Case: Harris v Caladine [1991] HCA 9 ; (1991) 172 CLR 84
Outcome: cited
to purport to give to a Certificate such a status would be Constitutionally impermissible: cf Harris v Caladine (1991) 172 CLR 84. Section 37A(1) of the Family Law Act 1975 (Cth) allowed the judges of the Family Court to make rules delegating to Registrars all or any of the powers of the Court. An order had been made delegating to Registrars certain powers. A Registrar of the Family Court had there made consent orders for the settlement of property. By a majority it was held that the order was valid. Mason CJ and Deane J there held at 95: It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. Dawson J observed at 122: ... a federal court must retain effective supervision and control over the exercise of its functions by its officers. The requirement that a federal court " retain effective supervision and control " has been said to be a " constitutional imperative ": Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 321 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Further assistance in reaching the same conclusion may also be gleaned from the following observations of Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 130 ALR 245 at 247, when His Honour was addressing analogous provisions in the Industrial Relations Act 1988 (Cth) as follows: It is correct, as counsel observed, that there is no reference in s 377 to the review being a hearing de novo; but the section imposes no restriction on the extent of review. The reason for this is clear; a right of full review is a constitutional precondition to the vesting of the court's powers in a non-judicial officer. His Honour then referred to Harris v Caladine , supra, and continued: The term "hearing de novo" is perhaps ambiguous. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact. Like Moore J, I think a review hearing is a "hearing de novo" in the latter sense. A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, "a hearing and a determination by a judge", without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues. There may be occasions when it will be appropriate to conduct the review hearing as if there had never been an earlier hearing, perhaps because the earlier hearing so miscarried that the evidence became confused and the findings irrelevant or there is so much new evidence that it swamps the earlier. But ordinarily this will not be so. Where parties make a conscientious effort to adduce the relevant evidence at a properly conducted first hearing, by the end of that hearing they will ordinarily have found considerable common ground. It will have become apparent that some issues, on which they initially had inconsistent positions, are irrelevant or peripheral. They will have dropped out of the case. Differences of evidence on other issues will have been reconciled or explained; it may have become apparent to everyone that one particular version of events is more likely to be correct than its competitor. It would be unfortunate indeed if constitutional necessity compelled the court to ignore this narrowing of the dispute. I do not think it does. The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar. But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review. In most cases, by the review stage, the critical factual issues will be few and well-defined. The course most conducive to the proper conduct of the review will be for the judge, in conjunction with the parties, to identify and concentrate upon those issues. Although nobody is bound by the judicial registrar's findings of fact, and it is important that everybody concerned with the case understands that, the judicial registrar's reasons for decision will usually assist to identify the issues to be determined on the review. ... See also: D'Antuono v Minister of Health (1997) 80 FCR 226 at 228 per Burchett J and Murphy MD, "Judicial Registrars of Federal Courts: Widening the Supervised Exercise of Delegated Judicial Power" (1996) 6 JJA 226.