Case: Letts v Commonwealth (1985) 8 FCR 585
Outcome: cited
Letts v Commonwealth (1985) 8 FCR 585 , Toohey J (when sitting as a Judge of this Court) held that a decision made by the Registrar of the High Court to seek a direction from a Justice of the High Court pursuant to O 58 r 4(3) of the High Court Rules as to whether the Registrar should decline to accept a document for filing because it was an abuse of the process of the Court or a frivolous or vexatious proceeding, was not a decision of an administrative character. At 587 of the report, Toohey J said: The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was ... part of the organisation through which the powers and jurisdiction of the court were exercised ...": see Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13 ; (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission of Western Australia v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court. Letts 8 FCR 585 was a very different case from the present. In Letts , the decision of the Registrar under challenge was a decision to refer a matter to a Justice of the High Court viz whether the Justice should direct the Registrar not to accept a document. The present case involves a decision made by the Deputy District Registrar not to accept the proposed Notice of Appeal. There was no attempt to involve a Judge of this Court in the relevant decision-making in the present case. Furthermore, Letts 8 FCR 585 concerned an application in this Court under the ADJR Act for judicial review of a decision of the Registrar of the High Court&#8212;a very different subject matter from the subject matter of the present case. In Letts 8 FCR 585 at 587 588, Toohey J said: If I was of the opinion that the action of the Registrar constituted an administrative decision made under an enactment and thus susceptible of review under the Judicial Review Act, I would nevertheless refuse to grant the application for review. Adequate provision is made by the High Court Rules for a justice of that Court to determine whether or not the Registrar shall issue the process in question. In those circumstances it would be quite inappropriate for a judge of this Court to determine what is in essence that very matter. The judicial review in this Court of a decision by a Registrar of this Court to refuse to accept a document for filing is a very different thing from the judicial review in this Court of a decision of the Registrar of the High Court to seek a direction from a Justice of that Court. Further, in Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as " administrative in character ". His Honour nonetheless followed Bizuneh [2003] FCAFC 42 ; 128 FCR 353 as he regarded himself as being bound by the decision. At [40], his Honour said: It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts . Had the reasoning in Letts been followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal.