Zeller & Whitby
[2011] FMCAfam 431
•24 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZELLER & WHITBY | [2011] FMCAfam 431 |
| FAMILY LAW – Application to review a Registrar’s decision in relation to abridgment of time – no jurisdiction to do so – decision characterised as administrative rather than judicial. |
| Administrative Decisions (Judicial Review) Act 1977, s.5 Federal Magistrates Act 1999, ss.102, 103, 104 Federal Magistrates Court Rules 2001, r.20A |
| Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 Lynch & Dunstan [2011] FMCAfam 389 Legal Aid Commission of Western Australia v Edwards [1982] FCA 103 Paramasivam v Randwick City Council [2005] FCA 369 Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 |
| Applicant: | MR ZELLER |
| Respondent: | MS WHITBY |
| File Number: | SYC 2228 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing date: | 5 May 2011 |
| Date of Last Submission: | 5 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Kitchington & Associates |
| Respondent: | No appearance |
ORDERS
That the Application for Review filed 12 April 2011 is dismissed.
That the matter be otherwise adjourned to 4 July 2011 at 9:30am as previously listed.
IT IS NOTED that publication of this judgment under the pseudonym Zeller & Whitby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2228 of 2011
| MR ZELLER |
Applicant
And
| MS WHITBY |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
On 12 March 2011 the applicant father filed his substantive application in these proceedings seeking a number of parenting orders, some on an ex parte basis. The matter was given a first court date of 4 July 2011. The applicant had, in fact, applied to abridge time so that the matter could be dealt with earlier. A Registrar declined this application and provided three short reasons:
1) No evidence the child is returning with the mother
2) In the event the child does return with the mother, the child can be placed on the watchlist on the strength of the application alone
3) Arresting the mother may be neither appropriate or helpful if the child is in China
The applicant was not satisfied with this and filed an Application for Review on 12 April 2011. This application was heard by me on 5 May 2011. I dismissed the application for the reasons set out below.
When the application was set down for hearing before me I ordered the applicant to file written submissions as to the source of the Court’s power to review a decision of a Registrar which is, or may be, administrative in character. The applicant’s solicitor was also referred to the decision of the Federal Court in Paramasivam v Randwick City Council [2005] FCA 369.
The issue in this case is whether the Court has jurisdiction to review a decision of a Registrar not to abridge time. As this is a legal issue I do not propose to set out further background facts. If the Court lacks jurisdiction, the facts are irrelevant.
Applicable law
Section 102 of the Federal Magistrates Act 1999 allows certain powers of the Federal Magistrates Court to be exercised by a Registrar. Those powers are enumerated in s 102(2). Section 103 of the Act provides that the Rules of Court may delegate to the Registrars any of the powers of the Federal Magistrates Court.
Regulation 20A of the Federal Magistrates Court Rules 2001 specifies the powers delegated. It is significant to note that the delegated powers do not include the power to abridge time so that a matter can be dealt with earlier than the date allocated in the registry at the time of filing. The delegated powers are indeed broad. Most of the powers facilitate the orderly and efficient case management of a matter after the proceedings have been commenced. Some of the powers deal with the proceedings at a very early stage, e.g. dispensing with service and ordering substituted service. What all of the powers seem to have in common is that proceedings have actually been commenced, i.e. an application has been filed and a Court date allocated. None of the powers seem to deal with any controversy about when the first Court date should be. Indeed one way of characterising the powers delegated to Registrars in Regulation 20A is that they facilitate the determination of issues between the parties to the litigation. Indeed perhaps one reason why the power to abridge time is not included here is because this is an issue between the applicant and the Court, and not an issue between the parties.
Section 104 of the Federal Magistrates Act 1999 contains additional provisions relating to the Registrars. In the present context the relevant provisions are in subsections (2) and (3).
Registrars--additional provisions
(2) A party to proceedings in which a Registrar has exercised any of the powers of the Federal Magistrates Court under subsection 102(2) or under a delegation under subsection 103(1) may:
(a) within the time prescribed by the Rules of Court;
or
(b) within any further time allowed in accordance with the Rules of Court;
apply to the Federal Magistrates Court for review of that exercise of power.
(3) The Federal Magistrates Court may, on application under subsection (2) or on its own initiative, review an exercise of power by a Registrar under subsection 102(2) or under a delegation under subsection 103(1), and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
As is plainly apparent from these provisions, the power of review is strictly limited to an exercise of power under ss 102(2) and 103(1).
The exercise of power in this case, i.e. not to abridge time, is not a power under s 102(2) or s 103(1) and is therefore not reviewable under s 104: see also Lynch & Dunstan [2011] FMCAfam 389. It must follow that the Application for Review must be dismissed.
The applicant, and perhaps others on reading these reasons, might be surprised by this outcome. Indeed FM Burchardt in Lynch & Dunstan at para 19 refers to the ‘serious shortfall in the Court’s regulations and governance’. I would not express the gravity of the situation in such serious terms. It may well be that the power to abridge time is an exercise of power quite different to the other powers enumerated in regulation 20A. As I stated in paragraph 6 of these reasons, abridgement of time is an issue between the applicant and the Court, and not an issue between the parties.
The allocation of a hearing date in the registry is an administrative act. The decision not to abridge time is in the nature of an administrative decision. What the Registrar is, in effect, undertaking is an administrative act. It is pre-case management, rather than case management. The applicant’s real concern in this case is that the registry was unable to allocate an earlier date. This was, no doubt, reflective of the lack of availability of judicial resources compared to the demand for the same. When the Registrar reviewed this decision, the essential nature of the decision did not change from administrative. Viewed from another perspective, the issue remained one between the applicant and the registry, and not an issue between the parties to the litigation about, for example, case management.
The characterisation of the Registrar’s decision as being an administrative one finds support in the decision of Sackville J in Paramasivam v Randwick City Council [2005] FCA 369. The Registrar’s decision ‘had none of the formal or procedural attributes associated with judicial decisions’. Indeed it is hard to imagine that the legislature would intend this type of decision, in the context of a high volume court such as the Federal Magistrates Court, to be one that requires the application of any judicial process.
Sackville J also refers to the decision of the Full Court of the Federal Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 in support of the proposition that the Registrar was acting administratively and not judicially. Indeed, drawing on some of the language used by the Full Court at paragraphs 15-19 of their reasons, the Registrar’s actions in the present matter can be described as involving ‘determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face.’
The decision of Sackville J in Paramasivam, and the Full Court in Bizuneh has been affirmed by later Full Courts including Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47.
Whilst the characterisation of the Registrar’s power as administrative does not change the jurisdictional fact that there is no power to review the decision under ss 103 or 104, it might help explain why the power is not contained in regulation 20A.
Discussion
The Court does not have the power to deal with the Application for Review, and it therefore is dismissed.
It is understandable, however, that at times parties to litigation will be aggrieved by decisions of Registrars not to abridge time. Litigants and their lawyers often have their own (sometimes unique) perspective on urgency and priority. As a general proposition Registrars are in a far better position to make objective, informed decisions about abridgments of time.
As a general proposition, the circumstances when a Registrar may abridge time include applications involving:
a)orders to protect a child and/or a parent from immediate physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence;
b)orders to prevent the abduction of children or the removal of children from the jurisdiction of the Court;
c)recovery orders;
d)urgent orders arising out of unilateral action for the relocation of a child which will prevent the applicant continuing the relationship they had with the child prior to the unilateral decision of the other parent to relocate with the child;
e)orders to prevent the irreparable destruction, injury, disposition, sale, encumbrance, dissipation, concealment or diminution in value of property or an interest in property or financial resource.
Registrars will no doubt have regard to whether the affidavits in support of the application disclose the relevant grounds, and the nature and immediacy of the damage or harm sought to be prevented. Any delays in filing must be clearly considered as well as the availability of alternative remedies for the applicant. In children’s cases the focus must be on their best interests rather than on the distress of the applicant. Registrars need to be alive to the possibility that applicants may seek to exaggerate their case in order to obtain an earlier hearing date.
Ultimately, however, it is a matter of discretion for the Registrar who is in a far better position to understand competing priorities in a context where judicial resources are so limited.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 24 May 2011
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