Satchithanantham v National Australia Bank Limited

Facts relating to present appeal 9 By application filed by the appellant in the Federal Magistrates Court of Australia the appellant again sought to challenge the sequestration order. Simultaneously the appellant sought an order annulling the bankruptcy and claiming damages against the NAB. On 16 June 2009 Driver FM dismissed the application. 10 On 7 July 2009 the appellant attempted to file in the Sydney Registry of this Court a document entitled 'Notice of Appeal' (which is hereafter referred to as the 'proposed notice of appeal') challenging the decision of Driver FM made on 16 June 2009. However, the second respondent ('the Registrar') rejected such document. By letter to the appellant dated 7 July 2009 the Registrar provided the following information: The document [referring to the proposed notice of appeal] is not accepted for filing pursuant to Order 46 rule 7A (1) of the Federal Court Rules as it is an abuse of process:

"It is an abuse of process because it is doomed to fail; Walton v Gardiner (1993) 177 CLR 378".

"A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious."

11 On 30 July 2009 the appellant filed an originating process entitled 'Application for an Order of Review' ('the application'), stated to be made pursuant to Order 54, presumably of the Federal Court Rules ('the Rules'). Order 54 of the Rules prescribes the manner of making an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). Such application sought orders seeking to overturn the decision of the Registrar made on 7 July 2009 ('the decision') pursuant to which the applicant's proposed notice of appeal was rejected. 12 The appellant's application was heard by the primary judge on 15 September 2009. On 14 October 2009 the primary judge dismissed the application on the ground that the appellant had failed to make out any ground for judicial review of the Registrar's decision to reject the appellant's proposed notice of appeal. That decision is the subject of the appeal now before the Court.

Findings of the primary judge 13 The primary judge observed that the appellant made no reference to the ADJR Act as providing any basis for setting aside the decision of the Registrar. Nevertheless the primary judge considered whether the decision was one to which the provisions of s 5(1) of the ADJR Act applied. His Honour concluded (at [31]) that the decision for which review was sought was a decision of an administrative character and was accordingly susceptible to judicial review under the ADJR Act. 14 His Honour also concluded that O 46 r 7A(1) of the Rules bestowed power upon the Registrar to refuse to accept the proposed notice of appeal. Order 46 rule 7A(1) relevantly provides: Refusal to accept document for filing

(1) A Registrar may refuse to accept a document submitted for filing (including any document that, if accepted for filing, would become an originating document), or refuse to issue a document, if the Registrar considers the document to be an abuse of the process of the Court, or to be frivolous or vexatious:

(i) any document submitted for filing with the document; or

(ii) any document mentioned in the document or in any document mentioned in subparagraph (i).

15 His Honour found that the Registrar had formed the opinion that the appellant's proposed notice of appeal constituted an abuse of process. His Honour at [37] also concluded that, in the exercise of the power bestowed upon the Registrar by O 46 r 7A, it was permissible for the Registrar to reject the proposed notice of appeal, it being an 'originating document' within the meaning of O 46 r 7A of the Rules. 16 The NAB had submitted that the Court possessed power to review the decision pursuant to s 35A of the Federal Court of Australia Act 1976 (Cth) ('the Court Act'). That section relevantly provides: Powers of Registrars

(1) Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

(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;

(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.

(2) A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar.

(5) 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.

(6) The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

17 Section 35A accordingly enables the Court to review, either on the application of a party to the proceedings (s 35A(5)) or of its own motion (s 35A(6)) the exercise of power by a Registrar. Such power is exercisable in respect of the powers provided to a Registrar on the direction of the Court or a judge (see s 35A(1)). His Honour found that this section did not apply, since there had been no direction given by the Court or by a judge. Accordingly the decision was not reviewable under s 35A(6). 18 At [49] the primary judge said: The power to reject a document presented for filing given to the Registrar under O 46 r 7A(1) is not a power of the Court within the meaning of that expression in s 35A(1) of the Act. It is a power given to the Registrar directly by the Federal Court Rules. Section 35A is intended to deal with powers of the Court other than powers already specifically given to the Registrar under the Rules. Furthermore, even if it were such a power, it does not fall within the specific powers referred to in s 35A(1)(a) to (h) of the Act. Finally, in this case, the second respondent did not act as she did pursuant to a direction from a Judge. For s 35A(1) to be engaged, there must first be a direction given by the Court or a Judge.

19 His Honour observed that there was no evidence to suggest that the decision was made otherwise than 'on the face of the document' (see O 46 r 7A(1)(a) of the Rules). Nor was there any evidence to suggest that the Registrar did not actually and honestly form the opinion which was expressed in the letter to the appellant rejecting the proposed notice of appeal. 20 His Honour accordingly concluded that there was no ground contained in s 5(1) of the ADJR Act which would support the relief claimed by the appellant and observed that the appellant would have no entitlement to a review of the merits of the decision on an application for judicial review.

Appeal to the Full Court 21 The appellant filed his Notice of Appeal from the primary judge's decision on 4 November 2009 and the hearing of the appeal was fixed for 11 May 2010. On 4 May 2010 the appellant filed a Notice of Motion seeking to vacate the hearing date for a variety of reasons, as referred to in his affidavit filed in support of the motion. The motion to vacate the hearing of the appeal was set down to be heard on 11 May 2010 before the hearing itself commenced. 22 Before the Court on 11 May 2010 there was no appearance by the respondent and the Court proceeded to hear the appellant's argument in support of his Notice of Motion. However, after the Court sought information from the appellant relating to his motion he informed the Court that he was prepared to proceed with the appeal. Accordingly the motion was dismissed by the Court. 23 The Court then addressed the issues raised by the Notice of Appeal. The appellant informed the Court that there were two issues which he wished to raise in support of his appeal in addition to the grounds already filed. The appellant claimed that the Registrar had not appeared before the primary judge and that such non-appearance resulted from the NAB protecting her. 24 Secondly, the appellant claimed that the NAB's Notice of Motion filed on 11 September 2010 ('NAB's motion') which sought a dismissal of the application before the primary judge had not been considered by the primary judge. 25 Addressing these two issues (of which the respondent had no notice), the Court finds that the first issue raised by the appellant in his oral submissions has no foundation. As to the second issue, it is clear that there was no basis for the primary judge to determine NAB's motion for the dismissal of the application because the orders of the primary judge achieved that result, namely dismissal of the appellant's application before him. It therefore became unnecessary for the primary judge to hear and determine NAB's motion. 26 The appellant informed the Court that he relied upon the remaining grounds of his Notice of Appeal although he did not address any submissions to them. The Appellant made it plain that his real objective of the appeal was to have his bankruptcy set aside. The appellant maintained that he was not indebted to the NAB despite the judgment of the Supreme Court. 27 Although the appellant made no submissions in respect of the remaining grounds of the appeal, the Court will refer to them in the following paragraphs.

