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Richmond v BMW Australia Finance Limited (No 2) [2009] FCAFC 25 (19 February 2009)

Last Updated: 11 March 2009

FEDERAL COURT OF AUSTRALIA

Richmond v BMW Australia Finance Limited (No 2) [2009] FCAFC 25

PRACTICE AND PROCEDURE – Federal Magistrates Court – whether federal magistrate is obliged to deliver reasons contemporaneously with making of orders – obligation to publish reasons

Federal Magistrates Act 1999 (Cth), ss 3, 13, 74 and 75

B v M [2008] FamCAFC 27; (2008) 217 FLR 182 not followed
Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428 cited
Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 referred to
Melville v Phillips (1899) 9 QLJ 114 cited
Palmer v Clarke (1989) 19 NSWLR 158 referred to
Stratford v Ministry of Transport [1992] 1 NZLR 486 referred to

ROSS RICHMOND v BMW AUSTRALIA FINANCE LIMITED
NSD 1613 of 2008

BLACK CJ, JACOBSON AND RARES JJ
19 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMOND Appellant
AND:	BMW AUSTRALIA FINANCE LIMITED Respondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE OF ORDER:	19 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The stay of proceedings granted by the Honourable Justice Rares on 16 October 2008 be removed.
3. The appellant pay the respondent’s costs of the appeal.
4. The respondent’s costs be taxed and paid from the estate of the appellant in accordance with s 109 of the Bankruptcy Act 1966 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMONDAppellant
AND:	BMW AUSTRALIA FINANCE LIMITEDRespondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BLACK CJ

1 This is an appeal from a sequestration order made against the estate of the appellant, Mr Richmond, by a federal magistrate. The sole ground of the appeal is that the magistrate did not deliver his reasons for decision contemporaneously with the making of the order.
2 The application for the sequestration order came on for hearing before the federal magistrate in circumstances of some urgency, as the 24 month period of the creditor’s petition was about to expire: see Bankruptcy Act 1966 (Cth) s 52(4)(b).
3 The matter was contested. The federal magistrate had a busy list and evidently did the best he could to deal with the matter without delay. Having heard and considered the submissions of the parties, the magistrate concluded that a sequestration order should be made and he pronounced such an order. The magistrate observed, however, that he had not had time to prepare written reasons for his decision. He announced that he would endeavour to give reasons as quickly as possible and especially within a period of 21 days, a reference no doubt to the time limited for filing a notice of appeal.
4 Written reasons were published, as the magistrate said they would be. They bear a certification by his associate on the twenty-first day after the hearing. No complaint is made on the appeal about the sufficiency of those reasons, which reveal a careful analysis of the issues by the federal magistrate. The issue on appeal, however, is that the magistrate, having made a sequestration order, did not give his reasons for doing so at that time and I take the appellant – who is unrepresented – to be saying that, as a consequence, the order for sequestration was not validly made.
5 The issue thus arising is to be resolved by reference to the powers conferred upon the Federal Magistrates Court by the Federal Magistrates Act 1999 (Cth) (the Act). The Act establishes the Court as a federal court under Ch III of the Constitution and as a court of record. The Court was established with the object of operating as informally as possible in the exercise of judicial power, and with a further object of enabling the Court to use streamlined procedures: see s 3 of the Act.
6 The Act provides in Div 6 for the making of the orders and judgments of the Court, and it is that Division that is determinative of the present matter. Section 74(1), which is in Div 6, provides that:

An order of the Federal Magistrates Court must: (a) be in writing; or (b) be reduced to writing as soon as practicable.

7 The next section is directly on point. Section 75 authorises the publication of a reserved judgment by a federal magistrate other than the federal magistrate who had heard the proceeding and prepared reasons. The section also draws the distinction between the reservation of a judgment in the proceedings and the giving of reasons.
8 Section 75(1) provides:

If: (a) the Federal Magistrates Court reserves judgment in a proceeding; and (b) the Federal Magistrate who heard the proceeding subsequently prepares orders and reasons, but is not available to publish those orders and reasons; those orders and reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding.

9 It is assumed by s 75(1) that the Federal Magistrates Court has power to reserve judgment in a proceeding. In that context, the provisions of s 75(2) are determinative of this appeal, for whilst s 75(1) deals with the reservation of judgment, s 75(2) deals with the reservation of reasons. Section 75(2) provides:

If: (a) the Federal Magistrates Court reserves reasons for its decision in a proceeding; and (b) the Federal Magistrate who heard the proceeding has prepared reasons, but is not available to publish those reasons; those reasons may be made public by another Federal Magistrate on behalf of the Federal Magistrate who heard the proceeding.

10 Thus, having assumed that the Federal Magistrates Court can reserve judgment, s 75(2) proceeds upon the further assumption that the Court may, from time to time, reserve its reasons for a decision in a proceeding; that is to say, it allows for a disconformity between the delivery of judgment and the reservation of reasons.
11 The conclusion that must be drawn is that the Parliament intended to create a Chapter III court endowed with the capacity to reserve its reasons for judgment where the exercise of its jurisdiction to hear and determine matters made it desirable to do so.
12 There are cases that discuss the common law obligation to deliver reasons promptly and in public. The authorities have not always proceeded in the same direction, but it would seem to me that the analysis of the general position by the Court of Appeal of Victoria, in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, is particularly valuable and reflects the practices accepted in this Court. The same may be said of the observations of the learned Chief Justice of New Zealand, Sir Thomas Eichelbaum, in Stratford v Ministry of Transport [1992] 1 NZLR 486.
13 Accordingly the provisions of the Act, read in the context of the common law tradition of public justice, make it perfectly plain that the Federal Magistrates Court has a power to reserve judgment, and a power, having delivered judgment, to reserve reasons. There is no basis for any suggestion that the period of 21 days or thereabouts between the pronouncement of judgment and the publication of reasons was, in the circumstances, beyond appropriate limits.
14 For these reasons I conclude that Mr Richmond’s ground of appeal has not been made out.
15 It should be noted that underlying this whole matter is the prime importance of justice being administered in public. Reflecting the common law tradition, the Act specifically provides that the jurisdiction of the Court must be exercised in open court: see s 13(2). It was not, however, contended by the appellant that the reasons were not delivered in public.
16 Another objection was raised by leading counsel for the respondent in the course of his helpful submissions, namely that the point now raised on appeal should have been taken in the proceedings before the federal magistrate, in which Mr Richmond was represented by counsel. There is substance in that contention, but in the circumstances of this case I would prefer to decide the appeal on the footing that the federal magistrate had the power, which he properly exercised, of reserving his reasons for decision for publication within a reasonable time after the making of the sequestration order.
17 The appeal should be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.

Associate:

Dated: 10 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMONDAppellant
AND:	BMW AUSTRALIA FINANCE LIMITEDRespondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

JACOBSON J

18 I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 10 March 2009

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1613 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROSS RICHMONDAppellant
AND:	BMW AUSTRALIA FINANCE LIMITEDRespondent

JUDGES:	BLACK CJ, JACOBSON AND RARES JJ
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

RARES J

19 I also agree, but wish to add some additional observations. Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ pointed out in Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428 at 432[2008] HCA 34; ; 82 ALJR 1221 at 1226; [2008] HCA 34 at [14] (citing DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 247 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), that consideration of the powers and jurisdiction of each court must depend upon that court’s governing statute. As the Chief Justice has said, s 75(2) of the Act proceeds on an assumption that reasons for a decision already given (that is: for orders made) may be made public at a later time by another federal magistrate. It is implicit in s 75(2) that a federal magistrate may make orders and reserve his or her reasons. When the federal magistrate is ready to give those reasons he or she must make them public or authorise another federal magistrate to do so, if it is not done by the federal magistrate who made the orders.
20 In addition, s 13(2) requires the jurisdiction of the Federal Magistrates Court to be exercised in open court. In my opinion, it is essential that a federal magistrate’s reasons for making orders in general federal matters be made public. Counsel for the respondent drew our attention to the decision of a single judge of the Family Court in B v M [2008] FamCAFC 27; (2008) 217 FLR 182 (at 194-195, [60]-[62]). There Coleman J appears to have held that the Act did not permit the federal magistrate to reserve his reasons after making orders. He held that a delay of five weeks after making orders before the delivery of reasons entailed that the orders could not stand. He said that the reasons had to be provided "very soon" after the orders had been made: B v M 217 FLR at 196 [67].
21 Thus, Coleman J concluded that the Federal Magistrates Court did not have power to reserve the giving of reasons for any length of time after it had made orders. There may have been some special considerations relating to the family law nature of the matter, from which s 13(1) excludes the obligation for the Court to exercise its jurisdiction in public, that affected his Honour’s reasoning, but, first, he did not identify any such consideration and, secondly, he does not seem to have had his attention drawn to s 75. To the extent that his decision is inconsistent with that at which we have arrived, I respectfully consider it to have been wrongly decided.
22 As the Chief Justice has pointed out, there was no evidence before us that the federal magistrate did not give his reasons in open court, albeit at a later time than when he made the sequestration and other orders. However I wish to emphasise what Griffith CJ, speaking for the Full Court of the Supreme Court of Queensland, said in Melville v Phillips (1899) 9 QLJ 114 at 116:

But pronouncing judgment upon a trial is a judicial proceeding - perhaps the most important part of the judicial proceeding - and I confess that I do not see how a judge can pronounce judgment except in open court, unless under the authority of some statute.

23 I am of opinion that it is an essential incident of the exercise of judicial power to publish reasons in open court for making orders after a contested hearing. If reasons are reserved after the making of orders it is important that they be delivered as promptly as possible. In a case such as the present, where a sequestration order is made against a person’s estate, the importance of prompt publication of reasons, if reserved, cannot be understated. I agree with the Chief Justice’s observations that there is no suggestion in this case that the 21 day gap between the making of the orders and the date of authentication of the reasons was inappropriate. But, it is obviously desirable in cases where important orders are made, particularly those affecting a person’s status, that a court give reasons as soon as possible if it has reserved giving them: Palmer v Clarke (1989) 19 NSWLR 158. The pressures on the federal magistrate below have been explained by the Chief Justice. His Honour gave prompt and diligent attention to hearing the matter sitting on the last day on which it could be dealt with by reason of s 52(5) the Bankruptcy Act 1966 (Cth).
24 For those reasons I agree with the orders the Chief Justice has proposed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 10 March 2009

Counsel for the Appellant:	The Appellant appeared in person

Counsel for the Respondent:	Mr R J Carruthers and Mr D C Price

Solicitor for the Respondent:	Bartier Perry

Date of Hearing:	19 February 2009

Date of Judgment:	19 February 2009

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1.	The appeal be dismissed.
2.	The stay of proceedings granted by the Honourable Justice Rares on 16 October 2008 be removed.
3.	The appellant pay the respondent’s costs of the appeal.
4.	The respondent’s costs be taxed and paid from the estate of the appellant in accordance with s 109 of the Bankruptcy Act 1966 (Cth).

1	This is an appeal from a sequestration order made against the estate of the appellant, Mr Richmond, by a federal magistrate. The sole ground of the appeal is that the magistrate did not deliver his reasons for decision contemporaneously with the making of the order.
2	The application for the sequestration order came on for hearing before the federal magistrate in circumstances of some urgency, as the 24 month period of the creditor’s petition was about to expire: see Bankruptcy Act 1966 (Cth) s 52(4)(b).
3	The matter was contested. The federal magistrate had a busy list and evidently did the best he could to deal with the matter without delay. Having heard and considered the submissions of the parties, the magistrate concluded that a sequestration order should be made and he pronounced such an order. The magistrate observed, however, that he had not had time to prepare written reasons for his decision. He announced that he would endeavour to give reasons as quickly as possible and especially within a period of 21 days, a reference no doubt to the time limited for filing a notice of appeal.
4	Written reasons were published, as the magistrate said they would be. They bear a certification by his associate on the twenty-first day after the hearing. No complaint is made on the appeal about the sufficiency of those reasons, which reveal a careful analysis of the issues by the federal magistrate. The issue on appeal, however, is that the magistrate, having made a sequestration order, did not give his reasons for doing so at that time and I take the appellant – who is unrepresented – to be saying that, as a consequence, the order for sequestration was not validly made.
5	The issue thus arising is to be resolved by reference to the powers conferred upon the Federal Magistrates Court by the Federal Magistrates Act 1999 (Cth) (the Act). The Act establishes the Court as a federal court under Ch III of the Constitution and as a court of record. The Court was established with the object of operating as informally as possible in the exercise of judicial power, and with a further object of enabling the Court to use streamlined procedures: see s 3 of the Act.
6	The Act provides in Div 6 for the making of the orders and judgments of the Court, and it is that Division that is determinative of the present matter. Section 74(1), which is in Div 6, provides that:

7	The next section is directly on point. Section 75 authorises the publication of a reserved judgment by a federal magistrate other than the federal magistrate who had heard the proceeding and prepared reasons. The section also draws the distinction between the reservation of a judgment in the proceedings and the giving of reasons.
8	Section 75(1) provides:

