Ferdinands v Registrar Parkyn

The function of a Registrar under r 2.26 of the FCR 7 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. 8 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. 9 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) 10 Thus, contrary to 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, and for this purpose may refuse to accept documents which on their face are frivolous or vexatious or would be an abuse of the Court's process.

The documents rejected for filing 11 The originating application which the applicant lodged for filing on 11 October 2020 was entitled "Originating application for judicial review" and was in the form of Form 66 which, as noted, is the Form required by r 31.01(1) of the FCR for applications under the ADJR Act. I will refer to this as the Proposed Application. 12 The Proposed Application named three respondents: the Australian Securities and Investments Commission (ASIC); Mr Steven Marshall, the Premier of South Australia; and the State of South Australia. 13 The general nature of the application is indicated by its opening paragraph: The Applicant applies to the Court to review the failure of [ASIC] to decide that pursuant to section 53(a) Affairs of the body corporate that the matters of contraventions of sections 180, 181, 182, 183 and 184 of the Corporations Act are deemed to be "examinable affairs" of a corporation and [ASIC] has (1) a duty, (2) obligation, (3) responsibility and (4) requirement to inquire into and investigate such matters. (Emphasis added) 14 Under the heading "Details of claim", the applicant stated nine grounds of grievance. The first five were that ASIC had not responded to communications and correspondence and had failed to make a declaration that Mr Marshall and the State of South Australia had contravened ss 180, 181, 182, 183 and 184 of the Corporations Act 2001 (Cth). 15 In para [6] of the Details of claim, the applicant asserted that ASIC had not responded to communications and correspondence and had failed to make a declaration that s 53(a) of the Corporations Act had been contravened by Mr Marshall and the State of South Australia "by misappropriation of funds by senior State officers for illegal, unlawful and wrongful prosecutions against the Applicant in the South Australian law courts from 1997 to 2001". 16 The seventh paragraph made a like allegation with respect to s 53AA of the Corporations Act but referred to "misappropriation of funds by senior State officers for illegal, unlawful and wrongful appeals involving and by the Applicant, against unlawful prosecutions of the Applicant in the South Australian law courts from 2001 to 2020". 17 Next, the applicant alleged that the respondents have violated ss 51(xxiv) and 51(xxv) of the Australian Constitution "by not checking the accuracy of the face of the public record nor correcting and repairing all records and mistakes upon the face the public record using all enabling powers that they have been provided with by Parliament (State and Commonwealth) including inquiry pursuant to section 53(a) and 53AA of the Corporations Act". 18 Finally, para [9] in the Details of Claim alleged: The Second Respondent and Third Respondent have caused serious concerns of potential fraud over two-decades in South Australia under the leadership, command, control and management of the State of South Australia through their respective political parties, namely Australia Labor Party (Mike Rann/Michael Atkinson and Jay Weatherill/John Rau) and Liberal Party of Australia (Steven Marshall/Vicki Chapman). 19 It is not clear what the applicant claims to be the "potential fraud" to which this paragraph refers. 20 The Proposed Application then contained nine paragraphs of purported grounds, nine paragraphs containing the relief sought by the applicant and three paragraphs purporting to identify questions of law raised by the application. 21 It is convenient to refer to other aspects of the Proposed Application when addressing the merits of his application for judicial review of the Registrar's decision.

The rejection of the documents 22 In his letter of 13 October 2020, the Registrar informed the applicant that he was "unable to accept [the applicant's] documents for filing pursuant to r 2.26 of the Federal Court Rules 2011". The Registrar then set out the content of r 2.26 and continued: I am satisfied having considered the documents you have sought to file that they are on their face frivolous or vexatious. It would constitute an abuse of the process of the Court if they were accepted for filing.

Consideration 23 The applicant's application for judicial review does not identify the particular ground or grounds stated in s 5(1) of the ADJR Act on which he relies. I have assumed, however, that the applicant relies on s 5(1)(f), namely, that the Registrar's decision involved an error of law. 24 In my opinion, for the reasons which follow, the Registrar's decision has not been shown to be affected by any such error (remembering that his decision is essentially about the adequacy of the content and form of the documents lodged for filing). 25 First, it is plain on its face that the Proposed Application was prepared on the assumption that the State of South Australia is a corporation to which the Corporations Act applies. As I sought to explain in Ferdinands v Registrar Parkyn [2020] FCA 1676 at [29]-[30], that involves a misconception. Sections 181-184 of the Corporations Act on which the applicant relies are provisions specifying duties of directors, secretaries, officers and employees of corporations governed by the Corporations Act. The State of South Australia, as a constituent State of the Commonwealth of Australia, is not such a corporation. This has the consequence that the Premier of the State of South Australia is not, in that capacity, a director, secretary, officer or employee of a corporation to which the Corporations Act applies. Sections 180-184 have no application to the discharge by the Premier of South Australia of his functions and responsibilities as Premier. 26 This could be said to be a substantive point and not one of procedural compliance. However, it provides the background in which the procedural defects are made obvious. That is that the applicant does not even purport to show in the documents lodged for filing a basis upon which ASIC may have jurisdiction, responsibility or power with respect to Mr Marshall in his capacity as Premier of the State of South Australia or of the State of South Australia itself. It should be taken that an applicant seeking review under the ADJR Act of the failure of the decision-maker to make a decision should identify in the originating document the duty to which it is said the decision-maker is subject - see s 7(1)(a) of the ADJR Act. The applicant does not, and for the reason stated above cannot, comply with that procedural obligation. 27 Secondly, there is the applicant's invocation of ss 51(xxiv) and (xxv) of the Australian Constitution. Section 51 vests legislative powers in the Australian Parliament. By s 51(xxiv), the Australian Parliament may make laws for "the service and execution throughout the Commonwealth of the civil and criminal process in the judgments of the courts of the States". By s 51(xxv), the Australian Parliament may make laws for "the recognition throughout the Commonwealth of the laws, the public Acts and records, and judicial proceedings of the States". The applicant's proposed claim that the respondents have violated those provisions does not contain any articulation of how it is that the provisions have been contravened. It is improbable that the applicant will be able to do so because none of the respondents is subject to those Constitutional provisions, and none of them could exercise the powers contained in those provisions. This makes it likely that any attempt by the applicant to pursue claims of this kind will be frivolous or vexatious, but the point for present purposes is that the applicant's proposed proceedings did not, as a minimum, articulate how either of these provisions had been "violated" by the respondents. 28 Thirdly, the Proposed Application indicates that he wishes to raise and pursue allegations of a serious kind. By way of example, he wishes to agitate in the proceeding, whether directly or indirectly, allegations of "misappropriation of funds by senior State officers for illegal, unlawful and wrongful prosecutions" against him in SA from 1997 to 2001 in one instance, and from 2001 to 2020 in another, and to raise issues of "potential fraud". However, the documents lodged for filing did not contain any proper articulation of these serious allegations. It is fundamental that, if serious allegations of this kind are to be made or agitated in support of claims for relief, they should be properly articulated, and they are not. One is left to speculate as to the basis of the claims. The fact that speculation is required is itself an indication that the proposed proceedings were not in proper form. 29 Fourthly, s 11(1)(c) of the ADJR Act specifies the time limit within which applications for judicial review under that Act should be sought. That period is 28 days or such further period as the court concerned may allow. It is evident that, in the case of Mr Marshall and the State of South Australia, the applicant seeks judicial review of events which may extend back as far as 1997. The Proposed Application did not indicate any basis on which decisions or conduct of that age could be reviewable under the ADJR Act and did not disclose any basis upon which the Court could grant an extension of the 28 day period. 30 Fifthly, the applicant's submissions lodged with the Proposed Application, which included extensive reference to the decision in Donoghue and Stevenson [1932] AC 562, indicates that he may wish to pursue a claim in negligence against ASIC, Mr Marshall or the State of South Australia. However, judicial review proceedings are not a vehicle by which claims for damages in respect of negligence may be pursued. Moreover, the Proposed Application contained no reference to such a cause of action, let alone pleading the material facts to support such a cause of action. The Registrar was entitled to recognise that this was so and that this was another shortcoming in the proposed proceedings. 31 Finally, there is a suggestion in the present application and in the documents which were rejected for filing that the applicant conceives "judicial review" proceedings as a means by which a person may seek review by a judge of any governmental decision or action with which he or she is dissatisfied. Proceedings under the ADJR Act are more confined than that. Review is available under that Act only in the circumstances for which it provides. Accordingly, as I stated in Ferdinands v Parkyn [2020] FCA 1676: [35] … It is a reasonable expectation that an application under the ADJR Act will state with conciseness the decision sought to be reviewed and identify clearly, with reference to the grounds stated in s 5 of the ADJR Act (or s 6 or s 7 as the case may be) the grounds upon which the review is sought. In the case of an application under s 5(1), the application will identify with precision the particular ground or grounds within that subsection on which the application is made and the manner in which those grounds are said to be engaged. The applicant's proposed proceedings failed to meet that minimum standard.

Summary 32 In summary, the applicant has not shown a basis upon which his application for judicial review under the ADJR Act against the decision of the Registrar made on 13 October 2020 may succeed. Accordingly, the application is dismissed. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.