FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v BJC16 [2017] FCAFC 114

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    On 17 February 2017, a judge of the Federal Circuit Court of Australia (referred to in these reasons as the FCCA or the Court) declared that an order made by a Registrar dismissing an application under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) was invalid and made consequential orders. This is an appeal from those orders and the declaration. We have already granted the Minister for Immigration and Border Protection (Minister) the requisite leave to appeal. The central issue in the appeal is whether a Registrar of the FCCA (Registrar) has the power to dismiss an originating application on the basis that the applicant has not appeared at a scheduled first court hearing.

Background

2    The circumstances in which the primary judge made the orders under appeal are not in dispute. They were as follows.

3    The first respondent applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act) in April 2015. In January 2016 a delegate of the Minister refused her application and, in consequence, the first respondent applied to the Administrative Appeals Tribunal (AAT) for a review of this decision. The AAT determined, however, that it had no jurisdiction to review the delegate’s decision as the application to the AAT was made after the expiry of the prescribed time-period for review. The first respondent then applied to the FCCA for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act.

4    A first directions hearing (the first court date) of the first respondent’s judicial review application was scheduled before a Registrar on 9 November 2016. The first respondent did not appear at that hearing and, in her absence, the Registrar ordered that the judicial review application be dismissed pursuant to r 13.03C(1)(c) of the FCC Rules, with costs. The first respondent applied very shortly thereafter for her judicial review application to be reinstated. Her supporting affidavit explained that she had mistaken the date of the hearing.

5    On 17 February 2017, the primary judge heard the first respondent’s application for reinstatement. The first respondent appeared in person at the hearing and the Minister was represented by his lawyer. After hearing the parties that day, the primary judge said that the Registrar did not have the power to dismiss the application for non-appearance under r 13.03C(1)(c) because there was no appropriate delegation and that the reinstatement of the first respondent’s judicial review application was unnecessary because it was still on foot. Her Honour did not deliver further written reasons for judgment.

6    The primary judge declared and ordered as follows:

THE COURT DECLARES THAT:

The order made by the registrar on 9 November 2016 dismissing the proceeding for non-appearance was invalid as there was no appropriate delegation.

THE COURT ORDERS THAT:

1.    The matter be adjourned to 17 March 2017 at 10am for final hearing.

2.    On or before 3 March 2017, the applicant file and serve any written submissions.

3.    The parties’ costs of today be reserved.

The appeal

7    There is one ground of the Minister’s appeal, which reads:

The Federal Circuit Court of Australia erred in concluding that the Registrar’s dismissal of the First Respondent’s application was invalid, as the Registrar had power to do so under rules 10.01 and 13.03C of the Federal Circuit Court Rules 2001.

8    The Minister contends that the primary judge erred in determining that a Registrar did not have the power to dismiss an application in the absence of an applicant at the first court date and that this power had in fact been delegated to the Registrar.

9    The first respondent seeks to uphold her Honour’s orders. The first respondent also gave notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) on the basis that the Minister’s construction of r 13.03C(1)(c) of the FCC Rules would be incompatible with Chapter III of the Australian Constitution in that it would be an impermissible exercise of judicial power.

The relevant legislation

10    Before turning to the parties’ submissions, it is useful to set out the relevant provisions of the FCC Rules and the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act).

11    We turn first to the FCCA Act. At the relevant time, s 8(4) provided that:

The Federal Circuit Court of Australia consists of the following:

(a)    a Chief Judge;

(b)    such other Judges as from time to time hold office in accordance with this Act.

12    Section 99 further provided that:

(1)    In addition to the Chief Executive Officer, there are to be the following officers of the Federal Circuit Court of Australia:

(a)    such Registrars as are necessary;

...

(6)    The officers of the Federal Circuit Court of Australia, other than the Chief Executive Officer, have such duties, powers and functions as are given to them by:

(a)    this Act; or

(b)    the Rules of Court; or

(c)    the Federal Circuit Court of Australia; or

(d)    the Chief Judge.

13    Section 81 concerned the Rules of Court, providing, in s 81(1), that:

The Judges, or a majority of them, may make Rules of Court:

(a)    making provision for or in relation to the practice and procedure to be followed in the Federal Circuit Court of Australia ...; or

(b)    making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the Federal Court of Australia; or

(c)    prescribing matters required or permitted by:

(i)    any other provision of this Act; or

(ii)    any other law of the Commonwealth;

to be prescribed by the Rules of Court.

14    As will be seen, the Minister relied particularly on ss 102 and 103. Section 102, headed “Registrars’ powers” provided as follows:

(1)    The object of this section is to allow certain powers of the Federal Circuit Court of Australia to be exercised by a Registrar.

