SINGH v Minister for Immigration
[2017] FCCA 522
•22 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 522 |
| Catchwords: PRACTICE AND PROCEDURE – Whether registrar had power to dismiss for non-appearance. |
| Legislation: Federal Circuit Court Act 1999, ss.15, 102(1),(2),(6), 103(1),(2),(7) Federal Circuit Court Rules 2001, rr.10.01, 13.03C, 20.00A Federal Court of Australia Act 1976, s.35A(3) |
| Cases cited: Owners of the Ship, Shin Kobe Maru v Empire Sipping Co Inc (1994) 181 CLR 404; (1994) 125 ALR 1; (1994) 68 ALJR 907; [1994] HCA 54 |
| Applicant: | GAGANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1145 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 15 March 2017 |
| Date of last submission: | 15 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 22 March 2017 |
REPRESENTATION
| Advocate for the applicant: | In person by telephone |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Chris Tran |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
DECLARATION
The order made by a registrar on 7 December 2016 that the application filed on 1 June 2016 be dismissed for non-appearance was invalid.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1145 of 2016
| GAGANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 7 December 2016, a registrar of this court dismissed a migration matter for non-appearance at its first court date. The dismissal was expressed to be pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (“the Rules”). Later in December 2016, the registrars of this court in the Melbourne registry formed the view that that they did not have power to dismiss applications for non-appearance. On 5 January 2017, the applicant filed an application for reinstatement.
The question before the court is whether the registrar of this court had power to dismiss the matter for non-appearance under r.13.03C(1)(c) of the Rules or under any other provision.
The Minister filed written submissions and made oral submissions. The applicant attended the hearing on the question by telephone from India. However, he did not make any written or oral submissions on the question before the court. He was more concerned to explain his non-appearance on 7 December 2016. However, as I attempted to explain to him, that was possibly a question for another day.
The Minister submitted that a registrar of this court has power to dismiss an application for non-appearance at a first court date but not otherwise. The power was said to be in both r.13.03C(1)(c) and r.10.01 of the Rules.
Rule 13.03C of the Rules provides that:
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:
(a)adjourn the hearing to a specific date or generally;
(b)order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii) any other steps that the Court directs are taken;
(c)if the absent party is an applicant--dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross-claim--dismiss the interlocutory application or cross-claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
The Minister conceded that r.13.03C does not confer powers on registrars, as it only refers to “the Court”, which means the judges of the court.
However, the Minister noted that the Rules made special provision for first court dates in r.10.01 of the Rules, which is as follows:
(1)At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.
(2)Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
(3)The Court or a Registrar may make orders or directions in relation to the following:
(a)the manner and sufficiency of service;
(b)the amendment of documents;
(c)defining of issues;
(d)the filing of affidavits;
(e)cross-claims;
(f)the joinder of parties;
(g)primary dispute resolution;
(h)the admissibility of affidavits;
(i)discovery and inspection of documents;
(j)interrogatories;
(k)inspections of real or personal property;
(l)admissions of fact or of documents;
(m)the giving of particulars;
(n)the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);
(o)expert evidence and court experts;
(p)transfer of proceedings;
(q)costs;
(r)hearing date;
(s)any other matter that the Court or Registrar considers appropriate.
Rule 20.00A of the Rules contains a table that sets out certain powers that may be exercised by registrars. The power to dismiss for non-appearance is not included in them. However, as the Minister pointed out, the table in r.20.00A of the Rules does not preclude other parts of the Rules giving registrars powers.
The Minister noted that, in Owners of the Ship, Shin Kobe Maru v Empire Sipping Co Inc (1994) 181 CLR 404 at 421; (1994) 125 ALR 1; (1994) 68 ALJR 907; [1994] HCA 54 the High Court said:
“[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words” (citation omitted)
The Minister also noted that, in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-82; (1998) 153 ALR 490; (1998) 72 ALJR 841; [1998] 8 Leg Rep 41; [1998] HCA 28 the High Court said:
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (citations omitted)
The Minister acknowledged the tension between r.13.03C, which is confined to “the Court” and concerns all hearings including a first court date, and r.10.01, which extends to registrars but only applies to first court dates. The Minister submitted that the tension between r.13.03C and r.10.01 of the Rules could be resolved by having regard to s.102 and s.103 of the Federal Circuit Court of Australia Act 1999.
Subsections 102(1), (2) and (6) of the Federal Circuit Court of Australia Act 1999 (“the Act”) provide as follows:
(1)The object of this section is to allow certain powers of the Federal Circuit Court of Australia to be exercised by a Registrar.
(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;
(j)the power, in family law or child support proceedings, to direct a party to the proceedings to answer particular questions;
(k)the power to make orders under the following provisions of the Family Law Act 1975 :
(i) sections 11F and 11G;
(ii) sections 13C and 13D;
(iii) subsection 65LA(1);
(iv) paragraph 70NEB(1)(a);
(ka)the power to direct a family consultant to give a report under section 62G of the Family Law Act 1975;
(l)the power, in family law or child support proceedings, to make:
(i) an order under section 66Q, 67E, 77 or 90SG of the Family Law Act 1975 ; or
(ii) an order for the payment of maintenance pending the disposal of the proceedings;
(m)the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;
(n)the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders under the Family Law Act 1975;
(o)the power to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act 1975.
…
(6)The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of subsection (2), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.
Subsections 103(1), (2) and (7) of the Act provide as follows:
(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.
…
(7)The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of a delegation under subsection (1), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.
The Minister submitted that the tension between r.10.01 and r.13.03C of the Rules is dissolved by the application of s.102(6) of the Act which provides that:
The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of subsection (2), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.
Subsection 102(2) of the Act provides that:
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:
…
(i)a power of the Federal Circuit Court of Australia prescribed by the Rules of Court;
….
