Tait v Harris [2003] FCA 1342

FEDERAL COURT OF AUSTRALIA

Tait v Harris [2003] FCA 1342

PRACTICE AND PROCEDURE – where judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and prerogative relief sought against Deputy Registrar of the High Court – discretionary considerations – whether adequate provision exists for alternative review Federal Magistrates Act 1999 (Cth) s 39(1) Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3(1), 10(2)(b)(ii), 16 Vexatious Litigants Act 1981 (Qld) High Court Rules Order 58 rule 4, Order 58 rule 17, Order 69A

Tait v Harris [2003] FCA 446 mentioned WILLIAM "BILLY" PETER TAIT v ELISA HARRIS (a Deputy Registrar of the High Court) No Q 55 of 2003 SPENDER J BRISBANE (heard in Townsville) 20 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 55 OF 2003

BETWEEN: WILLIAM "BILLY" PETER TAIT

APPLICANT

AND: ELISA HARRIS (a Deputy Registrar of the High Court)

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 20 NOVEMBER 2003

WHERE MADE: BRISBANE (heard in Townsville)

THE COURT ORDERS THAT: 1. The application BZ 24 dated 20 January 2003, which on transfer to the Federal Court became Q 55 of 2003, is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 55 OF 2003

BETWEEN: WILLIAM "BILLY" PETER TAIT

APPLICANT

AND: ELISA HARRIS (a Deputy Registrar of the High Court)

RESPONDENT

JUDGE: SPENDER J

DATE: 20 NOVEMBER 2003

PLACE: BRISBANE (heard in Townsville)

REASONS FOR JUDGMENT 1 On 20 January 2003 the applicant, in proceedings BZ 24/2003 made an application to the Federal Magistrates Court of Australia in Townsville. The respondent to that application was Elisa Harris, a Deputy Registrar of the High Court. By that application Mr Tait sought, by way of final orders, the following: '1. An order, to be made in the nature of mandamus and pursuant to the provisions of subsections (1), (2) or (3) of section 16 of the Administrative Decisions (Judicial Review) Act 1977 [herein the AD(JR)A] and any other relevant law, to direct that the Registrar of the High Court of Australia shall (within such times as are specified in the order sought by the Federal Magistrates Court); (a) file in the High Court; the application for special leave to appeal signed by the applicant (one William "Billy" Peter Tait) on 23 December 2002, and, the affidavit affirmed by the applicant at Townsville on 23 December 2002 and the exhibit "BT-CLVL/HCA1" thereto consisting of 8 items, which were received at the Brisbane Office of the Registry of the High Court on or before 2 January 2003; the notice of constitutional matters signed by the applicant on 23 December 2002 which was received at the Canberra Office of that Registry on or before 2 January 2003; the draft notice of appeal to the High Court signed by the applicant on 1 January 2003; the applicant's summary of argument signed by the applicant on 6 January 2003; and; any other documentation necessary or convenient to be filed for the purposes of the making of the applicant's case in; the application for special leave; and; any subsequent appeal allowed to proceed; and; (b) seal with the appropriate seal of the High Court and issue copies of the documents filed as directed herein, that is, one copy of each (of the documents filed) – all of which are to be sent postage paid to the Brisbane Office of the Registry of the Federal Magistrates Court to be filed therein, at least two copies of each (of the documents filed) – all of which are to be sent postage paid to the applicant, and, at least twelve further copies of the notice of constitutional matters – all of which are to be sent postage paid to the relevant Attorneys-General or equivalent officers of, the States and Territories of the Commonwealth of Australia, and the Commonwealth itself. 2. An order, to be made pursuant to the provisions of the AD(JR)A, the FMCR, and any other relevant law, that, (one way or another) has the effect of ensuring that within (a time to be specified by the Court) the respondent (Deputy Registrar) Elisa Harris pay to the applicant all of his costs of, or incidental to, the application for review – including any costs incurred by the applicant and that are not paid by the respondent Crown Solicitor Conrad Wilhelm Lohe in relation to any exercise by the Court of its associated jurisdiction which is concurrent with the jurisdiction of the High Court. 3. An order, to be made pursuant to, sections 14, 15 and 18 of the Federal Magistrates Act 1999 [herein the FMA], sections 35 and 35A of the Judiciary Act 1903, and any other relevant law, that, the applicant be granted special leave to appeal to the High Court, in the terms of the order sought at paragraph 3(iii) in page 8 of the application for special leave dated 23 December 2002. …' 2 On 2 April 2003 Federal Magistrate Coker, amongst other orders, ordered that pursuant to the provisions of s 39(1) of the Federal Magistrates Act 1999 (Cth), all outstanding applications be transferred to the Federal Court of Australia. Mr Tait sought leave to appeal on 14 April 2003 from, amongst other things, that order. The Full Court of the Federal Court (Spender, Cooper and Kiefel JJ) on 27 May 2003 refused Mr Tait's application for leave to appeal. 3 The matter transferred by Federal Magistrate Coker to the Federal Court pursuant to his Honour's orders of 2 April 2003 came on for hearing in Townsville on 24 September 2003. 4 By that application, Mr Tait sought relief pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (" the ADJR Act"), or by prerogative relief, from the decision of the Deputy Registrar of the High Court who declined to accept for filing documents received in the Brisbane office of the High Court registry on 2 January 2003, and a letter and "Notice of Constitutional Matter" received in the Canberra office of the registry on 2 January 2003. 5 In respect of the documents received in the Brisbane office of the High Court registry, Ms Elisa Harris, a Deputy Registrar of the High Court, wrote on 6 January 2003 to Mr Tait, saying in part: 'The documents accompanying your letter appear to be an application for special leave to appeal, and an affidavit. Your application cannot be accepted for filing for the following reasons: (a) The application must be filed in person, or by someone attending at the Brisbane office of the Registry on your behalf. (b) This application appears to seek special leave to appeal from the decision of a single judge of the Supreme Court of Queensland. You do not appear to have exhausted your appellate remedies in the Court below. You should do so before seeking special leave to appeal to this Court. (c) The application should not be accompanied by an affidavit. Order 69A of the High Court Rules makes provision for the filing of a summary of argument and draft notice of appeal only.' 6 It is relevant to note, in connection with the observation by Deputy Registrar Harris, that Mr Tait had not availed himself of the opportunity of challenging the correctness of the judgment in respect of which special leave was sought by seeking to appeal to the Court of Appeal, that the judgment in respect of which Mr Tait sought special leave was the judgment by Wilson J in the Supreme Court of Queensland which declared Mr Tait to be a vexatious litigant pursuant to the Vexatious Litigants Act 1981 (Qld). 7 Order 58 rule 4 of the High Court Rules provides: 'RULE 4 ISSUING AND FILING WRITS ETC 4(1) If a person wishes to issue or file a writ, process, commission, petition, appeal or application authorized by law or by these or any other rules of Court, the person may prepare it (in the prescribed form, if any) and present it to the Registry for issue or filing. 4(2) If it appears that the writ, process, commission, petition, appeal or application is in proper form and that the person presenting it is entitled to have it issued or filed, the Registrar or the Registrar's clerk must do all that is required to issue or file the document. 4(3) If the writ, process, commission, petition, appeal or application appears to a Registrar on its face to be an abuse of the process of the Court or a frivolous or vexatious proceeding or application, the Registrar must seek the direction of a Justice who may direct the Registrar to issue or file it or to refuse to issue or file it without the leave of a Justice first had and obtained by the party seeking to issue or file it.' 8 Order 58 rules 4(1) and (2) draw attention to "present" and "presenting". The tenor of Deputy Registrar Harris' letter of 6 January 2003 is that a person does not present an application by simply posting it to a Registry of the High Court. It may be open to argument whether this view is correct. 9 On a much wider question, it may be open to argument whether a decision by a Registrar of the High Court not to file a document posted to it as an initiating document for leave to appeal, is "a decision of an administrative character made under an enactment" within s 3(1) of the Administrative Decisions (Judicial Review) argument, and thus be amenable to review under that Act. However, in my opinion, this is a case in which the Federal Court should recognize and give effect to s 10(2)(b)(ii) of the ADJR Act. That section provides: '(2) Notwithstanding subsection (1): … (b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: … (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.' 10 Order 58 rule 17 of the High Court Rules provides: 'A party may apply to the Court or a Justice ex parte in a summary way for a direction to a Registrar to do an act – (a) which he is bound or entitled to do; (b) which the party applying requires him to do; and (c) which he refuses to do. 11 Order 69A of the High Court Rules provides, in a very detailed way, for the making of an application for special leave to appeal. There is in the present case a very real question as to whether there has been compliance, or even substantial compliance, with the provisions of the rules of the High Court and, in particular, Order 69A. 12 In my judgment, in the proper exercise of the discretion conferred by s 10(2)(b)(ii) of the ADJR Act, this is not a case where it is appropriate for the Federal Court to determine questions involving the interpretation of the High Court Rules and the conduct of a Deputy Registrar. In regard to the circumstance that Order 58 rule 17 provides a procedure provided by the Rules of the High Court for determining whether a Registrar ought to do something, an application may be made to a Justice of the High Court for that purpose. See in this respect the unreported judgment of Kiefel J in Tait v Harris [2003] FCA 446 of 13 May 2003, particularly at par 9. 13 For these reasons the application seeking review under the ADJR Act and prerogative relief will be refused. The application BZ 24 of 2003, which on transfer to the Federal Court became Q 55 of 2003, is dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .