LFDB v Deputy District Registrar

Case [2024] FCA 956

FEDERAL COURT OF AUSTRALIA

LFDB v Deputy District Registrar [2024] FCA 956

Appeal from: LFDB v Deputy District Registrar [2023] FCA 1516
File number(s): NSD 8 of 2024
Judgment of: NESKOVCIN J
Date of judgment: 23 August 2024
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – where primary judge dismissed an application for an extension of time to seek review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – decision not attended with sufficient doubt – application dismissed   
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Corporations Act 2001 (Cth) 596A

Federal Court of Australia Act 1976 (Cth) ss 24(1A) 35A(1)

Trans-Tasman Proceedings Act 2010 (Cth) Part 7, ss 3, 64, 66, 67, 68, 72

 Federal Court of Australia Rules 2011 (Cth) Schedule 2

Cases cited:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; [1995] HCA 10

Cameron v Cole  (1944) 68 CLR 571; [1944] HCA 5

Chisholm v Official Trustee in Bankruptcy [2000] FCA 1234

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97

Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844

De Lange v De Lange [2024] FCA 158

Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94

Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18

Herd v Haines [2023] FCA 325

House v The King (1936) 55 CLR 499; [1936] HCA 40

LFDB v Deputy District Registrar [2023] FCA 1516

LFDB v SM (No 3) [2017] FCA 80

LFDB v SM [2017] FCAFC 178

Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554; [2000] FCA 599

Palmer v Ayres  (2017) 259 CLR 478; [2017] HCA 5

Plaintiff S157/2022 v Commonwealth (2003) 211 CLR 496; [2003] HCA 2

R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254

R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277; [1957] HCA 81

Re Macks; Ex parte Saint (2000) 204 CLR 158 [2000] HCA 62;

Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 37
Date of hearing: 1 July 2024
Place: Sydney
Counsel for the Applicant The Applicant appeared in person
Counsel for the Respondent  No appearance.

ORDERS

NSD 8 of 2024
BETWEEN:

LFBD

Applicant
AND:

DEPUTY DISTRICT REGISTRAR

Respondent

ORDER MADE BY:

NESKOVCIN J

DATE OF ORDER:

23 AUGUST 2024

THE COURT ORDERS THAT:

1.The application for leave to appeal dated 8 January 2024 is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

NESKOVCIN J:

  1. The applicant seeks leave to appeal the orders of the primary judge dismissing an Application for an extension of time to seek judicial review under the Administrative Decisions (Judicial…

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Details
AGLC
LFDB v Deputy District Registrar [2024] FCA 956
Case
[2024] FCA 956
Decision Date

CaseChat Overview and Summary

In the case of LFDB v Deputy District Registrar, the applicant sought leave to appeal against the primary judge's dismissal of an application for an extension of time to seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The primary judge had rejected the applicant’s argument that the registration of New Zealand judgments under the Trans-Tasman Proceedings Act constituted an exercise of administrative power reviewable under the ADJR Act. The primary judge's decision was that such registration was a judicial act, not subject to judicial review under the ADJR Act, and therefore, extending the time for such review would be futile.

The central legal issues before the court were whether the primary judge erred in classifying the Deputy District Registrar's decision and whether the registration of the New Zealand judgments constituted an administrative action amenable to review under the ADJR Act. The applicant argued that the primary judge erred in several respects, including misclassifying the decision, failing to consider the court's jurisdiction and the applicability of the Trans-Tasman Proceedings Act, and not adequately addressing relevant case law. The applicant also contended that the primary judge displayed Wednesbury unreasonableness in applying a different test in a factually similar subsequent case.

The court examined the arguments and found that the primary judge's reasoning was sound. The court held that the registration of New Zealand judgments under the Trans-Tasman Proceedings Act was a judicial act, not an administrative one, and thus not subject to review under the ADJR Act. The court noted that the applicant's submissions largely focused on the merits of the proposed review application and the Deputy District Registrar’s power to register the New Zealand judgments. However, these arguments did not address the primary judge's reasoning regarding the nature of the registration process.

Ultimately, the court concluded that the primary judge’s decision was not attended with sufficient doubt to warrant reconsideration on appeal, and substantial injustice would not result from refusing leave to appeal. The court dismissed the application for leave to appeal, adhering to the primary judge's findings and reasoning.

