Pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth), the Registry be directed not to accept the applicant's application for an extension of time filed on 19 September 2024.
The application for an extension of time within which to challenge the Respondent's decision on 13 October 2023 to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) is dismissed.
There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[2]
INTRODUCTION
1 The applicant, Mr Peter Sandilands, seeks an extension of time within which to challenge a decision of the respondent, Registrar Nic Parkyn, to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCA Rules).
2 On 28 October 2024, the respondent filed a submitting notice, submitting to any order the Court may make save as to costs.
3 Following consent from the applicant in a letter dated 13 November 2024, I made orders on 21 November 2024 for the matter to be determined on the papers. I granted the applicant leave until 18 December 2024 to file any written submissions in support of his application. No submissions were filed.
4 The applicant is a self-represented litigant, and I am conscious of the difficulties he faces when navigating the rules and procedures of this Court. However, the documents filed by the applicant suffer from critical deficiencies. In his Form 67 application for an extension of time, under the heading "Details of application", the applicant has circled "[] It is not intended to serve this application on any [role of party eg Respondent]s". Moreover, the application contains no pleadings, particulars, or other information. The two supporting affidavits filed by the applicant are incorrectly witnessed as the witnesses to both affidavits have failed to identify in the jurats whether the applicant swore or affirmed his affidavits.
5 In the absence of submissions as to why an extension of time should be granted and for the reasons set out below, I find that the Registry should be directed not to accept the applicant's application for an extension of time filed on 19 September 2024, pursuant to r 2.27(e) of the FCA Rules.
] under rule 31.02 to lodge an application for an order for review under ADJR Act". Further, under the heading "Service on the [role of party eg Respondent", the applicant circled "[
[3]
BACKGROUND
6 This matter originated in an application by the applicant to file a proceeding in the Copyright Tribunal against the Commonwealth and the States for a determination of remuneration under s 183 of the Copyright Act 1968 (Cth). As Perram J (in his capacity as Deputy President of the Tribunal) set out in Sandilands, in the application of Sandilands [2022] ACopyT 3 at [2] (the Copyright Decision):
As Mr Sandilands explained, his contention was that he had sent a report to the Prime Minister in 2002. The report was prepared by Mr Sandilands whilst at the University of Western Sydney. He says that the Commonwealth and the States have acknowledged his report and he is therefore entitled to remuneration from the Tribunal in the sum of $120 million per annum. He says this sum should be awarded from 6 December 2002 and should be paid to him in the form of 10-year Treasury Bonds.
7 In the Copyright Decision, given on 7 June 2022, Perram J found that the applicant had failed to allege anything beyond that the Commonwealth and the States had acknowledged his report, which did not amount to a cognisable claim under the Copyright Act 1968 (Cth) (at [5]). In particular, the applicant had failed to identify the acts of reproduction and publishing that he said the Commonwealth or the States had engaged in, which was necessary before any question of remuneration under s 183(5) could be meaningful (at [4]). His Honour further held that the applicant's claim suffered several formal defects as a result of which it did not comply with the Copyright Regulations 2017 (Cth) (at [6]). Justice Perram therefore directed the Registrar not to accept the applicant's documents for filing in the Tribunal.
8 Subsequently, the applicant sought to file various documents in the Federal Court which were refused.
9 On 13 October 2023, the National Duty Registrar wrote to the applicant outlining the reasons for refusing to accept a Form 67 application for an extension of time and accompanying Form 59 affidavit for filing. The letter stated:
I refer to the Form 67 Application for an extension of time and Form 59 Affidavit that you sought to lodge in the Sydney registry of the Federal Court of Australia on 13 October 2023. The Registry referred your documents to me for consideration in my capacity as National Duty Registrar.
I have carefully considered the content of your documents and advise that I am unable to accept the documents pursuant to Rule 2.26 of the Federal Court Rules 2011.
Rule 2.26 of the Federal Court Rules 2011 provides that:
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 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.
I am satisfied having considered the content of the documents that the documents are on their face frivolous or vexatious. The draft form 66 attached to your application for an extension of time does not identify any legislative provisions relevant to your application or otherwise properly set out the basis for any alleged error. I consider that your application would be doomed to fail and it would constitute an abuse of process of the Court if it were accepted for filing.
