MZAPJ v Minister for Immigration and Anor (No.2)
[2018] FCCA 3503
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAPJ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2018] FCCA 3503 |
| Catchwords: PRACTICE AND PROCEDURE – Registrars – effect of Registrars order when made beyond power – procedure to correct record. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.57, 102, 103 |
| Cases cited: Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114 MZAPJ v Minister for Immigration & Anor [2015] FCCA 3638 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138 Powell v Queensland University of Technology [2017] QCA 200 |
| Applicant: | MZAPJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 2579 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 27 July 2018 |
| Date of Last Submission: | 24 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| The Applicant did not appear |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Sparke Helmore |
| Contradictor: | Ms Cameron |
ORDERS
The orders of the registrar made 1 April 2015 be set aside.
The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2579 of 2014
| MZAPJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant, MZAJP, brought proceedings seeking judicial review of a decision of the Refugee Review Tribunal (as it then was known) made on 14 November 2014. The applicant failed to attend court on the first court date (1 April 2015). As a result a Registrar of the court dismissed the application, relying upon r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.
The Minister brings the present application in a case seeking orders setting aside the order made by the Registrar on 1 April 2015, and listing the matter for hearing. The Minister argues that the case remains pending as the Registrar did not have the power to dismiss the proceedings and that as a result the order of the Registrar had no effect.
Background to this Application in a Case
In 2017, the Full Court of the Federal Court found that the instrument delegating judicial power to the Registrars was, when read in light of the Rules as amended in 2006, not sufficient to delegate a power to dismiss an application for non-appearance on the first court date: see Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114. As a result, it is now clear that the Registrar in the present case had no delegated power to dismiss the application for non-appearance at the time the order was made.
Service of application on applicant
The solicitors for the Minister served the applicant by post and e-mail. They received no response to the e-mail that was sent, and the letter was returned to them. The solicitors for the Minister also attempted to telephone the applicant on the mobile telephone number held in the Department's records, however the person that answered the telephone said that they were a high school student and that they had never heard of the applicant.
The address for service and e-mail address used by the applicant in the 2015 proceedings are the last known contact details for the applicant which are held by the Department on its files. Whilst this is circumstantial evidence that the applicant no longer maintains that address, it is also consistent with the applicant having abandoned the proceedings even if they were not brought to an end by the Registrar’s order. However, there is no evidence from the Minister that the applicant has left Australia.
There does not appear to be any further steps that can be taken to serve or even notify the applicant of these proceedings. If the orders of the Registrar were of no effect, the Minister is entitled (under the Rules: see r.6.11(1)) to rely upon the applicant’s address for service in the proceedings, or if there is no address for service, the person’s last known address: see r.6.11(2).
Even if I were to be in error with respect to service having been effected within the terms of the Rules, I would dispense with service relying upon the powers provided for this in the Rules, on the basis that there is no other step that is likely to bring the proceedings to the notice of the applicant: see r.6.14(1).
As a result I am satisfied as to service with respect to the application in a case.
Submissions by way of Contradictor
As one would expect in a busy court like the Federal Circuit Court of Australia (‘the FCCA’), there is a large number of cases in this category: that is, where a Registrar has dismissed applications for non-appearance during the period when the delegation of powers to the Registrars did not include the power to dismiss. Consequently, the outcome of this application will determine the course taken by the Court in determining whether to re-list many hundred cases that have been similarly dismissed. Having regard to the significant consequences of the potential outcome in the proceedings, Counsel was requested by the Deputy Registrar of this Court to appear amicus curiae so that there were submissions by a contradictor in the argument before the Court.
Previous application to ‘reinstate’
In April 2015 the applicant filed an application in a case seeking orders that the case be ‘reinstated’ (presumably by way of an order setting aside the order dismissing the proceedings, which was available under r.16.05 of the Rules as a result of the applicant not appearing at the time that the order was made by the Registrar). The ‘reinstatement’ application was heard on 29 June 2015 by a Judge of the Court, who dismissed the ‘reinstatement’ application on the basis that the applicant did not have reasonable prospects of success in the substantive application: see MZAPJ v Minister for Immigration & Anor [2015] FCCA 3638. No argument was put to the Judge that the orders made by the Registrar were beyond the Registrar’s delegated powers. No appeal was lodged by the applicant.
Whilst it appears that the applicant has abandoned the proceedings, this does not answer the question of whether or not the proceedings remain pending in the Court nor whether the Registrar’s order should nonetheless be set aside. In the Rules there is no provision dealing with proceedings that are abandoned or where no step is taken for a lengthy period. Similarly, as no orders were made in consequence of the ‘reinstatement’ application (as it was no doubt assumed at that time, that the proceedings had been validly dismissed by the Registrar) it could not have cured any defect in the original orders of the Registrar. Indeed, in these proceedings there is no doubt that had the Judge reviewing the Registrar’s decision been alerted to the defect that she would have set the order aside, as her Honour did in BJC16.
