Case: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353
Outcome: applied
is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the 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. I too am bound by the reasoning in Bizuneh [2003] FCAFC 42 ; 128 FCR 353. If a direction by a Judge to a Registrar is an administrative decision and not a judicial decision, it follows that the decision by a Registrar taken on his or her own initiative pursuant to O 46 r 7A(1) is a fortiori a decision of an administrative character. Quite apart from the fact that the reasoning in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 is binding upon me, I would have thought that a decision of the latter kind made by a Registrar on his or her own initiative is clearly a decision of an administrative character. For these reasons, I am of the opinion that the Registrar's decision was a decision of an administrative character and is thus susceptible to judicial review under the ADJR Act. In O 1 r 4 of the Federal Court Rules , Registrar is defined, for the purposes of those Rules, as: ... the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place.