MS PD v Registrar of the Federal Court of Australia

1. The name, as opposed to the assigned pseudonym, of the applicant not be published, save with the leave of the Court or a judge first had and obtained.
2. Any copy of the transcript of the proceeding not be published in a way that records the name, as opposed to the assigned pseudonym, of the applicant without the leave of the Court or a judge first had and obtained.
3. The name of the respondent be amended to Registrar, Federal Court of Australia.
4. The Registrar's decision as made or confirmed on 9 August 2021 not to accept for filing an application for leave to appeal against the Court's order of 22 July 2021 in proceeding VID792/2020 lodged on 4 August 2021 and accompanying documents, be set aside.
5. In lieu thereof, the Registrar is directed to accept forthwith for filing, the application for leave to appeal together with accompanying documents as lodged.
6. The time within which to apply for leave to appeal against the order of 22 July 2021 be extended to the date upon which the application for leave to appeal is accepted for filing pursuant to this order. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 On 22 July 2021, in response to an application by the applicant that his Honour disqualify himself from hearing and determining substantively an application filed in the Court, to which the President of the Australian Human Rights Commission and the Commonwealth of Australia are respondents, namely proceeding VID 792/2020, Rangiah J declined to disqualify himself and dismissed with costs the interlocutory application. The order concerned was entered on 28 July 2021. 2 On 4 August 2021, the applicant sought to file in the Court's registry an application for leave to appeal against that interlocutory order. That application for leave to appeal was in Form 117. It was accompanied by a copy of the order made on 22 July 2021 together with the reasons for judgment in respect of that order and a draft notice of appeal. The draft notice of appeal was in Form 122 and contained within it grounds of appeal as proposed together with proposed orders. 3 On 10 August 2021, a registrar advised the applicant by letter dated 9 August 2021 that the leave to appeal application could not be accepted for filing for reasons which included: • You have not identified the Act and the provision under which you seek to bring your claim, and which gives jurisdiction to the Federal Court of Australia; and • your draft Notice of Appeal does not complied [sic] with the requirements pursuant to rule 36.01(1) and (2) of the Federal Court Rules 2011. 4 The evidence relied upon by the applicant discloses that she did make subsequent attempts, as she saw it, to achieve compliance, but that the application remains in the registry as pending for filing rather than accepted for filing. 5 The applicant has sought by an application filed on 13 August 2021 to challenge the registrar's decision pursuant to the Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act). It was convenient and certainly in the interests of justice today to deal substantively with the applicant's application on its merits. 6 The applicant has chosen to nominate as respondent a particular officer of the registry, who is not a registrar, with whom she has been dealing in relation to the question of whether a leave to appeal application should be accepted for filing. I can understand how that particular registry officer might become a focus of attention, but truly the substantive decision made to refuse to accept for filing the application for leave to appeal was that made by a registrar. The correct respondent, therefore, should be a registrar of the Federal Court of Australia. 7 That error in no way diminishes the force of the submissions made on behalf of the applicant that her leave to appeal application ought always to have been accepted for filing. The means by which the applicant has sought to challenge the registrar's decision, namely an application under the ADJR Act, is, in my view, one way in which such a challenge might be made. The registrar's decision was a decision of an administrative character made under an enactment. 8 That said, there is an alternative remedy open also under the Federal Court Rules 2011 (Cth) (Federal Court Rules). By r 3.04 a person may apply to the Court without notice for an order that a registrar do any act or thing that the registrar is required or entitled to do, but has refused to do. If nothing else, the registrar's letter of 9 August 2021 conveys or, at least, confirms a decision by a registrar to refuse to accept the leave to appeal application for filing. Rule 2.21 provides, by subrule (1), a number of ways in which documents may be lodged with the Court. One such way is by being sent by electronic communication to a registry in accordance with r 2.23. The applicant sought to avail herself of that way. Her experience of using the Court's portal for that purpose has not been felicitous, but the end result, nonetheless, is that decision of 9 August 2021. 9 Rule 2.27 sets out when document will not be accepted in a registry. It provides: Rule 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. Note: If a document is lodged with the Court in accordance with paragraph 2.21(1)(b), (c) or (d) and the Registry does not accept it, a Registrar will notify the sender of the document accordingly. 10 One basis upon which acceptance does not occur is if a registrar has refused to accept the document. Again, the registrar's letter of 9 August 2021, if nothing else, evidences or confirms a decision by a registrar to refuse to accept the leave to appeal application for filing. 11 The applicant correctly identified that she needed leave to appeal to challenge the order made on 22 July 2021. That order was interlocutory. Therefore, the applicant was required, first, to obtain leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). If such leave is granted, the Court may then exercise an appellate jurisdiction pursuant to s 24(1) of the Federal Court of Australia Act in respect of the order of 22 July 2021. 12 The applicant specified on her leave to appeal application each of these subsections in s 24 as the source of the jurisdiction of the court which she sought to invoke. 13 The practice in relation to leave to appeal is set out in Pt 35 of the Federal Court Rules. More particularly, the form of an application is, together with the documents which must accompany such an application, is as set out in r 35.12, which provides: Rule 35.12 Form of application (1) A person who wants to apply for leave to appeal must file an application, in accordance with Form 117. (2) The application must be accompanied by the following: (a) the judgment or order from which leave to appeal is brought; (b) the reasons, if published, for the judgment or order; (c) an affidavit stating the facts that support the application; (d) a draft notice of appeal that complies with rules 36.01(1) and (2); and (e) if the applicant wants to have the application considered without oral argument--a statement to that effect. Note 1: A lawyer may file a notice of appeal starting migration litigation only if the notice includes or is accompanied by a certificate under section 486I of the Migration Act 1958, signed by the lawyer. Note 2: File is defined in the Dictionary as meaning file and serve. Note 3: For migration litigation, lawyer has the meaning given by section 5 of the Migration Act 1958. 14 Having regard to the application for leave to appeal which the applicant sought to file, together with the documents which she sought to file in conjunction with that application, it is clear to the point of demonstration that the applicant complied with r 35.12. The registrar's decision of 9 August 2021 is, with all due respect, wrong. 15 The applicant's application for leave to appeal ought to have been accepted for filing in conjunction with the other documents. It is quite clear that the applicant, who is, with respect, astute, was scrupulous in her attention to the procedural requirements found in Pt 35 and, for that matter, to the requirement found in s 24(1A) for leave before a challenge in the exercise of appellant jurisdiction could be made to the order of 22 July 2021. 16 It may well be that there is benefit in the applicant's experience in terms of educating officers within the registry as to the bases upon which documents such as an application for leave to appeal may or may not be accepted for filing. It may also be that there is benefit in the present application in terms of reflective consideration by the Court's principal registrar and other responsible registrars of the user-friendliness and interface between the Court's electronic filing portal and users in relation to the filing of applications for leave to appeal and, perhaps, even beyond that. 17 It is singularly important that such education and reflection not be tainted in any way by perceptions concerning the applicant. It is overarchingly the case that the applicant has an entitlement in this particular instance to seek to invoke the judicial power of the Commonwealth so as to challenge an interlocutory order with which she is aggrieved. That right must be respected. To observe that is to say nothing whatsoever as to whether, should the applicant choose to prosecute her leave to appeal application, that application might succeed. That is emphatically not a subject for decision today. All that is necessary to recognise is that, unfortunately, an error has been made within the registry. It is an error which requires correction. Once again, it is important not to conflate unfortunate experience with any perception as to bad faith. As far as I can see, what has occurred here, while unfortunate, is just an error. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.