mr fuller's application for review
23 The documents which Mr Fuller attempted to file on 16 July 2015 did not purport to be a fresh application for leave to institute a proceeding under s 37AR of the Federal Court Act, but rather a relisting, pursuant to order 6 of WAD 1 of 2014, of his application for leave to apply for leave to appeal against order 1 and order 2 of the orders made by Barker J on 19 December 2013 in WAD 332 of 2012. In addition to an interlocutory application seeking that relief, the documents which Mr Fuller attempted to file comprised submissions, and an affidavit sworn by Mr Fuller on 16 July 2015. Annexed to that affidavit was: a proposed notice of appeal in respect of order 1 and order 2 made by Barker J on 19 December 2013, a proposed amended originating application in WAD 332 of 2012 and a proposed amended statement of claim in WAD 332 of 2012.
24 In support of his application to review the decision of the Registrar, Mr Fuller filed an affidavit dated 4 August 2015. That affidavit also annexed the proposed notice of appeal, the proposed originating application and the proposed amended statement of claim which Mr Fuller had annexed to his affidavit of 16 July 2015, to which I have referred in the preceding paragraph. In addition to those documents, Mr Fuller also annexed to his affidavit of 4 August 2015, correspondence which had ensued between himself and the Registrar in relation to the Registrar's refusal to accept his application for filing during the period 17 July to 24 July 2015. Mr Fuller's letter of 23 July 2015 to the Registrar contains the following paragraph:
My application to Siopis J has so far only been partly dealt with; and in now applying to bring the matter back to him to deal with the remainder, the format is presented in just the same way.
25 On 4 August 2015, Mr Fuller filed his application to review the Registrar's decision as an ex parte application.
26 However, on 19 August 2015, I made directions that Mr Fuller serve his application for review filed on 4 August 2015, on the respondents.
27 The solicitors for the respondents did not apply for leave to appear at the hearing, but filed written submissions, and sought leave in writing to rely upon the written submissions and an affidavit made by Mr Justin Anthony McDonnell, dated 13 May 2014, at the hearing. At the hearing, Mr Fuller objected to the granting of this leave. However, in my view, the respondents have a direct interest in the outcome of the application and, on that basis, I rejected Mr Fuller's application, and I granted the respondents leave to rely on the submissions and the affidavit of Mr McDonnell.
28 On 31 May 2016, Mr Fuller applied to reopen his case so as to adduce further evidence comprising an affidavit dated 30 May 2016. I will deal with that application in due course.
29 I now deal with Mr Fuller's contention that the Registrar erred in refusing to accept his application for filing because he was entitled to file the application pursuant to order 6 of the orders that I made on 24 April 2014.
30 In my view, the Registrar erred in rejecting Mr Fuller's contention that he was entitled to file the application which he attempted to file in WAD 1 of 2014 on 16 July 2015, pursuant to order 6 of the orders that I made on 24 April 2014, and in refusing to accept the application for filing.
31 The application in WAD 1 of 2014 which Mr Fuller made on 3 January 2014, refers in its heading to the vexatious litigant order made by Barker J pursuant to s 37AO(2) of the Federal Court Act and applies for leave to be granted to apply for leave to appeal from the whole of the judgment of Barker J delivered on 19 December 2013.
32 Mr Fuller's application for leave to be granted to apply for leave to appeal against Barker J's orders of 19 December 2013 did not refer expressly to s 37AR of the Federal Court Act; nor did it comply with the formalities set out in s 37AR(3) of the Federal Court Act in that the affidavit that Mr Fuller filed in support of his application did not deal with the matters required to be dealt with under that section.
33 However, it emerges from a proper construction of my orders made on 24 April 2014 that I treated Mr Fuller's application as being an application to achieve two objectives. The first objective was to rid Mr Fuller of the status of a vexatious litigant by appealing against order 3 of Barker J's orders of 19 December 2013, declaring him to be a vexatious litigant. The second objective was, even if he was unsuccessful in that endeavour, to seek leave to apply for leave to appeal, as a vexatious litigant, against order 1 and order 2 of Barker J's orders, namely, the substantive orders, striking out Mr Fuller's statement of claim and dismissing his originating application filed in WAD 332 of 2012.
34 Thus, order 4 of my orders of 24 April 2014 contemplates a process for challenging order 1 and order 2 of Barker J's orders, in the event that Mr Fuller was successful in his appeal and was able to rid himself of the status of a vexatious litigant. Order 6, on its proper construction, contemplates that Mr Fuller, even as a vexatious litigant, would be at liberty to relist his application of 3 January 2014, for leave to apply for leave to appeal against order 1 and order 2 made by Barker J on 19 December 2013. In other words, on 16 July 2015, Mr Fuller was not seeking to commence a new proceeding as a vexatious litigant without leave, but was rather seeking to relist a proceeding in which he had sought such leave, but which had not yet been determined.
35 Accordingly, I will set aside the Registrar's decision not to accept the application and supporting documents which Mr Fuller attempted to file on 16 July 2015; and will direct that these documents be accepted for filing.
36 I will treat the affidavit of 4 August 2015, and the submissions of Mr Fuller filed in this application, as having been filed in support of his relisted application in WAD 1 of 2014. I will also permit the respondents to rely upon the affidavit of Mr McDonnell of 13 May 2014 in Mr Fuller's relisted application in WAD 1 of 2014, as well as the submissions which were filed by the respondents in this application. Also, of course, Mr Fuller's submissions, which are part of the documents Mr Fuller attempted to file on 16 July 2015, will stand in his relisted application in WAD 1 of 2014.
37 However, in order to regularise Mr Fuller's application as being a valid application under s 37AR of the Federal Court Act, it is necessary for Mr Fuller to comply with the formalities of s 37AR(3) by filing a further affidavit (the s 37AR(3) affidavit) which addresses the matters referred to in s 37AR(3)(a), (b) and (c) of the Federal Court Act.
38 Mr McDonnell's affidavit deposes to the history of litigation between Mr Fuller and the respondents from 2009. Therefore, in deposing to the matters referred to in s 37AR(3)(b) of the Federal Court Act, it will not be necessary for Mr Fuller to depose to the history of litigation that Mr Fuller has instituted against the respondents which is referred to in Mr McDonnell's affidavit. However, insofar as there are other proceedings of the kind referred to in s 37AR(3)(b) which Mr Fuller has instituted, then he would need to depose to those proceedings.
39 In addition to any other matters to which Mr Fuller may depose in complying with s 37AR(3)(c), Mr Fuller should also depose to the extent to which he has complied with each of the costs orders made against him in favour of the respondents in the proceedings between them since 2009, and, insofar as any one or more of those costs orders have not been met, the reason for not meeting the costs orders.
40 I will order, under s 37AT of the Federal Court Act, that Mr Fuller serve his s 37AR(3) affidavit upon the respondents by serving the solicitors for the respondents in writing. I will dispense, however, with requiring Mr Fuller to serve the relisted application, dated 16 July 2015, and supporting documents on the respondents because that application and documents have already been served on the respondents in the course of this application for review.
41 I will also make directions for the filing of further written supplementary submissions by each of Mr Fuller and the respondents, such supplementary submissions to comprise no more than five pages. I will also give the respondents an opportunity to file any evidence, if they so choose, in response to Mr Fuller's s 37AR(3) affidavit.
42 Further, unless the Court, on the application of Mr Fuller or the respondents, otherwise orders, Mr Fuller's application under s 37AR for leave to apply for leave to appeal against order 1 and order 2 of Barker J's orders of 19 December 2013 will be determined on the papers.