Bilaczenko v Bochner

Background 15 In 2012, the applicant commenced two proceedings in the Federal Circuit Court (the FCC) (then known as the Federal Magistrates Court). The two proceedings (Action ADG 128 of 2012 and Action ADG 156 of 2012) were heard together. In both actions, the applicant sought review under the ADJR Act of determinations made by FOS. The first application sought judicial review of the "decision" of FOS not to "examine stockbroker fraud" and "stockbroker trading systems malfunctions" on the ground that it had "acted in bad faith for want of jurisdiction" and had made "an unauthorised" determination identified as No. 17815. The second complained of a determination made by FOS identified as No. 17129. The applicant alleged "contract impropriety" by FOS and that it had had no authority to make the determination it had. 16 FOS applied for the summary dismissal of both applications pursuant to s 17A(2) of the Federal Circuit Court Act 2001 (Cth) and, or in the alternative, pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the applicant had no reasonable prospect of successfully prosecuting either action. 17 The FCC Judge upheld the applications of FOS and, on 31 May 2013, found that the applicant had no reasonable prospect of prosecuting either action successfully: Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420. Accordingly, he dismissed both applications. The Judge was satisfied that the decisions of FOS which the applicant impugned were not amenable to judicial review because they were not decisions made under an enactment (s 3 of the ADJR Act) and, accordingly, were not decisions to which the ADJR Act applied (s 5(1)). Essentially this was because the decisions of FOS were made as part of a dispute resolution service provided by Financial Service Providers and were made pursuant to a contractual arrangement made between the complaining consumer, FOS and the Financial Services Provider whose conduct was the subject of the consumer's complaint. The evidence in the FCC indicated that FOS is a public company limited by guarantee which provides an internal dispute resolution service sponsored by ASIC. Consumers availing themselves of the service were required to sign a contract. Under the terms of the contract, the material provided to FOS by the consumer or by the Financial Services Provider was "without prejudice", the determination of FOS was not reviewable, and the consumer complainant was free to pursue such legal rights as that person chose after the determination had been made. The consumer agreed not to take any action against FOS or its adjudicators in relation to a complaint or its determination unless the adjudicator had acted in bad faith. 18 In the proceedings in the FCC, the applicant recognised that FOS was a non-government body and that its decisions had not been made under an enactment. He referred nevertheless to R v Panel on Take-overs and Mergers; ex parte Datafin PLC [1987] 1 QB 815 (Datafin) in which the English Court of Appeal had held that a decision of a private body which had not been made in the exercise of statutory power may be amenable to judicial review if the decision was, in a practical sense, made in the performance of a "public duty" or in the exercise of a power which had a "public element". The FCC Judge did not decide whether the Datafin principle could be applied in Australia because he was satisfied that the impugned decisions of FOS were "contractually based" and not, accordingly, decisions made under an enactment so as to be reviewable under the ADJR Act: at [34]. 19 The FCC Judge gave an additional reason for dismissing Action No. ADG 128 of 2012. This was that the applicant was, in effect, seeking to reopen and re-agitate a decision of FOS which was "final". Applying the decision of the Court of Appeal in Victoria in Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185 at [31], the Judge held that this was impermissible. However, the Judge recognised that Action No. ADG 156 of 2012 could not be dismissed on this basis. 20 In summary, the FCC Judge dismissed both applications on the basis that the applicant did not have reasonable prospects of successfully prosecuting either and Action ADG 128 of 2012 for the further reason that the applicant was seeking impermissibly to reopen a decision which, by the rules under which the FOS operated, was final. 21 On 21 August 2013, the applicant filed applications in this Court seeking leave to appeal against the FCC judgment, and extensions of time in which to do so. Those applications were heard by Mansfield J and were refused: Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268. Mansfield J was satisfied that the FCC Judge had been "clearly correct" in concluding that the decisions of FOS were not decisions "under an enactment" so as to give rise to a right to review under s 5 of the ADJR Act: at [36]-[37]. 22 Mansfield J then considered whether it was arguable that the impugned decisions of FOS may be judicially reviewable on some other basis. He noted that in this respect the FCC Judge had applied the decision of the Court of Appeal of Victoria in Mickovski. In Mickovski, one of the questions was whether the decision of the Panel Chair of FOS that FOS lacked jurisdiction to determine a complaint was judicially reviewable. This raised the application of the Datafin principle. The Full Court (Buchanan, Nettle JJA and Beach AJA) held: [30] It is convenient to deal first with the question of whether the judge erred in holding that the Datafin principle was not engaged. Counsel for Mr Mickovski argued that the judge's reasoning was erroneous because it ignored the practical importance of FOS to consumers, the courts (by relieving the pressure of business) and the insurance industry. In counsel's submission, FOS' significance was manifest in the requirement in s 912A(1)(g) of the Corporation Act 2001 that a person holding a financial services licence and who services retail clients must have an external dispute resolution procedure approved by ASIC; and that ASIC had approved FOS as one of only three such organisations. Counsel also contended that the decision in R v Insurance Ombudsman Bureau; Ex parte AEGON Life Assurance Ltd belonged to an earlier era and was distinguishable on the basis that '[t]he foundations of the bureau conspicuously lacked any trace of governmental underpinning', in contradistinction to FOS which was created with Commonwealth involvement. [32] Arguably, there is some force in those submissions. Putting aside doctrinal difficulties which it has been suggested could stand in the way of extending judicial review beyond the realms of statutory and prerogative decision making, the Datafin principle is appealing. In face of increasing privatisation of governmental functions in Australia, there is a need for the availability of judicial review in relation to a wider range of public and administrative functions. The Datafin principle offers a logical, if still to be perfected, approach towards the satisfaction of that requirement. There have also been a number of first instance decisions in which it has been held or suggested that the Datafin principle does apply in Australia, and indeed in the past there has been some limited recognition given to the principle in this court. [33] That said, however, the clear implication of the High Court's decision in Neat Domestic Trading Pty Ltd v AWB Ltd and of the observations of Gummow and Kirby JJ in Gould v Magarey is that we should avoid making a decision about the application of Datafin unless and until it is necessary to do so. In this case, we do not consider that it is necessary to do so. For, assuming without deciding that Datafin has some operation in this county, we agree with the judge that it could not have applied in the circumstances of this case. Taken at its widest, it is doubtful that the principle has any application in relation to contractually based decisions and, even if it does, we agree with the judge that the public interest evident in having a mechanism for private dispute resolution of insurance claims of the kind mandated by s 912A is insufficient to sustain the conclusion that FOS was exercising a public duty or a function involving a public element in circumstances where FOS' jurisdiction was consensually invoked by the parties to a complaint. (Citations omitted) 23 As can be seen, the Full Court considered that Datafin had no application in circumstances closely analogous to the present case. 24 Mansfield J noted that the FCC Judge had been obliged to apply Mickovski: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]. 25 Accordingly, Mansfield J refused the applications for the extension of time. 26 There matters rested until the applicant attempted to commence fresh proceeding in this Court in July 2015.

The decisions of the District Registrars 27 The application which the applicant sought to file in July 2015 was an application for judicial review under the ADJR Act. The applicant proposed naming six respondents: FOS, Commonwealth Securities Limited, E-Trade Australia Securities Ltd, Direct Shares, Third Party Platform trading as Bell Direct, and ASIC. The affidavit of the applicant made on 8 July 2015 which accompanied the proposed application identified at its commencement the issues which he sought to have determined as followings: Whether the decisions of a private body the Financial Ombudsman Service (FOS) performing public duties and public law functions for a public purpose is subject to judicial review. Whether FOS is bound by the established principles of administrative law in its public law functions, in particular, the process of procedural fairness, which used to be called natural justice. 28 In paragraph 2 of the same affidavit, the applicant deposed: As there was no determination of the content matters I again refile another application for judicial review of the decisions of FOS which content has significant commercial and general public interest. 