10	Thus, having assumed that the Federal Magistrates Court can reserve judgment, s 75(2) proceeds upon the further assumption that the Court may, from time to time, reserve its reasons for a decision in a proceeding; that is to say, it allows for a disconformity between the delivery of judgment and the reservation of reasons.
11	The conclusion that must be drawn is that the Parliament intended to create a Chapter III court endowed with the capacity to reserve its reasons for judgment where the exercise of its jurisdiction to hear and determine matters made it desirable to do so.
12	There are cases that discuss the common law obligation to deliver reasons promptly and in public. The authorities have not always proceeded in the same direction, but it would seem to me that the analysis of the general position by the Court of Appeal of Victoria, in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28, is particularly valuable and reflects the practices accepted in this Court. The same may be said of the observations of the learned Chief Justice of New Zealand, Sir Thomas Eichelbaum, in Stratford v Ministry of Transport [1992] 1 NZLR 486.
13	Accordingly the provisions of the Act, read in the context of the common law tradition of public justice, make it perfectly plain that the Federal Magistrates Court has a power to reserve judgment, and a power, having delivered judgment, to reserve reasons. There is no basis for any suggestion that the period of 21 days or thereabouts between the pronouncement of judgment and the publication of reasons was, in the circumstances, beyond appropriate limits.
14	For these reasons I conclude that Mr Richmond’s ground of appeal has not been made out.
15	It should be noted that underlying this whole matter is the prime importance of justice being administered in public. Reflecting the common law tradition, the Act specifically provides that the jurisdiction of the Court must be exercised in open court: see s 13(2). It was not, however, contended by the appellant that the reasons were not delivered in public.
16	Another objection was raised by leading counsel for the respondent in the course of his helpful submissions, namely that the point now raised on appeal should have been taken in the proceedings before the federal magistrate, in which Mr Richmond was represented by counsel. There is substance in that contention, but in the circumstances of this case I would prefer to decide the appeal on the footing that the federal magistrate had the power, which he properly exercised, of reserving his reasons for decision for publication within a reasonable time after the making of the sequestration order.
17	The appeal should be dismissed.

19	I also agree, but wish to add some additional observations. Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ pointed out in Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428 at 432[2008] HCA 34; ; 82 ALJR 1221 at 1226; [2008] HCA 34 at [14] (citing DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 247 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), that consideration of the powers and jurisdiction of each court must depend upon that court’s governing statute. As the Chief Justice has said, s 75(2) of the Act proceeds on an assumption that reasons for a decision already given (that is: for orders made) may be made public at a later time by another federal magistrate. It is implicit in s 75(2) that a federal magistrate may make orders and reserve his or her reasons. When the federal magistrate is ready to give those reasons he or she must make them public or authorise another federal magistrate to do so, if it is not done by the federal magistrate who made the orders.
20	In addition, s 13(2) requires the jurisdiction of the Federal Magistrates Court to be exercised in open court. In my opinion, it is essential that a federal magistrate’s reasons for making orders in general federal matters be made public. Counsel for the respondent drew our attention to the decision of a single judge of the Family Court in B v M [2008] FamCAFC 27; (2008) 217 FLR 182 (at 194-195, [60]-[62]). There Coleman J appears to have held that the Act did not permit the federal magistrate to reserve his reasons after making orders. He held that a delay of five weeks after making orders before the delivery of reasons entailed that the orders could not stand. He said that the reasons had to be provided "very soon" after the orders had been made: B v M 217 FLR at 196 [67].
21	Thus, Coleman J concluded that the Federal Magistrates Court did not have power to reserve the giving of reasons for any length of time after it had made orders. There may have been some special considerations relating to the family law nature of the matter, from which s 13(1) excludes the obligation for the Court to exercise its jurisdiction in public, that affected his Honour’s reasoning, but, first, he did not identify any such consideration and, secondly, he does not seem to have had his attention drawn to s 75. To the extent that his decision is inconsistent with that at which we have arrived, I respectfully consider it to have been wrongly decided.
22	As the Chief Justice has pointed out, there was no evidence before us that the federal magistrate did not give his reasons in open court, albeit at a later time than when he made the sequestration and other orders. However I wish to emphasise what Griffith CJ, speaking for the Full Court of the Supreme Court of Queensland, said in Melville v Phillips (1899) 9 QLJ 114 at 116: