Little, J.D. v Registrar of the High Court
[1990] FCA 320
•22 JUNE 1990
Re: JOHN DAVID LITTLE
And: REGISTRAR OF THE HIGH COURT
No. V G147 of 1990
FED No. 320
Administrative Law - High Court and Federal Judiciary
96 ALR 448
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.(1)
CATCHWORDS
Administrative Law - Administrative decisions judicial review legislation - Administrative Decisions (Judicial Review) Act 1977 (Cth) - "Decision of an administrative character" - Decision of Registrar of the High Court to strike name out of Register of Practitioners.
High Court and Federal Judiciary - Judicial power - Administrative power distinguished - Registrar of High Court - Striking of name out of Register of Practitioners.
Judiciary Act 1903 - Part VIIIA
Evans v. Friemann (1982) 35 ALR 428
Farbenfabriken Bayer A.G. v. Bayer Pharca Pty. Ltd. (1950) 101 CLR 652
Letts v. Commonwealth (1985) 8 FCR 585
The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49
The Queen v. Davison (1954) 90 CLR 353
The Queen v. Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1
HEARING
MELBOURNE
#DATE 22:6:1990
Applicant in person
Counsel for the Respondent : Mr. R.R.S. Tracey
Solicitor for the Respondent : Australian Government Solicitor
JUDGE1
Objection to the competency of an application under the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision made by the respondent.
The decision in respect of which an order of review is sought was specified in the originating application as "the respondent's decision of 27 March 1990 to strike the applicant's name off the Register of Practitioners kept under section 55C of the Judiciary Act 1903". Section 55C is in Part VIIIA of that Act, of which the first three sections read:
"PART VIIIA - LEGAL PRACTITIONERS 55A. A person who has been admitted to practice as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be. 55B. (1) Subject to this section, a person who -
(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or
(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory, has the like entitlement to practise in any federal court.
(2) A person is not entitled to practise in a federal court as a solicitor by reason of paragraph
(b) of the last preceding sub-section unless -
(a) he has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or
(b) he practises as a solicitor in the Territory and his sole or principal place of business as a solicitor is in the Territory.
(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of sub-section (1) unless his name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.
(4) A person who is, by virtue of this section, entitled to practise as a barrister or solicitor, or as both, in any federal court has a right of audience in any court of a State in relation to the exercise of federal jurisdiction by that court.
(5) The Chief Justice of the Supreme Court of a State may direct the Registrar or other proper officer of that Supreme Court to keep a Register of Practitioners for the purposes of sub-section (4) and, where such a Register is kept in a State, a person is not entitled, in a court of that State, to the right of audience referred to in sub-section (4) unless he is registered in that Register.
(6) Where a Register is kept in a State in accordance with sub-section (5), a person who satisfies the Registrar or other officer keeping the Register that he is a person referred to in sub-section (4) is entitled to be registered in that Register.
(7) Where it is proved to the satisfaction of the Supreme Court of a State constituted by 2 or more Judges that a person who is registered in the Register kept in that State in accordance with sub-section (5) has been guilty of conduct that justifies it in so doing, the Supreme Court may order that person's registration be cancelled or be suspended for a specified period, but the Supreme Court may, at any time, order that the registration of the person be restored or that the suspension be terminated.
(8) The Registrar or other proper officer of the Supreme Court shall make such alterations and notations in a Register kept by him as are required by reason of orders of the Supreme Court under sub-section (7).
(9) Notwithstanding sub-section (6), where the registration of a person has been cancelled in accordance with sub-section (7) and has not been restored, or is for the time being suspended, that person is not entitled again to be registered in the Register except pursuant to an order under sub-section (7). 55C.(1) For the purposes of section 55B, the Registrar of the High Court shall cause a Register of Practitioners to be kept at the Registry of the High Court.
(2) Where it is shown to the satisfaction of the Registrar that a person would, but for subsection
(3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Registrar shall cause the name of the person, and the capacity in which he is to be entitled to practise, to be entered in the Register of Practitioners.