Notice of Appeal 28 The appellant's Notice of Appeal lists 24 grounds. The appeal has apparently been prepared by the appellant who has not been legally represented throughout these proceedings. As a result, the grounds of appeal do not clearly articulate any issue of law arising out of the decision of the primary judge. The Court will nevertheless refer to the grounds contained in the application. 29 Ground 1 relates to observations of the primary judge concerning the litigation history of the appeal to the Court of Appeal and of the special leave application to the High Court. No valid ground of appeal is raised. 30 As to ground 2 it is alleged that the primary judge erred in law in failing to give any weight to his submissions relating to the cost order against him of $10,000. The appellant states that he was not a party to proceedings in respect of the costs order. Viewed in the light of the history of these proceedings, such ground is simply untenable. 31 Ground 3 alleges that the primary judge erred in law in dismissing the application. The ground alleges that such dismissal was 'denial of natural justice' because the real issue amounted to 'apprehended bias of the second respondent who had adopted such unbalance decision then, without having referred or inspected the court file SYG 786/09 below then' [sic]. The Court notes that before the primary judge, the appellant relied upon his supporting affidavit sworn 15 September 2009. Amongst other allegations, the appellant alleges that the Registrar had stated to him on 7 July 2009 that he could apply for a review of the decision to refuse filing of the proposed notice of appeal. The appellant relied upon such statement together with the alleged refusal of the Registrar to examine his file in support of his claim of a denial of natural justice and apprehended bias. 32 The conversation alleged between the appellant and the Registrar which took place when the proposed notice of appeal was rejected does not give rise to any basis for review. The remainder of this ground relates to events which occurred in other Courts. 33 The Appellant seems to have prepared his application before the primary judge as an appeal against the Registrar's decision rather than as an application for review. No claim for review of the Registrar's decision was made under the ADJR Act. Although the primary judge found that the ADJR Act would apply to the Registrar's decision, his Honour found that there was no ground adumbrated in s 5(1) of the ADJR Act which could have supported the appellant's claim. The Court cannot discern any reviewable error on the part of the primary judge in so concluding. 34 Ground 4 of the Notice of Appeal states inter alia: The real issue here before this court today as to this appeal from that the annulment of the appellant's bankruptcy under the s153B of the bankruptcy act and the discharge of such bankruptcy under the s 149, as to the orders sought in the matter SYG 786/09 in the court below, before his honor driver FM, before the second respondent and before his honour Foster J [sic].

35 Such issue is not one which is before this Court, nor was it the subject of the proceedings before the primary judge. The only issue before the primary judge was whether the appellant was entitled to seek a review of the Registrar's decision. The hearing before the primary judge was not an occasion for the appellant to challenge the judgment already made against him in the Supreme Court nor to challenge the making of the sequestration order. The appellant has already unsuccessfully challenged the bankruptcy notice (before Edmonds J) and the making of the sequestration order (before Stone J). 36 Grounds 5, 6 and 7 seek to challenge various findings of the primary judge but none elucidate in a meaningful way any arguable ground of appeal which would bear upon his Honour's ultimate conclusion. Similarly grounds 8, 9 and 10 raise no arguable issue. Ground 11 canvasses the correctness of the decisions previously made both in the Federal Magistrates Court and in the Court of Appeal. These are not relevant issues for this appeal. 37 The remaining grounds of appeal (12 to 24 inclusive) similarly raise no valid ground of appeal. They are meaningless assertions and fail to identify any error of law arising out of the decision under appeal.

Exercise of Registrar's power under O 46 r 7A 38 Despite the observations of the Court in relation to the grounds of appeal, as the decision under appeal relates to the practice and procedure of this Court, the Court makes the following observations. 39 In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 the Full Federal Court at [15]-[17] referred to the purpose of O 46 r 7A and the consequence of the exercise of that power. Those paragraphs state: 15. The rule in its current form removed a clog on the Registrar's discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O46 is directed to administration of registries of the Court. The purpose of r7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.

16. No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a Judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.

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 At [19] the Court held: It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.

41 In Bahonko v Stergjov [2007] 1717 Lander J said of a direction given by a judge pursuant to O 46 r 7A: 58. A direction under O 46 r 7A is made by a judge to assist the Registrar in the administration of the Registry and "is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.": Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at 357. Thus, it is not a judgment which is subject to appeal by a person whose document has been rejected by the Registrar in accordance with a direction given by a Judge.