The court made the following order:

1. The application for leave to appeal dated 8 January 2024 is dismissed.

Orders

Orders of the court

1. The application for leave to appeal dated 8 January 2024 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, it is my view that leave to appeal should be refused.BACKGROUND The Application that was before the primary judge was made against a background of litigation between the applicant (LFDB) and his ex-partner (SM) that had been before the courts in Australia and New Zealand for many years. The history of the proceedings in New Zealand is set out in more detail in LFDB v SM (No 3) [2017] FCA 80 (Griffiths J). On 16 December 2015, a Deputy District Registrar registered two judgments of the High Court of New Zealand pursuant to s 68 of the Trans-Tasman Proceedings Act (New Zealand judgments). The Deputy District Registrar issued Certificates of Registration in respect of the New Zealand judgments under the Trans-Tasman Proceedings Act. In early 2016, the applicant applied to set aside the registration of the New Zealand judgments, under s 72 of the Trans-Tasman Proceedings Act. That application was dismissed by Griffiths J in LFDB v SM (No 3). A subsequent appeal was dismissed by the Full Court: LFDB v SM [2017] FCAFC 178 (Besanko, Jagot and Lee JJ). By the Application, which was filed on 30 June 2023, the applicant sought an extension of time in which to bring an application under the ADJR Act for review of the Deputy District Registrar’s decision, made on 16 December 2015, to issue the Certificates of Registration under the Trans-Tasman Proceedings Act. The Application was heard by the primary judge on 27 November 2023. On 14 December 2023, the primary judge made orders dismissing the Application. In doing so, his Honour rejected the applicant’s submission that registration of the New Zealand judgments pursuant to the Trans-Tasman Proceedings Act was an exercise of administrative power capable of review under the ADJR Act. As a result, his Honour said that it followed that there would be no utility in extending the time for the applicant to seek judicial review under the ADJR Act and the Application was dismissed. The applicant now seeks leave to appeal the primary judge’s orders. GROUNDS An applicant for leave to appeal must generally demonstrate, first, that the relevant decision is attended with sufficient doubt to warrant its reconsideration on appeal and, second, that substantial injustice would result if leave were refused, assuming the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ). The applicant submitted that leave to appeal should be granted because the primary judge erred in a number of respects. The main grounds, as best they can be understood, on which the applicant submitted error on the part of the primary judge were as follows: (a)the primary judge erred in the classification of the decision exercised by the Deputy District Registrar;(b)the primary judge erred in not considering that the Court did not have jurisdiction in the matter and that the Trans-Tasman Proceeding Act was not applicable;(c)the primary judge erred in not considering the case of Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94 (Lucev J);(d)in the subsequent case of De Lange v De Lange [2024] FCA 158, the primary judge applied a different test in a case that was factually similar and reached a conclusion that should have been reached in the present case, (e)the primary judge demonstrated Wednesbury unreasonableness.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 16 December 2015, a Deputy District Registrar registered two judgments of the High Court of New Zealand pursuant to s 68 of the Trans-Tasman Proceedings Act (New Zealand judgments). The Deputy District Registrar issued Certificates of Registration in respect of the New Zealand judgments under the Trans-Tasman Proceedings Act. In early 2016, the applicant applied to set aside the registration of the New Zealand judgments, under s 72 of the Trans-Tasman Proceedings Act. That application was dismissed by Griffiths J in LFDB v SM (No 3). A subsequent appeal was dismissed by the Full Court: LFDB v SM [2017] FCAFC 178 (Besanko, Jagot and Lee JJ). By the Application, which was filed on 30 June 2023, the applicant sought an extension of time in which to bring an application under the ADJR Act for review of the Deputy District Registrar’s decision, made on 16 December 2015, to issue the Certificates of Registration under the Trans-Tasman Proceedings Act. The Application was heard by the primary judge on 27 November 2023. On 14 December 2023, the primary judge made orders dismissing the Application. In doing so, his Honour rejected the applicant’s submission that registration of the New Zealand judgments pursuant to the Trans-Tasman Proceedings Act was an exercise of administrative power capable of review under the ADJR Act. As a result, his Honour said that it followed that there would be no utility in extending the time for the applicant to seek judicial review under the ADJR Act and the Application was dismissed. The applicant now seeks leave to appeal the primary judge’s orders. GROUNDS An applicant for leave to appeal must generally demonstrate, first, that the relevant decision is attended with sufficient doubt to warrant its reconsideration on appeal and, second, that substantial injustice would result if leave were refused, assuming the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ). The applicant submitted that leave to appeal should be granted because the primary judge erred in a number of respects. The main grounds, as best they can be understood, on which the applicant submitted error on the part of the primary judge were as follows: (a)the primary judge erred in the classification of the decision exercised by the Deputy District Registrar;(b)the primary judge erred in not considering that the Court did not have jurisdiction in the matter and that the Trans-Tasman Proceeding Act was not applicable;(c)the primary judge erred in not considering the case of Forlongs Furnishings Ltd v Thom [2022] FedCFamC2G 94 (Lucev J);(d)in the subsequent case of De Lange v De Lange [2024] FCA 158, the primary judge applied a different test in a case that was factually similar and reached a conclusion that should have been reached in the present case, (e)the primary judge demonstrated Wednesbury unreasonableness. The applicant addressed these grounds in written submissions and orally at the hearing. To a significant degree, the applicant’s submissions were directed to the merits of the proposed application for review under the ADJR Act or the Deputy District Registrar’s lack of power to register the New Zealand judgments under the Trans-Tasman Proceedings Act. I will come back to the latter issue, later.CONSIDERATION