(3) Where, otherwise than by reason of an order by the High Court under sub-section (5), the Registrar is satisfied that a person whose name appears in the Register of Practitioners -
(a) is not for the time being entitled by reason of the last preceding section -
(i) to practise in federal courts, or
(ii) to practise in federal courts in a capacity specified in the Register; or
(b) would, but for sub-section (3) of the last preceding section, be for the time being entitled by reason of that section to practise in federal courts in a capacity not specified in the Register, the Registrar shall cause the particulars in the Register in relation to the person to be struck out or amended, as the case requires.
(4) Where the Registrar is satisfied that a person whose name appears in the Register of Practitioners has died, the Registrar shall cause the particulars in the Register in relation to the person to be struck out.
(5) Where it is proved to the satisfaction of the High Court that a person whose name appears in the Register of Practitioners has been guilty of conduct that justifies it in so doing, the High Court may -
(a) order that the person be not entitled to practise in federal courts and that his name be struck off the Register; or
(b) order that the person's entitlement to practise in federal courts be suspended for a specified period, but the High Court may at any time, by order, revoke or vary such an order.
(6) Where the High Court makes an order under the last preceding sub-section, the Registrar shall cause such entries or amendments to be made in the Register of Practitioners as are necessary to give effect to, or show the effect of, the order.
(7) Where the Registrar causes an entry to be made in the Register of Practitioners, or causes an entry in the Register to be struck out or amended, he shall cause the ground on which, and the date upon which, the entry is so made, struck out or amended to be noted in the Register."
Section 55D makes provision with respect to entitlement to practise in a Territory other than the Northern Territory. Nothing in the section applies in relation to practice in the Northern Territory or in a federal court. The last section in Part VIIIA, s.55E, makes provision with respect to the Australian Government Solicitor. The respondent's decision, in respect of which the application is made, is described by the respondent in a letter dated 27 March 1990 from the respondent to the applicant:
. . . . "I am satisfied that you are not entitled to practise either as a Barrister or Solicitor or as both in Victoria, and therefore have no entitlement to practise in a like capacity in federal courts.
I have accordingly caused your particulars in the Register to be struck out, with the effect that you are now no longer entitled to practise in federal courts."
The evidence establishes that it was upon his entitlement to practise as a barrister and solicitor in the Supreme Court of Victoria that the applicant rested his claim to remain on the Register of Practitioners. The ground specified in the notice of objection to competency filed under O.54 R.4 is that the decision sought to be reviewed is not of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977.
Mr. Tracey of counsel for the respondent submitted that in deciding whether to exercise the power conferred on him by s.55C(3)(a)(i) the Registrar of the High Court was exercising judicial power in his capacity as a part of the organisation through which the powers and jurisdiction of the High Court are exercised. It was submitted, and I accept, that there is no constitutional incapacity or impediment by reason of which the jurisdiction of the High Court of Australia or of another federal court created by the Parliament might not be exercised by an officer of the court who is not a judge of the court: The Commonwealth v. Hospital Contribution Fund (1982) 150 CLR 49 at 64, 66. It was submitted, and I accept, that the respondent is such an officer : High Court of Australia Act 1979, s.26. It was submitted, and I accept, that the characterisation of a legislatively conferred function as judicial or administrative may turn on - or at least be influenced by - the character of the principal function performed by the person or institution to whom or to which the function to be characterised has been assigned : Evans v. Friemann (1981) 35 ALR 428 at 433; The Queen v. Quinn; Ex parte Consolidated Food Corporation (1977) 138 CLR 1. And it was submitted, and I accept, that when in 1927 the power now conferred by s.55C(3) was first conferred on the Registrar of the High Court control of the right to practise as a barrister or a solicitor in the States had long been a function committed to the Supreme Courts of the States and, before federation, to the Supreme Courts of the Australian colonies, and that the characterisation of a function as judicial or administrative may be influenced by the circumstance that such a function, or similar functions, have been historically associated with one or the other branch of government : The Queen v. Davison (1954) 90 CLR 353.
