Rosson v Tesoriero

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FEDERAL COURT OF AUSTRALIA

Rosson v Tesoriero [2011] FCA 449

Citation: Rosson v Tesoriero [2011] FCA 449
Parties: DARIN JAMES ROSSON v TONY TESORIERO, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA
File number(s): NSD 183 of 2011
Judge: YATES J
Date of judgment: 6 May 2011
Catchwords: ADMINISTRATIVE LAW – application for judicial review of a decision of a Deputy District Registrar of the Court – discretion to allow an application to be filed without payment of a filing fee – impecunious applicant – proper construction of reg 14(2) of the Federal Court of Australia Regulations 2004 (Cth)
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 35A, 60(1)

Federal Court of Australia Amendment Regulations 2010 (No. 2) (Cth)
Federal Court of Australia Regulations 2004 (Cth) reg 10, reg 14(2)

Cases cited: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421
Date of hearing: 21 March 2011
Date of last submissions: 23 March 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 57
Counsel for the Applicant: Ms R Graycar
Solicitor for the Applicant: Legal Aid NSW
Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 183 of 2011
BETWEEN:

DARIN JAMES ROSSON
Applicant
AND:

TONY TESORIERO, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA
Respondent

JUDGE:

YATES J

DATE OF ORDER:

6 MAY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Time be extended for filing the application dated 22 February 2011 to and including 24 February 2011.

2.The decision of the respondent made on 15 December 2010 to refuse to accept for filing the applicant’s application under s 476A of the Migration Act 1958 (Cth) without the reduced fee being paid, be set aside with effect from the date on which the decision was made.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 183 of 2011
BETWEEN:

DARIN JAMES ROSSON
Applicant
AND:

TONY TESORIERO, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA
Respondent

JUDGE:

YATES J

DATE:

6 MAY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. This is an application for judicial review of a decision of a Deputy District Registrar of the Court to refuse to accept for filing an application under s 476A of the Migration Act 1958 (Cth) (the Migration Act) without the relevant fee (in this case, a reduced fee)…

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Details
Case
[2011] FCA 449
Decision Date

CaseChat Overview and Summary

In Rosson v Tesoriero, the applicant, a New Zealand citizen with a history of criminal convictions and immigration issues in Australia, sought judicial review of a decision by the Deputy District Registrar of the Federal Court of Australia. The crux of the dispute was whether the Registrar had erred in his application of regulation 14(2) of the Federal Court of Australia Regulations 2004 (Cth), which pertains to the acceptance of applications and documents even if the requisite fees are unpaid. The applicant, being impecunious and detained without an Australian visa, argued that he should be exempt from paying the filing fee for his application to review a decision cancelling his visa.

The legal issues before the court were whether the respondent had misinterpreted the scope of the discretion provided under regulation 14(2) and whether he had correctly applied the regulation in the context of the applicant's financial circumstances. Specifically, the applicant contended that the respondent had wrongly concluded that regulation 14(2) did not grant a separate discretion to allow the filing of an application without payment of a fee, that the discretion was not limited to specific situations, and that the respondent had incorrectly considered the applicant's ability to pay the fee when due.

The court found that the respondent had indeed erred in his interpretation and application of regulation 14(2). It held that the regulation confers a broad and general discretion to allow the filing of documents or the provision of services even if the relevant fee is unpaid. This construction was consistent with the plain language of the regulation and did not limit its application to specific situations. The court also noted that the Explanatory Statement accompanying the 2004 Regulations supported this broader interpretation, as it indicated that the regulation was intended to give the court greater discretion to allow proceedings to proceed despite unpaid fees. Consequently, the court set aside the respondent's decision and ordered that the applicant's application be accepted for filing without the reduced fee being paid. The court further extended the time for filing the application to include 24 February 2011.

Orders

Orders of the court

1. Time be extended for filing the application dated 22 February 2011 to and including 24 February 2011.

2. The decision of the respondent made on 15 December 2010 to refuse to accept for filing the applicant’s application under s 476A of the Migration Act 1958 (Cth) without the reduced fee being paid, be set aside with effect from the date on which the decision was made.

