Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2025] FCAFC 41

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

1. In a judgment delivered on 26 September 2024, Nicholas J dismissed an originating application brought by Mr Kitoko for judicial review of a decision of a Registrar of the Court - Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1119 (the primary judgment). By his decision, the Registrar refused to accept for filing an application for leave to appeal, a draft notice of appeal, and a supporting affidavit lodged by Mr Kitoko, all dated 4 July 2024 (the proposed application).
2. Mr Kitoko appeals from the dismissal of his originating application. He represented himself on the hearing of the appeal and made oral submissions to supplement his written submissions filed on 27 February 2025. The Registrar has entered a submitting appearance.
3. In his proposed application, Mr Kitoko would seek leave to appeal from the judgment of Burley J delivered on 21 June 2024, which dismissed an interlocutory application filed in two matters and ordered that the applicants (who included Mr Kitoko) pay the first respondent's costs (Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675). The background to that matter is set out at length in the primary judgment at [8]. In short, the interlocutory application before Burley J sought to set aside orders made by Katzmann J on the ground of apprehended bias.
4. On 9 February 2023, Katzmann J dismissed applications for extensions of time to appeal orders made by the Federal Circuit and Family Court of Australia (Div 2) (FCFCA (Div 2)), which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal to refuse Mr Tukala's and Mrs Vela's adult son a visa (in proceeding NSD 589 of 2022 - Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74) and ordered Mr Kitoko to pay the Minister's costs (in proceeding NSD 903 of 2022 - Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75). In oral submissions, Mr Kitoko explained that he is a relative of Mr Tukala and Mrs Vela and had "represented them in their immigration", although he is not a registered migration agent. On 21 March 2023, Katzmann J also ordered Mr Kitoko to pay the Minister's costs in proceeding NSD 589 of 2022 (Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241).
5. On 21 February 2023, before the orders made by Katzmann J on 9 February 2023 were taken to be entered pursuant to r 39.32(3) of the Federal Court Rules 2011 (Cth), Mr Kitoko lodged his interlocutory application to have those orders set aside. On 24 February 2023, the Registrar refused to accept for filing the documents in support of the proposed application for the reason that they seek to set aside a judgment made by a single judge exercising the appellate jurisdiction of the Court. That refusal came before Halley J, who upheld the Registrar's decision (Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056). That decision was overturned on appeal to the Full Court (Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCAFC 14 (Kitoko Full Court)) on the sole basis that because the orders made by Katzmann J had not yet been entered, Mr Kitoko had availed himself of the 14-day window of opportunity provided for in r 39.04 of the Rules to apply for an order to vary or set aside the relevant orders on the grounds identified in that rule. The Full Court affirmed (at [6]) that the application by which Mr Kitoko sought an extension of time to appeal against the decision of the FCFCA (Div 2) was heard by a single judge exercising the Court's appellate jurisdiction.
6. Following the Full Court's decision, the interlocutory application in both matters was reallocated to Burley J. The decision of Burley J in Tukala is, therefore, the second occasion on which the Court has considered the same application. In addition to dismissing the application, Burley J ordered that, pursuant to r 39.34 of the Rules, his orders were to be entered forthwith. Rule 39.34 alters the prima facie 14-day window of opportunity provided for in r 39.04 of the Rules to apply for an order to vary or set aside an order.
7. The Registrar's reasons for refusing to accept the proposed application to seek leave to appeal from that judgment are set out in the primary judgment at [6]. The fundamental basis for that refusal was that the proposed application is an abuse of process because it seeks to challenge the decision of a single judge exercising appellate jurisdiction.

1. By his Notice of Appeal filed 25 October 2024, Mr Kitoko relies on three grounds of appeal.
   1. Ground 1

Justice Nicholas denied procedural fairness to the Appellant, Mr Kitoko, when on 2 September 2024 his Honour made an order pursuant to s 20A of the FCA Act that this matter be dealt with without an oral hearing. Justice Nicholas made an order for the filing of any written submission on which Mr Kitoko sought to rely in support of his application, without an oral hearing. Since making the order pursuant to s 20A, Mr Kitoko was denied an opportunity to clearly presented his case and thus denied him the chance to win his application for judicial review.

1. Ground 2

The learned primary judge erred in [13], [14] and [15] of its reasons for judgement, in finding that the documents that Mr. Kitoko now seeks to file are directed at commencing an appeal, rather than seeking to re-open the interlocutory application heard by Burley J. The Full Court's reasoning regarding r 39.32(3) of the FCR in Kitoko FC is therefore inapplicable. Mr. Kitoko's assertion by Ground 1B that Burley J was exercising the original jurisdiction of this Court is plainly incorrect. Ground 1A, the submission that the registrar "failed" to refer to the Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act is misconceived.

Justice Nicholas failed to take into account or deliberately ignored Mr. Kitoko's submissions that the documents that Mr. Kitoko now seeks to file are directed at commencing an appeal from the interlocutory application proceedings heard by Burley J who was exercising the original jurisdiction of this Court pursuant to r 39.04 of the FCR. The Court's jurisdiction under s 39B(1A)(c) of the Judiciary Act is therefore applicable.

1. Ground 3

The learned primary judge erred in [9] of its reasons for judgement, in finding that both Proceedings NSD 589 of 2022 and NSD 903 of 2022 were commenced in the appellate jurisdiction of the Court: see the Full Court in Kitoko FC at [6] and Pt III, Div 2 of the FCA Act, and, in particular, s 24(1)(d) and s 25(2)(b). Both proceedings sought orders extending the time within which an appeal could be brought from the orders of [the FCFCA (Div 2)]. The interlocutory application heard by Burley J was brought in the same proceedings and was also heard by his Honour in the appellate jurisdiction of the Court.

Justice Nicholas failed to take into account or deliberately ignored Mr. Kitoko's submissions that both Proceedings NSD 589 of 2022 and NSD 903 of 2022 were commenced in the appellate jurisdiction of the Court and, in particular, s 25(1AA)(a) of the FCA Act. Both proceedings sought orders extending the time within which an appeal could be brought from the orders of [the FCFCA (Div 2)] under migration Act 1958. The interlocutory application heard by Burley J was brought pursuant to r 39.04 of the FCR that is not in the same proceedings and was therefore heard by his Honour in the original jurisdiction of this Court pursuant to r 39.04 of the FCR.

1. It is convenient to deal with Grounds 2 and 3 together as the gravamen of Mr Kitoko's complaint is the same in both grounds, namely the nature of the jurisdiction that was being exercised by Burley J and Nicholas J. In essence, Mr Kitoko says that the interlocutory application before Burley J was not brought in the same appellate proceedings as those concerned with his application for an extension of time to appeal the decision of the FCFCA (Div 2). He contends that Burley J was therefore exercising the original jurisdiction of the Court pursuant to r 39.04 of the Rules, which empowers the Court to vary or set aside a judgment or order before it has been entered.
2. The original jurisdiction of the Court is defined in s 19 of the Federal Court of Australia Act 1976 (Cth) (FCA Act):

(1) The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

(2) The original jurisdiction of the Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.

1. Section 20(3) of the FCA Act provides, relevantly, that applications for leave to institute proceedings in the Court, or for an extension of time within which to do so, must be heard and determined by a single Judge (unless a direction has been made that the application be heard by a Full Court or the proceeding has already been assigned to a Full Court).
2. Section 24 of the FCA Act provides for the appellate jurisdiction of the Court. Relevantly, it provides:

(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including any 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:

(a) appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

...

(d) appeals from judgments of the [FCFCA (Div 2)] exercising original jurisdiction under a law of the Commonwealth other than: [statutes not relevant in this case].

1. There is no doubt that Nicholas J was exercising the original jurisdiction of the Court. The application before his Honour was for judicial review of a decision of a Registrar and so fell within the terms of s 19(2) of the FCA Act. In the exercise of that jurisdiction, he was faced with the question of whether the Registrar was correct to conclude that Mr Kitoko was seeking leave to appeal from orders that had been entered by Burley J pursuant to r 39.34 of the Rules in the exercise of the appellate jurisdiction of the Court.
2. The interlocutory application that was before Katzmann J, and then before Burley J after the matter had been reallocated, was filed in proceedings NSD 589 of 2022 and NSD 903 of 2022. These proceedings were appeals from judgments of a judge of the FCFCA (Div 2). Consequently, they were proceedings within the appellate jurisdiction of the Court by virtue of s 24(1)(d) of the FCA Act. This was identified by the Registrar in his communication to Mr Kitoko on 10 July 2024, as was set out in the primary judgment at [6].
3. The Full Court made clear that the jurisdiction being exercised by Katzmann J in relation to proceedings NSD 589 of 2022 and NSD 903 of 2022 was the appellate jurisdiction (Kitoko Full Court at [6]). To the extent that Mr Kitoko submits that the primary judge erred by rejecting his submission that Burley J was not exercising the appellate jurisdiction of this Court, the submission must be rejected.
4. The true state of affairs is that, on the pronouncement of orders at the conclusion of proceedings which sought to advance an appeal against a decision of a lower court, an application was made for a judge to recuse herself. Because the orders of Katzmann J were not entered forthwith, Mr Kitoko should have had the opportunity to ask her Honour to reconsider those orders (Kitoko Full Court at [44]). Nonetheless, the Full Court held that the proposed interlocutory application sought to set aside orders made by a single judge exercising the Court's appellate jurisdiction (Kitoko Full Court at [47]).
5. Justice Burley, in considering the interlocutory application upon the reallocation of the proceedings, was likewise a single judge exercising the appellate jurisdiction of the Court and was concerned with the same interlocutory application. He too determined that no extension of time should be granted in either proceeding. As we have already observed, the orders made by Burley J on 21 June 2024 were entered forthwith pursuant to r 39.34. Consequently, unlike the circumstances discussed by the Full Court in Kitoko Full Court, it was not possible to vary or set aside those orders pursuant to r 39.04 because the orders had already been entered. To the extent that Mr Kitoko contends that the documents he has sought to file are seeking to "reopen" the interlocutory application before Burley J, his submission is misconceived. That is not an available avenue.
6. For these reasons, no error can be discerned in Nicholas J's finding (primary judgment at [13]) that Mr Kitoko's proposed application is directed at commencing an appeal against the orders of Burley J, who was exercising appellate jurisdiction.
7. Further, the primary judge was correct in his explanation of the scope and effect of s 39B(1A)(c) of the Judiciary Act 1903 (Cth). His Honour said, in the primary judgment at [16]:

Section 39B(1A) exists as a general conferral of jurisdiction to overcome the need for "limited Act by Act conferral of jurisdiction upon the Federal Court": Transport Workers' Union of Australia v Lee [1998] FCA 756; (1998) 84 FCR 60 at 67 per Black CJ, Ryan and Goldberg JJ. It does not overcome the fact that this Court's jurisdiction may have been exhausted. Nor does it confer any right of appeal in this Court in relation to a decision of a single judge exercising appellate jurisdiction. To the extent that Mr Kitoko intended to refer instead to s 39B more generally, and to the power of the Court to judicially review a decision of an officer of the Commonwealth under s 39B(1), a judge of this Court does not have the jurisdiction to issue a writ of prohibition or grant an injunction against another judge of this Court: Bird v Free (1994) 126 ALR 475 at 478-480 per Drummond J as approved by the High Court in Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595 at 608-609 per Dawson J, 616-617 per Toohey and Gaudron JJ and 631 per Gummow J. In any case, none of the documents Mr Kitoko sought [to file] was intended to commence a proceeding under s 39B(1) of the Judiciary Act.

(Emphasis added.)

1. Grounds 2 and 3 cannot succeed.
2. By Ground 1, Mr Kitoko contends that Nicholas J denied him procedural fairness by determining the matter on the papers, thereby denying Mr Kitoko the opportunity to present his case orally and "the chance to win his application for judicial review".
3. By order dated 2 September 2024, Nicholas J ordered, pursuant to s 20A of the FCA Act, that the matter be dealt with without an oral hearing. His Honour also ordered that Mr Kitoko file any written submissions he wished to rely on in support of his application for judicial review. Mr Kitoko did so on 9 September 2024. He did not at that time contest the order that the matter proceed without an oral hearing nor make any submission alleging that he had been denied procedural fairness. In oral submissions, Mr Kitoko said that he did not know that he could object to a hearing being conducted on the papers only. We observe that Mr Kitoko appears to be sufficiently acquainted with Court procedure such that he specifically requested an oral hearing in his proposed application.
4. Section 20A provides:

Power of the Court to deal with civil matters without an oral hearing

(1) This section applies in relation to any civil matter coming before the Court in the original jurisdiction of the Court.

(2) The Court or a Judge may deal with the matter without an oral hearing (either with or without the consent of the parties) if satisfied that:

(a) the matter is frivolous or vexatious; or

(b) the issue or issues on which determination of the matter depends have been decided authoritatively in the case law; or

(c) determination of the matter would not be significantly aided by an oral hearing because:

(i) there is no real issue of fact relevant to determination of the matter; and

(ii) the legal arguments in relation to the matter can be dealt with adequately by written submissions.

(3) This section does not limit subsections 20(4) and (6).

1. The primary judge did not identify the particular subparagraph of s 20A(2) on which he based his order. There is no suggestion that his Honour considered the matter to be frivolous or vexatious (cf Atkinson v Commissioner of Taxation [2015] FCAFC 18). Nevertheless, it is tolerably clear that his Honour had formed the view, following the judgment in Kitoko Full Court, that the issue had already been decided authoritatively by the Full Court. Further, it was obvious that there was no issue of fact to be determined, and therefore no issues of credibility fell to be assessed nor was there any need to resolve differing versions of events (see eg, Wilmink v Westpac Banking Corporation [2015] FCAFC 17). His Honour apparently took the view that the legal arguments could be dealt with adequately by written submissions, and it was therefore open for his Honour to be satisfied that the determination of the matter would not be aided by an oral hearing.
2. In addition to the written submissions filed by Mr Kitoko, the primary judge set out a list of materials to which he had regard in considering the application for judicial review (primary judgment at [5]).
3. In the course of the hearing of the appeal, Mr Kitoko was given the opportunity to explain what he would have wished to add to his written submissions had he been afforded an oral hearing before Nicholas J. Mr Kitoko was unable to identify any additional matters.
4. In the Court's view, the primary judge did not deny Mr Kitoko procedural fairness in delivering his judgment without an oral hearing. The issues had been fully agitated before the Full Court and, but for the timing of the entry of orders, there had been no material change to the circumstances considered at length by the Full Court.
5. Ground 1 is without merit.

1. For these reasons, Mr Kitoko's appeal must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Sarah C Derrington, Neskovcin and Vandongen.