FEDERAL COURT OF AUSTRALIA

Bird v Registrar, Federal Court of Australia [2016] FCAFC 188

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Geoffrey James Bird be prohibited from instituting any proceeding in this Court relating to Elizabeth Jane Rickleman or to her receipt of benefits under Commonwealth legislation to which the Public Guardian of Queensland, the Public Trustee of Queensland, the Director-General, Queensland Department of Health or the Secretary to the Department of Human Services (or the holder of any successor office in respect of each of the foregoing), his Honour Judge Stuart Roberts, Federal Circuit Court Judge (and formerly a Federal Magistrate) or a tribunal established under Commonwealth or State legislation, the State of Queensland or the Commonwealth of Australia or any of the foregoing is a party.

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

REASONS FOR JUDGMENT

LOGAN J:

1    For reasons given to the appellant, Mr Geoffrey James Bird, in a letter dated 14 September 2015, a Registrar of the Court refused to accept for filing an originating application which Mr Bird had earlier lodged in the Court’s Queensland District Registry.

2    Mr Bird sought the judicial review of the registrar’s decision pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) (ADJR Application). On 28 January 2016, that application, together with a related interlocutory application, was dismissed: Bird v Registrar, Federal Court of Australia [2016] FCA 21. Mr Bird brings this appeal against that order of dismissal. As he did in the original jurisdiction, the registrar, who was the respondent to the appeal, has signified that he will abide the order of the Court.

3    There are three grounds of appeal:

1.    The judge erred in law in holding that the Federal Court did not have the power to quash a decision of the Social Security Appeals Tribunal.

2.    The judge erred in law in holding that the Federal Court did not have the power to quash a decision of a Queensland tribunal.

3.    The judge erred in law in holding that a deputy registrar had the power to dismiss an application under Section 1 of the Habeas Corpus Act 1816.

[sic]

4    Before turning to the merits of these grounds it is first necessary to detail the nature of the originating application which Mr Bird lodged for filing and then to outline something of the background to the proposed proceeding.

5    The parties named as respondents to the proposed proceeding were:

6    The claim which Mr Bird made in the originating application was as follows:

On the grounds stated in the statement of claim, accompanying affidavit, or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1.    An order in the nature of habeas corpus ad subjiciendum addressed to Kevin Martin, Queensland Public Guardian, Michael Walsh, Director-General, Queensland Health Department and Finn Pratt, Secretary, Commonwealth Department of Social Services, commanding them to release Elizabeth Jane Rickleman from their custody and control.

2.    A declaration that Elizabeth Jane Rickleman is not subject to any valid guardianship, administration or involuntary treatment order.

3.    A declaration that the enduring guardian document made by Elizabeth Jane Rickleman in Tasmania in 2007 is legally valid and effective in Queensland as an enduring power of attorney for personal matters and as an advance health directive.

4.    A declaration that the enduring power of attorney made by Elizabeth Jane Rickleman in Tasmania in 2008 is legally valid and effective in Queensland.

5.    A declaration that Elizabeth Jane Rickleman is not mentally incapacitated.

6.     An order in the nature of mandamus commanding Finn Pratt, Secretary, Commonwealth Department of Social Services to reconsider the decision to have the Public Trustee of Queensland appointed as payment nominee for Elizabeth Jane Rickleman and to make a decision in accordance with law.

7.    A declaration that the Secretary, Department of Social Services and his predecessors have acted unlawfully by paying social security for Elizabeth Jane Rickleman to the Public Trustee of Queensland.

8.    An order in the nature of certiorari quashing the purported decision of Judge Stuart Roberts of 21 January 2009 concerning Elizabeth Jane Rickleman.

9.    An order in the nature of certiorari quashing the purported decision of the Social Security Appeals Tribunal of 29 October 2007 concerning Elizabeth Jane Rickleman.

10.    An order in the nature of certiorari quashing the purported order of the Queensland Civil and Administrative Tribunal of 5 November 2013 concerning Elizabeth Jane Rickleman.

11.     An order in the nature of certiorari quashing the most recent purported order of the Queensland Mental Health Review Tribunal purporting to confirm the purported status of Elizabeth Jane Rickleman as an involuntary patient.

12.    A declaration that the decision of Judge Stuart Roberts of 21 January 2009 concerning Elizabeth Jane Rickleman is null and void.

13.    A declaration that the decision of the Social Security Appeals Tribunal of 29 October 2007 concerning Elizabeth Jane Rickleman is null and void.

14.    A declaration that the purported order of the Queensland Civil and Administrative Tribunal of 5 November 2013 concerning Elizabeth Jane Rickleman is null and void.

15.    A declaration that the most recent purported order of the Queensland Mental Health Review Tribunal concerning Elizabeth Jane Rickleman is null and void.

16.    An order in the nature of certiorari quashing the order of the Queensland Guardianship and Administration [sic] Tribunal of 9 December 2004 appointing the Public Trustee of Queensland as administrator for Elizabeth Jane Rickleman.

17.    An order permanently restraining Finn Pratt, Secretary, Commonwealth Department of Social Services, his successors in office for administering the Australian Government’s social security legislation, and their employees and delegates from appointing a payment nominee for Elizabeth Jane Rickleman.

18.    An order permanently restraining Kevin Martin, Queensland Public Guardian, his successors in office and their employees from bringing applications to courts and tribunals concerning Elizabeth Jane Rickleman or otherwise interfering in her affairs.

19.    An injunction permanently restraining Michael Walsh, Director-General, Queensland Health Department, his successors in office, their employees and delegates, and authorised doctors appointed by any of them, from providing or directing psychiatric treatment for Elizabeth Jane Rickleman without her consent or the consent of her attorney for personal matters or the consent of a guardian appointed by the Supreme Court of a state or territory.

20.    An order in the nature of prohibition permanently prohibiting the Queensland Civil and Administrative Tribunal from exercising jurisdiction under legislation relating to guardianship or powers of attorney in relation to Elizabeth Jane Rickleman or Geoffrey James Bird.

21.    An order prohibiting the publication of the names of Elizabeth Jane Rickleman or Geoffrey James Bird, except that this proceeding may be reported as “Bird v Martin”

22.    An order closing the court file for this proceeding to public inspection, and making the file subject to inspection only by the parties or pursuant to an order of a judge made after an application of which one month’s notice has been given to Elizabeth Jane Rickleman and Geoffrey James Bird.

7    Also specified in the originating application was a claim for the following interlocutory relief:

1.    An order pursuant to section 3 of the Habeas Corpus Act 1816 that Elizabeth Jane Rickleman is released on bail from the respondents’ custody and control on her undertaking to appear before the court at future hearings in this proceeding.

2.    An order that the Secretary of the Commonwealth Department of Social Services is restrained from having a payment nominee appointed for Elizabeth Jane Rickleman for the duration of this proceeding.

3.    An order that Geoffrey James Bird is to be taken to be attorney for health and personal matters for Elizabeth Jane Rickleman for the duration of this proceeding.

4.    An order that the respondents must within 15 working days file and serve written cases in answer to the applicant’s case contained in his affidavit.

5.    An order that the respondents must within 15 working days agree between themselves on a psychiatrist on whom they intend to rely and file and serve an affidavit made by this psychiatrist stating why the psychiatrist says Elizabeth Jane Rickleman is mentally incapacitated, why she should have a guardian and administrator, why she should have involuntary psychiatric treatment, and why her affairs should not be managed by Geoffrey James Bird if she became incapacitated, as well as the facts on which the psychiatrist relies, and the names of the people who provided these facts, unless a fact is known to the psychiatrist from personal observation.

6.    An order that the respondents must within 15 working days file and serve affidavits of all persons mentioned in the affidavit of the psychiatrist on whose testimony they rely, as being the source of the psychiatrist’s facts, which affidavits must each state those facts known to the deponent from personal observation and that were mentioned in the psychiatrist’s affidavit.

7.    An order that the applicant must file and serve a written case and affidavit in reply to the respondents’ cases and affidavits within 15 working days of receiving the respondents’ written cases and affidavits.

8.    An order that the respondents must have the psychiatrist and other witnesses on whose affidavits they rely at the Commonwealth Law Courts, 119 North Quay, Brisbane, 4000 at 10.15am on ..... 2015 for cross-examination by the applicant.

9.    An order that the parties have liberty to apply for further orders.

10.    An order that the costs of this hearing be costs in the cause.

8    The account of the background to the proceeding which follows is principally taken from Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2009] FMCA 20, a judgment given by his Honour Judge Roberts, a Federal Circuit Court Judge, in his then capacity as a Federal Magistrate. It also necessary to refer to certain, broadly related, proceedings in the Queensland Supreme Court and in the High Court of Australia. I did not understand Mr Bird to dispute the events related in judgments given in these earlier court proceedings, which is not to say that he accepts that there was occasion for the making of earlier court or tribunal orders, particularly as they relate to Ms Rickleman.

9    One particularly pertinent background feature is that Ms Rickleman is not presently, and has not ever been, in the custody or control of the Secretary to the Commonwealth Department of Social Services presently known as the Department of Human Services or any predecessor Department (the Secretary) or of any other officer of the Commonwealth or of any other person on behalf of the Commonwealth.

10    On 11 August 2003, the then Guardianship and Administration Tribunal of Queensland (the Guardianship Tribunal), a body established under the Guardianship and Administration Act 2000 (Qld) (Guardianship and Administration Act), appointed:

a.    the Adult Guardian of Queensland (“the Adult Guardian”) as guardian for Ms Rickleman for legal matters not related to her financial or property matters; and

b.    the Public Trustee of Queensland (“the Public Trustee”) as administrator for her for all financial matters.

11    These orders were continued from time to time by the Guardianship Tribunal. Materially, they were in force when Mr Bird and Ms Rickleman sought the review in the then Federal Magistrates Court under the ADJR Act (the Federal Magistrates Court Proceeding) of a decision made on 29 October 2007 by the then Social Security Appeals Tribunal (SSAT). The SSAT had affirmed a decision by a delegate of the Secretary within Centrelink not to remove the Public Trustee as Ms Rickleman’s nominee in respect of benefits payable to her under the Social Security Act 1991 (Cth) and to decline to appoint Mr Bird in place of the Public Trustee. Section 123B of the Social Security (Administration) Act 1999 (Cth) (SSA) makes provision for the appointment by the Secretary of a payment nominee of another person for the purposes of the social security law.

12    The Adult Guardian, at least purportedly, discontinued on behalf of Ms Rickleman the Federal Magistrates Court Proceeding. One of the orders made by that court in that proceeding appointed the Adult Guardian as Ms Rickleman’s Litigation Guardian with effect on and from the filing of that notice of discontinuance. That discontinuance provided one reason why that court dismissed the Federal Magistrate Court Proceeding.

13    Mr Bird, in March 2004, sought in the Federal Magistrates Court under the ADJR Act the judicial review of a decision made by a delegate of the Department of Family & Community Services not to disclose information to him or to appoint him as a payment nominee for Ms Rickleman pursuant to s 123B of the SSA. That court dismissed that application on 7 May 2004: Bird v Public Trustee of Queensland & Anor [2004] FMCA 278 (Baumann FM).

14    On 27 February 2004, Mr Bird was declared a vexatious litigant by the Queensland Supreme Court pursuant to s 3 of the Vexatious Litigants Act 1981 (Qld): Lohe v Bird [2004] QSC 023. The effect of that order is preserved by s 16 of the Vexatious Proceedings Act 2005 (Qld). Neither as made nor preserved did that declaration have the effect that Mr Bird required leave to institute proceedings in this Court. It did require that he obtain leave before, materially, instituting proceedings in the Queensland Supreme Court. He sought such leave last year in respect of a proposed proceeding in which the relief claimed bears a remarkable similarity to that claimed in the originating application which the registrar declined to accept for filing in this Court. On 30 April 2015, the Queensland Supreme Court (Martin J) refused to grant Mr Bird leave to institute his proposed proceeding in that court: Re Application by Geoffrey James Bird [2015] QSC 100.

15    In 2005, while the subject of the vexatious litigant order in respect of the Queensland courts, Mr Bird sought to file in the Queensland Supreme Court a “cross appeal” against a decision of the Guardianship Tribunal made on 9 December 2004. By that decision, the Guardianship Tribunal appointed the Adult Guardian as guardian for Elizabeth Jane Rickleman for certain personal matters, and continued the appointment of the Public Trustee as administrator for her in all financial matters. The Guardianship Tribunal also declared invalid an enduring power of attorney by which Ms Rickleman appointed Mr Bird as her attorney. This “cross appeal” was held to fall outside the contemplation of the relevant Queensland statute with Mr Bird’s application for leave to file it being consequentially dismissed: Bird v Public Trustee of Queensland & Ors [2005] QSC 54 (de Jersey CJ). A subsequent application by Mr Bird and Ms Rickleman for special leave to appeal to the High Court was refused on 6 October 2005: Bird v Public Trustee of Queensland & Ors [2005] HCATrans 795.

16    Turning then to the grounds of appeal, the first proceeds on a false premise in that, contrary to the recitation in the ground, the primary judge did not hold that this Court did not have power to quash a decision of the SSAT. To the contrary, her Honour conceded that the Court had such a power (see [29] of her Honour’s reasons for judgment). Decisions of the SSAT were amenable to judicial review under either or each of the jurisdictions conferred on the Court by s 39B(1A) of the Judiciary Act 1903 (Cth) (Judiciary Act) or the ADJR Act. One order which might have been granted in the exercise of either jurisdiction was an order quashing a decision of the SSAT on the basis of jurisdictional error. The granting of such relief is discretionary and the existence of a full right of review on the merits by the Administrative Appeals Tribunal of a decision of the SSAT would always have been a relevant consideration in respect of whether to grant such relief, if not whether summarily to dismiss the application itself.

17    The second ground of appeal takes issue with certain conclusions reached by the primary judge as to an absence of jurisdiction on the part of this Court to review decisions made under the Guardianship and Administration Act either by the Guardianship Tribunal or its successor, the Queensland Civil and Administrative Tribunal or by other State officials or tribunals in respect of Ms Rickleman or a power of attorney granted by her in favour of Mr Bird. Her Honour expressed those conclusions in this way (reasons for judgment, at [29]):

•    On the basis that Ms Rickleman is subject to guardianship orders under the Queensland Guardianship and Administration Act, the application of the applicant insofar as he proposes to seek orders inconsistent with those guardianship orders (including, as in this case, habeas corpus) is incompetent in the Federal Court of Australia. The proper venue for any application in respect of orders under the State guardianship legislation is the State Courts in Queensland.

•    Similar considerations apply in relation to the applicant’s claim that guardianship orders in respect of Ms Rickleman under the State legislation should be set aside, and that Ms Rickleman does not suffer any mental disability.

•    Any orders under the Powers of Attorney Act 1998 (Qld) relating to the validity of an enduring power of attorney of Ms Rickleman are properly the domain of the State Courts in Queensland.

18    In Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Re Wakim), it was held that s 75 and s 76 of the Constitution expressed the limits of the jurisdiction which could be conferred on a court established by the Commonwealth Parliament under Ch III. This Court is such a court. It was further held that it was not competent for a body politic other than the Commonwealth by its Parliament to confer jurisdiction on a court so established. As a consequence, s 9(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Jurisdiction of Courts (Cross-Vesting) Act) was held to be invalid. Materially, that subsection had purported to authorise this Court to exercise jurisdiction (whether original or appellate) conferred on it by a provision of a law of a State relating to cross-vesting of jurisdiction and to hear and determine a proceeding transferred to it under such a provision. In turn and as contemplated by that subsection, s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act had purported to confer on this Court original and appellate jurisdiction with respect to “State matters”, as defined. The definition of “State matter” (s 3(1) of that Act) was very broadly expressed, extending to any matter in respect of which the Supreme Court of Queensland had jurisdiction. Insofar as Mr Bird’s proposed originating application seeks relief against State officials and tribunals, a sequel to Re Wakim is that it is beyond the jurisdiction of this Court to grant that relief.

19    I turn to the third ground of appeal. As Gleeson CJ noted in passing (because it was unnecessary to resolve it in that case) in Al-Kateb v Godwin (2004) 219 CLR 562 at 578, [24], there was a division of opinion in the Full Court in Ruddock v Vadarlis (2001) 110 FCR 491 (Ruddock v Vadarlis) (Black CJ at 509-514, [75] and French J at 546-548, [164] in favour; Beaumont J, at 517-518, [107] – [111], contra) as to whether, the jurisdiction of this Court otherwise having been validly invoked, there was power to grant a writ of habeas corpus or to make an order in the nature of habeas corpus. It may readily be accepted that the conferral on this Court, subject to the limitations specified in that section, by s 39B(1A) of the Judiciary Act, of the power to issue writs of prohibition and mandamus against officers of the Commonwealth “implies ancillary or incidental authority to the effective exercise of that jurisdiction”: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 90, [14] per Gaudron and Gummow JJ. That authority, in conjunction with the power conferred on the Court by s 23 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) in relation to matters in which it has jurisdiction, “to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate” would suggest that, at the least, the Court has power in a case where s 39B jurisdiction has been invoked, to make an order in the nature of habeas corpus, if not also to direct the issuing of such a writ, directed to a person amenable to the Court’s jurisdiction (on this subject, see, too, Clark DA, “Jurisdiction and Power: Habeas Corpus and the Federal Court” [2006] 32(2) Monash University Law Review 275).

20    It is not necessary, however, in order to dispose of the present appeal, to revisit views expressed in Ruddock v Vadarlis as to this Court and habeas corpus. That is because, assuming in favour of Mr Bird that the Court has power to issue such a writ (or at least a power to make an order in the nature of habeas corpus), a complete answer to the third ground of appeal is that Ms Rickleman is neither in the custody or control of an officer of the Commonwealth nor is she being held on behalf of the Commonwealth. If Ms Rickleman is in the custody or control of any person at the facility known as “Herston Lodge”, described by the primary judge in her Honour’s reasons for judgment, that person is a State official who holds her under a State law. There was no material presented to the registrar upon the lodging of the proposed originating application which raised any possibility that Ms Rickleman was in the custody or control of an officer of the Commonwealth or being held under a law of the Commonwealth. The Secretary is only an official responsible for the payment to Ms Rickleman of such benefits as she is entitled under Commonwealth legislation, not for her custody.

21    It follows then that none of the grounds of appeal has any merit. The registrar was correct to reject the filing of Mr Bird’s proposed originating application and the learned primary judge rightly dismissed the application for the judicial review of that decision.

22    That Mr Bird chose to institute such a challenge to the registrar’s decision and this appeal on bases which never enjoyed any reasonable prospect of success does raise, when the fate of the earlier litigation, its background and outcome is taken into account a question as to whether this Court ought now to make an order under s 37AO of the Federal Court of Australia Act. That section provides:

Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b)    a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted a vexatious proceeding in an Australian court or tribunal.

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

Note:    Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

(3)    The Court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a)    the Attorney-General of the Commonwealth or of a State or Territory;

(b)    the Chief Executive Officer;

(c)    a person against whom another person has instituted or conducted a vexatious proceeding;

(d)    a person who has a sufficient interest in the matter.

(4)    The Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(5)    An order made under paragraph (2)(a) or (b) is a final order.

(6)    For the purposes of subsection (1), the Court may have regard to:

(a)    proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b)    orders made by any Australian court or tribunal; and

(c)    the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

23    The Court put to Mr Bird, in the course of the hearing of the appeal, whether he ought to be subject to an order under s 37AO relating to Elizabeth Jane Rickleman or to her receipt of benefits under Commonwealth legislation and offered him the opportunity to show cause why such an order ought not to be made.

24    Mr Bird’s initial oral response and his subsequent written submissions, taking up an offer which the Court extended to him at the hearing, considered in conjunction with his submissions both in writing and orally in respect of the appeal itself and the background I have recited, make it plain that he is obsessed with a perceived injustice arising from the orders which have been made by State tribunals in respect of Ms Rickleman and by his failure to persuade the Secretary and the SSAT and then the Federal Magistrates Court that he ought to be appointed as her payment nominee in respect of social security benefits. As to the former, these are issues for the State Courts, the Queensland Civil and Administrative Tribunal (in succession to the Guardianship Tribunal) or, as the case may be, the Queensland Mental Health Review Tribunal and, as to the latter, these have been litigated to finality, now long ago, in the then Federal Magistrates Court.

25    Mr Bird’s subsequent written submissions also disclose that this obsession interplays with a disposition to attribute adverse forensic outcomes, past or prospective, to baseless, if not scandalous or bizarre, conspiracies. For example, he attributes past adverse administrative and judicial outcomes to “the regime” (not otherwise particularised) “stacking the courts and public service with Catholic educated people, as though Catholics have more merit than Protestants”. It is neither necessary nor desirable, in respect of this submission, to do other than observe that it evidences the disposition just mentioned.

26    Mr Bird also assumes in his written submissions as to whether a s 37AO order ought to be made that the copying, pre-hearing, on 17 August 2016, to an officer of the Australian Government Solicitor’s Office, of an email to him from my Associate concerning lists of authorities, also copied to the Associates to other members of the Full Court, is indicative that the Court is “being lobbied by the Australian Government Solicitor to decide this case contrary to how I am seeking it be decided.” It is true that the Australian Government Solicitor was not, as sometimes occurs in litigation to which the registrar is a party, in this instance engaged to act for the registrar (the registrar filed a submitting notice directly, rather than with the assistance of external legal representation). This concern was not raised by Mr Bird at the subsequent hearing of the appeal. Had it been, he would have been informed in open court (and the fact is) that the copying of that email to an officer of the Australian Government Solicitor’s Office was the result of nothing more than inadvertent error on the part of the Associate, not responsive to or indicative of any lobbying or any communication whatsoever from that office about this case.

27    The relevance of Mr Bird’s assumption for present purposes is that it evidences his readiness, on the basis of nothing more than the addition of an email address, to assume conduct on the part of the Australian Government Solicitor and the Associate which would not just blatantly violate the obligation to behave honestly and with integrity, found in the Australian Public Service Code of Conduct in s 13(1) of the Public Service Act 1999 (Cth) but also constitute the serious federal offence of attempting to pervert justice, contrary to s 43 of the Crimes Act 1914 (Cth). To display such a readiness on such a foundation is indicative of an inability reasonably to conduct both the present appeal and the proceeding which Mr Bird sought to institute. This inability is especially so given that Mr Bird is, so he informed us, presently embarked on tertiary legal studies. The inability described is consistent with his failed application last year to institute in the Queensland Supreme Court the proceeding described above.

