Valack & Valack
[2020] FCCA 1354
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALACK & VALACK | [2020] FCCA 1354 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for review of registrar’s decision – review of the decision not to accept for filing an initiating application – whether application for review ought to be made pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO Family Law Act 1975 (Cth), ss.4, 60I, 60I(7), 60I(9), 60I(11) Fair Work Act 2009 (Cth), s.365, 370 Federal Circuit Court of Australia Act 1999 (Cth), ss.103(1), 104(1), 104(2) Federal Circuit Court Rules 2001 (Cth), rr.2.05(2), 2.06, 20.00A, 20.02 Federal Magistrates Act 1999 (Cth), s.104(2) |
| Cases cited: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 Chen v Birbilis [2016] FCA 661 Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453 Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others (2008) 170 FCR 426 Myers & Myers [2011] FMCAfam 1104 Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 Vibbard & Garcia [2012] FamCAFC 114 Ward v St Catherine's School [2016] FCA 790 |
| Applicant: | MS VALACK |
| Respondent: | MR VALACK |
| File Number: | BRC 2009 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 1 April 2020 |
| Date of Last Submission: | 1 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Madsen law |
| Solicitors for the Respondent: | DV Lawyers |
ORDERS
Within fourteen (14) days of the date of these directions, each party must file brief written submissions addressing the following matters only:
(a)whether the court should treat, nunc pro tunc, the application for review filed on 26 March 2020 as an application for relief pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977;
And if so:
(a)whether the decision not to accept the application tendered for filing on 21 February 2020 should be set aside pursuant to that Act;
(b)whether the application tendered for filing on 21 February 2020 should be accepted for filing; and if so
(c)what date should be considered as the filing date for the application.
IT IS NOTED that publication of this judgment under the pseudonym Valack & Valack is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2009 of 2020
| MS VALACK |
Applicant
And
| MR VALACK |
Respondent
REASONS FOR JUDGMENT
This application purports to be an application for review of a Registrar's decision and is said to be filed pursuant to r.20.02 of the Federal Circuit Court Rules 2001 (Cth). It arises in the following way.
On 21 February, 2020 the applicant sought to file an initiating application in which she sought property adjustment orders and parenting orders. She sought to file the application by lodging those documents via the Commonwealth Courts Portal. Contrary to the applicant’s submissions, the documents were not filed on that date, but rather they were lodged for filing with the Court’s registry. Filing occurs when the relevant documents are accepted for filing by a Registrar and sealed with the seal of the Court or marked with a Court stamp, as required by Division 2.4 of the FCCR: FCCR 2.05(2). In the event that they are accepted for filing by the Registrar and sealed with the seal of the Court, they are taken to have been filed on the day they were lodged for filing by electronic means, or the next day if they were lodged after 4.30pm on a day: FCCR 2.05(3).
On 16 March 2020 a Registrar refused to accept the applicant’s documents that had been lodged on 21 February 2020 for filing. An email sent on behalf of the Registrar informed the applicant’s solicitor that:
The Court acknowledges receipt of the application & documents referenced above, through the Commonwealth Courts Portal.
I advise that pursuant to rule 2.06 of the Federal Circuit Court Rules 2001, that the application has not been accepted for filing for the following reason/s;
*The Registrar has not approved your request for non-filing a current Family Dispute Resolution Certificate. You must seek Family Mediation.
Properly analysed, the Registrar’s decision was in fact two separate decisions each of a different nature. The first decision concerned the request (or application or submission) for exemption from filing a current family dispute resolution certificate. The decision made about that request was an exercise of the judicial power of the Commonwealth vested in the Court. The second decision was consequent upon the first and it concerned the filing of the application. It was an administrative decision.
The first (judicial) decision was erroneously made, not for the reasons advanced by the applicant, but for another more fundamental reason. The second (administrative) decision was also erroneously made but cannot be reviewed by the Court in the current proceedings. The present application is incompetent. These reasons explain why that is so.
The statutory framework
The reference in the Registrar’s letter to “non-filing a current Family Dispute Resolution Certificate” was a reference to s.60I of the Family Law Act 1975 (Cth). Section 60I(7) of the Act provides:
(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.
Section 60I(9) provides:
Exception
(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:
(a) the applicant is applying for the order:
(i) to be made with the consent of all the parties to the proceedings; or
(ii) in response to an application that another party to the proceedings has made for a Part VII order; or
(b) the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; or
(c) all the following conditions are satisfied:
(i) the application is made in relation to a particular issue;
(ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
(iii) the application is made in relation to a contravention of the order by a person;
(iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
(d) the application is made in circumstances of urgency; or
(e) one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); or
(f) other circumstances specified in the regulations are satisfied.
A few things can be noticed about these subsections. First, neither subsection deals expressly with the commencement of applications in the Court. The work done by s.60I(7) is to proscribe a court from hearing an application for a Part VII order in relation to a child unless certain circumstances exist. Second, the courts that are subject to that proscription are courts which are exercising jurisdiction under the Family Law Act. That is to say, the text of the subsection is directed towards a court that is seized of a matter then before it. The use of the phrase exercising jurisdiction is expressed in the present tense and is consistent with the court then doing something in connection with an application that is before it. That, for example might be contrasted with a phrase such as a court invested with jurisdiction under this Act, or a court that has jurisdiction under this Act, which might more readily be seen as consistent with a court that might come to exercise jurisdiction under the Family Law Act, whether or not it is seized of a particular matter. Third, to be exercising jurisdiction must mean that the application in which the jurisdiction is being exercised has already been commenced. The use of that phrase does not sit comfortably with proceedings that have not yet been commenced. Fourth, the use of the phrases exercising jurisdiction and must not hear are more consistent with proceedings that are on foot, rather than proceedings that a party is attempting to initiate. Were it otherwise, the text of the section would be directed to the commencement of proceedings rather than the hearing of them. Examples from other areas of this court’s jurisdiction illustrate the point.
The Federal Circuit Court has jurisdiction under the Fair Work Act2009 (Cth). Proceedings might be commenced in this court by an employee who claims that his or her employer has contravened the general protections provisions of that Act. However, before doing so the employee must secure a certificate issued under s.365 of the Fair Work Act by the Fair Work Commission. The relevant section is s.370. It is in the following terms:
370 Taking a dismissal dispute to court
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the general protections court application includes an application for an interim injunction.
Without compliance with one of the subparagraphs of s.370 the Court has no jurisdiction to deal with the application: Ward v St Catherine's School [2016] FCA 790 at [6]; Chen v Birbilis [2016] FCA 661 at [18] and Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453 at [21]. To demonstrate jurisdiction when the application is commenced, an application for an order consequent upon a contravention of a general protection must, unless the application includes an application for an interim injunction, be accompanied by a certificate issued by the Fair Work Commission under s.368(3)(a) of the Fair Work Act: FCCR 45.06(b)(ii).
Another example is afforded by the Australian Human Rights Commission Act 1986 (Cth). In that Act, s.46PO provides:
46PO Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
…
(3A) The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
It can be seen that there a number of matters that need to exist before the Court is seized of jurisdiction in an application under the Australian Human Rights Commission Act. An initiating application for relief under the Human Rights Act must be accompanied by the notice of termination given by the President of the Commission: see the form approved by the Chief Judge pursuant to FCCR 2.04(1A) for the purpose of FCCR 41.02A(1).
The position established by s.60I is different. As I have pointed out, the text of s.60I(7) contemplates that the court is exercising jurisdiction but it may not hear the application before it. That is underscored by s.60I(11) of the Act. That section provides that the validity of proceedings on an application for a Part VII order or any order made in those proceedings is not affected by a failure to comply with s.60I(7) in relation to those proceedings.
Section 60I(7) is expressed to be subject to s.60I(9). That subsection sets out the circumstances where s.60I(7) does not apply. By its terms, it does not deal with circumstances in which an application for a Part VII order might or might not be commenced.
The circumstances set out in s.60I(9)(a) are self-explanatory, capable of objective assessment and their engagement is not dependent upon the Court’s satisfaction, although if there were a challenge to the Court hearing a matter on the basis of the absence of a s.60I(7) certificate, a court might have to make a finding about the existence of one of the matters set out in that subsection. The matters set out in s.60I(9)(d) and 60I(9)(e) are more problematical because they are not matters capable of objective assessment but must rely upon the assessment of some person, although the Act does not say who is responsible for the assessment or when it must be made.
Relevantly to the present proceedings, s.60I(7) does not apply where the Court is satisfied of one of the matters set out in s.60I(9)(b) or 60I(9)(c). The applicant argues in her outline of submissions filed on 31 March 2020 that s.60I(9)(b) was engaged in this case because the Court ought to have been satisfied that there were reasonable grounds to believe that there had been an abuse of the child by one of the parties to the proceedings or that there had been family violence by one of the parties to the proceedings.
The s.60I decision
The power provided by s.60I(9)(b) and (c) to decide if s.60I(7) does not apply to an application for a Part VII order about a child is a power which is invested in the court. The term court is defined in s.4 of the Family Law Act as follows:
court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act
It will be noticed that the same phrase – exercising jurisdiction – that appears in s.60I(7) appears in this definition.
The power provided by s.60I(9)(b) and 60I(c) is a judicial power. It is part of the judicial power of the Commonwealth exercised by the Federal Circuit Court. The power has been delegated to Registrars pursuant to s.103(1) of Federal Circuit Court Act 1999 (Cth) and FCCR 20.00A.
However, for the reasons that I have expressed above, that power can only be exercised by a judge or a Registrar in existing proceedings because the proscription in s.60I(7) operates against hearing an application. That is to say, the power in s.60I(9)(b) or 60I(9)(c) is not available to be exercised until proceedings have been commenced. Here, the Registrar purported to exercise the power before the proceedings were commenced. But the power was not then engaged.
A determination about whether s.60I(7) applies to the proceedings cannot and should not be made before proceedings that would otherwise engage s.60I are filed. In the absence of an extant application no occasion for the exercise of the power set out in s.60I(9) arises. The purported exercise by the Registrar to decide whether s.60I(7) did not apply in this case was improper.
The filing decision
The acceptance of a document for filing and the filing of a document are administrative acts by a Registrar: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 at [15]-[17] applied in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 at [39]. That is so even where the Registrar seeks a direction from a judge of the court about those matters and acts upon that direction: Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others (2008) 170 FCR 426 at [19] applied in Satchithanantham (above) at [49].
These authorities were considered by the Full Court of the Family Court of Australia in Vibbard & Garcia [2012] FamCAFC 114. In that case a Federal Magistrate had dismissed an application by a party to review a decision of a Registrar not to list an application for parenting orders urgently. The Full Court adopted the reasoning in Myers & Myers [2011] FMCAfam 1104 which held that the Court did have power to review such a decision under s.104(1) of the Federal Magistrates Act 1999 (now s.104(1) of the Federal Circuit Court Act) because the application determined by the registrar in that case included an application to abridge time under the rules of court or exempt the applicant from compliance with the rules of court relating to the time for service of an application. The power to exempt a party from compliance with the rules is a judicial power delegated to an authorised Registrar pursuant to s.103(1) of the Rules. Accordingly, the Federal Magistrate ought to have entertained the application for review.
That authority, however, is distinguishable on the facts of the case here. In the present case, the application concerns the filing or acceptance for filing of an application and not dispensation with any particular rule of court that might apply after proceedings have been commenced. True it is that the applicant in the present case sought to be excused from the requirement to file a s.60I(7) certificate, but the power to decide that question was only available after the proceedings had been filed.
Having regard to the above authorities, I conclude that a decision about whether to accept the application in this case tendered for filing on 21 February 2020 or whether to file that document was an administrative decision. It was not a judicial decision. It did not concern the exercise of judicial power delegated to Registrars either by the Act or the FCCR. Nor did it involve the exercise of judicial power delegated to Registrars to determine that s.60I(7) did not apply to the proceedings because such a determination was irrelevant, even if correctly made, for the purposes of determining whether the application ought be filed. That decision is not amenable to review using the mechanism provided for in s.104(2) and FCCR 20.02 of the Act.
It is, however, likely to be amenable to review pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act1977.
The Federal Circuit Court Rules determine when the Registrar must reject a document for filing. Rule 2.06 provides for when a Registrar may refuse to file a document. This is the rule, nominated by the Registrar, pursuant to which the application was not accepted for filing That rule provides:
2.06 Registrar may refuse to accept document
A Registrar may refuse to accept a document for filing if:
(a) the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry; or
(c) the rules relating to the electronic filing of documents have not been complied with.
