Nyoni v Cho

The submissions of amici curiae summarised 30 Amici curiae provided a helpful outline of submissions in both proceedings. 31 It is unnecessary to summarise those submissions because they are substantially reflected in the reasons below for dismissing both originating applications.

Consideration and determination of the applications 32 I will now address the two judicial review applications in relation to the Registrar's decisions. 33 The Court has jurisdiction under the ADJR Act to review decisions by a Registrar under r 2.26 because such a decision is a decision of an administrative character made under an enactment and is not a decision of a judicial character (see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222 (Satchithanantham) at [49]-[50]; Murphy FCAFC at [32] and [38] and Bird v Registrar, Federal Court of Australia [2016] FCA 21 at [25] per Collier J). 34 Rule 2.26 of 2011 FCRs provides as follows: 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. 35 The power of a Registrar to refuse to accept a document for filing turns on the Registrar's satisfaction that the document is an abuse of process of the Court or is frivolous or vexatious. That satisfaction must be honestly and actually formed but it is amenable to judicial review, including in an appropriate case under the relevant provisions of the ADJR Act. It is incontestable that judicial review does not extend to a review of the merits of the Registrar's decision apart from a case where the ground of unreasonableness involves an examination of the outcome of the decision for the limited purpose of that particular judicial review ground. 36 In Rahman v Hedge [2012] FCA 68 at [5]-[6] (Rahman) Perram J held that the Registrar's "satisfaction" of the particular state of affairs referred to in the predecessor to r 2.26 (i.e. Order 46 r 7A) was amenable to judicial review, including by reference to Gibbs J's well-known statements in Buck v Bavone 135 CLR 110 at 118-119. I respectfully agree. 37 It is well established that a document is: (a) an abuse of process if "it can clearly be seen to be doomed to fail" (SZQYP v Hannigan [2012] FCA 723 (SZQYP) at [30]; and (b) frivolous or vexatious, if it is "obviously untenable or utterly hopeless" (SZQYP at [30]). 38 The purpose of a Registrar's power not to accept a document for filing is "to assist the Registrar to maintain efficient operation of the registry and, thereby, the Court" (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 (Bizuneh) at [15], with reference to an earlier similar provision). 39 Referring to the previous r 7A (which not only conferred a power on the Registrar expressed in similar terms to those in r 2.26 but also empowered a Registrar in his or her discretion to "seek a direction of a Judge who may direct him" on the question whether a document should be accepted for filing), the Full Court in Bizuneh said at [17]: 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. 40 It is significant that the applicant has chosen to seek judicial review of the Registrars' decisions pursuant to the ADJR Act and has not relied on any other appeal or review jurisdiction of the Court. 41 The ADJR Act applies in respect of "a decision of an administrative character made, proposed to be made, or required to be made… under an enactment (see ss 3(1) and 5). The ADJR Act also applies where a person "has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies…" (s 6). 42 The originating application filed by the applicant in both proceedings for review of the Registrars' decisions relies expressly on s 5 of the ADJR Act. That is to be contrasted with the proposed originating application which was not accepted for filing by both Registrars. That originating application is expressly stated to be in relation to judicial review of conduct of a Judge of this Court and is brought pursuant to s 6 of the ADJR Act. 43 It is unnecessary to specify the particular grounds set out in the underlying proposed originating applications in which Colvin J is named as the sole respondent. This is simply because although conduct is reviewable under the ADJR Act it must relate to a decision to which the Act applies, being a decision of an administrative character made under an enactment. The conduct which is the subject of the proposed originating applications is the conduct of a Judge of this Court. That conduct is judicial in nature and not administrative. That is because, as amici curiae pointed out, it is axiomatic that where "a power is exercised by this Court the exercise of the power must be judicial in nature" because that is a Constitutional requirement of its conferral (see McDonald v Federal Court of Australia [2017] FCA 1216 at [60] per Kerr J). Neither Registrar erred in rejecting the proposed originating application for filing because, as Registrar Cho pointed out, the application did not relate to a decision of an "administrative character". That is also what Registrar Tesereiro had in mind when he said that the originating application was bound to fail "for it misconceives the cause of action arising under the relevant Act you rely upon". 