Redden and Mayes and Anor
[2013] FMCAfam 272
•27 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REDDEN & MAYES & ANOR | [2013] FMCAfam 272 |
| FAMILY LAW – ICL informed by registry of the Court that he is obliged to pay fee prescribed by the Regulation in respect of the issue of subpoenas at his request – application to Court to order or direct or declare that ICL exempt from payment of such fees – whether Court has power to make such an order – application refused. |
| Family Law Act 1975, ss.4, 37, 39, 65, 68, 116 Federal Magistrates Act 1999, ss.90, 102, 103, 104, 120 Family Law (Fees) Regulation 2012, Part 2, Sch 1, regs.1.03, 2.02, 2.03, 2.04, 2.05, 2.11 & 2.14 Federal Magistrates Court Rules, r.1.05 Family Law Rules 2004, r.8.02 Federal Court Rules O 46 r.7A Administrative Decisions (Judicial Review) Act 1977 |
| Croft & Croft [2013] FMCAfam 182 Bennet & Carter (No.2) [2013] FMCAfam 215 Re: P(a child); Separate Representative (1993) FLC 92-376 Bennet & Bennet (1991) FLC 92-191 Urquhart & Urquhart (1982) FLC 91-206 The Marriage of Heard & De Laine 20 Fam LR 315 Myers & Myers [2011] FMCAfam 1104 Vibbard & Garcia [2012] FAMCAFC 114 Bizuneh v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 42 Letts v The Commonwealth (1985) 8 FCR 585 Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 Manalakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162 Rahman v Hodge [2012] FCA 68 Rosson v Tesoriero [2011] FCA 449 |
| Applicant: | MR REDDEN |
| First Respondent: | MS MAYES |
| Second Respondent: | INDEPENDENT CHILDREN'S LAWYER |
| File Number: | ADC 1418 of 2012 |
| Judgment of: | Lindsay FM |
| Hearing date: | 7 March 2013 |
| Date of Last Submission: | 7 March 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 27 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms West |
| Solicitors for the Applicant: | Ian Charman |
| Counsel for the First Respondent: | Mr Finlayson |
| Solicitors for the First Respondent: | Allen Burtt Legal Services |
| Counsel for the Independent Children’s Lawyer: | Mr McQuade |
| Solicitors Independent Children’s Lawyer: | Adey Lawyers |
ORDERS
The oral application of the Independent Children’s Lawyer on 7 March 2013 for a declaration or ruling or order that the Independent Children’s Lawyer be exempt from the payment of the prescribed fee when causing a Registrar of the Court to issue a subpoena on his behalf is refused.
IT IS NOTED that publication of this judgment under the pseudonym Redden & Mayes & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1418 of 2012
| MR REDDEN |
Applicant
And
| MS MAYES |
First Respondent
| INDEPENDENT CHILDREN'S LAWYER |
Second Respondent
REASONS FOR JUDGMENT
These are parenting proceedings conducted pursuant to Part VII of the Family Law Act 1975 (“the Family Law Act”). They commenced on 17 April 2012. The trial commenced before me on 21 January 2013 and was adjourned part-heard on 22 January 2013.
When adjourning the matter I made an appointment pursuant to s.68L of the Family Law Act for an Independent Children’s Lawyer to represent the interests of the child to whom the proceedings relate namely [X] born [in] 2006.
At the time I made the appointment I indicated my expectation that the person appointed to act for the child would procure independent information from third party sources such as schools and doctors to assist me in adjudicating the parenting dispute, and, if necessary, issue subpoenas for that purpose.
On 5 February 2013 Mr Timothy Adey (hereinafter “the ICL”) filed a Notice of Address for Service on behalf of the child.
On 7 March 2013 I conducted a directions hearing in relation to the part-heard trial. Mr McQuade of Counsel appeared at that directions hearing on behalf of the ICL.
Mr McQuade made an oral application on behalf of the ICL for a declaration or ruling or order that the ICL be exempt from the payment of the prescribed fee when causing a Registrar of the Court to issue a subpoena on his behalf.
I reserved my determination of that application.
