Reaper v Luxton

1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 Mr Reaper has commenced an originating application seeking to review decisions made by a Registrar of this Court. The decisions sought to be reviewed are described in the originating application as decisions that the Registrar "refused to accept for filing an application for an extension of time to file a notice of appeal and disclose the procedure for bringing new evidence". Mr Reaper's originating application was supported by an affidavit made by him on 20 May 2016 and by written submissions dated 22 June 2016. He appeared on 23 June 2016 and in that hearing relied also on two letters and orally explained his submissions in response to questions from the Bench. Mr Reaper clarified in oral submissions that the decisions he sought to review were (a) the refusals by the Registrar to accept repeated attempts by Mr Reaper to institute a separate proceeding to have set aside a judgment of the Federal Circuit Court of Australia and (b) the Registrar's response in a letter dated 11 March 2016 to Mr Reaper's request in an email dated 8 March 2016 to be told what procedure he needed to follow to institute separate proceedings to have set aside the judgment of the Federal Circuit Court. 2 Mr Reaper and the Registrar were informed by an email from the Court after the hearing on 23 June 2016 that the hearing of his application was to be relisted on 28 June 2016 to give him an opportunity to make any further submissions he wished to make on whether the decision, to the extent that it was described in his application as the Registrar's refusal to "disclose the procedure" for bringing new evidence, could be the subject of an application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") relating to a power of the Court that was exercisable by the Registrar pursuant to s 35A(3). 3 On 27 June 2016 the Registrar applied under r 12.01(3) of the Federal Court Rules 2011 (Cth) ("the Federal Court Rules") for leave to withdraw a notice dated 6 June 2016, which he had previously filed under r 12.01, submitting to any order that the Court might make in Mr Reaper's proceeding. The Registrar's application was supported by an affidavit by Mr Ross McClure dated 27 June 2016 stating that the leave to withdraw the submitting notice was limited to making "short oral submissions at the resumed hearing confined to the Court's power pursuant to s 35A(3) of the Federal Court of Australia Act 1976 (Cth) to review the respondent's actions in responding to the applicant's 8 March 2016 email". The Registrar appeared by counsel at the resumed hearing on 28 June 2016 and was given leave to withdraw the submitting notice and was heard on the Court's power under s 35A(3) in relation only to Mr Reaper's application to review the Registrar's response to Mr Reaper's request to be informed about the procedure to be followed to institute separate proceedings to set aside a judgment of the Federal Circuit Court. 4 Mr Reaper did not appear at the resumed hearing of his application on 28 June 2016. Mr Reaper informed the Court, by an email sent at 3.31am on 28 June 2016, that he would not be appearing on that day. He also stated in that email that it was his first opportunity to check his email since arriving home after the hearing on the 23rd and that he had become ill. His email went on to say: If any aspect of the matter proceeds today, perhaps forwarding a copy of the transcript would assist in bringing the matter to a conclusion quickly. I am sorry for the inconvenience Mr Reaper was informed by email before the time fixed for the commencement of the resumed hearing that the matter would be heard as listed. Mr Reaper did not appear when the matter was called for further hearing at 10.00am on 28 June 2016 but an appearance was announced for the Registrar who applied for leave to withdraw the submitting notice and to make short submissions as mentioned above. Mr Reaper was subsequently sent an email in the afternoon of 28 June 2016 attaching a copy of the transcript of the resumed hearing which had taken place in the morning. The transcript contained the submissions that had been made by counsel on behalf of the Registrar on the limited question of the Court's power under s 35A(3) to deal with the second aspect of Mr Reaper's application for review. Mr Reaper was given leave by that email on 28 June 2016 to file any submissions in response by 1 July 2016. 5 Mr Reaper filed, by email on 1 July, a short document dated 30 June 2016 headed "Further Submissions of the Applicant". Mr Reaper's submissions were: 1. The Applicant does not seek a review of the Respondent's decision under section 35A of the Federal Court of Australia Act 1976 (Cth). 