42 In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others (2008) 170 FCR 426, the Full Court held at [19] that where a Registrar was directed by a judge pursuant to O 46 r 7A(2) not to accept a document for filing, the conduct of the registrar in compliance with such direction was not open to judicial review under s 35A(5) of the Court Act. Further, the Court held at [20] that such a direction of a judge was not open to judicial review under s 24(1)(a) of the Court Act. 43 The Full Court (Gray, Branson and Besanko JJ) referred to the power of the Registrars of both this Court, the High Court and the Family Court of Australia ('the Family Court') to make orders of the kind referred to under O 46 r 7A. In referring to Legal Aid Commission (WA) v Edwards and Others (1982) 61 FLR 419 the Court noted the observations of Toohey J at 423-424 in which his Honour referred to the fact that the decision of the Deputy Registrar of the Family Court not to accept the filing of a notice disputing a bill of costs was one which did not involve any formal or procedural attributes associated with judicial decisions. No hearing had been held and his Honour had concluded that such a decision 'lacked the attributes ordinarily associated with judicial decisions'. 44 The Full Court referred to the decision of Toohey J in Letts v Commonwealth and Others (1985) 8 FCR 585 in which an application was made under the ADJR Act to review a decision of the Registrar of the High Court to seek a direction from a Justice of the High Court. In those proceedings the Registrar was authorised to seek such a direction where process presented for filing appeared to be an abuse of the process of the Court or a frivolous or vexatious proceeding. Toohey J found that the Registrar was exercising the jurisdiction of the High Court to control frivolous or vexatious applications and although the Registrar was not a member of the Court he was part of the organisation through which the powers and jurisdiction of the Court was exercised. 45 The Full Court also considered Gunter v Doogan [1999] FCA 1648 in which an appeal was instituted against a direction given by a judge under O 46 r 7A not to accept a document for filing. The Full Court (Emmett J with whom Spender and Dowsett JJ agreed) observed at [12] that there may be a question whether such a direction was a 'judgment, decree or order', within the meaning of s 24(1) of the Court Act. At [14] the Full Court in Manolakis noted that Emmett J had expressed a tentative view that it might well be that a decision of the Registrar under O 46 r 7A could be the subject of review by a single judge. 46 The Full Court in Manolakis referred to the decision in Bizuneh at [15] and the decision of Sackville J in Paramasivam v Randwick City Council [2005] FCA 369 at [16]. In the latter decision Sackville J observed that the Full Court in Bizuneh had apparently not been referred to the decision of Toohey J in Letts, and his Honour doubted whether a direction by a judge under O 46 r 7A could be classified as 'administrative in character'. Nevertheless he considered he was bound to follow such decision (see [41]). 47 The Full Court in Manolakis at [19], adopting the reasoning of Toohey J in Edwards and of the Full Court in Bizuneh, ultimately reached the conclusion that where a Registrar is directed by a judge pursuant to O 46 r 7A(2) not to accept a document for filing, the conduct of the Registrar in compliance with the judge's direction is not open to review under s 35A(5) of the Court Act. The Full Court further held at [20] that a direction of a judge made under O 46 r 7A was not a judgment from which an appeal may be brought under s 24(1)(a) of the Court Act. Their Honours distinguished Letts on this point on the basis that in that case the matter had concerned the Registrar of the High Court 'whose conduct was appropriately controlled by the justices of that court' (see [20]). Whether a judge's decision was reviewable under the ADJR was left undecided. 48 Significantly for the present proceedings, the Full Court in Manolakis drew no distinction between the conduct of the Registrar acting under a direction from a judge and conduct where, as was the case in the present circumstances, a Registrar acts without a judge's direction. The Court at [19] said: Secondly, 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)).

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 Schedule 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). 51 The primary judge, when considering the appellant's application, observed (at [36]) that the applicant did not refer to the ADJR Act. His Honour further found at [38] that there was no ground in s 5(1) of the ADJR Act which could support the relief the applicant claimed in his application. 52 We see no error in his Honour's conclusions that s 35A(1) of the Court Act did not apply to the applicant nor in his Honour's conclusion concerning the ADJR Act. On the material before his Honour there was simply no basis for the Court to order a review of the decision under the ADJR Act. We agree with his Honour's conclusion that, whilst the ADJR Act could have applied to the appellant's attempt to review the decision, there was no ground raised under s 5(1) of the ADJR Act which could have assisted the appellant. 53 For the above reasons, the Court dismisses the appeal. As the respondents had both filed submitting appearances, the Court makes no order as to costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Cowdroy and Buchanan.