FEDERAL COURT OF AUSTRALIA

Barkla v Colbran [2015] FCA 1470

Citation:

Barkla v Colbran [2015] FCA 1470

Parties:

GEOFF BARKLA v NICOLA COLBRAN

File numbers:

SAD 403 of 2015

SAD 410 of 2015

SAD 416 of 2015

Judge:

BESANKO J

Date of judgment:

21 December 2015

Catchwords:

PRACTICE AND PROCEDURE – application for judicial review of the District Registrar’s decision not to accept the applicant’s originating application and affidavit for filing – application for judicial review of the District Registrar’s decision not to accept the applicant’s information and summons for filing – where the applicant claimed the District Registrar acted fraudulently, dishonestly and in abuse of public office by not accepting the documents – whether the Federal Court has jurisdiction to hear the application and issue the information and summons the applicant sought to file – Federal Court Rules 2011 (Cth) r 2.26.

PRACTICE AND PROCEDURE – information and summons issued by the applicant against the District Registrar in relation to the District Registrar’s decisions not to accept applicant’s documents for filing – whether the Court has jurisdiction to issue the information and summons – whether the proceeding is without merit and is an abuse of process – Federal Court Rules 2011 (Cth) r 26.01.

Held: Proceedings dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Criminal Code Act 1995 (Cth)

Federal Court of Australia Act 1976 (Cth) s 35A(1)

Federal Court Rules 2011 (Cth) rr 1.40, 2.26, 12.01, 26.01, 31.01

Judiciary Act 1903 (Cth) s 39B

Cases cited:

Satchithanantham v National Australia Bank Limited [2010] FCAFC 47

Date of hearing:

18 December 2015

Place:

Adelaide

Division:

GENERAL DIVISION

Category:

Catchwords

Number of paragraphs:

20

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondent:

The Respondent entered Submitting Notices in SAD 403 of 2015 and SAD 410 of 2015

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 403 of 2015

BETWEEN:

GEOFF BARKLA

Applicant

AND:

NICOLA COLBRAN

Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

21 DECEMBER 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    Any application for costs by the District Registrar to be made within 21 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 410 of 2015

BETWEEN:

GEOFF BARKLA

Applicant

AND:

NICOLA COLBRAN

Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

21 DECEMBER 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    Any application for costs by the District Registrar to be made within 21 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 416 of 2015

BETWEEN:

GEOFF BARKLA

Applicant

AND:

NICOLA COLBRAN

Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

21 DECEMBER 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 403 of 2015

SAD 410 of 2015

SAD 416 of 2015

BETWEEN:

GEOFF BARKLA

Applicant

AND:

NICOLA COLBRAN

Respondent

JUDGE:

BESANKO J

DATE:

21 DECEMBER 2015

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

1    These reasons address three proceedings in the Court. Proceeding SAD 403 of 2015 is an application for judicial review between Mr Geoff Barkla as applicant, and Ms Nicola Colbran as respondent. Ms Colbran is the District Registrar of this Court in South Australia and the Northern Territory. I will refer to her as the District Registrar. Proceeding SAD 410 of 2015 is also an application for judicial review between Mr Barkla and the District Registrar. Proceeding SAD 416 of 2015 is an information and summons issued by Mr Barkla against the District Registrar.

2    The District Registrar has filed a Submitting Notice in SAD 403 of 2015 and SAD 410 of 2015 (Federal Court Rules 2011 (Cth) (“the Rules”) r 12.01).

3    The three proceedings came on before me on 18 December 2015. Mr Barkla appeared in person. During the course of the hearing, Mr Barkla made an application for me to disqualify myself. There was no basis for me to do so and I refused the application.

4    I have reached the conclusion that each of the three proceedings should be dismissed. In her Submitting Notices, the District Registrar said that she wanted to be heard on the question of costs. I will reserve to the District Registrar the right to apply for costs in SAD 403 of 2015 and in SAD 410 of 2015 within 21 days.

SAD 403 of 2015

5    The originating application for judicial review is in accordance with Form 66 (r 31.01) which is the appropriate form for applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). In his application, Mr Barkla seeks to challenge a decision of the District Registrar under r 2.26 to refuse to accept an originating application and affidavit Mr Barkla sought to file in the Court on or about 2 November 2015. I will refer to these documents as “the rejected documents”. Under r 2.26, a Registrar may refuse to accept a document if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious on the face of the document or by reference to any documents already filed or submitted for filing with the document.

6    The rejected documents involve a claim by Mr Barkla against the Acting Registrar of the Supreme Court of Western Australia. Mr Barkla claims to bring his proceeding in a representative capacity. The basis of Mr Barkla’s claim appears to be the refusal of the Acting Court of Appeal Registrar to accept two documents Mr Barkla sought to file, being a document entitled “Referral of a legal issue” and a document entitled a “Notice to Admit Facts”. Mr Barkla alleges that in refusing to accept the documents, the Acting Court of Appeal Registrar contravened various sections of the Criminal Code Act 1995 (Cth).

