 95 CLR 529 It does appear to me that s 127 of the Commonwealth Matrimonial Causes Act is something quite separate from the investing provisions, viz. ss. 23 and 92, and is a valid exercise of the power of Parliament conferred by s. 51 (xxii.) and that the Matrimonial Causes Rules depend upon the same power. Section 127 (6) of the Commonwealth Matrimonial Causes Act is as follows :
"Until rules or other provisions have been made in accordance with this section, and so far as rules or other provisions so made do not provide for the circumstances of any particular case, the practice and procedure, immediately prior to the commencement of this Act, of the Supreme Court of a State or of a Territory to which this Act applies (including powers of the Court as regards costs) shall, subject to this Act and the Constitution, apply, as far as practicable, to and in relation to matters arising in that Court under this Act."It was argued that this provision gave federal force to r. 198 of the Rules made under the State Matrimonial Causes Act. I do not agree and will do no more than say (1) that when, pursuant to s. 125 of the Commonwealth Matrimonial Causes Act, rules have been made as to costs - as they have - s. 127 (6) cannot be read as giving federal authority to an additional State rule, and (2) that s. 127 (6) itself refers to the "powers of the Court as regards costs" which hardly suggests the grant of federal legislative support to rules relating to powers of a registrar - who, in my opinion, is not the court - as to costs. (at p89)
23. In addition to the matters which I have discussed there were other matters of constitutional importance touched upon in the course of an argument before the Court which ranged widely upon the matter of the powers of Parliament under s. 77 (iii.) of the Constitution, but I have sought to confine my observations to what bears upon the question which has been asked in the case stated. (at p90)
24. For the foregoing reasons I would answer that question "No". (at p90)
WINDEYER J. The order that the deputy registrar of the Supreme Court of New South Wales made is expressed to have been made "By the Court". In fact it was not made by the Court. It was made by the deputy registrar acting for and on behalf of the Court and by virtue, it was assumed, of a power arising by delegation from the Court. Someone, by what authority does not appear, impressed a representation of the seal of the Court upon the formal record of the order. This did not make it in fact an order of the Court or give it any additional validity. The distinction between doing an act for a court and doing an act as that court is vital. The deputy registrar's order as recorded implies that he purported to act as the Supreme Court. This is not merely a formal defect of verbiage. The observance of forms and the due recording of proceedings are one of the safeguards of justice according to law. Here it appears on the face of the record that the order was made under a misconception of the nature of proceedings instituted in the Supreme Court pursuant to the jurisdiction with which it is invested by s. 23 of the Matrimonial Causes Act 1959 of the Commonwealth Parliament. I have no doubt that a deputy registrar of the Supreme Court when he acts pursuant to powers conferred by State law is not acting as the Supreme Court. He is acting as an officer for that Court. He cannot properly be regarded as within the word "court" or the word "judge" wherever used : cf. Bryant v. Reading (1886) 17 QBD 128, at pp 131, 132 . I cannot accept the suggestion that when he acts for the Court and with its authority he is a member of the Court and to be likened to a single judge before whom the Court may be holden for the exercise of its jurisdiction. If an order made by an officer of the Supreme Court is to be regarded as having been made by that Court, an appeal would lie from such an order directly to this Court, or to the Privy Council, if a sufficient sum were involved. I do not think that that is so. (at p90)
2. The distinction between the Supreme Court, as a superior court of record consisting of judges, and the officers of that Court has been regularly recognized in statutory provisions from the time when the Court began. It was established by the Charter of Justice of 13th October 1823, issued pursuant to the Act 4 Geo. IV, c. 96. That Act had provided (by s. 1) that the Court to be established might be "holden by one Judge or Chief Justice and shall have such ministerial or other Officers as shall be necessary for the administration of Justice in the said Court . . .". There was a provision enabling the Crown to augment the number of judges up to a total of three and this power was soon exercised. Since then the number of judges has grown enormously. (at p91)
3. The significant thing is that the Charter provided (by s. 9) that :
". . . there shall be and belong to the said Court the following Officers : that is to say a Registrar, a Prothonotary, a Master, and a Keeper of Records and such and so many other Officers as to the Chief Justice of the said Court for the Time Being shall from Time to Time appear to be necessary for the Administration of Justice and the due execution of all the powers and authorities which are granted and committed to the said Court by these Our Letters Patent." (at p91)
4. The nature of a court and the functions of court officers were matters that were well known in England long before the Australian colonies began. The meaning of the word "court" has thus come to us through a long history ; and it is by the light of that that it is to be understood in ss. 71, 72 and 73 of the Constitution. (at p91)
5. According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge. For the due administration of justice courts had officers who in some cases were, and are, empowered to perform specified functions on behalf of the courts to which they belonged. The jurisdiction that the deputy registrar purported in this case to exercise on behalf of the Supreme Court would, it seems, have been validly exercised in proceedings in the matrimonial causes jurisdiction of the Court before the Commonwealth Act came into force. (at p91)
6. I appreciate the force of the argument that when, pursuant to s. 77 of the Constitution, Parliament invests a State court with federal jurisdiction the court must mean an existing institution, an organization for the administration of justice, consisting of judges and with ministerial officers having specified functions. Therefore it was said that Parliament when it conferred federal jurisdiction upon the court must have expected and intended that it would exercise this invested jurisdiction in accordance with its customary procedure in cases of a like kind. That proposition is formidable. Nevertheless I think that when any court is authorized to exercise the judicial power of the Commonwealth the power of adjudication thus committed to it must be exercised by the whole court or by a judge of the court, not by a subordinate officer. In matters in which a court is not required to sit in banc a single judge may exercise its jurisdiction : but he must be a judge of the court, a person who, if the court were sitting in banc, could take his place on the bench. (at p92)
7. I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to an adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called "proceedings for ancillary relief". They must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made. The taxation of costs by a taxing master is an example of a matter of the first kind. The taking of accounts or an inquiry as to damages for the purpose of reporting the result to the court to enable a judgment to be given are of the latter kind. So too are proceedings before a registrar for a certificate of means pursuant to the Matrimonial Causes Rules 211-213. Reports and certificates rendered to a court resemble in substance the verdicts of juries impanelled to try facts according to the tradition of the common law. Jurymen must arrive at their verdict after considering the evidence in a judicial manner ; but they are not part of the court. Their verdict only becomes binding upon the parties when it is accepted by the court, and provided it is not set aside on a motion non obstante veredicto. Indeed at one time the judge sitting at nisi prius did not give judgment when the jury returned its verdict - Why? Because he was not the court : see Wilson v. Hood (1864) 3 H &C 148 (159 ER 484) (at p92)
8. In short, I can see no reason why, assuming that the process of giving judgment is not taken from the court, matters arising before the hearing of the principal cause, or afterwards for working out the effect of a judgment, should not be inquired into and reported on by officers of the court. The court would not then confirm the decision of an officer. It would itself pronounce judgment on material he provided, which judgment might I suppose be in most cases in accordance with any recommendation emerging from the report, but would not necessarily be so. In my view what is not legitimate is for a Supreme Court invested with federal jurisdiction under the Constitution to entrust the determination of the rights of parties, in regard to any matter great or small, to persons who are not the court. The ascertainment of facts by the direction of the court is an essentially different thing from determining rights. (at p93)
9. I do not think that, in seeking an answer to the question propounded for us, we can be moved by the suggestion we heard that to deny the authority of officers of the Supreme Courts in cases such as this would be to cast a great burden of minor matters upon the judges of those courts. I observe, in passing, that whether a respondent husband must pay six hundred dollars as interim costs of the petitioner wife at an early stage of a matrimonial cause seems to me hardly a minor matter. However, that a court exercising jurisdiction in matrimonial causes must itself adjudicate in some matters that are sometimes thought to be but incidental seems to me to be what the law requires. I may add that this does not disturb me. The adjustment of proprietary rights, and other so-called incidental questions, is often of as much consequence for the parties as the principal relief sought in a matrimonial cause. Moreover, as I see the matter, the difficulties and burdens which it is suggested would occur, could be in fact alleviated by a further exercise by the Crown of the rule-making power under s. 127 of the Act and very largely by courts adopting procedures of reference and report, thereby confining court officers to ministerial functions and not treating them as if they were a part of the court yet enabling the court when adjudicating to have the benefit of their aid. (at p93)
10. I do not think it necessary that I discuss all the matters that were mentioned in the argument or the cases that were cited. These matters have been dealt with in the judgment of the Chief Justice which I have had the advantage of reading since I wrote what appears above. I agree in the order that his Honour proposes. (at p93)
OWEN J. Section 23 of the Commonwealth Matrimonial Causes Act 1959-1966 invests the Supreme Court of each State with federal jurisdiction to hear and determine matrimonial causes and the definition of "matrimonial cause" in s. 5 (1) (d) includes "proceedings with respect to . . . costs". In the present case in a suit for judicial separation brought in the Supreme Court of New South Wales under the Commonwealth Act an order was made by a deputy registrar for the payment by the respondent husband to the petitioning wife of an amount for interim costs. Section 125 of the Commonwealth Act empowers "the Court" to make such orders as to costs as it thinks just and the order in question can be supported only if in making it the deputy registrar was "the Court". The arguments in the case covered a wide field but I think it unnecessary to deal with many of the matters which were discussed since it seems to me that the short answer to the question asked is to be found by examining the New South Wales law under which the deputy registrar purported to act. It is that law, in my opinion, that one must consider in deciding whether the order in question was made by "the Supreme Court". It consisted of s. 91 (2) of the New South Wales Matrimonial Causes Act and r. 198 made under that subsection before the Commonwealth Act came into operation. Section 91 (2) provided that :
"The judges of the Supreme Court or any three of them may by rules of court made in that behalf delegate to the registrar power to do such things and transact such business and to exercise any such authority and jurisdiction as is now done, transacted, or exercised by the court except in respect of the hearing of suits or in respect of matters relating to the liberty of the subject :
Provided that the registrar may in case of doubt or difficulty refer any matter to the court :
Provided also that the court may direct any matter in which an order has been made by the registrar to be re-argued before the court upon giving a direction to that effect within the prescribed time after such order has been made by the registrar."By sub-s. (3) of the same section "registrar" included a "deputy registrar". Rule 198 was in these terms :
"(1) The registrar is hereby empowered to do all such things and transact all such business, and exercise such authority and jurisdiction in respect of the same as is now done, transacted or exercised by the Court or a judge thereof in respect of the proceedings and matters set forth in the Schedule hereunder, and all matters incidental thereto.
(2) The registrar may refer any matter, which in his opinion should be so referred, to the Court, which may dispose of the matter or give directions thereon.
(3) Upon production of a certificate by the registrar that he has refused to make an order in an ex parte matter, application may be made to the Court for such order.
(4) If any party is dissatisfied with the decision of the registrar in any other matter, he may, within eight days from such decision or within such further time as may be allowed by the Court or the registrar, file a request that the matter be referred to the Court, and shall within the same time serve upon the other party or parties notice of such request having been filed. . . ."One of the matters set forth in the schedule to which par. (1) of the rule refers is "Orders for a sum on account of costs". Section 91 (2) draws a clear distinction between "the Supreme Court" on the one hand and a registrar or deputy registrar of the Court on the other, and makes it plain, as does r. 198, that a deputy registrar acting under that rule is not "the Court". He is no more than a delegate of "the Court" and not "the Court" itself. (at p95)
2. In support of the validity of the order, however, reference was made to s. 127 (6) of the Commonwealth Act which reads as follows :
"Until rules or other provisions have been made in accordance with this section, and so far as rules or other provisions so made do not provide for the circumstances of any particular case, the practice and procedure, immediately prior to the commencement of this Act, of the Supreme Court of a State . . . (including powers of the Court as regards costs) shall, subject to this Act and the Constitution, apply, as far as practicable, to and in relation to matters arising in that Court under this Act."But that subsection speaks of the powers of "the Court" as regards costs and cannot, in my opinion, be called in aid in support of the argument that a deputy registrar was "the Supreme Court" in making the order for interim costs. (at p95)
3. Some reliance was also placed upon s. 8 of the Administration of Justice Act 1968 (N.S.W.). That section amended s. 4 of the Matrimonial Causes Act (N.S.W.) by adding a subsection that :
"The registrar, when exercising the jurisdiction and powers conferred upon or delegated to him under this Act, shall be deemed to be exercising the jurisdiction and powers of the Supreme Court."But the amending provision does not seem to me to further the contention that the order for costs made in the present case was validly made, if only for the reason that when the Commonwealth Parliament invests a State court with federal jurisdiction it is not, in my opinion, open to the legislature of that State to extend the operation of the federal law by deeming some person, who under the State law is not "the Court", to be exercising the jurisdiction and powers of that Court. I should add that I agree with my brother Menzies that the other State legislation to which he has referred contains no provision which would make a deputy registrar "the Supreme Court". Indeed, as he has pointed out, a consideration of that legislation leads to the opposite conclusion. But, as I have said earlier, the answer to the question submitted to us seems to me really to be found in the terms of s. 91 (2) of the Matrimonial Causes Act (N.S.W.). Finally I should say that the decisions of the Supreme Court of South Australia to which my brother Menzies has referred are based upon provisions in the laws of that State which appear to me to differ in a number of respects from those in New South Wales which required consideration in the present case. For that reason I think it better to refrain from expressing any opinion on the questions with which those cases dealt. (at p96)
4. In the result I am of opinion that the question asked in the case stated should be answered "No". (at p96)
WALSH J. The Matrimonial Causes Act 1959-1966 (Cth) (herein called the Act) provides in s. 23 (2) :
"Subject to the succeeding provisions of this section, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Supreme Court of each Territory to which this Act applies, to hear and determine -
(a) matrimonial causes instituted under this Act ; and
(b) matrimonial causes (not being matrimonial causes to which section one hundred and fifteen of this Act applies) continued in accordance with Part XIII of this Act." (at p96)
2. The proceeding in which the order with which the Court is now concerned was made was a matrimonial cause instituted under that Act, being a proceeding included in those described in par. (d) of the definition in s. 5 (1) of "matrimonial cause". That subsection contains also a definition declaring that "the court", in relation to any proceedings, means "the court exercising jurisdiction in those proceedings by virtue of this Act". By s. 25 (1) it is provided that the jurisdiction conferred on a court or with which a court is invested by the Act "shall be exercised in accordance with this Act". Section 125 provides that in proceedings under the Act "the court may, subject to the rules, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just". (at p96)
3. The order under review was an order for costs. It was made by a deputy registrar. It purported to be an order of the court. The question is whether the deputy registrar had authority to make it. (at p96)
4. It seems clear to me that the order cannot have been made validly unless it is right to describe it as an order made by the Supreme Court of New South Wales. It was that Court, together with the Supreme Courts of other States, which was by s. 23 (2) invested with federal jurisdiction, in pursuance of the power given to the Commonwealth Parliament by s. 77 (iii.) of the Commonwealth Constitution. In my opinion the deputy registrar who made the order was not a part of the Supreme Court. He was one of its officers. No question arises, in my opinion, of considering whether a person might be a member of that Court although not called a judge. That question could arise only if the State laws providing for the establishment and the constitution of that Court had included as a member of it some person described by some title other than the title "judge". The State laws have not done so. I agree with the reasons given by Menzies J. for concluding that under the State legislation, the Supreme Court of New South Wales consists of the judges of that Court and does not include officers such as the registrar in divorce. (at p97)
5. It has been argued that the registrar and his deputy had authority conferred upon them by State laws to exercise part of the jurisdiction of the Supreme Court and that when exercising it they must be regarded as being part of the Supreme Court. In my opinion this argument rests upon a confusion between the exercise by the Court of its jurisdiction and the exercise by officers, who are not part of the Court, of a jurisdiction which they have statutory authority to exercise. There is not doubt that a State Parliament has a general power to make a law authorizing anyone whom it may nominate to exercise such functions as are defined by that law. These may include judicial functions. The State Act may do this although the tribunal or person designated by the law is not a court already in existence or a member of such a court. The State Parliament may legislate to give to someone, not being a member of an existing court, power to perform some of the functions which hitherto have been exercised only by an existing court or its judges. The Parliament may do this either by direct legislation or by authorizing the making of rules for that purpose. It may also add provisions designed to make effective the powers so conferred, for example, by declaring that an order of a person empowered to carry out some judicial function is to have the same force and effect as it would have if made by the court. But the enactment of legislation of this kind does not have the consequence that the person thus designated is part of the court when he is exercising that function or that his order is an order of the court. (at p97)
