Atkinson v Stanley

GROUNDS 4 The grounds expressed by Mr Atkinson in his application, brought pursuant to the ADJR Act, are as follows: 1. Pursuant to section 6(1)(a) of the Administrative Decisions (Judicial Review) Act 1977, the Respondent engaged in conduct that breached the rules of natural justice by: (a) arbitrarily choosing to deal with the Application in a manner that is non-prescribed and detrimental to [Mr Atkinson's] interests. (b) not providing reasons for choosing to deal with the Application in that manner. (c) unfairly imposing additional requirements on [Mr Atkinson]. 2. Pursuant to section 6(1)(b) of the Administrative Decisions (Judicial Review) Act 1977, the Respondent engaged in conduct that did not follow the correct procedures by: (a) dealing with the Application in a non-prescribed manner. (b) not identifying any enacting or enabling legislation for dealing with the Application in that manner. (c) not making a decision to either accept or reject the Application. (d) not checking the relevant Legislative Acts concerning the Federal Court's jurisdiction to deal with the Application. (e) not checking the relevant Legislative Acts concerning the Administrative Appeals Tribunal's jurisdiction to deal with the Application. 3. Pursuant to section 6(1)(f) of the Administrative Decisions (Judicial Review) Act 1977, the Respondent engaged in conduct that involved the following errors of law: (a) a wrong determination concerning the Federal Court's jurisdiction to deal with the Application. (b) a wrong determination concerning the Administrative Appeals Tribunal's jurisdiction to deal with the Application. (c) not identifying any enacting or enabling legislation for the manner in which the Application was dealt with. (d) concluding or otherwise dispensing with the Application in an unlawful manner. 5 The Deputy District Registrar has filed a submitting notice seeking to be heard only on the question of costs. I have inferred that seeking to be heard on the question of costs would only arise if there were to be costs orders.

'SUPPORTING DOCUMENT' 6 There is no affidavit in support of the application. The substance of Mr Atkinson's 'Supporting Document' is as follows. Background and Correspondence 1. On 14 December 2016, the Federal Circuit Court of Australia delivered a final judgment in the proceedings PEG344/2015. Included in that judgment were orders dismissing two interlocutory applications. On 6 January 2017, [Mr Atkinson] lodged an application for leave to appeal from the orders to dismiss the two interlocutory applications. On 13 April 2017, [Mr Atkinson] received a written notice of the rejection of that application by [a Deputy District Registrar]. 2. On 1 May 2017 at 5:25 PM, [Mr Atkinson] electronically lodged an application for judicial review of [the original DDR's] decision to reject [Mr Atkinson's] application for leave to appeal. The application for judicial review (the "Application") consisted of 4 documents, one of which was the Federal Court's approved form for applications for judicial review of an administrative decision a.k.a a "Form 66". The deadline for lodging the Application was 4.30 PM on 11 May 2017. 3. On 2 May at 9:20 AM, [Mr Atkinson] received an email notice from the Court's registry in Perth. The subject of the email was "Lodgment Rejection, eLodgment ID 447498 on New File, WESTERN AUSTRALIA REGISTRY" and was set out as follows: (2/05/2017 9:20 AM) Dear Garth Atkinson Thank you for using eLodgment. Your lodgment has been rejected for the following reason; If you wish to review the Registrars decision, you may wish to contact the Administrative Appeals Tribunal. Link: https://www.elodgment.fedcourt.gov.au/eLodgment/default.aspx?lid=447498 If you paid fees for this lodgment, they will be refunded. If you have any queries regarding your refund please email Accounts@fedcourt.gov.au. If you have any questions regarding your lodgment, please contact your Local Registry. 4. As the above email does not explain why the Application had been rejected, [Mr Atkinson] replied as follows: (2/05/17 9:41 AM) Good morning. Why was my application for review rejected and who made the decision to reject it? Thanks Garth Atkinson 5. At 10AM, [Mr Atkinson] received the following answer from the W.A. Registry: (2/05/2017 10:00 AM) Dear Mr Atkinson, The Federal Court is not the correct jurisdiction to review the registrar's decision to not accept your application for leave to appeal. The correct jurisdiction is the Administrative Appeals Tribunal. The eLodgment you detail below will be rejected on those grounds and your payment refunded. It is recommended that you obtain legal advice. Sincerely, Client Services … (emphasis added) 7 The above email is noteworthy, Mr Atkinson says, for the following reasons: (a) It indicates the Application will be rejected. (b) It does not equivocate on any point. (c) it does not claim that no decision had been made to not accept the Application. (d) It does not offer to accept the Application if it is resubmitted. (e) It describes the grounds for rejection as being: i. The Federal Court is not the correct jurisdiction for the Application. ii. The [Tribunal] is the correct jurisdiction for the Application. (f) It is not a notification of the type required by r 2.27 of the Federal Court Rules 2011 ... (g) It is wrong about the Federal Court not being the correct jurisdiction to hear the Application. (h) It is wrong about the [Tribunal] being the correct jurisdiction to hear the Application. (i) It does not identify the Registrar responsible for the rejection. …. 8 As Mr Atkinson says he did not believe the above email had been sent in good faith, he replied as follows: … Hi Client Services, The following is addressed to the individual who sent me the email below. You are on notice that I intend to make a formal complaint of your conduct. What is your name and position of employment with the Federal Court of Australia? 9 The Director of Court Services for the Western Australian District Registry replied to Mr Atkinson on the same day: … Dear Mr Atkinson, My details are below. I recommend you look at the difference between registrars making an administrative decision as opposed to exercising powers under section 35A of the Federal Court of Australia Act, and the different processes for reviewing administrative decisions as opposed to exercising powers. I also strongly suggest you obtain legal advice regarding your matter. Formal complaints can be made as detailed here: http://www.fedcourt.gov.au/feedback-and-complaints/registry-complaints Sincerely, […] |Director Court Services | WA Registry Federal Court of Australia | Ph 08 9268 7120 … (emphasis added) 10 The recommendation in the above email is inexplicable, according to Mr Atkinson. Approximately seven hours after the Deputy District Registrar had rejected the application, Mr Atkinson says he provided sufficient information to demonstrate that the Deputy District Registrar's decision to reject the application was wrong. That information was provided by an email dated 2 May 2017: … Dear [Director of Court Services], I am aware of the distinction between those two actions as drawn by the Full Court in the case of Satchithanantham v National Australia Bank Limited [2009] FCA 1171 It is well settled that [the Deputy District Registrar's] decision, pursuant to r 2.26 of the Court Rules, to not accept my application for leave to appeal was an administrative decision, and that the decision is not one of the class of decisions that are exempted from review by the ADJR Act. The Federal Court has original jurisdiction for the ADJR Act. (See Chapter 3 of the Federal Court of Australia Act) Rule 31.01 of the Court Rules provides for an application for judicial review of an administrative decision pursuant to s 5(1) of the ADJR Act. The Court's Form 66 is reserved for the purpose of making an application pursuant to Rule 31.01 of the Court Rules (see attached graphic red circle) I am aware of the more recent common law cases involving applications for judicial review made pursuant to r 31.01 of the Court Rules. It is well settled that the FCA has the necessary jurisdiction to hear applications made pursuant to r 31.01 of the Court Rules. I have absolutely no idea why you chose to mention s 35A of the Federal Court of Australia Act. If that's a hint you have taken my application for judicial review to be an application for a review of a registrar's power pursuant to s 35A of the FCA Act then that's your problem to fix. Otherwise, why did you mention it? SEPARATE REQUEST: Pursuant to r 2.27 of the Court Rules, please arrange for the Registrar responsible for not accepting my application for judicial review to provide me with a written notice of the Registrar's reasons for not accepting that application. Regards Garth Atkinson … 11 Mr Atkinson says, importantly, after receiving the above information, the way was open for the Deputy District Registrar to reverse her decision and accept the application. He says that did not happen. Instead, Mr Atkinson was told that if he wants to file the application with the Court then he will need to lodge the application for a second time. Mr Atkinson says that it later emerged that the offer to accept a re-submitted application had come from the same Deputy District Registrar who had rejected it, but that this was not apparent in the email in response dated 3 May 2017, which was as follows: … Dear Mr Atkinson, The documents were rejected on the basis that this Court has no jurisdiction. However, if you are of a different view, please confirm that you nevertheless wish to file in this Court and re-lodge the document via eLodgment. As this will not be a Fair Work matter, rather an application for judicial review, the fee for the application for judicial review will apply. It will then be a matter for the Judge to decide whether the Court has jurisdiction. Sincerely, […] |Director Court Services | WA Registry Federal Court of Australia | Ph 08 9268 7120 (emphasis added) 12 In regards to the email above, Mr Atkinson says that: … it was not until [he] received a written notice (on 12 May) from [the District Deputy Registrar] that it became apparent that while the first sentence of the above email was from [the Director of Court Services], the second sentence belonged to the [Deputy District] Registrar … 13 Prior to receiving the written notice from the District Deputy Registrar, Mr Atkinson says that he believed the offer to accept the re-submitted application to be something that the Director of Court Services was responsible for. He says the offer would have been peculiar coming from a Deputy District Registrar, but coming from someone who did not have the necessary authority to accept the application made it even more so. Concerned by the Director of Court Service's latest email, Mr Atkinson replied on the same day: … Dear [Director of Court Services], Thank you for allowing me the opportunity to override the Registry's view concerning the Court's lack of jurisdiction to deal with my application for judicial review. In order for me to be able to make an informed decision as to whether I should accept the offer, I need to know more about why the application was rejected. As you're probably aware, the meaning of 'jurisdiction' has become somewhat overloaded in recent times to the point where, without further elaboration, it nowadays lacks the power to adequately explain why my application was not accepted by the Registry. To that end, I request a letter from the relevant registrar pursuant to r 2.27 of the Court Rules. Thanks for the advice concerning the fees applicable for a judicial review of a matter I believed might be considered as arising from the Fair Work Act 2009 (FWA). While I am still yet to receive legal advice on this issue, it seems somewhat unfair. Before the ADJR Act was amended in 2013(?) to exclude applications for a review of a decision made in relation to the FWA, did the "no costs" jurisdiction of the FWA result in the application fee for judicial reviews being waived? Regards Garth Atkinson … 14 In response to Mr Atkinson, the Director of Court Services sent the following email: … Dear Mr Atkinson, As you can imagine, the registrars are very busy and as the rejection has been withdrawn there is no reason for them to write reasons. Please resubmit the eLodgement if you wish to and it will be accepted. The Fair Work jurisdiction does incur fees, though they are significantly less than other jurisdictions. For example, please see Item 103 and 104 at http://www.fedcourt.gov.au/forms-and-fees/court-fees/fees. I am not a lawyer, but my understanding is that "no costs" typically refers to the successful party in a matter being unable to be awarded all or part of their costs relating to the matter as part of the judgment. Fees can only be exempted for the reasons stated here: http://www.fedcourt.gov.au/forms-and-fees/court-fees/exemptions Sincerely, […]|Director Court Services | WA Registry Federal Court of Australia | Ph 08 9268 7120 15 Mr Atkinson says that the Director of Court Services' reply indicates that he did not request a written notice from the Deputy District Registrar at this time. He says the Director of Court Services' claim that the rejection had been withdrawn appeared to be a deliberate falsehood and as such, his reason for not complying with Mr Atkinson's request for written reasons was simply that the Deputy District Registrar was too busy. Mr Atkinson further says that, given that the document requested by him was something that the Deputy District Registrar was obliged by the Rules to provide, the Director of Court Services' attempt to excuse the Deputy District Registrar was disingenuous at best. 16 Mr Atkinson maintained his request for a written notice from the Deputy District Registrar responsible for the rejection of the application, as indicated by the following email: … Dear [Director of Court Services], Thank you for the information pertaining to the "no costs" jurisdiction of the Fair Work Act and application fees. Even if the registrars are working 24 X 7, they are still obliged by the rules of the Court to provide me with a written notice concerning the details of the rejection. Please arrange for that notice forthwith. Regards Garth Atkinson. … 17 After five days of not receiving a response, Mr Atkinson says he sent the following reminder email on 10 May 2017: … Dear [Director of Court Services], I am concerned by your lack of response to my last email (as below). Please confirm your intention regarding my request for a written notice of the rejection of my application for judicial review. Regards Garth Atkinson 18 On the same day, the Director of Court Services replied as follows: … Dear Mr Atkinson, Your email was forwarded to the relevant Registrar when it was received. Unfortunately that Registrar has been very busy with mediations and other tasks. I have sent them a reminder. Regards, […] |Director Court Services | WA Registry Federal Court of Australia | Ph 08 9268 7120 19 Mr Atkinson says that on 12 May 2017, 10 days after it was first requested and one day after the expiry of the deadline for lodging the application, he received the following letter from the Deputy