Ninan v Hannigan

1. The applications for default judgment be dismissed.
2. The applications be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Ninan seeks default judgment in three proceedings that he has commenced against registrars and judges of this Court. He alleges a conspiracy and fraud involving the Chief Justice, the judges of the Court and its registrars. The proceedings also name Ms Molly George as an applicant. The proceedings have been signed by Mr Ninan purportedly '[a]s representative of me & my wife, Molly George'. Immediately thereunder is a signature presented as the signature of Ms George. The applications state that it is intended to serve them 'by email only'. 2 Ms George did not seek to appear. In those circumstances, I take the signature of Ms George to provide authority for Mr Ninan to advance submissions in the proceedings on her behalf. I will deal with the applications themselves and the applications for default judgment on the basis that both applicants rely on the matters submitted by Mr Ninan. 3 The terms in which default judgment is sought in each of the three proceedings would provide, amongst other things, for an order that the Commonwealth of Australia do pay $10 trillion to the applicants. 4 Mr Ninan claims that the proceedings were validly served by email because communications had previously been received and accepted by email. He also alleged in general terms that there had been attendance by solicitors for certain respondents at hearings in circumstances which amounted to an acceptance of service. 5 Mr Ninan has filed lengthy documents with the Court from which it is difficult to extract the basis for his claims and precisely why he says that service of the proceedings has been effected such that there has been failure to appear which would entitle him to default judgment. 6 The proceedings were commenced in January 2014. It appears that the claims made concern decisions in various proceedings commenced by Mr Ninan and Ms George concerning residential investment properties in Mandurah, particularly rate notices issued by the City of Mandurah, the involvement of the Valuer General of Western Australia and banks taking action in relation to the sale of the properties: see, for example, Ninan v St George Bank Ltd [2014] FCA 334. The present claims appear to allege some form of conspiracy that resulted in various other proceedings being dismissed in a number of instances on the basis that orders for security for costs were not met. 7 In the present proceedings, on 11 March 2019 Banks-Smith J made detailed orders designed to provide Mr Ninan with an opportunity to place before the Court the specific evidence and submissions that relate to his claim that default judgment should be entered. Her Honour ordered that the matter return for a further case management hearing after the time specified for the filing of those documents. 8 The matter came before me for the further case management hearing on 16 April 2019. At that time, none of the documents ordered by Banks-Smith J had been received as part of the Court file. However, it was apparent that Mr Ninan had sought to file certain documents which he said were in the terms required by the orders of Banks-Smith J. As to the filing of the documents, amongst other things, Mr Ninan said that he had filed documents which he had been notified had been copied to file and therefore they had been received as part of the court file. In circumstances where Mr Ninan claimed that he had complied with orders and the documents that he had filed should be in the Court file, I made orders extending the time for compliance with the orders of Banks-Smith J and adjourned the matter to a further case management hearing. 9 Further, having regard to the terms in which default judgment was sought, I also made orders that at the resumed hearing the Court would consider: (a) whether there had been compliance with the orders of Banks-Smith J and if not whether the proceedings should be dismissed by reason of such failure to comply; and (b) whether the proceedings should be dismissed on the basis that they fail to disclose proper claims. 10 I also ordered that any affidavit concerning compliance with the orders of Banks-Smith J be filed by 24 April 2019. Pursuant to that order, Mr Ninan has filed an affidavit which he describes as 'Affidavit of Compliance - The Second'. The affidavit complains that documents lodged by Mr Ninan in an effort to comply with the orders of Banks-Smith J have not been accepted for filing despite them being lodged again after the orders I made. He says that he made a request under r 3.05 of the Federal Court Rules 2011 (Cth) (Rules) for the request for filing of the documents to be referred to a judge. He says that this request was refused and this frustrated his attempt to comply with the orders. 11 The affidavit also says it would be a blatant denial of natural justice if the Court did not proceed to hear the application for default judgment. 12 At the hearing on 29 April 2019 I informed Mr Ninan that he faced a choice between two courses of action. First, he could proceed with a challenge to the steps taken by the registrars in refusing to accept his documents for filing. I indicated that I would allow an adjournment for that purpose if he wished to follow that course. Second, he could proceed with his application for default judgment in circumstances where the documents ordered by Banks-Smith J were not before the Court. In those circumstances, the materials relating to how service of the proceedings were alleged to have been effected would not be before the Court. 13 Mr Ninan made plain that he did not want the matter to go back to the Registry. Rather, he wanted the matter to proceed and to proceed on the basis of his claim that the Court, by judicial order, should accept for filing the documents that had been rejected and deal with the application by reference to those documents. 14 On that basis, the matter proceeded. I heard submissions from Mr Ninan and reserved my decision. In the course of hearing those submissions I provided a time limit upon Mr Ninan. Subsequently to the hearing Mr Ninan raised concerns about the time limit and provided to my associate documents entitled 'Oral Submissions for Hearing on 29 April 2019' and emails. I granted leave for these additional submissions to be received in support of the application. 15 For the following reasons, the applications for default judgment should be dismissed and the proceedings themselves should be dismissed. 16 It is first necessary to deal with Mr Ninan's claim that the Court has power under r 3.05 which it should exercise to receive the documents which Mr Ninan has sought to file in purported compliance with the orders of Banks-Smith J. In support of the claim that r 3.05 applied Mr Ninan relied upon the terms of s 35A(7) of the Federal Court of Australia Act 1976 (Cth) (Act). 17 Section 35A(1) provides that certain powers of the Court may, if a judge so directs, be exercised by a registrar. It then provides in s 35A(7) that where an application for the exercise of a power referred to in s 35A(1) is being heard by a registrar then the registrar may arrange for the matter to be determined by the Court. Section 35A has no application in circumstances where the registrar of the Court refuses to accept documents for filing. 18 As to r 3.05 it states that a party may apply orally to a registrar to arrange for the Court to determine an application for the exercise of a power mentioned in s 35A(1) of the Act. Therefore, it too does not confer a power upon a judge to receive a document for filing. 19 In the interests of justice, notwithstanding the provisions of the Rules, a judge may direct that a document be received as part of the Court file. However, apart from a generalised assertion unsupported by evidence that registrars of the Court have been a party to a conspiracy which includes thwarting Mr Ninan from being able to file documents, no reason was advanced as to why it was in the interests of justice for the documents which Mr Ninan has sought to file to be directed to be received as part of the Court file. 20 On 24 April 2019, Registrar Benter provided to Mr Ninan reasons as to why the documents which were sought to be filed after my orders were made were not accepted for filing. They included the view that the documents substantively failed to comply with the requirements of the orders made by Banks-Smith J and that they included material which is frivolous and vexatious. 21 The communication to Mr Ninan also referred to the terms of r 2.26 which provides that a registrar may refused to accept a document if the registrar is satisfied that a document is an abuse of the process of the Court or frivolous or vexatious on the face of the document or by reference to any documents already filed or submitted for filing with the document. 22 There is provision in the Rules by which an application may be brought to review decisions by registrars. Mr Ninan is well aware of the availability of such an avenue of review having pursued it in the past: Ninan v Hannigan [2014] FCA 258. However, Mr Ninan expressly disavowed pursuing such a course. 23 In those circumstances it would defeat the operation of the orders of Banks-Smith J and the purpose behind the procedures established by the Court in the Rules to advance efficiency and fairness in the interests of all parties who seek access to his Court if I was to direct that the Court receive the documents that have been rejected by the Registry. I decline to do so. 24 It follows that there has been a failure by Mr Ninan to comply with the orders of Banks-Smith J. Those orders were made for the sole purpose of requiring Mr Ninan to state with particularity the basis upon which his application for default judgment was founded. The effect of the failure to comply is that there is no evidence in support of the application before the Court. Therefore, the application must be dismissed. 25 Further, each of the substantive applications are plainly an abuse of process. The terms in which default judgment is sought include judgment for an amount which could not be justified against the Commonwealth of Australia which is not a party to the proceedings. It is an abuse of process to use the procedures of the Court to contend for an amount of damages which is extravagant in the sense that it is unsupportable on any view of the law and the facts in issue in the proceedings: Nyoni v Shire of Kellerberrin [2019] FCA 530. As I have said, the claims advanced by Mr Ninan have their origins in complaints about steps taken concerning residential investment properties in Mandurah. They could never support a claim for an amount of trillions of dollars. Further, there is no basis upon which judgment could be sought against the Commonwealth in proceedings which are ostensibly judicial review proceedings to which the Commonwealth is not a party. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.