(2)    The following powers of the Federal Circuit Court of Australia may, if the Federal Circuit Court of Australia or a Judge so directs, be exercised by a Registrar:

(a)    the power to dispense with the service of any process of the Federal Circuit Court of Australia;

(b)    the power to make orders in relation to substituted service;

(c)    the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Federal Circuit Court of Australia or of any other person;

(d)    the power to make orders in relation to interrogatories;

(e)    the power, in proceedings in the Federal Circuit Court of Australia, to make an order adjourning the hearing of the proceedings;

(f)    the power to make an order as to costs;

(g)    the power to make an order about security for costs;

(h)    the power to make an order exempting a party to proceedings in the Federal Circuit Court of Australia from compliance with a provision of the Rules of Court;

(i)    a power of the Federal Circuit Court of Australia prescribed by the Rules of Court;

(j)    the power, in family law or child support proceedings, to direct a party to the proceedings to answer particular questions;

(k)    the power to make orders under the following provisions of the Family Law Act 1975:

(i)    sections 11F and 11G;

(ii)    sections 13C and 13D;

(iii)    subsection 65LA(1);

(iv)    paragraph 70NEB(1)(a);

(ka)    the power to direct a family consultant to give a report under section 62G of the Family Law Act 1975;

(l)    the power, in family law or child support proceedings, to make:

(i)    an order under section 66Q, 67E, 77 or 90SG of the Family Law Act 1975; or

(ii)    an order for the payment of maintenance pending the disposal of the proceedings;

(m)    the power to make an order the terms of which have been agreed upon by all the parties to the proceedings;

(n)    the power to make orders (including an order for garnishment, seizure of property or sequestration) for the enforcement of maintenance orders under the Family Law Act 1975;

(o)    the power to make an order exempting a party to family law or child support proceedings from compliance with a provision of regulations under the Family Law Act 1975.

…

Application of laws

(6)    The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of subsection (2), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under this section as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.

15    Section 103, headed “Delegation of powers to Registrars”, provided:

(1)    The Rules of Court may delegate to the Registrars any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2).

(2)    A power delegated by Rules of Court under subsection (1), when exercised by a Registrar, is taken, for all purposes, to have been exercised by the Federal Circuit Court of Australia or a Judge, as the case requires.

(3)    The delegation of a power by Rules of Court under subsection (1) does not prevent the exercise of the power by the Federal Circuit Court of Australia or a Judge.

…

Application of laws

(7)    The provisions of this Act, the Rules of Court and any other law of the Commonwealth that relate to the exercise by the Federal Circuit Court of Australia of a power that is, because of a delegation under subsection (1), exercisable by a Registrar, apply in relation to an exercise of the power by a Registrar under the delegation as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar.

16    Section 104(2) of the FCCA Act further provided:

Review of the exercise of Registrars’ powers

(2)    A party to proceedings in which a Registrar has exercised any of the powers of the Federal Circuit Court of Australia 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 Circuit Court of Australia for review of that exercise of power.

17    We turn next to the FCC Rules. At the relevant time r 10.01 provided:

10.01 Directions and orders

(1)    At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.

(2)    Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.

(3)    The Court or a Registrar may make orders or directions in relation to the following:

(a)    the manner and sufficiency of service;

(b)    the amendment of documents;

(c)    defining of issues;

(d)    the filing of affidavits;

(e)    cross-claims;

(f)    the joinder of parties;

(g)    primary dispute resolution;

(h)    the admissibility of affidavits;

(i)    discovery and inspection of documents;

(j)    interrogatories;

(k)    inspections of real or personal property;

(l)    admissions of fact or of documents;

(m)    the giving of particulars;

(n)    the giving of evidence at hearing (including the use of statements of evidence and the taking of evidence by video link or telephone or other means);

(o)    expert evidence and court experts;

(p)    transfer of proceedings;

(q)    costs;

(r)    hearing date;

(s)    any other matter that the Court or Registrar considers appropriate.

18    Rule 13.03C provided as follows:

13.03C Default of appearance of a party

(1)    If a party to a proceeding is absent from a hearing (including a first court date), the Court may do 1 or more of the following:

(a)    adjourn the hearing to a specific date or generally;

(b)    order that there is not to be any hearing, unless:

(i)    the proceeding is again set down for hearing; or

(ii)    any other steps that the Court directs are taken;

(c)    if the absent party is an applicant—dismiss the application;

(d)    if the absent party is a party who has made an interlocutory application or a cross-claim—dismiss the interlocutory application or cross-claim;

(e)    proceed with the hearing generally or in relation to any claim for relief in the proceeding.

(2)    If a party to a proceeding is absent from a hearing, the Court may also make an order of the kind mentioned in subrule 13.03B(1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.

19    Rule 20.00A(1) item 2 relevantly provided:

20.00A Delegation of powers to Registrars

(1)    For subsection 103(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.

20    It was Registrar Buljan who ordered at the first court date that the first respondent’s judicial review application be dismissed pursuant to r 13.03C(1)(c) of the FCC Rules. Registrar Buljan was approved by the Chief Judge under r 20.00A of the FCC Rules. In evidence before the Court was the Federal Circuit Court (Delegation to Registrar) Approval, signed by the Chief Judge on 30 March 2016 (Approval). The Approval provided that:

The Registrars mentioned below in Attachment A are approved to exercise the following powers in the Federal Circuit Court of Australia:

(a)    the Federal Circuit Court of Australia Act 1999 powers:

(i)    mentioned in item 1 of the table to rule 20.00A of the Rules being under section 52 of the Act;

(ii)    mentioned in item 2 of the table to rule 20.00A of the Rules being under subsection 102(2) (a) to (i) and subsection 102(2)(m) of the Act;

…

21    Registrar Buljan’s name was listed in Attachment A to the Approval.

the Minister’s submissions

22    The Minister submitted that there were three approaches to the construction of the FCC Rules and the FCCA Act, all of which led to the conclusion that the primary judge had erred.

23    The Minister’s primary argument was that the power in r 13.03C(1)(c) summarily to dismiss an application at the first court date in the event of non-appearance was conferred on the Registrar via r 10.01(3)(s) of the FCC Rules, read in light of s 103(7) of the FCCA Act. This was because, in the Minister’s submission, r 10.01 effects a delegation when read with item 2(i) of the table in r 20.00A(1).

24    The Minister acknowledged that there was apparent tension between r 10.01 and r 13.03C, noting that r 10.01(1) referred to “the Court or a Registrar” but r 13.03C mentioned only the Court. The Minister submitted that this was resolved through s 103(7) (or s 102(6)) of the FCCA Act.

25    The Minister submitted that the statutory source of power for r 10.01 was to be found in one or both of ss 102 and 103 of the FCCA Act. In written submissions filed before the hearing of the appeal, the Minister contended that:

[W]hether s 102 or s 103 is the source of power for rule 10.01 applying to Registrars, each has a sub-section (ss 102(6) and 103(7)) that resolves any apparent tension between rule 10.01 and rule 13.03C. Assuming that a Registrar exercises power at a first court date under rule 10.01 of the FCC Rules because of either s 102 or s 103, the provisions of the FCC Rules “that relate to the exercise” by the Registrar of that power apply in relation to an exercise of the power by a Registrar “as if references in those provisions to the Federal Circuit Court of Australia were references to the Registrar”. That is, if s 102(6) or s 103(7) apply, the reference in rule 13.03C to “the Court” shall be taken to be a reference to a Registrar.

26    The Minister submitted that s 103(7) was “an extension provision”, which meant that the reference to “Court” in r 13.03C should be read as including a Registrar, because r 10.01 was a related power, and expressly conferred on a Registrar a number of powers at the first court date. The Minister submitted that, if r 13.03C related to the exercise of power under r 10.01, then r 13.03C was to be construed as if it referred to a Registrar, on the basis of s 103(7) or s 102(6) of the FCCA Act.

27    The Minister drew attention to the terms of r 13.03C and, in particular, that this rule states that it applies to hearings “including a first court date”. The Minister submitted that this interpretation was consistent with the history of the FCC Rules, because this history showed that Registrars had had the power to dismiss for non-appearance at the first court date since 2001. The Minister submitted that the power was initially expressly included in r 10.01 and that “the movement of that power into rule 13.03C worked no substantive change”. The Minister submitted that r 13.03C “relates to rule 10.01 because it elaborates the kinds of orders and directions which it can be appropriate to make at a first court date”. The Minister contended that the decision in Re The Socket Screw & Fastener Distributors (NSW) Pty Ltd (in prov liq) (1994) 51 FCR 599 (The Socket Screw), in which the Full Court held that a Registrar of the Federal Court had been delegated the authority to conduct particular examinations into the affairs of corporations pursuant to an instrument of delegation, did not require a contrary conclusion.

28    With respect to s 102 of the FCCA Act, the Minister accepted that there was no evidence of a specific direction to the Registrar to exercise the relevant power under any relevant rule. The Minister submitted, however, that “a constructive or de facto direction” could be construed from the circumstances; namely, that by making the FCC Rules the Court had directed Registrars to hear first court dates and that by listing the matter before the Registrar, the Court could be taken to have directed the Registrar to exercise the relevant power under the FCC Rules.

29    The Minister’s second approach to construction was expressed in the submission that r 10.01(3)(s) of the FCC Rules alone was sufficient to confer power on a Registrar to dismiss an application summarily on the basis that the applicant failed to appear at the first court date. Reference was made to Kumar v Minister for Immigration and Border Protection [2017] FCCA 1116, in which Judge Smith adopted this approach.

30    The Minister submitted that r 10.01 was “expressed in general terms that, on their face, are apt to include an order of the kind made by the Registrar in this case”. The Minister submitted that “[t]he High Court has emphasised, more than once, that ‘[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words’”, citing Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 (Shin Kobe Maru v Empire Shipping) at 421 and Weinstock v Beck [2013] HCA 14; 251 CLR 396 (Weinstock v Beck) at [55]-[56]. In this context too, the Minister submitted that the legislative history of r 10.01 was consistent with Registrars having the power to dismiss for non-appearance at a first court date.