29 Much of the remaining content of the affidavit was given over to an argument that the "Datafin principle" should be applied in Australia. The applicant referred to several decisions in which the Datafin principle had been applied in Australia, including State of Victoria v Master Builders' Association of Victoria [1995] 2 VR 121 and CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 30 VR 555. He also referred to the first instance decision in Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257 at [9] in which Pagone J considered the Datafin principle to be correct generally but inapplicable in the case of decisions by FOS. 30 The affidavit of 8 July 2015 also indicates that the applicant wished to agitate a separate question altogether, namely, "whether criminal matters are subject to judicial review in the Australian Federal Courts". The character of this aspect of the applicant's claim is seen in the following paragraph of his affidavit: [32] The Federal Court of Australia does not allow applications for judicial review of criminal matters, for the purpose of demonstrating exception justifiable circumstances in invoking the supervisory role of judicial review of the Federal Court in the interest of Australian motorists, Bilaczenko (the plaintiff) is entitled to make application for judicial review, not only seeking my acquittal to be set aside on the basis of breach of the Summary Procedure Act 1921 but also I am entitled to obtain from this Court writs and declarations of invalidity and serve upon any officer of the Commonwealth including officers of the Federal Attorney General Department, SA Transport and Department of Public Prosecution (DPP) on the basis of police enforcement without lawful authority for the purpose of exposing bad federal road traffic legislation. 31 Other passages in the affidavit indicated that the applicant's concern in this respect related to the charge of a speeding offence which had been dealt with in the Magistrates Court of South Australia. 32 District Registrar Bochner refused to accept the applicant's documents for filing. Her letter to the applicant of 20 July 2015 stated (relevantly): Dear Mr Bilaczenko I refer to the originating application for judicial review and supporting affidavit lodged by you for filing on 9 July 2015. … The decisions you are seeking to have reviewed are the same as the decisions in relation to which you sought review in your Actions ADG 128/2012 and ADG 156/2012. I note that you subsequently sought to appeal the decisions of Judge Simpson in these matters to the Federal Court of Australia in files SAD 215/2013 and SAD 216/2013. As these decisions have already been reviewed by the Court (and those decisions unsuccessfully appealed by you) any further review of those matters would amount to an abuse of process. Consequently I advise that I am unable to accept your documents for filing, pursuant to r 2.26 of the Federal Court Rules 2011. … I return your documents to you. 33 As can be seen, District Registrar Bochner took the view that the applicant was attempting to re-litigate matters already judicially determined and, accordingly, that the proposed proceedings were an abuse of the Court's process. Rule 2.26, to which the District Registrar referred, permits a Registrar to refuse to accept a document for filing if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious. 34 On 16 September 2015, the applicant again posted documents to this Court for filing. District Registrar Baldwin refused to accept the documents for filing, again exercising the power in r 2.26. She gave the following reasons in her letter to the applicant of 22 September 2015: The originating application accompanying your correspondence dated 16 September 2015 is deficient for the reasons that follow: 1. The originating application states: The applicant applies to the Court to review the decision of the First Respondent that [specify decision]. The application fails to identify the decision or decisions which you seek to have reviewed. 2. The originating application is in the same format and has the same content as the one that was refused by District Registrar Bochner for filing on 20 July 2015. In her correspondence, District Registrar Bochner explained to you that the decisions you purported to have reviewed by the Court were the same decisions that have already been reviewed by the Court proceedings ADG 128/2012 and ADG 156/2012. You were unsuccessful in those two applications. 3. To the extent that this latest originating application may seek to review the decisions that have already been considered by the Court, the application is an abuse of process. A party is not able to re-agitate the point once it is finalised. 4. It appears from your correspondence that you are actually seeking legal advice and want to access the Court's pro bono legal assistance scheme, but can only do so if an application has already commenced in the Court. This is not a proper basis upon which to commence proceedings in this Court. Consequently I am unable to accept your documents for filing, pursuant to r 2.26 of the Federal Court Rules 2011.

