Nyoni v Murphy

1. The applicant's application of 14 September 2017 for review of the decision of a Registrar of this Court made on 24 August 2017 not to accept the applicant's application and affidavit both dated 24 August 2017 for filing, is dismissed.
2. The applicant is to pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 This is an application by Mr Nyoni, the applicant, for review of a decision of a Registrar of this Court made on 24 August 2017 to reject Mr Nyoni's interlocutory application and supporting affidavit both dated 24 August 2017 for filing. Mr Nyoni's application for review relies upon the power of a Court under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to review a decision of a Registrar. 2 By way of background, Mr Nyoni and the respondents have been involved in litigation against each other on a number of occasions since 2010. In 2015, the respondents caused a bankruptcy notice to issue to Mr Nyoni, which was founded on costs orders made in the respondents' favour in 2013 and 2014 totalling in excess of $80,000. On 17 February 2017, a judge of the Federal Circuit Court of Australia made a sequestration order against the estate of Mr Nyoni based on his non-compliance with the bankruptcy notice. 3 On 27 April 2017, Mr Nyoni sought an extension of time to appeal the orders of the Federal Circuit Court to this Court. The application was heard by Barker J on 18 July 2017. 4 On 16 August 2017, Barker J dismissed Mr Nyoni's application for an extension of time to appeal essentially on the basis that the reasons for decision of the primary judge did not reveal any error. 5 On 24 August 2017, Mr Nyoni sought to file in this Court an interlocutory application and supporting affidavit seeking, inter alia, that the judgment and orders of Barker J be "set aside" pursuant to r 39.05(c), (e), (g) and (h) of the Federal Court Rules 2011 (Cth) (the 2011 Rules). 6 Rule 39.05 of the 2011 Rules states as follows: The Court may vary or set aside a judgment or order after it has been entered if: (a) it was made in the absence of a party; or (b) it was obtained by fraud; or (c) it is interlocutory; or (d) it is an injunction or for the appointment of a receiver; or (e) it does not reflect the intention of the Court; or (f) the party in whose favour it was made consents; or (g) there is a clerical mistake in a judgment or order; or (h) there is an error arising in a judgment or order from an accidental slip or omission. 7 By letter dated 24 August 2017, a Registrar of this Court wrote to Mr Nyoni to inform him that the application documents were not accepted for filing, pursuant to r 2.26 of the 2011 Rules. Rule 2.26 of the 2011 Rules relevantly provides that a Registrar may refuse to accept a document if the Registrar is satisfied that on its face, or by reference to any other document filed or submitted for filing, "the document is an abuse of the process of the Court or is frivolous or vexatious". 8 The Registrar's letter provided the following explanation: I am satisfied on the face of the documents that they are frivolous and vexatious and would constitute an abuse of process if accepted for filing. This is because each circumstance on which you seek to rely pursuant to r 39.05(c), (e), (g) and (h) plainly does not arise. There is no basis on which to assert that the judgment was interlocutory or did not reflect the intention of the Court, or contained a clerical mistake or error arising from an accidental slip or omission. Accordingly, the documents are not accepted for filing and returned with this letter. 9 The respondents contended that Mr Nyoni's application for review of the Registrar's decision is misconceived because the Court does not have the power to review a decision of a Registrar of this Court under r 2.26 of the 2011 Rules not to accept a document for filing. 10 The applicant takes issue with this contention and says that there are authorities which have proceeded on the basis that the Court has power under s 35A(5) of the Federal Court Act to review the decision of a Registrar [made] under r 2.26 of the 2011 Rules to refuse to accept a document for filing. These cases are: Druett v Segal [2011] FCA 1191 (Druett), Reaper v Luxton [2015] FCA 430 (Reaper) and Haque v Tesoriero [2017] FCA 86 (Haque). 11 In my view, the respondents' contention should be accepted for the following reasons. 12 First, s 35A(5) of the Federal Court Act does not in terms confer on the Court the power to review the exercise of a Registrar's power under r 2.26 of the 2011 Rules to refuse to accept a document for filing. Section 35A(5) states as follows: A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power. 13 As is evident from the language of s 35A(5), the Court's power to review the exercise of a Registrar's power is confined to the "powers of the Court under subsection (1)". The powers referred to in subs (1) do not include the power to refuse to accept a document for filing under r 2.26 of the 2011 Rules. 