I have come to the conclusion that I do not have the power to make such a declaration or ruling or order.
I do have a power to make an order permitting the subpoena to be filed without payment of the fee pursuant to a power in the Regulation discussed hereunder (s.2.11(3) of the Regulation) but that does not amount to a power to exempt a party or person from payment of the fee and it does not permit me to make a declaration or ruling or order relating to a particular party or person having a general exemption from payment of subpoena fees in a particular case or generally.
In support of his application Mr McQuade relied upon the decision of Burchardt FM in Croft & Croft [2013] FMCAfam 182. In that decision His Honour made an order exempting the ICL from subpoena fees. A decision to the same effect was made by Harman FM in Bennet & Carter (No.2) [2013] FMCAfam 215.
In neither of those decisions, however, was the question of the power of the Court to make such an order or ruling or declaration the subject of any argument. There does not appear to have been a contradictor in either matter.
To the extent that each of those decisions implicitly recognises the existence of such power, I respectfully disagree with them.
Section 120(1) of the Federal Magistrates Act 1999 (“the Federal Magistrates Act”) provides:
(1)The Governor-General may make regulations prescribing matters:
(a)required or permitted by this Act to be prescribed; or
(b)necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Section 120(3) of the Federal Magistrates Act provides:
(3) The regulations may make provision for or in relation to the following:
(a) fees to be paid in respect of either or both of the following:
(i) proceedings in the Federal Magistrates Court;
(ii) the service or the execution of the process of the Federal Magistrates Court by officers of the Federal Magistrates Court;
(b)exemptions from fees covered by paragraph (a);
(c)the waiver, remission or refund of fees covered by paragraph (a).
Proceedings under the Family Law Act can be brought in the Federal Magistrates Court in respect of a matrimonial cause (other than those proceedings referred to in s.4(1)(a)(ii) or (b) of the Family Law Act) pursuant to s.39(1A) of the Family Law Act.
On 1 January 2013 the Family Law (Fees) Regulation 2012 (“the Regulation”) came into effect. The Regulation provided what the Explanatory Statement issued by the Attorney-General referred to as a “single court fees regulation in family law” applying to proceedings under the Family Law Act whether instituted in the Family Court, the Federal Magistrates Court or other courts exercising a jurisdiction under the Family Law Act.
Part 2 sets out matters relating to fees and s.2.02 provides that Schedule 1 to the Regulation sets out the fees payable for filing of certain documents for the provision of the service.
Schedule 1 includes a fee for issuing a subpoena. The fee is $50.
Section 2.03(1)(b) provides that the fee for the issuing of a subpoena is payable by the person who requests that the subpoena be issued, though s.2.03(2)(b) enables the Court in which the proceedings are heard to order that another party to the proceedings is liable to pay the fee instead of (inter alia) the person who requested the issue of the subpoena.
Section 2.04 provides:
(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:
(a)the person has been granted legal aid under a legal aid scheme or service:
(i) established under a law of the Commonwealth or of a State or Territory; or
(ii) approved by the Attorney-General;
for the proceeding for which the fee would otherwise be payable;
(b)the person is the holder of any of the following cards issued by the Commonwealth:
(i) a health care card;
(ii) a pensioner concession card;
(iii) a Commonwealth seniors health card;
(iv) any other card that certifies the holder's entitlement to Commonwealth health concessions;
(c)the person is serving a sentence of imprisonment or is otherwise detained in a public institution;
(d)the person is younger than 18;
(e)the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme.
Section 2.05 goes on to provide for an exemption for the payment of the fee if a Registrar or authorised officer is of the opinion that the payment of the fee would cause financial hardship.
It will be noted that s.2.04 gives no discretion to a court exercising jurisdiction in the proceedings or to an authorised officer of the court in respect of the exemption. It simply provides that the exemption will apply if one of the conditions for the exemption have been satisfied.
For completeness I note that authorised officers are defined in s.1.03 of the Regulation as follows:
In this regulation:
authorised officer , in relation to a power or function, means:
(a) in relation to the Federal Magistrates Court-the following:
(i)an officer of that court authorised by the Chief Executive Officer of that court to exercise the power or carry out the function;
(ii)an officer of another court performing the function under an arrangement under section 90 of the Federal Magistrates Act;
(iii)an employee of an agency or organisation performing the function under an arrangement under section 91 of that Act
I proceed on the assumption that written authorisations have been made conferring authority on certain registry staff members to exercise certain functions under section 2 e.g. to determine whether a person is entitled to exemption because of financial hardship pursuant to s.2.05.
I do not know whether specific authorisations have been made in respect of the general exemption provision. If they have not, that may be because, on the face of that sub-paragraph, no exercise of a decision-making power is required.
The issue that has arisen in this case and in the cases referred to above is whether an ICL such as Mr Adey in this case is entitled to the exemption from paying a fee on the issue of a subpoena pursuant to s.2.04 because he has been granted legal aid under a legal aid scheme or service established under the law of the Commonwealth or of a State or Territory or approved by the Attorney General.
Mr McQuade informs me of his instructions from Mr Adey that the relevant officer of the registry had determined that Mr Adey is not entitled to the exemption of paying a fee when he requests that the registry issues a subpoena at his request.
When I refer to the relevant officer of the registry I have no particular officer in mind but he will be an authorised officer referred to in s.1.03 of the Regulation. He may be a person appointed by the Family Court. Such a person would have the duties, powers and functions as are given to him or her by the Family Law Act, the Rules of the Family Court, the Chief Judge of the Family Court or the Principal Registrar of the Family Court pursuant to s.37 of the Family Law Act. This is because, pursuant to s.90 of the Federal Magistrates Act, the Chief Federal Magistrate may arrange with the chief judicial officer of another Australian court or an officer or officers of that court to perform on behalf of the Federal Magistrates Court certain functions including, pursuant to sub-section (1)(a) of the receipt of documents to be lodged with or filed in the Federal Magistrates Court. Such a document would include a subpoena.
I assume that the subpoena Mr Adey has requested the Registry issue (or that he intends to request the Registry to issue) will be issued by such an officer.
I note that s.2.03 of the Regulation imposing the liability to pay the fee refers to the “person who requested the subpoena be issued” in sub-paragraph 1, but then, in sub-paragraph 2 gives the Court or a Registrar the power to order a “party” to the proceeding to be liable to pay the fee instead of the person referred to in sub-paragraph 1. Even there the Regulation clearly distinguishes between a person and a party.
The fee is payable by the person who requests that the subpoena be issued. That may be a party (if he or she is self represented); in a strict sense it may be a legal practitioner acting on behalf of a party (and that would accord with the commercial realities of the collection of the fee). In the case of an ICL it should be taken to be the ICL himself or herself, the child being unlikely to have “requested” the issue of the subpoena. But the fee will be payable by a person if he is a party in any event.
The exemption referred to in s.2.04 is given to a “person” who satisfies the criteria in the sub-paragraph. The expression “party” is not used. The question as to whether the child in this proceeding or Mr Adey himself is a “party” to the proceeding is a matter that does not need to be determined to establish whether either one of them is entitled to the exemption. If they were parties they would still be persons who requested the issue of the subpoena. The entitlement to the exemption will not be determined upon the basis of an evaluation of whether or not ICLs or children are parties.
There was a detailed discussion of the peculiarities associated with the role of the ICL by the Full Court of the Family Court of Australia in Re: P(a child); Separate Representative (1993) FLC 92-376. There had been a discussion of the specific question as to whether the child is a party to the proceedings in the earlier case of Bennet & Bennet (1991) FLC 92-191 at 78,260. Indeed, an earlier Full Court decision of Urquhart & Urquhart (1982) FLC 91-206 had determined that children were not parties to the proceedings and therefore had no right to appeal an order made in those proceedings but the Full Court in Bennet found it unnecessary to determine whether Urquart was still good law. The Full Court in Re: P(a child) decided, however, that an ICL was entitled to bring an appeal on behalf of the child but reached that conclusion whilst still not specifically determining the question as to whether an ICL was a party. This issue was discussed in Re: P(a child) at 79,892 – 79,895.
If the ICL (or the child himself or herself for that matter) can be taken to be a “person” (and it is difficult to discern how they would not fit that description) they would be entitled to the exemption from paying fees at the time of filing the subpoena but only provided that they have been granted legal aid under the legal aid scheme or service referred to in s.2.04(1)(a) of the Regulation.
The power of the Court to appoint an ICL is in s.68L of the Family Law Act.
There is no Rule of this Court which deals with the practical aspects of the appointment of the ICL following such an order.
However, Rule 1.05 of the Rules of this Court provide:
(1)It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2)However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984 , in whole or in part and modified or dispensed with, as necessary.
(3)Without limiting subrule (2):
(a)the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support proceedings; and
(b)the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
There is a provision of the Family Law Rules 2004 which deals with the consequences of the order being made and it is Rule 8.02. Sub-rule 2 of that Rule provides:
(2)If the court makes an order for the appointment of an independent children's lawyer:
(a)it may request that the representation be arranged by a legal aid body that is a relevant authority within the meaning of subsection 116C (5) of the Act; and
(b)it may order that the costs of the independent children's lawyer be met by a party.
That Rule reflects the invariable practice of this Court in this Registry. An order for the appointment for an ICL is made and a request is made to the Legal Services Commission of South Australia (a body which receives both Commonwealth and State funding) to arrange such an appointment. There is a degree of informality about the arrangement. There is no statutory provision and there is no provision in the Rules of this Court or of the Family Court as to what the remedy would be if the Legal Services Commission refused such a request. The limits of the Court’s powers to do more than make the appointment of the ICL were discussed by the Full Court of the Family Court of Australia in The Marriage of Heard & De Laine 20 Fam LR 315 at [320] – [321]. The Legal Services Commission had terminated the funding of the separate representative of the child during the course of an inordinately long trial. The Full Court of the Family Court refused an application by the husband to order that the Legal Services Commission continue to fund a separate representative for the child in the proceedings. It did soon the basis that it had no power to make that order.
It should also be recognised that s.65 of the Family Law Act, which contained the power of appointment of a separate representative when that decision was made, and which was the precursor to s.68L, was expressed in wider terms in that it gave the Court the power, when making an order for the appointment, to “make such other orders as it considers necessary for the purpose of securing such separate representation”. Even those broader powers were deemed insufficient to do more than make the appointment and request the funding of it.
The “relevant authority” is defined by s.116C(5) of the Family Law Act to mean a person, authority or body (including an authority or body established by or under a law of a State or Territory) that, from time to time receives relevant funding. “Relevant funding” is defined by the same sub-section to mean funding received whether directly or indirectly by such person, authority or body for the purposes of, or in connection with, the provision of legal assistance by the person, authority or body in connection with matters arising under the Family Law Act.
It will be noted that such a definition is not identical to the description of the legal aid scheme or service in s.2.04 but the differences in definition are not significant or material.
I have no contradictor in the proceedings before me. The presence of such a contradictor might illumine important matters that I have overlooked but my examination of the Regulation suggests that there is no reason why an ICL should not be entitled to the exemption, provided that such ICL (or the child for whom they act, if we take the view that the child is the person who has requested the issue of the subpoena) has been granted legal aid. Both the legal practitioner to whom monies are paid by a legal aid authority and the client whom they represent can both logically be described (and both are commonly described) as persons to whom legal aid has been granted.
That is the preliminary view to which I have arrived and it is the view as to the substance of the issue that was shared by the learned Federal Magistrates in the cases referred to in paragraph 10 above. In Croft Burchardt FM referred to his having made an order exempting the ICL from subpoena fees. In Bennet & Carter Harman FM expressed his adjudication in terms of a “declaration” perhaps signifying that a formal refusal of the exemption in that case had not yet been made but was anticipated.
The difficulty I have, however, is in ascertaining the existence of any power that enables me to adjudicate the issue of the entitlement of the ICL to the exemption.
I have no evidence that the officer who refused the exemption to the ICL was a Registrar of the Court. (Indeed, I am not even specifically informed as to whether the matter has reached the stage of such refusal or whether it is merely anticipated on the basis of prior refusals that the exemption would be refused.)