6. By s. 91 (2) of the Matrimonial Causes Act, 1899-1958 (N.S.W.), the judges of the Supreme Court were authorized to delegate to the registrar by rules of court power "to do such things and transact such business and to exercise any such authority and jurisdiction as is now done, transacted, or exercised by the court", with certain exceptions. By r. 198 (1) of rules made pursuant to that provision the registrar was empowered to exercise authority and jurisdiction in respect of certain matters, including "orders for a sum on account of costs". Section 91 (2) provides also that the registrar may in case of doubt or difficulty refer any matter to the court and that the court may direct any matter in which an order has been made by the registrar to be re-argued before the court. In my opinion none of those provisions has the effect of making the order of the registrar the order of the court. It was subsequently enacted in s. 8 of the Administration of Justice Act 1968 (N.S.W.), which came into operation on 19th April 1968, that the Matrimonial Causes Act (N.S.W.) was amended by adding a new sub-s. (4) to s. 3 thereof in these terms :
"(4) The registrar, when exercising the jurisdiction and powers conferred upon or delegated to him under this Act, shall be deemed to be exercising the jurisdiction and powers of the Supreme Court."So far from showing that the registrar in exercising the jurisdiction and powers conferred on him is acting as the Supreme Court, this new provision recognizes in my opinion that he is not ; and the enactment that he is deemed to be exercising the jurisdiction of the Supreme Court cannot have the effect of making him a part of the Supreme Court. (at p98)
7. In my opinion it does not matter for any purpose now relevant whether the registrar, when so acting under the authority given to him by State laws, ought to be described as "the delegate" of the court or simply as a person empowered to do certain judicial acts, subject to review by the court, which otherwise the court would have to do itself. It has been submitted that when the Supreme Court was invested by the Act with federal jurisdiction in matrimonial causes, it must be taken to have been the intention of the Commonwealth Parliament that this would not affect or interfere with the "organization" of the Supreme Court and that it would be left to State laws to determine, in respect of that investing of the court with federal jurisdiction, both the constitution of the court and "the organization through which its powers and jurisdictions are exercised". That submission was based principally upon certain passages in the judgment of the majority of the Court in Le Mesurier v. Connor (1929) 42 CLR 481 . It is from that judgement (1929) 42 CLR, at p 495 that the quoted reference to the "organization" of the court is taken. There is no need to dispute the correctness of the submission as I have so far stated it. But then it was submitted further that it follows from the same judgment that the intention and the effect of s. 23 (2) must be taken to be that the Supreme Court will or may exercise part of the jurisdiction with which it is thereby invested by allowing a registrar to hear matters which are of the same kind as the matters with which a registrar could have dealt under the authority of State laws. I am of opinion that this latter submission is not supported by the judgment in Le Mesurier v. Connor (1929) 42 CLR 481 , or by any of the authorities to which we were referred. In my opinion when the Supreme Court exercises part of the judicial power of the Commonwealth, under the authority of s. 23 (2), its judicial function must be performed by persons who are members of that Court and not by persons who, although they may have had authority under State laws to perform certain judicial functions, are not part of that Court. Nobody can be brought in, as it were, from outside the existing Court by the Commonwealth law and directed by it to exercise part of the jurisdiction with which the Commonwealth invests the State court. Likewise the investing cannot be taken to have the effect of conferring authority to exercise federal jurisdiction upon someone who is not a part of the State court which is being invested with that jurisdiction. A conclusion that the Act has this last-mentioned effect cannot be supported, in my opinion, by saying that that other person is part of the organization through which the powers and jurisdiction of the court are exercised. When it has been said that it is the State law which must determine the organization through which the jurisdiction and powers of the State court are exercised, it is to its jurisdiction and powers that reference has been made. A system created by State law under which some powers are exercised by the court and some are not exercised by it, but by someone else who may sometimes be described as its delegate, cannot be equated with "the organization" by which the powers of the court itself are exercised. (at p99)
8. In 1905 it was held in this Court that an order made by a judge of the Supreme Court, sitting in chambers to hear an originating summons by which rights were finally determined, was an order of the Supreme Court within the meaning of s. 73 of the Constitution : see Parkin v. James (1905) 2 CLR 315 . In that case (1905) 2 CLR, at pp 342-344 , reasons were given for the conclusion that the order of the judge is in substance an order of the court and it was said that his act is "potentially" the act of the court. A judge exercising such jurisdiction has sometimes been said to do so as the delegate of the court : see A. &V. Bence Pty. Ltd. v. Voets Investments Pty. Ltd. (1963) 63 SR (NSW) 1016, at pp 1019-1025 , where a survey is made of the history of the exercise of jurisdiction by a single judge in the Supreme Court of New South Wales. But although there is a sense in which it is apt to describe the judge as the delegate of the court, he is not its delegate in the same sense as is a person, not being a member of the court, upon whom statutory powers have been conferred to perform certain judicial functions by means of a delegation of those functions to him by rules made by the judges of the court. In my opinion, the powers which a single judge of the Supreme Court may exercise are not independent of his office as a member of the court and of the authority derived by him from that office, but are powers which he has because he is a member of the court. In Parkin v. James (1905) 2 CLR, at pp 342-344 , where the position of a judge sitting in chambers was considered, reference was made to Smeeton v. Collier (1847) 1 Ex 457 (154 ER 194) . In that case, although the headnote to the report refers to the exercise of power by a judge at chambers as "the delegate" of the court the judgments do not refer to him as a delegate. Pollock C.B. (1847) 1 Ex, at p 462 (154 ER, at p 197) , states that where an Act of Parliament gives a power to a court "the court may exercise that power in the same manner as it may exercise any other powers". Parke B. (1847) 1 Ex, at p 463 (154 ER, at p 197) , speaks of the court exercising the power given to it "in the common and ordinary way". Other members of the Court used similar language, indicating that it is the power of the court that is being exercised. (at p100)
9. The present case is not directly concerned with any question as to the powers of a single judge. But I have made some observations upon the nature and the source of the powers which he has as a constituent member of a superior court (as to which see also Medical Board of Victoria v. Meyer (1937) 58 CLR 62, at pp 93-96 ) because I think it is clear that his position is quite different from that of a registrar or other officer of a court exercising an authority not associated with membership of the court. The order of the judge is the order of the Supreme Court from which an appeal lies under s. 73 of the Constitution, subject to exceptions and regulations prescribed by the Parliament. In my opinion the order of the registrar or his deputy is not an order of the Supreme Court, within the intendment of the Constitution or of the Act, because it is not made by a member or by members of that Court. In my opinion the statements in Le Mesurier v. Connor (1929) 42 CLR 481 and in other cases concerning the acceptance by the federal investing law of "the organization" of the existing State court do not warrant a conclusion that such an order must be regarded as an order of the Supreme Court. (at p100)
10. I do not think that there is any need to examine in detail the provisions of the Act in order to see whether or not an intention is indicated that the expression "the court" refers to judges of the court to the exclusion of its officers. I need make only two further statements as to the effect of the Act. The first is that in my opinion in s. 23 (2) the expression "the Supreme Court" refers only to the court consisting of the judges who are its members. The second is that in my opinion it is clear on a consideration of the whole of the provisions of s. 127 of the Act that sub-s. (6) thereof did not operate to confer authority upon the deputy registrar to make the order with which this case is concerned. (at p101)
11. In my opinion the question set out in the case stated by the learned judge in divorce of the Supreme Court of New South Wales should be answered "No". (at p101)
GIBBS J. In this case we are called upon to decide whether a deputy registrar of the Supreme Court of New South Wales had jurisdiction, on an application made by the petitioner in a matrimonial cause instituted in the Supreme Court of New South Wales under the Matrimonial Causes Act 1959-1966 ("the Commonwealth Act"), to order the respondent to pay to the solicitor for the petitioner a sum in respect of interim costs. The order, although made by the deputy registrar, purported to be the order of the Supreme Court. (at p101)
2. By s. 23 (2) of the Commonwealth Act the Supreme Court of each State is invested with federal jurisdiction to hear and determine matrimonial causes instituted under that Act. The proceedings with respect to the interim costs came within the definition of "matrimonial cause" contained in s. 5 (1) of the Commonwealth Act. A power to make orders as to costs in proceedings under the Act is given by s. 125 to "the court", which, in relation to any proceedings, means "the court exercising jurisdiction in those proceedings by virtue of this Act" (s. 5 (1)). The effect of these provisions is that the Supreme Court of New South Wales was invested with federal jurisdiction to hear and determine the application for interim costs and had power to make the order in question. (at p101)
3. But did this investiture of jurisdiction and grant of power extend to enable the deputy registrar to make the order, which clearly the Supreme Court had jurisdiction and power to make? In my opinion the deputy registrar, although an officer of the Supreme Court, was not a part of that court. As a general rule a court consists of the judges who constitute it, and officers of the court are not part of the court in the strict sense (see Reg. v. Davison (1954) 90 CLR 353, at p 365 , and the dissenting judgments of Isaacs J. and Starke J. in Le Mesurier v. Connor (1929) 42 CLR, at pp 510-511 and 524 ). It is commonplace for statutes setting up a superior court to provide that the court shall consist of a Chief Justice and a number of judges. Express provisions of this kind have been made in relation to the High Court (s. 71 of the Constitution) and most of the Supreme Courts of the States (Supreme Court Act 1958 (Vict.), s. 7 ; Supreme Court Act of 1867 (Q.), s. 8 ; Supreme Court Act 1935 (S.A.), s. 7 ; and Supreme Court Act, 1935 (W.A.), s. 7). In New South Wales (and also in Tasmania) the Supreme Court was set up, not by a statute, but by a Charter of Justice. By cl. 2 of the Charter of Justice of 13th October 1823 it was ordained that the Supreme Court of New South Wales "shall consist of and be holden by and before one Judge, who shall be and be called the Chief Justice of the Supreme Court of New South Wales". By subsequent statutes authority was given to appoint puisne judges of the Court. The Supreme Court and Circuit Courts Act, 1900-1969 (N.S.W.), does not contain any general provision that the Supreme Court shall consist of the Chief Justice and other judges although in s. 21B it is provided that there shall be a division of the Court, to be called the Court of Appeal, which shall consist of the Chief Justice, the President and a number of Judges of Appeal. However there can be no doubt that the effect of the Charter of Justice and subsequent legislation is that the Supreme Court of New South Wales now consists of the Chief Justice, the President and other Judges of Appeal and the other puisne judges. It does not consist of registrars and deputy registrars who are members of the public service called upon to perform duties in connexion with the court. (at p102)
4. Nevertheless before the Commonwealth Act was passed the deputy registrar had jurisdiction to hear and determine an application for an interim order for costs in a matrimonial suit instituted in the Supreme Court of New South Wales. Section 91 (2) of the Matrimonial Causes Act, 1899, as amended, (N.S.W.) ("the State Act") gave power to the judges of the Supreme Court by Rules of Court to "delegate to the registrar" (which term included a deputy registrar - see sub-s. (3)) "power to do such things and transact such business and to exercise any such authority and jurisdiction as is now done, transacted, or exercised by the court except in respect of the hearing of suits or in respect of matters relating to the liberty of the subject". The words of this subsection were derived from those of the Judges' Chambers Despatch of Business Act, 1867 (U.K.), under which the jurisdiction of the judges in chambers was conferred on the masters of the common law courts. The subsection further provided that "the registrar may in case of doubt or difficulty refer any matter to the court" and that "the court may direct any matter in which an order has been made by the registrar to be re-argued before the court". Rule 198 (1), made pursuant to the power conferred by this subsection, empowered the registrar "to do all such things, and transact all such business, and exercise such authority and jurisdiction in respect of the same as is now done, transacted or exercised by the court or a judge thereof in respect of the proceedings and matters set forth in the Schedule hereunder and all matters incidental thereto". The schedule contained a fairly long list of topics including "Orders for a sum on account of costs". Other sub-rules of r. 198 provided for references to the court either by the registrar or on the request of a dissatisfied party. Sub-rule (12) provided :
"The duties and powers of the registrar under this rule may in his absence, during his indisposition, or at his request, be performed and exercised by a deputy registrar."It is clear from the words of s. 91 (2) and r. 198 that a deputy registrar exercised the authority conferred on him by these provisions not as a member of the court but as its delegate. The fact that he had for certain purposes the authority and jurisdiction of the court did not mean that he was the court (cf. Bryant v. Reading (1886) 17 QBD 128, at p 130 ). The definition of "the court" contained in s. 3 of the State Act is consistent with this view. Section 93A of the State Act gives certain power, authority and jurisdiction to the registrar and deputy registrar in the case of suits remitted for trial pursuant to s. 133A of the District Courts Act, 1912, as amended, (N.S.W.). The definition of "the court" in s. 3 includes "in the case of any proceeding to which section 93A of this Act applies the registrar or any deputy registrar", but it does not include the registrar or deputy registrar when exercising the jurisdiction conferred by rules made under s. 91 (2). It seems to me that the State Act preserves a clear distinction between the court on the one hand and a registrar or deputy registrar exercising delegated power under s. 91 (2) on the other. By an amending Act which took effect on 17th April 1968 the following new sub-s. (4) was inserted after sub-s. (3) of s. 4 of the State Act :
