MARKOV and MARKOV

[2009] FCWA 102

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MARKOV and MARKOV [2009] FCWA 102

CORAM: CROOKS J

HEARD: WRITTEN SUBMISSIONS

DELIVERED : 7 AUGUST 2009

FILE NO/S: PT 6636 of 2006

BETWEEN: MS MARKOV

Applicant

AND

MR MARKOV
Respondent

Catchwords:

Power of Registrar to make order for disclosure - not by consent
Review of Registrar's decision

Legislation:

Family Law Act 1975, s 44, s 45, s 48, s 55, s 57, s 98, s 101, s 117, Pt XI Div 2
Family Court Act 1997, s 44, s 215, s 237, Pt 8 Div 2
Family Court Rules 1998, r 25,
Family Law Rules 2004, r 1.09-r 1.14, r 11.01, r 20.07, Pt 15.3

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms T Farmer

Respondent: Mr M Manning

Solicitors:

Applicant: Marks & Sands

Respondent: Frichot & Frichot

Case(s) referred to in judgment(s):

Goodwin v. Phillips (1908) 7 CLR 1

Smith v The Queen [1994] HCA 60

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1The issue for determination relates to the powers of a Registrar of this Court to make orders for disclosure other than by consent.

Relevant background

2On 15 August 2008 Registrar Kaeser, a Registrar of this Court, made the following order at a Procedural Conference:

“12.Not by consent the applicant provide copies of the documents referred to on the attached document entitled “Further Disclosure Required to be made by Applicant Wife” such disclosure to be made within 21 days of today.”

3On 23 September the Registrar made the following order at a Pre-Trial Conference:

“NOT BY CONSENT BUT NOT OPPOSED

1.The time within which the Applicant complies with paragraph 12 of the Orders dated 15 August 2008 be extended to close of Registry on 15 October 2008.”

4On 17 November 2008 the Respondent filed an application to enforce disclosure of documents pursuant to the orders of 15 August and 23 September 2008. The Applicant filed a response on 11 December 2008 and the matter was argued on 16 January 2009 before his Honour Fleming M.

5At that hearing before his Honour, counsel for the Applicant submitted that the order made by the Registrar on 15 August 2008 was invalid as the Registrar did not have power to make the order.

6His Honour Fleming M ordered that written submissions be filed on the issue of jurisdiction and after hearing further oral submissions on 17 February, his Honour reserved his decision. His Honour’s reasons for decision were forwarded to the solicitors for each party under cover of a letter dated 17 April 2009.

7His Honour determined that the Applicant’s challenge to the validity of the Registrar’s order should be dealt with as a review of that order by a Judge pursuant to r 25 of the Family Court Rules 1998 (hereinafter “the Rules”).

8I agree with his Honour’s decision in that regard.

9Rules 25(2) and (3) require that an application for review be filed within 28 days from the making of the order subject to review.

10The Respondent, in his submissions, seeks that I refuse to deal with the jurisdiction question because the Applicant has not filed an application to extend the time to apply for the review and submits the Applicant “would be unlikely to obtain such an extension”.

11Rule 1.4 of the Family Law Rules 2004 provides as follows:

“The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”

12Were I to require the filing of an application seeking leave to file an application for review out of time that application would need to be supported by an affidavit from the Applicant. The Respondent would then be required to file a response and a responding affidavit and the Court would then hear argument on that issue. If leave is not granted the matter would be over. If, however, leave was granted the Applicant would presumably be permitted to file a Form 2 in accordance with r 25 of the Rules which may require a further hearing and involve the parties in further delay and unnecessary costs.

13The issue of the validity of the Registrar’s order has been the subject of oral and written submissions. The question is one of significant importance. Ultimately, whether I should insist on strict compliance with the time limitation and requirements set out in r 25(2) and r 25(3) must depend on where the justice of the case lies. In my opinion, justice will be best achieved by the making of a decision on the merits of arguments advanced by the parties and dispensing with the requirements of r 25(2) and r 25(3).

Relevant statutory framework

14I now turn to consider the relevant statutory framework in relation to the issue the subject of this review.

15Section 33 of the Family Court Act deals with the delegation of powers to Registrars – FLA s 37A and provides as follows:

33(1) [Definitions]

In this section –

"Registrar" (Repealed by No 35 of 2006, Pt 3, Div 8 [172].)

"delegated power" means a power delegated under subsection (2).

33(2) [Rules] Subject to this section, rules may provide for and in relation to the delegation to the Registrars, or to any class of Registrar, of all or any of the powers of the Court, except this power of delegation.

33(3) [Powers which cannot be delegated] The power of the Court to make –

(a)a decree of dissolution of marriage in proceedings that are defended;

(b)a decree of nullity of marriage;

(c)a declaration as to the validity of a marriage or the dissolution or annulment of a marriage;

(d)an order that is –

(i)a residence order;

(ii)a contact order;

(iii)a specific issues order conferring responsibility for the long-term or day-to-day care, welfare and development of a child; or

(iv)an order in relation to the welfare of a child; or

(e)an order setting aside a registered award under section 65Q or 65R,

and which is not an order until further order, an order made in undefended proceedings or an order made with the consent of all the parties to the proceedings,

cannot be delegated to a Registrar.

