Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia

Federal Court of Australia|2024-10-30|Before: Wheelahan J

The applicant's interlocutory application to amend the application in this proceeding 18 On 8 September 2024, the applicant filed an interlocutory application in this proceeding in which she sought orders that the hearing of this matter be expedited, and that leave be granted to her to file an amended application owing to changed circumstances, being that since lodging the application a Registrar had refused to accept the Rejected Documents for filing. 19 At a case management hearing on 26 September 2024, I listed both the application and the interlocutory application for hearing on 9 October 2024 and made an order that the applicant file written submissions. In the orders that I made, I noted that, as I had stated during the course of the case management hearing, the applicant should be ready to make submissions as to why this proceeding should not be permanently stayed as an abuse of process. 20 Also during the course of the case management hearing, the applicant made an application that I disqualify myself on the ground of apprehended bias, which I dismissed. Subsequently, I published written reasons for doing so in response to the applicant's request: Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia [2024] FCA 1161. 21 The interlocutory application was supported by an affidavit of the applicant sworn 8 September 2024. The applicant annexed to that affidavit - (a) Exhibit GL01, being a proposed amended application for judicial review in this proceeding; (b) Exhibit GL02, being a proposed revised application in the proceeding that the applicant seeks to commence against the State of Victoria and others, together with several accompanying documents that include email correspondence to the applicant from the Registry of the Supreme Court of Victoria requesting that she amend and re-submit documents that she had submitted for filing in that court, and the rejection of a fee waiver application in that court on the ground that it was incomplete; (c) Exhibit GL03, being the Registrar's letter of 2 September 2024 to which I referred above; and (d) Exhibit GL04, being the rejected application dated 15 July 2024.

The proposed revised application against the State of Victoria and others 22 The proposed revised application against the State of Victoria and others, which is Exhibit GL02, differs in some respects from the version that had been lodged for filing in this Court and rejected. The body of the revised document setting out the applicant's proposed claims is 31 pages in length. The two decisions of the VSCA Registrar that are impugned remain the subject of the proposed revised application. In common with the original document that was not accepted for filing, the revised document seeks to maintain claims that - (a) the decisions are amenable to review under the ADJR Act; (b) the decisions amount to unlawful discrimination under the Disability Discrimination Act; (c) the decisions contravene international treaties; (d) the decisions contravene the Charter of Human Rights and Responsibilities Act; (e) there is a s 109 inconsistency between the SCV Fees Regulations and Commonwealth laws, including the corresponding fees regulations of the Federal Court and the High Court; (f) the VSCA Registrar owed the applicant a common law duty of care, or alternatively a statutory duty of care in making the decisions; and (g) the decisions involved misleading or deceptive conduct in contravention of s 18 of the ACL, and unconscionable conduct in contravention of s 21(1) of the ACL. 23 For the avoidance of doubt, the above summary captures the main points, and I have not sought to identify every possible nuance of the applicant's claims in the lengthy revised document that she has proffered.

The applicant's grounds of review 24 The decision of the Registrar to reject the documents for filing is a decision of an administrative character that is amenable to review under the ADJR Act: Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [32]-[38] (Barker, Banks-Smith and Colvin JJ); Ferdinands v Registrar Burns [2024] FCAFC 105 (Ferdinands) at [25] (Cheeseman, Goodman and McEvoy JJ). In addition, a Registrar exercising power under r 2.26 is an officer of the Commonwealth for the purposes of the jurisdiction conferred by s 39B(1) of the Judiciary Act: see Ferdinands at [62]; Gale v Judicial Registrar Ditton [2024] FCA 730 at [1] (Bromwich J); AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004 at [21] (Needham J). Further, a decision of a Registrar to reject a document may be reviewable on the merits in an application made seeking to invoke the Court's powers under rr 1.37 and 3.04, but no application of that nature is made in this proceeding: see the cases cited at [33] below. 25 The applicant's proposed amended application in this proceeding of 2 September 2024 is 21 pages in length. In relation to the Registrar's decision not to accept the Rejected Documents, the applicant claims, amongst other things, that - (a) the named respondent, the Principal Registrar and Chief Executive Officer, is liable for the decision of the Registrar who did not accept the documents for filing; (b) the refusal to accept the documents for filing itself constitutes a violation of the Disability Discrimination Act, "and other Commonwealth legislation, including section 109 of the Constitution"; (c) the refusal was "a deliberate tactic to hinder the applicant's judicial review process, thus constituting an abuse of process"; (d) the refusal to accept the documents was made without substantive engagement with the applicant's legal arguments, thereby involving a denial of procedural fairness engaging the ground of review under s 5(1)(a) of the ADJR Act; (e) the rejection of the documents without affording the applicant an opportunity to rectify them, or to afford the applicant a hearing, violated the Federal Court of Australia Act, the Disability Discrimination Act, and international treaties, and raised issues under s 109 of the Constitution. 26 The applicant filed written submissions prior to the hearing in accordance with orders that I made. I have considered those written submissions. Some of the submissions address the applicant's claim that a Registrar had failed to make a decision. However, in relation to the challenge to the Registrar's decision not to accept the Rejected Documents for filing and her application to amend the application for judicial review - (a) the applicant ventilated again her claim of apprehended bias that was the subject of my decision at the case management hearing on 26 September 2024; (b) the applicant submitted that the claims against the respondent in this proceeding and the claims proposed against the State of Victoria are "inherently linked"; (c) the applicant advanced submissions in support of her interlocutory application to amend the originating process in this proceeding so as to challenge the Registrar's refusal to accept the documents for filing; (d) the applicant submitted that there had been a denial of procedural fairness involved in rejecting the documents for filing, and submitted that she had been denied the opportunity to correct or clarify deficiencies in the Rejected Documents; (e) the applicant submitted that the Rejected Documents were not prolix, and that the length of the documents was a product of the complexity of her claims; (f) the applicant maintained that the claims that she sought to make in this Court are tenable, referring again to various provisions of the Disability Discrimination Act, international treaties, the external affairs power in s 51(xxix) of the Constitution, and s 109 of the Constitution; (g) the applicant submitted that the Court should not stay the proceeding as an abuse of process, contending that her submissions, though complex, were not frivolous or vexatious, and served the purpose of addressing significant constitutional and legal questions. 27 The applicant also filed in this proceeding a notice of a constitutional matter under s 78B of the Judiciary Act claiming that her case involved "significant constitutional questions" that arise under various provisions of the Constitution, namely ss 51(xxix), 75(i), 75(v), and 109. The details set out in the notice indicate that the claimed questions were really directed to the alleged delay in considering whether to accept the documents for filing. That issue has now fallen away. There was no evidence that the s 78B notice had been served. 28 At the hearing on 9 October 2024, the applicant developed at length the matters put in her written submissions. In addition, the applicant made a generalised submission of apprehended bias on the ground of pre-judgment.

The claims of apprehended bias are rejected 29 I will address the applicant's claims of apprehended bias first. Insofar as the applicant submitted that a reasonable apprehension of bias arose as a result of the fact that my executive assistant facilitated a video link at the case management hearing on 26 September 2024, I dismissed that application, and published written reasons for doing so, to which I referred at [20] above. 30 To the extent that the applicant submitted that there was a reasonable apprehension of bias as a result of pre-judgment, I reject that claim. Modern courts usually prepare for hearings by reading materials in advance. They do not come to a case with a mind that has not given thought to the subject matter of the issues: see R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-4; Johnson v Johnson [2000] HCA 48; 201 CLR 488 at [13]. In the course of preparing for a hearing, a court may identify issues that should be drawn to the parties' attention ahead of the hearing for the purpose of affording procedural fairness and facilitating the smooth running of the hearing. Anything of this nature would not generally be viewed by the fair-minded lay observer as indicating that the judge might not bring a fair and impartial mind to the adjudication of the matter. No such apprehension could have arisen in this case as a result of informing the applicant that she should be prepared to address the question whether the proceeding should be permanently stayed on the ground that it was an abuse of process. The fair-minded lay observer would see that the question of abuse of process arose squarely on the material. The identification of that issue for the purpose of according procedural fairness and inviting argument did not have the capacity to lead the fair-minded lay observer to form the view that I might not decide the matter impartially according to its merits.