"The registrar, when exercising the jurisdiction and powers conferred upon or delegated to him under this Act, 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 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. (at p104)
5. 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 within the meaning of that term as used in Le Mesurier v. Connor (1929) 42 CLR, at pp 494, 495, 496 and 498 and in Bond v. George A. Bond &Co. Ltd. and Bond's Industries Ltd. (1930) 44 CLR 11, at pp 19-20 (at p104)
6. It was agreed by all parties that the order made by the deputy registrar, if valid, involved the exercise by him of the judicial power of the Commonwealth. That power may only be exercised by the High Court, by federal courts created by Parliament (whose judges must be appointed for life - Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. (1918) 25 CLR 434 ) or by State courts invested with federal jurisdiction under s. 77 (iii.) of the Constitution. The section of the Commonwealth Act which invested the Supreme Courts of the States with federal jurisdiction to hear and determine matrimonial causes instituted under that Act was an exercise of the power conferred on the Parliament by s. 77 (iii.). The first question that falls for decision therefore is whether when s. 77 (iii.) speaks of investing a court of a State with federal jurisdiction it refers to the court in the strict sense, that is the court composed of the judges, or whether it includes the organization of the court and particularly the officers of the court by which it exercises its functions under State law in analogous cases. If the word "court" in s. 77 (iii.) of the Constitution is used as including the organization of the court the further questions will arise whether the Commonwealth Act reveals an intention to exclude from the investiture of judicial power officials of the Supreme Courts by whom that power would be exercised in analogous cases under State law and, if so, whether such an intention may be given effect consistently with the Constitution. (at p105)
7. The question whether the effect of investing a State court with federal jurisdiction is likewise to invest those officials who, although not members of the court, are part of its organization and exercise on its behalf its jurisdiction in analogous matters has been decided in the Supreme Court of South Australia but has never fallen for decision in this Court. There are however some authorities in this Court in which related questions have been discussed. In the leading case, Le Mesurier v. Connor (1) a challenge to the validity of a bankruptcy notice issued by a registrar in bankruptcy was upheld by the majority of the court. The Bankruptcy Act 1924-1928 (Cth) provided for the appointment of registrars in bankruptcy who were declared by s. 12 (5) of the Act to be "officers of the court". "The court" was defined to mean any court having jurisdiction in bankruptcy or a judge thereof and by proclamation under s. 18 (1) (b) of the Act (which was declared void on grounds which do not now concern us) the Governor-General purported to confer jurisdiction in bankruptcy on the Supreme Court of Western Australia. Section 24 of the Act provided that the registrar should have certain specified powers, duties and jurisdiction of the court and s. 23 enabled the court to delegate to the registrar such of the powers of an administrative nature vested in the court as the court deemed expedient to be delegated to him. The power to issue bankruptcy notices was delegated to the registrar by three judges of the Supreme Court of Western Australia. It was held that ss. 12 (5), 23 and 24 were nugatory in relation to the courts of the States and that the person appointed to execute the office of registrar of the district of Western Australia had no authority to issue the bankruptcy notice. The effect of the decision was summed up in Reg. v. Davison (2) where it was said :
"In Le Mesurier v. Connor (1), it was held in this Court that s. 77 (iii.) of the Constitution does not enable the Parliament to make a commonwealth officer a functionary of a state court and to authorize him to act on its behalf and administer part of its jurisdiction and that s. 51 (xxxix.) does not authorize the reconstitution of a state court invested with federal jurisdiction under s. 77 (iii.) or of the organization through which its powers and jurisdiction are exercised."Knox C.J., Rich and Dixon JJ., who constituted the majority in Le Mesurier v. Connor (1), did not base their decision on any finding that the power which the registrar purported to exercise was a judicial power. They did not question that the power, which had been delegated on the footing that it was a power of an administrative nature, was of such a nature, and in my opinion it is clear from what was said in the later decision in Bond v. George A. Bond &Co. Ltd. and Bond's Industries Ltd. (1930) 44 CLR, at p 22 that the issue of a bankruptcy notice under the Bankruptcy Act 1924-1928 (Cth) was entirely ministerial (see also James v. Deputy Commissioner of Taxation (1957) 97 CLR 23, at p 32 ). The provisions considered in Le Mesurier v. Connor (1929) 42 CLR 481 were held to be invalid not because they allowed the registrar in bankruptcy to exercise judicial power but because they purported to make him part of the organization of the State court. Knox C.J., Rich and Dixon JJ. said (1929) 42 CLR, at p 496:
"It is no less certain that these general powers cannot be interpreted as authorizing legislation dealing with the organization of State courts. The power conferred by s. 77(iii.) is expressed in terms which confine it to making laws investing State courts with federal jurisdiction. Like all other grants of legislative power this carries with it whatever is necessary to give effect to the power itself. But the power is to confer additional judicial authority upon a court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of government in which judicial power is invested, an object for which the Constitution provides another means, the creation of federal courts."Again, their Honours said(1929) 42 CLR, at p 498 that :
" . . . the power given by s. 77 (iii.) contemplates the selection by Parliament of an existing judicial organ which depends alike for its structure and its being upon State law and the grant to that court of powers of adjudication upon specified subjects of federal jurisdiction" and "that the reconstitution of the tribunal itself or of the organization through which its powers and jurisdiction are exercised cannot be considered to be a matter incidental to the exercise of the jurisdiction which it takes by the grant."It seems clear that this decision denies to the Commonwealth Parliament a power to alter or affect the organization of a State court which is invested with federal jurisdiction. The organization of a court for the purposes of this doctrine does not in my opinion include "all the official staff, from the clerk of the court to the bailiff and doorkeeper", to use the words of Isaacs J. in his dissenting judgment in Le Mesurier v. Connor (1929) 42 CLR, at p 511, but it does include all those officials who as officers of the court are authorized to act on its behalf and administer part of its jurisdiction. It seems to me to follow from this decision that the reference in s. 77 (iii.) to "any court of a State" is to an existing court, "fully established" by a State legislature, that is to the court including "the organization through which its jurisdiction and powers are exercised". It is not without significance that Isaacs J., who dissented in Le Mesurier v. Connor (1929) 42 CLR, at p 512, expressed the contrary view that "s. 77 (iii.), in permitting the Parliament to invest federal jurisdiction in a State court has reference only to the 'court' itself, and not to the official staff . . .". The reasoning which Isaacs J. accepted was rejected by the majority, and the view so expressed is in my opinion opposed to the reasons of the majority. The effect of investing a State court with federal jurisdiction is, therefore, in my opinion, subject to one possible qualification, to enable the State court to exercise the invested jurisdiction through the organization provided by State Law. (at p107)