The Minister submitted that:
Rule 13.03C is a provision of the Rules that “relate[s] to the exercise by the Federal Circuit Court of Australia of a power [rule 10.01] that is, because of subsection (2), exercisable by a Registrar”, and rule 13.03C therefore “appl[ies] in relation to the exercise of the power by a Registrar under this section [namely, rule 10.01 power] as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.”
The Minister then said:
Put another way, as a Registrar is empowered to hear a first court date, any powers relating to first court dates which are limited to “the Court” are taken to include a Registrar. That includes rule 13.03C.
Subsection 102(6) of the Act is virtually identical to s 103(7) of the Act. They are both virtually identical to s.35A(3) of the Federal Court of Australia Act 1976. There does not appear to be any authority that explains the meaning of those provisions.
The Minister has interpreted s.102(6) of the Act and its analogues to mean:
a)where a law gives power A to the court; and
b)power A is related to power B, which registrars already have; then
c)the law also gives power A to the registrars.
That is not what s.102(6) of the Act says and it is not what it means.
Subsection 102(6) of the Act and its analogues do not give additional powers to the court or a registrar. Subsection 102(6) of the Act and its analogues mean that any conditions on the exercise of a power by a judge of the court also apply when a registrar exercises that power.
For example, if a Commonwealth law said that the court was required to hear certain types of matter in camera, s.102(6) of the Act would require registrars to also hear that type of matter in camera.
The Minister’s alternative position was that, although r.10.01 of the Rules could be regarded as the more specific power in respect of first returns and r.13.03C of the Rules could be regarded as the more specific power in respect of non-appearance, r.10.01 of the Rules should be regarded as the leading provision in relation to first court dates and r.13.03C should not be regarded as abstracting the power of the registrar to act when a person is absent from a first return.
The Minister’s first point in support of his alternative position was that the text of the Rules was equally consistent with r.10.01 of the Rules being the leading provision and with r.13.03C of the Rules being the leading provision. I do not accept that submission. I consider that r.13.03C of the Rules is clearly the leading provision in relation to dismissals for non-appearance, and the general powers in r.10.01 of the Rules that may be exercised by registrars at first returns do not derogate from that.
The Minister’s second point in support of his alternative position was that the original version of the Rules gave registrars express power to dismiss for non-appearance. The Minister submitted that later amendments to the Rules, which appear to have removed the registrars’ power to dismiss for non-appearance, were not intended to have that effect. I do not accept that the mere fact that the registrars had power to dismiss for non-appearance at an earlier point in time means that the Rules can be interpreted to give them that power now.
The Minister’s third point in support of his alternative position was that denying the registrars the power to dismiss for non-appearance under r.13.03C(1)(c) of the Rules would logically deny the registrars power to do any of the things mentioned in r.13.03C. Moreover, if an applicant did not appear, the Minister argued, the registrars would be unable to even adjourn the matter. However, this is not an insurmountable issue. Under s.104(4) of the Act, the registrar can refer the matter to a judge, which is what they have been doing since late December 2016.
The Minister’s fourth point in support of his alternative position was that, under r.10.01(2) of the Rules, registrars are expressly empowered to hear and determine matters at the first return. The Minister argued that it was necessarily implicit in the power to hear and determine matters that the registrars have power to dismiss for non-appearance. It does not seem to me that a power to hear and determine extends to dismissing for non-appearance. There is a qualitative difference between hearing and determining a matter and dismissing it for non-appearance without any consideration of the merits.
The Minister also argued that the power in r.10.01(1) of the Rules to give orders for the conduct of the proceedings also gave the registrars power to dismiss for non-appearance. I do not accept that making an order dismissing a proceeding is making an order for its conduct. Orders and directions for the conduct of a matter concern the manner in which a matter is to be run. An order dismissing a matter for non-appearance terminates it.
However, the Minister said that a dismissal for non-appearance was not final, because the applicant could seek reinstatement, and therefore an order dismissing for non-appearance was an order for the conduct of the proceeding. I do not accept that argument. While the order dismissing for non-appearance stands, it does terminate the proceeding. Therefore, it is not an order for the conduct of the proceeding.
The Minister noted further that s.15 of the Act empowers the court to make such orders as it considers appropriate. The Minister argued that, for the reasons explained previously, “the Court” should be understood as meaning registrars as well. However, this argument seems to rely on the s.106(2) point. For the reasons discussed above, it is without substance.
All in all, I am not persuaded by the Minister’s arguments. It seems to me that the registrars were correct in concluding that the Rules in their present form do not give the registrars power to dismiss for non-appearance. That is not to say that the registrars should not be given such a power by an appropriate amendment to the Rules.
Since drafting the above, it has come to my attention that another judge of this court, in Uddin v Minister for Immigration & Anor [2017] FCCA 500, has determined that the registrars of this court at relevant times had the power to dismiss for non-appearance. The arguments presented in the current matter do not appear to have been relied on in Uddin. I remain of the view that the correct conclusion, based on the arguments that were put to me, is as stated above.
I appreciate that this decision will have practical consequences. However, the rule of law requires that the courts do not contort the law to avoid inconvenience. Recall, for example, the shockwaves caused by the High Court’s decision in Wakim, Re; Ex parte McNally (1998) 20 LegReg 7b; (1999) 198 CLR 511; (1999) 163 ALR 270; (1999) 73 ALJR 839; (1999) 10 Leg Rep 2; (1999) 31 ACSR 99; (1999) 24 Fam LR 669; (1999) 17 ACLC 1055; [1999] HCA 27.
There will be a declaration that the order dismissing the matter for non-appearance was invalid. The effect of the declaration will be that the matter is still on foot and needs to be listed for final hearing. I will make directions for the final hearing after hearing from the parties.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 22 March 2017
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