Ferdinands v Allaway, National Duty Registrar

Federal Court of Australia|2023-01-20|Before: O'Sullivan J

The application for judicial review of the Registrar's decision 30 The originating application the subject of this judgment seeks a review of the Registrar's decision. It contains three subheadings: "Details of claim"; "Grounds of application"; and "Orders sought".

Details of claim 31 The applicant asserts 14 grievances said to result from the Registrar's decision to refuse to accept the documents for filing. The grievances refer to alleged acts or omissions by the Prime Minister as respondent in the originating application that the Registrar refused to accept for filing but also includes grievances against the Registrar as respondent in these proceedings, asserting that the power the Registrar relied upon under FCR 2.26 is invalid. The grievances also referred to alleged factual errors on the part of the Registrar.

Orders sought 33 The applicant seeks, amongst other things, an order that his application be granted and that the Registrar's decision made 6 July 2022 be set aside.

Consideration 34 The application for judicial review does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to the Registrar having failed to properly or adequately assess various matters suggests ss 5(1)(c) and (f). Those provisions provide: 5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds: … (c) that the person who purported to make the decision did not have jurisdiction to make the decision; ... (f) that the decision involved an error of law, whether or not the error appears on the record of the decision; … 35 The Registrar did not make a substantive judgment about the underlying merit of the claims in proposed proceedings when refusing to accept an originating application for filing under FCR 2.26. The Registrar made it clear in his letter to the applicant dated 6 July 2022 that he refused to accept the documents for filing on the basis they are an abuse of the process of the Court, frivolous and vexatious. In so doing, the Registrar was not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but was ensuring compliance with procedural requirements. 36 That is sufficient to dispose of the ground of review in s 5(1)(c) of the ADJR Act. 37 In Ferdinands v Registrar Cridland at [27]-[31], White J considered the meaning of the terms "frivolous" or "vexatious" or the expression "an abuse of the Court's process". His Honour noted that the Dictionary contained in Schedule 1 to the FCR contained a definition of "vexatious proceeding" by reason of a cross-reference to s 37AM of the Federal Court of Australia Act 1976 (Cth). Section 37AM(1) provides: vexatious proceeding includes: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 38 After referring to s 37AM, his Honour continued at [28]-[30]: 28 As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause. 29 In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of the terms "vexatious" and "frivolous" appearing in r 26.01(1) of the FCR. His Honour said: [35] The expressions 'scandalous', 'vexatious' and 'frivolous' can be used either separately, or in conjunction, or interchangeably, with the expression 'abuse of process of the court' … [36] A matter is 'frivolous and vexatious' where the 'cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court' … [37] In relation to the term 'frivolous': (a) a matter that is 'frivolous' may be described as one that is 'without substance or groundless or fanciful' …; (b) a proceeding will be 'frivolous' where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and (c) 'frivolous' may also describe a situation where a party is trifling with the Court or wasting the Court's time … [38] In relation to the term 'vexatious': (a) a 'vexatious' proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. 'Vexatious' might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …; (b) proceedings may also be described as 'vexatious' where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …; (c) a proceeding is to be regarded as 'vexatious' where: (i) it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or (ii) it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or (iii) irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and (d) 'vexatiousness' is a quality of the proceeding rather than a litigant's intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious … (Citations omitted) 30. As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. There is no reason to suppose that the Registrar did not apply meanings of this kind in the present case when considering whether the applicant's proposed proceeding was frivolous or vexatious on the face of the documents. In reaching that conclusion, I take into account that the applicant has not sought to point to any particular error by the Registrar in her construction of these terms. 39 His Honour's consideration of these expressions was approved by the Full Court of this Court in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8] (Charlesworth, Burley and Cheeseman JJ). 40 Adopting the meanings of "frivolous", "vexatious" and the expression "abuse of process" set out above, the originating application, together with the documents supporting it, were frivolous, vexatious and an abuse of process of the Court. 41 That conclusion is sufficient to dispose of the ground of review in s 5(1)(f) of the ADJR Act. 42 In all the circumstances, there is no error in the Registrar's characterisation of the proposed proceedings as being on their face, an abuse of the process of the Court, frivolous and vexatious.

Conclusion 43 Both parties requested that the Court deal with this matter on the papers. After I made orders reserving judgment, the applicant, without seeking leave, inundated the Court with copious amounts of documents. I have declined to accept and consider those documents when considering this matter and preparing these reasons. 44 The application for judicial review filed on 6 July 2022 is dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

Australia Constitution Act 1900(Cth)

The originating application seeking judicial review 14 This is the seventh judgment since November 2020 dealing with applications by the applicant in respect of refusals by a Registrar acting under FCR 2.26 to accept documents for filing. 15 As was the case with numerous other applications of this type brought by the applicant, the originating application does not identify the Act under which the application is brought. The originating application is described on its face as an "Originating Application for Judicial Review - Form 66 - Rule 31.01(1)". FCR 31.01(1) is the rule relating to applications for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Dictionary in Schedule 1 to the FCR. 16 Section 11(1) of the ADJR Act provides that in order for a person to have standing to seek a review of a decision pursuant to that section, the person must be "aggrieved" by the decision to which the ADJR Act applies: s 5(1). 17 The originating application identifies the decision of the Registrar followed by 14 paragraphs under the heading "Details of claim" setting out why the applicant is aggrieved by the Registrar's decision and then a further 13 paragraphs setting out the "Grounds of application". The originating application concludes with the prayer for relief in which 12 orders are sought. 18 Amongst other things, the ADJR Act applies to a decision of an administrative character, proposed to be made, or required to be made (whether in the exercise of a discretion or not), under an Act of the Commonwealth. 19 In Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164, [41], (Barker, Banks-Smith and Colvin JJ) the Court noted that a Registrar's decision in refusing to accept documents for filing was a decision of an administrative character and may be susceptible to judicial review under the ADJR Act.

Principles 20 The principles are, by now, well known to the applicant. 21 Nonetheless, I repeat what I said in Ferdinands v Registrar Stone [2022] FCA 589 at [13]: In Ferdinands v Registrar Cridland [2021] FCA 592 at [9], White J referred to what he said in Ferdinands v Registrar Parkyn [2020] FCA 1676 where he set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to FCR 2.26. In Cridland, his Honour said: 10 The nature of the power bestowed on a Registrar pursuant to O 46, r 7A of the original Federal Court Rules (the predecessor of r 2.26) was discussed by the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353. The Full Court said: [15] The rule in its current form removed a clog on the Registrar's discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious. 11 This reasoning was applied more recently in Nyoni v Murphy in which the Full Court said: [33] The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry … It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend … … [38] [A] Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious … (Citation omitted and emphasis added)

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