David and Federal Court of Australia [2010] AATA 999 (25 November 2010)

Last Updated: 15 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 999

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/4476

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ATHIP DAVID

Applicant

And

FEDERAL COURT OF AUSTRALIA

Respondent

DECISION

Tribunal

G. D. Friedman, Senior Member

Date 25 November 2010

Place Melbourne

Decision

The Tribunal dismisses the application in accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975.

...........................................
Senior Member

PRACTICE AND PROCEDURE – jurisdiction - administrative affairs of Federal Court of Australia - whether the Tribunal has jurisdiction to review the decision

Acts Interpretation Act 1901 s 12

Administrative Appeals Tribunal Act 1975 ss 2A, 3, 25(1), 25(4), 42A(4)

Federal Court of Australia Act 1976 ss 18A, 18B, 18N(1), 18N(2), 18X, 37, 59(1)

REASONS FOR DECISION

25 November 2010

G. D. Friedman, Senior Member

1. Mr David has sought review of a decision made by a Deputy Registrar of the Federal Court of Australia. The respondent contends the Tribunal does not have jurisdiction to review the decision because there is no provision in the Federal Court of Australia Act 1976 (the Federal Court Act), or the Federal Court Rules (the Rules), that confers jurisdiction on the Tribunal to review decisions made under the Act or the Rules. A jurisdiction hearing was held on 25 November 2010 and the Tribunal gave an oral decision dismissing the application because Mr David failed to show the decision is reviewable by the Tribunal. He requested written reasons for the decision.

BACKGROUND

2. On 7 October 2010 Mr David lodged an application with the respondent seeking three orders:
   • An order directing the Commonwealth of Australia to provide details to authenticate the authority and appointment of a Deputy Registrar at the Registry of the High Court of Australia in Melbourne;
   • An order directing the Commonwealth of Australia to ensure an application to a Justice of the High Court of Australia may be made by a self-represented applicant for leave of a Justice to issue and file a document; and
   • An order directing the Commonwealth of Australia to ensure the High Court of Australia considers an application for an order to show cause.

3. On or about 10 October 2010 Mr David requested that the application made on 7 October 2010 be accepted for filing and sealing by the respondent. On 14 October 2010 the respondent refused the applications made on 7 and 10 October 2010 on the basis that the issues raised in the applications refer to decisions apparently made by Justices and Registrars of the High Court of Australia, and the respondent does not have jurisdiction to grant the orders sought.

4. On 15 October 2010 Mr David made an application for review to this Tribunal on the basis that his application to the respondent was made under s 18X of the Federal Court Act, which provides:

18X Proceedings arising out of administration of Court
Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Court under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.

5. Mr David said that under s 18A of the Federal Court Act the Chief Justice is responsible for managing the administrative affairs of the Federal Court, and under s 18B of the Act the Chief Justice is assisted by the Registrar of the Court. He said that ss 18N(1) and (2) of the Act refer to other officers of the Federal Court and their duties, powers and functions. He noted that Order 4, Rule 7 of the Rules specifies the requirements for an application and a statement of claim to be filed, and added that s 37 of the Act stipulates that all process issued from the Federal Court shall be under the seal of the Court and signed by Registrar, a District Registrar or an officer acting with the authority of the Registrar or a District Registrar. Mr David referred to s 59(1) of the Federal Court Act which provides that the Rules of Court shall not be inconsistent with the Federal Court Act.

6. Mr David submitted that to file and issue an application and statement of claim an officer of the Federal Court must exercise functions given by the Federal Court Act or the Chief Justice of the Federal Court of Australia, which constitutes a matter arising out of the management of the administrative affairs of the Federal Court under Part IIA of the Act. He stated further that s 18X of the Act constitutes a proceeding for the purposes of review by the Tribunal, and that s 12 of the Acts Interpretation Act 1901 widens the scope of an Act by stipulating that Every section of an Act shall have effect as a substantive enactment without introductory words.

7. Additionally Mr David submitted that s 2A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides that the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

CONSIDERATION

8. Section 25 of the AAT Act provides:

25 Tribunal may review certain decisions

(1) An enactment may provide that applications may be made to the Tribunal:
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
...
(4) The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

9. The effect of s 25 is that the Tribunal is only able to review decisions made under an enactment where the enactment provides for applications to be made to the Tribunal. Enactment is defined in s 3 of the AAT Act as:

enactment means:
(a) an Act;
(b) an Ordinance of a Territory other than the Northern Territory or the Australian Capital Territory; or
(c) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment.

10. The Rules are an enactment for the purposes of s 25 of the AAT Act, but the Rules do not confer jurisdiction on the Tribunal for review of decisions made under the Rules. Similarly the Rules are made under s 59 of the Federal Court Act, which is also an enactment for the purposes of s 25 of the AAT Act and does not contain any provision that confers jurisdiction on the Tribunal for review of decisions made under the Federal Court Act. Section 25(4) of the AAT Act does not grant the Tribunal jurisdiction to review a decision relating to the management of the administrative affairs of the Federal Court.

11. The word proceeding in s 3 of the AAT Act is defined as:

proceeding, in relation to the Tribunal, includes:
(a) an application to the Tribunal for review of a decision; and
(b) an application to the Tribunal under subsection 28(1AC); and
(c) an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and
(d) an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and
(e) an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and
(f) any other application to the Tribunal under this Act or any other Act; and
(g) any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.

The Tribunal does not accept that this definition, particularly paragraph (a), may be used to confer jurisdiction on the Tribunal. The word proceeding in s 18X of the Federal Court Act is used in a different context and has a different meaning from that in the AAT Act. Further, s 12 of the Acts Interpretation Act is a general provision that refers to a section of an Act having effect without introductory words, and does not grant jurisdiction to the Tribunal in this application.

12. Section 2A of the AAT Act places obligations on the Tribunal to pursue its objective in carrying out its review. However this section would only apply to applications for review for which the Tribunal has jurisdiction, and does not of itself confer jurisdiction on the Tribunal.

13. For these reasons the Tribunal finds that the decision is not reviewable and the Tribunal does not have jurisdiction to hear the application.

DECISION

14. The Tribunal dismisses the application in accordance with s 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision of

G. D. Friedman, Senior Member

Signed: .....................................................................................

Associate Kate Conners

Date of Hearing 25 November 2010

Date of Decision 25 November 2010

Advocate for the Applicant Self-represented

Solicitor for the Respondent Mr K. Maat, Australian Government Solicitor