The Legal Aid Commission of Western Australia v Edwards, J.D

[1982] FCA 111

Re: THE LEGAL AID COMMISSION OF WESTERN AUSTRALIA
And: JOHN DAVID EDWARDS; KENNETH CHARLES REDMAN; PETER GERALD JOHNSON;
TERRENCE JOHN McDONNELL (1982) 61 FLR 419
No. WAG43 of 1981
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Administrative Law - Judicial Review Act - refusal by Deputy Registrar, Family Court of Western Australia, to accept notice for filing - jurisdiction of Federal Court - whether Deputy Registrar's actions constituted a decision - character of decision - administrative or judicial.

Administrative Decisions (Judicial Review) Act 1977 ss.3, 5, 9

Family Law Act 1975 regs.123, 198, 199

Family Court Act 1975 (WA) ss.22(5), 27

Legal Aid Commission Act 1976 (WA)

Administrative Law - Administrative decisions - Judicial review - Registrar of Family Court - Application for taxation of costs - Registrar refused to file application - Whether refusal a "decision" - Whether decision made "under an enactment" - Whether decision administrative not judicial - Whether Registrar capable of making judicial decisions - Tests for identifying judicial functions - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 3, 5, 9 - Family Law Act 1975 (Cth) - Family Law Regulations, regs. 123, 198, 199 - Family Court Act, 1975 (W.A.), ss. 22, 27.

HEADNOTE

The second, third and fourth respondents are legal practitioners who formerly carried on business in partnership. They acted in a matter heard by the Family Court in respect of which the applicant had granted legal aid. The applicant, being dissatisfied with the bill of costs rendered by the respondent solicitors sought to lodge with the Registrar of the Family Court a notice disputing the bill and requesting its taxation. The Registrar declined by letter dated 6th November, 1981, to accept the notice for filing, so the applicant applied to the Federal Court of Australia for a review of the Registrar's "decision" and an order directing him to accept the notice for filing and to proceed to tax the bill of costs. The first respondent (the Registrar) challenged the jurisdiction of the court.

Held: The court has jurisdiction to review the action of the first respondent in declining to accept for filing the applicant's notice disputing the account of the other respondents because - (1) The letter written by the first respondent on 6th November, 1981, to the applicant constituted a decision made by that respondent.

Riordan v. Connor (1981) 53 FLR 112; Hamblin v. Duffy (1981) 50 FLR 308; Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 56 FLR 443; Director-General of Social Services v. Chaney (1980) 47 FLR 80, referred to.

(2) The decision was made "under an enactment" within the meaning of that phrase in s. 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) because it was made and purported to be made under the provisions of the Family Law Act 1975 (Cth) and the regulations thereunder.

(3) The Registrar or Deputy Registrar of the Family Court is capable of exercising federal jurisdiction and therefore capable of making a judicial decision under a federal Act or regulation. However, the decision in the instant case was made by the Deputy Registrar on his own initiative in connexion with an aspect of the functioning of the court, namely the receipt of documents and was thus a decision of an administrative character.

Commonwealth v. Hospital Contribution Fund of Australia (1982) 56 ALJR 588, applied.

Kotsis v. Kotsis (1970) 122 CLR 69; Knight v. Knight (1971) 122 CLR 114; Glenister v. Dillon (1976) VR 550; Glenister v. Dillon (No. 2) (1977) VR 151, referred to.

HEARING

Perth, 1982, May 11; June 11. #DATE 11:6:1982

APPLICATION.

Application to the Federal Court of Australia for review of a "decision" of the Deputy Registrar of the Family Court of Australia under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

W.J. Millar, for the applicant.

J.R. McKechnie, for the first respondent.

P.G. Johnson, for the second and third respondents.

Cur. adv. vult.

Solicitors for the appellant: Legal Aid Commission of Western Australia.

Solicitor for the first respondent: C. le B. Langoulant, Crown Solicitor for Western Australia.

Solicitors for the second and third respondents: P.G. Johnson & J. Redman.

