Khan v Registrar of the Federal Court of Australia

1. The application is dismissed.
2. The Registry be directed not to accept the notice of appeal dated 15 September 2023 for filing.
3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

HESPE J: 1 The Originating Application seeks judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1986 (Cth) (ADJR Act) of a decision of a Registrar of this Court to refuse to accept a purported Notice of Appeal for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules). The Registrar filed a Submitting Notice on 29 August 2024. 2 Mr Khan appeared at a hearing in these proceedings in person. At the end of the hearing Mr Khan was accorded the opportunity to provide further submissions, which he did by way of email. 3 By the purported Notice of Appeal, the Applicant seeks to appeal decisions of the Victorian Civil and Administrative Tribunal (VCAT) and decisions of the Victorian Court of Appeal, identified in the purported Notice of Appeal as: 1. Decision from which the appeal is made: i. Judicial Officer: Teresa Bisucci, Acting Deputy President ii. Court: VCAT: Riaz v Greater Dandenong CC (tb 170719) iii. Date of decision made: 17 July 2019 iv. Court file number: VCAT reference No. P932/2019 2. Decision from which the appeal is made: i. Judicial Officer: Jeanette G Rickards, Senior Member ii. Court: VCAT: Khan v Greater Dandenong CC [2019] VCAT 1914 iii. Date of decision made: 4 December 2019 iv. Court file number: VCAT reference No. P1467/2019 3. Decision from which the appeal is made: i. Judicial Officer: Mark Dwyer, Deputy President ii. Court: VCAT: Khan v Greater Dandenong CC (Corrected) [2020] VCAT 412 iii. Date of decision made: 30 March 2020 iv. Court file number: VCAT reference No. P149/2020 4. Decision from which the appeal is made: i. Judicial Officers: Justice McLeish & Justice Osborn ii. Court: Supreme Court of Victoria-Court of Appeal: Riaz & Ors v City of Greater Dandenong iii. Date of Order: 18 August 2023 iv. Court file number: S EAPCI 2023 0004 5. Decision from which the appeal is made: i. Judicial Officer: Dalia Cook, Member ii. Court: VCAT: Riaz v Greater Dandenong CC iii. Date of decision made: 17 July 2017 iv. Court file number: VCAT reference No. P1283/2017 6. Decision from which the appeal is made: i. Judicial Officers: Justice Niall & Justice Macaulay ii. Court: Supreme Court of Victoria-Court Of Appeal: Khan vs Victorian Civil and Administrative Tribunal. iii. Date of Order: 20 December 2018 iv. Court file number: S APCI 2018 0131 4 Upon refusing to accept the purported Notice of Appeal for filing, an explanation in the following terms was sent by email to the Applicant by a client services officer of this Court: The Registry has been advised that we cannot accept your documents for filing under r 2.26 on the basis it does not substantially comply with the Rules, including, r 36.02 and r 36.03. 5 The Applicant in submissions to this Court identified that rr 36.02 and 36.03 deal with the location and timing of filing a notice of appeal. The Applicant submits that he complied with r 36.02(b) by filing the notice in the Victorian Registry of the Federal Court. The Applicant further submits that he complied with the timing requirement in r 36.03 in respect of decision 4 in the list above by filing the purported Notice of Appeal within 28 days of the date on which the orders of the Court of Appeal were pronounced. 6 The Registry's reference to rr 36.02 and 36.03 was infelicitous in the circumstances. 7 However, on review of the purported Notice of Appeal I am satisfied that, on its face, it is an abuse of process and there would be no utility to requiring the Registrar to reconsider the decision. 8 Rule 2.26 of the Rules 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 The purpose of 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: Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [33], [38] (Barker, Banks-Smith and Colvin JJ). 10 The appellate jurisdiction of the Court is a function of statute. The appellate jurisdiction of this Court is provided for in s 24 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). It relevantly provides: (1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine: … (b) appeals from judgments of the Supreme Court of a Territory (other than the Australian Capital Territory or the Northern Territory); and (c) in such cases as are provided by any other Act, appeals from judgments of a court (other than a Full Court of the Supreme Court) of a State, the Australian Capital Territory or the Northern Territory, exercising federal jurisdiction; and … 11 The appellate jurisdiction of this Court does not extend to hearing appeals from a decision of the Victorian Court of Appeal. 