Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia

Present Application 7 In the circumstances it is perhaps surprising that Mr Manolakis's notice of appeal from the judgment of Mansfield J was accepted for filing. It repeats and expands upon the scandalous and vexatious material contained in the notice of appeal from the judgment of the Federal Magistrates Court that was not accepted for filing. It seems likely that acceptance of the document reflected a pragmatic judgment as to the most efficient way forward.

Order 46 rule 7A 8 Order 46 r 7A is in the following terms: 7A Refusal to accept document for filing (1) A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious. (2) A Registrar may seek the direction of a Judge who may direct the Registrar that a document (including any document which is, or if issued will become, an originating document): (a) is to be accepted or issued; or (b) is not to be accepted or issued; or (c) is not to be accepted or issued without the leave of a Judge.

Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 ("Legal Aid Commission v Edwards") 9 In this case Toohey J concluded that a decision of a Registrar of the Family Court of Australia not to accept for filing a notice disputing a bill of costs was a decision under the Family Law Act 1975 (Cth) of an administrative, rather than judicial, character and thus amendable to review by the Federal Court under the ADJR Act. 10 At 158-159 his Honour observed: … It is true that the Registrar's activities are carried out within the broad framework of the judicial function of government as opposed to its legislative or executive functions (see Glenister v Dillon [1976] VR 550; Glenister v Dillon (No 2) [1977] VR 151). But it does not follow that every decision made relating to proceedings before a court is a decision of a judicial character. … The decision made by the Deputy Registrar to reject the applicant's notice for filing was not one made under the direction of the court. It was a decision made by the Deputy Registrar on his own initiative, having the consequence that there would be no assessment and no material upon which the court might adjudicate. …It is apparent that had the first respondent accepted the applicant's notice disputing the account, a decision as to the reasonableness or otherwise of that account was in the end one for a judge of the Family Court. A Registrar's assessment is not conclusive; it provides material upon which a judge may act. In a sense the action of the Deputy Registrar, in declining to accept the applicant's notice, was intended to conclude the matter. …But the decision to reject the notice had none of the formal or procedural attributes associated with judicial decisions. There was no hearing, albeit reasons were offered for the decision. In making an assessment the Registrar may have to resolve disputed questions of law or fact though those are questions for the court if the assessment is objected to. But here is a situation one step removed in that the first respondent declined to accept for filing the applicant's notice. Thus the applicant was deprived of any opportunity to dispute the bill of costs and of course to appear before a judge of the Family Court to object to any assessment. Equally the decision removed from the Registrar any of the functions connected with the assessment of costs. In my view the decision of the first respondent lacked the attributes ordinarily associated with judicial decisions. It was a decision that related to proceedings before the court, but it was not truly ancillary to those proceedings. …

Letts v Commonwealth (1985) 8 FCR 585 ("Letts v Commonwealth") 11 Letts v Commonwealth is also a judgment of Toohey J. The case involved an application under the ADJR Act made by an unrepresented litigant. Mr Letts sought review of a decision of the Registrar of the High Court to seek a direction from a Justice of the High Court in accordance with O 58 r 4(3) of the then High Court Rules. The Registrar was authorised by the rule to seek such a direction where process presented to the Registrar for issue appeared to the Registrar to be "an abuse of the process of the Court or a frivolous or vexatious proceeding". 12 At 587 Toohey J said: The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was … part of the organization through which the powers and jurisdiction of the court were exercised …": see Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission (WA) v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court. Furthermore, Mr Letts was not truly a person aggrieved by the Registrar's decision. The Registrar's actions did not of themselves materially affect him; it was the decision of the Acting Chief Justice that precluded the Registrar from accepting Mr Letts' documents and that decision had built into it the machinery by which Mr Letts may seek leave to issue process.

Gunter v Doogan [1999] FCA 1648 13 This matter involved a purported appeal from a direction given by a Judge pursuant to O 46 r 7A of the Federal Court Rules. The Judge had directed the Registrar not to accept for filing an application which sought orders directed to the Registrar of the High Court designed to compel the Registrar of the High Court to accept for filing a process that a justice of the High Court had directed should not be so accepted. In an ex tempore judgment Emmett J, with whom Spender and Dowsett JJ agreed at [12] said: …Further, assuming that there is a right of appeal from a direction given under Order 46, rule 7A, such a direction is clearly an interlocutory judgment. Accordingly, under section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("Federal Court Act"), leave to appeal is required before any right of appeal arises. There may be a question as to whether a direction under Order 46, rule 7A, is a "judgment, decree, or order", within section 24(1) of the Federal Court Act. Without expressing any view, I will assume for the present purposes that it is a "judgment, decree or order" within the meaning of the definition of "judgment" in section 4. 14 At [14] Emmett J expressed the tentative view that it might well be that a decision of a Registrar under O 46 r 7A could be the subject of review by a single judge. The Full Court did not need to reach a concluded view on the above issue as their Honours concluded for other reasons that the application was incompetent or alternatively wholly lacking in merit.

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 353 ("Bizuneh") 15 In this case the applicant sought leave to appeal from a direction given by a Judge of the Court under O 46 r 7A. The Full Court at [15]-[20] stated: … The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious. No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a Judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power. Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A. A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the Judge being unable to form a view on the face of the document that the Registrar is entitled to reject it. Further, the Registrar may be directed by the Judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a Judge to lodge or file the document. An application to a Judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power. It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed. The application must be dismissed as incompetent. In dismissing an application for special leave to appeal to the High Court from the above judgment, the High Court observed that there was "no reason to doubt the correctness of the conclusion in the courts below".

Paramasivam v Randwick City Council [2005] FCA 369 16 In this case Sackville J at [40]-[41] said: It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts. Had the reasoning in Lettsbeen followed, it would seem that the Judge's direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a 'judgment' for the purposes of the Federal Court of Australia Act 1976(Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal. In my opinion, there is, with great respect, some doubt about the reasoning in Bizunehinsofar as it classifies a direction by a Judge pursuant to O 46 r 7A as "administrative in character". However, I am bound by the decision. Even if the Court's observations on this issue could be regarded as obiter, I would follow them on a summary dismissal application. It appears that Sackville J was not himself referred to the transcript of the special leave application in Bizuneh.

Later Cases 17 In Bahonko v Sterjov [2007] FCA 1556 at [16] Gordon J relied on Bizuneh to conclude that a direction under O 46 r 7A is not a judgment from which an appeal may be brought. Lander J took the same view when dismissing an application for leave to appeal from the judgment of Gordon J (Bahonko v Sterjov [2007] FCA 1717 at [58]). See also Bienstein v Family Court of Australia [2008] FCA 1138 per Gray J at [72]-[74].

Conclusions re review of decisions under o 46 r7a 18 As the above authorities reveal, some complexity attends the identification of the procedure, if any, by which a refusal to accept a document for filing in the Court may be challenged. 19 In our view, where a Registrar is directed by a Judge pursuant to O 46 r 7A(2) not to accept the document for filing, the conduct of the Registrar undertaken in compliance with the Judge's direction is not open to review under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court of Australia Act"). We take this view for two reasons. First, the Registrar is obliged to act in accordance with the direction of the Judge. For this reason the person seeking to file the document is aggrieved not by the conduct of the Registrar but rather by the direction given by the Judge (see Letts v Commonwealth at 587). Secondly, s 35A(2) authorises a party to a proceeding to apply to the Court for review of the exercise of a Registrar of any of the powers of the Court under s 35A(1). Where it is an originating process that is not accepted for filing the person concerned will not be a party to any proceeding at the relevant time. Even where this issue does not arise, the authority vested in a Registrar by O 46 r 7A to refuse to accept a document, whether pursuant to a direction of a Judge or of his or her own motion under O 46 r 7A(1), is not a power of the Court under s 35A(1). None of the powers identified in s 35A(1)(a)-(g) relates to the acceptance of documents for filing. Nor does any of the powers prescribed by O 46 r 7AA (see s 35A(1)(h)). 20 We turn then to the direction of the Judge pursuant to O 46 r 7A. In our view, having regard to the weight of the above authorities, it should now be accepted in this Court that a direction of a Judge under O 46 r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court of Australia Act. If a different view is to be taken, that view should be expressed by the High Court. In our view, the reasoning of Toohey J in Legal Aid Commission v Edwards and of the Full Court in Bizuneh concerning the necessary attributes of a judicial, as opposed to an administrative decision, even where the decision is taken within the framework of the judicial branch of government is persuasive. We respectfully consider that, to the extent that Toohey J took a different view in Letts v Commonwealth, this is explicable on the basis that that matter concerned a decision of the Registrar of the High Court whose conduct was appropriately controlled by the Justices of that court. 21 It may be, although it is not necessary here to decide, that a decision of a Registrar to seek a direction of a Judge under O 46 r 7A(2) is amenable to judicial review either under the ADJR Act, s 39B of the Judiciary Act 1903 (Cth) or pursuant to the implied power of the Court to control its own officers. However, it is not easy to imagine circumstances in which the interests of justice would suggest in favour of the grant of relief in respect of the decision. No delay ordinarily attends the issue of a direction under O 46 r 7A by a Judge and the direction itself would ordinarily determine the issue of whether or not the document should be accepted for filing. 22 We conclude that the better view is probably that the decision of a Judge to issue a direction under O 46 r 7A(2) is amenable to judicial review, including judicial review pursuant to the ADJR Act. However, the reaching of a concluded view on this question is best left for another day when the issue directly falls for consideration and, as may be hoped, the question is fully argued.

The Present Case 23 In the present case it is sufficient to record that Mr Manolakis remains adamant that he will not remove from his notice of appeal from the judgment of the Federal Magistrate the material that Mansfield J correctly characterised as scandalous and vexatious. It is not the case, as Mr Manolakis contended, that it is premature to characterise the material as scandalous and vexatious because he has not yet had the opportunity to call evidence in support of the truth of the material. Much of the material refers to persons who have no connection with Mr Manolakis's proceeding in the Federal Magistrates Court and evidence in purported proof of the truth of the material would be inadmissible as irrelevant to any issue to be determined in the proceeding (s 56(2) of the Evidence Act 1995 (Cth)). 24 It is for the above reason unnecessary to determine whether Mr Manolakis's present appeal is competent. No doubt attends correctness of the decision of Mansfield J that his notice of appeal should not have been accepted for filing.

Conclusion 25 The appeal will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, Branson and Besanko.

Associate: Dated: 11 September 2008 Counsel for the Appellant: The appellant appeared in person

Counsel for the Second and Third Appellants: The respondents appeared in person