Tait v HARRIS
[2003] FMCA 54
•27 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAIT v HARRIS | [2003] FMCA 54 |
| ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act – review of High Court District Registrar’s refusal to file special leave application – whether administrative or judicial – whether decision – no ground for review made out – discretionary considerations – application dismissed. Administrative Decisions (Judicial Review) Act1977, ss.3(1), 5(1) Evans v Friedmann (1981) 35 ALR 428 |
| Applicant: | WILLIAM TAIT |
| Respondent: | ELISA HARRIS (a Deputy Registrar of the High Court of Australia) |
| File No: | BZ316 of 2002 |
| Delivered on: | 27 February 2003 |
| Delivered at: | Brisbane |
| Hearing Date: | By written submissions received 8 August 2002 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Applicant: | Appeared unrepresented (by telephone) |
| Respondent: | No appearance |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BZ316 of 2002
| WILLIAM TAIT |
Applicant
And
| ELISA HARRIS (a Deputy Registrar of the High Court of Australia) |
Respondent
REASONS FOR JUDGMENT
Introduction
On 20 May 2002 the Applicant WILLIAM TAIT filed an application under the Administrative Decisions (Judicial Review) Act 1977 (“AD (JR) Act”) against a Deputy Registrar of the High Court of Australia, ELISA HARRIS, in her official capacity.
The Applicant represented himself and was given leave to appear from Townsville via telephone link. There was no appearance by or on behalf of the Respondent, this Court, through its Registrar, having received a letter dated 9 July 2002, indicating that the Respondent would
“not be participating in the litigation and will abide by any order of the Court save as to costs.”
Issue
The substantive issue arises from the decision by the Respondent (in her official capacity) communicated by a letter dated 8 July 2002 to refuse to issue or file a document received at the Brisbane office of the High Court Registry on 20 May 2002.
Jurisdiction
When the matter was initially heard by me on 16 July 2002, I directed that the Applicant was to file and serve any written submissions relating to:
a)The jurisdiction of this Court to entertain the current application
b)The appropriate relief
c)The accrued jurisdiction of the Court and, if founded, the relief sought when exercising that accrued jurisdiction.
The handwritten submissions were received on 6 August 2002
Background
This Application is the most recent application in a long journey of litigation undertaken by the Applicant that has included:-
a)a tenancy application filed in the Small Claims Tribunal of Queensland at Townsville.
b)an application to review the decision of the Tribunal, such application being heard by the Chief Justice of Queensland. The Application was, it seems, dismissed.
c)An Appeal to the Queensland Court of Appeal.
d)An attempt to file a document in the High Court of Australia seeking special leave to Appeal.
On or about the 23 April, 2002 the Applicant forwarded to the High Court Registry hand written documents purporting to be:-
a)An application for special leave to appeal from a number of decisions of the Queensland Court of Appeal and single Justices of that Court.
b)An accompanying Affidavit.
c)An appearance slip Notice.
d)A Notice of Constitutional matters.
e)An application for fee exemption or waiver.
By letter dated the 1 May 2002 the Respondent Deputy Registrar advised the Applicant that:-
“The application for special leave to appeal has not been accepted for filing for the following reasons:
1. An application for special leave to appeal must be from one judgement only. I note that you have applied for special leave to appeal from four different judgements, only one of which is a judgement of the Court of Appeal.
In relation to the judgements of a single judge of the Supreme Court, you should exhaust all appellate avenues in that court in relation to those judgements before applying for special leave to appeal to the High Court.
2. Pursuant to Order 69A subrule 2(2), the application for special leave should be accompanied by a copy of the reasons for judgement and order of the Court of Appeal, and of the single judge from whose decision you appealed to the Court of Appeal. Any other reasons for decision given by a decision-maker in the proceedings should also be included.
3. Order 69A rule 3(1) provides that an application for special leave to appeal should be filed within 28 days after the judgement below was pronounced. I note that the Court of appeal judgement referred to in you application was given on 11 December 2001 and thus your application for special leave to appeal from this judgement is out of time. You should apply, in part 3 of your application, for an order that the requirements of Order 69A subrule 3(1) be dispensed with, and you should file an affidavit addressing only the facts and circumstances relating to the delay. Otherwise, no affidavit should be filed in support of the application. All of your argument must be contained in your summary of argument (form 62), which, along with your draft notice of appeal (form 65), must be filed within 28 days after the filing of your application. In this respect, I note that you have exhibited a summary of argument to your affidavit presented for filing with the application. The summary of argument should be filed as a separate document and not as and exhibit to an affidavit. The summary of argument must not exceed 10 pages.
4. There is no provision in the High Court Rules for the filing of an application by mail. You must attend in person or have someone attend on your behalf at the Brisbane office of the Registry for the filing of the application. Please note, however, that the application in its current form would not be accepted for filing even if it were filed in person.
5. The application for waiver is in the incorrect form and I enclose a copy of the correct form.”
This is the “decision” which the Applicant seeks to review in these proceedings.
Statutory jurisdiction
Section 5(1) of AD(JR) Act provides that a person who is aggrieved by a decision to which this Act applies may apply to this Court for a review of this decision.
Section 3(1) requires the applicable decision to be one:-
“of an administrative character”
made under an enactment.
Application
In addition to seeking an order for review under the AD(JR) Act, the Applicant at different parts of his lengthy submission asserts that this Court should exercise the accrued or associated jurisdiction of this Court to:-
“hear and determine the application for special leave; grant any appropriate relief in respect thereto; and, hear and determine any subsequent appeal to the High Court; and, grant any appropriate relief with respect thereto”.
I can deal with that application very simply. The substantive proceedings under the AD(JR) Act invoke a specific jurisdiction. It is a novel suggestion that in some way this Court could exercise not only power to hear a High Court leave application but to grant it and then determine an appeal. Such an assertion is fundamentally and legally flawed.
Whilst it was not argued whether the action of the Deputy Registrar to refuse to file the documents for the reasons set out in the letter of
1 May 2002, constitutes “a decision”, there is some authority to suggest it does (see Evans v Friemann (1981) 35 ALR 428; Legal Aid Commission of WA v Edwards (1982) 42 ALR 154). I do not propose to rest my decision on a decided view about this question.
A further difficulty is whether it was a decision of an administrative character.
Section 17 of the High Court of Australia Act1979 (Cth) provides that the High Court should administer its own affairs subject to, and in accordance with, that Act. Section 19 of the Act delineates the functions and powers of the Chief Executive and of the Principal Registrar. Subsection 26(7) provides:
The Senior Registrar and Deputy Registrars are to perform such duties in respect of proceedings in the Court as are assigned to them by Rules of Court, by an order of the Court or by the Chief Executive and Principal Registrar.
What is “administrative” and what is “judicial” may not be amenable to comprehensive satisfactory definition: Burns v Australian National University (1982) 40 ALR 707, 714; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, 634; Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649, 657.
Order 58 Rule 4 of the High Court Rules provides as follows:-
“(1) Where a person wishes to issue or file a writ, process, commission petition, appeal or application authorised by law or by these or any other rules of Court, the person may prepare it (in the prescribed form if any) and present it to the Registry for issue or filing.
(2) If it appears that the writ, process, commission, petition, appeal or application is in proper form and that the person presenting it is entitle to have it issued or filed, the Registrar or the Registrar’s clerk must do all that is required to issue or file the document.
(3) If the writ, process, commission, petition, appeal or application appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding or application, the Registrar must seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it.”
Whilst a decision made by a Registrar (“Registrar” includes Deputy Registrar Order 1 Rule 5) under Order 58 Rule 4(3) has been determined as not being of an administrative character (see Letts v Commonwealth of Australia (1985) 62 ALR 517; and also Gunter v Doogan (1999) FCA 1648 relating to Order 46 Rule 7A of Federal Court Rules), it does not appear that a decision by a Registrar under Order 58 Rule 4(2) has been judicially considered or so characterised.
In Legal Aid Commission of WA v Edward, supra, Toohey J found that a decision of a Deputy Registrar of the Family Court of Western Australia to refuse to accept a notice disputing costs (claiming that he had no jurisdiction), was a decision of an administrative character.
It seems clear in this matter that the Deputy Registrar concluded that the non-compliance with Order 69A Rule 2(2) coupled with the failure to formally seek dispensation under Order 69A Rule 3(1) meant the application was not in proper form. Unlike the decision in Letts supra, where the decision made by the Deputy Registrar to reject the Applicant’s application for filing was one made under the direction of the Court in this matter it was a decision made by the Deputy Registrar on her own initiative.