12 At hearing, Mr Khan indicated that if necessary, he would seek to amend his purported Notice of Appeal to appeal an order of the Supreme Court of Victoria rather than the order of the Victorian Court of Appeal. 13 The underlying dispute concerns a planning dispute that Mr Khan sought to bring before VCAT. Section 24(1)(b) of the Federal Court Act does not apply because the Supreme Court of Victoria is not the Supreme Court of a Territory (where Territory takes its meaning from s 122 of the Constitution - see s 2B of the Acts Interpretation Act 1901 (Cth)). Section 24(1)(c) does not confer appellate jurisdiction on this Court in respect of such a matter. First, there is no "other Act" of the Commonwealth Parliament providing for such an appeal. Second, a decision of the Supreme Court of Victoria on an appeal from a decision of VCAT does not involve the Supreme Court of Victoria exercising federal jurisdiction. 14 In so far as Mr Khan seeks to appeal to this Court from VCAT, it is noted that an appeal from an administrative body is not an exercise of appellate jurisdiction but is an exercise of original jurisdiction. The original jurisdiction of this Court is a function of statute. It is a Court of limited jurisdiction. Under s 19 of the Federal Court Act, the Court has such original jurisdiction as is vested in it by the laws made by the Commonwealth Parliament. 15 There is no Act of the Commonwealth which vests jurisdiction in this Court to hear appeals from VCAT. 16 Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides: (1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding - (a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or … (b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division. 17 Therefore, there is no jurisdiction in this Court to hear an appeal from VCAT. 18 Mr Khan also referred the Court to s 32 of the Federal Court Act which is in the following relevant terms: (1) To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked. (2) The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter (the core matter) in respect of which an appeal from that judgment, or another judgment of that court, is brought. 19 There is no core matter within the jurisdiction of this Court to which Mr Khan's purported Notice of Appeal relates. 20 Mr Khan also submitted that the following legislation would be part of his application: (1) Section 2 of the Australia Act 1986 (Cth). This section provides for the legislative powers of the Parliaments of States. It has no relevance to the decisions Mr Khan seeks to appeal by his purported Notice of Appeal. (2) Schedule 2 of the Australian Human Rights Commission Act 1986 (Cth). That Schedule sets out a copy of the English text of the International Covenant on Civil and Political Rights. The Act itself provides for the establishment of the Australian Human Rights Commission. It has no relevance to the decisions Mr Khan seeks to appeal by his purported Notice of Appeal. (3) Section 236 of the Corporations Act 2001 (Cth). That section enables a person to bring proceedings on behalf of a company or intervene in any proceedings to which a company is a party. Mr Khan's purported Notice of Appeal does not raise any issue concerning the application of s 236 of the Corporations Act. The applicants to the VCAT applications underlying the dispute were all individuals. 21 The purported Notice of Appeal does not on its face engage the jurisdiction of the Court. I am satisfied that the purported Notice of Appeal should not be accepted for filing as it would constitute an abuse of process. Although the references to non-compliance with r 36.02 and r 36.03 were not appropriate in the circumstances of this case, I am satisfied that there would be no utility in remitting the decision back to the Registrar for reconsideration. 22 Mr Khan requested that the Court delay making orders pending him filing an amended originating application to join his application under the ADJR Act with an application under s 39B of the Judiciary Act 1901 (Cth). The Court declines that request because s 39B of the Judiciary Act does not expand or provide a further basis for the grant of the relief that Mr Khan seeks. His purported Notice of Appeal is misconceived. 23 The application for review is dismissed. There will be no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.