2. On that basis the Applicant submits that the Respondent's interlocutory application dated 27 June 2016 should not be entertained. It was not clear, given the history of dealings between Mr Reaper and the Court, whether these submissions were intended by Mr Reaper as a discontinuation of the proceeding. Mr Reaper is not legally qualified and was invited to clarify his position. Mr Reaper responded at 10.11pm on Friday, 1 July 2016 by saying: I do not want to discontinue the whole of the application or any part of it. My application seeks a review of Registrar's decisions under s.5 of the ADJR Act. My application does not seek that Registrar's decisions be reviewed under s.35A of the FC Act, which my further submissions dated 30 June 2016 reflect. Thank you for allowing me to clarify my position Mr Reaper's application and affidavit in support had previously referred to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") but had addressed no submission directed to any of the criteria necessary to be established by him to obtain relief under that Act. His application did not exclude reliance upon s 35A of the Federal Court Act and it is desirable (in view of the fact that Mr Reaper is not legally qualified or legally represented) to deal with his application as relying upon provisions as well as the Judicial Review Act. However, the substance of his application for judicial review under the Judicial Review Act depends upon the same considerations as those arising under s 35A of the Federal Court Act. In each case the basal questions are (a) whether the Registrar was correct to refuse to accept Mr Reaper's application to file a notice of appeal, and (b) whether the Registrar's response to Mr Reaper's request to be told what procedure to follow was a decision able to be reviewed (whether under s 35A or under the Judicial Review Act). 6 Mr Reaper's applications for judicial review arise in the context of his bankruptcy and the Court's subsequent decision refusing his application for an annulment: see Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13. There have since been other proceedings involving Mr Reaper in the Court in which he has sought to challenge the bankruptcy. Orders were made against Mr Reaper by the Federal Circuit Court on 18 September 2015 and 9 December 2015 in Vrsecky v Reaper & Anor (No.3) [2015] FCCA 2807 and Vrsecky v Reaper & Anor (No.4) [2015] FCCA 3067. Mr Reaper lodged a notice of appeal in the Federal Court on 7 October 2015 against the orders which had been made on 18 September 2015 by the Federal Circuit Court, and on 28 December 2015 he lodged a notice of appeal in the Federal Court against the orders which had been made on 9 December 2015 by the Federal Circuit Court. On 30 December 2015 Mr Reaper filed an amended notice of appeal against the 9 December 2015 judgment in which he removed his challenge to the decision of the Federal Circuit Court to the extent that he had previously maintained that the judgment had been procured by, and was tainted with, fraud. On 11 January 2016 Registrar Allaway approved for filing the further notice of appeal in the Federal Court with those amendments. 7 Mr Reaper explained at the hearing on 23 June 2016 that his reason for amending his notice of appeal by removing the allegations of fraud was based upon having understood that a challenge to a judgment for fraud required separate proceedings to be brought rather than being contained as a ground in a notice of appeal. On 25 February 2016 Mr Reaper wrote to the Registrar noting that r 39.05 of the Federal Court Rules provided that the Federal Court could vary or set aside a judgment or order after it had been entered if it was obtained by fraud. The letter from Mr Reaper, who is not legally qualified, also referred to a number of legal authorities in which it had been said that there was a need for independent proceedings to be commenced to impeach a judgment obtained by fraud. His letter included a passage from DJL v The Central Authority (2000) 201 CLR 226 where Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed at [36]: The Court of Chancery also had jurisdiction to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment role of the common law court. The exercise of this jurisdiction involved the institution of a separate proceeding. […] The letter referred also to the fact that the Federal Court had previously refused to entertain an earlier application by him in which he had sought to rely upon fraud. In those proceedings he had been informed that such issues required that they be brought in a separate proceeding and in proper form: see Reaper v Luxton [2015] FCA 430 at [22]. It is clear from this correspondence that what Mr Reaper wanted to do was to initiate separate proceedings to challenge the decision of the Federal Circuit Court by claiming that it had been obtained by fraud and, it seems, to rely upon new evidence in doing so. It is also clear from his correspondence that Mr Reaper thought that the separate proceedings could be initiated in the Federal Court and that they could be initiated by filing a separate document. 8 On 10 February 2016 Mr Reaper sought to file an application for an extension of time to file a notice of appeal in the Federal Court against the September 2015 judgment of the Federal Circuit Court on the grounds that the orders were procured by and were tainted with fraud and collusion. The Registrar refused to accept that application on 16 February 2016 on the grounds that what was sought by the documents constituted an abuse of process of the existing appeal in the Federal Court. The subsequent letter from Mr Reaper dated 25 February 2016, referred to above, reveals that Mr Reaper thought that his 10 February 2016 application was an independent proceeding of the kind contemplated by the authorities to which his letter referred and which had led him to amend his original notice of appeal. His application on 10 February 2016, however, did not institute a separate proceeding in the proper forum but purported to be an additional notice of appeal in an existing appeal in the Federal Court in which the fraud allegations could not be maintained. The Registrar may not have been aware what Mr Reaper was seeking to do but the Registrar was correct in the conclusion that what Mr Reaper sought to do could not be done. The Registrar's refusal to accept the documents was therefore correct although it might have been desirable if the Registrar's reasons had more directly, and perhaps more fully, engaged with what Mr Reaper had been attempting to achieve. Mr Reaper's application for judicial review of the decision will, therefore, be dismissed under the Judicial Review Act and under s 35A of the Federal Court Act. 9 What Mr Reaper wants to do, amongst other things, is to have set aside the judgment of the Federal Circuit Court against him on the grounds that it was obtained by fraud and, it seems, to do so by relying upon what Mr Reaper contends to be new evidence. He has an appeal in the Federal Court from that judgment of the Federal Circuit Court, but he also wants to have it set aside on a basis that requires the institution of a separate proceeding in the proper forum by the proper process. There is an important distinction between an appeal and an action to set aside a judgment: see Halsbury's Laws of Australia, 325 Practice and Procedure, 'Finality of Judgments and Orders' [325-9125] n9 (as at 4 July 2016). Mr Reaper has filed an appeal to the Federal Court of Australia from the decision of the Federal Circuit Court but his objective of initiating separate proceedings to set aside the Federal Circuit Court judgment on the grounds of fraud on the basis of new evidence (see Halsbury's Laws of Australia, 325 Practice and Procedure, 'Fraud or Fresh Evidence' [325-9130] (as at 4 July 2016)) requires something other than for him to file a separate document as an appeal in the Federal Court. Separate proceedings to set aside a judgment obtained by fraud, or where justified by fresh evidence, are usually to be commenced by separate proceedings in the court which made the judgment which is sought to be set aside (as provided by such rules as r 16.05(b) of the Federal Circuit Court Rules 2001 (Cth): see also Monroe Schneider (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234). That, of course, is not to say that Mr Reaper has sufficient grounds upon which to succeed in making such an application but only that he has failed to make the application he wants to make. 10 Mr Reaper seems not to have understood why he had not succeeded in instituting a separate proceeding by what he had done and unsuccessfully sought to lodge the same proceeding on other occasions including on 8 March 2016. It can be assumed that it was Mr Reaper's lack of understanding that led Mr Reaper to ask the Registrar what the procedure was. On 11 March 2016 the Registrar wrote to Mr Reaper referring to the documents lodged by Mr Reaper on 8 March 2016 and informed Mr Reaper of the Registrar's refusal to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules for the same reasons as the Registrar had previously given. Mr Reaper's attempt on 8 March 2016 to re-lodge his application seeking to rely upon fraud was accompanied by an email in which Mr Reaper asked: What is the procedure for appealing a decision when new evidence has been obtained? The Registrar correctly, and properly, declined to answer that question on the basis that it was "in substance a request for legal advice". It is that response that is also the subject of Mr Reaper's present application for judicial review in that part of his application in which he seeks to have reviewed the Registrar's refusal to "disclose the procedure for bringing new evidence". 11 The response from the Registrar which Mr Reaper sought to review as a refusal to provide information is found in the last paragraph of the Registrar's letter to Mr Reaper dated 11 March 2016. The Registrar wrote there: Your email dated 8 March 2016 includes the following question: "What is the procedure for appealing a decision when new evidence has been obtained?" Although put as question about procedure, this is in substance a request for legal advice. That is, having made a decision to appeal, you want to know how to go about doing so in reliance upon particular grounds. It would not be appropriate for the registry to provide you with legal advice, and accordingly, it will not do so. You have, of course, already filed multiple appeals in respect of orders made in Federal Circuit Court of Australia proceeding MLG 931/2013. On 4 March 2016 Mr Reaper had written to the Registrar repeating Mr Reaper's understanding that he needed to institute independent proceedings to impeach a judgment obtained by fraud. It is not surprising that Mr Reaper might not understand the difference between an appeal and a separate proceeding to set aside a judgment however clear the difference may appear to legal practitioners. The difficulty for someone untrained in law to understand the difference may also be increased by the fact that there is an overlap in the orders that may be obtained in both proceedings. Thus, an order setting aside a judgment by a new proceeding may also be obtained on an appeal under, for example, r 39.05 (to which Mr Reaper had referred in his correspondence with the Registrar). His continued attempts to have set aside the judgment of the Federal Circuit Court on the grounds of fraud by lodging documents in the form of an appeal to the Federal Court will, however, continually be met by their rejection on the basis that such an application takes the form of an appeal from a decision where there is already an appeal rather than being the institution of a separate proceeding in a court with jurisdiction to entertain such a proceeding. 12 Mr Reaper's formal application to review the Registrar's response to Mr Reaper's request for information about the procedure to "disclose the procedure for bringing new evidence" must, however, be rejected because the Registrar's response was neither (a) a decision to which the Judicial Review Act applies nor (b) the exercise of any power of the Court which the Court may review under s 35A(5). The Court does not have a general power to review all decisions of the Registrar. In Dahler v Australian Capital Territory [2016] FCA 257, Katzmann J said at [24]-[25]: 24 Section 35A(6) does not confer a general power of review of decisions of a Registrar. The purpose of the review power in that subsection is to ensure that decisions of officers of the Court in the exercise of their delegated jurisdiction, powers and functions are subject to review or appeal by a judge or judges of the Court: see Harris v Caladine (1991) 172 CLR 84 at 95 (Mason CJ and Deane J). 25 With two exceptions, none of the powers Ms Keys sought to have reviewed under s 35A(5) was a power exercised under subs (1), that is to say, a power of the Court which the Court or a Judge has directed be exercised by a Registrar. A taxing officer does not exercise such a power: Territory Realty Pty Ltd v Garraway (No 3) [2013] FCA 914 at [21] (Mansfield J). Self-evidently s 35A does not apply to a power given directly to a Registrar, such as the power conferred by r 40.21(2) to direct that the taxation of the bill proceed. Moreover, even the broadest paragraph of s 35A(1) - para (1)(h) - does not apply to all the powers of the Court. Rule 3.01 provides that only the powers listed in that rule are prescribed for the purposes of s 35A(1)(h). The only relevant powers prescribed for these purposes are the power conferred by r 2.28 to make an order to remove from a court file documents accepted for filing and the power conferred by r 2.43 to order that money be paid out of the Litigants' Fund: see r 3.01(1)(b) and Sch 2 items 102A and 106 An application to the Court under s 35A(5) depends upon the Registrar having exercised one of the powers of the Court under s 35A(1). Section 35A(5) provides: 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. Section 35A(3) authorises the Registrar to exercise the powers of the Court in s 35A(1) (subject to the limitation in s 35A(2) which is not relevant for present purposes). 13 The power of the Court which the Registrar may exercise in s 35A(1) are: (a) the power to dispense with the service of any process of the Court; (b) the power to make orders in relation to substituted service; (c) the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person; (d) the power to make orders in relation to interrogatories; (e) the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings; (f) the power to make an order as to costs; (g) the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court; (h) a power of the Court prescribed by Rules of Court. The power of the Court prescribed by the rules of the Court referred in (h) are those found in r 30.01 of the Federal Court Rules and in Schedule 2. None of those powers were being exercised when the Registrar responded to correspondence from Mr Reaper in which Mr Reaper asked about the procedure to challenge the judgment by institution of a separate proceeding. 14 The Registrar's response to Mr Reaper's request to be told of the procedure for appealing a decision was not a decision to which the Judicial Review Act applies. Sections 5 and 6 of the Judicial Review Act permits judicial review of decisions, and relevant conduct in relation to decisions, to which the Judicial Review Act applies. Those decisions are defined in s 3 to be, relevantly, decisions of an administrative character made or required to be made under an enactment (as defined). The Registrar's response to Mr Reaper's request was not such a decision and Mr Reaper has not shown it to be otherwise or made any submission suggesting how it might be. The Registrar's decision not to accept a document may be reviewable under the Judicial Review Act as a decision under an enactment (see Barkla v Colbran [2015] FCA 1470, [9]; Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222, [43]-[49]; Reaper v Luxton [2015] FCA 430, [16]) but the refusal to provide the information Mr Reaper sought is not. Furthermore, the Registrar was correct to describe the request by Mr Reaper as a request for legal advice which the Registrar correctly declined to provide. What process may be open to Mr Reaper depends upon an inquiry into Mr Reaper's particular facts and circumstances which the Registrar is not authorised to, and should not, inquire into. 15 Accordingly, the proceeding will be dismissed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.