Upon those submissions Mr. Tracey grounded the argument that, although the principal functions of the Registrar of the High Court could not be characterised as judicial, he was an officer forming part of the organisation of the High Court to whom had been committed a function historically committed in this country to the superior courts and exhibiting the essential elements of judicial determination : one which results in the affecting of a right by force of the determination.
At its first enactment the Judiciary Act 1903 included the following provision:
"49.(1) Any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practice in any federal Court.
(2) Provided that before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and the Principal Registrar shall thereupon enter his name in a Register of Practitioners to be kept at the Principal Registry.
(3) A copy of the Register shall be kept at every District Registry.
(4) The High Court may direct the name of any person to be struck off the Register upon proof that he has been guilty of conduct which renders him unfit to be allowed to continue to practise as a barrister or solicitor, or that he has been deprived by the Supreme Court of the State, by virtue of his right to practise wherein he was registered, of the right to practise in that State as a barrister or solicitor."
By s.6 of the Judiciary Act 1927 s.49 was amended to read thus:
"49.(1) Any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any federal Court or in any Court of a Territory under the control of the Commonwealth.
(2) Provided that before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and the Principal Registrar shall thereupon enter his name in a Register of Practitioners to be kept at the Principal Registry.
(3) A copy of the Register shall be kept at every District Registry.
(4) The High Court may direct the name of any person to be struck off the Register upon proof that he has been guilty of conduct which renders him unfit to be allowed to continue to practise as a barrister or solicitor.
(5) Upon proof that any person has been deprived by the Supreme Court of the State, by virtue of his right to practise wherein he was registered, of the right to practise in that State as a barrister or solicitor, the Principal Registrar shall strike the name of that person off the Register of Practitioners of the High Court."
The right to practise in a federal Court or in a Court of a Territory under the control of the Commonwealth which s.49 conferred was a right which the Commonwealth Parliament attached to an entitlement to practise in a State, and was not conditioned upon entry of the name of the person on whom the right was conferred in the Register or upon any specified determination that the right existed. Entry on the Register was no more than an administrative means of recording the existence of the right. And even if it be assumed that, before the 1927 amendment, a direction of the High Court for striking off the Register, "upon proof . . . . that he has been deprived by the Supreme Court of the State, by virtue of his right to practise wherein he was registered, of the right to practise in that State as a barrister or solicitor", was given in exercise of judicial power - as to which it is, I think, unnecessary to express an opinion - the function conferred upon the Registrar in 1927 by sub-section 49(5) is not thereby shown, in my opinion, to be a judicial function. The entitlement to practise was not then, as it now is by s.55B(3), conditioned upon the existence of an entry in the Register, and would not, as I think, have been extinguished by the Registrar's exercise of the power conferred by s.49(5) to strike the name off the Register. However that may have been, the present provisions do give to the Registrar's exercise of any of the powers conferred by sub-sections (2) and (3) of s.55C an effect on entitlement to practise - by creating or extinguishing or modifying the entitlement. The determination of the Registrar that such a power will be exercised therefore does not lack the essential characteristic of judicial power to which I have referred. And, like the determinations in question in The Queen v. Quinn; Ex parte Consolidated Foods Corporation, supra, the determinations here in question were, as I have assumed, the subject of judicial power, conferred on the High Court by s.49(4) of the Judiciary Act 1903 before the amendment of 1927. But, like the power conferred in the same sentence which constituted s.23(1) of the Trade Marks Act 1955 on both the High Court and the Registrar of Trade Marks, the powers conferred on the Registrar of the High Court do not in my opinion fall within a class so clearly and distinctively appertaining to one branch of government as to be incapable of exercise by another. It may in my opinion be said of the rights affected by the exercise of the powers conferred by sub-section 55C(3) what Jacobs J., in whose reasons five other members of the High Court concurred, said of the rights affected by an order made by the Registrar of Trade Marks under s.23(1) of the Trade Marks Act 1955 that a trade mark be removed from the Register of Trade Marks (138 CLR at 10):
"The rights involved spring from the statute which governs their creation and continuance. The Registrar is given the administration of the statute. It is his administrative duty to keep the register in the state which the legislature has prescribed. In so doing he must make decisions not only upon what should or should not be placed but also upon what should remain on the register in accordance with the statutory prescriptions."