There was no error by the Registrar 31 As I have explained, the power of a Registrar under r 2.26 of the Federal Court Rules to refuse to accept a document for filing if satisfied that the document is an abuse of process, or frivolous or vexatious on the face of the document is an administrative, and not a judicial, power. 32 As the present proceeding is an application in the nature of judicial review, I am concerned with whether the Registrar made some error reviewable under the ADJR Act, or some jurisdictional error for the purposes of the Court's jurisdiction under s 39B(1) of the Judiciary Act. In that sense, I am not concerned with the merits of the Registrar's decision not to accept the Rejected Documents. However, questions of materiality and discretion arise. Under the ADJR Act, a remedy may be refused in the exercise of the Court's discretion if an error is not material. And materiality is usually an element in demonstrating jurisdictional error. In any event, all remedies that may be granted against officers of the Commonwealth pursuant to s 39B(1) of the Judiciary Act are discretionary. 33 As Colvin J observed in AMB19 v Minister for Home Affairs [2020] FCA 439 at [61], the registry of any court acts under the administrative direction of its judges. In this Court, that finds reflection in r 1.37, which provides that the Court may direct a Registrar to do, or not to do, an act or thing. It also finds reflection in r 3.04, under which a person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do. In Cristovao v Registrar Scott [2013] FCAFC 92, the Full Court (North, Siopis and McKerracher JJ) noted at [17] that r 3.04 was the most obvious avenue for review of a decision of a Registrar not to accept a document for filing, and at [38] described the process under r 3.04 as involving a full review. The power under r 3.04 was exercised by Stewart J in DOB18 v Ng [2019] FCA 1575 to direct a Registrar to accept a document for filing. The powers under rr 1.37 and 3.04 were exercised by Horan J in Sayed v Salvation Army Housing [2023] FCA 1298 to direct a Registrar to accept a document for filing on the ground that it was in the interests of the administration of justice to do so. Horan J found it unnecessary in that case to determine whether the Registrar's decision not to accept the documents involved any error: see at [53]. See also Re Pickering [2009] FCA 809 at [16] (Barker J) in relation to the corresponding provision of the former rules; MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197 at [8] (Logan J); and Somasundaram v Luxton [2020] FCA 1076 at [16] (Murphy J). 34 Returning to judicial review, in light of the control that judges may exercise over the filing of documents in the Court, I consider that it would be an unusual case where a discretionary remedy was given upon judicial review of a Registrar's decision not to accept documents for filing where the judge seized of the matter upon judicial review formed a firm view that the documents were on their face an abuse of process of the Court, or frivolous, or vexatious such that the Registrar was correct in not accepting them for filing. In many cases, judicial efficiency might result in a focus on the character of the documents themselves as a dispositive issue going to the grant of relief: see, in this respect, Nyoni v Murphy at [49].

There was no denial of procedural fairness 35 There is no substance to the applicant's claim that the Registrar was obliged to accord her procedural fairness in the nature of a hearing, or was obliged to give her an opportunity to explain or rectify the Rejected Documents. As Barker, Banks-Smith and Colvin JJ explained in Nyoni v Murphy at [38], the state of satisfaction that engages the power under r 2.26 is concerned with the form and content of the document. Rule 2.26 does not require the Registrar to receive submissions or hold a hearing, nor is any such requirement to be implied. That is because a Registrar may reach the requisite state of satisfaction having regard only to "the face of the document" (r 2.26(a)), or "by reference to any documents already filed or submitted for filing with the document" (r 2.26(b)): see Somasundaram at [41] (Murphy J). See also Re Young [2020] HCA 13; 376 ALR 567 at [12] (Gageler J).

