Pearson v Ng

2.2 Procedural steps in the application for judicial review 9 The application for judicial review was listed for a case management hearing on 29 July 2015 at 9.30am. On 7 July 2015, the Court Registry wrote to Mr Pearson using the email address provided on Mr Pearson's application for judicial review, indicating that the Court proposed to reschedule the case management hearing to 5 August 2015 at 9.30am and asked that Mr Pearson "please confirm receipt of this email and indicate whether you foresee any difficulty in attending on the rescheduled listing date". No response was received and a further email was sent to Mr Pearson on 21 July 2015, which included the email of 7 July 2015, and again sought confirmation of the receipt of the email. On 24 July 2015 the Registry sent Mr Pearson copies of these two emails by express post to the postal address provided on Mr Pearson's application for judicial review. 10 On 3 August 2015 the Registry wrote to Mr Pearson via email confirming that the case management hearing was listed for 5 August 2015 at 9.30am. 11 Mr Pearson did not appear at the case management hearing on 5 August 2015. Nor were any short minutes of order provided in advance of that hearing, despite the invitation to do so in the email from the Registry on 3 August 2015. I therefore made the following orders: THE COURT ORDERS THAT: 1. On or before 4.00pm on Wednesday, 19 August 2015, the applicant is to file and serve an affidavit annexing the documents the applicant sought to file which are the subject of his application for judicial review. 2. On or before 4.00pm on Wednesday, 19 August 2015, the applicant is to file and serve written submissions of no more than 6 pages in length in support of his application for judicial review. The submissions are to be clearly legible. 3. The application for judicial review will be decided on the papers. 12 The orders also noted that: 4. There was no appearance by the applicant at the case management hearing listed at 9.30am on 5 August 2015 despite the matter being called three times outside the Court and the case management hearing commencing at 9.35am. 5. If there is no compliance with orders 1 and 2 the application may be dismissed. 13 On the same day the Registry sent a copy of these orders to Mr Pearson's email and postal address as provided on his application for judicial review. No affidavit or submissions pursuant to orders 1 and 2 were received. 14 On 26 and 27 August 2015 Mr Pearson sent letters to the Court which raised, among other things, concerns regarding the rescheduling of the case management hearing from 29 July 2015. On 15 September 2015 the Court responded to Mr Pearson, indicating that I would permit Mr Pearson to informally seek an extension of time within which to file the affidavit and submissions referred to in orders 1 and 2 above. The letter indicated that I would require a written submission from Mr Pearson within 5 working days of the date of the letter setting out the reasons why such an extension of time should be granted, together with an indication of the length of the extension sought. The letter also stated that "[i]n the meantime, Justice Perry has intimated that she will not proceed to determine your application for judicial review." 15 The Court did not receive any submission seeking an extension, nor any affidavit or submission pursuant to the 5 August 2015 orders. Accordingly, it is appropriate to decide the application on the papers before me in accordance with order 3 of the orders made 5 August 2015. The entirety of the papers filed in the proceedings are: (1) the application for judicial review filed by Mr Pearson on 24 June 2015; (2) an affidavit sworn by Mr Pearson on 23 June 2015 and filed on 24 June 2015; and (3) the submitting notice filed by the Registrar on 3 August 2015.

3.1 Jurisdiction to entertain the application for judicial review 16 The Registrar's decision not to accept the originating application for filing is administrative in nature and not judicial: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; (2010) 268 ALR 222 (Satchithanantham) at 230 [49] (Marshall, Cowdroy and Buchanan JJ). Mr Pearson's application for judicial review does not state whether judicial review is sought in this proceeding pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), s 39B of the Judiciary Act 1903 (Cth) or some other law. However, I note that the Full Court in Satchithanantham at 230-231 [50] considered that a decision of the Registrar (without judicial direction) to refuse to accept for filing a document entitled "notice of appeal" on the ground that it was an abuse of process was a decision susceptible to review under the ADJR Act. I am therefore prepared to assume in the applicant's favour that he seeks judicial review of the Registrar's decision under the ADJR Act: see also by analogy Reaper v Luxton [2015] FCA 430 (Reaper) at [15] (Tracey J). It may also be that the Registrar's decision is susceptible to review pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth): Reaper at [16]. In any event, it is necessary for the applicant to show some form of reviewable error by the Registrar.

3.2 Ground 1: "The Registrar's decision was manifestly unreasonable" 17 Under r 2.27 of the Federal Court Rules 2011 (Cth), 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. 18 In his letter dated 3 June 2015, the Registrar explained that in his view Mr Pearson's originating application was incomplete in that it failed to identify "any cause of action" or refer to "a Commonwealth law which you rely upon to enliven the jurisdiction of the Federal Court of Australia". The Registrar also explained if Mr Pearson wished to press the originating application, he should include that information in a new application and return it to the Registry for consideration. 19 The onus lies upon Mr Pearson to demonstrate error in the Registrar's decision not to accept his originating application for filing. Mr Pearson has manifestly failed to discharge that onus by demonstrating relevantly that the decision was unreasonable. First, the Registrar's reasons for not accepting the originating application for filing do not on their face establish that the decision was unreasonable. It is trite that the Federal Court cannot entertain an application in respect of which it has no jurisdiction and it is not therefore unreasonable for the Registrar to not accept an originating application on the ground that it fails to identify any cause of action or Commonwealth law relied upon to enliven the Court's jurisdiction. Secondly, there is no other evidence before the Court which establishes that the Registrar's decision was unreasonable. The applicant has not sought to tender the originating application. Nor is any cause of action identified in the applicant's affidavit sworn on 23 June 2015. The applicant seeks to allege in a general way mismanagement and malpractice in a number of Federal Government departments but does not suggest that his interests have been affected. Rather the application's focus is said to be with the treatment "of others". Nor does he identify any cause of action in deposing that that the application "also deals with the manner in which the Commonwealth employs, instructs & monitors its legal representative" and the way in which they conduct themselves.

3.3 Ground 2: "The applicant was denied procedural fairness" 20 It is well established that procedural fairness requires only the provision of an opportunity to be heard and does not require that the person to whom it is extended take advantage of that opportunity: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42] (Giles JA, with whom the remainder of the Court agreed). In the Registrar's letter, Mr Pearson was advised of the grounds on which the Registrar had declined to accept the originating application for filing and afforded an opportunity to re-submit his originating application for filing once complete if he wished to press the claim. As such, there is no merit in the allegation that the applicant was denied procedural fairness.

3.4 Ground 3: "The Registrar's demand for inclusion of the legislation sections was beyond the Court's public documents & Practice Note CM 2" 21 This ground of review appears to confuse the need to identify a cause of action or law to enliven the Court's jurisdiction, with the requirements relating to the provision of a list of authorities, including cases and legislation, before a final hearing in accordance with Practice Note CM2. This confusion is confirmed by Mr Pearson's affidavit sworn 23 June 2015 in which he states that: The Registrar did not act in accordance with the Court's Practice Note CM2 which states "This Practice Note applies to all final hearings including appeals" referring to list of authorities, citation of cases, and legislation for proceedings generally. 22 Contrary to Mr Pearson's understanding, it is apparent from the Registrar's letter that the originating application was not rejected for filing for a failure to provide a list of authorities.

3.5 Ground 4: "Demonstrated bias and prejudice" 23 Mr Pearson also alleges "[d]emonstrated bias and prejudice" as a ground of judicial review. To the extent that actual bias is alleged, not only is no basis for the allegation identified. Nothing in the material before me supports so serious an allegation against the Registrar. In this regard, even allowing for the applicant being a litigant in person, the scandalous and unsubstantiated allegations made against various Registry staff in the applicant's affidavit are inappropriate and suggestive of an inability to accept that others in good faith may take a different view about certain things: see by analogy Mansfield J in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42; [2010] FCA 413 at 50 [34]. As Gyles, Stone and Buchanan JJ stated in Bahonko v Nurses Board of Victoria [2008] FCAFC 29 at [10]: The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not [sic] be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all. 24 Any allegation of apprehended bias, that is, that a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to a resolution of the question, must also be firmly established: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 135-136 [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (approving R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554); Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at 437 [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ) (by analogy). 25 In the present case, the Registrar's letter advising of his decision suggests that the Registrar applied an independent and impartial mind to a consideration of whether the originating application ought to be accepted for filing. In particular, the reasons given are rational, the letter explains that the applicant's concerns are to be brought to the Chief Justice's attention, and the applicant is given a further opportunity to address the deficiencies in the originating application and seek again to file the documentation, should he wish to do so. In my view, there is no merit in the allegation that the Registrar's decision is tainted by actual or apprehended bias.

4. CONCLUSION 26 For these reasons, the application for judicial review of the Registrar's decision not to accept the originating application for filing is dismissed. Given the Registrar's submitting appearance, there is no order as to costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.