FEDERAL COURT OF AUSTRALIA

Paramasivam v Randwick City Council (No 2) [2005] FCA 508

PRACTICE and PROCEDURE – proceedings seeking judicial review of a refusal of a Registrar to issue initiating process following direction by a Judge – arguable case that Registrar took into account irrelevant considerations – no opposition to application – Federal Court Rules O 46 r 7A

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Federal Court Rules (Cth) O 46 r 7A

GAJA LAKSHMI PARAMASIVAM v RANDWICK CITY COUNCIL and OTHERS

NSD 124 of 2005

SACKVILLE J

SYDNEY

28 APRIL 2005

THE COURT ORDERS THAT:

1. The application be amended by including a reference in the grounds of the application to s 5(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
2. The decision made by the second respondent on 21 December 2004, to refer to a Judge the discrimination application and the supporting affidavit the applicant seeks to file in the Court, be set aside.
3. The direction made by the third respondent on 23 December 2004, directing the second respondent to refuse to accept the discrimination application and the supporting affidavit, be set aside. 
4. The decision of the second respondent, made on 24 December 2004, not to accept the discrimination application and supporting affidavit, be set aside.
5. There be no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

EX TEMPORE REASONS FOR JUDGMENT

1                     On 7 April 2005, I rejected an application for summary dismissal of the present proceedings: [2005] FCA 369.  The summary dismissal application was brought by the first respondent (‘the Council’).  The second and third respondents have submitted to the orders of the Court.

2                     I indicated in the judgment that in my view, it is arguable that the Deputy District Registrar’s decision to seek a direction pursuant to Federal Court Rules (‘FCR’), O46 r 7A, is amenable to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’).  I also expressed the view that it is arguable that a direction given by a Judge not to accept a document is liable to be set aside if the Deputy District Registrar’s decision to refer a matter to a Judge is itself liable to be set aside.  Finally, I expressed the view that the applicant had an arguable case that the Deputy District Registrar had taken into account irrelevant considerations when deciding to seek a direction pursuant to FCR, O 46 r 7A.  In summary, I thought that the applicant had an arguable case for judicial review of the decision made by the Deputy District Registrar not to accept the application that she sought to file in the Registry of this Court on 20 December 2004 (the ‘discrimination application’).

3                     The matter was listed for directions today.  When the matter was called, the solicitor for the Council stated that the Council proposed to play no further part in the proceedings.  She indicated that the Council did not oppose the grant of relief to the applicant in respect of the Deputy District Registrar’s decision.

4                     The application filed in these proceedings on 31 January 2005 seeks an order that the Registry of this Court be directed to accept the applicant’s discrimination application ‘as if the applicant was not known to them’.  The reference to ‘them’ appears to be to the Deputy District Registrar and the Judge making the direction.

5                     As I indicated to the applicant, I do not think an order in this form should be made, despite the Council not opposing it.  When an applicant for judicial review of an administrative decision makes out a ground of review, ordinarily it is appropriate to order that the decision be set aside and the matter remitted to the decision-maker for determination according to law.  It is then for the decision-maker to reconsider the matter consistently with the judgment of the Court.

6                     Except in circumstances where only one outcome is possible, the role of the Court is generally to supervise the legality of the administrative decision-making process.  It is not to exercise any discretion that may be reposed in an administrative decision-maker.

7                     In view of the approach taken by the Council to the present application, I think it is appropriate to make an order setting aside the decision of the Deputy District Registrar, made pursuant to FCR, O 46 r 7A, to seek the direction of a Judge.  It is also appropriate to make an order setting aside the direction made by Jacobson J on 23 December 2004, that the Deputy District Registrar not accept the discrimination application and the supporting affidavit.  It follows that the Deputy District Registrar’s decision, made on 24 December 2004, not to accept the discrimination application, should also be set aside.

8                     As I have noted, the applicant’s case is arguable.  I appreciate that if the matter were litigated to finality, there might well be arguments that could be put against the orders that are proposed.  However, no party wishes to put any such arguments.  Having ruled that the applicant’s contentions are arguable, the convenient course is to make the orders I have foreshadowed.

9                     I wish to make it clear that the orders I propose to make do not necessarily mean that the discrimination application which the applicant wishes to file must be accepted by a Registrar of the Court.  It will be a matter for the Registrar to decide whether he or she considers it appropriate to refer the matter to a Judge pursuant to FCR, O 46 r 7A.  If the application is referred to a Judge, it will then be a matter for that Judge to determine what direction (if any) should be made.

10                  The orders I propose to make are as follows:

1. The application be amended by including a reference in the grounds of the application to s 5(1)(d) of the ADJR Act.
2. The decision made by the second respondent on 21 December 2004, to refer to a Judge the discrimination application and the supporting affidavit the applicant seeks to file in the Court, be set aside.
3. The direction made by the third respondent on 23 December 2004, directing the second respondent to refuse to accept the discrimination application and the supporting affidavit, be set aside. 
4. The decision of the second respondent, made on 24 December 2004, not to accept the discrimination application and supporting affidavit, be set aside.
5. There be no order as to costs.

Associate:

Dated:              29 April 2005