In Adams v. Chas. S. Watson Pty. Ltd.(1938) 60 CLR 545, at p 554 Latham C.J. said of Le Mesurier v. Connor:
"It relates to the constitution and organization of a court, and decides that the Commonwealth Parliament cannot, in purporting to adopt a State court as a judicial instrument, change the character or constitution of that instrument."In Peacock v. Newtown Marrickville and General Co-operative Building Society No. 4 Ltd. (1943) 67 CLR, at p 37, the same learned Chief Justice said:
"The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. . . . But the State court must be taken as it exists. The constitution or structure of the court cannot be changed by the Federal Parliament. In Federated Sawmill, Timberyard, and General Woodworkers' Employees' Association (Adelaide Branch) v. Alexander(1912) 15 CLR 308, it was held that where a Commonwealth statute conferred federal jurisdiction upon a State court, the State court must be taken as it is found : See also Le Mesurier v. Connor(1929) 42 CLR 481, and Adams v. Chas. S. Watson Pty. Ltd.(1938) 60 CLR 545"It is true that in these passages Latham C.J. was not dealing with the very question that now arises, but his statement of the general position is in accordance with the view that I have expressed. (at p107)
9. It remains to refer to two authorities which are distinguishable from the present case. The first of these, Bond v. George A. Bond &Co. Ltd. and Bond's Industries Ltd. (1930) 44 CLR 11 , also concerned the validity of the issue of a bankruptcy notice by a registrar in bankruptcy under delegated powers. In consequence of the decision in Le Mesurier v. Connor (1929) 42 CLR 481 the provisions of the Bankruptcy Act (Cth) had been amended so that the registrar in bankruptcy was no longer an officer of the court. It was held that the issue of a bankruptcy notice was a ministerial act and that a court invested with federal jurisdiction can validly be authorized to delegate functions which are strictly ministerial. The case was not concerned with the investing of judicial power. Speaking obiter, Rich and Dixon JJ. did suggest (1930) 44 CLR, at p 21 that Parliament probably could not validly authorize a court to delegate part of its judicial power. These remarks in their context no doubt refer to a delegation to a person who is a stranger to the organization of the court, but whether or not that is so they do not relate to the present case in which Parliament has not purported to authorize any delegation by the State courts which it has invested with federal jurisdiction. The delegation here in question is made under the authority of a State law which governs the organization of the State court. (at p108)
10. Reg. v. Davison (1954) 90 CLR 353 also concerned the powers of a registrar in bankruptcy. It was held that the provisions of the Bankruptcy Act 1924-1950 (Cth) which purported to confer on the registrar power to make a sequestration order on a debtor's petition were void as purporting to authorize a person not constituting a court under ss. 71 and 72 of the Constitution to exercise part of the judicial power of the Commonwealth. Under the provisions of the Bankruptcy Act then in force the registrar was not part of the court and not an officer of the court, as Dixon C.J. and McTiernan J. pointed out (1954) 90 CLR, at p 370 . The case does not decide on the validity of a delegation of judicial power to an officer who is part of the organization of the court. Dixon C.J. and McTiernan J. did mention the question whether Parliament in creating a federal court could authorize judicial power to be exercised by an officer of that court. They said (1954) 90 CLR, at p 365:
"A court is composed of the judges which form it, but courts are provided with officers and, under a unitary system of government, it is not uncommon to find that certain duties falling upon a court are executed, subject to judicial confirmation or review, by an officer of the court, such as a master. There is no distinct decision of this Court that under Ch. III no authority can be given by statute for the discharge in this way of the duties of a federal court, although there are dicta to that effect : cf. per Isaacs J. and Starke J. in Le Mesurier v. Connor(1929) 42 CLR, at pp 511, 512, 522-525 The decision of Long Innes J. in Re Malcolm Fraser Grant ; Ex parte Edgley (1928) 29 SR (NSW) 31, perhaps necessarily implies it"The question whether Parliament may by statute authorize the delegation of some of the judicial functions of a federal court to an officer of that court is still an open one but it is not the question which arises here. As I have said, this is not a case in which the Parliament has sought to authorize a delegation ; the question here is whether the investiture with federal jurisdiction of a State court clothes with power not only the judges of the court but also the appropriate officers who form part of the organization through which its jurisdiction is exercised. (at p109)
11. In my opinion there is nothing in the decisions of this Court to detract from the authority of Le Mesurier v. Connor (1929) 42 CLR 481 . That case supports the view that I have already indicated, namely that when the Commonwealth Parliament invests a State court with federal jurisdiction, what is invested is the State court with its organization as provided by the State law. The federal jurisdiction may therefore be exercised not only by the judges of the court but also by those officers of the court who form part of the organization through which it exercises jurisdiction in analogous cases under State law. It is perhaps misleading to say that the Parliament must take the State courts with their existing organization for this suggests that changes in the constitution or organization of the court after its investiture with federal jurisdiction would have no effect in relation to the exercise of federal jurisdiction ; it is more accurate to say that the investing provisions must take an existing court, with its organization as it is from time to time. If this were not so the consequence would be that if, after a State court had been invested with federal jurisdiction, the constitution of the court were altered by a State statute which increased the number of judges, the federal jurisdiction could not be exercised by the court under its amended constitution or at least by the additional judges. (at p109)
12. 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 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. 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 invested 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 exercise 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 which were of a routine or comparatively minor character or which could for other reasons be safely 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. (at p110)
