Case: Bizuneh v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 42 (2003) 128 FCR 353
Outcome: distinguished
In Bizuneh v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 42 (2003) 128 FCR 353 , a Full Court rejected an application for leave to appeal from a direction of a judge to a registrar under O 46 r 7A of the Federal Court Rules ("the Federal Court Rules ") not to accept an application and accompanying affidavit for filing. At [16]-[17], the Full Court said: No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power. Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A. 74 It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."