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.