District Registrar: 12 May 2017 Mr G P Atkinson By email to […] Dear Mr Atkinson RE: Reasons You have asked for reasons as to why your application for Judicial Review of [a Deputy District Registrar's] decision not to accept documents that you eLodged at 5.25 pm on 6 January 2017 for filing was itself "rejected". It is my view that [the original DDR's] decision was administrative in nature and that being the case, any review of it ought properly be filed in the Administrative Appeals Tribunal. This was an attempt to assist you rather than to accept an application that the Federal Court of Australia may have no jurisdiction to hear. This was conveyed to you via a Client Services Officer. I accept that I may or may not be correct in this view and it was also conveyed to you that should you nonetheless wish to file the application in this jurisdiction, it would be accepted for filing. I do not consider that this constitutes a "decision". Should you wish to continue with your application, please be aware of any time limits that may be applicable. It is the responsibility of a litigant to ensure that any applications are filed in the correct jurisdiction and within the appropriate time frame. Yours faithfully (Ms) … Deputy District Registrar … 20 This letter, according to Mr Atkinson, represents the only occasion he was clearly and obviously informed by a Deputy District Registrar that the application would be accepted if it was re-submitted. As the above letter does not identify any legislative provision, Mr Atkinson sent the District Deputy Registrar the following letter on 15 May 2017 (via email to the Director of Court Services): … Dear Deputy District Registrar …, I refer to your letter dated 12 May 2017 concerning the rejection of my application for judicial review of an administrative decision. The letter does not identify any rule or law that may have provided a legal basis for the rejection of my application. Specifically, the letter does not identify rule 2.26 of the Federal Court Rules as providing that basis. As the legal basis for the rejection of my application has considerable bearing on my options for challenging the rejection, I request that the letter be modified to include any rules or laws that provide the legal basis for the rejection of my application. Regards Garth Atkinson 15 May 2017 (emphasis added) 21 The Director of Court Services responded as follows: … Dear Mr Atkinson, As far as the Registrar is concerned, there was no "rejection". Her attempt to assist you has obviously been misinterpreted. In any event, you were invited to lodge the application with the assurance that it would be accepted, and can still do so. We do not intend to respond to any further correspondence on this subject and strongly suggest you seek competent legal advice. Regards, […] […]|Director Court Services | WA Registry Federal Court of Australia | Ph 08 9268 7120 … 22 Mr Atkinson says that according to the Director of Court Services' reply, the application was not rejected as far as the Deputy District Registrar was concerned and so Mr Atkinson's request to know the relevant legislative provisions for the rejection need not be complied with. He says that the Deputy District Registrar's view that the application had not been rejected 'is clearly at odds' with the Director of Court Services' repeated references to the application being rejected in his earlier emails. To the extent that some of the Director of Court Services' emails were understood to represent things said by the District Deputy Registrar, Mr Atkinson says it can reasonably be said that her later assertion that the application had not been rejected is also inconsistent with those emails. 23 In his Supporting Document, Mr Atkinson submitted the following: 21. The above email refers to how [Mr Atkinson] must have obviously misinterpreted the [Deputy District] Registrar's attempt to assist [Mr Atkinson] if he thinks the Application has been rejected. [The Director of Court Services] identified the Application as being rejected in 4 out of the first 5 emails that were sent to [Mr Atkinson]. In none of those emails did [the Director of Court Services] refer to the [Deputy District] Registrar's handling of the Application as being an attempt to assist [Mr Atkinson]. In light of those 4 emails from [the Director of Court Services], the idea that [Mr Atkinson] has misinterpreted the [Deputy District] Registrar's attempt to assist [Mr Atkinson] as being a rejection of the Application is risible. Serious Injustice 22. The Application is necessary if [Mr Atkinson] is to have any opportunity to overturn a decision by [a Deputy District Registrar] that caused the rejection of [Mr Atkinson's] application for leave to appeal from the Federal Circuit Court's judgment handed down on 14 December 2016. If the Application does not progress to a hearing then [the Deputy District Registrar's] decision will remain undisturbed and [Mr Atkinson] will be made to suffer a serious injustice as a consequence of his appeal from the Federal Circuit Court's judgment not being heard.

