Nyoni v Bird

Background and evidence 6 Mr Nyoni read three affidavits, each sworn by him on 23 April 2020, 25 July 2020 and 27 January 2021, respectively. 7 The present application has its genesis in other proceedings, the nature and particulars of which needn't be traversed. It suffices to record that, within those actions, other judges of this court have made orders by which Mr Nyoni is aggrieved. Mr Nyoni seeks to challenge those orders; and, to that end, filed (or sought to file) an application for judicial review and prerogative relief dated 28 January 2020 (the "January Originating Application"). The January Originating Application named eighteen respondents, including six judges of this court. 8 On 31 January 2020, a registrar of this court, Registrar Hird, refused to accept the January Originating Application and other documents that Mr Nyoni sought to file in support of it. By letter dated 31 January 2020, Registrar Hird wrote to Mr Nyoni as follows: In the documents, you name a number of respondents including current Federal Court Judges, various Government Departments of Western Australia, a trustee, and various individuals. From my perusal of the documents, you appear to seek various forms of relief, including "orders quashing the decision" of Justices Flick, Katzmann and Banks-Smith. After considering the documents, I have refused to accept them for filing pursuant to s 2.26 of the Federal Court Rules 2011, on the basis that I am satisfied that they constitute an abuse of process for the following reason: • The documents do not disclose a cause of action against all respondents; and • The matter is foredoomed to failed [sic] as the Court (constituted by a Judge) cannot order that the Court (constituted by a Judge) do or not do an act or thing. 9 On 27 February 2020, Mr Nyoni sought to file an originating application for judicial review of Registrar Hird's decision to refuse to accept for filing the January Originating Application (the "February Originating Application"). The February Originating Application named Registrar Hird as a respondent, together with the eighteen respondents named in the January Originating Application. 10 On 26 March 2020, the respondent, Registrar Bird, refused to accept for filing the February Originating Application. By letter dated 26 March 2020, Registrar Bird advised Mr Nyoni as follows: After considering the document, I have refused to accept the documents for filing pursuant to s 2.26 of the Federal Court Rules, as I am satisfied that it constitutes an abuse of process on the basis that the documents do not disclose a cause of action against all of the respondents named in the application. 11 On 6 May 2020, Mr Nyoni filed an originating application for judicial review of the decision of Registrar Bird to refuse to accept for filing the February Originating Application. It is to that application that this judgment relates. 12 The respondent, Registrar Bird, filed a submitting notice (save as to costs) and played no part in the proceeding. Ms Moir, of counsel, agreed to appear as amicus curae and to discharge the role of contradictor. I record the court's gratitude to Ms Moir and Mr Nyoni, both of whom made concise and helpful submissions.

The application 13 The originating application specifies three grounds for review of Registrar Bird's decision, which are expressed as follows: 1. A breach of the rules of natural justice occurred in connection with the making of the decision of Registrar Bird. … 2. The decision involved an error of law, whether or not it appears on the record of the decision. … 3. The making of the decision would be an improper exercise of power conferred by r 2.26 of the Federal Court Rules 2011 in pursuance of which the decision is proposed to be made. 14 The particulars of each of the grounds are explored below.

Legislative scheme 15 Rule 2.26 of the Rules provides 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. 16 Section 39B of the Judiciary Act relevantly provides as follows: 39B Original jurisdiction of Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. … 17 The ADJR Act applies to "a decision of an administrative character made, proposed to be made, or required to be made… under an enactment": ADJR Act, s 3. A decision to refuse to accept a document under r 2.26 of the Rules is "a decision of an administrative character" and is, therefore, amenable to review under the ADJR Act: Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222, 230-231 [49]-[50] (Marshall, Cowdroy and Buchanan JJ); Rahman v Hedge [2012] FCA 68 [5] (Perram J); Reaper v Luxton [2015] FCA 430 [15] (Tracey J). Section 5 of the ADJR Act provides for the making of applications in this court to review decisions of that nature (amongst others) on certain, identified grounds (the details of which are explored below).

Breach of natural justice 18 Although the present application is about the propriety of the decision made by Registrar Bird to refuse to accept for filing the February Originating Application, rather than the decision made by Registrar Hird to refuse to accept for filing the January Originating Application, Mr Nyoni's submissions covered both decisions. That is perhaps unsurprising, given both decisions were made on the same basis: namely, that each application sought to be filed constituted an abuse of process. 19 The gravamen of Mr Nyoni's complaint is that Registrar Bird was wrong to form the view that the February Originating Application was an abuse of process. By his outline of written submissions filed in advance of the hearing, Mr Nyoni submitted: 50. … [the February Originating Application] is not, either on its face or by reference to its supporting affidavit, or by reference to other documents already filed, an abuse of process, frivolous or vexatious. The document is regular in form. The originating application contains intelligible grounds of review. Pursuant to r 9.07 of the Federal Court Rules 2011, the proceeding cannot 'clearly [be] seen to be doomed to fail' solely on the basis that parties may or may not have been joined appropriately to proceedings on the basis of 'not disclosing causes of action'… 20 Mr Nyoni contended that, in circumstances where the February Originating Application was not an abuse of process, the decision of Registrar Bird to refuse to accept it for filing had the effect of depriving him of the right to be heard in relation to the earlier outcomes of which the February Originating Application legitimately sought review. That deprivation, it is said, amounts to a breach of natural justice. 21 As will be explored later in these reasons, Mr Nyoni's contention that the February Originating Application did not constitute an abuse of process cannot be sustained. That being so, the submissions that he advanced in support of ground one of his application must be rejected. 22 Although Mr Nyoni did not advance any further submissions in support of ground one of his application, I note for the sake of completeness that Registrar Bird's decision did not offend any rule of natural justice or procedural fairness. There was no requirement for Registrar Bird to give Mr Nyoni the opportunity to make submissions or provide a hearing before deciding to refuse to accept the documents: Somasundaram v Luxton [2020] FCA 1076, [41] (Murphy J). Likewise, there was no requirement for Registrar Bird to indicate to Mr Nyoni, in advance of the decision, that she was contemplating the refusal to which she later gave effect: Rahman v Hedge [2012] FCA 68, [8] (Perram J). 23 No breach of natural justice having occurred, ground one is not established.

Error of law 24 Mr Nyoni contends that Registrar Bird was wrong to reason that his substantive application was an abuse of process. Again, there is some overlap as to which decision Mr Nyoni seeks to attack: the decision of Registrar Bird (regarding the February Originating Application) or that of Registrar Hird (regarding the January Originating Application). Regardless, the basis of Mr Nyoni's complaint is that neither the January Originating Application nor the February Originating Application constituted an abuse of process. In those circumstances, it is said, the decisions made by each registrar (or, at the very least, the respondent in the present case, Registrar Bird) proceeded upon an error of law. 25 The correctness of that conclusion turns, in each case and to one degree or another, upon whether or not this court has jurisdiction to review or grant prerogative relief in respect of its own decisions. That is what Mr Nyoni sought to achieve by the January Originating Application in respect of orders made by other judges of this court in other proceedings. If this court has jurisdiction of that nature, then the premise that animated Registrar Bird's decision to refuse to accept the February Originating Application - namely, that it amounted to an abuse of process - was very likely wrong. If it does not have that jurisdiction, then there can be no error of law affecting Registrar Bird's decision. Mr Nyoni accepted as much during the course of the hearing of the application. He maintained that the January Originating Application was not an abuse of process because this court does have jurisdiction to review and grant prerogative relief in respect of its own decisions. 26 Mr Nyoni submits that the source of that jurisdiction is s 39B of the Judiciary Act, which confers on this court "jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". With great respect (and notwithstanding the skill with which Mr Nyoni advanced it), there is no justification for that submission and it must be rejected. 27 The present application bears some similarity to Bird v Free (1994) 126 ALR 475 ("Bird v Free"; Drummond J). In that case, an applicant sought to file an application for a writ of prohibition and related interlocutory relief directed to a judge of this court. The purpose of the relief was to prohibit the judge from acting further in ongoing proceedings to which the applicant was a party. A district registrar sought the direction of a second judge, Spender J, as to whether the application should be accepted for filing. 28 Spender J directed the district registrar not to accept the application and the district registrar informed the applicant of that direction. The applicant then sought to file a further application for leave to appeal against the Spender's J direction, and the district registrar sought the direction of a third judge, Drummond J, as to whether to accept that further application. 29 In determining that the applicant had no prospects of obtaining leave to appeal against Spender's J direction - and, consequently, directing the district registrar to refuse to accept the applicant's further application - Drummond J made the following observations (at 478-479): In my view a judge of the Federal Court has no jurisdiction to issue a writ of prohibition or an injunction against another judge of the court acting as such. Section 39B confers jurisdiction on the Federal Court in terms identical to that vested in the High Court of Australia by s 75(v) the Commonwealth Constitution. It is well established that that provision of the Constitution empowers the High Court to issue prohibition against a judge of a court or tribunal set up by the Commonwealth Parliament notwithstanding that it is declared, as is the Federal Court of Australia, to be a superior court, because all such judges are officers of the Commonwealth: R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263; 9 ALR 551, and the case there cited R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 399. See also R v Judges of the Federal Court of Australia and Adamson; Ex parte Western Australian National Football League Inc (1979) 23 ALR 439 at 446-7. The High Court's jurisdiction in that very regard is declared by s 38(e) of the Judiciary Act to be exclusive of the jurisdiction of the courts of the States. The Federal Court's jurisdiction with respect to prerogative writs conferred by s 39B is, as I have mentioned, expressly declared by s 39B(2) not to extend to issuing such process against, among others, judges of the Industrial Relations Court and judges of the Family Court. It was unnecessary, however, for the Parliament to also expressly exclude from the jurisdiction of the Federal Court authority to issue prerogative writs and injunctions against judges of that same court. By s 19(1) the Federal Court of Australia Act 1976 (Cth) the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. This includes the jurisdiction vested in the court by s 39B the Judiciary Act. The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority. 30 The High Court endorsed those observations in Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595, 603 (Brennan CJ); 608-609 (Dawson J); 616-617 (Toohey and Gaudron JJ); and 631-632, 635-636 (Gummow J) ("Re Jarman"). Indeed, in that case, Dawson J remarked (at 610, citations omitted): For a court to grant prerogative relief against one of its own judges is for it to grant relief against itself in the exercise of the same jurisdiction as that exercised by the judge, a situation which has been described as "rather ludicrous". 31 More than a century ago in R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437, Isaacs J observed (at 453) that "the inherent nature of prohibition or mandamus requires that the officer must be someone not a member of the tribunal to which the application is made, or superior to it". 32 More recently in Kostov v Australian Financial Security Authority [2020] FCA 1105, Farrell J made the following observation (at [213]): …This Court cannot grant prerogative relief directed towards itself: see Bird v Free (1994) 126 ALR 475 (Drummond J); Re Jarman; Ex parte Cook [1997] HCA 13; (1997) 188 CLR 595 at 603 (Brennan CJ), 610 (Dawson J), 616-617 (Toohey and Gaudron JJ), 636-637 (Gummow J) and 647 (Kirby J), Tang v Minister for Immigration and Citizenship [2013] FCAFC 139; (2013) 217 FCR 55 at [10] (Rares, Perram and Wigney JJ). 33 In his outline of written submissions, Mr Nyoni submits as follows: [35] The applicant submits that the principle in Bird v Free is not good law. It fails to accord with the view adopted by the Parliament in the second reading of the Judiciary Bill 1903. By s 19(1) of the Federal Court of Australia Act 1976 (Cth), the Federal Court has such original jurisdiction as is vested in it [by] laws made by the Commonwealth Parliament. The term 'officer of the Commonwealth' within its definition under s 39B includes judges of the Federal Court. [36] In Bird v Free, Drummond J takes issue with the fact that this action of s 39B 'would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest.' The Applicant submits that in order for s 39B of the Judiciary Act to work identically to s 75(v) of the Constitution, a single judge at the first instance has to vest their authority by the statute in the court, ie, in all the judges that make up the court - also keeping in mind the Chapter III rights and freedoms afforded to the judicial system for the purpose of 'securing the proper administration of the judicial business of the Commonwealth.' In order to secure this proper administration of justice, there needs to be proper accountability between judges of the same court that they are acting within the law. This level of accountability need not only extend to the right to appeal - but also the right of a Court to perform its function of ensuring that decisions act within the lawful limits of their power. This is done to meet the 'gradually increasing requirements of the people' to have access to avenues of judicial review in respect of decisions which are tainted with jurisdictional error. [37] Section 39B should be interpreted for the promotion of these rights to avoid breaches of natural justice in Chapter III courts. For the same reason that there is no expressed exclusion in s 75(v) of the Constitution for a judge of the High Court to be issued a writ of Mandamus or prohibition or an injunction against a judge of that same court, there is no expressed exclusion in the concurrent original jurisdiction in the Federal Court. 34 At the hearing of the application, Mr Nyoni made further submissions that the decision in Bird v Free was plainly wrong, and that the comments of the High Court in Re Jarman were obiter dicta and, therefore, not binding on this court. 35 Those submissions cannot be sustained. Respectfully, Drummond's J reasoning in Bird v Free is sound and is supported by subsequent authority (including High Court authority in the form of Re Jarman). This court is bound to follow that reasoning. To do otherwise would be contrary to principles more than a century old. This court does not have jurisdiction to review or grant prerogative relief in respect of its own decisions. An application that seeks relief of that nature is foredoomed to failure and is an abuse of process. Registrar Hird was correct so to decide in relation to the January Originating Application. The February Originating Application - by which Mr Nyoni sought to challenge that decision (and, thereby, to persist with his attempt to relitigate in this court what other judges had already decided) - was also foredoomed to failure and also (for that reason) an abuse of process. Registrar Bird did not err by concluding as much. 36 Ground two is without foundation.

Improper exercise 37 By ground three of his application, Mr Nyoni challenges the respective decisions of Registrar Hird and Registrar Bird on the basis that each constituted an improper exercise of power conferred by r 2.26. Again, although the present application concerns the decision made by Registrar Bird to refuse to accept for filing the February Originating Application, Mr Nyoni's submissions referred to both decisions. 38 Section 5(1)(e) of the ADJR Act lists as a ground of review "that the making of a decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made". In turn, s 5(2) of the ADJR Act states that the reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; (c) an exercise of a power for a purpose other than a purpose for which the power is conferred; (d) an exercise of a discretionary power in bad faith; (e) an exercise of a personal discretionary power at the direction or behest of another person; (f) an exercise of a discretionary power in accordance with a rule of policy without regard to the merits of the particular case; (g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power; (h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and (i) any other exercise of a power in a way that constitutes abuse of the power. 39 In relation to the decision of Registrar Hird, Mr Nyoni's written submissions read as follows: [42] In the case of Randell v Release of Licence Board (1987) 10 NSWLR 499, the Court stated: A body upon whom Parliament has conferred a discretion must exercise that discretion in accordance with the legislation … The discretion [must not] be exercised by reference to general and inflexible rules which pay no regard to the particular circumstances of the case … It is of course often useful and sometimes necessary for administrators to adopt guidelines. These may provide guidance to officers in the scattered agencies of the administration. They may ensure that decisions are made in an even-handed and consistent way. But such guidelines must be compatible with the legislation conferring the discretion. They must not purport to usurp the discretion or substitute administrative convenience for the individualised decision is that is what the legislation has provided from, as we think the legislation in the present case has done. [43] Registrar Hird usurped the discretion and substituted administrative convenience to direct the refusal of filing of the [January Originating Application]. On the basis that 'the documents do not disclose a cause of action against all respondents,' the Registrar failed to give regard to the disclosure of causes of action against respondents whose decisions are under the Justices of the Federal Court who are named as Respondents (Justices Katzmann, Flick and Banks-Smith in proceedings NSD1345/2019 and NSD1716/2019. [44] On the basis that 'the Court (constituted by a Judge) cannot order that the Court (constituted by a Judge) do or not do an act or thing, the Registrar inflexibly applied the wrongful interpretation of s 39B of the Judiciary Act 1903 (Cth) without any regard to the circumstances of the particular case, and acting under the dictation from the court above. [45] The decision of Registrar Hird thus discloses reviewable error, and ought to be quashed. 40 In relation to the decision of Registrar Bird, Mr Nyoni's written submissions read as follows: … it appears the conduct of Registrar Bird and the conduct of Justices Jackson and Banks-Smith during the course of the making of the decision would be an improper exercise of power by reference to 'an exercise of a personal discretionary power at the direction or behest of another person" 41 Mr Nyoni did not elaborate upon those submissions at the hearing of the application. Although it is not entirely clear what Mr Nyoni alleges by this ground, it seems to be contended that each of the registrars was acting at the "dictation" or "behest" of another person, possibly a judge or judges of this court; a situation contemplated by s 5(2)(e) of the ADJR Act. Any submission to the effect that a judge of this court has interfered with the exercise of a registrar's discretion in pursuit of some improper purpose at Mr Nyoni's expense is plainly without foundation and, to the extent that it was put, it must fail. 42 There was no improper exercise of power by Registrar Bird (or, for that matter, Registrar Hird). None of the situations described in s 5(2) of the ADJR Act is applicable to Registrar Bird's decision. For the reasons set out earlier in this judgment, the applications that Mr Nyoni sought to file comfortably qualified as abuses of process. Accordingly, Registrar Bird was entitled to exercise her discretion to refuse to accept for filing the February Originating Application in accordance with r 2.26 of the Rules. There being no improper exercise of power by Registrar Bird, it follows that ground three is not established.

Conclusion 43 The January Originating Application sought judicial review of various decisions of judges of this court. There is clear and binding authority to the effect that this court cannot grant prerogative relief against itself. The January Originating Application was an abuse of process and Registrar Hird did not err by refusing to accept it for filing. The February Originating Application was equally without foundation. It did not have any realistic prospect of establishing any reviewable error on the part of Registrar Hird. It, too, was an abuse of process, as the respondent correctly concluded. It follows that neither decision was the product of error, discretionary or otherwise. Neither is of a kind in respect of which this court should grant the relief that Mr Nyoni seeks. 44 The application will, therefore, be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.