16Rule 24 of the Family Court Rules deals with those powers of the Court which have been delegated to Registrars and provides as follows:

24For the purposes of section 33, the following powers of the Court are delegated to each Principal Registrar, Registrar and Deputy Registrar –

(a)the powers conferred under a provision –

(i)of the Family Law Act referred to in column 1 of the Table to this paragraph; and

(ii)of the Family Law Rules referred to in Column 2 of the Table to this paragraph; and

(iii)of the Family Court Act referred to in Column 3 of the Table to this paragraph;

Family Law Act	Family Law Rules	Family Court Act
s 44(1C)	r 1.09 to 1.14	s 44
s 45	s 215

s 48	r 11.01	Pt 8 Division 2
s 55(2)	Pt 15.3	S 237
s 55A	r 20.07
s 57
s 98A
s 101
s 117
Pt XI Division 2

(b)the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;

(c)(Omitted)

(d)the power to make an order under section 22 of the Prisons Act 1981.

17Included in those powers delegated to the Registrar in r 24 of the Family Court Rules, is the Court’s power to make orders under r 1.10 of the Family Law Rules which provides as follows:

“RULE 1.10 THE COURT MAY MAKE ORDERS

1.10(1)Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

1.10(2)When making an order the court may:

(a)impose terms and conditions;

(b)make a consequential order;

(c)specify the consequences of failure to comply with the order; and

(d)take into account whether a party has complied with a pre-action procedure.

Applicant’s position

18It is the applicant’s case that paragraph 12 of the orders made by the Registrar on 15 August 2008 “was ultra vires, that is, beyond the legal power or authority of the Registrar.”

19The Applicant’s written submissions dated 30 January 2009 include the following:

“12.The applicant submits that in all of the circumstances, and given there has been no specific delegation of power to the Registrars of the Family Court of Western Australia in relation to Chapter 13, and specifically Rule 13.22, the Registrar had no power to make the order that he did on 15 August 2008.

13.In the powers delegated to the Registrar, the only section or rule as a delegated power which the Registrar could reasonably rely upon to make the order that he did is Rule 1.10.

14.In this case, a reliance upon that general provision would neutralise the effect of the specific delegation of powers to the Registrars, carefully set out in Rule 24 of the Family Court Rules.

15.This principle is summarised in the maxim generalia specialibus non derogant (“general things do not derogate from special things”). In other words, where there is a conflict between specific and general provisions, the general must yield to the particular. This maxim has been applied in various cases.

18.In this case, the specific delegation of powers to the Registrars of the Family Court of Western Australia does not include the delegation of powers in relation to making orders, not by consent, in relation to issues of disclosure.”

20The applicant further submits the inclusion of the specific delegations in r 24 of the Rules, invalidates or “neutralises” the more general delegation in r 1.10.

21The applicant refers in her submission to the decision of O’Connor J in Goodwin v. Phillips (1908) 7 CLR 1 at page 14 where his Honour said:

“Where there is a general provision which, if applied in its entirety, would neutralise a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far as it is inconsistent with the special provision, must be deemed not to apply.”

22The applicant also relies upon the more recent decision of the High Court in Smith v The Queen [1994] HCA 60 where Mason CJ, Dawson, Gaudren and McHugh JJ said at 348:

“ ‘… where there is a conflict between general and specific provisions, the specific provision prevails (generalia specialibus non derogant).’ (Cited with approval in Hoffman v Chief of Army [2004] FCAFC 148).”

Respondent’s position

23The Respondent submits inter alia that the order of the Registrar made on 15 August 2008 is clearly within the delegated power of r 1.10 and the review is without merit.

Discussion and conclusion

24The generalia specialibus approach is only brought into operation where there are two inconsistent provisions which cannot be reconciled as a mater of ordinary interpretation. (See paragraph 4.31 Statutory Interpretation in Australia, 6^th Edition DC Pearce, RS Geddes.)

25Thus, if a general power is conferred without limitation but a special power is expressed to be subject to some limitation or qualification, the general power cannot be used to overcome the limitations or qualifications which are the subject of the special power.

26In the absence of such inconsistency, however, special powers can comfortably coexist with general powers.

27In the present case the general power provided to the Registrar is found in r 1.10 and the special powers provided to the Registrar include those found in r 11.01, concerning case management, Pt 15.3 concerning subpoenas and r 20.07, concerning enforcement.

28There is no special power delegated to the Registrar concerning orders for disclosure.

29The Registrar has made orders for disclosure which, in my opinion, he was authorised to make pursuant to the general power found in r 1.10.

30In order to effectively challenge the validity of the Registrar’s order based on the generalia specialibus rule, it is necessary for the Applicant to satisfy me there is an irreconcilable conflict between the operation of two powers concerning the same subject matter.

31In the absence of a special power provided to the Registrar to make orders for disclosure, there can be no conflict between a special power and the general power utilized by the Registrar to make the order on 5 August 2008. Accordingly, in my opinion, there is no proper basis for challenging the power of the Registrar to make the order under review.

32At paragraph 20 of the Applicant’s written submissions, she raises the following further argument supporting the review:

“In any event the order as made by Registrar Kaeser did not comply with the provisions of Rule 13.22, or Chapter 13 of the Family Law Rules.”

33Rule 13.22 provides the Court with power to make orders for disclosure and pursuant to the delegated r 1.10, orders can be made on the Court’s own initiative, unless a legislative provision states otherwise.

34In the absence of any particulars setting out the basis for the Applicant’s submission on this point, I am not satisfied the Registrar’s order for disclosure was inappropriate in the circumstances.

35For these reasons, the application to review the Registrar’s order made 5 August 2008 shall be dismissed.

Proposed orders

1.The provisions of r 25(2) and r 25(3) of the Family Court Rules be dispensed with.

2.The enforcement application and response be remitted to the learned Magistrate for further hearing.

I certify that the preceding [35] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate