Mbuzi v Baldwin

consideration 28 The Registrar's decision was made pursuant to r 2.26 of the Federal Court Rules. That rule provides: 2.26 Refusal to accept document for filing - abuse of process or frivolous or vexatious documents 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. 29 The Registrar concluded that the application for leave to appeal was an abuse of the Court's process because the application was foredoomed to fail. The Registrar reached that conclusion by relying on a passage apparently taken from the judgment of the Full Court in Spirits International B.V. v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69 ("Spirits International") at [35]. The Registrar attributed to the Full Court the words, "A procedural direction is not a judgment for the purpose s 24A (sic) of the FCA Act". However, those words do not appear in the Full Court's judgment. The Registrar erroneously transposed those words into the passage she quoted. 30 The Registrar's error was a substantial one. It appears to have led the Registrar to think that the Court has no jurisdiction to entertain an application for leave to appeal where orders are procedural in nature and do not conclude any "fundamental issues" between the parties. In fact, the passage at [35] of Spirits International indicates that while particular caution is exercised by appellate courts in reviewing judgments of primary judges relating to matters of practice and procedure, there are no rigid or exhaustive criteria. 31 The view taken by the Registrar that a procedural order cannot be a judgment for the purpose of ss 24(1)(a) and 24(1A) of the FCA Act is wrong. Section 24(1)(a) of the FCA Act confers jurisdiction on the Court to hear and determine appeals from judgments of the Court constituted by a single judge. The word "judgment" is defined in s 4 of the FCA Act to mean, relevantly, "a judgment, decree or order, whether final or interlocutory". A "judgment" in this context is the formal order made by the Court which disposes of, or deals with, the issue for determination: Letton v Templeton at [17], Maughan Thiem Auto Sales Pty Ltd v Cooper (2013) 216 FCR 197 at [46]. 32 In the present case, the issues before Edelman J were whether directions could be made concerning an interlocutory application for vexatious proceedings orders and other orders brought by an entity that was no longer a party to the principal proceeding, and what directions ought be made. His Honour apparently resolved the issues, making orders for the filing of material and setting down both the application for vexatious proceedings orders and the application for summary dismissal of that application for hearing. The orders disposed of the issues for determination in the directions hearing. There was an interlocutory judgment capable of being the subject of an application for leave to appeal pursuant to s 24(1A) and an appeal under s 24(1)(a) of the FCA Act. By deciding to the contrary, the Registrar was in error. 33 A decision made by a Registrar under r 2.26 of the Federal Court Rules is an administrative decision which is amenable to review under the ADJR Act: see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15]-[16], Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 at [49], Rahman v Hedge [2012] FCA 68 at [5]. In my opinion, the decision involved an error of law within s 5(1)(f) of the ADJR Act. 34 Mr Mbuzi's second submission is that the Registrar exceeded her administrative function and trespassed into a judicial one. In light of my conclusion as to Mr Mbuzi's first submission, it is unnecessary for me to decide that issue, and I prefer not to decide it as Mr Mbuzi did not develop his argument and I have not had the benefit of submissions from a contradictor. However, I note that there is authority to the effect that a Registrar's decision under the predecessor of r 2.26 of the Federal Court Rules is not judicial: Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154 at 158-159.

Discretion 35 Although I have found that there was an error of law on the part of the Registrar, the Court has a discretion under s 16(1) of the ADJR Act as to whether to grant relief. 36 A basis for the discretionary refusal of relief is futility. If Mr Mbuzi's proposal application for leave to appeal is bound to fail on its merits, it would be futile to set aside the decision and order the Registrar to accept the application for filing. Accordingly, it is necessary to consider whether the proposed application for leave to appeal would have any prospects of success. 37 In an application for leave to appeal, the two principal factors to consider are whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. 38 Mr Mbuzi proposes to seek leave to appeal against the orders made by Edelman J on 19 August 2016. Those orders provide for the application for vexatious proceedings orders made by AGL Retail Energy Limited to be dealt with at the same time as Mr Mbuzi's application for summary dismissal of that application on 3 February 2017. The orders also provide for the parties to file and serve affidavits and submissions. 39 Mr Mbuzi has not provided a transcript of the directions hearing that led to the making of those orders. Neither has he purported to set out a full account of what was said at the directions hearing. It seems likely that there was argument or discussion about whether the solicitors for AGL Sales Pty Limited had made an error by naming AGL Retail Energy Limited as the applicant in the body of the application for vexatious proceedings orders, and whether it proposed to seek leave to amend the application. The material does not adequately demonstrate what his Honour's reasons were for the orders that were made. 40 There is no indication in the material that Edelman J made any substantive determination as to whether the application for vexatious proceedings orders and other orders could be brought by AGL Retail Energy Limited or whether orders could be made in favour of that entity. To the contrary, the fact that Mr Mbuzi's application for summary dismissal is to be heard on 3 February 2017 indicates that his Honour will hear argument on those issues at that time. 41 Even assuming that AGL Retail Energy Limited has deliberately brought the interlocutory application in its own name and, in fact, wishes to seek orders restraining Mr Mbuzi from bringing proceedings against it, it is far from apparent that his Honour made any error by setting down the application for hearing and giving directions to facilitate the hearing. For his Honour to have refused to make directions would have involved the determination of Mr Mbuzi's application in his favour without AGL Retail Energy Limited having an adequate opportunity to resist Mr Mbuzi's application: cf Perovich v Whitton [2016] FCAFC 126 at [4]. 42 In any event, Mr Mbuzi has lost nothing as a result of the orders made by his Honour. Mr Mbuzi will have an opportunity to argue his application for summary dismissal and to resist the application brought by AGL Retail Energy Limited at the hearing on 3 February 2017. Although it appears on the face of the material that the application ought to have been brought by AGL Sales Pty Limited rather than AGL Retail Energy Limited, that is an issue which will be determined by his Honour after considering the evidence and hearing argument. If his Honour rules against Mr Mbuzi, he will have the opportunity to file an application for leave to appeal. 43 Mr Mbuzi also alleges apprehended bias on the part of Edelman J. Although Mr Mbuzi did not develop any submissions on this issue, I infer that the ground is based on the same allegations I have discussed in my reasons for judgment in Mbuzi v AGL Sales Pty Limited [2016] FCA 1313 at [53]-[59]. For the same reasons, Mr Mbuzi's ground of apprehended bias cannot succeed. 44 Mr Mbuzi's proposed application for leave to appeal against the orders made on 19 August 2016 would have no prospect of success because he cannot demonstrate error in the interlocutory judgment he seeks to appeal and because he would suffer no substantial injustice, supposing the judgment to be wrong. It would be futile to set aside the decision made by the Registrar to refuse to accept Mr Mbuzi's application for leave to appeal for filing. 45 For these reasons, Mr Mbuzi's application for judicial review will be dismissed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (12)

Cited By (6)