Markwell v Registrar of the Federal Court of Australia

Federal Court of Australia|2022-08-17|Before: Cheeseman J

The amended originating application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 This is an application for judicial review of a Registrar's decision to refuse to accept for filing, on two occasions, documents intended to be originating documents. The basis of the refusal was that the documents did not disclose on their face that the Court had jurisdiction and that the proceedings, if commenced, were foredoomed to fail. Accordingly, the Registrar refused to accept the documents for filing because he was satisfied that the documents were an abuse of the process of the Court. In refusing to accept the documents for filing, the Registrar acted under r 2.26 of the Federal Court Rules 2011 (Cth) (Rules). 2 The applicant, Ms Donna Markwell, seeks an order "that lodgements No 1098468 and No 1098476 be sealed and issued to the Applicant". During the hearing of the application, Ms Markwell informed the Court that she no longer wished to press the review application in relation to lodgement No 1098476. I ordered that the originating application be amended accordingly and that the amended document stand as an Amended Originating Application on the Court file. 3 The respondents to the application are Mr Geoff Segal, Deputy District Registrar, Federal Court of Australia, and the Commonwealth of Australia. Registrar Segal filed submitting notices, save as to costs. The Commonwealth has not entered an appearance and does not appear to be a necessary party having regard to the relief available by way of judicial review. 4 Ms Markwell is a self-represented litigant. I am conscious of the difficulties she faces in not being familiar with the Court or its rules and procedures, and occasioned by her lack of legal training. I am also conscious that the initial incident that led to Ms Markwell's grievances have caused her distress. I have approached Ms Markwell's submissions with this in mind.

