Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs

Court's function under O 46, R 7(2) 7 Order 46, r 7 provides as follows: 7 Operation of registries (1) Subject to these Rules and the direction of the Court or a Judge, the Registrar of the Court may give a direction as to the operation of any Registry. (2) A person may apply to the Court ex parte for a direction to the Registrar that he do any act which he is bound or entitled to do and has refused to do. 8 A general question arises whether the Court, when it deals with an application made under r 7(2) is engaged in the exercise of judicial power or administrative power, and whether the decision is amenable to appeal; and whether any other person should be given notice of the hearing and the opportunity to appear and make representations to the Court. 9 In this regard, guidance may be obtained from decisions of the Court concerning the power of the Registrar under O 46, r 7A(1), to refuse to accept a document because it appears on its face to be an abuse of process, and that of the Court to give directions in relation thereto under O 46, r 7(2). 10 In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, the appellant appealed against the direction of the Court made under O 46, r 7A that the Registrar refuse to accept an application as an "originating document". The Full Court (Lee, Whitlam and Jacobson JJ) said that no judicial act is carried out by the Registrar under r 7A, and so far as the direction of the Court is concerned it is "administrative in character" (at 357). The Court explained at 357: Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. 11 Consequently, the Court concluded (at 357) that a direction under O 46, r 7A is not a judgment able to be subject to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. 12 It should be noted that in Paramasivam v Randwick City Council [2005] FCA 369 Sackville J doubted the correctness of the Full Court's statement that a direction given by the Court was not a judicial act, and referred to the decision of Toohey J in Letts v Commonwealth (1985) 8 FCR 585. However, His Honour accepted there was a serious question whether such a direction by the Court would constitute a "judgment" for the purpose of appeal or leave to appeal under the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and Rules. Nonetheless, Sackville J considered himself bound by the decision of the Full Court. 13 In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426, another Full Court considered that it should now be accepted that a direction by the Court under O 46, r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court Act. 14 The Full Court (Gray, Branson and Besanko JJ) stated (at [19]): In our view, where a registrar is directed by a judge pursuant to O 46, r 7A(2) not to accept the document for filing, the conduct of the registrar undertaken in compliance with the judge's direction is not open to review under s 35A(5) of the Federal Court of Australia Act 1976 (Cth). We take this view for two reasons. First, the registrar is obliged to act in accordance with the direction of the judge. For this reason the person seeking to file the document is aggrieved not by the conduct of the registrar but rather by the direction given by the judge (see Letts v Commonwealth 8 FCR at 587). Secondly, s 35A(2) authorises a party to a proceeding to apply to the Court for review of the exercise of a registrar of any of the powers of the Court under s 35A(1). Where it is an originating process that is not accepted for filing the person concerned will not be a party to any proceeding at the relevant time. Even where this issue does not arise, the authority vested in a registrar by O 46, r 7A to refuse to accept a document, whether pursuant to a direction of a judge or of his or her own motion under O 46, r 7A(1), is not a power of the Court under s 35A(1). None of the powers identified in s 35A(1)(a) to (g) relates to the acceptance of documents for filing. Nor does any of the powers prescribed by O 46, r 7AA (see s 35A(1)(h)). 15 The Full Court added, by way of observation at [22] that the better view is probably that the decision of a judge to issue a direction under O 46, r 7A(2) is amenable to judicial review, including judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth). However, the reaching of a concluded view on that question was not required and the Court said it was "best left for another day when the issue directly falls for consideration". 16 In my view, these authorities directly bear on the nature of an application made under O 46, r 7(2), where a person applies to the Court ex parte for a direction to the registrar. It seems to me that the same principles enunciated in the two Full Court decisions apply with equal force to the Court's function under r 7. Plainly r 7(2) is designed to enable the Court to give appropriate directions to the registrar in aid of the administration of the Court. In that regard there is no "judgment" for the purposes of the Federal Court Act and Rules. 17 It also follows that there is no obligation on the Court in dealing with an application under O 46, r 7, to give any person, other than the applicant perhaps, notice of the application or to require the Registrar whose decision is under effective review to appear or make submissions to the Court. The Registrar who refused to issue the process in the first instance, in a case such as the present, is not in any relevant sense a "party" to the application for a direction. However, I do not consider that the Court would be precluded from providing another person the opportunity to appear in an appropriate case. 18 In this case I did not consider it necessary to give notice to the prospective respondents of Mr Pickering's applications or to require the Deputy District Registrar to appear before the Court. I did, however, following hearing from Mr Pickering, request the Australian Government Solicitor (AGS) to provide a copy of the release referred to by Mr Pickering in his submissions. The AGS subsequently provided a copy of the release to Mr Pickering and he then provided a copy to the Court. 19 Of course, in most cases involving the refusal of an originating document, if any person who may have been considered interested later becomes a party to any proceeding that results from a direction of the Court, that person as a party to that proceeding will have all the rights of a party to apply to dismiss the proceeding and exercise other rights they have as a party to a proceeding.

