VALACK & VALACK (No.2)
[2020] FCCA 1799
•2 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VALACK & VALACK (No.2) | [2020] FCCA 1799 |
| 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 pursuant to s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) – where decision not authorised by Family Law Act or Federal Circuit Court Rules – where decision took into account an irrelevant consideration – where decision was contrary to law. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.5(1), 5(1)(d), 5(1)(e), 5(1)(f), 5(2), 5(2)(a), 11(1)(c), 16(1) Family Law Act 1975 (Cth), ss.60I(7), 60I(9)(b), 60I(9)(c), 60I(11) Federal Circuit Court of Australia Act 1999 (Cth), ss.14, 99(1)(a), 99(6) Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 2.05(3)(a), 2.06 |
| Cases cited: Ellwood & Ravenhill (2019) FLC 93-915 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Valack & Valack [2020] FCCA 1354 |
| Applicant: | MS VALACK |
| Respondent: | MR VALACK |
| File Number: | BRC 2009 of 2020 |
| Judgment of: | Judge Jarrett |
| Hearing date: | By written submission |
| Date of Last Submission: | 15 June 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 2 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Madsen law |
| Solicitors for the Respondent: | DV Lawyers |
ORDERS
The application for review filed on 6 March 2020 be treated as if it were an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977.
Compliance with so much of the Federal Circuit Court Rules 2001 (Cth) as is required to permit the application for review filed on 6 March 2020 to be heard and determined as an application made pursuant to s.11(1) of the Administrative Decisions (Judicial Review) Act 1977 for relief pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977 be dispensed with.
The decision of the Registrar made on 16 March 2020 to not file the initiating application presented for filing on 21 February 2020 be set aside.
Upon presentation of the initiating application dated 21 February 2020 to the Registrar of the Federal Circuit Court of Australia at Brisbane accompanied by the appropriate filing fee, if any, the Registrar cause the initiating application to be filed.
Upon filing the initiating application, it be deemed to have been filed on 21 February 2020.
The respondent file and serve a response and any other documents required by the Federal Circuit Court Rules 2001 no later than 4.00pm on 16 July 2020.
The initiating application filed on 21 February 2020 is adjourned to 8 September 2020 at 9:30am for its first return date.
IT IS NOTED that publication of this judgment under the pseudonym Valack & Valack (No.2) 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
On 21 February 2020 the applicant sought to file an initiating application in the Federal Circuit Court seeking property adjustment orders and parenting orders. On 16 March 2020 a Registrar refused to accept the applicant’s documents that had been lodged on 21 February 2020. The Registrar’s reasons were provided in an email to the applicant’s solicitor in the following terms:
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.
On 26 March 2020 the applicant filed an application for review of the Registrar’s decision not to accept the initiating application for filing. On 29 May 2020 I delivered reasons for judgment in that review application: Valack & Valack [2020] FCCA 1354. I determined that the Registrar’s decision to refuse to accept the applicant’s initiating application for filing involved two separate decisions, each of a different nature, namely:
a)a decision on the applicant’s request to be exempted from the application of s.60I(7) of the Family Law Act 1975 (Cth) pursuant to s.60I(9) of that Act – an exercise of the judicial power of the Commonwealth vested in the Court; and
b)a decision about whether to accept the initiating application for filing – an administrative decision.
As to the first matter, and speaking of the power of the Court to determine that s.60I(7) of the Family Law Act 1975 (Cth) did not apply to an application for parenting orders, I said:
20. 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.
21. 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.
As to the second matter, after reviewing a number of authorities, I concluded:
25. 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.
26. It is, however, likely to be amenable to review pursuant to s.5(1) of the Administrative Decisions (Judicial Review) Act 1977.
The application before me, as it is presently constituted, is not an application for relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). This Court has jurisdiction under that Act and so I made orders requiring the parties to file brief written submissions addressing the following matters:
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;
b)And 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.
Both parties have filed written submissions. The applicant contends that I should treat the current application, nunc pro tunc, as an application for relief pursuant to s.5 of the AD(JR) Act and that I should:
a)set aside the Registrar’s decision not to accept the application tendered for filing on 21 February 2020;
b)direct that the application be accepted for filing; and
c)fix the filing date as 21 February 2020.
The respondent argues that I should not treat the application is an application for review filed for relief pursuant to s.5 of the AD(JR) Act and I should dismiss it generally.