Ratio Decidendi

Legal Principle Established

The applicant addressed these grounds in written submissions and orally at the hearing. To a significant degree, the applicant’s submissions were directed to the merits of the proposed application for review under the ADJR Act or the Deputy District Registrar’s lack of power to register the New Zealand judgments under the Trans-Tasman Proceedings Act. I will come back to the latter issue, later.CONSIDERATION The purpose of the Trans-Tasman Proceedings Act, as set out in s 3, is to:(a)streamline the process for resolving civil proceedings with a Trans-Tasman element in order to reduce costs and improve efficiency; and(b)minimise existing impediments to enforcing certain New Zealand judgments and regulatory sanctions; and(c)implement the Trans-Tasman Agreement in Australian law. Part 7 of the Trans-Tasman Proceedings Act deals with the enforcement in Australia of specified judgments of New Zealand courts and tribunals. Essentially, to be enforceable in Australia, the judgment has to be a ‘registrable NZ judgment’, which requires satisfaction of the criteria set out in s 66, and it must be registered in an ‘Australian court’: see s 64. ‘Australian court’ is defined to include ‘a federal court’. The power to register a New Zealand judgment is vested in this Court by s 68(1) of the Trans-Tasman Proceedings Act, which provides:An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part. Section 67 of the Trans-Tasman Proceedings Act sets out the application requirements. A registered New Zealand judgment has the same force and effect and may give rise to the same proceedings for enforcement as if the judgment had been given by the Australian court in which it is registered: see s 74. In the primary judgment, the primary judge addressed the applicant’s submissions that the registration of a judgment under s 68(1) was an exercise of administrative, rather than judicial, power that fell within the purview of the ADJR Act. Before the primary judge, the applicant had relied on the decision of Sarah C Derrington J in Herd v Haines [2023] FCA 325 at [11] where her Honour said “[t]he process established under the [Trans-Tasman Proceedings] Act is essentially administrative”. The primary judge held (at PJ [9]) that the above passage in Herd did not assist the applicant’s case because:As the remainder of the paragraph demonstrates, her Honour was referring in the emphasised sentence to the mechanical nature of the process of registering judgments under the TTP Act. The application before her Honour was an application to register a judgment under s 68(1) to which she acceded. Plainly therefore her Honour cannot be taken to have been suggesting that the power was anything but judicial in character. It is my view that there was no error demonstrated in the primary judge’s conclusion at [9] of the primary judgment. The distinguishing feature of the case in Herd was that it was an application to register part only of a New Zealand judgment. It was in that context that Sarah C Derrington J observed that the process established under the Trans-Tasman Proceedings Act was “essentially administrative” and determined that there was no apparent reason why registration of part of a judgment was not permissible under the Trans-Tasman Proceedings Act. In my view, the above passage in Herd, which the applicant sought to rely upon, did not assist the applicant in his case before the primary judge for the reasons set out at [9] of the primary judgment.