Tait v Harris [2003] FCA 446

FEDERAL COURT OF AUSTRALIA

Tait v Harris [2003] FCA 446

ADMINISTRATIVE LAW – Administrative Decisions (Judicial Review) Act 1977 (Cth) – review sought of decision of the Deputy Registrar of the High Court – whether decision administrative or judicial – no ground of review made out – discretionary considerations – application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Federal Court of Australia Act 1976 (Cth) s 25(2)

Judiciary Act 1903 (Cth) s 35(2)

High Court Rules O 58 r 4(1), O 58 r 17, O 69A r 3(1)

Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34 cited

Letts v Commonwealth of Australia (1985) 62 ALR 517 cited

WILLIAM PETER TAIT v ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT) Q 34 of 2003

KIEFEL J 13 MAY 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q34 OF 2003

BETWEEN: WILLIAM PETER TAIT

APPLICANT

AND: ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT)

RESPONDENT

JUDGE: KIEFEL J

DATE: 13 MAY 2003

PLACE: BRISBANE

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q34 OF 2003

BETWEEN: WILLIAM PETER TAIT

APPLICANT

AND: ELISA HARRIS (A DEPUTY REGISTRAR OF THE HIGH COURT)

RESPONDENT

JUDGE: KIEFEL J

DATE: 13 MAY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 On 23 April 2002 Mr Tait forwarded to the High Court Registry, by post, a document purporting to be an application for special leave from a number of decisions of the Queensland Supreme Court – of the Court of Appeal and of single judges. On 1 May 2002 a Deputy Registrar of the High Court, the respondent to these proceedings, wrote advising Mr Tait that the application had not been accepted. She explained that it must be accompanied by a copy of the reasons for judgment and the order appealed from. The application was also out of time. She advised Mr Tait of the need to apply for an order that the time limitations in O 69A r 3(1) of the High Court Rules ('the Rules') be dispensed with and advised him how to go about that. The Deputy Registrar advised that, in relation to the judgments of single judges of the Supreme Court, he should exhaust all appellate avenues in that Court before applying for special leave. She further advised of the need for the attendance by himself, or by someone on his behalf when filing the application, as the Rules did not provide for their filing by mail. Mr Tait resides in Townsville. The Deputy Registrar enclosed a copy of the correct form of waiver, which I take to refer to filing fees. 2 Mr Tait appealed from that decision to the Federal Magistrates Court. The Magistrate clearly considered that there was no error disclosed in the Deputy Registrar's approach, which required compliance with the rules or an application to waive them where it was possible. The Federal Magistrate also questioned whether there was jurisdiction to reviewand whether the decision of the Deputy Registrar was administrative in nature, but did not determine that question. Mr Tait appeals from that decision. 3 The Chief Justice of this Court has directed that a single judge may determine this matter: see s 25(2) of the Federal Court of Australia Act 1976 (Cth). Mr Tait disputes the validity of such a provision but, as I have advised him, I do not consider that I am seized of any controversy about it. 4 When the matter was first brought on for directions I indicated my provisional view to Mr Tait, that no error on the part of the Federal Magistrate was disclosed in his notice of appeal and that his application appeared to be doomed to failure. The respondent has not taken part in these proceedings. 5 Of the 38 or so grounds listed in the notice of appeal, most are mere recitations of general grounds and general assertions. Mr Tait informed me that he considers it to be the duty of the court to consider each of the statutory grounds for review and to consider whether any case is made out. I do not agree. He has also referred to a breach of natural justice on the part of the Federal Magistrate. When asked to what this refers, he indicated simply that he had been 'cut short' in the Federal Magistrates Court hearing but did not expand further upon it. It is not obvious to me that there was something he needed to put in his case which might have been influential and was not understood by the Magistrate. 6 Mr Tait has now filed some 77 pages of handwritten submissions. He submits that the Deputy Registrar's decision concerning the application of the Rules reflect "frivolous concerns". However, the requirements of the Rules relating to applications for special leave – as referred to by the Deputy Registrar – are passed in obligatory terms. There would not seem to me to be any error disclosed in the Deputy Registrar's reasons concerning the need for them to be complied with. Mr Tait says that the reasons for judgment did accompany his application, although they were filed separately as an exhibit to an affidavit. It does not seem to me to be a very strong argument. He says that there is nothing to prevent him from filing one application with respect to four judgments but that would not seem to accord with the language of O 69A. He also submits that a letter accompanying the application could be seen to ask for waivers generally and the general orders he left open for the Court to give covers every contingency. If that were so it would seem to render negatory the requirements of the Rules. I do not accept that, for these reasons, his application substantially complied with the Rules. 7 Mr Tait also submitted that the Deputy Registrar was wrong in relation to the availability of special leave applications from judgments of a single judge and interlocutory judgments and referred to s 35(2) of the Judiciary Act 1903 (Cth). It seems to me however that this was provided as advice by the Deputy Registrar, knowing that his prospects on a special leave application would be affected, and did not form an essential part of the decision not to accept his application, which was based upon non-compliance with the Rules. 8 Mr Tait's larger concern, it seemed to me, was that part of the advices from the Deputy Registrar which he sees as denying him the right to file an application in the High Court, because he is unable to travel to Brisbane to do so. I add that he does not appear to have explored the possibility of someone in Brisbane filing the document for him. He submits that O 58 r 4(1) of the Rules could not be read in this way. This submission highlights a fundamental flaw in these proceedings and the bringing of them in the Federal Magistrates Court and this Court. The question whether the decisions of Registrars of the High Court are administrative or judicial has been earlier considered: see Letts v Commonwealth of Australia (1985) 62 ALR 517 and Croker v Deputy Registrar of the High Court of Australia [2003] FCA 34. The answer in each case will depend largely on what is undertaken by the Registrar or Deputy Registrar. In the present I incline to the view that the Deputy Registrar has not undertaken any judicial function. No controversy was determined and no substantive rights pronounced. The decision was therefore reviewable by the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It might also be the subject of an application under the Judiciary Act 1903 (Cth). 9 It seems to me however quite inappropriate for either the Federal Magistrates Court or this Court to determine questions involving the interpretation of the High Court Rules and the conduct of a Deputy Registrar, particularly given that there is a procedure provided by those Rules for determining whether a Registrar ought to do something: see O 58 r 17. An application may be made to a Justice of the High Court for that purpose. In these circumstances I would not be minded to grant relief even if Mr Tait were able to make out a case of error on the part of the Magistrate, which he has not in any event done. The fact that the Federal Magistrate did not determine the matter in this way does not preclude this Court from determining the question of whether relief should be given or refused on an appeal. 10 The application will be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.