Consideration
Both parties referred me to Emanuele v Australian Securities Commission (1997) 188 CLR 114 on the question of whether it is appropriate to treat the present application as one made under s.5 of the AD(JR) Act nunc pro tunc. Having regard to the observations of the various members of the Court in Emanuele, the use of the phrase nunc pro tunc by me was probably infelicitous. Those observations were made in the context of the making of an order now, which should have been made in the past: see the observations of Toohey J at 131 – 132 for example. The use of the phrase is not really apt to describe what might be achieved here by treating the present application as an application for a different purpose. Nonetheless, the matters identified as leading to the conclusion that an order nunc pro tunc is appropriate are equally apposite in this case where the question is whether I should treat the current application as one for relief under the AD(JR) Act.
Neither party addressed the question of whether I had power to do what is proposed. But I think I do. The power is arguably furnished by s.14 of the Federal Circuit Court of Australia Act 1999 (Cth) which is in the following terms:
14 Determination of matter completely and finally
In every matter before the Federal Circuit Court of Australia, the Federal Circuit Court of Australia must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Federal Circuit Court of Australia thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
The Federal Circuit Court Rules 2001 (Cth) provide for a particular form of application and particular rules that apply to applications under the AD(JR) Act: see Chapter 6 Part 42 generally. However, I can, if the interests of justice demand it, dispense with compliance or full compliance with any of the Rules at any time: FCCR 1.06(1).
I think the interests of justice demand that the present application be treated as one for relief pursuant to s.5(1) of the AD(JR) Act because, apart from anything else, if the present application was dismissed the applicant could nonetheless commence an application for relief pursuant to s.5(1) of the AD(JR) Act. Notwithstanding that the time for commencing such an application has passed, the time might be extended (as to which see s.11(1)(c)of the AD(JR) Act). It is difficult to see why, in the circumstances of this case, an extension of the time within which to bring such an application would not be granted. Moreover, as the applicant points out, the respondent identifies no prejudice that he would suffer if I treated the present application accordingly. All of the relevant materials are before the Court. Neither party suggests that anything further is required to determine the application if it was treated in the way that is proposed.
Accordingly, I will order that the application for review filed on 6 March 2020 be treated as if it were an application made pursuant to s.11(1) of the AD(JR) Act for relief pursuant to s.5(1) of the AD(JR) Act. I will also order that compliance with so much of the Federal Circuit Court Rules as is required to permit the application to be heard and determined as such shall be dispensed with.
The decision of the Registrar to refuse the initiating application for filing
The appointment of Registrars of the Federal Circuit Court is authorised by s.99(1)(a) of the Federal Circuit Court Act. They have such duties, powers and functions as are given to them by the Act, the Rules of Court, the Federal Circuit Court of Australia or the Chief Judge (s.99(6)). One of the powers of a Registrar is to accept documents for filing. FCCR 2.06 provides that 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 rules contain no other provisions to which my attention has been drawn which would permit a Registrar to refuse to accept a document for filing.
FCCR 2.06 was clearly not engaged on the facts of the present case. There is no suggestion that the rules relating to the electronic filing of documents have not been complied with or that the document was filed in the incorrect registry. The only basis upon which the Registrar could have acted when not accepting the initiating application for filing was that it was an abuse of process or was frivolous, scandalous or vexatious. I found that the application was not an abuse of process: Valack & Valack at [28]. It was plainly not frivolous or vexatious. The parties are in dispute about both parenting and property matters and the application sought substantive relief.
In any event, the Registrar did not refuse filing on that basis. The reason given by the Registrar for refusing to file the initiating application was set out in the letter that I have extracted above. The reason was that the Registrar had not approved an exemption for the filing of a family dispute resolution certificate and the parties were required to attend family mediation before the application was filed. I infer that the Registrar may have taken the view that without a certificate, or an exemption from filing one being granted before the proceedings were filed, the Court would be without jurisdiction in the matter and therefore the proceedings might be said to be an abuse of process or frivolous. Perhaps it was thought that there was little point in filing the proceedings given that s.60I(7) would prevent the Court from hearing the application until a relevant certificate was filed and an exemption was not likely to be granted.
Whatever the case, for the reasons that I gave in Valack & Valack (above), the reason articulated by the Registrar was not a valid reason for refusing to file the initiating application. The existence of a certificate under s.60I(7) only goes to the Court’s power to hear an application. It does not go to whether the proceedings should be permitted to be filed. The power to grant an exemption under s.60I(9) is only engaged once there are proceedings on foot. Here, the Registrar purported to exercise the power before there were any proceedings on foot.
Ellwood & Ravenhill (2019) FLC 93-915 compels the conclusion that the filing of a s.60I(7) certificate is not a necessary condition of the Court’s jurisdiction under Part VII of the Family Law Act. In that case at [31] – [33] Kent J held that a failure to file a s.60I(7) certificate with an application for orders under Part VII did not deprive the Court of jurisdiction in the application. His Honour recognised at [31] that a consideration of the matters raised in s.60I(9) might be required in a particular case and that could only happen in the context of an extant proceeding. His Honour drew attention to s.60I(11) which could only be consistent with the proposition that the existence of a relevant certificate was not a jurisdictional requirement or a pre-condition to the commencement of proceedings. I am bound by the ratio in Ellwood.
It was an error to refuse the filing of the initiating application on the basis that there was no operative s.60I certificate. That error engages ss.5(1)(d), 5(1)(e) and 5(1)(f) of the AD(JR) Act. I am satisfied that the Registrar’s decision to refuse to file the initiating application was a decision that was not authorised by either the Family Law Act or the Federal Circuit Court Rules. The respondent submits that the Registrar’s decision was authorised by the Family Law Act. He submits that when s.60I is considered “as a whole, the purpose of the provision is to encourage parties to make a genuine effort to resolve disputes through family dispute resolution and contains provisions as applied to decision makers as to the application for parenting orders and certificates for family dispute resolution”. He further submits that “The Registrar was acting within the scope of Section 60I in the intentions in which it was purported to be made when considered as a whole.” However, these submissions do not address the difficulties I have identified above. Whilst the submissions correctly reflect the object of s.60I, they do not grapple with the mechanics of how that object is achieved by s.60I(7).
Further, I am satisfied that the decision to refuse the filing of the document was an improper exercise of the power conferred by FCCR 2.06 because it took into account an irrelevant consideration, namely whether the application was accompanied by a s.60I(1) certificate. As to that matter the respondent argued that I could not be satisfied that the power was exercised by the Registrar for an improper purpose. There is no suggestion at all that the relevant power was exercised for an improper purpose as defined in s.5(2)(b) – 5(2)(j) of the AD(JR) Act. Nor could there be on the facts before me. However, s.5(1)(e) is engaged here by reason of s.5(2)(a) of the AD(JR) Act.
Further, for the reasons set out above, I find that the decision was contrary to law.
Relief
According to s.16(1) of the AD(JR) Act, on an application for an order for review in respect of an administrative decision, the Court may, in its discretion make all or any of the following orders:
a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;
b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;
c)an order declaring the rights of the parties in respect of any matter to which the decision relates;
d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.
Neither party made any submissions directed to the form of relief that might be granted. Given the nature of the decision under consideration I consider that I should order:
a)the decision of the Registrar made on 16 March 2020 to not file the initiating application presented for filing on 21 February 2020 be set aside;
b)upon presentation of the initiating application dated 21 February 2020 to the Registrar of the Federal Circuit Court of Australia at Brisbane accompanied by the appropriate filing fee, if any, the Registrar cause the initiating application to be filed; and
c)upon filing the initiating application, it be deemed to have been filed on 21 February 2020.
As to the last order, I am satisfied that such an order is appropriate because, had the initiating application here been accepted for filing as it ought to have been, it would have been deemed to be have been filed on 21 February 2020: FCCR 2.05(3)(a).
The applicant made submissions based upon the response that she received from “the Court” when she lodged the initiating application for filing. She argued that in the present case, an email was received from “the Commonwealth Courts Portal” on Friday 21 February 2020 at 2:45pm confirming that the application for interim and final orders, affidavit, affidavit of non-filing, financial statement and notice of risk (“the documents”) had been filed. The email also confirmed that the documents had been sealed and a file number had been provided. Accordingly, she argues, it is evident from the tendered email and sealed initiating application the action of filing has in fact been completed and was completed on 21 February 2020.
However, I am unable to determine this argument because there is no evidence before me that would support the factual assertions upon which the argument is based. In any event, given my reasons above, it is unnecessary to determine this argument.
As to the further conduct of the proceedings, I would expect that the respondent will file a response and any other documents required by the Federal Circuit Court Rules necessary to respond to the initiating application. I will allocate a first court date for the proceedings.
I make the orders set out at the commencement of these reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 2 July, 2020.
Associate:
Date: 2 July 2020
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