E.F. FROHLICH

JUDGE1

The applicant, the Legal Aid Commission of Western Australia, is a body corporate constituted by the Legal Aid Commission Act 1976. For the purposes of these proceedings its functions are sufficiently indicated by its name.

The first respondent is the Deputy Registrar of the Family Court of Western Australia, a body created by the Family Court Act 1975 of that State. By reason of s.27 of that Act the Court has the federal jurisdiction with which it is invested by the Family Law Act 1975 of the Commonwealth. In respect of that federal jurisdiction its officers (including Registrars and Deputy Registrars) have such duties, powers and functions as are authorized by the Family Law Act and as are provided under the Family Court Act (s.22(5)). For the purposes of this application "Registrar" and "Deputy Registrar" may be read synonomously. The second, third and fourth respondents are legal practitioners who formerly carried on business in partnership. Those respondents acted for Jadwiga Kazimiera Borodako in a matter heard by the Family Court and in respect of which the applicant granted legal aid.

The applicant, being dissatisfied with the bill of costs rendered by the second, third and fourth respondents, sought under reg.198 of the Family Law Regulations to lodge with the Registrar of the Family Court a notice disputing the bill and requesting its taxation.

On 6 November 1981 the first respondent wrote to the applicant declining to accept for filing the notice seeking a taxation of costs. He did so for these reasons.

"Neither the Family Law Act 1975 nor the Family Court Act 1975-1979 confers jurisdiction in regard to disputes between solicitors and agents, and it would not appear that you are a person to be charged with costs of proceedings within the meaning of that term in Regulation 198 of the Family Law Regulations; rather, you appear to be a person under a statutory liability to pay an agent for the performing of duties an amount to be approved by a legal aid committee".

The applicant seeks from this Court a review of

"the conduct and decision of the First Respondent whereby he refused to accept for filing in the Family Court of Western Australia a Notice Disputing Costs filed by the Director of Legal Aid and on behalf of the Applicant. . . ".

The applicant also seeks an order directing the first respondent to accept the notice for filing and to proceed to tax the bill of costs of the other respondents.

The first respondent challenges the jurisdiction of this Court to entertain the application under the Administrative Decisions (Judicial Review) Act 1977. At this stage I am asked to deal only with the question of jurisdiction. The other respondents took no active part in the argument, being content to abide by whatever order this Court might make.

Section 5 of the Judicial Review Act allows a person "who is aggrieved by a decision to which this Act applies" to apply to this Court for an order of review in respect of the decision. Section 3 defines "decision to which this Act applies" to mean

" . . . a decision of an administrative character made, proposed to be made, or required to be made, as the case may be . . . under an enactment . . . ".

The first respondent's challenge to jurisdiction is on the grounds that the action of the Deputy Registrar in declining to accept the applicant's notice disputing costs was not a decision, and that if it was, it was not a decision of an administrative character. In the first respondent's submission, any decision was of a judicial character.

In the applicant's submission, the first respondent's letter declining to accept the notice disputing costs was a decision, that it could not be described as judicial and that it was of necessity an administrative decision, even though made within the broad framework of a judicial proceeding.

The answer to the question whether this Court has jurisdiction to deal with the application depends upon the character of the Deputy Registrar's actions.

To make that characterisation it is necessary to have in mind the machinery provisions of the Family Law Regulations. Regulation 198(1) precludes an action for the recovery of costs until the expiration of one month after an account has been served on the person to be charged and any dispute has been dealt with in accordance with Part XXI of the Regulations. The person to be charged may, within 21 days after service, file a notice disputing the account (reg.198(3)). In that event the Registrar proceeds to tax the account (reg.198(5)) and to issue an assessment (reg.198(8)). A person furnished with an assessment may file a notice of objection (reg.198(10)). An order for payment of costs is made, not by the Registrar but by the Court, no doubt for constitutional reasons. If there is no objection to an assessment, the Registrar must still refer the proceedings for taxation to the Court which may, without any application or hearing, order the payment of costs in accordance with the terms of assessment (reg.199(1)). Where there is a notice of objection, the proceedings for taxation are set down for hearing by the Court which may make such orders as it thinks fit (reg.199(2), (3)).