Not unimportantly, in the present proceedings, the order of the Registrar cannot be said to have caused an injustice as firstly, the applicant simply failed to attend at court to pursue her case on the first occasion, and the Judge reviewing the dismissal order was not persuaded that the applicant had an arguable case in any event.
The current status of the initiating application turns upon the effect of the order of the Registrar dismissing the application due to the applicant’s non-appearance, at a time when it was beyond the delegated powers of the Registrar.
Counsel for the Minister argued the case on the basis that the order made by the Registrar was ‘void ab initio’. It was argued that there was no legal force in the order of the Registrar and that thus it was ‘void, not voidable’. As a result, Counsel argued, the purported order has no effect and the initiating application remains pending in the Court awaiting a listing date. Whilst the simplicity of the argument is attractive, its consequences give rise to serious concerns.
The Federal Circuit Court of Australia Act 1999 (Cth) (‘the FCCA Act’) goes further, and provides specific power to declare that an order is not invalid:
57 Formal defects not to invalidate
(1) Proceedings in the Federal Circuit Court of Australia are not invalidated by a formal defect or an irregularity, unless the Federal Circuit Court of Australia is of opinion that:
(a) substantial injustice has been caused by the defect or irregularity; and
(b) the injustice cannot be remedied by an order of the Federal Circuit Court of Australia.
(2) The Federal Circuit Court of Australia or a Judge may, on such conditions (if any) as the Federal Circuit Court of Australia or Judge thinks fit, make an order declaring that the proceeding is not invalid:
(a) by reason of a defect that it or he or she considers to be formal; or
(b) by reason of an irregularity.
For present purposes it is enough to note the existence of this rule: there is no need to survey the complex cases on this type of rule.
Orders made by Registrars, not Judges
Whether or not an order of a Judge of this Court, even if made in excess of jurisdiction, may or may not be enforceable until set aside does not answer the question in this case as it concerns the derivative question as to the effect of an order made by a Registrar in excess of their delegated judicial power.
There are two provisions that permit powers to be delegated to Registrars of the court. The first is the limited provision in s.102 of the FCCA Act, which provides for delegations to registrars with respect to the matters listed in s.102(2), which provides:
(2) The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:
(a) the power to dispense with the service of any process of the Federal Circuit Court of Australia;
(b) the power to make orders in relation to substituted service;
(c) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Federal Circuit Court of Australia or of any other person;
(d) the power to make orders in relation to interrogatories;
(e) the power, in proceedings in the Federal Circuit Court of Australia, to make an order adjourning the hearing of the proceedings;
(f) the power to make an order as to costs;
(g) the power to make an order about security for costs;
(h) the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court;
(i) a power of the Federal Circuit Court of Australia prescribed by the Rules of Court;
…
(m) the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;
Section 102 is limited in scope. Section 102(2)(i) must be read as referring to powers prescribed in the rules as exercisable by the Registrars, not simply powers that the Rules prescribe as exercisable by the court or a judge: see BJC16. There is nothing in s.102 to indicate a power on the part of a Registrar to finalise migration proceedings.
The result is that s.102 does not provide a basis for potential delegation of the particular power at issue in this case to the Registrar.
The alternative source of power is that contained in s.103 of the FCCA Act, which provides:
103 Delegation of powers to Registrars
(1) The Rules of Court may delegate to the Registrars any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2).
(2) A power delegated by Rules of Court under subsection (1), when exercised by a Registrar, is taken, for all purposes, to have been exercised by the Federal Circuit Court of Australia or a Judge, as the case requires.
If acting within a delegation contained within the Court Rules, the orders by a Registrar take effect as orders of the court. As the power purportedly exercised by the Registrar in this case had not been delegated by the Rules of court, as contemplated by the provision, that power is not taken to have been exercised by the court or a Judge by force of s.103 of the FCCA Act.
The wording of s.103(2) provides for two slightly different circumstances: firstly, when the power exercised by a Registrar is taken to have been exercised by the court; and secondly when it is taken to have been exercised by a Judge. The result of the section appears to be that the order made by the Registrar (as an officer of the court, and no doubt in good faith) is not taken to be an order of the court under s.103. This leaves little room for a conclusion that acts of Registrars of the court should be taken generally to be acts of the court, similar to the way officers of companies may have apparent authority that may be relied upon even if there is no actual authority, which may well have been the outcome but for the wording of s.103. As a result, it makes no difference whether orders of the court (or Judges thereof) are effective until set aside (regardless of jurisdictional error) as the order in this case is not an order of the court as a result of s.103.
