Martin v Registrar Cridland

1. The decision of the respondent, refusing to accept for filing the documents lodged by the applicant on 4 October 2024, be set aside.
2. The Further Amended Interlocutory application lodged by the applicant on 4 October 2024 be accepted for filing and the documents entitled "Amended Application for leave to appeal" and "Further Amended DRAFT Notice of appeal" be accepted for filing as annexures to the Further Amended Interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCDONALD J: 1 The applicant, Victoria Martin, has sought judicial review of a decision of a registrar of the Court. The registrar has filed a submitting appearance. 2 On 4 February 2025, I made orders setting aside the decision of the registrar and directing that the application lodged by Ms Martin be accepted for filing. I indicated that I would provide written reasons for making those orders. These are my reasons. 3 The background to Ms Martin's application for judicial review is as follows. On 8 March 2024, O'Sullivan J delivered an interlocutory judgment in an action in this Court to which Ms Martin is a party, proceeding no SAD 113 of 2020: Hillier v Martin (No 19) [2024] FCA 210. Ms Martin applied for leave to appeal against that interlocutory judgment. The application for leave to appeal was heard by Markovic J on 11 July 2024 and judgment was reserved (proceeding no SAD 40 of 2024). 4 On 4 October 2024, Ms Martin lodged for filing in the South Australia Registry of the Court a document entitled "Further Amended Interlocutory application". Annexed to that document were two further documents, entitled "Amended Application for leave to appeal" and "Further Amended DRAFT Notice of appeal". Those two documents identify four additional grounds of appeal on which Ms Martin seeks to rely. The Further Amended Interlocutory application makes clear that Ms Martin is seeking leave to further amend her amended application for leave to appeal dated 25 March 2024 "in accordance with the documents annexed to this application", being the "Amended Application for leave to appeal" and the "Further Amended DRAFT Notice of appeal". 5 On 23 October 2024, the registrar refused to accept the three documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) on the basis that they constituted an abuse of process and were frivolous or vexatious. The registrar gave reasons for that decision, as follows: The Documents seek to amend an Interlocutory Application, to include a request for leave to amend an Application for Leave to Appeal the decision of Justice O'Sullivan dated 8 March 2024. The Application for Leave to Appeal was heard by Justice Markovic on 11 July 2024, and her decision has been reserved since that time. Allowing any amendments to the Application for Leave to Appeal at this time would effectively re-open litigation three months after the hearing has concluded. The amendments sought in the Documents are therefore an abuse of process and frivolous or vexatious. 6 The fourth ground of judicial review relied identified by Ms Martin in her application contends that (among other things) the registrar's decision was contrary to law, on the basis that the respondent purported to arrive at the requisite satisfaction solely on the basis that a period of three months had elapsed since the hearing on 11 July 2024, and that that fact could not of itself be sufficient at law to warrant a finding that the application was an abuse of process. I accept that this ground is established and that the registrar's decision should be quashed. 7 The only reasons given by the registrar for refusing to accept the documents for filing were that Markovic J's decision on the application for leave to appeal had been reserved since 11 July 2024; that, if any amendments to the application for leave to appeal were allowed, the effect would be to re-open litigation three months after the hearing; and that the amendments sought are therefore an abuse of process and frivolous or vexatious. However, the fact that judgment had been reserved for three months was not itself capable of demonstrating that the application filed by Ms Martin constituted an abuse of process, or that it was frivolous or vexatious. I note that a registrar may only refuse to accept a document under r 2.26 on the basis of what is apparent on the face of the document or by reference to documents already filed or submitted for filing with the document. 8 It is not necessary to consider the other grounds relied upon by Ms Martin in her originating application for judicial review. 9 Ms Martin's application sought an order that the documents be accepted for filing. Usually the Court on an application for judicial review would merely decide whether the decision under review is affected by relevant error, and would not itself exercise the power entrusted to the original decision-maker. However, a judge of the Court does have the power to order or direct that a document be accepted for filing in a proceeding in which the Court has jurisdiction: Federal Court of Australia Act 1976 (Cth), s 23. In the circumstances of this case, I considered it appropriate to make an order to that effect. That will better conduce to the efficient conduct of the leave proceedings than an order requiring a registrar to consider afresh whether to accept the documents for filing. Remittal to a registrar could result in a further refusal to accept the documents for filing, giving rise to the potential for further judicial review applications (and, potentially, appeals), and consequently further delay. 10 In directing that the documents be accepted for filing, it should be understood that I am not making a positive ruling that the applications which Ms Martin seeks to file do not constitute an abuse of process (nor, of course, am I ruling that they do), merely that they should be accepted for filing. It is preferable that the application be accepted for filing and considered by the judge who is to determine the application for leave to appeal. In that respect, I note that judgment on the application for leave to appeal is currently reserved before Markovic J, but that Ms Martin has made an application that Markovic J recuse herself, which is yet to be determined. 11 The acceptance of the documents for filing does not necessarily entail that Ms Martin will be permitted to rely upon the additional proposed grounds of appeal on her application for leave to appeal against O'Sullivan J's orders. Whether she should be permitted to do so is a matter that is most appropriately and conveniently decided by the judge who is to determine the application for leave to appeal, having regard to what is known to that judge (including the timing and circumstances of the making of the application). 12 I am conscious that the respondent to the application for leave to appeal before Markovic J, James Hillier, has not been served with the present application for judicial review of the registrar's decision. Before making determining Ms Martin's application for judicial review, I considered whether or not Mr Hillier should be given the opportunity to be heard in relation to the validity of the registrar's decision. The application for judicial review relates only to the administrative decision as to whether or not the documents which Ms Martin has attempted to file should be accepted for filing. That decision is not capable of adversely affecting Mr Hillier's legal rights or interests. It is not itself a decision of a kind in respect of which the opposing party is ordinarily heard. The acceptance of the documents for filing will not prejudice Mr Hillier's capacity to argue, in the proceedings before Markovic J, that Ms Martin's attempt to reopen, or raise new issues on, the application for leave to appeal is an abuse of process or that it should not be entertained for any other reason. In these circumstances, I formed the view that Mr Hillier was not a legally necessary party to the present proceedings, and that it would not be an efficient use of the Court's resources overall to require that he be served. I note that this course appears to be consistent with the general approach taken by several other judges of this Court in other proceedings that have involved applications for judicial review of registrars' decisions to refuse to accept documents for filing, in which the only respondent has typically been the registrar concerned: see, eg, Collier v Tesoriero [2017] FCA 1497 at [1]; Shaw v Buljan [2016] FCA 829 at [97]; Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 at [7]; Mbuzi v Baldwin [2016] FCA 1314 at [34]; Thompson v Hird [2023] FCA 1530 at [9]; Storry v Parkyn [2023] FCA 1141 at [4]; MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197. 13 For the reasons given above, I made orders setting aside the registrar's decision and directing that the documents lodged by Ms Martin on 4 October 2024 be accepted for filing. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McDonald.