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[2021] FCA 592
Federal Court of Australia
2021-06-04
White J
Original judgment source is linked above.
The applicant's contentions 23 As was the case with the applicant's previous applications for judicial review, the present application does not indicate the ground or grounds in s 5(1) of the ADJR Act on which he relies. The grounds of the application suggest that the applicant may intend to invoke s 5(1)(f), namely, that the Registrar's decision involved errors of law. By way of example, the applicant alleges that the Registrar erred by misconstruing and then misapplying the words "frivolous" and "vexatious", the words "criminal proceedings", ss 180, 181, 182, 183 and 184 of the Corporations Act, ss 31, 32, 33, 35, 44 and 73 of the Civil Liability Act 1936 (SA), s 51(xxiv) and (xxv) of the Australian Constitution, and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Moreover, the applicant's originating application identifies (or at least purports to identify), seven question of law. 24 In addition, the applicant asserts that the Registrar was wrong in stating that it appeared that he was seeking to re-litigate criminal proceedings when instead he was intending to bring a civil law claim for damages. He also submitted that the Registrar had been in error in considering that he was attempting to "re-litigate" a matter when he had not previously litigated the issues in this Court. 25 The applicant elaborated these claims in a number of ways. Amongst other things, he submitted that the Registrar had exceeded her powers under r 2.26 of the FCR. I have already addressed this aspect of the Registrar's decision and need not repeat it. I am satisfied that the Registrar confined herself to the proper exercise of the power contained in r 2.26 and did not purport to make any substantive decision concerning the merits of the applicant's claim. 26 For the reasons which will become apparent, it is not necessary to outline the applicant's submissions in more detail.
Consideration 27 Neither the term "frivolous" nor the term "vexatious" are defined in the dictionary contained in Sch 1 to the FCR. However, the term "vexatious proceeding" is defined in s 37AM(1) of the Federal Court of Australia 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section 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. 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. 31 On the basis of this understanding of the terms "frivolous" and "vexatious", there was no error by the Registrar in refusing to accept the applicant's documents for filing on the basis that, on their face, they satisfied that description. A number of matters indicate that that is so. 32 The first is that the applicant's assumption that the State of South Australia is a body corporate incorporated under the Corporations Act and therefore bound by the Corporations Act and, in particular, subject to the duties imposed by ss 180-184 of the Corporations Act is plainly wrong, for the reasons given in Ferdinands v Registrar Parkyn [2020] FCA 1676 at [29]-[30] and repeated in Ferdinands v Registrar Parkyn [2021] FCA 24 at [25]-[26]. So also is the applicant's belief that the subject of his grievances constitute "examinable affairs" for the purposes of s 53 of the Corporations Act. This mistaken apprehension by the applicant also affects his proposed claims against the former Premiers and the current Premier of the State of South Australia, the former and current Attorneys-General for the State of South Australia and the holders of senior public offices in the State of South Australia. Contrary to the applicant's belief, the identified provisions of the Corporations Act do not provide him with the basis for a cause of action by which he can pursue grievances arising out of his termination as a police officer approximately 20 years ago. It was appropriate for the Registrar to characterise the applicant's reliance on the Corporations Act as a means of invoking the jurisdiction of this Court and as providing a basis for a cause of action as frivolous and vexatious within the meanings discussed above. It was plain that those claims have no reasonable basis. 33 A second fundamental difficulty for the applicant is that this Court does not have jurisdiction at large to hear claims for damages in respect of alleged negligence. The Court will have jurisdiction to hear such claims when they form part of a single justiciable controversy which is the subject of a non-colourable Federal claim: Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at [21]-[22]. Once the applicant be precluded from relying on causes of action based on provisions of the Corporation Act, he does not articulate a Federal claim, let alone a non-colourable Federal claim. This was so obvious that the Registrar was entitled to conclude on this additional basis that the proposed proceeding was frivolous or vexatious. In saying that, I am not overlooking the applicant's references to s 51(xxiv) and (xxv) of the Australian Constitution. Those sections do not give rise to any cause of action in the applicant. 34 Thirdly, this Court does not have jurisdiction to quash judgments of the Supreme Court of South Australia on appeals from the Magistrates Court of South Australia concerning matters arising solely under legislation of the Australian Parliament. It is plainly frivolous and vexatious for the applicant to seek to pursue such a claim in this Court. It is also plainly frivolous and vexatious for the applicant to name the Supreme Court and the Magistrates Court as respondents to the proceedings as there is no basis on which he could obtain relief against them. 35 Fourthly, this Court does not have jurisdiction with respect to the applicant's dismissal from SAPOL in 2001. That is purely a State matter being governed by the law of South Australia. In any event, neither the applicant's proposed originating application nor his statement of claim indicated a basis upon which this Court may have jurisdiction to grant relief in respect of that dismissal. For this reason too, the proposed proceedings were frivolous and vexatious. 36 Fifthly, the originating application which the applicant sought to file sought declarations in such sweeping and general terms as to be fanciful. It is plain that the applicant has no reasonable prospect of persuading the Court to issue declarations in the terms which he proposed seeking. By way of example, it is obvious that the Court would not issue a declaration that "any refusal by any judicial officer for a voir dire hearing on evidence or special piece of evidence that does not comply with the rules of evidence or comply with the rules of the court is to be dismissed for bad faith (effective forthwith from the public office upon application to the Federal Court of Australia seeking removal for bad faith pursuant to the Federal Court Rules)". It is also obvious that the Court would not issue the declarations in terms that a named person is "not a fit and proper person to administer that law or be appointed to any position of trust", and not only because the identity of that "that law" has not been specified. There is no prospect of the Court being satisfied that the second and third essential requirements for the issue of declarations exist in relation to declarations of these kinds, namely, that the question involved be real and not hypothetical and there be a proper contradictor: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 at 437-8. Another way of putting it is to say that it was obvious that the proposed declarations would lack utility. 37 At the very least, it can be said that the applicant's proposed declarations are not in a form which concerns some immediate right, duty or liability to be established by the determination of the Court: Swee Yen Tay v Migration Review Tribunal [2009] FCA 515; (2009) 178 FCR 1 at [25]-[27]. This was plain on the face of the documents before the Registrar. 38 Sixthly, it is fanciful to suppose that this Court would, unrelated to particular rights, duties or liabilities make an order for the calculation of punitive damages by a set formula of $2.5 million per annum or that damages of $350 million should be awarded to the applicant. The very fact that claims of that order are made serves to underline the Registrar's conclusion that, on the face of the documents lodged for filing, the proposed proceedings were frivolous or vexatious. 39 For these reasons alone, it is evident that there is no error in the Registrar's characterisation of the proposed proceedings as frivolous and vexatious and the application for judicial review of the Registrar's decision must be dismissed. As indicated, this makes it unnecessary to consider the merit (or otherwise) of the applicant's other grounds of review.
Conclusion 40 For the reasons given above, the application for judicial review filed on 13 November 2020 is dismissed. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.
Ferdinands
Registrar Cridland
WHITE J: 1 The applicant in these judicial review proceedings is Mr Trevor Ferdinands. The respondent, Ms Cridland, is a National Registrar of the Court (the Registrar). 2 The applicant seeks judicial review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), of a decision made by the Registrar under r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR) to refuse to accept for filing a proposed originating application and supporting documents which he had lodged for filing on 11 November 2020. The documents comprised: an originating application; a statement of claim; the applicant's affidavit made on 2 November 2020; a notice to produce; an outline of submissions; and a document entitled "Legislation Relied Upon" containing extracts of three South Australian Acts. 3 This is the fourth judgment in recent times on applications by the applicant in respect of refusals by a Registrar, acting under r 2.26 of the FCR, to accept documents for filing. The first judgment concerned an application for an extension of time in which the applicant could commence proceedings under the ADJR Act for judicial review of a Registrar's refusal to accept for filing documents lodged on 1 May 2020 and which in general terms concerned the Army Cadet Scheme: Ferdinands v Registrar Parkyn [2020] FCA 1675. The second judgment concerned an application for judicial review of a Registrar's refusal on 19 August 2020 to accept for filing documents lodged by the application concerning his termination as a police officer in SAPOL in 2001: Ferdinands v Registrar Parkyn [2020] FCA 1676. The third judgment concerned a Registrar's refusal to accept for filing documents lodged by the applicant on 11 October 2020 by which (in paraphrased form) the applicant sought "review" of "the failure" of the Australian Securities and Investments Commission (ASIC) to decide that the State of South Australia (SA) and its Premier had, between 1997 to 2001, contravened ss 180-184 of the Corporations Act 2001 (Cth) and that those contraventions comprised "examinable affairs" of a corporation: Ferdinands v Registrar Parkyn [2021] FCA 24. 4 I have referred to the applicant's present application as an application for judicial review under the ADJR Act. Although it is not expressly identified as such, I consider this to be the appropriate characterisation of the application because: (a) the originating application is entitled "Originating application for judicial review" and indicates on its face that it is made using Form 66, which is the Form required by r 36.01(1) of the FCR for applications under the ADJR Act; (b) the application commences with 10 paragraphs purporting to particularise the applicant's claim that he is "aggrieved" by "the decision", this being a requirement for the applicant to have standing to bring the application under s 5(1) of the ADJR Act; and (c) it is established that an application pursuant to the ADJR Act is the appropriate means by which a person may seek review of a decision of the Registrar under r 2.26 of the FCR: Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164. 5 For the purposes of determining the application, I have had regard to the following documents: (a) the originating application for judicial review filed on 13 November 2020; (b) the affidavit of the applicant made on 13 November 2020; (c) the applicant's written submissions lodged with the originating application on 13 November 2020; (d) the affidavit of the applicant made on 23 November 2020; and (e) the applicant's supplementary submission filed on 23 November 2020. 6 I have not conducted an oral hearing on the application. That is because the applicant requested in the written submissions lodged on 23 November 2020 that the Court "deal with the case on the papers by affidavit evidence". The Registrar has filed a submitting notice. Accordingly, the only evidence on the application is that filed by the applicant.
The function of a Registrar under r 2.26 of the FCR 8 Rule 2.26 provides: 2.26 Refusal to accept document for filing - abuse of process or frivolous or vexatious documents A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 9 In Ferdinands v Registrar Parkyn [2020] FCA 1676, I set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to r 2.26. It is convenient to repeat verbatim what I said then. 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) 12 Thus, contrary to the understanding evident in some of the applicant's submissions in support of the present application, a Registrar does not, when refusing to accept an originating document for filing under r 2.26, make any substantive judgment about the underlying merit of the claims in the proposed proceedings. The Registrar is instead ensuring compliance with procedural requirements, by refusing to accept for filing documents which on their face are frivolous or vexatious or would be an abuse of the Court's process.
[1972] HCA 61
(2003) 128 FCR 353
(1972) 127 CLR 421
(1959) 101 CLR 298
(2018) 261 FCR 164
(2017) 254 FCR 1
(2009) 178 FCR 1