FEDERAL COURT OF AUSTRALIA

Nyoni v Murphy [2018] FCAFC 75

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    No order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal concerns the refusal by a Registrar of this Court to accept certain documents for filing. The respondents indicated that they submit to the outcome of the appeal and did not wish to be heard.

2    The appellant, Mr Nyoni, did not appear at the hearing of the appeal. He had foreshadowed in communications with the Court that he would be applying for an adjournment on the basis that he wished to seek legal advice. He did not do so. The issue of obtaining legal advice had been raised at a case management hearing in March 2018. Mr Nyoni was informed prior to the hearing that the hearing would proceed if he did not apply for and obtain an adjournment. When the matter was called on for hearing, Mr Nyoni did not appear. The Court officer made due inquiries in the Court precinct but Mr Nyoni was not located and there was no record of any further communication with the Court.

3    In the circumstances, rather than dismiss the appeal summarily, we have chosen to determine it and accordingly deliver these reasons.

Background

4    The parties have been involved in ongoing litigation since 2010.

5    In 2015, the respondents caused a bankruptcy notice to issue to Mr Nyoni. The debt referred to in the bankruptcy notice comprised the respondents' entitlement to costs in an amount exceeding some $80,000 under various costs orders.

6    On 17 February 2017 a judge of the Federal Circuit Court of Australia made a sequestration order against the estate of Mr Nyoni based on his non-compliance with the bankruptcy notice. His Honour delivered detailed reasons: see Murphy & Ors v Nyoni [2017] FCCA 143.

7    On 27 April 2017 Mr Nyoni sought an extension of time to appeal the orders of the Federal Circuit Court to this Court. The application was heard by Barker J on 18 July 2017. On 16 August 2017 Barker J dismissed the application, having formed the view that the reasons for decision of the primary judge did not reveal any error: Nyoni v Murphy [2017] FCA 941.

8    On 24 August 2017 Mr Nyoni sought to file in this Court an interlocutory application and supporting affidavit seeking, amongst other things, that the judgment and orders of Barker J be 'set aside' pursuant to r 39.05(c), (e), (g) and (h) of the Federal Court Rules 2011 (Cth). We will refer to those rules as the 2011 Rules, as the Federal Court Rules as at 1979 are also referred to below.

9    Rule 39.05 of the 2011 Rules provides as follows:

The Court may vary or set aside a judgment or order after it has been entered if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

10    By the proposed application, in addition to seeking to have Barker J's judgment and orders set aside, Mr Nyoni also sought to have 'the proceedings listed de novo before a different judge' and an order that Barker J be recused from the proceedings. The affidavit filed in support of the proposed application addressed the refusal by Barker J of Mr Nyoni's application filed 3 July 2017 that he recuse himself. Justice Barker had heard that application and refused it on 18 July 2017 before then proceeding with the hearing of the extension application. In the proposed affidavit Mr Nyoni also contested certain factual findings in the reasons published by Barker J.

11    By letter dated 24 August 2017 the Registrar wrote to Mr Nyoni informing him that she was rejecting the documents for filing under r 2.26 of the 2011 Rules. That rule provides:

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 with the document.

12    The Registrar's letter stated as follows:

I am writing to you in relation to the following documents you recently lodged with the Registry entitled:

"Interlocutory application"; and

"Affidavit of Emson Nyoni dated 24 August 2017".

By these documents you purport to apply to vary or set aside the judgment and orders of Justice Barker made on 16 August 2017 in proceeding number WAD193/2017 purportedly pursuant to r 39.05(c), (e), (g) and (h) of the Federal Court Rules 2011 (Rules).

[The Registrar reproduced r 2.26]

I am satisfied on the face of the documents that they are frivolous and vexatious and would constitute an abuse of process if accepted for filing. This is because each circumstance on which you seek to rely pursuant to r 39.05(c), (e), (g) and (h) plainly does not arise. There is no basis on which to assert that the judgment was interlocutory or did not reflect the intention of the Court, or contained a clerical mistake or error arising from an accidental slip or omission. Accordingly, the documents are not accepted for filing and returned with this letter.