Gibbs J. cited the observation of Dixon C.J. in Farbenfabriken Bayer A.G. v. Bayer Pharca Pty. Ltd. (1950) 101 CLR 652 at 660 that "words which might otherwise be sufficient to confer judicial power may be governed by the context as well as by the character of the body or person upon whom the power is conferred and may be construed as going no further than granting administrative power" and added (138 CLR at 6):
"The fact that the grant of power is contained in one compendious section does not mean that the nature of the power must remain the same although the character of the functionary called on to exercise it is different."
I have acknowledged that control of the right to practise as a barrister or a solicitor has been exercised in this country by courts. Concerning what he called the "historical approach to the question whether a power is exclusively a judicial power" Jacobs J. observed in Quinn's Case (138 CLR at 12):
"If the legislation requires the exercise of a power to determine questions the determination of which will affect what are traditionally regarded as basic legal rights, the judicial nature of the power springs from the effect which the exercise of the decision-making function under the legislation will have upon the legal rights rather than from the history of similar legislation reposing the function in a judicial tribunal."
If the right of a legally qualified person to have audience in the courts of his country be assumed to be a basic legal right, yet exercise of the powers conferred by s.55C(3) does not in my opinion have upon that right an effect of a kind which would influence to a conclusion that they are judicial powers. Subject to the provisions of s.55A and s.55C(5), the legislative scheme embodied in the first three sections of Part VIIIA of the Judiciary Act 1903 is to commit control of the right to practise in federal courts to the Supreme Courts of the States and Territories. The right to practise in federal courts will thus, subject to s.55A and s.55C(5), be gained and lost and modified in accordance with the operation of the judicially supervised legislative schemes for the control of that right in force in the States and Territories. The Register of Practitioners which s.55C(3) authorises and requires the Registrar of the High Court to amend is directed by s.55C(1) to be kept for the purposes of s.55B. The amendments authorised and required by s.55C(3) to be made are to be made only so that the exercise by the Supreme Courts of the States and Territories of their powers to control the right to practise in those States and Territories is accurately reflected and, by force of s.55B(3), given effect in relation to the right to practise in federal courts. None of the powers conferred by s.55C(3), thus considered, can in my opinion be thought to be, on historical grounds, judicial power.
Reliance was placed on the opinion which Toohey J. expressed in Letts v. Commonwealth (1985) 8 FCR 585 at 587; 62 ALR 517 at 519-520 that a decision by a Registrar of the High Court to seek the direction of a Justice if a writ, process or commission appears to him on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding was not a decision of an administrative character within the meaning of the Administrative Decisions (Judicial Review) Act 1977. Order 58 Rule 4(3) requires a Registrar to seek that direction if that appears to him. His Honour said:
"The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. 'Although he was not a member of the court he was . . . part of the organisation through which the powers and jurisdiction of the court were exercised . . . ': Commonwealth of Australia v. Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs C.J. at 59. Order 58, r3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court."
It is in my opinion sufficient to say that there is no relevant similarity between the function ordained by O.58 R.4(3) and any of the functions ordained by s.55C(3).
There is nothing in the legislative scheme to suggest that Parliament contemplated, much less provided for, review by, or appeal to, the High Court in respect of the Registrar's exercise of the powers conferred on him by s.55C(3). Nor, so far as I am aware, has the High Court itself made any such provision. If it were conceived that the judicial power of the Court was being exercised under the subsection, some such provision, beyond that which s.75(V) of the Constitution might be thought to afford, would have been expected.
My conclusion is that the decision in respect of which an order of review is sought is "a decision of an administrative character", within the meaning of that phrase in the Administrative Decisions (Judicial Review) Act 1977. The objection to competency will be overruled.
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