This presents a disconcerting result when one has regard to the tens of thousands of bankruptcy and divorce orders made by Registrars of the court each year, should there be some similar defect discovered with respect to the delegations of judicial powers to one or more Registrars of the court. However, such issues are for government.
Whether the term ‘nullity’ is helpful in the context of this case
Having concluded that the orders in this case cannot be considered orders of the court due to the effect of s.103 of the FCCA Act, the effect of the actions of the Registrar in this case must still be considered, even if they did not take effect as orders of the court.
In Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [46], Gaudron and Gummow JJ said, in the context of a decision of an Administrative Appeals Tribunal:
46. In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as “void”, “voidable”, “invalid”, “vitiated” or, even, as “nullities”. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.
The importance of this insight can be seen when one considers the practical consequences in cases where Registrars act beyond power. Ordinarily a person aggrieved by an order of a Registrar would apply for a review of the decision by a Judge of the court, and if the order were defective it would be set aside by the Judge reviewing the Registrar’s order. In a number of cases an order beyond power has been treated as sufficient to found orders to set it aside or an appeal. Thus, in Re Graham Ross Bendeich Ex Parte: Graham Ross Bendeich [1993] FCA 98; (1993) 113 ALR 702 (1993) 41 FCR 237 an order of a Federal Court Registrar in bankruptcy was made in excess of the Registrar’s delegated authority. Drummond J concluded that the Registrar’s order had to be ‘set aside’. In Re: Neil Glen Horne (Appellant/Husband) and Domenica Horne (Respondent/Wife) [1997] FamCA 7 a decree of a Registrar beyond jurisdiction was of sufficient effect to permit the affected party to lodge and prosecute an appeal against the order. In Hemmett v Market Direct Group Pty Ltd [2018] WASC 214, Vaughan J found that there was a discretion to decline to review an action taken by a Registrar that was arguably beyond power even thought the effect of the action of the Registrar had caused the transfer of a matter to the ‘Inactive Cases List’ in the Magistrates Court of Western Australia. These cases are consistent with the concept of the decisions of the Registrars being without legal effect, but the consequences (entering the order in the court record or entering the case in a particular list) having taken place, and thus needing a separate remedy to rectify the consequential effects.
This practical difference between an action being beyond legal power and its actual consequences were discussed by Greenwood J in Mentink v Registrar of the Australian Register of Ships [2014] FCA 1138 (at [114]) that:
114.…At [144], Hayne J adopts the force of the observations of H W R Wade (“Unlawful Administrative Action: Void or Voidable? Part I” (1967) 83 LQR 499 at 512) that there is “no such thing as voidness in an absolute sense, for the whole question is, void against whom?” and it “makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy”. At [144], Hayne J accepted Wade’s observation (at pp 515-516) that “void” and “voidable” (in the context of administrative acts beyond power) are “indistinguishable in meaning” and the reason is that “no disputed act of a public authority can safely be treated as void in law unless the court can be persuaded to condemn it” [emphasis added].
Greenwood J went on to note (at [119]) that:
119. In the 5th Edition of Judicial Review of Administrative Action (Aronson M and Groves M, Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013)), the authors observe at para 10.210 that “Wade’s view that nothing was wholly void (let alone from the outset) until a court said so was radical in its time, but has now become the orthodox judicial position in Australia and elsewhere” [citations omitted]. ... At para 10.210, the authors also observe that Wade’s view was that voidness was a condition brought about by a court’s authoritative announcement and Wade’s argument was that such an announcement depended upon not only making out the grounds of challenge (in this case, jurisdictional error) but also on satisfying other preconditions or restrictions (relating to standing, time and procedural limitations), and “on avoiding any discretionary grounds available to the court for refusing a judicial remedy”.
In Mentink, Greenwood J considered the effect of an entry in the register of ships that was made by a Registrar in circumstances where the registrar had no power to make the entry. Greenwood J found (at [122]):
122. Once the Supreme Court of Queensland declared the act of the Registrar to have occurred without authority and thus beyond power, the administrative act is treated as having no legal effect from the moment it was made especially since it had the effect of significantly altering the existing rights under the Act of the registered owner of the ship. The Supreme Court of Queensland did not refuse to make a declaration that the administrative act was beyond power, for any discretionary reason. It granted that relief. The Court refused, however, to rectify the Register for discretionary reasons.
