Barkla v Colbran

SAD 403 of 2015 5 The originating application for judicial review is in accordance with Form 66 (r 31.01) which is the appropriate form for applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). In his application, Mr Barkla seeks to challenge a decision of the District Registrar under r 2.26 to refuse to accept an originating application and affidavit Mr Barkla sought to file in the Court on or about 2 November 2015. I will refer to these documents as "the rejected documents". Under r 2.26, a Registrar may refuse to accept a document if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious on the face of the document or by reference to any documents already filed or submitted for filing with the document. 6 The rejected documents involve a claim by Mr Barkla against the Acting Registrar of the Supreme Court of Western Australia. Mr Barkla claims to bring his proceeding in a representative capacity. The basis of Mr Barkla's claim appears to be the refusal of the Acting Court of Appeal Registrar to accept two documents Mr Barkla sought to file, being a document entitled "Referral of a legal issue" and a document entitled a "Notice to Admit Facts". Mr Barkla alleges that in refusing to accept the documents, the Acting Court of Appeal Registrar contravened various sections of the Criminal Code Act 1995 (Cth). 7 The District Registrar refused to accept the rejected documents and, on 4 November 2015, she wrote to Mr Barkla in the following terms: I refer to the originating application and affidavit you sent to the Registry on 2 November 2015. Among other things, your application claims that the respondent is in breach of the Criminal Code Act 1995 (false or misleading documents, general dishonest and abuse of public office). The Court does not have jurisdiction to hear matters relating to the Criminal Code Act 1995 as outlined in your application, nor the other pieces of legislation you have included. The Court cannot make the findings that you seek. Accordingly, I am unable to accept your documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011. The usual course of action for parties who wish to appeal the decision of a registrar of a court is to seek to have the decision reviewed by a judge of that court. I am unfamiliar with the procedure in the Supreme Court of Western Australia, but you may wish to enquire further as to a suitable course of action. I return your documents to you. 8 Mr Barkla claims that in refusing to accept the rejected documents, the District Registrar acted fraudulently, dishonestly and in abuse of public office. 9 The decision of a Registrar under r 2.26 not to accept a document is not reviewable under s 35A(1) of the Federal Court of Australia Act 1976 (Cth). It may be reviewed under the ADJR Act (Satchithanantham v National Australia Bank Limited [2010] FCAFC 47), but before relief is granted, one of the grounds in s 5 would need to be established. I will also assume, for the purposes of these applications only, that relief for jurisdictional error may be granted under s 39B of the Judiciary Act 1903 (Cth). 10 This Court does not have jurisdiction to hear and determine the application Mr Barkla seeks to bring against the Acting Court of Appeal Registrar, and the District Registrar was correct in deciding to refuse to accept the rejected documents.

SAD 410 of 2015 11 This originating application for judicial review is also a challenge to a decision of the District Registrar under r 2.26 to refuse to accept an information and summons Mr Barkla sought to file in this Court on or about 4 November 2015. 12 The information and summons ("the rejected documents") are directed to two justices of the Supreme Court of Western Australia. The basis of Mr Barkla's claims appears to be that the judges acted dishonestly in connection with a "Notice to Admit Facts", and a "Referral of a legal issue" and a claim which he makes. 13 The District Registrar refused to accept the rejected documents and, on 4 November 2015, she wrote to Mr Barkla in the following terms: I refer to the summons you provided to the Registry on 4 November 2015 that seeks to summons Justice Newnes and Justice Murphy of the Supreme Court of Western Australia. The Federal Court of Australia does not have jurisdiction to issue the summons you request. Like all other citizens judges are subject to the law. However, in respect of their judicial conduct, they cannot be subject to direct discipline by anyone else, except in the extreme cases of proved misbehaviour or incapacity. In those circumstances, and in those only, a judge may be removed from office by the Governor-General upon a request from both Houses of the Parliament. Judges are accountable through the public nature of their work, the requirement that they give reasons for their decision and the scrutiny of their decisions on appeal. Accordingly, I am unable to accept your documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011. The Supreme Court of Western Australia has a Protocol for Complaints against Judicial Officers in Western Australia. It can be found at http://www.supremecourt.wa.gov.au/C/complaints_against_judical_officers.aspx?uid=6960-4191-1980-2236. Any complaint about a member of the judiciary should be made in writing to the Chief Justice. I return your documents to you. 14 The District Registrar's decision under r 2.26 was plainly correct for the reasons she gave.

SAD 416 of 2015 15 The information and summons by Mr Barkla against the District Registrar were accepted for filing. They, or documents similar to them, were annexed to an affidavit Mr Barkla swore in SAD 403 of 2015. In the information and summons, Mr Barkla alleges that the District Registrar committed various contraventions of the Criminal Code Act 1995 in writing her letter dated 4 November 2015 in SAD 403 of 2015, and her letter dated 4 November 2015 in SAD 410 of 2015. In broad terms, the allegations are that the District Registrar knowingly produced false or misleading documents and abused her public office. 16 The District Registrar did not appear and, insofar as may be necessary, I excuse her attendance. 17 I raised with Mr Barkla whether the proceeding should be permitted to proceed and whether he wanted to make submissions or have further time to prepare his submissions. He elected to proceed. 18 It is trite that the parties to a proceeding cannot confer jurisdiction by consent. Whether an objection to jurisdiction is raised or not, the Court has a right, indeed a duty, to examine whether it has jurisdiction with respect to a particular matter. The Court has no jurisdiction with respect to the information and summons and the proceeding should be dismissed on that basis. 19 There is an alternative basis upon which the proceeding should be dismissed. In view of my conclusions in SAD 403 of 2015 and SAD 410 of 2015, the proceeding is wholly without merit and is an abuse of process and vexatious. It is open to the Court to proceed under r 26.01 on its own initiative (r 1.40) and I would do so to the extent necessary. 20 I do not need to consider whether there would be other reasons for dismissing the proceeding. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.