There was otherwise no reviewable error 36 The purpose of r 2.26 is to empower a Registrar to protect court procedures from abuse by refusing to accept a document for filing which, on its face, would be an abuse of court process or frivolous or vexatious. As to what amounts to an abuse of process, the categories are not closed. In Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [69], Edelman J explained that there are at least three established categories of abuse of process: (i) the use of the court's processes for an illegitimate purpose; (ii) the use of the court's processes in a manner that is unjustifiably oppressive to one of the parties; and (iii) the use of the court's processes in a manner that impairs the integrity of the court. The three categories undoubtedly overlap, because each invites consideration of whether there is some real question in issue. Within the first category are processes involving a collateral attack on earlier decisions. Within the second category are processes that raise issues that are frivolous or vexatious, or which fail to disclose a cause of action. Issues that are frivolous or vexatious include those that are manifestly groundless or hopeless: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 (Barwick CJ). See also Ferdinands at [22] (Cheeseman, Goodman and McEvoy JJ). Within the second and third categories is process that is prolix such as to amount to oppression or which impairs the processes of the Court. And the power under r 2.26 must be interpreted and applied in the way that best promotes the overarching purpose referred to in s 37M of the Federal Court of Australia Act. 37 No reviewable error has been shown in relation to the Registrar's state of satisfaction that the Rejected Documents were an abuse of process, and in any event there is no basis on which I would grant relief. The documents that were lodged by the applicant are, on their face, unquestionably an abuse of process. It is sufficient to state the following by way of short reasons - (1) The applicant's claim that the decisions of the VSCA Registrar are reviewable under the ADJR Act is, on its face, manifestly hopeless. The decisions to which the ADJR Act applies are decisions under Commonwealth and Territory Acts, instruments made thereunder, and certain State Acts referred to in Schedule 3: see the definition of "enactment" in s 3(1) of the ADJR Act. The legislation constituting the Supreme Court of Victoria and governing its practice and procedure is not within the definition of "enactment" in the ADJR Act. (2) The applicant's claim that the SCV Fees Regulations are inconsistent with the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) and the High Court of Australia (Fees) Regulations 2022 (Cth) and therefore inoperative by operation of s 109 of the Constitution is, on its face, manifestly hopeless. Those regulations have nothing to say about fees in State courts. (3) The applicant's claim that the State of Victoria, Court Services Victoria and the Supreme Court of Victoria are officers of the Commonwealth is, on its face, manifestly hopeless. (4) The applicant's claim for direct relief in this Court based upon alleged contraventions of Part 2 of the Disability Discrimination Act is, on its face, manifestly hopeless: see s 125 of the Disability Discrimination Act. (5) The applicant's claims that the decisions of the VSCA Registrar are reviewable in this Court on the ground of claimed contraventions of international treaties is, on its face, manifestly hopeless: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [20] (Kiefel CJ, Keane, Gordon and Steward JJ). (6) The applicant's claim that it is relevant whether Court Services Victoria's failure to grant her a fee waiver "invokes the jurisdiction of the High Court under section 75(i)" in all matters arising under any treaty is, on its face, manifestly hopeless. (7) The applicant's claim that, in the circumstances, the VSCA Registrar owed her a common law or statutory duty of care in making the decisions is, on its face, manifestly hopeless. (8) The applicant's claim that the VSCA Registrar's conduct in not accepting her application for a fee waiver or her application for leave to appeal constituted conduct in trade or commerce for the purposes of s 18 or 21(1) of the ACL such as to entitle her to compensation is, on its face, manifestly hopeless. The VSCA Registrar's activities occurred in the administration of the Victorian Supreme Court, which is part of the judicial arm of government. The acceptance for filing of documents in court and the application of statutory rules relating to the payment of filing fees do not have any incidents of commercial activities, and do not involve any trading or commercial aspect. (9) In the above circumstances, to accept the applicant's documents for filing would be to permit an abuse of the Court's process. 38 In view of the above conclusions, it is not necessary to address the applicant's claim that the named respondent is "vicariously liable" for the Registrar's decision not to accept the Rejected Documents for filing. Had there been any merit in the applicant's claims, the naming of the correct respondent to this proceeding would not have been an impediment to obtaining relief, because any necessary procedural orders could have been made so as to ensure that the applicant obtained a remedy.

This proceeding is an abuse of process 39 For the foregoing reasons, I refuse the applicant's interlocutory application to amend the originating application for judicial review. The proposed amendments are futile, and themselves amount to an abuse of process by seeking to introduce manifestly hopeless claims for judicial review which are an extension of the manifestly hopeless claims that the applicant sought to advance in the Rejected Documents. As I have mentioned, the applicant submitted that the two proceedings were "inherently linked". 40 I am of the further view that this proceeding should be permanently stayed as an abuse of process. While this is an extreme measure, to be taken only in exceptional circumstances and in clear cases, the present case is such a case, which requires that the integrity of the Court's processes and its resources be protected: see, in relation to the protection of the Court's resources, Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100 at [6] (Lee, Feutrill and Jackman JJ). 41 It follows that s 78B of the Judiciary Act does not preclude the Court from hearing and determining the interlocutory application, or making orders in the proceeding. No matter arising under the Constitution or involving its interpretation really and substantially arises. That is because the proceeding as a whole is frivolous, vexatious, and an abuse of process, and so no claimed point has the character of a matter arising under the Constitution or involving its interpretation: see Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [13]-[14] (French J).

Conclusion 42 I will order that this proceeding be permanently stayed as an abuse of process. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Charter of Human Rights and Responsibilities Act 2006(Vic)

Supreme Court (General Civil Procedure) Rules 2015(Vic)r 28A.04(5)

Disabilities, the International Covenant on Civil and Political Rights, the Charter of Human Rights and Responsibilities Act 2006(Vic)

Competition and Consumer Act 2020(Cth)

Supreme Court of Victoria Act 1986(Vic)

ADJR Act, the Federal Court of Australia Act 1976(Cth)

(Cth), the Federal Court Rules 2011(Cth)

Judiciary Act 1903(Cth)s 39B, 78B

Federal Court Rules 2011(Cth)rr 1.37, 2.26, 3.04

Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 Re Pickering [2009] FCA 809 Re Young [2020] HCA 13; 376 ALR 567 Sayed v Salvation Army Housing [2023] FCA 1298 Somasundaram v Luxton [2020] FCA 1076 Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100

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