Federal Court of Australia

LFDB v Deputy District Registrar [2023] FCA 1516

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for an extension of time be dismissed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    This application is the latest outbreak of litigation relating to the Applicant and his ex-partner which has spanned the courts of Australia and New Zealand for nearly 15 years.

2    By this application dated 6 July 2023, the Applicant seeks an extension of time in which to bring an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) for review of a decision made by a Deputy District Registrar of this Court to issue certificates of registration in respect of two judgments of the High Court of New Zealand pursuant to the Trans-Tasman Proceedings Act 2010 (Cth) (‘TTP Act’) on 16 December 2015.

3    The Applicant has previously sought to set aside the registration of the two judgments under s 72 of the TTP Act. That application was dismissed by Griffiths J in LFDB v SM (No 3) [2017] FCA 80 and a subsequent appeal dismissed by the Full Court in LFDB v SM [2017] FCAFC 178.

4    On 18 July 2023, I caused a letter to be sent by a Registrar to the Applicant setting out my preliminary view that the decision to register the judgments was not reviewable under the ADJR Act and inviting the Applicant to provide written submissions. The Applicant provided written submissions dated 31 July 2023 and 24 November 2023. An oral hearing was conducted on 27 November 2023 at which the Applicant appeared in person and gave articulate oral submissions. For the reasons which follow, these submissions have not persuaded me that the Applicant’s application for an extension of time should be granted.

5    By s 5(1) of the ADJR Act, a person may apply on the grounds enumerated therein for judicial review of ‘a decision to which this Act applies’. That phrase is relevantly defined in s 3(1) to mean ‘a decision of an administrative character’.

6    The power to register a New Zealand judgment is vested in the Court by s 68(1) of the TTP Act. Section 68(1) provides:

An Australian court must, on application under section 67, register a registrable NZ judgment in that court in accordance with this Part.

7    Section 67 provides that a person may apply to register a judgment in either ‘a superior Australian court’ or ‘an inferior Australian court’. ‘Australian court’ is defined to mean ‘a federal court’ or ‘a court of a State or Territory’. Registration is mandated by s 68(1) only if the judgment is a ‘registrable NZ judgment’ which in turn requires satisfaction of the criteria set out in s 66. By s 74, a registered judgment has the same force and effect and may give rise to the same enforcement proceedings as if the judgment had been given by the relevant Australian court. Section 72 sets out grounds on which an Australian court must set aside a registration.

8    The Applicant submits that the registration of a judgment under s 68(1) is an exercise of administrative, rather than judicial, power and therefore falls within the purview of the ADJR Act. In this regard, the Applicant relies on [11] in Herd v Haines [2023] FCA 325 where Sarah C Derrington J stated:

The process established under the TTP Act is essentially administrative. An application to register a judgment under the TTP Act is made in the prescribed form (s 67(5)(a)) in accordance with the requirements prescribed in the Trans-Tasman Proceedings Regulation 2012 (Cth) (s 67(5)(b), Form 5). This has to be done also within the prescribed period (s 67(5)(c)). Upon the application being approved, a Registrar of the Court issues a Certificate of Registration.

(Emphasis added.)

9    I do not think this passage assists the Applicant’s case. As the remainder of the paragraph demonstrates, her Honour was referring in the emphasised sentence to the mechanical nature of the process of registering judgments under the TTP Act. The application before her Honour was an application to register a judgment under s 68(1) to which she acceded. Plainly therefore her Honour cannot be taken to have been suggesting that the power was anything but judicial in character.

10    I would accept the Applicant’s submission insofar as it entails the contention that due to its mechanical nature the power of registration, if conferred on the executive, would properly be characterised as administrative. However, some powers take their categorisation as judicial or administrative from the nature of the repository in which they are reposed. Thus, in R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277, Kitto J observed at 305 that ‘sometimes a grant of power not insusceptible of a judicial exercise is to be understood as a grant of judicial power because the recipient of the grant is judicial’. Indeed, a similar point was made the previous year when a majority of the Court observed that ‘[t]here are not a few subjects which may be dealt with administratively or submitted to the judicial power without offending against any constitutional precept arising from Chap. III’: R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 278 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