There is in reg.123 provision that where the Registrar hears an application under the Regulations, a party aggrieved by his decision may file a request for a review by the Court. It was acknowledged by the first respondent that the procedure under reg.123 was not available to the applicant and, of course, no assessment having been made by the Registrar reg.199 was inapplicable. It would seem that the only way in which, within the State judicial system, the Deputy Registrar's action might have been challenged would be by invoking the inherent power of the Family Court to control its officers or by mandamus proceedings through the Supreme Court. However if there was a decision to which the Judicial Review Act applied, s.9 of that Act operates to exclude any review by a Court of a State.

I turn now to the question of whether the actions of the first respondent may fairly be described as a "decision". If there was no decision, that is the end of the matter. The notion of decision under the Judicial Review Act has been discussed in several recent cases, in particular Riordan v. Parole Board of the A.C.T. and Connor (1981) 34 ALR 322; Hamblin v. Duffy (1981) 34 ALR 333; Evans v. Friemann (1981) 35 ALR 428 and Ricegrowers Co-operative Mills Ltd. v. Bannerman (1981) 38 ALR 535. See also Director-General of Social Security v. Chaney (1980) 31 ALR 571. The effect of those authorities may be summed up for present purposes by saying that while a decision is ordinarily preceded by some thought or consideration on the part of the decision-maker, it manifests the end product of that thought or consideration and the conclusion to which they lead in some announced or published ruling or adjudication. In the language of Fox ACJ in Evans v. Friemann at p.431 -

". . . the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it."

I am satisfied that the letter written by the first respondent on 6 November 1981 to the applicant constituted a decision made by that respondent. In directing attention to provisions of the Legal Aid Commission Act 1976, to the Family Law Act and to the Family Court Act, the respondent was communicating to the applicant his process of reasoning; and in declining to accept the notice for filing he was making a ruling said to follow from that process.

And I am satisfied that the decision was made "under an enactment". It was made and purported to be made under the provisions of the Family Law Act and the regulations thereunder, in response to a claim by the applicant to have a matter determined in accordance with that Act and those Regulations. The real issue is whether it was a decision of an administrative character.

On the day on which this matter was argued before me the High Court handed down its decision in Commonwealth of Australia and Others v. The Hospital Contribution Fund of Australia and Others (unreported decision delivered 11 May 1982). Those reasons were not then available to counsel or to me but it was thought that the judgment might have some bearing upon the point in issue because it was known that the authority of Kotsis v. Kotsis (1970) 122 CLR 69 and Knight v. Knight (1971) 122 CLR 114 were under challenge. The reasons are now available and it is apparent that those two earlier cases must be taken to have been over-ruled insofar as they held that federal jurisdiction vested in a court of a State may only be exercised by members of the court and not by its officers. The importance of that decision for the present application is, I think, only that it cannot now be said that a Registrar or Deputy Registrar of the Family Court is incapable of exercising federal jurisdiction, hence incapable of making a judicial decision under a federal act or regulations. Of course whether he exercises such jurisdiction and makes such decisions will depend upon the terms of the relevant federal and state legislation.

The question msut still be asked - in the circumstances of the present application, was the decision made by the first respondent not to accept the notice for filing administrative or of some other character? In my view it was a decision of an administrative character and I say that for these reasons.

