Thomas Borthwick & Sons (Pacific Holdings) Ltd. v Trade

A judge of this Court, Kiefel J, recently heard a notice of motion brought by the respondents in those proceedings to strike out Mr. Bird's action. At the start of the hearing on 20 October last, Mr. Bird submitted that Kiefel J should disqualify herself on the following grounds: firstly, that there is the appearance that the respondents engineered that someone would hear this case who would be predisposed to decide the case in their favour, and it is said that Kiefel J is such a person and, secondly, that Kiefel J belongs to sociological groups whose members strongly believe that judges should decide cases on political rather than on legal grounds and so would be biased against the interests that Mr. Bird is seeking to vindicate in those proceedings QG 151 of 1994.

Mr. Bird elaborates the grounds he took for seeking Kiefel J's disqualification in the affidavit he presented to her Honour in support of that application. He refers to the timing of the appointment of Kiefel J to the Court, and to the

Process of appointment of federal judges, and to what he asserts is the interest of the people in and associated with the Federal Cabinet, as the appointing authority, in achieving a result inimical to that which he wants to achieve in the proceedings. Secondly, he asserts that Kiefel J is likely to be predisposed to find against the interests he is seeking to vindicate because she is a woman lawyer and he asserts that, as a group, women lawyers are likely to hold views inimical to those whose views he is seeking to advance in his litigation. Thirdly, he says that Kiefel J - and I quote his affidavit - "as her name suggests, belongs to an ethnic minority. Presumably she is Jewish." He develops in his affidavit the proposition that because he believes that she belongs to such an ethnic minority, she is likely to be predisposed to find against the point of view that he is seeking to have

Her Honour refused to disqualify herself. Kiefel J, however, was asked by Mr. Bird to grant leave to appeal her decision not to disqualify herself. Her Honour refused to grant such leave and the hearing proceeded. Judgment is now

In order to prevent Kiefel J giving judgment, which Mr. Bird apparently regards as likely to be against him because of what he asserts is the bias affecting or likely to affect her Honour, Mr. Bird sought to file what I have called the earlier application in those proceedings. It seeks from

the Federal Court a writ of prohibition directed to Kiefel J to prohibit her from acting further in those proceedings; a writ of certiorari quashing orders made by her in the proceedings and an interlocutory injunction to restrain her from sitting further to hear the proceedings until further order of the Full Federal Court. It names Kiefel J as the

Mr. Bird has not sought leave to appeal Kiefel J's decision not to disqualify herself. Such an application would be doomed to failure given that he elected to apply to Kiefel

J for leave to appeal that particular decision, but failed to

obtain the necessary leave: see Thomas Borthwick & Sons {Pacific Holdings) Ltd. v Trade Practices Commission (1988) 79 A.L.R. 171. Instead, he wishes to ask the Federal Court to issue a prohibition and an injunction against a judge of the Court acting in her judicial capacity. Spender J directed the District Registrar not to accept the application and the Deputy District Registrar wrote to inform Mr. Bird of his

"This Court does not have jurisdiction to entertain your application."

"If a document presented to a Registrar in any proceeding ... appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to

accept or issue it or may seek the direction of a Judge who may direct him -

(a) to accept or issue it; or (b) to refuse to accept or issue it; or

(c) to refuse to accept or issue it without the leave of a Judge first had and obtained."

In accordance with exhibit 1, a letter written by the District Registrar to Mr. Bird dated 15 November 1994, after the District Registrar had referred the matter to me, the District Registrar has now referred to me whether Mr. Bird should be allowed to file the application for leave to appeal Spender J's direction, which Mr. Bird presented to the

In order to determine whether it is appropriate for me to make an order or to give a direction under 0. 46, r. 7A to the District Registrar to refuse to accept this latest application which Mr. Bird wishes to file, it is, I think, appropriate to consider whether Mr. Bird has any prospects at all of obtaining leave to appeal Spender J's direction to the District Registrar. The principles in accordance with which leave to appeal orders is granted are well settled. In Jarrett v Seymour (1993) 46 F.C.R. 557 at 559, the Pull Court said this:

"The relevant considerations for the Court in considering whether leave to appeal should be granted are:

(a) whether in all the circumstances the judgment of the primary judge is attended by sufficient

doubt to warrant it being reconsidered by the Full Court; and

leave were refused supposing the decision would be wrong."

In my view, assuming that Spender J's direction is an order that can be appealed, albeit only with leave, Mr.

Bird has no prospects at all of obtaining such leave.

He founds his contention that the Federal Court can issue prohibition and an injunction to a member of the same Court, acting not in a private capacity but in a judicial capacity, on s. 39B the Judiciary Act 1903. That section provides that the original jurisdiction of the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. Sub- section (2) of the section excludes from that jurisdiction any authority on the part of the Federal Court to so proceed against persons holding office under certain industrial legislation, against judges of the Industrial Relations Court and against judges of the Family Court of Australia. Mr. Bird points to the absence of any reference in 8. 39B to judges of the Federal Court being excluded as objects of the exercise of the jurisdiction vested by that section in the Federal Court itself. He submits that this shows that the Court can issue

prohibition or an injunction to a judge of the Court.

In my view a judge of the Federal Court has no jurisdiction to issue a writ of prohibition or an injunction against another judge of the Court acting as such. Section 39B confers jurisdiction on the Federal Court in terms identical to that vested in the High Court of Australia by s. 75(v) the Constitution. It is well established that that provision of the Constitution empowers the High Court to issue prohibition against a judge of a court or tribunal set up by the Commonwealth Parliament notwithstanding that it is declared, as is the Federal Court of Australia, to be a superior court, because all such judges are officers of the Commonwealth: B v Watson: Ex parte Armstrong (1976) 136 C.L.R. 248 at 263, and the case there cited R v Commonwealth Court of Conciliation and Arbitration: Ex parte Ozone Theatres Aust.) Ltd. (1949) 78 C.L.R. 389 at 399. See also R v Judges of the Federal Court of Australia and Adamson: Ex parte Western Australian National Football League (Inc.) (1979) 23 A.L.R. 439 at 446 to 447. The High Court's jurisdiction in that very regard is declared by s. 38(e) the Judiciary Act to

be exclusive of the jurisdiction of the courts of the states.

The Federal Court's jurisdiction with respect to prerogative writs conferred by s. 39B is, as I have mentioned, expressly declared by s. 39B(2) not to extend to issuing such process against, among others, judges of the Industrial Relations Court and judges of the Family Court. It was unnecessary, however, for the Parliament to also expressly

exclude from the jurisdiction of the Federal Court authority

to issue prerogative writs and injunctions against judges of that same Court. By 8s. 19(1) the Federal Court of Australia Act 1976 the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament.

This includes the jurisdiction vested in the Court by s. 39B

The Federal Court of Australia consists of the judges of the Court: s. 5(3) the Federal Court of Australia Act. The original jurisdiction of the Court is exercised by a single judge: g. 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the Court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the Court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the Court, i.e., in all the judges who make up the Court. It matters not that the authority vested only in the group is by force of s. 20(1) the

Federal Court of Australia Act exercisable by a single member

of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the Court. Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective

court of record of which Windeyer J in Kotsis v Kotsis (1970) 122 C.L.R. 69 said at 91:

"According to the tradition of the common law, a superior court of record is a court sitting in banc for the administration of justice. In the course of time it became settled that, for some purposes, the jurisdiction of a superior court of common law could be exercised by a single judge."

Originally, a single judge acting alone could not exercise the jurisdiction of the Court. This is illustrated by the discussion in Musgrove v McDonald (1906) 3 C.L.R. 132 at 147 to 148 of the nature of the jurisdiction exercised by the common law courts in granting new trials. Originally, at common law, all trials were before the court in banc, which proceeded after the jury made its findings to give the judgment it thought proper. When trials at nisi prius were introduced, the judge who tried the case could take the jury's

verdict, but he had no power himself to give judgment. Instead, he returned a record of the jury's verdict to the court which, sitting in banc, proceeded to give the judgment

that was appropriate: see also The Medical Board of Victoria v Meyer (1937) 58 C.L.R. 62 at 95-96. Statutory provisions like s. 20(1) the Federal Court of Australia Act were necessary to enable a single judge to make orders finally disposing of actions by empowering a single judge to exercise a jurisdiction to give final judgment that, apart from statute, was vested only in all the judges of the court

It is true that, pursuant to ss. 14 and 25 the Federal Court of Australia Act, the decision of a single judge of the Court can be reviewed on appeal to a sub-group of at least three of the other judges of the Court sitting as the Full Court. But Mr. Bird is not seeking to appeal any order of Kiefel J. What he wants to do, and what Spender J refused to allow him to do, is obtain a prohibition and an injunction directed to Kiefel J from another judge or sub-group of judges of the Court. For the same reasons that one judge of the Court cannot prohibit or enjoin another judge, no other grouping of judges of the Court can do that.

Because Mr. Bird in my view has no prospect at all of obtaining leave to appeal Spender J's direction, I regard the application that he has attempted to file this morning as frivolous or vexatious within the meaning of that term in 0.

46, r. 7A. I will therefore direct the District Registrar to refuse to accept or issue the application. I would also say that the grounds relied upon by Mr. Bird to justify the disqualification of Kiefel J are such that no person, acting reasonably, could possibly think that there was any substance in any of them: cf. Watson, supra, at 262. Yet what Mr. Bird wants is an opportunity to show the contrary. I would also conclude that the proceeding he attempted to commence this morning is frivolous or vexatious for that reason and would give the District Registrar a similar direction on that

I certify that this and the preceding 10 pages are a true copy of the reasons for judgment herein of the Honourable Justice Drummond.