11    There are a number of examples of powers which, if reposed in the executive, would be administrative in nature but which, because they are reposed in a court, have been held to be judicial in nature. Thus, for example, the obligation of the Court to issue an examination summons under s 596A of the Corporations Act 2001 (Cth) once its pre-conditions are satisfied was held to involve an exercise of judicial power: Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [31], [36] (per Kiefel, Keane, Nettle and Gordon JJ) and [101] (per Gageler J). Section 596A provides:

The Court is to summon a person for examination about a corporation’s examinable affairs if:

(a) an eligible applicant applies for the summons; and

(b) the Court is satisfied that the person is an officer or provisional liquidator of the corporation or was such an officer or provisional liquidator during or after the 2 years ending:

(i) if the corporation is under administration—on the section 513C day in relation to the administration; or

(ii) if the corporation has executed a deed of company arrangement that has not yet terminated—on the section 513C day in relation to the administration that ended when the deed was executed; or

(iia) if the corporation is under restructuring—on the section 513CA day in relation to the restructuring; or

(iib) if the corporation has made a restructuring plan that has not yet terminated—on the section 513CA day in relation to the restructuring that ended when the plan was made; or

(iii) if the corporation is being, or has been, wound up—when the winding up began; or

(iv) otherwise—when the application is made.

12    So far as the present question is concerned, s 596A and s 68(1) are structurally analogous. Both involve an obligation being cast upon the Court to take a step upon demonstration of certain pre-conditions.

13    Thus, whilst I accept that if the power in s 68(1) was reposed in the executive it would be administrative in nature, the fact that it has been reposed in a court means that it must be characterised as judicial. Another way, perhaps, of seeing the point is that if the Applicant’s contention that the power in s 68(1) is administrative were correct it would entail that s 68(1) was constitutionally invalid for such an investiture would be contrary to Chapter III.

14    Unsurprisingly, provisions in other legislation empowering a federal court to register a foreign judgment or arbitral award have been held to involve the exercise of the judicial power of the Commonwealth: see Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; 258 CLR 31 at [42] per French CJ and Kiefel J; TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 at [105] per Hayne, Crennan, Kiefel and Bell JJ.

15    In making these remarks, I should not be taken as suggesting that the power to register judgments is one which could validly be reposed in the executive. Whilst the nature of the power is not necessarily inconsistent with such a characterisation, it may be doubted whether an administrative act could engage this Court’s enforcement remedies without necessarily involving an exercise of the judicial power of the Commonwealth: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

16    The Applicant also submits that the Deputy District Registrar did not have the power to register the judgments under s 68(1) of the TTP Act. In this regard, the Applicant points out that the power to register a judgment under s 68(1) does not appear in either s 35A(1) of the Federal Court of Australia Act 1976 (Cth) or sch 2 of the Federal Court of Australia Rules 2011 (Cth) which together set out the judicial powers exercisable by Registrars. It is accordingly said that the decision involved jurisdictional error and is thus ‘no decision at all’ (relying on Plaintiff S157/2022 v Commonwealth [2003] HCA 2; 211 CLR 476 at [76]) such that the judgments remain unregistered. Given the nature of the application which the Applicant seeks to bring, this submission may be taken to entail residually the proposition that the purported exercise of the power in this manner by a Deputy District Registrar gave the decision the necessary administrative character to be reviewed under the ADJR Act.

17    There is force in the Applicant’s contention that Registrars of this Court are not empowered to register judgments under s 68 of the TTP Act. However, even assuming its correctness, that contention does not assist the Applicant on the present application. The Deputy District Registrar purported to be exercising power pursuant to s 68(1). As I have explained above, the power conferred by s 68(1) is of a judicial character. The Deputy District Registrar therefore purported to be exercising judicial power. The alleged want of jurisdiction would not alter the legal character of the purported decision. It may be debated on the hypothesis of such jurisdictional error whether the purported decision is a nullity or valid and binding until set aside as a decision of a superior court of record (cf. Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) [2000] FCA 599; 99 FCR 554 at [18]-[24] per Finn J) but by neither path does it become a decision of an administrative character. I note in passing that this argument was not made by the Applicant in the course of his application to set aside the registrations before Griffiths J or on appeal before the Full Court.

18    I therefore do not accept the Applicant’s submission that registration of a New Zealand judgment pursuant to s 68 of the TTP Act is an exercise of administrative power capable of review under the ADJR Act. It follows that there would be no utility in extending the time within which the Applicant may bring such an application and that the present application for such an extension must be dismissed.

Associate:

Dated:    14 December 2023