Kitoko v Registrar of the Federal Court of Australia

THE ORIGINATING APPLICATION 12 On 24 March 2023, Mr Kitoko filed an originating application seeking judicial review of the Registrar's decision to refuse to accept his documents for filing. The grounds of review were: Ground 1 grounds sub-section 5(2)(d) of AD(JR) [the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)] that the making of the decision by National Registrar McCormick was an improper exercise of the power as including a reference to an exercise of a discretionary power in bad faith; … Ground 2 grounds sub-section 5(1)(b) of AD(JR) that procedures that were required by law to be observed by National Registrar McCormick in connection with the making of the decision were not observed; Ground 3 grounds sub-section 5(1)(c) of AD(JR) that National Registrar McCormick who purported to make the decision did not have jurisdiction to make the decision; Ground 4 grounds sub-section 5(1)(f) of AD(JR) that the decision involved an error of law, whether or not the error appears on the record of the decision; Ground 5 grounds sub-section 5(2)(a) or 5(2)(b) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to taking an irrelevant consideration into account in the exercise of a power, or failing to take a relevant consideration into account in the exercise of a power; Ground 6 grounds sub-section 5(2)(g) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; Ground 7 grounds sub-section 5(2)(j) of AD(JR) that the making of the decision was an improper exercise of the power as including a reference to any other exercise of a power in a way that constitutes abuse of the power by National Registrar McCormick. 13 Only Ground 1 was the subject of particulars, which the primary judge summarised at J[36] and [37] in the following way: The particulars provided to ground 1 included allegations of what is claimed to be a "Planned Secret Meeting" between the appellate judge and counsel appearing for the Minister. The applicant claims that he witnessed through the court video-link system the appellate judge return to the court room after reserving judgment and then saw her Honour "start the meeting with the Minister's barrister". He further claims that when her Honour realised that Mr Tukala, Ms Vela and the applicant were still "online or present inside the court room" as well as the Minister's barrister, her Honour raised her voice and stated "[applicant] why [are] you still online, leave the court immediately by clicking the off-line button located in the right corner of your computer". The particulars to ground 1 were otherwise directed at a contention that the interlocutory application was seeking orders under r 39.04 and r 39.02 of the Rules for the setting aside of orders made by the appellate judge in the nature of orders variously referred to as "recalling", "reopening", "reviewing" or "reconsidering" a judgment or order. The particulars included references to the decision of the New South Wales Court of Appeal in Malouf v Prince (No 2) [2010] NSWCA 51 (McColl and Macfarlan JJA, Nicholas J) and the Supreme Court of New South Wales in The Owners-Strata Plan 47027 v McGinn [2018] NSWSC 1230 (Darke J).

THE JUDGMENT THE SUBJECT OF THIS APPEAL 14 The primary judge concluded that Mr Kitoko was seeking to challenge a decision of a judge exercising appellate jurisdiction and that this was an abuse of process because the appellate jurisdiction had been exhausted, referring to s 25(1AA)(a) and s 33(4) of the Federal Court of Australia Act 1976 (Cth) (FCA Act): J[44]. His Honour held that the Registrar was correct in refusing to accept the interlocutory application for filing: J[44], [58]. 15 The primary judge recorded Mr Kitoko's submission that, by his proposed interlocutory application, Mr Kitoko was asking the Court to set aside the orders made by the appellate judge on 9 February 2023 by way of a "recalling", "reopening", "reviewing" or "reconsidering", not by way of an appeal and noted that Mr Kitoko relied, amongst other thing, on r 39.04 of the Rules: J[45]. Rule 39.04 provides: 39.04 Varying or settling aside a judgment or order before it has been entered The Court may vary or set aside a judgment or order before it has been entered. 16 The primary judge concluded that the orders made by the appellate judge on 9 February 2023 had been entered on 10 February 2023, before Mr Kitoko had lodged his proposed interlocutory application on 21 February 2023, with the result that r 39.04 did not apply: J[30], [45]. Mr Kitoko challenges these conclusions. 17 The primary judge noted that Mr Kitoko did not rely on r 39.05, being the rule applicable after a judgment or order has been entered: J[55]. That rule provides: 39.05 Varying or setting aside judgment or order after it has been entered The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission. 18 The primary judge recorded that none of the "preconditions" to the operation of r 39.05 were alleged to arise and that the rule was not engaged: J[55]. His Honour concluded that none of Mr Kitoko's other grounds had any merit: J[53], [56]. The primary judge therefore dismissed Mr Kitoko's application. There was no order as to costs.

MR KITOKO'S CONTENTIONS ON APPEAL 19 Mr Kitoko's notice of appeal is 28 pages long. It contains four grounds of appeal and a number of submissions. Mr Kitoko has also filed written submissions. Aspects of Mr Kitoko's notice of appeal and submission are unclear, but the following contentions emerge clearly enough. 20 By Ground 1, Mr Kitoko contends that the primary judge erred in concluding that Mr Kitoko's proposed interlocutory application was an abuse of process. Ground 1 asserts that the cause of action in the Federal Court before the appellate judge differed from the cause of action which he sought to prosecute by the documents he sought to file. 21 By Ground 2, Mr Kitoko contends that the primary judge's exercise of power miscarried in a manner that was productive of substantial injustice. Mr Kitoko asserts that the primary judge failed to take into account or deliberately ignored unchallenged evidentiary material on which Mr Kitoko relied. This is presumably a reference to Mr Kitoko's affidavit which had attached to it a submission in which he asserted that a secret meeting had taken place between the appellate judge and the Minister's representatives after the hearing. The same assertion was contained in the particulars to Ground 1 of the originating application. Mr Kitoko contended that the primary judge's conclusion that the Full Court's appellate jurisdiction was exhausted once it had been exercised was contrary to the "objectives set out in" Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300. 22 By Ground 3, Mr Kitoko contended that the primary judge's decision involved an error of principle in applying (or not applying) r 39.04 of the Rules. In his written submissions, Mr Kitoko referred to r 39.32(3) and submitted that, if a notice of motion for setting aside or variation of a judgment or order is filed within 14 days after the day the judgment or order was authenticated, the Court had power under r 39.04 to vary or set aside the judgment or order after it had been entered. Mr Kitoko submitted that the primary judge erred in law, at J[51], by failing to refer to or to identify or apply r 39.32(3). 23 Mr Kitoko submitted that, even if r 39.32(3) did not apply, and the orders made by the appellate court had been entered before he sought to file his proposed interlocutory application, injustice would arise if his claims concerning apprehended bias and procedural unfairness were not permitted to be raised. 24 Ground 4 refers to ss 5(1)(b), (c) and 5(2)(a), (b), (d), (g) and (j) of the ADJR Act. Mr Kitoko contended that the decisions of the Registrar and the primary judge were an improper exercise of power or an abuse of process. Ground 4 contends that the "inherent jurisdiction should be invoked, where r 39.04 … is silent on the stipulated time within [which] the [proposed] interlocutory application should be filed" and substantial injustice would follow if Mr Kitoko were not permitted to raise his claims about apprehended bias and procedural unfairness.

CONSIDERATION 25 It is convenient first to address the principal factual issue raised by Mr Kitoko, namely the question of when the orders made by the appellate judge on 9 February 2023 were entered.

Entry of orders 26 Consistently with earlier rules of this Court, it is the time that orders are entered which governs the question of whether the order may be varied or set aside generally or only on specified grounds - see, for example: Eastman v R [2008] FCAFC 62; 166 FCR 579 at [17]. 27 Rule 39.04 (set out at [15] above) provides a general power to vary or set aside orders before the relevant orders have been entered and r 39.05 (set out at [17] above) provides a power to vary or set aside orders after they have been entered, but only on the grounds identified in the rule. 28 Orders take effect from the time they are made by the Judge, not upon entry: r 39.01. Division 39.4 of the Rules establishes rules for the entry of the Court's orders in both its original and appellate jurisdictions. These provisions derive their statutory force from ss 59 and 38 of the FCA Act. 29 Rule 39.31 contemplates that certain orders must be entered, and certain other orders need not be entered. There is no question that the orders made by the appellate court the subject of Mr Kitoko's proposed interlocutory application had to be entered in accordance with r 39.31(1). 30 Division 39.4 contemplates that there is generally a three-stage process for orders to be entered: first, the order is "settled"; secondly, the settled order is "authenticated"; and thirdly, the order is entered. 31 As to orders being "settled", r 39.33 provides: 39.33 Lodgment of orders for entry (1) If a party wants to have an order entered, the party may lodge with a Registrar a draft of the order. (2) An order may be settled by the Court, or a Registrar, despite no draft of the order having been lodged under subrule (1). (3) The Court may give directions to a Registrar who is settling an order under this rule. 32 As a practical matter, many orders are "settled" by the Court or a Registrar despite no draft having been lodged by a party. 33 As to orders being "authenticated", r 39.35 provides: 39.35 Authentication of orders (1) An order is authenticated by: (a) the Court, or a Registrar signing the order; and (b) the Court, a person at the direction of the Court, or a Registrar, affixing the seal of the Court or the stamp of a District Registry to the order. (2) A Registrar is to give a copy of an authenticated order in the proceeding to a party to a proceeding, on request. (3) A Registrar may give a copy of an authenticated order in the proceeding to any person who: (a) appears to have a sufficient interest in the proceeding; and (b) pays the prescribed fee (if any). 34 As to an order being entered, r 39.32 provides: 39.32 Entry of an order (1) An order may be entered by being authenticated in accordance with subrule 39.35(1). (2) A Registrar may enter an order by authenticating the order in accordance with subrule 39.35(1) if: (a) the order has been settled in accordance with rule 39.33; and (b) the Court directs, or a party requests, that the order be entered. (3) An order that has been authenticated in accordance with subrule 39.35(1) is taken to be entered on the 14th day after the day it was authenticated, unless the Court otherwise directs. 35 When orders are made at the time written reasons for judgment are delivered, the Court's current judgments template includes a notation at the foot of the orders which states: "Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011". 36 Subrule 39.32(3) was introduced by the Federal Court Legislation Amendment Rules 2022 (Cth), commencing on 13 January 2023. One apparent purpose of subrule 39.32(3) is to provide parties with a short period of time (14 days) to consider the orders made, and any reasons given, before orders are entered. This facilitates drawing matters to the Court's attention if necessary or the making of a considered and appropriate application. If orders are entered as soon as they are made, or very soon thereafter, parties may not have sufficient time to consider these matters. The effect of providing the parties with a short period of time before entry is that there is a narrow window of continued jurisdiction which can be invoked: to put right a plain mistake on the part of the Court; to draw the Court's attention to a fact or point of law that was plainly relevant but was omitted or overlooked; where new facts were discovered after judgment which could not have been uncovered before; or where a party did not have a fair opportunity to consider a matter when it was raised for the first time during proceedings or in the reasons for judgment - see: Zuckerman on Australian Civil Procedure, (LexisNexis, 2nd ed, 2024) at [23.35]. In this way, subrule 39.32(3) promotes the desirable objective of ensuring that matters which ought first be addressed by the judge who made the orders are addressed by that judge in advance of any subsequent appeal. It facilitates the avoidance of unnecessary appeals and consequent increased costs and delay. 37 The desirability of providing a short time to the parties to consider the orders and any reasons given so that the parties might draw a matter to the Court's attention or make an application before the orders are perfected by being entered is evident in the rules of other Courts. In the Supreme Court of New South Wales, for example, the result is achieved by permitting a notice of motion to be filed within 14 days of orders being entered and, if that is done, treating the orders as if they had not been entered. Subrule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that "[i]f a notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order has not been entered". The NSW rule contains a quite different deeming mechanism to that found in r 39.32(3) applicable in the Federal Court. Under the UCPR, an entered order is treated as not having been entered if the notice of motion is filed within 14 days. Under the Rules, an order is taken to be entered 14 days after it was made, unless the Court otherwise directs. 38 Rule 39.34 should also be mentioned. It provides: 39.34 Order entered in Court The Court may direct that an order be entered by the order being authenticated in Court, in accordance with rule 39.35(1), at the time the order is made. 39 This rule facilitates an order being authenticated and entered in Court at the time the order is made. The rule facilitates the entry of orders on an urgent basis. Where r 39.34 is employed, given the recent introduction of r 39.32(3) and the reference in both that subrule and r 39.34 to authentication under r 39.35(1), prudence might dictate that a direction should be given under r 39.32(3) as to the time the order is entered. 40 In summary therefore, leaving aside cases where orders are entered in Court under r 39.34: (a) Once orders are settled, authentication of an order is achieved under r 39.35(1) by the Court or a Registrar signing the order and the affixing of the Court's seal to the order. (b) Under subrule 39.32(3), where an order is authenticated under subrule 39.35(1), it is taken to be entered 14 days after that authentication unless the Court directs otherwise. The 14-day period commences on the day after the order is authenticated: r 1.61.

Did the primary judge err? 41 On 9 February 2023, the appellate judge made orders dismissing the proceedings numbered NSD 589 and NSD 903. The appellate judge did not use the power under r 39.34 or make a direction under r 39.32(3). 42 On 10 February 2023, the orders were authenticated under subrule 39.35(1), the Principal Registrar's signature being applied and the Court's seal being affixed. Given that the Court did not direct otherwise, the orders were taken to be entered 14 days later, commencing the day after the date of authentication: r 39.32(3); r 1.61. Accordingly, the orders made by the appellate judge on 9 February 2023 were taken to be entered on 24 February 2023. 43 Mr Kitoko lodged his proposed interlocutory application in both appeal proceedings (NSD 589 and NSD 903) on 21 February 2023, before the orders made by the appellate judge were taken to be entered. 44 The primary judge appears to have overlooked r 39.32(3). His Honour erred in concluding that, for the purposes of r 39.04 (and r 39.05), the orders were entered on 10 February 2023. The error is captured by Ground 3 of the notice of appeal, read with Mr Kitoko's submissions. 45 It should be noted that the authenticated orders in both appellate proceedings contained the words: "Date that entry is stamped", followed by the date: 10 February 2023. These words accord with the Court's template for orders. This form of words should perhaps be reviewed. It might be clearer to state, for example: "Date orders authenticated" and make reference to r 39.32(3). As noted earlier, the Court's judgment template contains a reference to r 39.32. 46 The Registrar concluded that the documents were an abuse of process because the orders "seek to set aside a judgment made by a single judge exercising the appellate jurisdiction of the Federal Court of Australia". 47 It is true that the proposed interlocutory application sought to set aside orders made by a single judge exercising the Court's appellate jurisdiction. It was not an abuse of process to seek to do so under r 39.04 before the orders were taken as having been entered. Although Mr Kitoko's proposed interlocutory application is not entirely clear, it is sufficiently clear that Mr Kitoko sought to re-open to raise an allegation of apprehended bias and breach of procedural fairness. Mr Kitoko based his allegation of apprehended bias on what he perceived to have occurred after the hearing and after the appellate judge reserved judgment. That is not a matter that he could have addressed in the hearing itself, albeit it could have been raised before judgment. Mr Kitoko was, however, not represented. If Mr Kitoko's proposed interlocutory application had been permitted to come before the appellate judge, it would have been an available exercise of power to permit Mr Kitoko to re-open, and it would have been possible to vary or set aside the orders made on 9 February 2023 under r 39.04 if some appropriate basis for relief had been established. 48 It follows that the appeal should be allowed.

CONCLUSION 49 The appeal must be allowed. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Thawley, Cheeseman and Shariff.