The basis upon which the Registrar refused to file the applicant’s initiating application is not to be found in FCCR 2.06. The only possible basis upon which one might conclude that the Registrar was acting when not accepting the application for filing was that the initiating application was an abuse of process or was frivolous, scandalous or vexatious. Subrules 2.06(b) and 2.06(c) seem to have no relevance to the present matter. However, subrule 2.06(a) was not engaged because:
a)for the reasons I have set out above, the presence or absence of a s.60I(7) certificate was not a jurisdictional requirement that needed to be met before the application was filed;
b)the initiating application sought both property adjustment orders and parenting orders. Whilst s.60I(7) might have operated to prevent the Court from hearing the parenting orders application, there was nothing to prevent the Court from hearing the property adjustment application; and
c)an initiating application that might seek to pursue several causes of action, some of which are open to an applicant and some of which are not, is not, by that fact alone, an abuse of process, frivolous, scandalous or vexatious.
Moreover, the applicant’s submissions demonstrate that her initiating application tendered for filing on 21 February 2020 was not an abuse of process. I repeat her written submissions about that:
19. Justices Mason CJ, Dean and Dawson in a High Court Decision of Walton D - v - Gardiner [1993] HCA 77 laid down this general definition of abuse of process at paragraph 23:-
“The inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process extends to all categories of cases in which the process and procedure of the Court, which exists to administer justice with fairness and impartiality, may be converted to instruments of injustice or unfairness”.
20. This same case gives, at paragraph 24, examples of what constitutes an abuse of process from other decided cases including:-
(a) The proceedings can be clearly seen to be foredoomed to fail;
(b) If the Court is clearly an inappropriate forum to hear the case;
(c) The proceedings is unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which had already been disposed of in earlier proceedings;
(d) To prevent the misuse of a Court's procedure in a way which was manifestly unfair to a party to litigation and would otherwise bring the administration of justice into disrepute among right thinking people;
(e) Anything that may erode the confidence in the administration of justice by a concern that the Court's processes may lend themselves to oppression and injustice.
21. At paragraph 23 of his dissenting Judgment, Justice Brennan said, “If a party instituting proceedings does so for a purpose alien to the purpose for which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law''.
22. A further category given by Justice Brennan, not mentioned the other Justices included:-
(a) Proceedings which are capable of serving a legitimate purpose but are simply vexatious or oppressive in the sense that they impose on the Respondent party an unnecessary injustice, that is to say, a burden other than and additional to the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy….
… Therefore, in the context of abuse of judicial process, the concept of alien purpose is relevant to two questions: whether the party instituting the proceedings has done so for an alien purpose and whether the proceedings themselves are serving an alien purpose.
I accept the applicant’s submission that her initiating application tendered for filing on 21 February 2020 was not an abuse of process. There is no basis upon which a Registrar could have been satisfied that the filing of the initiating application was an abuse of process or was frivolous, scandalous or vexatious.
Given the identified basis upon which the Registrar refused to file the applicant’s application, one might quickly conclude that the decision to refuse to file the application, based upon the purported non-compliance with s.60I(7), engages one or more of the grounds of review set out in s.5(1) of the ADJR Act.
Conclusion
By s.104(2) of the Federal Circuit Court of Australia Act1999 (Cth) a party to proceedings in which a Registrar has exercised any of the powers of the Court under s.102(2) or under a delegation under s.103(1) may apply to the Court for review of that exercise of power. The Court’s power to review the exercise of the relevant power by the Registrar is confined to decisions of a Registrar made pursuant to a Registrar’s delegated authority. Not all decisions of the Registrar are amenable to review under division 20.2 of the Federal Circuit Court Rules.
Whilst the decision made by the Registrar about whether s.60I(7) applied to the application that the applicant wished to commence and about whether the terms of s.60I(9) were engaged was erroneous because the Registrar purported to exercise that delegated power before there was any extant application before the Court in which that power could be exercised, the setting aside of that decision will have no purpose because to do so will not provide the applicant with any substantive relief and will be futile. That is because there is no extant application before the Court.
The real purpose of the present application is to achieve an order which would see the acceptance for filing of the application tendered for filing on 21 February, 2020. That cannot be achieved in the proceedings as they are presently constituted.
Accordingly, I will direct that the parties file further brief written submissions about the following matters:
a)whether the court should treat the application for review filed on 26 March 2020 as an application for relief pursuant to s.5 of the ADJR Act nunc pro tunc;
b)if so:
i)whether the decision not to accept the application tendered for filing on 21 February 2020 should be set aside pursuant to that Act;
ii)whether the application tendered for filing on 21 February 2020 should be accepted for filing; and if so
iii)what date should be considered as the filing date for the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 29 May, 2020.
Associate:
Date: 29 May 2020
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