13    Mr Nyoni then applied for review of the Registrar's decision to refuse to accept the documents for filing, relying upon the power of a court under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) to review a decision of a Registrar.

14    Section 35A(5) provides that:

A party to proceedings in which a Registrar has exercised any of the powers of the Court under subsection (1) may, within the time prescribed by the Rules of Court, or within any further time allowed in accordance with the Rules of Court, apply to the Court to review that exercise of power.

15    Section 35A(1) provides:

Subject to subsection (2), the following powers of the Court may, if the Court or Judge so directs, be exercised by a Registrar:

(a)    the power to dispense with the service of any process of the Court;

(b)    the power to make orders in relation to substituted services;

(c)    the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the court of any other person;

(d)    the power to make orders in relation to interrogatories;

(e)    the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings;

(f)    the power to make an order as to costs;

(g)    the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court;

(h)    a power of the Court prescribed by Rules of Court.

16    The application for review was determined and dismissed by Siopis J: Nyoni v Murphy (No 2) [2017] FCA 1479. Mr Nyoni now appeals from the decision of Siopis J.

The arguments before the primary judge

17    The respondents contended that Mr Nyoni's application for review of the Registrar's decision was misconceived because the Court does not have the power to review a decision of a Registrar of this Court under r 2.26 of the 2011 Rules not to accept a document for filing. However, the respondents also said that Mr Nyoni's application could proceed as an application for review of the Registrar's decision under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). They contended that in any event the application should be dismissed because none of the grounds provided for by s 5 of the ADJR Act are established.

18    Accordingly, the primary judge dealt with two matters:

(1)    whether the Court has power under s 35A(5) of the Federal Court Act to review the decision of a Registrar made under r 2.26 to refuse to accept a document for filing; and

(2)    the application for review of the Registrar's decision under s 5 of the ADJR Act.

Power under s 35A(5)

19    As to the first matter, the applicant referred to authorities which it was said proceeded on the basis that the Court has power under s 35A(5) of the Federal Court Act to review the decision of a Registrar made under r 2.26 to refuse to accept a document for filing: Druett v Segal [2011] FCA 1191; Reaper v Luxton [2015] FCA 430; and Haque v Tesoriero [2017] FCA 86.

20    The respondents referred to the earlier Full Court decision in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; (2010) 268 ALR 222, in which it was held that the decision of a Registrar not to accept a document for filing under the equivalent power contained in O 46 r 7A(1) of the Federal Court Rules 1979 (Cth) (1979 Rules) was in the circumstances administrative, and not reviewable under s 35A(5) of the Federal Court Act.

21    The primary judge applied the observations made in Satchithanantham. His Honour first noted that s 35A(5) does not in terms confer on the Court the power to review the exercise of a Registrar's power under r 2.26 of the 2011 Rules to refuse to accept a document for filing. Such power to review is confined to the 'powers of the Court under subsection (1)', which do not include the power to refuse to accept a document for filing.

22    The primary judge's analysis of the authorities was as follows (at [14]-[21]):

The Full Court in the case of Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 (Satchithanantham) held that the decision of a Registrar not to accept a document for filing under the equivalent power contained in O 46 r 7A(1) of the Federal Court Rules 1979 (Cth) (the 1979 Rules) was not reviewable under s 35A(5) of the Federal Court Act. The Full Court in Satchithanantham at [48], referred to the following observations of the Full Court in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 (Manolakis) at [19]:

Second, 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)).

The Full Court in Satchithanantham then went on to observe at [49] and [50]:

[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 Sch 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).

Although the decisions referred to by the applicant post-date the introduction of the 2011 Rules and, therefore, deal with the exercise of a Registrar’s power under r 2.26 of the 2011 Rules rather than O 46 r 7A(1) of the 1979 Rules, there is, in my view, no meaningful distinction between the effect of r 2.26 of the 2011 Rules and O 46 r 7A(1) of the 1979 Rules.

Further, it is to be observed that all three decisions relied on by Mr Nyoni are first instance decisions.

The reasons for decision in Druett are very brief, and Robertson J's attention was apparently not drawn to the Full Court decision in Satchithanantham because there is no mention of that decision in Druett.