31    The Minister’s third approach to construction was expressed in the submission that a broad construction of item 2(i) of the table in r 20.00A(1) meant that power was conferred on a Registrar to make orders dismissing an application at the first court date where there is no appearance by the applicant. The Minister submitted that this approach was the simplest and was supported by a literal reading of item 2(i), citing Uddin v Minister for Immigration and Border Protection [2017] FCCA 500 (Judge Street). The Minister submitted that, if this approach to the broad construction of item 2(i) were adopted, there would be many powers delegated, but those powers would be capable of identification because they were prescribed by the FCC Rules. The Minister also acknowledged that, if item 2(i) were interpreted in this way, there would be overlap between item 2(i) and the other items in the table in r 20.00A(1). The Minister submitted, however, that this overlap was no obstacle to the broad interpretation, as item 2(i) could be regarded as a conferral of broad delegation to avoid there being any gaps.

32    In reply to the first respondent’s submission to the effect that any delegation of judicial power must be clearly expressed, the Minister submitted that there were clear words of delegation in the present case, and that the FCCA’s authority to delegate was expressly set out in s 103(1) of the FCCA Act. The Minister further submitted that the rationale for “clear statement rules” had no application in the present case because that rationale was directed to ensuring that “Parliament has turned its mind to limitations on common law freedoms before encroaching upon them”.

33    Also in reply, the Minister submitted that the conditions envisaged by the majority in Harris v Caladine [1991] HCA 9; 172 CLR 84 (Harris v Caladine) at 95, 122-123, 150-151 and 164 were satisfied in respect of Registrars of the FCCA for three reasons, namely:

(1)    A decision to dismiss for non-appearance is reviewable by way of a de novo hearing, by a judge of the FCCA upon application or at the motion of the FCCA, citing s 104(2) of the FCCA Act.

(2)    Rule 16.05(2)(a) of the FCC Rules offers “an additional alternative layer of involvement by the Court”. Rule 16.05(2)(a) provides that “[t]he Court may vary or set aside its judgment or order after it has been entered if … the order is made in the absence of a party”. Accepting that leave must be obtained to adduce further evidence (r 20.03(a) of the FCC Rules) in a de novo review of the decision, the Minister submitted that it was “to be assumed that the [FCCA], upon review, will exercise its power to grant leave judicially and cognisant of constitutional and other requirements”.

(3)    “[T]here is ex ante involvement by the Court in so far as it is the Court that makes the Rules and, at least in a general way, the Court that decides how its business is to be managed and allocated”.

The first respondent’s submissions

34    The first respondent submitted that the power to dismiss an application in the absence of an applicant at the first court date had not been delegated to the Registrar for the purpose of s 103 of the FCCA Act; and nor had the Registrar been directed to exercise that power within the meaning of s 102 of that Act.

35    First, so the first respondent contended, the word “Court” in r 13.03C(1)(c) should not be read as extending to a Registrar. The first respondent submitted that the text, language, purpose, history and context supported the conclusion that the summary power to dismiss by reason of an applicant’s absence was exercisable by the Court only. The first respondent submitted that the plain words in r 13.03C(1)(c) conferred power upon the Court only, and that the term “Court” was defined not to include a Registrar, citing r 1.04 and Sch 3 to the FCC Rules. The first respondent contrasted the language of r 13.03C(1)(c) with that of r 10.01 expressly conferring power on Registrars as well as the Court. The first respondent contended that the language used by the FCC Rules “indicates a deliberate choice as to which body a particular power is to be conferred upon”. The first respondent noted that the power to dismiss for non-appearance at a first court date was not listed among the powers itemised in s 102(2) of the FCCA Act, and nor was such a power listed in the table in r 20.00A(1) of the FCC Rules.

36    In response to the Minister’s submissions on ss 102(6) and 103(7), the first respondent submitted that those sub-sections were “application of laws” provisions, that is, “[t]hey pick up powers contained in the [FCCA] Act, the [FCC] Rules or other Commonwealth laws which confer power upon the Court, but which are exercisable by Registrars because they have been the subject of delegation to them, and provide that references to the ‘Court’ in those provisions are taken to be references to the ‘Registrar’. They do not pick up powers that have not already been delegated to Registrars” (emphasis in original).

37    The first respondent drew attention to the organisation of the FCC Rules, in particular that Pt 13 containing the powers to bring a proceeding to an end without the involvement or consent of the parties, conferred those powers on the Court, whereas the powers in Pt 10 related to matters within a proceeding, and were clearly exercisable by Registrars. The first respondent submitted that the powers in Pt 10 were procedural in nature, with the possible exception of r 10.01(2). The first respondent acknowledged that r 10.01(2) did not necessarily exclude a power to dismiss all or part of a proceeding. The first respondent contended, however, that as the words of r 10.01(2) “include the express obligation to first ‘hear and determine’ the proceeding”, the power in r 10.01(2) did not extend to summarily dismissing an application by reason of the applicant’s absence at a hearing.