7    The District Registrar refused to accept the rejected documents and, on 4 November 2015, she wrote to Mr Barkla in the following terms:

I refer to the originating application and affidavit you sent to the Registry on 2 November 2015.

Among other things, your application claims that the respondent is in breach of the Criminal Code Act 1995 (false or misleading documents, general dishonest and abuse of public office). The Court does not have jurisdiction to hear matters relating to the Criminal Code Act 1995 as outlined in your application, nor the other pieces of legislation you have included. The Court cannot make the findings that you seek.

Accordingly, I am unable to accept your documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011.

The usual course of action for parties who wish to appeal the decision of a registrar of a court is to seek to have the decision reviewed by a judge of that court. I am unfamiliar with the procedure in the Supreme Court of Western Australia, but you may wish to enquire further as to a suitable course of action.

I return your documents to you.

8    Mr Barkla claims that in refusing to accept the rejected documents, the District Registrar acted fraudulently, dishonestly and in abuse of public office.

9    The decision of a Registrar under r 2.26 not to accept a document is not reviewable under s 35A(1) of the Federal Court of Australia Act 1976 (Cth). It may be reviewed under the ADJR Act (Satchithanantham v National Australia Bank Limited [2010] FCAFC 47), but before relief is granted, one of the grounds in s 5 would need to be established. I will also assume, for the purposes of these applications only, that relief for jurisdictional error may be granted under s 39B of the Judiciary Act 1903 (Cth).

10    This Court does not have jurisdiction to hear and determine the application Mr Barkla seeks to bring against the Acting Court of Appeal Registrar, and the District Registrar was correct in deciding to refuse to accept the rejected documents.

SAD 410 of 2015

11    This originating application for judicial review is also a challenge to a decision of the District Registrar under r 2.26 to refuse to accept an information and summons Mr Barkla sought to file in this Court on or about 4 November 2015.

12    The information and summons (“the rejected documents”) are directed to two justices of the Supreme Court of Western Australia. The basis of Mr Barkla’s claims appears to be that the judges acted dishonestly in connection with a “Notice to Admit Facts”, and a “Referral of a legal issue” and a claim which he makes.

13    The District Registrar refused to accept the rejected documents and, on 4 November 2015, she wrote to Mr Barkla in the following terms:

I refer to the summons you provided to the Registry on 4 November 2015 that seeks to summons Justice Newnes and Justice Murphy of the Supreme Court of Western Australia.

The Federal Court of Australia does not have jurisdiction to issue the summons you request. Like all other citizens judges are subject to the law. However, in respect of their judicial conduct, they cannot be subject to direct discipline by anyone else, except in the extreme cases of proved misbehaviour or incapacity. In those circumstances, and in those only, a judge may be removed from office by the Governor-General upon a request from both Houses of the Parliament.

Judges are accountable through the public nature of their work, the requirement that they give reasons for their decision and the scrutiny of their decisions on appeal.

Accordingly, I am unable to accept your documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011.

The Supreme Court of Western Australia has a Protocol for Complaints against Judicial Officers in Western Australia. It can be found at http://www.supremecourt.wa.gov.au/C/complaints_against_judical_officers.aspx?uid=6960-4191-1980-2236. Any complaint about a member of the judiciary should be made in writing to the Chief Justice.

I return your documents to you.

14    The District Registrar’s decision under r 2.26 was plainly correct for the reasons she gave.

SAD 416 of 2015

15    The information and summons by Mr Barkla against the District Registrar were accepted for filing. They, or documents similar to them, were annexed to an affidavit Mr Barkla swore in SAD 403 of 2015. In the information and summons, Mr Barkla alleges that the District Registrar committed various contraventions of the Criminal Code Act 1995 in writing her letter dated 4 November 2015 in SAD 403 of 2015, and her letter dated 4 November 2015 in SAD 410 of 2015. In broad terms, the allegations are that the District Registrar knowingly produced false or misleading documents and abused her public office.

16    The District Registrar did not appear and, insofar as may be necessary, I excuse her attendance.

17    I raised with Mr Barkla whether the proceeding should be permitted to proceed and whether he wanted to make submissions or have further time to prepare his submissions. He elected to proceed.

18    It is trite that the parties to a proceeding cannot confer jurisdiction by consent. Whether an objection to jurisdiction is raised or not, the Court has a right, indeed a duty, to examine whether it has jurisdiction with respect to a particular matter. The Court has no jurisdiction with respect to the information and summons and the proceeding should be dismissed on that basis.

19    There is an alternative basis upon which the proceeding should be dismissed. In view of my conclusions in SAD 403 of 2015 and SAD 410 of 2015, the proceeding is wholly without merit and is an abuse of process and vexatious. It is open to the Court to proceed under r 26.01 on its own initiative (r 1.40) and I would do so to the extent necessary.

20    I do not need to consider whether there would be other reasons for dismissing the proceeding.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:    

Dated:    21 December 2015