The difficulty in Mentink was that although the act of the Registrar was beyond the Registrar’s legal power it nevertheless ‘happened’, that is, the register was altered. Prior to the declaration of invalidity by the Supreme Court ‘things’ happened which arguably or potentially gave rise to rights or contended rights in others. These factors led to his Honour granting leave to the applicant to lodge an appeal to be heard by the Full Court of the Federal Court. The Full Court explained, in Mentink v Registrar of the Australian Register of Ships [2015] FCAFC 150, that:
75. We reject Mr Mentink’s argument that the Registrar’s unauthorised action in closing the registration of Larus II was no decision at all, in the sense of a decision affected by jurisdictional error as explained by Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth(2003) 211 CLR 476 at 506 [76]. If that were so, detailed provisions such as ss 58 and 59, that empower the Registrar and the Court to rectify or make an entry in the Register in circumstances including where the affected entry was wrongly made, would not need to be in the form that the Parliament enacted. McHugh, Gummow, Kirby and Hayne JJ held in Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28; (1998) 194 CLR 355 at 392 [97] that:
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act [Montreal Street Railway Co v Normandin[1917] UKPC 2; [1917] AC 170 at 175; Clayton v Heffron[1960] HCA 92; (1960) 105 CLR 214 at 247; TVW Enterprises Ltd v Duffy [No 3][1985] FCA 382; (1985) 8 FCR 93 at 104-105].
…
80. If an erroneous or wrong entry in the Register were no decision, or of no effect, at all, the Registrar could have ignored it. Yet, s.59(1)(c) created a specific right for a person in Mr Mentink’s position, as well as the Registrar, to apply to a court for an order for rectification and the section created a discretion for, and not an obligation of, the Court to make an order for rectification.
81. In our opinion, the words of s.59(1) evinced an intention of the Parliament that a court could make an order for rectification where, among other circumstances, an entry wrongly existed in the Register, only if the Court considered that such an order were appropriate in the exercise of its judicial discretion.
Whilst the order of the Registrar was beyond power and theoretically of no legal effect, it still had the practical consequences of resulting in an order being entered in the court’s records and the case being removed from the pending cases list. These consequences must still be dealt with in some fashion. This is the practical corollary of the fact that the Registrar has entered an order in the court records, hence the purported exercise of powers by Registrars in the cases referred to above had sufficient effect to create an ‘order’ for the purpose of appeal or review. The question then becomes one of determining what steps, if any, should be taken in circumstances where an order is entered in the court record when there was not delegated judicial power for the Registrar to make that order.
Effect of the Court being a Court of Record
A key consequence of the Registrar’s order in the present case is that it was entered into the court’s records. The relevance of a court being a court of record was considered in Powell v Queensland University of Technology [2017] QCA 200 (8 September 2017) where the Court of Appeal in Queensland considered orders made beyond power in a Tribunal that was established as a court of record. Sofronoff P said:
[90] … it is the second characteristic of courts of record that is significant. It is that the record of a court is conclusive evidence of what is recorded therein.
“A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony: which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself ...”[Blackstone, Commentaries on the Laws of England, (1769), vol 3 at 24]
[91] The Tribunal’s status as a court of record renders it undesirable that its record, which is unquestionably subject to review by the Supreme Court, should contain an order that the Tribunal has no jurisdiction to make.
[92] There may be cases in which the Tribunal ought not to have made an order, as distinct from cases in which it could not make an order. In the former, the discretion conferred upon this Court by the Act to hear appeals based upon errors of law might be properly exercised, in particular circumstances, by refusing relief. However, when the orders made were orders that were beyond the power of the Tribunal to make, it would, at least generally, be inappropriate to refuse relief and to leave the Tribunal’s record in its imperfect state.
Gotterson JA concluded that it was ‘appropriate and necessary … that its record be corrected by setting [the orders] aside’: see [102]. McMurdo JA went so far as to set aside an order that was not subject to an appeal as ‘to allow [it] to stand would allow the record … to misrepresent the true legal position’: see [159].
In this case, and similarly in the other cases where Registrars dismissed the proceedings at a time when appropriate powers had not been delegated to them, it is not appropriate for the court to allow its own record to stand uncorrected, given that the record is not generally open to challenge.
The matters in this category should be listed at the court’s own motion before a judge for the purpose of reviewing the Registrar’s orders (which must be set aside ex debito justicia), and the matters then heard and determined according to law. If the applicant fails to appear presumably the judge will then dismiss the application under r.13.03C(1)(c). If the applicant does appear the judge will then need to consider appropriate case management orders, such as setting the matter for a show cause hearing or making directions for a trial.
In the present case I therefore make orders setting aside the order of the Registrar, and dismiss the proceedings under r.13.03C(1)(c) as a result of the failure of the applicant to appear.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 November 2018
0
12
3