Prior proceedings commenced by Mr Pickering 20 It is relevant to note certain prior proceedings commenced by Mr Pickering. These are relevant to the matters that Mr Pickering would like to litigate. 21 In Pickering v Chief Executive Officer of Centrelink [2006] FCA 477 the Court, in proceeding WAD 254 of 2005 (the 2005 Centrelink proceedings), dismissed an application brought by the respondent for summary dismissal of Mr Pickering's application by which he sought compensation of $520,000.00 in respect of his allegation that "I had a job to go to. Centrelink refused to help me get a job". The Court found at [21] that there were "potential causes of action" available to the applicant which could arguably be brought within the jurisdiction of the Court. 22 Relevantly to the first of the current proposed applications, Mr Pickering achieved some success in the proceeding, in that following mediation in the proceeding on 8 June 2006, Centrelink agreed to pay him $6,000.00, but only did so after he agreed to sign the release referred to above in respect of the balance of the claim of $514,000.00. On 21 June 2006, the proceeding was dismissed by consent. 23 In Pickering v Commonwealth [2007] FCA 1253 the Court, in proceeding WAD 226 of 2006 (the 2006 DEWR proceeding), dismissed a separate proceeding in which Mr Pickering sought damages from the respondent (identified in his application as the Department of Employment and Workplace Relations) in the sum of $520,000.00, because the Department "refused to help him get a job in Albany". The Court found it did not have jurisdiction to entertain the application (at [9-13]), and that there was no reasonable prospect of the applicant successfully prosecuting his claim for damages (at [14-17]). However the Court said that, if it had found that it had jurisdiction to deal with the application, it would not have dismissed the application on the basis that there was no factual foundation to the claim (at [18-25]). Rather the disputed factual matters would need to be determined by the Court following a trial. 24 Each of these two proceedings involve the thwarted desire of Mr Pickering to travel from Perth to Albany to obtain work. 25 In Pickering v Centrelink [2008] FCA 561, in proceeding WAD 45 of 2008 (the 2008 Centrelink proceeding), the Court (on 18 April 2008) dismissed Mr Pickering's application by which he claimed damages of $2.7 million from Centrelink for "all the stress, aggravation, stupidity and time in jail that Centrelink has put me through for not doing their job in the first place". The Court held at [15] that the application as formulated did not disclose a cause of action for damages and, even if it did, there is no private right to damages arising from the exercise of administrative powers when there is statutory right of review of such exercise. The Court also held at [20] that even if the application were to disclose a cause of action for damages it would have no reasonable prospect of success in the light of established authority. The Court further held at [23]-[25] that it did not have jurisdiction to entertain the claim. Finally, the Court considered at [26]-[28] that the application should be dismissed because it was a "frivolous" proceeding, in the sense that despite whatever attempts were made to discern a cause of action it was still not arguable; and because it was without substance, or groundless or fanciful. 26 In the 2008 Centrelink proceeding, it is relevant to note that the application read as follows: Centerlink (sic) has refused to allow me to speak to the autorize (sic) review officer reguarding (sic) being banned from Centerlink (sic) This has been going on since the 1st November 2007. Since 1975 I have been arguing with Centerlink (sic) about their duties and obligation to me. It has got to the suitation (sic) that the Centerlink (sic) physchirist (sic) Peter Clarke believes I am mentally unstable. Now I cannot talk to anyone without threatening to kill even the police have told me I am mental. Therefor (sic) because of Centerlink (sic) and being in jail at times I am now sueing (sic) Centerlink (sic) for $2,700,000 for all the stress agrevation (sic) stupidity and time in jail that Centerlink (sic) has put me through for not doing their job in the first place Why $2,700,000 I don't know Its the number that jumps into my head.