In Reaper, Tracey J relied upon Druett in support of his obiter observation that the Court had power under s 35A(5) of the Federal Court Act to review a decision of a Registrar under r 2.26 of the 2011 Rules to reject a document for filing. Tracey J did refer to the Full Court decision in Satchithanantham, but only to the extent of recognising that the Full Court decision stood as an authority for the proposition that an aggrieved applicant could also review a Registrar's decision under r 2.26 to refuse a document for filing under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Tracey J did not comment upon the specific observations by the Full Court at [48] and [49] in Satchithanantham (referred to at [14] and [15] above), as to the limitation on s 35A(5) as a source of power to review a Registrar's decision to refuse a document for filing.

In Haque, there was no reference by Bromwich J to the Full Court decision in Satchithanantham.

In light of the foregoing, I intend, therefore, to follow the reasoning in the Full Court decision in Satchithanantham.

23    The primary judge accordingly dismissed Mr Nyoni's application for review of the Registrar's decision insofar as it relied upon s 35A(5) of the Federal Court Act.

Review under s 5 ADJR Act

24    Before the primary judge, Mr Nyoni contended that his application to set aside Barker J's decision was based on the contention that Barker J's decision and orders did not reflect the intention of the Court and so the application was properly brought under r 39.05 of the 2011 Rules.

25    Mr Nyoni contended that his application was not an abuse of process nor frivolous and vexatious, and that the Registrar must be taken to have failed to have properly construed r 39.05 of the 2011 Rules in characterising Mr Nyoni's application as such, and in refusing to accept his proposed application and supporting affidavit for filing.

26    The primary judge dismissed the application for review, stating (at [25]):

In my view, it is clear beyond argument, that the Registrar did not err in finding that on the face of the documents submitted to be filed, Mr Nyoni's application to set aside the decision of the primary judge on any grounds referred to in r 39.05(c), (e), (g) and (h) of the 2011 Rules, was an abuse of process and frivolous and vexatious. The Registrar did not misconstrue r 39.05 of the 2011 Rules. The Registrar's decision was correct for the reasons which she gave.

Grounds of appeal

27    There are six grounds of appeal. Grounds 1 to 4 seek to reopen issues as to the validity of the bankruptcy notice and ask that the Court go behind the matters upon which the creditor's petition was issued. Those matters are outside the scope of the issues considered by the primary judge and are an attempt to circumvent Barker J's refusal to grant an extension of time for commencing an appeal from the Federal Circuit Court's orders. Those grounds are dismissed.

28    Ground 5 contends, in effect, that it was an error of law and fact for the Court to rely upon Satchithanantham and to dismiss the application for review under s 35A(5) of the Federal Court Act.

29    Ground 6 contends that the primary judge failed to assess any of the review grounds under s 5 of the ADJR Act.

Consideration - Ground 5

30    The primary judge's analysis of the authorities referred to above was accurate and in our view his Honour was right to follow and apply the Full Court's decision in Satchithanantham.

31    First, the power exercised is not a 'power of the Court' under s 35A. None of the powers listed in s 35A refer to the power to refuse documents for filing.

32    Second, the Registrar's decision in this case was a decision of an administrative nature. The decision did not follow any direction made by a judge (and accordingly we have not addressed such a scenario). There is no evidence to suggest the Registrar formed her opinion based on anything other than the documents. The Registrar's letter states that she is satisfied 'on the face of the documents' that they are frivolous or vexatious. We concur with the view of the Full Court in Satchithanantham (at [49]) that such a decision of the Registrar is one which is administrative in nature and not of a judicial character. There is no reason to distinguish the power exercised under O 46 r 7A of the 1979 Rules as considered in Satchithanantham from that exercised by the Registrar under r 2.26 of the 2011 Rules. We concur with the primary judge's conclusion in that regard (and see Rahman v Hedge [2012] FCA 68 at [5] where Perram J considered the two provisions were substantially the same).

33    The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend. Procedural law deals with the means and instruments by which courts regulate the conduct and relations of courts and litigants in respect of the litigation itself: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176. Compliance with rules as to practice and procedure is usually adjudicated rather than dealt with administratively. However, some aspects of procedural law are carried into effect administratively without any judicial determination.

34    Subject to provisions within the Federal Court Act with respect to practice and procedure, the practice and procedure of this Court shall be in accordance with Rules of Court: s 38 of the Federal Court Act. In particular, the Rules of Court may make provision for or in relation to the practice and procedure to be followed in Registries of the Court (that is, by Registrars in dealing with those aspects of procedure that are to be dealt with administratively): s 59(1) of the Federal Court Act. The Rules of Court have the force of law as rules of practice and procedure: TK v Australian Red Cross Society (1989) 1 WAR 335, 340. They deal with the means by which substantive rights may be enforced in the conduct of court business and may not go so far as to make, alter or remove substantive rights: Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324-325, 341-342.

35    The power conferred by r 2.26 is to be contrasted with a power of the kind considered in North Ganalanja Aboriginal Corporation v Queensland [1996] HCA 2; (1996) 185 CLR 595 where the Registrar of the National Native Title Tribunal was required to form an opinion whether an application was frivolous or vexatious or prima facie could not be made out, and if that view was formed to refer the matter to the President for adjudication after giving the applicant a reasonable opportunity to satisfy the President to the contrary. If both the Registrar and the President were of the view that the application was frivolous or vexatious or prima facie could not be made out then the application would not be accepted by the Tribunal. Under a power of that kind, there is an adjudication whether to accept the application.

36    In this Court Registrars may act judicially or administratively. They act judicially when they are given powers under s 35A(1) of the Federal Court Act. They act administratively by exercising powers validly conferred under Rules of Court concerning the procedure to be followed in Registries.

37    For reasons we have given, the power conferred by r 2.26 is not a judicial power being exercised under s 35A(1) of the Federal Court Act. Under r 2.26, the refusal of acceptance of the document means that the matter is not brought forward for any adjudication.

38    In those circumstances, a Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious. For reasons we have given, we are satisfied that the Registrar acted properly in the exercise of such an administrative power in refusing to accept the application in the present case, and Siopis J was correct to dismiss Mr Nyoni's application to this Court in respect of that refusal.

39    However, in doing so, we wish to make clear that the Registrar's view that 'there is no basis on which to assert that the judgment was interlocutory or did not reflect the intention of the Court, or contained a clerical mistake or error arising from an accidental slip or omission' was correct because of the form of the application. On its face, the form of the application and the affidavit in support did not invoke any aspect of r 39.05(c), (e), (g) or (h). It made no claim of the kind provided for in those provisions. It was not for the Registrar under r 2.26 to adjudicate the substance of the claim and whether there was any basis to bring that application. In our view, the Registrar did not do so.

40    We would dismiss ground 5.

Consideration - Ground 6

41    As the Registrar's decision was a decision of an administrative character, it may be susceptible to judicial review under the ADJR Act.

42    In his submissions before the primary judge, Mr Nyoni did not clearly specify the ground upon which he sought judicial review of the Registrar's decision, but the complaint was in effect that the Registrar misconstrued r 39.05(e) of the 2011 Rules because Barker J's decision and orders 'did not reflect the intention of the Court'.

43    The relevant exchange before the primary judge was as follows:

HIS HONOUR: Right. Do you want to say why you say the judgment of the decision of the Registrar was - gives you a right under the ADJR Act? What was wrong with the decision of the Registrar? That's you, Mr Nyoni

MR NYONI: Why it should be or should not?

HIS HONOUR: Well, what do you say - if I'm against you and I find that the ADJR Act is the appropriate way in which the decision of the Registrar can be reviewed, what do you say the Registrar did wrong? What was the error, the administrative law error which occurred?

…

HIS HONOUR: Right. Yes. All right. And what do you say the Registrar did wrong?

MR NYONI: In the - here is the situation which was put under a difficult thing. There's a myriad of issues that underlie that problem, and first, the actual application for leave – sorry, for the notice of appeal was filed on time, but then for some reason there was a lot of problems that led to the - at the end that I had to file an extension of time for leave to appeal. So that alone was very, very difficult in the sense that it put me out of the appeal process. And by the time I was allocated to his Honour had already handled similar matters. And by applying for a recusal, I wasn't even successful with that.

So all it meant was that the entire application went back to being dealt with without considering the justice in the situation. And then the fact that his Honour did not take into account those two aspects, that's the exhibit 1 which he had during the proceeding prior to the - to his - to the judgment, and also that he couldn't recuse himself. And having such a complex matter the way it was, I felt that it needed to be heard, rather than to be discarded by a registrar, and that put the whole matter into an unusually difficult situation.

HIS HONOUR: But which of the sections of section 39.05 do you say that this matter fell into?

MR NYONI: 39.

HIS HONOUR: Barker J's decision was a refusal of leave. It wasn't obtained by fraud, not in the absence of - you were present. It wasn't interlocutory. It wasn't an injunction or an appointment of receiver. It does not reflect - and you would have to - the Registrar said that none of the paragraphs that you were relying on, on its face, had any ---

MR NYONI: Yes.

HIS HONOUR: --- relevance to the claim. So you couldn't bring yourself within 39.05, and that's why she refused your documents.

MR NYONI: Well, in that case, I would have perhaps said that the - it was not the intention of the court, really, to - for her to reject that application.

44    Mr Nyoni complains that the primary judge did not carry out a review under the ADJR Act. Viewed against the exchange to which we have referred, it is clear that the primary judge was cognisant of the fact that he was reviewing the Registrar's decision. His Honour referred to the relevant subparagraphs of r 39.05 as set out in Mr Nyoni's rejected application. His reasons refer to the Registrar's reasons and his Honour confirms and agrees with the Registrar's reasons.

45    The part of the primary judge's reasons addressing the review is justifiably short, given the context. Justice Barker had published detailed reasons and made orthodox orders dismissing the extension application. The Registrar had addressed each of the paragraphs of r 39.05 upon which Mr Nyoni relied. The Registrar was satisfied that each circumstance upon which Mr Nyoni relied did not arise. Justice Barker's orders refusing the extension were not interlocutory. The orders were not complex. The application and affidavit claimed there was error in Barker J's judgment but did not identify a respect in which the orders did not reflect the intention of the Court. In the face of the express power provided by r 2.26, and in all of the circumstances, there was no foundation to support Mr Nyoni's oral submission before the primary judge that the Court did not intend the Registrar to have the power to reject the documents. Nor was there any valid basis upon which to assert that the judgment or orders contained a clerical mistake or error arising from an accidental slip or omission within the meaning of r 39.05(g) or r 39.05(h).

46    Whilst Mr Nyoni referred in the rejected affidavit to perceived errors in Barker J's reasons, it must be remembered that r 39.05 is not a vehicle for an appeal, nor an alternative to an appeal process. It does not provide a means to revisit the correctness of a reasoning process. Rules 39.05(g) and r 39.05(h) are the Rules' equivalent form of the 'slip rule': see generally Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (No 2) [2012] FCA 1404; (2012) 209 FCR 123 at [3]-[4], [8] and [10]; Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 943; (1995) 61 FCR 385, 389; Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179; (2009) 263 ALR 384 at [22]-[25].

47    General claims of error in the reasons are not a justification for invoking the slip rule with respect to Barker J's orders.

48    Taking into account those principles, it is clear that the Registrar's refusal to accept the documents was made within power and was correct. No error is disclosed.

49    Therefore, it is understandable that the primary judge's reasons on the review were short: there is little that can be said when it is apparent on the face of the documents that the Registrar's refusal of the documents was correct. Rule 39.05 provides no basis upon which Mr Nyoni could properly seek to have the judgment or orders of Barker J set aside or varied. The primary judge considered the grounds, noted the Registrar's reasons and found no ground for judicial review of the Registrar's assessment. His Honour's decision, with respect, was undoubtedly correct and the Court cannot discern reviewable error.

50    Ground 6 of the appeal is dismissed.

Determination

51    The appeal is dismissed. In light of the submitting appearance, there is no order as to costs.

Associate:

Dated:    25 May 2018