Further, your affidavit dated 7 June 2023 has not been properly taken. The witness to your affidavit has failed to identify in the jurat whether you have sworn or affirmed your affidavit.
For the above reasons, I have refused to accept your documents for filing.
10 On 19 September 2024, the applicant sought to file an application for an extension of time in a proceeding against the respondent, Registrar Nic Parkyn, "under rule 31.02 to lodge an application for an order for review under the ADJR Act". The application is accompanied by an affidavit, signed by the applicant on 16 August 2024, which sets out, among other things, reasons for the applicant's delay in filing his application.
11 Subsequently, the applicant filed a further affidavit by him dated 22 October 2024. This affidavit annexed (among other things) three letters from the Registry dated 4 July 2024, 16 August 2024 and 4 September 2024 advising that the Duty Registrar had refused to accept documents for filing on the basis that there were only minor differences between those documents and those already refused for filing.
12 This affidavit also annexes letters written by the applicant to Perram J (in response to the Tribunal's decision) and the Prime Minister, and correspondence received by the applicant from the Attorney-General's Department. This correspondence is plainly irrelevant to the application before me.
13 On 28 October 2024, the Court also received a draft originating application for judicial review signed by the applicant on 14 March 2024 (the draft Form 66). The applicant detailed his claim as follows:
Failing to identify an item of evidence
Constructive failure to exercise jurisdiction
14 The draft Form 66 identifies the grounds for the application as "equitable remedy re intellectual property" and seeks orders in the terms "Pay copyright as lump sum of current value on a 10 year Treasury bond". The draft Form 66 identifies Registrar Parkyn as respondent and crosses-out the President of the Copyright Tribunal as respondent, even though the draft Form 66 is directed to relief which could be relevant only to the Tribunal decision.
15 In essence, I understand that, by the application which the applicant sought to file on 19 September 2024, he seeks an extension of time within which to seek judicial review of the Registrar's decision on 13 October 2023. By that decision, the Registrar refused to accept his Form 67 Application for an extension of time within which to seek judicial review of the Tribunal's decision and accompanying Form 59 Affidavit. Notwithstanding that the draft Form 66 received on 28 October 2024, and dated 14 March 2024, identifies Registrar Parkyn as the respondent, the only sensible way to read that document is that it is otherwise in the same terms as the original draft form 66 attached to the Form 67 application for an extension of time which the Registrar refused to accept for filing. In other words, the draft Form 66 sets out the relief sought by the applicant with respect to the Tribunal's decision if the extension of time within which to seek judicial review of that decision is granted, and the grounds on which that relief would be sought.
[4]
RELEVANT PRINCIPLES: EXTENSION OF TIME
16 As Thawley J explained in Kostov v Registrar of the Federal Court [2021] FCA 1559 at [11]-[13], in the context of an application for an extension of time to seek judicial review of a Registrar's decision:
…The Registrar's decision is of an administrative character and susceptible to review pursuant to s 5(1) of the ADJR Act - see: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; (2010) 268 ALR 222 at [49] (Marshall, Cowdroy & Buchanan JJ); Nyoni v Murphy [2018] FCAFC 75 at [32]-[37] (Barker, Banks-Smith & Colvin JJ).
The Court's discretion to extend time is unconfined by any express words. Any relevant matter may be taken into account….
One important consideration in considering whether to extend time is the merit of the proposed application.
17 Rule 31.02 of the FCA Rules states that:
(1) A person who wants to apply for an extension of time within which to lodge an application for an order of review under section 11(1)(c) of the AD(JR) Act must file an application for an extension of time, in accordance with Form 67.
(2) An application for an extension of time must be accompanied by:
(a) an affidavit stating:
(i) briefly but specifically, the facts on which the application relies; and
(ii) why the application was not filed within time.
(b) a draft application that complies with rule 31.01.
