Satchithanantham v National Australia Bank Limited - [2010] FCAFC 47 - FCAFC 2010 case summary — Zoe

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Satchithanantham v National Australia Bank Limited

[2010] FCAFC 47

Federal Court of Australia (Full Court)|2010-05-21|Before: Registrar P, Buchanan JJ

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Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2010-05-21

Before

Registrar P, Buchanan JJ

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

REASONS FOR JUDGMENT 1 On 11 May 2010 the Court made orders dismissing this appeal. The reasons for such order and the ancillary orders follow. 2 The appellant appeals the decision of the primary judge delivered on 14 October 2009 in which the Court found that the appellant had failed to make out any ground for judicial review of the decision of the second respondent ('the Registrar') to reject the filing of the appellant's document entitled Notice of Appeal: see Satchithanantham v National Australia Bank Limited [2009] FCA 1171: (2009) 260 ALR 567. 3 On 12 December 2007 judgment was entered in the Supreme Court of New South Wales ('the Supreme Court') against the appellant. Such judgment was entered in the amount of $10,000 in respect of costs. 4 The appellant appealed the decision to the New South Wales Court of Appeal ('the Court of Appeal'). On 14 July 2008 the Court of Appeal dismissed the appellant's appeal. The appellant then sought special leave to appeal from the decision of the Court of Appeal to the High Court of Australia ('the High Court'). Such application was dismissed on 10 December 2008. 5 Meanwhile, on 14 May 2008 a bankruptcy notice was issued by the first respondent ('NAB') and was served upon the appellant. Such notice was founded upon the judgment obtained in favour of NAB referred to above. 6 The appellant challenged the validity of the bankruptcy notice and on 1 July 2008 Smith FM dismissed such challenge: see Satchithanantham v National Australia Bank [2008] FMCA 940. The appellant then appealed the decision of Smith FM to this Court. On 27 February 2009 Edmonds J dismissed such appeal: see Satchithanantham v National Australia Bank Limited [2009] FCA 198. 7 The NAB then moved to obtain a sequestration order against the appellant. On 15 October 2008 a creditor's petition was listed for hearing but on that date, due to certain delays, the hearing was adjourned until 11 March 2009. On that date the creditor's petition seeking a sequestration order against the appellant was heard before Smith FM. The appellant did not appear at such hearing. Smith FM proceeded to make a sequestration order against the estate of the appellant: see National Australia Bank Limited v Satchithanantham (No. 2) [2009] FMCA 229. 8 The appellant appealed to this Court against the sequestration order made by Smith FM. On 11 May 2009 Stone J dismissed the appeal: see Satchithanantham v National Australia Bank Limited [2009] FCA 501.

[24]

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.

[25]

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].

[32]

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)).

[33]

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.