As the Family Law Regulations stand (and they may well be amended consequent upon the recent decision of the High Court) it is only the Court that may make an order for the payment of costs, even if there has been no objection to the Registrar's assessment of those costs (reg.199). It is true that the Registrar's activities are carried out within the broad framework of the judicial function of government as opposed to its legislative or executive functions (see Glenister v. Dillon (1976) VR 550, Glenister v. Dillon (No.2) (1977) VR 151). But it does not follow that every decision made relating to proceedings before a court is a decision of a judicial character. Counsel for the first respondent referred to a passage from the judgment of Windeyer J. in Kotsis v. Kotsis supra at p.92 where his Honour said :

"I do not mean to suggest that when a Supreme Court is exercising the judicial power of the Commonwealth its officers may not be charged with duties to be performed in a judicial manner. But those duties must I think be only such as are truly ancillary to the adjudication by the court. That is to say it is not enough that they be in what in the Matrimonial Causes Rules are called 'proceedings for ancillary relief'. They must be truly subservient to adjudication. They must be undertaken pursuant to a direction by the court for the purpose of either quantifying and giving effect to an adjudication already made by the court, or of providing material upon the basis of which an adjudication by the court is to be made. The taxation of costs by a taxing master is an example of a matter of the first kind. The taking of accounts or an inquiry as to damages for the purpose of reporting the result to the court to enable a judgment to be given are of the latter kind.".

In the respondent's submission Windeyer J. was characterising actions such as the taxation of costs, the taking of accounts or an inquiry as to damages as judicial in character, when made under the direction of the court or to provide material for an adjudication by the court. There is nothing in Commonwealth of Australia v. Hospital Contribution Fund of Australia that casts doubt upon that particular analysis.

But I am not concerned with an assessment of costs made by the Deputy Registrar. The decision made by the Deputy Registrar to reject the applicant's notice for filing was not one made under the direction of the court. It was a decision made by the Deputy Registrar on his own initiative, having the consequence that there would be no assessment and no material upon which the court might adjudicate.

In Hamblin v. Duffy supra Lockhart J. referred to the difficulty of defining expressions such as legislative, judicial, ministerial or administrative decisions, a difficulty ". . . compounded by the fact that a particular category of decision tends to overlap or merge into another" (at p.338). His Honour was there concerned with the distinction between a decision of a legislative as opposed to an administrative character but the difficulty itself is equally relevant in the present case.

Professor de Smith has offered, as tests for identifying the existence of judicial functions, the conclusiveness of any order made in the performance of that function, the presence of formal or procedural attributes and whether what is done amounts to the determination of a disputed question of law or fact (Judicial Review of Administrative Action 4th ed. 80-87).

It is apparent that had the first respondent accepted the applicant's notice disputing the account, a decision as to the reasonableness or otherwise of that account was in the end one for a judge of the Family Court. A Registrar's assessment is not conclusive; it provides material upon which a judge may act. In a sense the action of the Deputy Registrar in declining to accept the applicant's notice was intended to conclude the matter. But it was not conclusive in the accepted sense of having the force of law "without the need for confirmation or adoption by any other authority" (de Smith at p.81). Counsel did not say whether an assessment is accompanied by any of the formal or procedural attributes generally associated with the judicial function. Regulation 198(5) requires taxation to be "in accordance with the practice and procedure for taxation in the court". It is reasonable to infer that some procedural formalities are observed. But the decision to reject the notice had none of the formal or procedural attributes associated with judicial decisions. There was no hearing albeit reasons were offered for the decision. In making an assessment the Registrar may have to resolve disputed questions of law or fact though those are questions for the Court if the assessment is objected to. But here is a situation one step removed in that the first respondent declined to accept for filing the applicant's notice. Thus the applicant was deprived of any opportunity to dispute the bill of costs and of course to appear before a judge of the Family Court to object to any assessment. Equally the decision removed from the Registrar any of the functions connected with the assessment of costs.

In my view the decision of the first respondent lacked the attributes ordinarily associated with judicial decisions. It was a decision that related to proceedings before the Court but it was not truly ancillary to those proceedings. Section 22 of the Family Court Act speaks of a Registrar and such Deputy Registrars and other officers and staff of the Court "as are necessary for the proper functioning thereof". The decision of the first respondent was one made in connection with an aspect of the functioning of the Court, the receipt of documents. It was a decision of an administrative character.

I am satisfied that this Court has jurisdiction to review the action of the first respondent in declining to accept for filing the applicant's notice disputing the account of the other respondents.