14 Secondly, the Full Court in the case of Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 (Satchithanantham) held that the decision of a Registrar not to accept a document for filing under the equivalent power contained in O 46 r 7A(1) of the Federal Court Rules 1979 (Cth) (the 1979 Rules) was not reviewable under s 35A(5) of the Federal Court Act. The Full Court in Satchithanantham at [48], referred to the following observations of the Full Court in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 (Manolakis) at [19]: …Second, s 35A(2) authorises a party to a proceeding to apply to the court for review of the exercise of a registrar of any of the powers of the court under s 35A(1). Where it is an originating process that is not accepted for filing the person concerned will not be a party to any proceeding at the relevant time. Even where this issue does not arise, the authority vested in a registrar by O 46 r 7A to refuse to accept a document, whether pursuant to a direction of a judge or of his or her own motion under O 46 r 7A(1), is not a power of the court under s 35A(1). None of the powers identified in s 35A(1)(a)-(g) relates to the acceptance of documents for filing. Nor does any of the powers prescribed by O 46 r 7AA (see s 35A(1)(h)). 15 The Full Court in Satchithanantham then went on to observe at [49] and [50]: [49] We respectfully adopt the reasoning of the Full Court in Manolakis and of the primary judge in this appeal. In the present circumstances 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. [50] Section 5 of the ADJR Act entitles a person who is aggrieved by a decision to which that Act applies to apply to this court or to the Federal Magistrates Court for an order of review of a decision on any one or more of the grounds enumerated therein. Section 3(1) of the ADJR Act defines the words "decision to which this Act applies" as being a decision of an administrative character, inter alia, made under an Act of the Commonwealth or by a Commonwealth authority or by an officer of the Commonwealth under legislation defined under "enactment" in s 3. There is no reason why a decision by an administrative officer under the Court Act would not satisfy the requirement of such definition. Nor is such a decision one which would be excluded from review by Sch 1 to the Court Act (referred to in the definition of "decision to which this Act applies" at (d) in s 3(1) of the ADJR Act). 16 Although the decisions referred to by the applicant post-date the introduction of the 2011 Rules and, therefore, deal with the exercise of a Registrar's power under r 2.26 of the 2011 Rules rather than O 46 r 7A(1) of the 1979 Rules, there is, in my view, no meaningful distinction between the effect of r 2.26 of the 2011 Rules and O 46 r 7A(1) of the 1979 Rules. 17 Further, it is to be observed that all three decisions relied on by Mr Nyoni are first instance decisions. 18 The reasons for decision in Druett are very brief, and Robertson J's attention was apparently not drawn to the Full Court decision in Satchithanantham because there is no mention of that decision in Druett. 19 In Reaper, Tracey J relied upon Druett in support of his obiter observation that the Court had power under s 35A(5) of the Federal Court Act to review a decision of a Registrar under r 2.26 of the 2011 Rules to reject a document for filing. Tracey J did refer to the Full Court decision in Satchithanantham, but only to the extent of recognising that the Full Court decision stood as an authority for the proposition that an aggrieved applicant could also review a Registrar's decision under r 2.26 to refuse a document for filing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Tracey J did not comment upon the specific observations by the Full Court at [48] and [49] in Satchithanantham (referred to at [14] and [15] above), as to the limitation on s 35A(5) as a source of power to review a Registrar's decision to refuse a document for filing. 20 In Haque, there was no reference by Bromwich J to the Full Court decision in Satchithanantham. 21 In light of the foregoing, I intend, therefore, to follow the reasoning in the Full Court decision in Satchithanantham. 22 It follows, therefore, that Mr Nyoni's application for review of the Registrar's decision insofar as it relies upon s 35A(5) of the Federal Court Act is misconceived. 23 However, counsel for the respondents said that the respondents were content for Mr Nyoni's application to be treated as an application for a review of the Registrar's decision under s 5 of the ADJR Act. 24 In support of an application for review under the ADJR Act, in his oral submissions, Mr Nyoni contended that his application to set aside Barker J's decision was based on the contention that Barker J's decision and orders did not reflect the intention of the Court and so the application was properly brought under r 39.05 of the 2011 Rules. Thus, said Mr Nyoni, his application was not an abuse of process nor frivolous and vexatious, and that the Registrar must be taken to have failed to have properly construed r 39.05 of the 2011 Rules in characterising Mr Nyoni's application as such, and in refusing to accept his application and supporting affidavit for filing. 25 In my view, it is clear beyond argument, that the Registrar did not err in finding that on the face of the documents submitted to be filed, Mr Nyoni's application to set aside the decision of the primary judge on any grounds referred to in r 39.05(c), (e), (g) and (h) of the 2011 Rules, was an abuse of process and frivolous and vexatious. The Registrar did not misconstrue r 39.05 of the 2011 Rules. The Registrar's decision was correct for the reasons which she gave. 26 Accordingly, Mr Nyoni's application for review of the decision of the Registrar of 24 August 2017 not to accept his application and affidavit for filing, is dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.