13. To what I have said it may be necessary to add a qualification. In Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR, at p 152 this Court recognized the validity of s. 39 (2) (d) of the Judiciary Act (Cth) which provides that the federal jurisdiction of a court of summary jurisdiction of a State shall not be exercised judicially except by a stipendiary or police or special magistrate or some magistrate of the State specially authorized by the Governor-General. Although the grounds on which that provision was treated as valid were not made altogether clear, I see no reason to doubt the correctness of this opinion expressed by seven members of the Court. It may follow that it would similarly be open to Parliament to prescribe that the federal jurisdiction invested in a State court should be exercised only by a judge and not by a master or registrar and that such a prescription would not be regarded as an interference with the organization of the State court. I shall assume that Parliament might validly provide that the matrimonial causes jurisdiction invested in State Supreme Courts shall be exercised only by judges, but I need not decide that question for in my opinion, if the power exists, it has not been exercised by the Parliament in enacting the Commonwealth Act. By s. 23 (2) the court invested is the Supreme Court, which prima facie means that court with its organization provided by State law. If Parliament intends that the invested jurisdiction should be exercised only by some parts of that organization to the exclusion of others it must make its intention plain. It is not correct to say, as was submitted to us by the respondent, that it would require clear words in the Commonwealth Act before there could be an effective investiture of the officers of the court ; on the contrary, if the invested power is not to be exercised by the officers forming part of the organization of the court who would, in accordance with State law, exercise such a power on behalf of the court in analogous cases, an intention to bring about that result must appear in the Commonwealth Act, if not expressly, at least by necessary implication. (at p111)
14. Section 25 (1) of the Commonwealth Act provides that the jurisdiction with which a court is invested by that Act shall be exercised in accordance with that Act. However the Commonwealth Act does not provide that the jurisdiction shall only be exercised by judges. The sections of the Commonwealth Act, too numerous to mention, which refer to the exercise of the jurisdiction by the court, do not assist in determining the present question. There are some sections of the Commonwealth Act (particularly ss. 14, 15, 20, 91, 92 and 127 (4)) that refer expressly to judges. I cannot accept the argument that the expression "judges" in these sections should be construed as including masters or registrars and there are obviously cases in which the invested jurisdiction must be exercised by the court constituted by a judge. None of the sections in question however suggests that an application for an order for interim costs must be heard before a judge. Two of these sections may be particularly mentioned, since special reliance was placed on them in argument. Section 14 provides, inter alia, that if at any time it appears to the judge constituting the court that there is a reasonable possibility of a reconciliation of the parties to the marriage the judge may take certain steps, including adjourning the proceedings. I am inclined to think that the reference to proceedings in this section is to proceedings for principal relief, but whether that be so or not this section does not mean that every sort of proceeding for ancillary relief must be heard before a judge. Section 68 (4) requires the court, so far as is practicable, to hear and determine at the same time all proceedings instituted by the one petition and it was suggested that, since clearly a judge must hear some proceedings in a matrimonial cause, this section requires a judge to hear all proceedings. However, in the nature of things it is obviously impracticable for all proceedings for ancillary relief to be heard together with the proceedings for principal relief and this section does not lead to the inference that only a judge may exercise the invested jurisdiction to hear all sorts of proceedings. There are other provisions of the Act (ss. 26 (4), 73, 88, 101, 108 and 127 (1) (c) (d) (e) and (f) that expressly mention registrars or officers of the court. Two of these sections require mention. Section 127 (1) (c) (d) (e) and (f) enables the Governor-General to make rules under which certain functions are exercised by officers of the court. In my opinion it does not follow from this provision that the reference to the court elsewhere in the Act excludes officers, because the rules might have to operate in relation to a State or a territorial court under whose organization the relevant functions could not be exercised by officers. Section 108 provides for the enforcement of decrees made before the commencement of the Act "by a court in Australia or by an officer of such a court". Certainly in that section a distinction is drawn between a court in the strict sense and a court acting through its officers. Perhaps the reference to an officer of the court was added out of an abundance of caution, but in any case it is impossible to regard this section, which deals with the enforcement of existing decrees, as the key to the construction of the entire Commonwealth Act, or as indicating a legislative intention that the federal jurisdiction invested by the Act should not be exercised by officers of the State courts. (at p112)
15. For the reasons I have given I have reached the conclusion that the Commonwealth Act does not reveal an intention that the federal jurisdiction with which the Supreme Courts of the States are invested should be exercised only by judges. The jurisdiction may therefore be exercised by the courts through the organizations provided by the State law. Since the State law enables a deputy registrar to exercise on behalf of the Supreme Court of New South Wales jurisdiction in respect of proceedings for orders on account of costs, the invested power may be exercised by a deputy registrar when an application for interim costs is made under the Commonwealth Act in a matrimonial cause pending in the Supreme Court of New South Wales. (at p113)
16. The conclusion that I have reached accords with that reached by the Supreme Court of South Australia in Thomas v. Thomas (1969) 16 FLR 113 ; (1969) SASR 177 in relation to the position of masters of that court. I have derived considerable assistance from the judgments in that case. I am unable to agree with the decision in Ullrich v. Ullrich (1969) 15 FLR 478 ; (1969) SASR 107 where a contrary conclusion was reached. (at p113)
17. Since, in my opinion, the deputy registrar had jurisdiction to make the order which has given rise to this litigation, I would answer the question put in the case stated : Yes. (at p113)
Orders
The question asked by the Supreme Court of New South Wales in the case stated, namely "Did Mr. Deputy Registrar Brown have jurisdiction to make the orders dated 24th April 1969" is answered 'No'.
The respondent to pay the petitioner's costs of the case stated.
The interveners to pay to the respondent two-thirds of the amount payable by him to the petitioner for her costs, and of his own costs, of the case stated.
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[2018] HCA 15
Duncan v Independent Commission Against Corruption
[2015] HCA 32
Cases Cited
10
Statutory Material Cited
0
Le Mesurier v Connor
[1929] HCA 41
R v Murray and Cormie; Ex parte the Commonwealth
[1916] HCA 58
Fardon v Attorney-General (Qld)
[2004] HCA 46