38    The first respondent also submitted that the principles of noscitur a sociis and ejusdem generis indicated that the general power in r 10.01(3)(s) would not extend to summary dismissal, as it is limited by the nature of the powers listed in r 10.01(3)(a) to (r). The first respondent also submitted that the nature of the power to dismiss an application for non-appearance indicated that any delegation to a non-judicial officer should be made expressly.

39    Finally, the first respondent submitted that “the constitutional principle that demands a separation between the exercise of judicial power and administrative power” was “the most significant contextual indicator against the applicant’s proposed construction”. The first respondent contended that “[t]he constitutional imperative means that it is the exercise of judicial power only that requires delegation by the Rules of Court in order for the power to be exercisable by Registrars”, and that “any delegation of that power must be clearly expressed” (emphasis in original). Such clear expression was absent in the present case, and this indicated that the power had not been delegated to Registrars.

40    In the event that the Court did adopt the Minister’s construction and held that the Registrar had been delegated the power to dismiss an application for non-appearance at the first court date, the first respondent submitted that that delegation infringed Chapter III of the Constitution because the two conditions of delegation of judicial power set out by the High Court were not satisfied in this case, citing Harris v Caladine at 95 (Mason CJ and Deane J), 122-123 (Dawson J), 151 (Gaudron J) and 164 (McHugh J).

Consideration

41    Whether the Registrar had power to dismiss the first respondent’s application for non-appearance at the first court date depends on the proper construction of the relevant provisions of the FCCA Act and FCC Rules. The applicable principles of construction are not in doubt. It is accepted, for present purposes, that the same principles apply to both the construction of the FCCA Act and the FCC Rules: see, eg Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 398. The primary focus is the language used in the text of the provisions, acknowledging that the meaning of the text may, and often will, require consideration of the context, including the purpose and policy of a provision: see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]. The ascertainment of purpose and policy may be assisted by reference to the history of a provision and relevant extrinsic materials.

42    We turn first to the text of r 13.03C(1). This rule in terms confers power on “the Court” to do a number of things in the event that a party is absent from a hearing, including a first court date. Specifically, r 13.03C(1)(c) empowers “the Court” to dismiss an application if the applicant is absent. Rule 1.04 of the FCC Rules provides that the dictionary defines the terms used in the FCC Rules. The dictionary is found following Sch 3 of the FCC Rules. “Court” is defined to mean “the Federal Circuit Court of Australia”. By virtue of s 8(4) of the FCCA Act, the FCCA consists of the Chief Judge and Judges holding office in accordance with that Act. The Court does not include Registrars, they are its officers: s 99(1). In terms, then, r 13.03C(1) does not confer power on Registrars to do anything.

43    In contrast to r 13.03C(1), other rules, such as r 10.01(1), do in terms confer power on a Registrar to do something, as s 99(6) of the FCCA Act contemplates they may do. Thus, r 10.01(1) states in terms that “the Court or a Registrar is to give orders or directions for the conduct of the proceeding” at the first court date. Rule 10.01(2) further empowers “the Court or a Registrar” to hear and determine all or part of the proceeding; and, by r 10.01(3), to make ancillary orders or directions in relation to various subjects pertaining to the preparation and conduct of a proceeding.

44    Furthermore, consideration of the FCC Rules supports the proposition that the conferrals of power in these Rules on, variously, “the Court”, “a Registrar”, or “the Court or a Registrar” express a deliberate choice about whom is to exercise the power. For example, whereas r 3.05(1) provides that “[t]he Court may extend or shorten a time fixed by these Rules or by a judgment, decree or order” (emphasis added), r 3.05(2) provides that “[a] Registrar may extend or shorten a time fixed by these Rules” only. Other provisions, such as rr 7.01 (power to amend), 10.01 (directions and orders for the conduct of proceeding), 10.03 (fixing a date for final hearing), 13.01 (discontinuance), 15.29 (striking out objectionable material) and 15A.02 (issuing subpoenas) are expressed as exercisable by “the Court or a Registrar”. In each case, the rationale for the allocation of power is generally discernible from the nature of the power.

