Wijaya v Judicial Registrar of the Federal Court

Background 1 The applicant to this proceeding is self-represented. On 28 November 2022, a Registrar of the Court, who is the respondent to this application, refused to accept three documents lodged by the applicant for filing which named the Fair Work Commission as respondent - (a) a draft notice of appeal from a tribunal; (b) an application for an extension of time; and (c) an affidavit in support of the application for an extension of time, dated 24 November 2022. 2 The Registrar provided written reasons for the refusal by email to the applicant, and suggested that he obtain legal advice. I will return to the Registrar's reasons. 3 On 17 January 2023, the applicant commenced the present proceeding by filing an application for an extension of time. Although the application referred to an extension of time within which to lodge an appeal under s 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth), it is clear that the underlying application that the applicant wishes to commence is for judicial review of the Registrar's decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). I will therefore treat the applicant's application filed 17 January 2023 as an application pursuant to s 11(1)(c) of the ADJR Act to grant an extension of time within which to file an originating application seeking judicial review of the Registrar's decision.

The draft notice of appeal that was not accepted for filing 4 The applicant's draft notice of appeal that was rejected was headed "Notice of appeal from a tribunal", and was stated to be in Form 75. That form is applicable to an appeal from the Administrative Appeal Tribunal [r 33.12(1)]; an appeal from the Superannuation Complaints Tribunal or the Australian Financial Complaints Authority [r 33.34(1)]; and an appeal from the Native Title Tribunal [r 33.40]. The applicant named only the Fair Work Commission as the respondent to the proposed appeal. 5 The draft notice of appeal relates to an application that the applicant made to the Fair Work Commission in May 2016 alleging unfair dismissal by a former employer. The applicant sought remedies pursuant to Part 3-2 of the Fair Work Act 2009 (Cth). By the draft notice of appeal, the applicant stated that he sought to appeal a decision of the Fair Work Commission in case U2016/2369 handed down by email on 16 July 2016. No document purporting to be a decision of the Commission is before the Court. However, there is a notice of discontinuance of the applicant's application to the Commission dated 18 July 2016 and signed on behalf of the applicant by an industrial officer of the AMWU Victorian Branch, who was the applicant's representative. A discontinuance of an application to the Commission is authorised by the Fair Work Act, s 588. It appears that the applicant discontinued the proceeding in the Fair Work Commission after compromising the claim. This was confirmed by the applicant at the hearing today, when he referred to a conciliation conference that was undertaken by telephone before the Commission. By his draft notice of appeal, the applicant set out 13 proposed grounds, most of which incorporate and re-state the claims made in his application to the Fair Work Commission. It seems that the crux of the applicant's proposed appeal was a claim that his decision to accept the offer made by the former employer to settle the unfair dismissal application was "poorly considered". The submissions made by the applicant before the Court today confirm this understanding.

The Registrar's decision 6 The Registrar communicated his reasons for the decision to the applicant by an email on 28 November 2022, which is annexed to the applicant's draft originating application. In his reasons for refusing to accept the applicant's documents for filing, the Registrar relied on r 2.26 of the Federal Court Rules 2011 (Cth), which is in the following terms - 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. 7 Rule 2.26 does not require the Registrar to receive submissions or hold a hearing, nor in my view is any such requirement to be implied. That is because a Registrar may reach the requisite state of satisfaction having regard only to "the face of the document" [r 2.26(a)], or "by reference to any documents already filed or submitted for filing with the document" [r 2.26(b)]: see, Somasundaram v Luxton [2020] FCA 1076 at [41] (Murphy J). 8 The Registrar gave the following reasons for refusing to accept the document for filing - I note that you have attempted to commence a review of a Fair Work Commission decision by using a Form 75. I note that you are seeking an extension of time to commence an appeal by using Form 67. It would appear from your documents that you are seeking to commence a review of a Fair Work Commission decision, which sets out claims made under the Fair Work Act 2009, alleging dismissal in contravention of a general protection. For a claim of this nature, you are required to complete and file a Form 79, which amongst other documents, must be accompanied by the certificate issued by the Fair Work Commission under the Fair Work Act 2009, which outlines that the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. I note that you have not provided a copy of a certificate issued by the Fair Work Commission. As you have not completed the proper form to commence a review, you cannot therefore seek an extension of time to commence such a review by using the Form 67 form. A review of a Fair Work decision in the Federal Court of Australia must be commenced by using the proper form, Form 79, and must comply with the rules relating to that form. A copy of the Fair Work Commission decision, which is the subject of the review should accompany any application, in a supporting affidavit in a proper form - Form 59. 9 Read as a whole, I construe the Registrar's reasons as expressing a state of satisfaction that the applicant's documents were an abuse of the process of the Court, frivolous, and vexatious, thereby engaging the discretionary power in r 2.26 to refuse to accept the documents for filing.

The application for an extension of time before this Court 10 Ordinarily, an application to review an administrative decision under the ADJR Act must be lodged within the period ending 28 days after a document setting out the reasons for the decision is furnished to the applicant: ADJR Act, s 11(1)(c), (3). As stated above, the applicant was notified of the Registrar's decision on 28 November 2022. The 28 day period within which to seek judicial review notionally ended on 26 December 2022; however because that day was a public holiday, the period ended when the Court's registry was next open, which was 28 December 2022: see Acts Interpretation Act 1901 (Cth), s 37(2) and (3). 11 There are features of the applicant's application to enlarge time to bring a proceeding under the ADJR Act that favour granting the application. In support of his application, the applicant states that he was not made aware that it was possible to challenge the Registrar's decision until he received an email from the Court Registry on 6 December 2022. Although that does not fully explain why the applicant took until 17 January 2023 to make this application, I am conscious that the applicant is self-represented and appears to have a limited knowledge of legal systems and processes. The period of delay is also relatively short. However, attention must be directed to the merits of the proposed application for judicial review. There is no point in enlarging time if to do so would be futile.

The proposed application for review of the Registrar's decision 12 A decision by a Registrar to refuse to accept a document for filing pursuant to r 2.26 is a decision of an administrative character and is susceptible to review under the ADJR Act: Nyoni v Bird [2022] FCAFC 61; 177 ALD 21 at [26]; Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222 at [49]. It follows that the Registrar's decision was not judicial in nature, and so no "appeal" from the decision can lie to this Court. For the application to succeed, the applicant must demonstrate that one of the grounds of review under the ADJR Act is established in relation to the Registrar's decision and that an order for review should be made. I raised this with the applicant at a case management hearing on 10 March 2023, and specifically directed the applicant's attention to the potential grounds of review in s 5 of the ADJR Act. 13 The applicant's draft application does not identify any specific ground of review under the ADJR Act. The applicant stated, under the heading "Details of claim" - The Applicant is aggrieved by the decision because: 1. The applicant had explained his intention to the Respondent to appeal from a decision made by Fair Work Commission, under the following Federal Court rules 33.12 Starting an appeal - filing and service of notice of appeal (1) A person who wants to appeal to the Court under the AAT Act must file a notice of appeal, in accordance with Form 75. 33.13 Application for extension of time to start appeal (1) A person who wants to apply for an extension of time within which to start an appeal mentioned in section 44(2A) of the AAT Act must file an application, in accordance with Form 67. Note: The application may be made during or after the period mentioned in section 44(2A) of the AAT Act. 2. The applicant submitted the documents in accordance to these rules but the submission was rejected by the respondent. 3. The letter of response sent by the respondent to the applicant on 28 November 2022 did not explain why the submission was rejected under these rules. 14 The applicant stated, under the heading "Grounds of application" - 1. The respondent failed to explain the reason the respondent rejected the submission under the above Federal Court Rules, section 33.12 and 33.13. 15 This ground might amount to an allegation of inadequacy of reasons if the giving of reasons was a requirement of the discharge of the Registrar's function: see, Dornan v Riordan (1990) 24 FCR 564. While the giving of reasons may be good practice, and a request for reasons may be made under s 13 of the ADJR Act, the giving of reasons was not a condition on the exercise of the Registrar's power to refuse to accept documents for filing. In any event, the reasons that the Registrar gave were more than adequate. 16 The applicant has not established any arguable error in the Registrar's decision that would attract relief under the ADJR Act. Plainly, the decision to refuse to accept the documents for filing under r 2.26 of the Federal Court Rules was correct in circumstances where the applicant was seeking to use the procedure for commencing an appeal under the Administrative Appeals Tribunal Act to bring an appeal against a purported decision of the Fair Work Commission, and where only the Commission was named as a respondent. The Fair Work Commission is a statutory body that owes its existence to s 575 of the Fair Work Act 2009 (Cth). An appeal is a creature of statute. For present purposes, I include within the concept of appeal, so-called appeals brought within the original jurisdiction of this Court, such as those within s 44 of the Administrative Appeals Tribunal Act. There is no statutory provision allowing for an appeal to this Court from a decision of the Fair Work Commission. A challenge to a decision of the Fair Work Commission in this Court is limited to an application alleging jurisdictional error: see, eg. Australian Postal Corporation v D'Rozario [2014] FCAFC 89; 222 FCR 303; Minister for Industrial Relations for State of Victoria v Esso Australia Pty Ltd [2019] FCAFC 26; 268 FCR 520. This is not to suggest that any tenable jurisdictional error has been identified in this case. 17 The Registrar interpreted the applicant's draft notice of appeal as an attempt to make an application to the Court for an order in relation to an allegation that the applicant was dismissed from employment in contravention of a general protection in Part 3-1 of the Fair Work Act. Generally, such proceedings, which attract the original jurisdiction of the Court, can only be commenced if the Fair Work Commission has issued a certificate in relation to the dispute: Fair Work Act, sections 370 and 368(3)(a); Federal Court Rules, r 34.03(3). The Registrar's approach was reasonably open, because the applicant's proposed grounds of appeal can be regarded as embracing claims that would engage the terms of r 34.03 of the Federal Court Rules, which requires that the application be accompanied by a certificate issued by the Fair Work Commission. My interpretation of the applicant's claims is that the applicant was seeking to "appeal" his discontinuance of his unfair dismissal application in the Fair Work Commission, and was seeking a direction from the Court that the Fair Work Commission reactivate his application and issue a certificate. Not only is there no provision for appealing a decision of the Commission, in light of the signed notice of discontinuance of the application to the Commission, it does not appear that this case involves any decision by the Commission. This difference in interpretation is not material. For the reasons I have given, there is no reasonable prospect that the Court would set aside the Registrar's decision and direct the Registrar to accept the applicant's documents for filing. The proposed proceeding by way of "appeal" of a decision of the Fair Work Commission is misconceived and is correctly regarded on the face of the documents as frivolous, vexatious, and an abuse of the Court's processes. The use of these descriptors is not a personal criticism of the applicant, but a necessary characterisation of the process. 18 There is one further point that I should mention. If, contrary to my conclusion in this case, there was any doubt about the legality of the Registrar's decision to refuse to accept the applicant's documents for filing, then it would be open to the Court under r 26.27(e) of the Federal Court Rules to direct the Registrar that the documents not be accepted.

Conclusion 19 The application for an extension of time within which to seek review of the Registrar's decision should be refused. The applicant's application filed 17 January 2023 will be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.