Consideration 35 It is well established that that an attempt to re-litigate a case already judicially determined may constitute an abuse of the Court's process. Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393: [P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to a litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". (Emphasis added and citations omitted) See also, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175 at [33] (French CJ) and Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22, (2013) 297 ALR 560 at [11] (Gageler J). 36 The principle that an abuse may exist even when there is no issue estoppel is significant in the present case, having regard to the applicant's justification for the proposed proceeding. 37 As Mansfield J noted in Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268 at [15], the judgment of the FCC dismissing the applicant's claims was interlocutory. There are circumstances in which a disappointed litigant may seek to re-litigate the subject matter of an earlier interlocutory judgment: Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 provides an example. Following the dismissal of an application to commence an action out of time for damages for personal injury, the applicant made a second application to another judge supported by additional evidence. That application succeeded and the decision was upheld on appeal. Heydon JA at [71] declined to endorse the view that an applicant making a second interlocutory application is guilty of an abuse of process unless the other party is guilty of fraud or the application rests on evidence which could not reasonably have been relied on at the first hearing. Foster AJA took a similar view and, at [122], adopted the conclusion of Charles JA in DA Christie Pty Ltd v Baker [1996] 2 VR 582 at 611: For these reasons I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent. 38 It is not necessary to refer to the contrary line of authority for which the majority reasons in Christie are frequently cited. 39 In the present case, the applicant is not seeking to bring a second interlocutory application. He is instead wishing to re-litigate in substantive proceedings an issue which was determined against him in earlier substantive proceedings. The fact that the judgment in the earlier proceedings was interlocutory in nature does not alter that circumstance. 40 Further, this is not a case of an applicant presenting new material or new evidence. The applicant acknowledged more than once on the present hearing that he wishes to argue, again, the very same matters which he had litigated in the FCC. He submitted that he had been entitled to do so because the FCC judgment did not create any issue estoppel. 41 In the view I take of the matter, it is not necessary to determine the correctness or otherwise of the applicant's submissions concerning issue estoppel. That is because it is well recognised that an attempt to re-litigate matters may constitute an abuse of process even in the absence of issue estoppel. In addition to the passage in Walton v Gardiner referred to above, see, for example, Dallas Buyers Club LLC v iiNet Ltd (No 5) [2015] FCA 1437, (2015) 115 IPR 544 at [13]-[14]; Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 at [25]-[26]; Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279; Pedra Holdings Pty Ltd v Westfield Shoppingtown Carousel Pty Ltd [2005] FCA 909 at [20]; and Coffey v Secretary, Department of Social Security [1999] FCA 375, (1999) 86 FCR 434 at 443. 42 The circumstances which in my opinion indicate that the District Registrars were correct to regard the applicant's attempt to re-litigate the issues determined by the FCC Judge as an abuse of process are these. First, the earlier proceedings were resolved adversely to the applicant on a question of law, and not as a matter of evidence. Secondly, the remedy available to the applicant if dissatisfied with the decision of the FCC was that of appeal, and the applicant sought to exercise those rights, albeit belatedly. Mansfield J held that the FCC Judge had been clearly correct in finding that the applicant was not entitled to review of the decisions of FOS under the ADJR Act. In addition, Mansfield J considered that the applicant had not shown an entitlement to any more general form of judicial review. This indicates that the applicant has already invoked the means allowed by the law by which to seek reconsideration of the FCC judgment. Thirdly, this is not a case in which an applicant seeks to re-agitate a matter on the basis of new evidence or material, and in particular, evidence or material which was not available at the time of the first hearing. The applicant's submissions make it plain that he wishes to do no more than to argue anew the same matters which he previously argued. 43 In these circumstances, I consider that the two District Registrars were correct to regard each of the proposed proceedings as an abuse of process and that the applicant has not shown any error of law in either decision. 44 I mention three further matters. The applicant drew attention to the circumstance that in his proposed proceedings he had named respondents who were not parties to the proceedings in the FCC. To my mind that is immaterial. First, the applicant does not seek any orders against these additional parties. Secondly, the presence of the additional respondents does not alter the underlying character of the applicant's proposed proceedings. 45 The second matter is the applicant's attempt to agitate in this Court matters relating to traffic proceedings in the Magistrates Court of South Australia. Plainly this Court lacks jurisdiction with respect to those matters and it was an abuse of the process of this Court for the applicant to seek to commence proceedings to have this Court do so. 46 The third matter is that the applicant sought, in the originating application, an order that the Court "issue a certificate for legal assistance and pro bono legal representation". The applicant did not address any submissions to this part of the application. Having regard to the view of the matter which I have outlined above, I do not consider that this is an appropriate matter for the Court to invoke its pro bono legal assistance scheme.

Conclusions 47 For the reasons given above, I consider that it can be said now that, even if an extension of time was allowed, the present application to this Court must fail. It is accordingly inappropriate to grant the applicant an extension of time in which to commence the application. I refuse his oral application to that effect. The order of the Court is that the proceedings are dismissed. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

SCHEDULE OF PARTIES SAD 456 of 2015

Respondents Second Respondent: HEATHER BALDWIN Third Respondent: FINANCIAL OMBUDSMAN SERVICE LTD Fourth Respondents: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION