12.04.2011
8.19 Section 35A of the Federal Court of Australia Act provides that, if the Court or a judge so directs, a registrar may exercise, among other powers:
(c) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person; …
(f) the power to make an order as to costs; …
(h) a power of the Court prescribed by Rules of Court.[15]
8.20 The Federal Court of Australia Act provides that a registrar is not subject to the direction or control of any person or body in relation to the manner in which he or she exercises powers.[16] A party to proceedings in which a registrar has exercised any of the powers of the Court may apply to the Court to review that exercise of power.[17] The Court may, on application or of its own motion, review an exercise of power by a registrar and may make such order or orders as it thinks fit.[18]
8.21 Concerning these review provisions, Finn J stated, in Official Trustee in Bankruptcy v Nedlands Pty Ltd:
The burden of these provisions, as also that ensuring independence, is to satisfy the second of the conditions stipulated by Mason CJ and Deane J in Harris v Caladine (1991) 172 CLR 84 at 95 for the constitutional validity of a delegation of a part of the Court’s jurisdiction, powers and functions: ‘… 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.’ The consequential effect of the review provisions is to ensure that an order, though made by a Registrar, ‘can still be seen to be a decision of the Court’: Trustees of Franciscan Missionaries of Mary v Weir (2000) 98 FCR 447 at 459 [20].[19]
8.22 The Court will also determine an application if the registrar considers that it is not appropriate for the application to be determined by a registrar or if an application is made for the matter to be determined by the Court.[20]
8.23 Special masters and referees, discussed below, differ from registrars in a number of key respects, but perhaps most importantly:
registrars are officers of the court—paid for by the court, not the parties;[21] and
though reviewable, the decisions of registrars are decisions of the court.
[15] Federal Court of Australia Act 1976 (Cth) s 35A(1). However, s 35A(2) provides that ‘A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar’.
[16] Ibid s 35A(4).
[17] Ibid s 35A(5).
[18] Ibid s 35A(6). The Full Court has held that a review under s 35(6) requires a hearing de novo, that is, ‘a hearing at which the parties may adduce fresh evidence as of right’: Mazukov v University of Tasmania [2004] FCAFC 159.
[19] Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) [2000] 99 FCR 554, 558.
[20] Federal Court of Australia Act 1976 (Cth) s 35A(7).
[21] Ibid s 18E(4).