45    Furthermore, aspects of the structure of the FCC Rules tend to support the proposition that r 13.03C(1)(c) confers power only on the Court and not a Registrar. Part 13 is concerned, as its heading indicates, with “Ending a proceeding early” and, especially in a case in which a proceeding is terminated without the consent or involvement of an initiating party, its provisions confer the relevant powers on the Court alone. Part 10, on the other hand, is by and large devoted, as its heading “How to conduct proceedings” indicates, to the ongoing and day to day conduct of proceedings; and, in this context, the powers with respect to procedure conferred by it are expressly given to “the Court or a Registrar”. As the first respondent acknowledged, however, the power conferred on “the Court or a Registrar” in r 10.01(2) to “hear and determine all or part of the proceedings” stands apart from this. Yet, as the first respondent submitted, a Registrar would be unable to dismiss all or part of a proceeding under r 10.01(2) without a hearing. Plainly enough, the power in r 10.01(2) would not extend to summarily dismissing an application by reason of the applicant’s absence at the hearing, as r 13.01C(1)(c) contemplates.

The Minister’s first proposed construction

46    We would reject the Minister’s submission that the power in r 13.03C(1)(c) was conferred on the Registrar via r 10.01(3)(s) of the FCC Rules, read in light of s 103(7) of the FCCA Act. As explained below, it does not appear to us that r 10.01 effected a delegation when read with item 2(i) of the table in r 20.00A(1) of the FCC Rules.

47    Section 103(1) provides that the FCC Rules may delegate any of the powers of the Court, including but not limited to the powers in s 102(2). Section 102(2) lists various powers of the Court that may be exercised by a Registrar if the Court or a judge so directs. As the first respondent observed, the power to dismiss for non-appearance is not one of the listed powers. This is not, of course, determinative, since s 103(1) is not confined to the powers listed in s 102(2).

48    As we have seen, the Minister argued that, having regard to r 10.01(3)(s), r 10.01 effected a delegation when read with item 2(i) of the table in r 20.00A(1). The effect of r 10.01(1) was that at the first court date not only the Court but also a Registrar could give orders or directions for the conduct of the proceeding. Rule 10.01(3) listed various topics that such orders or directions might cover, such as “manner and sufficiency of service” and “the amendment of documents”. Item 2(i) of the table in r 20.00A(1) had the effect that, for s 103(1) of the FCCA Act, a delegation to an approved Registrar was effected “to exercise a power of the Court prescribed by these Rules”. As we have seen, pursuant to the Approval signed by the Chief Judge, Registrar Buljan was an approved Registrar. No-one argued that a delegation of this kind was not supported by s 103(1) of the FCCA Act.

49    The Minister and the first respondent disagreed about the proper construction of item 2(i) of the table in r 20.00A(1) of the FCC Rules and, in particular, the significance of the expression “prescribed by these Rules”. The word “prescribe” (or its variants, “prescribed”, “prescribing” etc) is used in numerous places in the FCCA Act and in the FCC Rules to signify that a direction is, has been, or will be made or laid down with respect to some matter: see The Socket Screw 51 FCR 599 at 605 and, for example, FCCA Act, ss 81(1)(b) and (c), 102(2)(i) and 104(2) and FCC Rules, rr 2.04, 10.06(2) and 20.00A(1) (item 2(i) of the table). The Minister contended that the word “prescribed” in item 2(i) of the table in r 20.00A(1) meant simply that the FCC Rules made written provision for a power of the Court. The contrary submission, for the first respondent, was that “prescribed” in this context required that the FCC Rules made written provision for a Registrar to exercise a power of the Court. On the first respondent’s analysis, the FCC Rules, in r 10.01, “prescribed” that the exercise of the power of the Court might be either by the Court or by a Registrar.

50    The Minister argued that only his broad construction had utility and that the first respondent’s narrow construction would make the item otiose, since the relevant Rules would, on this approach, already have specifically conferred the power on a Registrar. The difficulty with the broad construction was, however, that the table in r 20.00A(1) included items that specifically referred to some particular powers of the Court and the inclusion of those items would have been unnecessary if the word “prescribed” in item 2(i) carried the broad meaning for which the Minister contended. The Minister sought to overcome this difficulty with the observation that the table originally ended at item 30, submitting that when items 30 to 34 were added at a later date the judges making the FCC Rules were not “cognisant of the breadth that already existed in item 2”.

51    We reject the Minister’s submission that item 2(i) of the table in r 20.00A(1) should be broadly construed as he urged. If accepted, this construction would mean that every power exercisable by the Court would, by virtue of this item, also be exercisable by a Registrar if approved by the Chief Judge, notwithstanding that the particular rule indicated that a specific choice had been made by its makers in some instances to confer the power on “the Court or a Registrar” and in other instances on “the Court” or “a Registrar” alone; and where, as already stated, the rationale for the allocation of power was discernible from the nature of the power. If, for example, this broad construction were accepted, the power of the Court to deal with a person if it appeared to the Court that he or she was guilty of contempt would not only be exercisable by the Court, as rr 19.01 and 19.02 in terms provide, but would also be exercisable by an approved Registrar, by virtue of item 2(i) of the table in r 20.00A(1). We consider that this result is an unlikely one; and that the narrow construction is more likely to reflect what the judges intended in making the FCC Rules.

52    We are of the opinion that item 2(i) in the table in r 20.00A(1) effects the requisite delegation to an approved Registrar where the FCC Rules have nominated a Registrar as capable of exercising the power in question. For like reasons, we are inclined to the view that s 102(2)(i) of the FCCA Act should be similarly construed, with the result that “a power of the ... Court prescribed by the Rules of Court” is to be construed as “prescribed by the Rules for the purposes of s 102 of the FCCA Act”. The decision in The Socket Screw 51 FCR 599 does not call for the contrary conclusion.

53    With respect to the Minister’s first proposed approach to construction, another key difference between the parties concerned the effect of s 103(7) of the FCCA Act. Section 103(7) relevantly provides that a provision of the FCC Rules that relates to the exercise by the Court of a power that is, because of a delegation under s 103(1), exercisable by a Registrar, applies in relation to an exercise of the delegated power as if a reference in that provision to the Court is a reference to the Registrar. As explained below, we reject the Minister’s submission that s 103(7) is an “extension provision” and accept that it is an application provision, as the first respondent submitted.

54    Section 103(7) operates only where there is a delegation of power to a Registrar under s 103(1). If there is such a delegation of power effected by the FCC Rules under s 103(1) (as by item 2(i) of the table in r 20.00A(1) and r 10.01), then the effect of s 103(7) is that a reference to the Court in a provision of the FCC Rules (or FCCA Act or other Commonwealth law) that “relate[s] to the exercise” by the Court of that power applies in relation to the exercise by the Registrar of the delegated power as if the reference to the Court was a reference to a Registrar. The words “relate[s] to” embrace a provision that in terms confers a power of the Court where the exercise of that power can touch or concern the exercise of a power delegated to a Registrar. These words do not, however, refer to a separate and distinct power exercisable by the Court, which cannot touch or concern a delegated power exercisable by a Registrar. Section 103(7) applies only in the former case. The result is that only the provisions of the FCC Rules (or FCCA Act or other Commonwealth law) that relevantly “relate to” an exercise by a Registrar of the power in r 10.01 apply in relation to that exercise of power “as if references in those provisions” to the Court were references to the Registrar.

55    The power conferred by r 13.03C(1)(c) does not touch or concern the power exercisable by a Registrar under r 10.01. The two rules confer separate and distinct powers. Rule 13.03(1)(c) does not, therefore, relevantly relate to an exercise of the power in r 10.01 by a Registrar and s 103(7) does not operate as the Minister contends. That the powers in rr 10.01 and 13.03C(1)(c) are separate and distinct is emphasised by the fact that the power in r 10.01 is concerned with “orders or directions for the conduct of the proceeding”, whereas the power in r 13.03C(1)(c) is concerned with bringing the proceeding to a summary end.

56    We reject the proposition that r 10.01(3)(s) operates to expand the delegation of power effected in r 10.01 to permit a Registrar to dismiss a proceeding at the first court date without first hearing the parties, if the “Registrar considers appropriate”. This is because the nature of the power in r 10.01(3)(s) must be determined by reference to its context and having regard to r 10.01 as a whole. As already noted, a Registrar would be unable to dismiss all or part of a proceeding under r 10.01(2) without a hearing. Rule 10.01(3)(s) is clearly not intended to render r 10.01(2) inutile. Furthermore, the power conferred by r 10.01(1) and delegated to a Registrar is the power to give orders or directions “for the conduct of the proceeding”. The topics listed in r 10.01(3) that may attract this power confirm that the power delegated to the Registrar by this rule is the power to make orders or directions for the ongoing conduct of the proceedings with a view to readying the matter for trial (assuming that the dispute between the parties is not at some prior point resolved by agreement). The meaning of the words in r 10.01(3)(s) “any other matter that the Court or Registrar considers appropriate” is determined by this context, including by reference to the nature of the topics set out in r 10.01(3) and by reference to the general conferral of power in r 10.01(1). An order for summary dismissal for non-appearance is not aptly described as an order or direction for the “conduct of the proceeding” within the meaning of r 10.01(1). Nor does it share the relevant characteristics of any of the matters listed in r 10.01(3). Rule 10.01(3)(s) does not, therefore, support the conclusion for which the Minister contended.

57     The fact that the powers described in rr 10.01 and 13.01C(1)(c) are exercisable “at the first court date” does not mean that the reference to the Court in r 13.03C(1)(c) is to be read as if it were a reference to Registrars. This is because the fact that both the powers in r 13.03C(1)(c) and r 10.01 are exercisable at the first court date does not mean that r 13.03C(c) relevantly relates to the exercise by the Court of the power in r 10.01. As indicated already, the power in r 13.03C(1)(c) is different in nature and purpose to the power in r 10.01. The two provisions are separate and distinct. We are not persuaded that the legislative history of the FCC Rules leads to the contrary conclusion. Accordingly, we would reject the Minister’s submission that, having regard to r 10.01(3)(s), r 10.01 effected a delegation of the power in r 13.03C(1) when read with item 2(i) of the table in r 20.00A(1).