Whilst it is
“true that the Registrar’s activities are carved out within the broad framework of the judicial function of government as opposed to its legislative or executive functions…it does not follow that every decision made relating to proceedings before a Court is a decision of a judicial character.”
(see Toohey J in Edwards supra at page 158)
The decision of the Respondent was one made in connection with an aspect of the functioning of the Court the receipt, filing and issuing of documents.
However Order 58 Rule 4(2) does not contain a similar right of referral to a Justice as is contained in Order 58 Rule 4(3). It is entirely a decision for the Registrar, or such Deputy Registrars properly empowered pursuant to s.26(7) of the High Court of Australia Act 1979.
The actions of the Deputy Registrar may be open to review by a Justice of the High Court if an application under Order 58 Rule 17 had been made, which provides that:
“A party may apply to the Court or a Justice ex parte in a summary way for a direction to a Registrar to do an act:
(a) which he is bound or entitled to do;
(b) which the party applying requires him to do; and
(c) which he refuses to do.”
No such application was made. Whilst I am inclined to the view that the decision in this case (if it be such) is of an administrative character, I do not propose to base my decision on this view.
I prefer to base my decision on the failure of Mr Tait, on the merits, to establish any basis for a successful claim on any of the grounds upon which an administrative decision may be reviewed (section 5(1) of the AD (JR) Act).
Mindful, as I am, of the fact that the Applicant is unrepresented, I have looked carefully at his Application and submissions, supported by his Affidavit filed 20 May 2002.
The decision made by the Registrar was made, it is clear, after consideration of Order 69A Rule 2 and Rule 3 of the High Court Rules. Although a power exists to relieve a party from the consequences of non-compliance with the Rules, the Application for Special Leave to Appeal (a copy of which, in its handwritten form, is Exhibit 1 to the Applicant’s Affidavit) did:-
a)Seek to appeal an interlocutory order of a single Judge of the Supreme Court of Queensland of 19 March 2002 without exhausting any other rights of Appeal in that jurisdiction.
b)Seek to Appeal an order of a judge of the Supreme Court of Queensland of 1 February 2002 without exhausting any rights of Appeal.
c)Seek to Appeal a decision of the Court of Appeal of the Supreme Court of Queensland made 11 December 2001.
d)Not accompany the Application for Special Leave with reasons of the Court of Appeal in the appropriate way, choosing it seems to attach a copy to an Affidavit he purported to file.
e)Fail to seek in his application for Special Leave, an order that sub-rule 3(1) be dispensed with, being out of time.
f)Not comply with Order 58 Rule 4(1) by presenting the application to the Registry – service by post not being permitted by the High Court Rules.
The Applicant asserts that, as an unrepresented person residing in North Queensland and with no available resources, it is unreasonable to expect him to file personally or by a Brisbane Agent. He says he is being denied access to the highest Court in the land.
I do not see it that way. He was requested to comply with the Rules designed to ensure orderly and timely administration of the High Court’s Registry. If he had done so, his application would have been filed, subject to any Court direction pursuant to Order 58 Rule 4(3). No reasonable criticism of the actions of the Deputy Registrar has been established on the evidence.
Even if I am wrong in any regard above, the Applicant, Mr Tait, had a simple available solution – comply with the Rules and seek filing anew. He also may have considered an application under Order 58 Rule 17.
He chose neither. I am also mindful of the observations made by Toohey J (at the time a Justice of the Federal Court of Australia) in Letts supra at page 520 that:-
“If I was of the opinion that the action of the Registrar constituted an administrative decision made under an enactment and thus susceptible of review under the Judicial Review Act, I would nevertheless refuse to grant the application for review. Adequate provision is made by the High Court Rules for a justice of that court to determine whether or not the Registrar shall issue the process in question. In those circumstances it would be quite inappropriate for a judge of this court to determine what is in essence that very matter.”
Such sentiments were echoed by Allsop J in Croker v Deputy Registrar of the High Court (2003) FCA 34 (at paragraph 46).
I would see no basis for granting any relief under the AD (JR) Act, even if some ground had been made out, which I cannot see.
I dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date: 27 February 2003
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