Harris v Caladine [1991] HCA 9

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Harris v Caladine [1991] HCA 9

ORDER Appeal allowed. Set aside the orders of the Full Court of the Family Court. Remit the application of the appellant for review of the exercise of power by Deputy Registrar Lee to a single judge of the Family Court for determination in accordance with the judgment of this Court. No order as to the costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

1991, April 17 Mason C.J. and Deane J.

Over the years some Justices have expressed the view that functions which, when undertaken, are essentially and invariably exercises of judicial power cannot be undertaken in conformity with s. 71 of the Constitution by officers of federal courts such as masters and registrars and must be undertaken by judges appointed to those courts in accordance with Ch. III: Le Mesurier v. Connor [1] , per Isaacs J.; [2] , per Starke J.; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [3] , per Evatt J.; Kotsis v. Kotsis [4] , per Windeyer J. This view has never been confirmed by a decision of this Court. Nor has it ever won general or majority acceptance. In Reg. v. Davison [5] Dixon C.J. and McTiernan J. regarded the question whether certain duties falling upon a Ch. III court could be executed, subject to judicial confirmation or review, by an officer of the court as being open. Subsequently, in The Commonwealth v. Hospital Contribution Fund [6] ("the H.C.F. Case"), Mason J. said that the vesting of judicial power in a federal court "should not necessarily exclude the exercise of some jurisdiction and powers by a master or registrar of the Court provided that the exercise is subject to review or appeal". In the same case Murphy J. considered that, in respect of any federal court, "Parliament may authorize the exercise of its jurisdiction by officers or others who are not justices provided that these are under the real supervision and control of the justices of the court" [7] .