58    Further, the fact that Registrars of the FCCA initially had power, under r 10.01(2) of the Federal Magistrates Court Rules 2001 (Cth), to dismiss an application on the basis that an applicant failed to appear at the first court date does not provide a sufficient basis to disregard the change effected by the substitution of the terms of r 10.01(2) in 2006 with terms which did not include that express power, and the amendment in 2006 of r 13.03A (which in 2008 became r 13.03C) which expressly provided that the Court could exercise that power: see Federal Magistrates Court Amendment Rules 2006 (No 1) (Cth) and Federal Magistrates Court Amendment Rules 2008 (No 2) (Cth); see also Federal Magistrates Court Amendment Rules 2003 (No 1) (Cth).

The Minister’s second proposed construction

59    For the reasons we have stated at [56] above, we would also reject the Minister’s second approach to construction, namely that r 10.01(3)(s) of the FCC Rules alone was sufficient to confer power on a Registrar to dismiss an application summarily on the basis that the applicant failed to appear at the first court date. As we have already stated, an order for summary dismissal for non-appearance is not properly described as an order or direction for the “conduct of the proceeding” within the meaning of r 10.01(1). Nor does it share the relevant characteristics of any of the matters listed in r 10.01(3). We infer from this that r 10.01(3)(s) does not support the second approach to construction advocated by the Minister.

60    We do not consider that Shin Kobe Maru v Empire Shipping 181 CLR 404 at 421 or Weinstock v Beck 251 CLR 396 at [55]-[56] support the Minister’s second approach to construction. We are not concerned in this appeal with the construction of provisions conferring jurisdiction on the Court or granting it powers, as the High Court was in those cases. Rather, we are concerned with the existence of a delegation (or direction: see below at [62]) empowering a Registrar to act in the place of a Judge of the Court. Furthermore, the limitations on which the first respondent relies, to support her argument that the Registrar could not in this case act in the place of a Judge are found in the express words of the relevant provisions and, in the case of r 10.01 in the words “for the conduct of the proceeding”: cf Baini v R [2012] HCA 59; 246 CLR 469 at [14].

The Minister’s third proposed construction

61    Lastly, for the reasons set out at [49]-[51] above, we reject the Minister’s third proposed approach to construction, which was that the broad construction of item 2(i) of the table in r 20.00A(1) meant that power was conferred on a Registrar to make orders dismissing an application at the first court date where there was no appearance by the applicant. As we have said, there are two fundamental difficulties with this construction. First, the table in r 20.00A(1) includes items that specifically refer to particular powers of the Court. These items would have been unnecessary if the words “prescribed by these Rules” in item 2(i) were to be construed as the Minster contended. Secondly, if this construction were correct, then every power that the Rules provide is exercisable by the Court would also be exercisable by an approved Registrar despite the express terms of the particular rule and the rule-makers’ apparent choice about who was to exercise the power. As senior counsel for the Minister acknowledged, if this construction were accepted, then it would also mean that the express conferrals of power on a Registrar that are made in various parts of the FCC Rules would be unnecessary since item 2(i) of the table in r 20.00A(1) would have effected the conferral of these powers on an approved Registrar, together with the other powers that the FCC Rules confer on the Court. We do not consider that the need for the Chief Judge’s approval of a particular Registrar to complete this delegation to be a sufficient answer to this improbable result.

62    As we observed earlier, the Minister accepted that there was no evidence of a specific direction to the Registrar, for the purposes of s 102 of the FCCA Act, to exercise the relevant power under the FCC Rules. At the hearing of the appeal, the Minister relied on his written submissions as to the existence of a direction but did not seek to augment these submissions. We would not infer from the circumstances mentioned by the Minister in his written submission that any relevant direction was made. The Minister has failed to persuade us that there was any such direction.

Summary

63    As we have said, the text of the FCC Rules, especially r 13.03C(1), as well as their structure and organisation, strongly supported the first respondent’s case that only the Court, constituted by a Judge or Chief Judge, had the power under r 13.01C(1)(c) to dismiss an application at the first court date for the non-appearance of the applicant. As we have already noted, there was also an evident rationale for the rule-makers’ choice of the person on whom the FCC Rules conferred the relevant powers. As we have explained, we reject the three approaches to construction proposed by the Minister in support of the conclusion that the Registrar had the power to dismiss the first respondent’s application in the absence of the applicant at the first court date. The parties accepted that it would be unnecessary to consider the first respondent’s constitutional argument, based on Harris v Caladine 172 CLR 84, in the event we reached this conclusion.

64    For the reasons stated, we conclude that there was no error in the primary judge’s ruling that the Registrar had no power to dismiss the first respondent’s judicial review application on account of her absence at the first court date. We would dismiss the appeal, with costs.

Associate:

Dated:    2 August 2017