Winn v Registrar Morgan
[2022] FedCFamC2G 252
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Winn v Registrar Morgan [2022] FedCFamC2G 252
File number(s): BRG 82 of 2022 Judgment of: JUDGE VASTA Date of judgment: 8 April 2022 Catchwords: PRACTICE & PROCEDURE – review of registrar’s decision – application dismissed Legislation: Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): r 1.07, r 13.05, 13.06, r 17.05(2)(a). Part 21
Cases cited: Winn v Boss Lawyers Pty Ltd [2021] FCA 1652 Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 1 April 2022 Date of hearing: In chambers Place: Brisbane Counsel for the Applicant: The Applicant making written submissions on her own behalf The Respondents: No appearance ORDERS
BRG 82 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JULENE WINN
Applicant
AND: REGISTRAR MORGAN
First Respondent
REGISTRAR CHO
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The application for review filed on 23 February 2022 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
Introduction
On 10 February 2022, a Registrar of the Court rejected a lodgement by the Applicant. What had occurred was that His Honour Judge Egan had made a sequestration order against the estate of the Applicant on 3 February 2022. The Applicant was not present at the time of His Honour making the order.
On 4 February 2022, the Applicant attempted to lodge an application in a proceeding. That application sought, pursuant to r 17.05(2)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”), that the decision of His Honour be set aside. The Registrar rejected the lodgement citing that the proper avenue was an appeal to the Federal Court.
On 1 March 2022, the Applicant asked this Court to review the decision.
Reviews of Decisions
Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the division two judges to “delegates”. Relevantly for this matter, the power of a judge to make the form of order that was made, has been delegated to the Registrar.
As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power. The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.
The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The Rules of Court
Part 21 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) pertains to the review of exercise of power by a Registrar or Judicial Registrar. The Rules state that a review must be filed within 7 days after the order or decision is made (though this may be extended upon application). The application must be served not later than 7 days after it is filed and the application must be listed for hearing as soon as possible and within 14 days after the filing, unless it is not practicable to do so.
The procedure for the review states that review must proceed by way of a hearing de novo.
The Rules state that the Court may receive as evidence any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.
The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.07 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Whilst the Rules state that the Court must embark upon a “hearing de novo”, this simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power. The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.
This Review
I have decided that this review will be conducted as a hearing de novo on the papers. This is proper considering that the Registrars made their decision “on the papers” as well. To this end, I made a number of directions, on 17 March 2022, requiring the Applicant to make her submissions. I have had regard to those submissions.
Non-compliance with the rules
The Registrar made the decision to not accept the lodgement on 10 February 2022. According to the Rules, the Applicant was required to file this application by 17 February 2022. The applicant did not file this application until 1 March 2022 which was 14 days out of time.
There has been no application for an extension of time within which to file the application. This is fatal to the application and it is dismissed for this reason alone.
However, even if the application been filed in time, I would have concluded that it should be dismissed. I will indicate the reasons as to why I would have come to this decision.
History
This matter has had a convoluted history. On 10 February 2021, Boss Lawyers filed a creditor’s petition seeking the sequestration of the estate of the Applicant. On 23 March 2021, the Applicant filed a notice of opposition as well as an affidavit. On 13 April 2021, the applicant filed two affidavits and an interlocutory application seeking declarations that: the petition had not been served in compliance with the Rules; that the petition is invalid; and, that the petition be dismissed.
On 14 April 2021, Registrar Schmidt transferred the matter to this Court. On 11 June 2021, His Honour Judge Jarrett (as he then was) heard the application and reserved his decision. On 14 September 2021, His Honour dismissed the application in a case and adjourned the hearing of the creditor’s petition to 7 October 2021.
The Applicant appealed the decision of His Honour and filed an application in a case seeking that the hearing of the creditor’s petition be stayed until the determination of that appeal. On 7 October 2021, His Honour heard that application. His Honour considered the matter overnight and the following day, 8 October 2021, adjourned the hearing to a date to be fixed. The order noted that the Applicant did not appear.
On 10 December 2021, Justice Rares heard the appeal and delivered judgment the same day. He ordered that the appeal be dismissed and that the applicant pay the costs of the respondent. The decision is reported at Winn v Boss Lawyers Pty Ltd [2021] FCA 1652. It is instructive that the Applicant did not appear.
Upon the elevation of His Honour Judge Jarrett to Division One of this Court, the matter was transferred into the docket of His Honour Judge Egan. On 21 January 2022, His Honour ordered that the matter be adjourned to 9:45 AM on 3 February 2022 and that each party have liberty to apply. Again, the Applicant did not appear.
As has been noted, on 3 February 2022, His Honour made the sequestration order. The Applicant did not attend.
What is clear is that His Honour Judge Egan engaged in the judicial process. His Honour did not simply make a default order. His Honour ascertained that all the preconditions for the making of a sequestration order, were fulfilled. Finally His Honour was satisfied that a sequestration order should be made.
What is also clear is that His Honour acted pursuant to r 13.06 (1) (e) of the Rules and proceeded with the hearing generally and determined the matter on the merits.
The Claims of the Applicant
The Applicant claims that, because she was not present, the judgment of His Honour can be set aside.
Rule 17.05(2)(a) says that the Court, or a registrar, may vary or set aside a judgment or order after it has been entered if it was made in the absence of a party. It really means “an order made because of the absence of a party”. The rule pertains to any judgement that was made by default. This is because r 13.06(2) allows a Court to make an order (if a party to a proceeding is absent from hearing) of the kind mentioned in r 13.05(1), (2) or (4). Rule 13.05(2)(d) allows the Court to “give judgement or make any other order against the respondent”.
If it were that His Honour Judge Egan had proceeded pursuant to r 13.06(2) and by r 13.05(2)(d), His Honour would have made a valid order but would not have undertaken the judicial task of assessing the merits of the application. The order would have been made because of the absence of a party. In such a case, r 17.05(2)(a) would apply.
But, in dealing with the matter pursuant to r 13.06(1)(e), the absence of the party did not mean that there was no consideration of the merits; it meant just the opposite. The fact that a party was not present, cannot detract from the intellectual judicial process that His Honour employed in coming to the decision he made. The order made was not an order made because of the absence of a party; it was an order made regardless of the absence (or presence) of a party.
If I accepted the argument of the applicant, it would be absurd for r 13.06(1)(e) to exist at all. It would mean that no judicial intellectual process or rigour could be given to a matter where a party did not appear. It would also allow a litigant to purposely evade a court date and, in effect, dictate when they will appear because any judgement against them can be set aside simply because they chose not to appear.
In summary, r 17.05(2)(a) does not apply to a decision that was made pursuant to r 13.06(1)(e).
A party who feels aggrieved at a decision made pursuant to r 13.06(1)(e), has their remedy in an appeal to an appellate court. That is the proper course for the Applicant; file a notice of appeal rather than the application that was filed.
For that reason, the Registrar was correct in refusing the lodgement. If this were a valid application for review, it would have been dismissed for that reason.
Order
The application for review is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 8 April 2022.
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