18 An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so. The discretion to extend time is not confined by express criteria and any relevant matter may be taken into account: Kostov at [12]. However, there are a range of considerations which may appropriately be taken into account in the exercise of discretion, and which are of varying weight depending on the circumstances of the particular case, namely:
(1) the length of the delay;
(2) whether the applicant has demonstrated an acceptable explanation for the delay;
(3) whether the respondent would suffer prejudice if the extension of time were granted; and
(4) the merits of the substantive appeal, if the extension of time was granted.
See, eg, Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).
19 With respect to the last of these factors, it will generally be the case that the merits of the proposed appeal should be approached in a reasonably impressionistic manner. Thus, in Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, Kiefel CJ, Gageler, Keane and Gleeson JJ explained at [17] that:
[I]t may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act 1958 (Cth)] (or s 477(2)) [powers to extend time]), it will often be appropriate to assess the merits of the proposed grounds of review at a "reasonably impressionistic level". That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.
(Citations omitted.)
[5]
DISPOSITION OF APPLICATION
20 The applicant in his affidavit dated 16 August 2024, sets out his reasons for delay in bringing this application as follows:
B Extension of time
Fundamentally the length of time taken to run the case was follows
(a) I am a pensioner and cannot afford legal fees
(b) I cannot get pro bono as do not intellectual property I e cannot. Get legal representation
(c) I have Parkison's disease and cannot write nor for that matter use the computer properly
21 It is understandable that a litigant in the circumstances outlined by the applicant would face considerable barriers in conducting a legal proceeding. Nonetheless, the length of delay remains significant. The decision of which the applicant appears to seek judicial review was made on 13 October 2023. The applicant commenced these proceedings on 19 September 2024, that is, over 11-months after the initial decision was made. In this regard, a lengthy delay such as in the present case requires "compelling merit of the substantive application to be demonstrated": AHZ21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 884 at [24] (Farrell J). The merits of the substantive application must be "exceptional" where an extension of time of many months is sought: AHZ21 at [27].
22 Turning to the merits of the proposed challenge, the substance of the applicant's proposed application is to challenge the Registrar's decision not to accept his documents for filing pursuant to r 2.26 of the FCA rules. Rule 2.26 relevantly provides that:
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.
23 I also explained in Keane v Registrar of the Federal Court of Australia [2024] FCA 1204 at [18]-[19] that:
The purpose of this rule, in common with O 46 r 7A of the Rules as previously in force, is to ensure that the Registrar may refuse to accept or issue a document without first obtaining authority from judge and thereby "to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court": Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15] (Lee, Whitlam and Jacobson JJ); see also Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [33] (Barket, Banks-Smith and Colvin JJ) and Ferdinands v Registrar Cridland [2022] FCAFC 80 (Ferdinands (FCAFC)) at [6] and [29] (Charlesworth, Burley and Cheeseman JJ).
While there is no definition of the words "vexatious" and "frivolous" in the Rules, White J in Ferdinands v Registrar Cridland [2021] FCA 592 (Ferdinands (FCA)) explained at [27]-[28] and [30] that:
… However, the term "vexatious proceeding" is defined in s 37AM(1) of the Federal Court of Australia [Act] 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section provides:
vexatious proceeding includes:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and
(d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.
…
As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. …
(Approved by the Full Court in Ferdinands (FCAFC) at [8].)
24 In my view, far from the proposed challenge to the Registrar's decision having "compelling merit", it is apparent on the face of the application for an extension of time that the proposed challenge to the Registrar's decision lacks any merit. The application does not identify any grounds on which that decision is challenged. Nor do the affidavits of 16 August 2024 or 22 October 2024, which make sweeping claims and are largely incomprehensible. The affidavits further suffer from the formal deficiency identified by the Registrar to which I referred at paragraph 4 above.
25 Furthermore, it is apparent, even from an impressionist perspective, that the Registrar's decision was correct. The draft Form 66 setting out the grounds on which the applicant would challenge the Tribunal's decision if the extension of time within which to seek judicial review of that decision is granted and which the Registrar rejected for filing simply fails to identify any basis for the alleged errors in the Tribunal's decision, is frivolous and vexatious, and has no reasonable prospects of success.
26 It follows that it would not be in the interests of justice to grant the extension of time which must therefore be refused.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.