28    A number of terms within s 37AO are either defined or have been the subject of prior judicial consideration as to their meaning. Materially, s 37AM of the Federal Court of Australia Act provides, in respect of the term, “institute”:

“institute”, in relation to proceedings, includes:

(a)    for civil proceedings--the taking of a step or the making of an application that may be necessary before proceedings can be started against a party;

The term “proceeding” is defined in s 4 of the Federal Court of Australia Act to include an appeal such as this appeal. The expression “vexatious proceeding” is defined in s 37AM of the Federal Court of Australia Act to include: “a proceeding instituted or pursued in a court or tribunal without reasonable ground”. The word “vexatious” has been held to include proceedings “which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court”: see Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, Starke J, with whom Crockett and Beach JJ agreed, 4 September 1984, at 12) and Garrett v Federal Commissioner of Taxation (2015) 147 ALR 342; [2015] FCA 117 at [4] per Pagone J. The word “frequently” involves “…no numerical threshold …….and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case”: see Mathews v Queensland [2015] FCA 1488 at [85] per Reeves J and HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [114] per Perry J.

29    The ADJR Application and the present appeal are each to be characterised as the taking of a step or the making of an application necessary before proceedings can be started against the parties specified by Mr Bird in his proposed originating application. That is because each seeks to secure the overturning of a decision which refused him permission to file that originating application.

30    Realistically, Mr Bird’s persistence, via the ADJR Application and this appeal in his endeavour to secure an order permitting the filing of the proposed originating application is but the present manifestation of a disposition on his part frequently to institute vexatious proceedings in Australian courts. As was observed by Griffiths J (with whom I and Pagone J agreed) in Mbuzi v Griffith University [2016] FCAFC 10 at [99] of the Court’s power to make an order under s 37AO(2)(b) of the Federal Court of Australia Act, “There are two conditions to the Court ’s power or discretion to make such an order. The first is that the relevant person “has... instituted or conducted vexatious proceedings” (which need not be the current proceeding). The second is that the vexatious proceedings have been instituted or conducted ‘frequently’”. I am satisfied that each of those conditions is met here. The inference is inescapable that Mr Bird has sought to file the proposed originating application in this Court and then persisted in that endeavour by litigation both in the original jurisdiction and now on appeal because of the restriction imposed upon him by the vexatious litigant order in respect of earlier proceedings in the Queensland courts and his failed application last year to institute a proceeding in the Queensland Supreme Court.

31    It is always a serious thing to limit a person’s ability to access the judicial power of the Commonwealth (von Reisner v Commonwealth of Australia (2009) 177 FCR 531 at 536, [24]) but in these circumstances and in addition to an order dismissing the appeal it is appropriate to make the following order under s 37AO(2)(b) of the Federal Court of Australia Act:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Geoffrey James Bird be prohibited from instituting any proceeding in this Court relating to Elizabeth Jane Rickleman or to her receipt of benefits under Commonwealth legislation to which the Public Guardian of Queensland, the Public Trustee of Queensland, the Director-General, Queensland Department of Health or the Secretary to the Department of Human Services (or the holder of any successor office in respect of each of the foregoing), his Honour Judge Stuart Roberts, Federal Circuit Court Judge (and formerly a Federal Magistrate) or a tribunal established under Commonwealth or State legislation, the State of Queensland or the Commonwealth of Australia or any of the foregoing is a party.

32    The Court is permitted to make such an order on its own initiative: s 37AO(3) of the Federal Court of Australia Act. It is desirable, given the obsession mentioned, to cast the order more widely than just the presently proposed respondents so as to negate any endeavour to subvert the prohibition by, for example, the naming of a body politic or tribunal as a respondent, rather than a particular public official.

33    For these reasons, there should be orders made accordingly.

Associate:    

Dated:    21 December 2016

REASONS FOR JUDGMENT

REEVES J:

34    I generally agree with the reasons of, and the orders proposed by, Logan J.

Associate:    

Dated:    21 December 2016

REASONS FOR JUDGMENT

MARKOVIC J:

35    I generally agree with the reasons of, and the orders proposed by, Logan J.

Associate:    

Dated:    21 December 2016