Case: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507
Outcome: applied
is a great deal to be said for the arguments advanced by Counsel for the first respondent in support of the proposition that the Registrar's decision was plainly correct. But the first respondent does not need to go that far. The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing " on its face " is " an abuse of the process of the Court or is frivolous or vexatious " (the words are " if the document appears to the Registrar ... to be ...") (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably ( Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision. In the present case, there is no evidence upon which I could, let alone should, make a finding that the second respondent did not actually and honestly form the opinion which she expressed in her letter to the applicant dated 7 July 2009. The terms of the proposed Notice of Appeal itself provide a reasonable basis for the formation of that opinion. It may be that the expression on its face when used in O 46 r 7A allows the Registrar to consider other documents in addition to the document which is submitted for filing, if it is necessary to do so in order to make sense of that document. In the present case, there is no evidence to suggest that the second respondent did more than look at the proposed Notice of Appeal. In those circumstances, I do not need to determine the wider question. It was submitted on behalf of the first respondent that I have power to review the Registrar's decision pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth) ( the Act ). Section 35A(1) of the Act provides that certain powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar. Those powers are set out in subpars (a) to (h) of s 35A(1). Section 35A(5) and s 35A(6) are in the following terms: 35A Powers of Registrars ... (5) A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. (6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised. The power to reject a document presented for filing given to the Registrar under O 46 r 7A(1) is not a power of the Court within the meaning of that expression in s 35A(1) of the Act. It is a power given to the Registrar directly by the Federal Court Rules . Section 35A is intended to deal with powers of the Court other than powers already specifically given to the Registrar under the Rules. Furthermore, even if it were such a power, it does not fall within the specific powers referred to in s 35A(1)(a) to (h) of the Act. Finally, in this case, the second respondent did not act as she did pursuant to a direction from a Judge. For s 35A(1) to be engaged, there must first be a direction given by the Court or a Judge. For these reasons, the Registrar's decision was not a decision made in the exercise of a power of the kind referred to in s 35A(1) of the Act. For that reason, the Registrar's decision cannot be reviewed under that section because, under subs (5) and (6) of s 35A of the Act, only an exercise of power pursuant to s 35A is reviewable under those subsections. For these reasons, I reject the argument of the first respondent that I can review the Registrar's decision pursuant to s 35A(6) of the Act. The rejection of the first respondent's s 35A argument necessarily carries with it the rejection of the further argument put by the first respondent that, because the decision can be reviewed under s 35A(6) of the Act, I should refuse relief to the applicant under the ADJR Act on discretionary grounds, that is to say, I should refuse relief because he has a perfectly adequate alternative avenue available to him whereby he can redress the wrong about which he complains.