The first proposed application - further proposed proceeding against Centrelink 27 In this proposed application Mr Pickering would seek damages of $514,000.00 against Centrelink for alleged duress in relation to settlement of previous proceedings between the parties. 28 The proposed application (without correction to the text) states I Am Sueing For The Other $514,000 Dollars That I First Sued Them Over Because Centrelink Forced Me In To Signing A Document That Stated I Would Or Could Not Sue Centrelink On Anything Again. They Clearly Sain That Unless I Signed The Document I Would Not Get The $6,000 We Agreed On At The Mediation. On The 26 June 2006 At 10.00Am. I Had No Worries About The $6,000 But Now Find That I Cannot Sue Centrelink About Anything Because Of This Document. What Centrelink Has Done Is Against The Law And Because I Had No Legal Advice Or Knowledge Of What Is Legal And What Is Not I Am Not Allowed To Challenge Centrelink Through The "Authorised Review Officer" A.R.O. That Is Centrelink's Own Court "So To Speak" Instead Of Going To The Federal Court Its Handled In House By Centrelink There Was No Deal In The Mediation On 26 June 2006 That Stated I Had To Sign A Document For Centrelink To Say I Would Not See Them Again. 29 It will immediately be appreciated that "the other" $514,000.00 is a reference to the initial claim made in the 2005 Centrelink proceeding for $520,000.00, less the $6000.00 settlement received following mediation in that proceeding. 30 Not unreasonably or surprisingly, Mr Pickering was required to give Centrelink a release from liability or claim for the balance of the $520,000.00 claim before the $6,000.00 agreed settlement was paid to him. He duly gave that release. However, notwithstanding that Mr Pickering received the $6000.00 settlement he now wishes to 'sue' Centrelink for the balance of what he considers is due and owing to him, namely, $514,000.00. 31 The release, which Mr Pickering had not kept a copy of, but after the hearing of this matter obtained a copy from the AGS and provided it to the Court, provides as follows: RECITALS A. Mr Pickering is a customer of Centrelink. B. On 12 September 2005 Mr Pickering filed an application in the Federal Court of Australia, File No. WAD 254 OF 2005 in which Centrelink was named as the respondent. On 4 November 2005 his Honour Justice Siopis ordered that the name of the respondent be amended to read The Chief Executive Officer of Centrelink. C. In the application, Mr Pickering stated 'I had a job to go to and Centrelink refused to help me get a job'. D. Centrelink denies that it or any of its employees refused to help Mr Pickering get a job. E. The CEO of Centrelink and Mr Pickering have agreed to settle the application on the terms set out herein. THIS DEED WITNESSES AS FOLLOWS 1. Forthwith upon executing this Deed, Mr Pickering shall sign a consent order to effect the dismissal of the application. 2. Mr Pickering and The CEO of Centrelink agree to bear their own costs in relation to the application. 3. Within 14 days of the date of this Deed, Centrelink will pay to Mr Pickering the sum of $6,000 in full and final settlement of any and all claims, costs, expenses or other matter of whatsoever nature and howsoever arising that Mr Pickering has or may have against Centrelink, The CEO of Centrelink and/or any employee of Centrelink in any way relating to or in connection with the application. 4. In consideration of the aforesaid payment by Centrelink, Mr Pickering, to the extent permitted by law, releases and discharges Centrelink and the employees of Centrelink absolutely from all and any liability in respect of any action, demand, claim or proceeding made, or which (but for this Deed) might be made, against the same or any of them in any jurisdiction in respect of, relating to, or in connection with the application. This Deed may be pleaded in bar to any action or proceeding of the kind referred to in this clause. 5. (1) All information exchanged by Mr Pickering and Centrelink during the course of negotiations leading to the signing of this Deed: (i) has been disclosed on a 'without prejudice' basis; and (ii) is confidential as between Mr Pickering and Centrelink and shall not be disclosed to any third party. and (2) Neither Mr Pickering nor Centrelink shall publish or disseminate information as to the fact of settlement or as to the terms of this settlement to any person without the written consent of the other party. 6. The previous clause 5 does not apply if the information: (i) is disclosed to a party's employees, accountants, insurers or legal advisors in connection with the Application or this Deed; or (ii) is disclosed to the Australian Taxation Office or any public authority by compulsion of law; or (iii) is known to the public (other than as a result of a breach of confidence by the person releasing the information); or (iv) is disclosed for the purposes of enforcing this Deed; or (v) is disclosed for the purpose of satisfying a request for information from a Commonwealth Minister or Commonwealth Parliament. 