McDonald v Federal Court of Australia

The Federal Court Rules: The court, its registrars and the ADJR ACt 16 The Rules in their current form came into operation on 1 August 2011. Those relating to the filing of documents appear in Division 2.3. Rules 2.26 and 2.27 govern the circumstances in which documents may be, or must be, refused for filing. They are as follows: 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. 2.27 When documents will not be accepted in a Registry A document will not be accepted for filing if: (a) it is not substantially complete; or (b) it does not substantially comply with these Rules; or (c) it is not properly signed; or (d) a Registrar has refused to accept the document; or (e) the Court has given a direction that the document not be accepted; or (f) the Court has given a direction that the document not be accepted without the Court's leave, and leave has not been obtained. 17 Rule 2.27(e) provides, imperatively, that a document must not be accepted for filing if the Court has given such a direction. The power of the Court to direct the Registrar is provided for by r 1.37. 18 The threshold jurisdictional question in these proceedings is whether a direction given by the Court to a Registrar made pursuant to r 1.37 that a document not be accepted in a registry is a decision to which the ADJR Act applies. 19 The ADJR Act applies to "a decision of an administrative character made, proposed to be made, or required to be made … (a) under an enactment" (s 3 ADJR Act). It must be accepted that the Rules constitute an enactment - what may be doubted is whether a direction by the Court to a registrar "to do, or not do, an act or thing" (in the present instance, not to accept certain documents for filing) as provided for by r 1.37 properly can be characterised as a decision "of an administrative character". 20 I have not identified any decision of this Court that has turned on or given considered attention to this question since the Rules in their current form came into operation. 21 However at least four Full Courts and a number of first instance decisions have given some attention to the position as it applied under this Court's former, now repealed, rules. It is not an easy task to reconcile those decisions. I note the observations of the Full Court in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426 (Manolakis) at [18]: … 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. 22 The former rules are conveniently set out in the decision of the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 (Bizuneh) at [13] - [14]: [13] Rule 7A in its original form was inserted in the Rules on 1 February 1983. It then read: "Abuse of Process 7A. If a document in any proceeding, including any originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar shall seek the direction of a Judge who may direct him to issue it or to refuse to issue it without the leave of a Judge first had and obtained by the party seeking to issue it." [14] The rule was repealed and promulgated in its present form on 1 July 1985 and it reads as follows: "Abuse of process 7A. If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him - (a) to accept or issue it; or (b) to refuse to accept or issue it; or (c) to refuse to accept or issue it without the leave of a Judge first had and obtained. 23 Before addressing the authorities that have considered those rules I observe that under the former rules the ordinary procedure for reviewing a decision of a Registrar was that described by Finn J in Official Trustee in Bankruptcy v Nedlands Pty Ltd [2000] FCA 599; (2000) 99 FCR 554 at [12]: Section 35A(1) [of the Federal Court of Australia Act 1976] designates those "powers of the Court" that may be exercised by a registrar of the Court if a judge so directs. These include "a power of the Court prescribed by the Rules of Court": s 35A(1)(h). In the instant case the Registrar was purporting to exercise the power conferred by the then O 71, r 7 of the Rules. Section 35A makes express provision both for the independence of the Registrar when exercising delegated powers: s 35A(4); and for the review by the Court of an exercise of power by a Registrar: s 35A(5), (6). 24 However under the former rules, review of a Registrar's refusal to accept a document for filing was the subject of quite different rules and reasoning.

Challenges to decisions made pursuant to O 46 r 7A 25 In Legal Aid Commission (WA) v Edwards (No 2) (1982) 61 FLR 419 (Legal Aid) Toohey J held that a decision of a Registrar of the Family Court of Australia not to accept a document for filing was reviewable under the ADJR Act. His Honour expressly noted (at page 423) that the Registrar's decision had not been made at the direction of the Court. 26 In Letts v Commonwealth (1985) 8 FCR 585 (Letts) Toohey J held that review pursuant to the ADJR Act would not be available when the decision of a Registrar was made at the direction of a Judge. In that case the Registrar of the High Court of Australia had sought and obtained a direction from a Judge. His Honour distinguished his reasoning in Legal Aid. It was the decision of the Acting Chief Justice that had 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" (at page 587). For that reason review of the decision under the ADJR Act was not possible. 27 A like matter came before a Full Court in Gunter v Doogan [1999] FCA 1648 (Gunter). 28 Mr Gunter had made two attempts to file certain documents after Drummond J had directed the Registrar not to accept them. On the second occasion, the Registrar had written to Mr Gunter stating: I was directed not to accept them and the documents were returned to you with a copy of the judge's written reasons for the direction. 29 Mr Gunter instituted an appeal against that decision. Emmett J (Spender and Dowsett JJ concurring) held (at [12]): … 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), leave to appeal is required before any right of appeal arises. 30 Mr Gunter's failure to have sought leave was fatal. His appeal was dismissed. 31 Mr Gunter was not to be dissuaded. 32 In Gunter v Doogan [2003] FCA 667 Mr Gunter sought review under the ADJR Act of a decision of the Principal Registrar of the High Court of Australia to refuse him permission to file certain documents. Dowsett J held that although there was no order of the Court preventing the registrar accepting the document for filing, the Registrar's decision had been made on behalf of the Court. His Honour acknowledged that the registry was under the control of the Chief Executive and Principal Registrar of the Court, but reasoned (at [4]) that the "function of accepting or rejecting documents is so closely associated with the judicial function as to be part thereof." 33 However such reasoning was rejected in Bizuneh. A Registrar of this Court having sought and obtained the direction of a Judge had refused to accept certain documents for filing. In conformity with Gunter above, Mr Bizuneh applied for leave to appeal. The Full Court (Lee, Whitlam and Jacobson JJ) was entirely unpersuaded that Gunter and other earlier cases had established his entitlement to do so. Letts was not referred to. They stated at [11]: … there is no authority that establishes that a direction made by a Judge pursuant to O 46 r 7A is a judgment of the Court. However, in several earlier proceedings that assumption has been made. 34 Their Honours held that a "mere direction" given to a registrar by a Judge in aid of the administration of the Court was not a judicial act capable of giving rise to an appeal: [16] 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. [17] 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. [18] 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. [19] 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. 35 There was no reference in Bizuneh to the ADJR Act. 36 In Paramasivam v Randwick City Council [2005] FCA 369 (Paramasivam), the question of whether the reasoning in Bizuneh compelled the conclusion that ADJR Act proceedings were available in those circumstances, came before Sackville J. A Registrar had sought a direction from a Judge, who had directed that certain documents were not to be accepted for filing. The applicant had commenced ADJR Act proceedings seeking judicial review of that decision. The respondent Randwick City Council applied for summary judgment. Sackville J expressed "some doubt" (at [41]) regarding the reasoning of the Full Court in Bizuneh insofar as it had classified a direction of a Judge given to a registrar pursuant to O 46, r 7A as administrative in character. His Honour however concluded that on a summary dismissal application he should follow the reasoning of the Full Court in Bizuneh, even if the Full Court's observations on that issue could be regarded as obiter. His Honour accordingly dismissed a motion for summary judgment that had been filed by the Council. 37 In Bahonko v Sterjov [2007] FCA 1717 Lander J accepted that Bizuneh had settled that where a Registrar had been directed by a Judge under O 46, r 7A(2) not to accept a document for filing, the direction was not a judgment subject to appeal, but was not required to address the question raised in Paramasivam. 38 Whether relief under the ADJR Act might be pursued when a Judge had given a direction to a Registrar came again before a Full Court in Manolakis. A Registrar had refused, at the direction of a Judge, to allow Mr Manolakis to file a notice of appeal from a decision of the Federal Magistrates Court. An application to review the Registrar's decision had been dismissed by Mansfield J. 39 The Full Court (Gray, Branson and Besanko JJ) reasoned at [19]: Where a Registrar is directed by a Judge pursuant to O 46 r 7A(2) not to accept a 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 (Ch) … the Registrar is obliged to act in accordance with the direction of the Judge. 40 Their Honours held: [20] … having regard to the weight of the… 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. 41 Their Honours dismissed the application before them on other grounds, but observed: [22] … 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. 42 The question "best left for another day" in Manolakis remained unresolved after Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222 (Satchithanantham). A Registrar, without reference to a Judge, had refused to accept documents for filing. An application under the ADJR Act for review of that decision was then filed. White J was the Judge at first instance. His Honour concluded that such a decision was not reviewable pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) because there had been no direction from a Judge. However, applying Bizuneh his Honour had concluded that the Registrar's decision was reviewable under the ADJR Act as a decision of an administrative character. 43 The Full Court (Marshall, Cowdroy and Buchanan JJ) upheld White J's decision. However their Honours appeared to doubt the proposition that a decision of a Judge to issue a direction under O 46 r 7A would be administrative rather than judicial in character: [49] … we conclude that the decision of the Registrar, made under O 46 r 7A(1) in the absence of a judge's direction, is one which was administrative in nature and, for the reason referred to in the authorities discussed above, not of a judicial character. (my emphasis) 44 All of the above decisions relate to challenges to decisions under the former O 46, r 7A. I cannot improve on the observation in Manolakis that as the law stood prior to 1 August 2011 "some complexity attend[ed] the identification of the procedure, if any, by which a refusal to accept a document for filing in the Court may be challenged". 45 There is a further reason to regard the positon then prevailing as unsettled. Neither of the Full Courts in Manolakis or Satchithanantham appear to have had their attention drawn to a relevant decision of the High Court Re Luck [2003] HCA 70; (2003) 78 ALJR 177 (Re Luck). In my opinion it is very difficult, if not impossible to reconcile the conclusion in Bizuneh that a "mere direction" of a Judge is not an interlocutory order with the outcome in the High Court in Re Luck. 46 Their Honours referred to the fact that Callinan J had made the direction because the case was within O 58, r 4 of the High Court Rules 1952 (Cth), which applied at the time. The terms of O 58, r 4 permitted the Registrar, where he or she formed the view that certain documents on their face were an abuse of the process of the Court or a frivolous or vexatious proceeding, to seek the direction of a Judge who may direct the Registrar to issue the file or refuse to issue the file without first obtaining leave of a Judge. While not identical O 58, r 4 of the High Court Rules conferred an analogous discretion on the Registrar of that court to seek a direction of a Judge. 47 In Re Luck, Callinan J had given a direction to the Registrar not to issue a writ or a statement of claim without the leave of a Justice. Despite that direction, Ms Luck sought to issue a writ of summons. Gleeson CJ refused leave for the statement of claim to be issued, finding that it did not disclose a cause of action against any defendant. That decision was appealed. McHugh, Gummow and Heydon JJ held at [3] that it was unnecessary to address the merits of the claim in any detail because the decision Ms Luck sought to appeal was an interlocutory order. At [10] their Honours concluded: A Justice who makes an order made under O 58 r 4 does so because it appears that the process filed is frivolous, vexatious or an abuse of process. The order made by Callinan J was therefore an interlocutory order, as was the order of Gleeson CJ refusing leave to proceed. (my emphasis)

Federal Court Rules 2011 48 The Rules which came into operation on 1 August 2011 replaced in their entirety the Court's former rules. An Overview of the Federal Court Rules 2011 by Lander J published at the time of their introduction to explain their rationale remains available (Lander J, "Overview of the Federal Court Rules 2011" in Practice and Procedure High Court and Federal Court of Australia: Federal Court and Federal Circuit Court, (Lexis Nexis, subscription service) pp 43,005.1 - 43,005.31 (Service 218). In that note Lander J (as he then was) stated that the Rules had made important stylistic and substantive changes. In that regard at [37,758] he stated: Lastly, the administrative directions to the Registrars have been omitted and replaced by Notes that tell litigants what the Registrars and the Registry staff will do when a step is taken in the proceeding. It is not necessary to have administrative directions to the Registrars in the Rules. 49 The Rules thus no longer provide for a Registrar to seek a direction of a Judge. Rule 2.26 instead sets out the circumstances in which a Registrar may exercise the power to refuse to accept a document. Rule 2.27 provides for the circumstances where a document will not be accepted for filing. 50 Importantly, r 2.27(e) refers to a direction from the Court. That, in turn, is the language employed in r 1.37 whereby the Court "may direct a Registrar to do or not to do, an act or thing." 51 Several cases have considered decisions of Registrars to refuse to accept documents for filing under r 2.26 but none have addressed the status of a direction given by the Court to a Registrar. 52 In Druett v Segal [2011] FCA 1191 (Druett), Robertson J dealt with an application under s 35A(5) of the FCA Act. His Honour stated at [5]: I have reviewed de novo the Registrar's decision. 53 That approach must be explained by his Honour taking the view that the different language of the Rules now permitted that course. 54 In Rahman v Hedge [2012] FCA 68 (Rahman), Perram J referred to the Full Court decision in Satchithanantham stating at [5]: It is clear that the power under O 46 r 7A (and I interpolate also under r 2.26) is a power of an administrative nature … Consequently, it is necessary for Mr Rahman to bring himself within the requirements for judicial review under the Administrative Decisions (Judicial Review) Act. 55 In Reaper v Luxton [2015] FCA 430 Tracey J reached a similar conclusion to that of Perram J in Rahman. 56 Having regard to those cases I consider it to be settled authority that a decision of a Registrar exercising the power conferred on him or her pursuant to r 2.26 is an administrative act. An administrative decision of a Registrar is therefore amenable to review under the ADJR Act provided proper grounds are established. 57 Whether such a decision is also reviewable pursuant to s 35A of the FCA Act, as Robertson J accepted to be possible in Druett will become clear over time.

consideration 58 The extra-judicial observations of Lander J I have earlier referred to cannot be substituted for the text of the Rules. The text must prevail if there is any inconsistency. Nor does his Honour's Overview have the status of a judgment of the Court. However Lander J's considered statements were made on the Court's behalf to explain to the legal profession the changes being introduced by the new Rules. There is no reason not to have regard to them when they are entirely consistent with what appears to me to be the plain meaning of the Rules. A plain reading of the Rules confirms that they have entirely removed the possibility that a Judge can give "administrative directions" to a Registrar. 59 The power to direct a Registrar is, by r 1.37, now conferred on the Court. 60 Where a power is exercised by this Court the exercise of that power must be judicial in nature. That is a constitutional requirement of its conferral. 61 A single judge when exercising the authority of the Federal Court of Australia is not exercising an authority vested in him or her as an individual judge, but rather, to use the language of Drummond J in Bird as cited above at [9], the authority vested in all judges of the Court as a group. 62 The Rules having made substantive changes cannot be construed as if the former O 46, r 7A has continued in operation. It is plausible to infer that the rewriting of those Rules was intended to address an area of unsettled jurisprudence, but it is not necessary to make such a finding. Whatever the intent, that was the effect. 63 In my opinion the terms of the Rules are so clear as to admit of no ambiguity. 64 Because the terms of the Rules now make clear that any direction given to a registrar to not accept a document for filing must be a decision of the Court there is no arguable basis to contend that such a decision remains open to review pursuant to the ADJR Act on the premise that it is a decision of an administrative character. 65 Had that not been the case I would have concluded in any event that there is good reason to reject any interpretation that would permit a single judge of this Court in the exercise the Court's original jurisdiction to review a decision of another single judge of this Court. Such an outcome appears to me to be inconsistent both with judicial comity and the principles stated in Bird. However, I have not found it necessary to rely on such considerations. 66 In my view the power conferred under r 1.37 is judicial power. It is no less an exercise of judicial power if undertaken pursuant to r 1.40 on the Court's own initiative. A decision by the Court (albeit exercised by a single Judge) to direct a Registrar not to accept a document or documents is not a decision of an administrative character. It cannot be reviewed pursuant to the ADJR Act. 67 It is not necessary to identify a specific statutory source conferring on the Court the power to make such a direction. Section 5(2) of the FCA Act provides that this Court is a superior court of record. A superior court of record has an implied (or inherent) power to protect the integrity of its processes from abuse. 68 A decision of the Court to direct the Registrar not to accept a document for filing does not finally determine the rights of a party. It is properly to be characterised as interlocutory (Re Luck). Section 24(1A) of the FCA Act provides that an appeal shall not be brought against an interlocutory decision unless the Court or a judge gives leaves to appeal. None of the exceptions to that rule, provided for by s 24(1C) are relevant. 69 That course was not followed in these proceedings. 70 The Applicants submit that Charlesworth J did not give consideration to the nature of the documents that they sought to file. I have no basis to proceed on that assumption. Section 20A of the FCA Act provides that the Court may deal with matters without an oral hearing where they appear to be relevantly frivolous or vexatious and the law appears to be as Perram J stated in Rahman, that if those documents are considered by the Judge to require a particular outcome, there is no breach of natural justice in dealing with the matters on the face of the documents. In any event, those are submissions going to merits which, if they are to be pressed, can be pressed only after leave to appeal has been sought and obtained. 71 I am satisfied, to the degree necessary to give summary judgment, that the Applicants' Originating Application, premised on it raising issues capable of being determined pursuant to the ADJR Act, must be dismissed. 72 Mr McDonald asked that I should not prevent other proceedings of a like nature being filed with the Court. 73 Whatever other opportunities may available to the Applicants they cannot be pursued by way of an application for judicial review. Having regard to Mr McDonald's request and the underlying hypothesis that it might be open to him to file new materials and start all over again, I think it appropriate to order that any further originating application and statement of claim or any document that would seek to set aside the decision of Besanko J in McDonald not be filed without leave of a Judge of this Court. 74 That order preserves the Applicants' entitlement, as I understand it to be, to seek leave to appeal the decision of Charlesworth J, as communicated to them by the Registrar's letter of 26 July 2017. 75 I say nothing about the merits or prospects of any such application. I would, however, urge the Applicants, if they want to pursue that opportunity, to have proper regard to the form of the proceeding and the requirements that must be satisfied in order to obtain leave to appeal. 76 I dismiss the Applicants' originating application for judicial review pursuant to the ADJR Act as having no reasonable prospects of success. I make an order pursuant to s 31A(2) of the FCA Act and/or the inherent jurisdiction of the Court accordingly. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.