44 Taking in turn each of the four aspects of the conduct raised by the applicant, it is plain that none of that conduct relates to an administrative decision made under an enactment. The impugned conduct arising from case management of the appeal was judicial in character. A Judge's case management functions are part of the judicial process and the ultimate exercise of judicial power which conclusively and authoritatively determines the controversy between the parties (Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330). His Honour's membership of a Full Court which hears and determines an appeal is a quintessential exercise of judicial power, as is the case with his Honour's decision to dismiss the applicant's judicial review application against the decision of Registrar Benter. Finally, his Honour's past professional relationship with another barrister is far removed from conduct which is reviewable under the ADJR Act. 45 This is a sufficient basis for dismissing the originating applications because it provides an insurmountable obstacle for the applicant. For completeness, however, I should add that I am not satisfied that the applicant has established any of the individual grounds of judicial review relied upon by him in respect of the Registrars' decisions, for reasons which I will now explain. 46 With specific reference to Registrar Cho's decision, the applicant has failed to establish any reviewable error. In particular: (a) In respect of grounds 1, 4 and 5 (breach of natural justice, unauthorised decision and improper exercise of power) the applicant claims that Registrar Cho misconstrued s 6 of the ADJR Act. The applicant has failed to demonstrate that the Registrar's decision involved a misconstruction of the meaning of "conduct". As to the claim of a denial of natural justice, the particulars indicate that the applicant's complaint is not one of procedural unfairness as such, but rather relates to the alleged misconstruction of s 6 and the distinction drawn between "conduct" and a substantive decision. (b) As to grounds 2, 3 and 9 (failure to observe procedures, lack of jurisdiction and otherwise contrary to law), the applicant claims that, given the substance of his claims of defamation, misleading or deceptive conduct, malicious falsehood and the invalidity of the conditions imposed by the Pharmacy Board and AHPRA, such matters ought to have been determined by a properly constituted Full Court and not a Registrar. But a Registrar is plainly empowered by r 2.26 to refuse to accept a document if the Registrar has the requisite satisfaction in respect of one of the matters as set out in that provision. The applicant does not claim that Registrar Cho did not actually or honestly have the state of satisfaction which enlivens the exercise of the power not to accept a document for filing. (c) In grounds 1 and 6, the applicant contends that Registrar Cho misapprehended or misconstrued the facts but no particulars are provided of those claims. Moreover, a mere error of fact cannot be equated with the concept of error of law, at least not without further elaboration which is not provided in the originating application. (d) As to ground 7, the applicant claims that Registrar Cho's decision was "induced or affected by bias" because the Registrar gave "a disproportionate weight in favour of the respondent or against the applicant". The applicant points to no material in support of this serious allegation. There is simply no basis to conclude that an appropriately informed lay observer might apprehend that Registrar Cho might have exercised his power under r 2.26 by disproportionally weighing matters in favour of the respondent and against the applicant so as to give rise to apprehended bias. (e) As to ground 8, which claims that there was no evidence or other material which justified the making of Registrar Cho's decision, which is particularised as being based "on conjecture without referring to the substantive evidence outlined by applicant (sic)", the Registrar was entitled to determine the matter on the face of the proposed originating application itself. 47 For similar reasons, I reject each of the judicial review grounds raised by the applicant in respect of Registrar Tesereiro decision. As noted above, the underlying originating application the subject of Registrar Tesereiro's decision was in substantially similar terms to the underlying originating application which had not been accepted for filing by Registrar Cho. Necessarily, therefore, it suffered from the same fatal misconception in that it purported to seek judicial review of conduct which was not in relation to a decision of an administrative character made under an enactment. Otherwise, each of the individual grounds of judicial review is rejected for similar reasons given above in respect of the comparable grounds relied upon in respect of Registrar Cho's decision. 48 During the course of the hearing, the applicant raised the possibility of him amending his underlying originating application relating to Colvin J. As was pointed out by the Court, this was not open against the background of the events that have occurred. This was because the proceedings before this Court were solely concerned with whether the Registrar erred in rejecting the applicant's proposed originating processes. Regardless of whether those proposed originating processes may have been amended to cure the defect identified above, it remains the case that the proposed originating processes rejected by the Registrars were defective at the time they were rejected. It is not for this Court on a judicial review of the Registrar's decisions to effectively permit the applicant to change the subject matter of those decisions. It is a matter for the applicant to determine what future course of action he might wish to take.

Application to reopen 49 After judgment was reserved, the applicant sought to file an interlocutory application seeking leave to reopen in relation to what he described as "evidence" which was attached to an affidavit sworn by him and dated 22 April 2019. He also sought to file an outline of submissions in support of the interlocutory application. 50 The "evidence" is a copy of Hill J's judgment in New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 (ATSIC case). The applicant explained that he wished to rely upon Hill J's finding that, even if a particular decision or conduct is not reviewable under the ADJR Act, if the case was one brought under that ADJR Act the Court could decide in its accrued jurisdiction to grant appropriate relief if relevant error is established. 51 There is a fundamental difficulty with the interlocutory application. Justice Hill's reasons for judgment are not "evidence" in any relevant sense. In truth, the applicant (who represents himself) wished to draw the Court's attention to the decision notwithstanding that judgment had been reserved. He requires leave to do so and I will treat his interlocutory application in that way. 52 As previously noted, the respondent in both proceedings filed submitting appearances. There is no issue of any prejudice to them if leave was granted to enable the applicant to cite the relevant authority. On the basis that the essential principle is that the Court should do justice between the parties, I grant the applicant leave to make submissions in relation to the relevance of the ATSIC case. 53 The applicant submitted that the decision was relevant because it identifies "the possibility that a common law claim in reliance upon the principles of administrative law may attract the Federal Court's accrued jurisdiction, even though the ADJR Act claim fails". 54 This submission must be rejected for similar reasons to those set out in [48] above regarding the applicant's suggestion that he should be permitted in this proceeding to amend his underlying originating applications. The applicant placed no reliance upon the Court's accrued jurisdiction when he sought to file the underlying originating applications which were rejected for filing. As has been emphasised, his application was explicitly and solely based on the Court's jurisdiction under s 6 of the ADJR Act. The Registrars' decisions to reject the proposed originating application were made on that basis. It is those decisions which are the subject of the current judicial review applications. The applicant is effectively asking the Court to grant him leave retrospectively to amend the proposed originating applications which were rejected by the Registrar. In other words, the Court is being asked to now rewrite the history of the conduct of the proceedings. It is inappropriate that the Court do so in the context of the present judicial review proceeding. 55 The position was quite different in the ATSIC case. There, from the outset, the judicial review applicant relied not only on the Court's ADJR Act jurisdiction but also on its accrued jurisdiction. The applicant there was not seeking retrospectively to have the Court on a judicial review change the elements of ATSIC's policy decision which was the subject of its judicial review challenge. The ATSIC case provides no support for the applicant's case in circumstances where the applicant placed no reliance upon the Court's accrued jurisdiction and no reviewable error has been demonstrated in respect of the Registrars' reasons for decision for rejecting from filing applications for review which relied solely on s 6 of the ADJR Act.

Conclusion 56 For these reasons, both originating applications will be dismissed. There will be no order as to costs because both Registrars filed submitting appearances. 57 The Court expresses it profound gratitude to Ms Kaur-Bains and Ms Trahanas for agreeing to assist the Court as amici curiae and on a pro bono basis. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.