7. Nothing in this Deed is intended to or shall be construed as an admission of any liability or wrongdoing whatsoever by Centrelink or any employee of Centrelink. 8. Each party must execute and do all acts and things necessary or desirable to implement and give full effect to the provisions and purpose of this Deed. 9. Each party is responsible for its own legal and other costs and expenses in relation to this Deed. 10. Centrelink will pay stamp duty on this Deed. 11. This Deed shall be binding upon Mr Pickering, Centrelink and their respective successors and/or permitted assignees. 12. If any part of this Deed is void or unenforceable, then that part will be severed from this Deed so all part that are not void or unenforceable remain in full force and effect and are unaffected by that severance. 13. For all purposes this deed shall be governed by and construed in accordance with the laws of the State of Western Australia and, where applicable, the laws of the Commonwealth of Australia, for the time being in force. 14. This deed may be executed in any number of counterparts and all of these counterparts taken together constitute one and the same instrument. 32 In my view, a proceeding such as that now proposed by Mr Pickering cannot possibly succeed in light of the release. There is no arguable ground that the release is not enforceable. 33 As the Court explained in Pickering v Centrelink [2008] FCA 561 at [27], by reference to precedent authority, where a matter is without substance or groundless or fanciful it may be considered "frivolous" or "vexatious" and so constitute "an abuse of process" of the Court. 34 The proposed application by Mr Pickering against Centrelink is simply a renewed attempt by Mr Pickering to pursue his original $520,000.00 claim against Centrelink, a claim he has already compromised and received a $6,000.00 pay‑out for. Plainly Mr Pickering no longer has any rights of action against Centrelink in respect of the sum of $514,000.00. 35 In that sense, the proposed proceeding is frivolous and vexatious, and would be an abuse of process of the Court if it were allowed to be issued. 36 Further, so little detail of the statutory basis of the proposed claim against Centrelink is provided in the proposed application that the application should, for this additional reason be considered unreasonably vague and an abuse of process. 37 For these reasons I decline to make the direction to the Deputy District Registrar requested by Mr Pickering, to cause the issue of his proposed application against Centrelink.

The second proposed application - proposed proceeding against Federal Court Judge 38 So far as the proposed application against a Federal Court Judge is concerned, claiming damages of $5.4 million, this action too, in my view, is frivolous, vexatious and if permitted to issue would constitute an abuse of process of the Court. 39 The proposed application does not specify how damages in that sum have been calculated. It perhaps, not coincidentally, is twice the $2.7 million claim made against Centrelink in the 2008 Centrelink proceedings dismissed by the Federal Court Judge on 18 April 2008. 40 The action proposed would be a private damages claim against a Federal Court Judge concerning his conduct in the performance of his duties as a Federal Judge under Chapter III of the Australian Constitution. Such an action is not competent. Judges of the status of a Federal Court Judge is not liable to be sued in respect of acts done in the performance of his or her judicial duties: Gallo v Dawson (1988) 82 ALR 401. 41 Further, it is doubted that this Court has jurisdiction to entertain a damages claim, for the reasons concerning the Court's limited jurisdiction to entertain such private damages claims as explained in Pickering v Commonwealth [2007] FCA 1253 and Pickering v Centrelink [2008] FCA 561. 42 Moreover, there is no factual basis to support the very serious allegations that the proceeding, if issued, would make. Mr Pickering asserts that the Judge in the course of dealing with his matter on 18 April 2008, made comments that he considers were "lies". A perusal of the reasons for decision dismissing the application and the transcript of the proceedings in Court on 18 April 2008 discloses no such thing. 