This Court has the power to review certain decisions of the Registrars of the Court pursuant to s.104 of the Federal Magistrates Act but that applies only in relation to powers that are delegated to the Registrars by this Court pursuant to s.103 of that Act or given to them under s.102 of that Act but, as indicated, there is no evidence that the Registrar himself or herself has refused the exemption.
The issues discussed by Halligan FM in Myers & Myers [2011] FMCAfam 1104 do not arise here. His Honour determined in that case that the decision of a Registrar to provide a date for hearing of an application was to be seen as the exercise of a power by the Registrar to shorten or abridge time and that such a power, being a power referred to in s.102 of the Federal Magistrates Act, was amenable to review in this Court under s.104 of that Act. His Honour’s reasoning in that regard was specifically adopted by the Full Court of the Family Court in Vibbard & Garcia [2012] FamCAFC 114.
There has been no involvement of a Registrar in the circumstances relating to the insistence of the Registry that subpoena fees be paid by the ICL in this case, or at least no evidence of such involvement has been put before me in affidavit form or submission.
Three Federal Court decisions referred to by Halligan FM in Myers are also ultimately not relevant to the determination of this matter.
Bizuneh v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCAFC 42 involved an application to the Full Court of the Federal Court for leave to appeal against a direction of a Judge of that Court under Order 46 Rule 7A of the Rules of the Federal Court to a Registrar not to accept a document for filing. That Rule enabled a Registrar to seek the direction of a Judge as to whether or not a document presented for filing in the Court should be refused (it also gave the Registrar the power to make that decision without seeking such direction). The Court determined that no judicial act was carried out by either the Registrar or by the Judge. As far as the Registrar’s decision to seek a direction was concerned, it was administrative in character. As far as the Judge’s direction was concerned the Court said at [16]:
It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.
Obviously no direction of the judicial officer arises in the circumstances of this case. I have already noted the absence of any evidence that the Registrar of this Court has or proposes to be involved in the decision to seek payment of subpoena fees from the ICL. The decision is one of an authorised officer of the Court.
Manalakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162 was also a case in which, after obtaining a direction from a Judge, a document was refused for filing pursuant to Order 46 Rule 7A of the Federal Court Rules. Once again, the Full Court determined that neither the Registrar nor the Judge were acting in any way that involved the exercise of judicial power. Specifically the Registrar was not exercising any of the powers identified in s.35A(1) of the Federal Court of Australia Act. Adopting the view of the Full Court in Bizuneh and distinguishing a different view taken by Toohey J in Letts v The Commonwealth (1985) 8 FCR 585 a case where the Registrar of the High Court of Australia sought a direction from a Justice of the High Court pursuant to a High Court Rule analogous to Order 46 Rule 7A, the Full Court found that an appeal did not lie from the direction of the Judge because it did not possess the necessary attributes of a judicial as opposed to an administrative decision.
As noted above, in the instant case no exercise of power by a Registrar let alone a judicial officer is involved. The decision is in my view an administrative decision by an authorised officer of the Court.
I note that s.2.14 of the Regulation provides a mechanism for persons who are the subject of a decision relating to the payment of a fee under s.2.05 or s.2.10 or s.2.06(2) or 2.12(7) to apply to the Administrative Appeals Tribunal for a review of the decision. No such mechanism is available in respect of s.2.04.
Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 was an appeal under the Administrative Decisions (Judicial Review) Act 1977 heard by the Full Court of the Federal Court of Australia. Once again it involved the exercise of the powers of the Registrar of the Federal Court under Order 46 Rule 7A. In that case, the Registrar refused to accept the document for filing without seeking a direction from a Judge of the Court. An appeal to a single Judge of the Court was unsuccessful. Leave to appeal was sought from the Full Court. The Court followed the reasoning of the Full Court in Manalakis in characterising the decision of the Registrar as administrative in character and refused the grant of leave. Obiter dicta, it made the following observations about such a decision in relation to the availability of a remedy under the Administrative Decisions Judicial Review Act:
Section 5 of the ADJR Act entitles a person who is aggrieved by a decision to which that Act applies to apply to this Court or to the Federal Magistrates Court for an order of review of a decision on any one or more of the grounds enumerated therein. Section 3(1) of the ADJR Act defines the words ‘decision to which this Act applies’ as being a decision of an administrative character, inter alia, made under an Act of the Commonwealth or by a Commonwealth authority or by an officer of the Commonwealth under legislation defined under ‘enactment’ in s 3. There is no reason why a decision by an administrative officer under the Court Act would not satisfy the requirement of such definition. Nor is such a decision one which would be excluded from review by Schedule 1 to the Court Act (referred to in the definition of ‘decision to which this Act applies’ at (d) in s 3(1) of the ADJR Act).
Satchithanantham was followed most recently by Perram J in Rahman v Hodge [2012] FCA 68 at [5].
In the event that a Registrar of this Court in some future matter becomes involved in or is responsible for a refusal to give an ICL exemption under s.2.04 of the Regulation, a determination will then need to be made whether in that event the Registrar was or was not exercising a power under s.102 or s.103 of the Federal Magistrates Act. This was the exercise that Halligan FM had to undertake in Myers in relation to a decision in that case not to give a matter the early listing the applicant was seeking; it was a matter of characterising the decision and then determining whether such decision was one made in the exercise of powers given by the Federal Magistrates Act to the Registrar or delegated to him by the Court.
No requirement for such characterisation arises here.
I should also mention the case of Rosson v Tesoriero [2011] FCA 449, because it involved a review of a decision of the Registrar of the Federal Court not to accept a document for filing because the fee prescribed by the relevant Regulations had not been paid. The relevant Regulation gave the Registrar a power to accept a document for filing even though the prescribed fee had not been paid. The power was similar to that given by s.2.11 of the Regulation under consideration here. There was no power to waive the fee; the fee had already been reduced by the Registrar.
His Honour notes at [33]:
Secondly, the applicant submitted that, to the extent that the respondent’s reasons may have suggested otherwise, any decision by him concerning the exercise of the discretion conferred by ref 14(2) was a decision of an administrative character. It was implicit in this submission that the exercise of the discretion conferred by ref 14(2) was not limited to the context of exercising power under s 35A of the Federal Court Act.
but then concluded at [54]:
I do not find it necessary to dwell on the prospect raised in the applicant’s submissions. There is no challenge by the respondent concerning the application of the ADJR Act to the 2010 decision on this basis. I am satisfied, in any event, that the December 2010 decision was of an administrative character.
In summary therefore:
a)There is no power given to this Court under the Regulation or under the Federal Magistrates Act or Family Law Act to exempt a party or a person from payment of a fee if they do not fall into the category of persons described in s.2.04 or, in the case of financial hardship s.2.05;
b)There is a power under the Regulation (s.2.11(3)) to allow a document to be filed even if the fee is not paid. It does not constitute a waiver of the fee. It is a power that can only be exercised apparently on a filing event by filing event basis. The power certainly does not extend to a category of persons from paying the filing fee in a particular cause let alone exempt a category of persons from paying a filing fee in any cause (I leave to one side the circumstance that this power is granted to the Court only by Regulation);
c)There does not appear to be any reason why an ICL should not be entitled to the exemption from payment of the filing fee provided they establish that they have been granted legal aid in the manner described in the Regulation which would presumably be a matter that was relatively easy to establish;
d)A decision, made by an authorised officer other than a Registrar, not to permit an ICL to be entitled to the exemption is an administrative decision and may well be reviewable under the provisions of the Administrative Decisions (Judicial Review) Act;
e)In the event that a Registrar of this Court is involved in or responsible for the decision not to permit the ICL to be entitled to the exemption then the decision may be amenable to review under s.103 of the Federal Magistrates Act.
In any event I am not satisfied I have the power to make the order sought by the ICL in this case, which was to order his exemption from the payment of filing fees on the subpoenas he was proposing to issue at my request. It is not clear to me why the ICL is said to be not entitled to the exemption but for the reasons that I have given I am unable to identify a source of power to grant the ICL the remedy he seeks.
I order accordingly.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 27 March 2013
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