CONSIDERATION 24 As can be seen from Mr Atkinson's account the original rejection of his application for leave to appeal from the interlocutory decision of the Federal Circuit Court was by a different deputy district registrar, the original DDR, from that against which this application is pursued. It is surely that original rejection which is ultimately the subject of complaint and should be the focus of attention as soon as possible in the interest of all parties, rather than the subsequent skirmishes which appear mainly to reflect potential misunderstandings. 25 What is before me now is the complaint against the Deputy District Registrar for her alleged failings in the 'handling of [Mr Atkinson's] application for judicial review of' the original DDR's rejection. 26 The application for review of the decision of the original DDR was filed by Mr Atkinson on 1 May 2017 following receipt of the rejection of the application for leave to appeal on 13 April 2017. Mr Atkinson was then informed that any review of the original DDR's decision should be via the Administrative Appeals Tribunal. The response was accompanied by a link to the eLodgment page of this Court. Mr Atkinson, being dissatisfied with the explanation in this account, enquired as to why his application was rejected and who made the decision to reject it. He was informed on the same day that the reason was that this Court did not have jurisdiction to review the original DDR's decision not to accept the application for leave to appeal as the correct jurisdiction was the Tribunal. Still on the same day and not being satisfied with the response, Mr Atkinson sought further particulars and was informed by the Director of Court Services that he recommended Mr Atkinson look at the difference between Deputy District Registrars making administrative decisions as opposed to exercising powers under s 35A of the Federal Court of Australia Act 1976 (Cth) and the different processes for reviewing administrative decisions as opposed to exercising powers. The Director of Court Services recommended legal advice be obtained and gave information as to when and how formal complaints could be made. 27 As will be noted from the Supporting Document, Mr Atkinson stated his view that the original DDR's rejection purportedly pursuant to r 2.26 of the Rules was an administrative decision and not exempt from review by the ADJR Act. He argued that this Court has original jurisdiction for the ADJR Act, pursuant to Ch III of the Federal Court Act and r 31.01 of the Rules. 28 Mr Atkinson apparently accepts that the way was open, as a result of this explanation, for the Deputy District Registrar to reverse the decision and accept his application. Mr Atkinson may have been correct on this point, having regard to the analysis in the authority he cited. 29 However, importantly, on the following day, Mr Atkinson was informed that, although the documents had been rejected on the basis that the Court had no jurisdiction, he should re-submit the application for filing and that it would then be a matter for a judge to decide whether or not the Court has jurisdiction. Necessarily implicit in this was a clear advice that the application would be accepted if it was filed. Otherwise, the jurisdictional point would not come to be determined by a judge. Mr Atkinson should have re-submitted the application for filing at this point as he was invited to do. 30 Rule 2.27 of the Rules and its note provide as follows: 2.27 When documents will not be accepted in a Registry A document will not be accepted for filing if: (a) it is not substantially complete; or (b) it does not substantially comply with these Rules; or (c) it is not properly signed; or (d) a Registrar has refused to accept the document; or (e) the Court has given a direction that the document not be accepted; or (f) the Court has given a direction that the document not be accepted without the Court's leave, and leave has not been obtained. Note: If a document is lodged with the Court in accordance with paragraph 2.21(1)(b), (c) or (d) and the Registry does not accept it, a Registrar will notify the sender of the document accordingly. 31 Apparently not being satisfied with the invitation to lodge the application for review and leave it in the hands of the judge, Mr Atkinson still continued to pursue for further information, including a letter from the relevant Deputy District Registrar that he asserts ought to be provided pursuant to r 2.27 of the Rules. Once again, Mr Atkinson was informed that he should re-submit the application for filing if he wished to and it would be accepted. The balance of the history is evident from the Supporting Document.

The explanation given by the Deputy District Registrar on 12 May 2017 32 The response in the 12 May 2017 letter by the Deputy District Registrar to Mr Atkinson was informative, helpful and conciliatory. 33 It is not the case, as suggested, that this was the first occasion on which it was made clear to him that the application would be accepted if it was re-submitted. That information had been clearly conveyed, for example, on 3 May 2017. From that date onwards, all Mr Atkinson had to do was to lodge the application and it would be accepted, with the matter being left in the hands of a judge to determine whether or not the Court had jurisdiction. Nor is it the case that, as Mr Atkinson asserted on 15 May 2017, that the 12 May 2017 letter did not identify a proper legal basis for rejection of the application. While, in the upshot, the legal basis was academic, because the application was to be accepted, the legal basis was a perceived lack of jurisdiction. There is no impediment on rejecting a document for lack of jurisdiction. The fact that additional bases may be provided for in the Rules does not mean that these are the only bases on which documents might be rejected. 34 The current position is, and has been since 3 May 2017, that the application will be accepted. No purpose, therefore, is served in granting relief in terms of the first order as the Court has made it abundantly clear since early May 2017 that the document which Mr Atkinson seeks to file will be accepted for filing. This is notwithstanding some misgivings by the Deputy District Registrar as to a jurisdictional question which can be dealt with by a judge. 35 As there is no need for the first of the orders Mr Atkinson seeks, I do not propose granting it. 36 As to the second order, I am not satisfied in the circumstances, even assuming that it is within power to make such an order, that it is warranted. There seems to have been some unfortunate communication difficulties, but I am not satisfied that there has been any injustice ultimately sustained by Mr Atkinson in the form he raises. If he wishes to file the document that he seeks to have filed, it is quite clear that he may do so. There is no good reason, in my view, why judges should be required to interfere in that or any future process.

CONCLUSION 37 In those circumstances, the application will be dismissed and there will be no orders as to costs. Mr Atkinson should file his application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.