ATTEMPTS TO FILE THE DOCUMENTS 5 On 30 May 2022, Ms Markwell first submitted the following documents for lodgement to the NSW District Registry of the Court: (1) Lodgment 1098468: Form CPI4 - Indictment dated 30 May 2022 (refers to Ms Markwell's daughter) and Form CP15 - Indictment information notice dated 30 May 2022; and (2) Lodgment 1098476: Form CP14 - Indictment dated 30 May 2022 (refers to Peter Scott Haughton) and Form CP15 - Indictment information notice dated 30 May 2022; (together, the Documents). 6 Given that Ms Markwell abandoned her application in respect of Lodgement 1098476, it is necessary only to describe Lodgment 1098468. By that lodgment, Ms Markwell sought to commence proceedings against the State of South Australia by way of an "Indictment", accompanied by an "Indictment information notice", purportedly as a "prosecutor", "ex officio under S 13 Crimes Act 1914 (Cth) by Order of the Parliament of the Commonwealth a Commonwealth Public Official" to agitate grievances arising out of the following allegation, described as "offences" (as written): The State of South Australia by its servants and agents have caused [Ms Markwell's daughter] the Deprivation of Civil Liberty arbitrarily for a period of Thirty Six (36) days and that imprisonment is in breach of S 268:12 Criminal Code Act 1995 (CTH) and the prosecutor prays that the Federal Court of Australia will review her imprisonment under its Criminal Jurisdiction and impose upon that entity, namely the State of South Australia the prescribed penalty of $1,071,000 per day of her imprisonment upon that corporation, as prescribed in the S 4B Crimes Act 1914 (Cth) and S 4K Crimes Act 1914 (Cth) and allocate the entire pecuniary penalty to the prosecutor. and issue a Certificate under S 65 Judiciary Act 1903 in the form in the Schedule to the Judiciary Act 1903 to the prosecutor. 7 Division 268 of the Criminal Code Act 1995 (Cth) (Criminal Code) concerns genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court. Section 268.12 creates an offence of "crime against humanity-imprisonment or other severe deprivation of physical liberty" an element of which is that "the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population". 8 The event giving rise to Ms Markwell's desire to prosecute the State of South Australia appears to have occurred in October 2021, when Ms Markwell says that her daughter was removed from her custody by the Department of Child Protection, South Australia. 9 On 3 June 2022, the Registrar refused to accept the Documents for filing and caused an email to be sent by John, Registry service co-ordinator, to Ms Markwell on 3 June 2022, the substance of which is as follows: Message from the Registrar:- The documents are not accepted as they do not identify a Commonwealth Act or Regulation that confers jurisdiction on the Court in relation to these alleged matters. Please note no jurisdiction is conferred on the Court by any of the legislative provisions referred to in the documents you have lodged. (Original emphasis) 10 On 6 June 2022, Ms Markwell sent a letter to the Registry in which she referred to various legislative provisions. The letter opens as follows (as written): Registrar John of the Federal Court of Australia, New South Wales I never thought I would write a Dear John letter, however here goes. What sort of imbeciles do you think the collective Federal Court of Australia Judges are to make the Federal Court (Criminal Proceedings) Rules 2016 if they have no power to use them, simply because a criminal Registrar either bribed or is simply totally evil, is of the opinion that the Federal Court of Australia is NOT a Superior Court of Record but a private playground of the rich and famous. Your decision must attract a serious bribe or why would you do it? I am going to write to the Treasurer pointing out to him that you are robbing the treasury of untold wealth by your mistaken application of arbitrary power. If he does nothing about it his fate will be the same as the former Treasurer. The 38.5 million dollars accrued by the State of South Australia in pecuniary penalties by severely depriving my daughter of her physical liberty will have to have income tax deducted from it and the Commonwealth Crown by that mechanism will be better off by $18,000,000. 11 The letter is six pages long. It includes wide-ranging accusations against a variety of persons on a variety of topics including wrongful incarceration, theft "as a servant", criminal misconduct and civil conscription in the form of deadly "medical experimentation of a vaccine" by the States. The letter includes a range of threatened consequences if the documents are not accepted for filing, culminating in the following (as written): So John, either Seal these documents or get a Senior Judge to put his career on the line by approving your refusal to Seal and issue due process or please provide a full name, a proper name so that I can have a party if I need to take the matter further. 12 In her letter, Ms Markwell refers to the following legislative provisions: s 71A of the Judiciary Act 1903 (Cth) (Judiciary Act), s 13 of the Crimes Act 1914 (Cth), s 15C of the Acts Interpretation Act 1901 (Cth), s 79 of the Constitution, s 10(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the Federal Court (Criminal Proceedings) Rules 2016 (Cth) (Criminal Proceedings Rules), and incorporates extracts of what is described as the "Law", namely the New South Wales Constitution Act 1855 (UK), 18 & 19 Vict sess 3, c 54, the Fines and Forfeiture Act 1670 (UK), 22 & 23 Car 2, c 22, and Earl Jowitt, The Dictionary of English Law (Sweet & Maxwell, 1959). 13 The Registrar caused the Registry to respond to Ms Markwell by email on 8 June 2022, the substance of which is as follows: Message from the Registrar:- The additional legislative provisions do not identify a Commonwealth Act or Regulation that confers jurisdiction on the Court in relation to these alleged matters. In any proceeding in the Court to review the Registrar's decision, the Respondent can be named as the "Registrar of the Federal Court of Australia". (Original emphasis) 14 Shortly thereafter, on 14 June 2022, the applicant commenced the present proceedings. 15 After the commencement of the proceedings and on the same date as filing his submitting notice, the Registrar emailed Ms Markwell and attached a letter dated 18 July 2022. In his covering email the Registrar noted: I also attach a letter to you dated 18 July 2022. I have provided this letter to assist you to comply with your obligations under rule 31.03 of the Federal Court Rules 2011. I note that usually a copy of this letter is attached to an affidavit that you file supporting your application. 16 I interpolate to note that r 31.03 provides: (1) An applicant must, at the time of filing an originating application or as soon as practicable thereafter, file the following documents if they are in the applicant's possession: (a) a statement of the terms of the decision that is the subject of the application; or (b) a statement with respect to the decision: (i) given to the applicant under section 13 of the AD(JR) Act or section 28 of the AAT Act; or (ii) given by or on behalf of the person who made the decision, purporting to set out findings of facts, or a reference to the evidence or other material on which those findings were based or the reasons for making the decision. (2) A copy of each document must be served, within 5 days after filing, on each other party. 17 At the first case management hearing, on 27 July 2022, Ms Markwell read an affidavit of her own affirmed on 25 July 2022. Annexed to that affidavit is a copy of the letter from the Registrar dated 18 July 2022, which Ms Markwell confirmed she relied on for the purpose of r 31.03 of the Rules. 18 In the letter of 18 July 2022, the Registrar attached a copy of the Documents and the applicant's letter dated 6 June 2022, and set out the communications from the Registry that he had caused to be sent to Ms Markwell in relation to his decision to refuse to accept the Documents for filing. After setting out r 2.26 of the Rules, the Registrar confirmed that: [O]n 3 June 2022, I refused to accept the Documents for filing. Pursuant to rule 2.26 of the Rules, I am satisfied that the Documents are an abuse of the process of the Court. The Documents do not disclose on their face that the matters defined in them are within the jurisdiction of the Court. In the absence of jurisdiction to hear and determine the proposed proceeding, the proceeding would, if commenced, be foredoomed to fail. On that basis, the Documents are an abuse of the process of the Court.

RULE 2.26 19 Rule 2.26 provides: 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. 20 It is well-established that a decision by a registrar pursuant to r 2.26 is of an administrative character and is susceptible to judicial review: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222 at [49]; Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [32] and [41]. A registrar is not bound to give the lodging party the opportunity to make submissions before deciding to exercise the power conferred by r 2.26: Somasundaram v Luxton [2020] FCA 1076 at [41].

THE APPLICATION FOR REVIEW 21 The Amended Originating Application includes the following claims for relief (as written): Orders sought 1. An order under S 10 (3) Administrative Decisions ( JUDICIAL REVIEW) Act 1977 that the Registrar and Commonwealth pay the prescribed penalty to the Applicant as the aggrieved person, of $214,200 by the Registrar and $1,071,000 by the Commonwealth as a corporate offender for the breach of S 268:12 Criminal Code Act 1995 (CTH). . 2. A Declaration that the International Covenant on Civil and Political Rights enacted as Schedule 2 to the Australian Human Rights Commission Act 1986 and present as an element in the offence against S 268:12 Criminal Code Act 1995 (CTH), declared in the Dictionary of the Criminal Code Act 1995, and S 138 (3) (F) Evidence Act 1995 is a law that cannot be made nugatory by Rules of Court or any delegate or servant of the Federal Court of Australia or Commonwealth employee. 3. A declaration that when a person swears allegiance to Her Majesty Elizabeth the Second or the current Sovereign, that Allegiance is subject to a condition precedent that such person is also bound by the same Oath, namely the Statute 1 Will & Mary C 6 ( Coronation Oath ) (1688) that the Sovereign must take to hold that office. 4. An order that lodgements No 1098468 and No 1098476 be sealed and issued to the Applicant.

Claim for relief in prayers 1 to 3 of the Amended Originating Application 22 In the Amended Originating Application, Ms Markwell seeks relief under prayers one to three that trespasses beyond the scope of judicial review. Ms Markwell approached the application for judicial review on the basis that her application for substantive relief, which she had attempted to pursue in this Court by seeking to file the Documents, could be determined in the present application for judicial review. As I explained to Ms Markwell at the hearing of the application, her understanding in that regard was not correct. In order for Ms Markwell to pursue the broader claims for relief it is necessary for Ms Markwell to institute proceedings in this Court by filing an originating process that is accepted for filing in the Court. 23 This application is concerned solely with whether the Registrar's decision to refuse to accept the Documents for filing was attended by error that warrants this Court's intervention. Accordingly, the only relief to be determined on the review application is whether an order should be made in the nature of mandamus directing the Registrar to accept for filing the documents the subject of Lodgment No 1098468. If such an order is made, Ms Markwell will, by filing those documents, commence proceedings in this Court. If, however, such an order is not made, then the status quo will remain, and there will be no proceedings in this Court in which the relief claimed by Ms Markwell arises for determination.

Claim for relief in prayer 4 of the Amended Originating Application 24 In her Amended Originating Application, Ms Markwell does not identify the basis on which the application is brought. The Amended Originating Application is described on its face as an 'Originating Application for Judicial Review - Form 66 - Rule 31.01(1)'. Rule 31.01(1) is the rule relating to applications for orders under s 11(1) of the ADJR Act. Section 11(1) of the ADJR Act relevantly provides: 11 Manner of making applications (1) An application to the Federal Court … for an order of review: (a) shall be made in such manner as is prescribed by: (i) in the case of an application to the Federal Court - Federal Court Rules; or (ii) …; and (b) shall set out the grounds of the application; and (c) shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows. 25 In order for a person to have standing to seek a review of a decision pursuant to s 11(1) of the ADJR Act, that person must be aggrieved by a decision to which the ADJR Act applied: s 5(1) ADJR Act. The Amended Originating Application identifies that Ms Markwell is aggrieved by the decision of the Registrar to "deny access to the Federal Court of Australia on the grounds set out in emails dated 3rd to 8th June 2022". Ms Markwell has standing to bring the application under s 11(1) of the ADJR Act. 26 The Registrar's reasons for refusing to accept the documents for filing are extracted at [9], [13] and [18] above. In short, the Registrar considered that the Documents did not disclose on their face that the matters defined in them are within the jurisdiction of the Court and on that basis were foredoomed to fail and thus an abuse of the process of the Court. 27 The grounds on which Ms Markwell relies are as follows (as written): 1. As a Court of Law and equity under S 5 Federal Court of Australia Act 1976 the Court has a duty under S 15A Acts Interpretation Act 1901 (Cth) to add ""and Justices" after the words, "Chief Justicë" and remove the capital letter from the word Judges in the rest of S 5 Paragraph (3) Federal Court of Australia Act 1976 to comply with S 79 Constitution. Power is granted to the Federal Court of Australia by S 10 (3) Administrative Decisions ( JUDICIAL REVIEW) Act 1977 to do so. 2. A person, described as any person in S 13 Crimes Act 1914 (Cth) is entitled to exercise his or her physical liberty to lodge and have dealt with by the Federal Court of Australia a claim under the Federal Court (Criminal Proceedings) Rules 2016 and if the matter is contested have such claim treated as an indictment under S 80 Constitution and have a pecuniary penalty imposed in the event that the accused is found guilty and if the alleged offender pleads guilty have a pecuniary penalty imposed upon the alleged offender 3. It is a severe deprivation of physical liberty to deny access to the Federal Court of Australia a court established under the Australian Courts Act 1828 by an Act of the Parliament of the Commonwealth, namely the Federal Court of Australia Act 1976 and when a person avails himself of the authority granted by the Parliament of the Commonwealth in S 13 Crimes Act 1914 (Cth), it carries with it all the privileges and rights and powers of a Commonwealth Public Official acting as agent for the Crown equal to that exercised by the Attorney General. . 4. It is bad faith for any one of the "courts judges and people" of the Commonwealth to fail to obey a clear Statutory Command from the Parliament of the Commonwealth, and substitute an arbitrary personal opinion on whether the court should adjudicate upon that question for a verdict either way of such court. 28 The grounds are difficult to follow. Ms Markwell's oral submissions did not elucidate the grounds. Doing my best, I understood there to be essentially two grounds of review. Ms Markwell's first contention is that the Registrar erred in law in his conclusion as to jurisdiction, and therefore in his conclusion that the Documents were an abuse of process triggering the power in r 2.26 of the Rules. Ms Markwell's second contention is that the Registrar's exercise of power was in bad faith. Section 5 of the ADJR Act, which lists the applicable review grounds, relevantly includes that the decision involved an error of law (s 5(1)(f)) and that the making of the decision was an improper exercise of the relevant power, including an exercise of a discretionary power in bad faith (ss 5(1)(e) and 5(2)(d)).

Error of law 29 In her affidavit, Ms Markwell included the following which I have treated as a submission (as written): 7. Rebuttal for using the Rule 2.26 Federal Court Rules i. the Federal Court's jurisdiction being broad, covering all civil and criminal matters arising under Australian federal law and the laws of the Commonwealth including all summary and indictable criminal matters, central to the Court's jurisdiction is 71 A of the Judiciary Act 1930 states ii. the Attorney General can lodge an ex-officio indictment without prior committal iii. therefore any other person must be able to as well, because All Are Equal Before the Law iv. therefore John acting for the Registrar and the Registrar, Geoff Segal, are prohibited from using Rule 2.26 Federal Court Rules 2011, when v. the Federal Court ( Criminal Practice ) Rules 2016, states that in Rule 1.10 vi. that it prohibits absolutely any Registrar using any other Rules in a Criminal Matter, by S 10 (3) of the Administrative Decisions ( JUDICIAL REVIEW) Act 1977 states that the Federal Court of Australia has absolute power to make any order the law requires, vii. and for the record my submission CP14-1098468 and CP14 1098476 and related CP15 are not an abuse of the process of the court or frivolous or vexatious as claimed by Geoff Segal and in-fact it is the Registrar who is acting out of line with the Law; … (Original emphasis) 30 Contrary to Ms Markwell's submission, the jurisdiction of this Court does not extend to all "criminal matters arising under Australian federal law and the laws of the Commonwealth including all summary and indictable criminal matters". The jurisdiction of the Court is statutory pursuant to s 39B of the Judiciary Act which relevantly provides: Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. ... 31 In relation to indictable offences, the Court's jurisdiction is limited to offences for serious cartel conduct: Competition and Consumer Act 2010 (Cth) s 163(2). 32 As noted at [6], in her document styled as an "ex officio indictment", Ms Markwell seeks to prosecute allegations that she contends give rise to offences that under s 268:12 of the Criminal Code. The Court does not have jurisdiction in respect of such offences. 33 It is not necessary to consider all of the unusual features of the Documents that Ms Markwell attempted to file. It is sufficient to dispose of the first ground of review on the basis that I am satisfied that the Registrar's exercise of power under r 2.26 was not affected by error of law - the Registrar was correct to conclude that the Documents did not disclose on their face that the matters defined in them were within the jurisdiction of the Court. It necessarily follows that the proceedings, if commenced, were foredoomed to fail. In the circumstances, the Registrar was empowered to make the administrative decision to reject the filing of the Documents on the basis that the Documents were an abuse of the process of the Court. In so far as Ms Markwell contends that the Registrar's decision was affected by an error of law, the ground of review must fail.

Improper purpose 34 As I understood her, Ms Markwell advanced two arguments on the ground of review directed to improper purpose or bad faith. The first, in so far as I understood it, was to the effect that the Registrar was precluded from relying on r 2.26 of the Rules because of r 1.10 of the Criminal Proceedings Rules and that in acting under r 2.26 of the Rules, the Registrar was "acting out of line with the Law". 35 I reject Ms Markwell's submission. Rule 1.10 of the Criminal Proceedings Rules concerns the exercise by a registrar of certain powers of the Court under the provisions of the Criminal Proceedings Rules. That rule does not impact or limit the exercise by a registrar of the power under r 2.26 of the Rules. 36 Ms Markwell's second contention focussed on a challenge to the Registrar's decision and to the validity of r 2.26 of the Rules. Ms Markwell contended that the Registrar had acted in bad faith by substituting an "arbitrary personal opinion on whether the court should adjudicate" for the verdict of the court. Ms Markwell contended that r 2.26 of the Rules "causes the Registrar to breach [the] boundaries between administrative and judicial functions, and infringes on the separation of powers Doctrine" (emphasis omitted). 37 I do not accept Ms Markwell's submissions. It is well-established that a decision by a registrar pursuant to r 2.26 is of an administrative character. 38 Recently, the Full Court made the following observations in respect of r 2.26 (in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [6]-[7]) (Ferdinands Appeal): 6 Rule 2.26 has its predecessor in O 46 r 7A of the rules as previously in force. In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 the Full Court said, of the former rule (at [15]): The rule in its current form removed a clog on the Registrar's discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain the 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. 7 Rule 2.26 does not confer judicial power. As the Full Court said in Nyoni v Murphy (2018) 261 FCR 164 (at [38]): … r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious. … 39 In Ferdinands v Registrar Cridland [2021] FCA 592, White J observed that (at [12], approved by the Full Court, Ferdinands Appeal at [8]): [A] Registrar does not, when refusing to accept an originating document for filing under r 2.26, make any substantive judgment about the underlying merit of the claims in the proposed proceedings. The Registrar is instead ensuring compliance with procedural requirements, by refusing to accept for filing documents which on their face are frivolous or vexatious or would be an abuse of the Court's process. (Original emphasis) 40 In Nyoni at [33] the Full Court said: The purpose of a rule such as 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. 41 Once the Registrar concluded that the Documents on their face did not engage the jurisdiction of the Court, the power in r 2.26 was enlivened and the exercise of that power to protect court procedures from abuse by refusing to accept the Documents for filing was consistent with the purpose to which the power is directed. 42 Finally, and for completeness, I note that in her correspondence, Ms Markwell made bare allegations of corruption and bribery that were without foundation. Such allegations are serious. They should not be made without proper foundation.

CONCLUSION 43 For these reasons, the application for review will be dismissed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

(ADJR Act), the Federal Court (Criminal Proceedings) Rules 2016(Cth)

Federal Court Rules 2011(Cth)rr 2.26, 31.03

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