43 At the hearing before me, Mr Pickering explained the nature of his grievance: MR PICKERING: It's all written in the application. HIS HONOUR: But he made a decision in the court that you don't like. That's the basis, isn't it? MR PICKERING: No. He made a decision based on the fact that he lied to the Centrelink and the court about what happened. HIS HONOUR: Who did? MR PICKERING: [The Judge] HIS HONOUR: [The Judge] made a decision in the court following submission and ruled you didn't have a case. MR PICKERING: He said that I never threatened Centrelink any time, yet I've got police records and the court records from the Magistrate Courts, District Court, the police, that says I did. He said at no time have I done that. Then he turned around and said that I threatened Centrelink there and then on that day when there was no threats at all made. 44 Having read the transcript of the proceeding on 18 April 2008, it seems to me that Mr Pickering has misunderstood what the Judge said or the context in which His Honour said certain things in the course of delivering his ex tempore judgment on that day. For example, His Honour commenced the giving of short reasons by observing as follows: In the application Mr Pickering says: Centrelink has refused to allow me to speak to the authorised review officer regarding being banned from Centrelink. This has been --- At this point Mr Pickering interjected to say: They have a policy on that that says I'm allowed to go there, but they refused to give me that right. His Honour then continued: He says this has been going on since 1 November 2007: (His Honour then quoted from Mr Pickering's application) Since 1975 I have been arguing with Centrelink about their duties and obligations to me. It has got to the situation that the Centrelink psychiatrist ... believes I am mentally unstable. Now I cannot talk to anyone without threatening to kill. Even the police have told me I am mental. Therefore because of Centrelink and being in jail at times, I am now suing Centrelink for $2,700,000 for all the stress, aggravation, stupidity and time in gaol that Centrelink has put me through for not doing their job in the first place. Why $2,700,000? I don't know. It's the number that jumps into my head. 45 The Judge then explained that a general claim for damages of $2.7 million could not be made in this Court. 46 Towards the end of that hearing, when his application was dismissed, Mr Pickering was obviously so unhappy that he made what sounded like a threat. There is no need to repeat here what he said. Having said what he said, Mr Pickering added: "That's not a threat. That's what happens. That's what could happen, you know?" On that note the transcript and the proceeding before His Honour came to an end. 47 Against this background, it is clear Mr Pickering misapprehended what the Judge said and ruled upon when he made a decision and gave reasons for decision on 18 April 2008. Plainly the Judge acted at all times in the performance of his duties as a Federal Court Judge. He is not liable to be sued for so doing. 48 Finally, it must be observed that the terms of the proposed application against the Federal Court Judge are lacking in any detail sufficient to support such a serious claim. For that reason, as well, the proposed application should be considered vexatious and an abuse of process. 49 In context, Mr Pickering's proposed proceeding against the Federal Court Judge can be seen to be the means of seeking some sort of retribution against the Judge for dismissing his application on 18 April 2008. 50 For these reasons I decline to give a direction to the Deputy District Registrar to issue Mr Pickering's proposed application against the Federal Court Judge.

conclusion 51 If Mr Pickering believes he has a genuine entitlement to commence proceedings against either Centrelink or the Federal Court Judge then he should take appropriate legal advice from an experienced legal practitioner concerning the nature of the causes of action, whether he is entitled to commence and maintain such causes of action, the appropriate jurisdiction in which to commence proceedings and the extent to which he might be considered to have reasonable prospects of succeeding with such actions. 52 The background I have provided above to Mr Pickering's litigation in this Court since 2006, goes to demonstrate that the proceedings Mr Pickering now wants to commence in this Court are misconceived and would constitute an abuse of process of this Court if he were to be permitted to issue such originating applications. 53 For these reasons I decline to give any directions to the Registrar to issue either of the proposed originating applications lodged by Mr Pickering at the Western Australia District Registry of the Federal Court of Australia on 19 May 2009. 54 The Court therefore formally orders that the application made by Mr Pickering pursuant to O 46, r 7(2), that directions be given to the Registrar to issue two originating applications lodged with the Western Australia District Registry of the Court on 19 May 2009, is dismissed. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

Associate: Dated: 3 August 2009 Counsel for the Applicant: Self Represented