Note:

Background

Background to the litigation

For the reasons which follow, I am of the view that the decision should be set aside. I wish to hear the parties further on what, if any, consequential relief should be granted.BACKGROUND The applicant is a New Zealand citizen who arrived in Australia in December 2004. During his time in Australia the applicant was convicted of a number of criminal offences and served a number of custodial sentences. The details of these matters are not important for present purposes. What is important is the fact that a delegate of the Minister for Immigration and Citizenship decided to cancel the applicant’s Australian visa on the ground that the applicant failed the character test prescribed in s 501 of the Migration Act. On 10 November 2010 this decision was affirmed by the Administrative Appeals Tribunal. On 13 December 2010 the applicant applied for a reduced filing fee in relation to the filing of his s 476A application in this Court to review the decision of the Administrative Appeals Tribunal. The application for a reduced filing fee was made pursuant to regs 11A(1)(a) and 11A(1)(c)(iii) of the 2004 Regulations on the basis that the applicant was a person who had been granted legal aid for the proceeding under a legal aid scheme established under State law and that he was then lawfully detained in a public institution. There is no dispute that, at the relevant time, Legal Aid NSW had granted the applicant legal aid for the proceeding and that he was then in immigration detention at the Villawood Immigration Detention Centre. At the same time, the applicant applied to have payment of the reduced fee deferred pursuant to reg 10 of the 2004 Regulations for a period of 12 months or to have his s 476A application accepted for filing pursuant to reg 14(2) of those Regulations, even if the reduced fee was not paid. Each of these applications was based on the fact that, for the foreseeable future, the applicant had no source of income and no assets from which he could pay even the reduced fee. In that connection, the applicant pointed out that, being in immigration detention without an Australian visa, he: (a) had no entitlement to receive Australian social security payments; (b) was not in receipt of any kind of payment from New Zealand, his country of citizenship; and (c) had no right to engage in any paid employment in Australia without committing an offence (see s 235 of the Migration Act), even if that was a practical possibility (which, obviously, it was not). The applicant also pointed out that legal aid was not available to pay the reduced fee on his behalf. The applicant stated that there was no reasonable likelihood of his circumstances changing so as to enable him to pay the fee at any time during the period in which his case was before this Court. He went on to say that even if his s 476A application was successful, there was no reasonable likelihood of his financial circumstances changing so as to enable him to pay the reduced fee before his case had been reconsidered by the Administrative Appeals Tribunal and “a fresh decision made”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Subject to these and some other amendments that are not presently relevant, the system put in place by the 2004 Regulations remains substantially intact. As a result, it remains to be the case that, under reg 14(2), the Court, a Judge or the Registrar can allow the filing of a document or the provision of a service even if the relevant fee is unpaid. That fee (as with other unpaid fees that are due) is nevertheless recoverable by the Commonwealth as a debt due to the Commonwealth after payment has fallen due.THE DECISION UNDER REVIEW As I have noted, although the respondent was satisfied that the applicant met the requirements of reg 11A in relation to eligibility to pay a reduced fee, he was not satisfied that it was appropriate to defer payment of the reduced fee. He also did not think that reg 14(2) could apply in the circumstances. The only matter before me is whether the respondent erred in his decision with respect to the application of reg 14(2) in a way that is amenable to judicial review. In relation to that matter, the respondent’s reasons are captured in the following paragraphs of his written reasons of 20 December 2010. On page four of those reasons the respondent said: In my view sub regulation 14(2) does not of itself grant a separate discretion to file an application. The sub regulation is headed “REGULATION 14 WHAT HAPPENS IF FEES ARE UNPAID”. It supports the proposition that if an applicable fee is not paid then the matter is still on foot and the fee becomes a debt due to the Commonwealth. For example, if an Application is accepted pursuant to a discretion under sub regulation 10(3), on the condition that the fee be payable within 30 days and the Applicant at the end of that period was unable to pay the fee then the proceeding would still be considered validly filed.The Explanatory Statement to sub regulation 14(2) [Statutory Rules 2004 No. 291] seems to indicate that the sub rule was inserted to give the Court the power to exercise its discretion in specific situations and not to give a blanket authority to accept documents without the requisite fee being paid.Also, sub regulation 14(2) appears to contemplate that a Registrar can exercise judicial power under section 35A of the Federal Court of Australia Act 1976. This power is only exercisable in relation to a “proceeding” that is, a matter already commenced and is only exercised in narrow areas of specific delegation by a judge such as in Bankruptcy and Corporations Law matters. The Application in question is not in the area that a Registrar has a delegation therefore, a Registrar would not have the authority to exercise that power. On page five of those reasons the respondent said: However, I must assume that it was the intention of Government when enacting the amendments that it was anticipated that if a litigant to a matter was eligible to pay the reduce [sic] fee then they would be required to pay otherwise there would not have been a need to make the amendments. To defer the payment pursuant to Regulation 10(3) or to allow the filing of an application notwithstanding non payment of the filing fee pursuant to Regulation 14(2) as is requested by Legal Aid would defeat that purpose.

Ratio Decidendi

Legal Principle Established

The applicant contended that this reasoning, and hence the December 2010 decision based on this reasoning, involved a number of errors of law. First, the applicant contended that the respondent erred in concluding that reg 14(2) did not grant a separate discretion to allow the filing of an application without payment of a fee. In that connection the applicant submitted that reg 14(2) conferred a broad discretion which was not limited to “specific situations”. 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 reg 14(2) was a decision of an administrative character. It was implicit in this submission that the exercise of the discretion conferred by reg 14(2) was not limited to the context of exercising power under s 35A of the Federal Court Act. Thirdly, the applicant submitted that the respondent erred in finding that the power conferred by reg 14(2) was circumscribed by a person’s ability to pay the fee when due.CONSIDERATION In my respectful view, the respondent erred in law in his assessment of the nature and scope of the discretion conferred by reg 14(2) for the purpose of making the December 2010 decision. The December 2010 decision thus involved an error of law: s 5(1)(f) of the ADJR Act. First, reg 14(2) confers a broad discretion that is exercisable according to its terms: the Court, a Judge or the Registrar (as defined) may allow the filing of a document or the provision of a service even if the relevant fee is unpaid. To so construe reg 14(2) is to give the provision its ordinary and grammatical meaning which is consistent and harmonious with the other provisions of the 2004 Regulations and which can be intelligibly applied to the subject matter with which it deals: Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 305; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384. Within the 2004 Regulations, reg 14(2) is a separate source of power under which a favourable exercise of discretion would have permitted the filing of the applicant’s s 476A application even if the relevant fee could not be paid, and was not paid, as otherwise required by reg 9 and reg 14(1). Secondly, the discretion conferred by reg 14(2) is not one that is limited to particular situations. There is nothing in the wording of reg 14 or of the 2004 Regulations more generally that would so confine the scope of the power thereby conferred. In reasoning that reg 14(2) was limited to particular situations the respondent did not identify the scope of what those situations would be. It is implicit in his conclusion, however, that he did not regard the present case to be one of those situations. The respondent sought to draw support for his general conclusion from the Explanatory Statement accompanying the 2004 Regulations. However, a consideration of the Explanatory Statement shows that it does not provide the support which the respondent thought it did. Indeed, if anything, it supports the construction which I have found. Relevantly, the Explanatory Statement states:[Regulation] 14(2) enables the Court, a [J]udge or the Registrar, to allow the filing of a document or provision of a service even if the fee is unpaid. This change allows the Court to deal with the situation where more than one party is liable to pay the fee (that is, it has been apportioned between the parties) and one of those parties does not pay. It also give the Court greater discretion generally to allow proceedings to go ahead despite fees being unpaid. Under subregulation 14(4) unpaid fees are recoverable as a debt due to the Commonwealth.[Emphasis added]