FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Burns [2024] FCAFC 105

ORDERS

THE COURT ORDERS THAT:

In SAD 1 of 2024:

1.    Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

2.    On or by 4 weeks from date of these orders, the appellant:

(a)    file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Trevor Kingsley Ferdinands be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b)    notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought be made by the Full Court and, in the absence of such notification, the issue as to whether the proposed order ought be made be dealt with on the papers by the Full Court.

3.    On or by 6 weeks from the date of these orders, in the event that an amicus curae is appointed to assist the Court in connection with whether the proposed order ought be made, the amicus provide any material including written submissions to District Registrar Colbran who will provide copies to the appellant and to the Full Court.

4.    Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Full Court on a date to be fixed not earlier than 8 weeks from date of these orders.

In SAD16 of 2023:

5.    Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

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

REASONS FOR JUDGMENT

THE COURT:

OVERVIEW

1    These reasons concern two appeals heard together before the Full Court. Both appeals were instituted by the same appellant, Mr Trevor Kingsley Ferdinands. The immediate genesis of each appeal lies in the refusal of a Registrar to accept for filing documents which Mr Ferdinands lodged. In each case the Registrar made an administrative decision pursuant to r 2.26 of the Federal Court Rules 2011 (Cth).

2    At a basal level, the genesis of these appeals, as with many of the proceedings Mr Ferdinands has commenced and or sought to commence, traces back to his dismissal from the South Australian Police (SAPOL) in 2001 following his prosecution on a charge of assaulting an inferior before a Defence Force Magistrate in 1999 and his conviction of an assault in the Adelaide Magistrates Court in 2001. Over many years, Mr Ferdinands has pursued claims in a variety of fora seeking to agitate his grievances arising out of, and in relation to, these events. In his submissions, written and oral, he stridently asserts that he was the victim of racially motivated and corruptly fabricated charges. Mr Ferdinands has instituted many, many proceedings in many different courts and tribunals. He appears to have exhausted all avenues of appeal in relation to his convictions and the termination of his employment in 2001. Yet he persists.

3    In 2013, a five-member bench of this Court dismissed a notice of appeal from the Defence Force Discipline Appeal Tribunal under section 52(3) of the Defence Force Discipline Appeals Act 1955 (Cth) filed by Mr Ferdinands on 3 April 2013: Ferdinands v Chief of Army [2013] FCAFC 103. At that time the Full Court also ordered that if Mr Ferdinands filed any proceeding in the Court that in any way relates to a charge for which he was convicted by a Defence Force Magistrate under the Defence Force Discipline Act 1982 (Cth) following the trial between 25 October and 4 November 1999, the District Registrar was not to give a return date and was to require Mr Ferdinands to show cause why the proceeding should not be dismissed as vexatious and an abuse of process with such application to show cause to be dealt with on the papers unless otherwise ordered (the 2013 show cause orders). As mentioned, the refusal decisions of each of the Registrars that are the subject of the present appeals were made pursuant to r 2.26 of the Rules. Neither Registrar referred to the 2013 show cause orders.

4    The administrative decisions of the two Registrars were each the subject of a judicial review application. The judicial review applications were heard separately before single judges of this Court. In each case the applications were dismissed. The present appeals are from the decisions of each of those single judges. The appeals were listed to be heard concurrently before the Full Court and were heard on 7 August 2024.

5    We are satisfied that each Registrar acted properly in the exercise of the administrative power conferred under r 2.26 of the Rules and that each of the primary judges was correct to dismiss Mr Ferdinands’ review applications.

6    Separately, in the course of considering the materials filed by Mr Ferdinands in connection with the present appeals, we have reached the view that it is appropriate to initiate a process pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). We have come to the preliminary view that it may be that the Court could be satisfied that Mr Ferdinands has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and, if this is established, that a vexatious proceedings order could follow. In the circumstances, it will be necessary to hear from Mr Ferdinands.

7    For the reasons that follow, we will make orders that the appeals will be dismissed following our determination of whether a vexatious proceedings order ought be made in relation to Mr Ferdinands.

BACKGROUND

8    On 6 July 2022 and 17 July 2023, Mr Ferdinands lodged a collection of documents for filing in the South Australia District Registry. On each occasion, the lodgment was referred to the National Duty Registrar who refused to accept the documents for filing pursuant to r 2.26 of the Rules.

9    The documents lodged on 6 July 2022 comprised the following:

(1)    Form 66: Originating application for judicial review dated 4 July 2021 [sic] (45 pages);

(2)    Affidavit of Trevor Kingsley Ferdinands sworn 4 July 2022 (10 pages); and

(3)    Outline of Submissions dated 4 July 2022 (31 pages).

These documents were referred to Registrar Allaway in his capacity as National Duty Registrar. Registrar Allaway refused to accept the documents for filing on 6 July 2022 and provided a short statement of reasons in a letter on that same day (the Allaway Refusal).

10    The documents lodged on 17 July 2023 comprised the following:

(1)    Form 66: Originating application for judicial review, dated 17 July 2023 (17 pages);

(2)    Affidavit of Trevor Kingsley Ferdinands, sworn 17 July 2023 (108 pages);

(3)    Outline of Submissions, dated 17 July 2023 (43 pages); and

(4)    List of Authorities, dated 17 July 2023 (3 pages).

These documents were referred to Registrar Burns in her capacity as National Duty Registrar. Registrar Burns refused to accept the documents for filing on 21 July 2023 and provided reasons in a letter on that same day (the Burns Refusal).

11    Mr Ferdinands commenced separate applications for judicial review in respect of each refusal decision. The applications were each dismissed: Ferdinands v Allaway, National Duty Registrar (No 2) [2023] FCA 12 (Allaway Review); Ferdinands v Registrar Burns [2023] FCA 1646 (Burns Review). The applications were each determined by a primary judge. The applications were not determined by the same primary judge. For the purpose of these appeals it is not necessary to distinguish between the two primary judges. We will refer to each of the primary judges as the Primary Judge.

12    On 7 February 2023, Mr Ferdinands lodged an appeal in respect of the Allaway Review (the SAD16/2023 Appeal). On 3 January 2024, Mr Ferdinands lodged an appeal in respect of the Burns Review (the SAD1/2024 Appeal). In the SAD1/2024 Appeal Mr Ferdinands filed a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General of the Commonwealth or of the States sought to be heard in response to the s 78B notice.

13    In each of the present appeals, Mr Ferdinands seeks, amongst many other things, to set aside each of the administrative and judicial decisions referred to above. The present appeals raise common issues and are now determined concurrently. For each of the appeals, the respondent Registrar will be referred to simply as the Registrar. In each appeal the Registrar has relevantly entered a submitting appearance.

14    The progress of the SAD16/2023 Appeal was interrupted for a period of some 11 months during which the proceeding was stayed pending the determination of two consecutive applications in the High Court instituted by Mr Ferdinands. We will address these applications below. For present purposes, the applications were not successful and the stay of the SAD16/2023 Appeal was lifted on 5 April 2024.

15    At the hearing of the appeals on 7 August 2024, Mr Ferdinands appeared in person. He relied on the appeal books and tendered the following additional material.

16    Mr Ferdinands read an affidavit of his own sworn on 22 July 2024 which annexed an 86 page document described as his “oral submissions”. He did not have leave to file this affidavit or written submissions additional to the multiple written submissions that he had already provided. At the time he advanced his written “oral submissions”, Mr Ferdinands indicated that he would not attend the hearing of the appeals. It is not necessary to address his explanation for why that was so, as in the events that transpired, Mr Ferdinands appeared in person and made oral submissions, as well as rehearsing his written “oral submissions”. His oral submissions were in large part repetitive of his written submissions.

APPLICABLE LEGAL FRAMEWORK

The administrative power to refuse to accept a document for filing

17    The applicable principles are well-established and have been repeatedly applied in this Court. The relevant framework commences with r 2.26 of the Rules.

Rule 2.26 of the Rules

18    Under r 2.26 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. In assessing whether a document answers these criteria, the Registrar may have regard to the face of the document. The Registrar may also refer to any documents already filed or submitted for filing with the document.

19    Rule 2.26 is the current iteration of what was previously O 46 r 7A of the Federal Court Rules 1979 (Cth). In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353, the Full Court described the former rule (at [15]):

The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect court procedures from abuse by refusing to accept a document for lodgment or filing which, on its face, would be an abuse of court process or frivolous or vexatious.

20    Rule 2.26 does not confer judicial power. A decision by a Registrar to refuse to accept a document for filing under r 2.26 is an administrative decision. The Full Court in Nyoni v Murphy [2018] FCAFC 75; 261 FCR 164 at [38] described the Registrar’s function as follows:

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 …

See also Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8].

21    The composite phrase “an abuse of process of the Court or is frivolous or vexatious” is not defined in the Dictionary in Schedule 1 of the Rules. Similarly, the components of that phrase are not defined in the Dictionary. The composite phrase is used in a variety of contexts in the legislative scheme providing for the operation of the Court. See, for example, s 37AM(1) of the FCA Act (in respect of a “vexatious proceeding”); and r 26.01 of the Rules (in respect of summary judgment).

22    In Ferdinands v Registrar Cridland at [8], the Full Court referred with approval to White J’s detailed review of the authorities on the meaning of the components of this phrase in Ferdinands v Registrar Cridland [2021] FCA 592 at [27]-[30], culminating in the following observation:

[30]    As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful.  …

Rule 2.27 of the Rules

23    Rule 2.27 of the Rules provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted (r 2.27(e)) or the Court has given a direction that the document not be accepted for filing without the Court’s leave, and leave has not been obtained (r 2.27(f)).

The Court’s jurisdiction to review a refusal decision

24    The Court’s jurisdiction is relevantly limited by statute. The Court’s jurisdiction to review the Refusal Decisions is conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

ADJR Act

25    A Registrar’s refusal decision under r 2.26 is a decision of an administrative character and is amenable to review under s 5 of the ADJR Act: Nyoni at [41]. A Registrar’s decision under r 2.26 of the Rules is not an exercise of judicial power pursuant to delegation. A Registrar’s decision under r 2.26 is not reviewable under s 35A(5) of the FCA Act: Nyoni at [37].

26    Section 5(1) provides that:

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court … for an order of review in respect of the decision on any one or more of the following grounds:

(a)     that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)     that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)     that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)     that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)     that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)     that the decision was induced or affected by fraud;

(h)     that there was no evidence or other material to justify the making of the decision;

(j)     that the decision was otherwise contrary to law.

27    It appears that Mr Ferdinands may potentially rely on the grounds specified in s 5(1)(c), (d), (e), (f) and/or (i).

28    Section 11(1) provides that an application to the Court for review is to:

(1)    be made in the manner as is prescribed by the Rules: s 11(1)(a)(i);

(2)    set out the grounds of the application: s 11(1)(b); and

(3)    be lodged with the relevant Registry within the prescribed period: s 11(1)(c).

29    In making his review application, Mr Ferdinands used Form 66 which is prescribed by r 31.01 of the Rules as the form to apply for an order under s 11(1) of the ADJR Act.

30    Judicial review applications under the ADJR Act are heard in the Court’s original jurisdiction as an appeal by way of rehearing. The review is ordinarily based on the evidence before the decision-maker at the time of the decision but may extend to additional evidence relevant to the particular grounds of review.

31    Section 13 provides for a person with standing to seek review of a decision under s 5 to make a request in writing of the relevant decision-maker to provide a statement of reasons.

Right of appeal to Full Court

32    The FCA Act vests appellate jurisdiction in the Full Court to hear and determine appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court: ss 24(1) and 25(1). The proper role of a court exercising appellate jurisdiction under s 25 is ordinarily to correct error: Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389 at [72]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [22] (and authorities cited therein). A Full Court may affirm, reverse or vary the judgment appealed from: s 28(1).

CONSIDERATION

33    An overarching and relevant feature of the present appeals is that Mr Ferdinands is a repeat and frequent litigant in this Court and in other courts and tribunals. His appetite for commencing and pursuing litigation is properly described as insatiable. This is an issue to which we will return separately below. For present purposes, it is relevant to our consideration of the application of the rubric of abuse of the process of the Court, frivolous or vexatious to the assessment of the documents that Mr Ferdinands attempted to file in each of the proceedings having regard to the face of the documents.

34    As mentioned at the outset, Mr Ferdinands continues to seek to agitate the grievances he has long held arising out of events dating back to 1999 and 2001. Relevantly, the Primary Judge observed in the judgment given on the Allaway Review, that it was the seventh judgment since November 2020 dealing with applications by Mr Ferdinands in respect of various refusal decisions of Registrars exercising the administrative power under r 2.26.

35    Mr Ferdinands has not sought the provision of further or adequate reasons in respect of either of the refusal decisions pursuant to s 13 of the ADJR Act. In his oral submissions Mr Ferdinands confirmed that he did not seek to challenge the adequacy of the reasons provided by either of the Registrars. He submitted that to do so would be to entertain the power he sought to challenge in these appeals.

36    We now turn to address each of the appeals in sequence. Mr Ferdinands focussed in his submissions on the SAD1/2024 Appeal as the principal appeal. He submits that the issues he raises in that appeal apply to and will similarly dictate the outcome of the SAD16/2023 Appeal. It is thus convenient to first address the SAD1/2024 Appeal.

SAD1/2024 Appeal

Registrar’s decision – the Burns Refusal

37    On 21 July 2023, the Registrar refused to accept documents proffered by Mr Ferdinands on 17 July 2023 for filing pursuant to r 2.26 of the Rules. The documents which Mr Ferdinands sought to file are identified at [10] above.

38    The originating application is styled as an “originating application for judicial review” under r 31.01(1) of the Rules. The application is in Mr Ferdinands’ name as applicant and names “Peter Bryden Malinauskas, Premier of South Australia” as respondent. The chapeau to the originating application is as follows:

The Applicant applies to the Court to review the decision of the Peter Bryant Malinauskas that on 10 July 2023 in the State of South Australia he did fail by logic and reason, and by any reasonable conduct to settle a case to which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument.

39    The details of the claim which follow are divided into three overlapping and entangled “parts” which use the language “ultra vires”, “deceit” (the underlying premise being that the Premier was required to make “declarations” of deceit in relation to the subject matter covered by various statutes including the Whistleblowers Protection Act 1993 (SA), the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) [repealed], and the Criminal Law Consolidation Act 1935 (SA)), “fraud” and “public corruption”.

40    The next section of the originating application comprises 19 paragraphs under the heading “Grounds of application”.

41    This is followed by a section entitled “QUESTIONS OF LAW” in which 25 paragraphs composed grammatically as questions are included.

42    The final section of the originating application is headed “Orders sought”. It is divided into two parts. The first part enumerates 53 “orders” and “declarations”. The second part comprises two paragraphs addressed to relief in the nature of “FREEZING ORDERS AND FORFEITURES OF THE FRUITS OF CRIME” (as written).

43    It is not necessary to describe in detail the other documents which Mr Ferdinands lodged for filing with the originating application, other than to note that these documents are relevant in that the Registrar in making a decision under r 2.26 may also refer to any documents already filed or submitted for filing with, relevantly, the originating application.

44    On 21 July 2023, the Registrar by letter informed Mr Ferdinands of her decision to refuse to accept the documents for filing on the basis that they were an abuse of process, frivolous and vexatious. After quoting from the decision of the Full Court in Ferdinands v Registrar Cridland at [8], the Registrar set out her reasons for refusing to accept the documents:

Reasons for refusing to accept the Documents for filing

Having considered the form and content of the Documents, I have refused to accept the Documents for filing, pursuant to rule 2.26 of the Rules, on the basis that that they are an abuse of process, frivolous and vexatious. The reasons for my decision are set out below:

•    the OA names Peter Bryant Malinauskas, Premier of South Australia, as the sole respondent and seeks a review of "the decision of the Peter Bryant Malinauskas that on 10 July 2023 in the State of South Australia he did fail by logic and reason, and by any reasonable conduct to settle a case to which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument". However, the Documents do not particularise, with sufficient detail, a decision that is capable of review by the Court; and

•    the purported cause of action set out in the Documents is one which on the face of it is one which no reasonable person could properly treat as bona fide as it appears to agitate grievances arising out of your dismissal from South Australia Police more than twenty years ago.

Application for judicial review – the Burns Review

45    On 29 July 2023, Mr Ferdinands applied for judicial review of the Registrar’s decision.

46    Mr Ferdinands relied on written submissions and three affidavits of his own filed on 24 July 2023, 8 August 2023 and 6 October 2023. Mr Ferdinands also made oral submissions before the Primary Judge. The Primary Judge delivered judgment dismissing the review application on 22 December 2023 (PJ 1/2024).

47    The Primary Judge summarised Mr Ferdinands’ many grounds of review at PJ 1/2024 [9] as follows:

(1)    the [Registrar’s] decision is ultra vires the power conferred by r 2.26;

(2)    the [Registrar’s] decision is affected by fraud;

(3)    the Registrar was wrong to conclude that this Court did not have the power to review the impugned decision of the Premier; and

(4)    the Registrar was wrong to conclude that by lodging the documents the applicant sought to agitate grievances arising out of his dismissal from South Australia Police more than 20 years ago.

The Primary Judge’s decision – the Burns Review

48    At PJ 1/2024 [10]-[12], the Primary Judge observed that:

[10]    … He made oral submissions in support of the grounds of review, which traversed his history of dealings with South Australia Police, including legal proceedings culminating in his conviction for a criminal offence and the termination of his employment as a police officer in around 2000 to 2001. The effect of his oral submissions was that the past prosecution was malicious, unlawful and unconstitutional.

[11]    The applicant acknowledged that he has on many occasions attempted to invoke the jurisdiction of this Court in order to have the judgment culminating in his conviction set aside and to obtain orders for reinstatement of his employment, an award of compensation for alleged losses and other relief.

[12]    The applicant’s written and oral submissions confirm that the decision of the Premier about which he complained in the Documents related to proceedings in state courts which in turn related to his history of dealings with South Australia Police and other state entities, including members of the judiciary and prosecutorial authorities.

49    Before the Primary Judge, Mr Ferdinands submitted that as the Federal Court is “a supervisor of all of the state courts”, the Registrar erred in concluding that the Court did not have the power to review a decision of the Premier: PJ 1/2024 [13]. Mr Ferdinands further submitted that the Court had the power to review the impugned decision of the Premier by reason of certain provisions of the Constitution including s 51(xxv) and 51(xxvi): PJ 1/2024 [14]. He further submitted that he had been subject to discrimination contrary to the Racial Discrimination Act 1975 (Cth).

50    The Primary Judge rejected Mr Ferdinands’ submission as to the source of the Court’s jurisdiction to review the decision the subject of the Burns Review:

[15]    The Registrar was correct to conclude that the Documents did not disclose a decision that was capable of review by this Court. This Court’s jurisdiction is limited by statute. The impugned decision of the Premier is not one that can be reviewed under the ADJR Act or the Judiciary Act. The provisions of the Constitution to which the applicant referred concern the power of the Commonwealth Parliament to make laws with respect to certain subject matter. This Court’s jurisdiction is not conferred by those provisions and it cannot reasonably be argued otherwise. The applicant pointed to no enactment of the Commonwealth conferring power on this Court to review the impugned decision of the Premier. For the purposes of s 78B of the Judiciary Act, there is no genuine issue arising under the Constitution or otherwise requiring its interpretation.

[16]    The applicant’s references to the Racial Discrimination Act do not assist him. Even if the Documents contain allegations of racial discrimination, the preconditions for this Court to adjudicate on such dispute are not fulfilled.

51    The Primary Judge concluded that because the documents the subject of the Burns Refusal did not identify a decision capable of review by the Court, that, of itself, was a sufficient basis for the Registrar to refuse to accept the documents for filing. This was the first of the two reasons identified by the Registrar for refusing to accept the documents for filing (extracted at [44] above). Accordingly, the Primary Judge concluded that the Burns Review could be dismissed on the basis of the first reason given by the Registrar alone: PJ 1/2024 [15]-[17].

52    Notwithstanding the Primary Judge’s conclusion in respect of the first reason given by the Registrar, the Primary Judge proceeded to consider the second reason given by the Registrar, namely that the documents the subject of the Burns Refusal constituted an abuse of process (extracted in full at [44] above).

53    The Primary Judge observed that a conclusion by a Registrar that a document constitutes an abuse of process is a conclusion that must be reached by reference to the document itself in combination with other documents lodged at the same time and not on the basis of extraneous material: PJ 1/2024 [19].

54    The Primary Judge considered that the documents the subject of the Burns Refusal did contain sufficient information to support the Registrar’s conclusion that Mr Ferdinands was seeking via these documents to agitate grievances arising out of his dismissal from SAPOL more than 20 years ago: PJ 1/2024 [20]. However, the Primary Judge considered that it was not necessary to reach a concluded view on this issue because having regard to all the material before the Court on the review application that conclusion was readily drawn in any event.

55    In his oral submissions before the Primary Judge, Mr Ferdinands acknowledged that he had commenced or attempted to commence many proceedings in this Court with a view to having his criminal conviction set aside and his employment reinstated: PJ 1/2024 [20]. The Primary Judge noted that Mr Ferdinands’ acknowledgement was consistent with published judgments of the Court in which Mr Ferdinands has repeatedly been unsuccessful in his attempts to identify a basis for the Court to make orders vindicating his position in his long-running dispute. By way of example, the Primary Judge referred to Ferdinands v Registrar Cridland [2021] FCA 592; Ferdinands v Registrar Parkyn [2020] FCA 1676 and Ferdinands v State of South Australia [2018] FCA 589 and the prior litigation referred to therein: PJ 1/2024 [20].

56    In addition, the Primary Judge observed that if, contrary to the Primary Judge’s impression (at PJ 1/2024 [20]), the Registrar erred in concluding that the relevant documents constituted an abuse of process such that the documents should not be accepted for filing, then the Court would not exercise its discretion to grant relief on the review application in any event. The Primary Judge’s conclusion in this respect was based on the Primary Judge’s assessment of the material before the Court on the review application in the context of the Court’s own power to direct that a document not be accepted for filing referred to in r 2.27(e) and r 2.27(f). Her Honour concluded that the relevant documents were such that “there could and should be such a direction made by a judge of the Court, even if the decision of the Registrar were affected by reviewable error”: PJ 1/2024 [21].

The Notice of Appeal

57    Mr Ferdinands appeals from the whole of the judgment below. In his Notice of Appeal he includes 18 paragraphs styled as separate grounds of appeal. Although lengthy, it is instructive to extract the grounds as written in their entirety, as to attempt to paraphrase or summarise the grounds is apt to detract from the prolixity, excess and incoherence with which the grounds are replete:

Grounds of appeal

1.     [The Primary Judge] erred by failing to adhere to and apply s 109 Inconsistency of law of the Constitution 1901 (Cth);

2.     [The Primary Judge] erred by failing to adhere to and apply the doctrine of separation of powers;

3.     [The Primary Judge] erred by failing to adhere to and apply the doctrine of due process;

4.     [The Primary Judge] erred by failing to adhere to and apply the doctrine of equal protection;

5.     [The Primary Judge] erred by knowingly and deliberately misleading the Appellant with regards to the Racial Discrimination Act 1975 (Cth) and the application of the Racial Discrimination Act in terms of s 11 Access to places and facilities and s 13 Provision of goods and services in the refusal of the Registrar of the Supreme Court of South Australia in Year 2001 to Year 2023 to allow for lawful and proper legal appeal documents to be submitted and go forward for listing in open court hearings in the full court of the Supreme Court of South Australia or the Court of Appeal, and making that knowingly false claim that the Registrar of the Supreme Court of South Australia had the same authority and power as Registrar Burns to declare lawful and proper appeal documents an abuse of process, vexatious and frivolous.

6.     [The Primary Judge] erred by knowingly and deliberately misleading the Appellant with regards to the immunity and upholding the concept, doctrine and principles of immunity.

7.     [The Primary Judge] erred by knowingly and deliberately misleading the Appellant with regards to the second-party liability in cabal matters, and not upholding the concept, doctrine and principles of second-party liability in cabal matters and thereby allowing second-party players to avoid and escape investigations, charges, prosecutions, convictions and monetary fines and penalties issued by the court.

8.     [The Primary Judge] failed to review the National Anti-Corruption Commission Act 2022 de novo.

9.     [The Primary Judge] failed to declare the National Anti-Corruption Commission Act 2022 (Cth) as unenforceable and invalid.

10.     [The Primary Judge] failed to apply and enforce s 68-Unsatisfactory professional conduct, and s 69-Professional misconduct and s70-Conduct capable of constituting unsatisfactory professional conduct or professional misconduct of the Legal Practitioner’s Act 1981 (SA).

11.     [The Primary Judge] failed to apply and enforce s 40 Right of Appeal of the Magistrate’s Court Act 1991 (SA).

12.     [The Primary Judge] failed to apply and enforce s 17 and s 18 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA).

13.     [The Primary Judge] failed to apply and enforce Part 4 s 10 of the POLICE REGULATIONS 1999 (SA).

14.     [The Primary Judge] failed to apply and enforce Part 5 CODE OF CONDUCT s 11 Code of conduct and s 12 Honesty and integrity and s 13 Conduct prejudicial to S.A. Police and s 14 Performance of orders and duties and s 15 Negligence and s 16 Proper exercise of authority and s 17 Conduct towards public, employees in the department and s 18 Conflict of interest and s 19 Improperly obtaining benefit or advantage and

15.     [The Primary Judge] failed to apply and enforce Section 19B Court of Appeal of the Supreme Court Act 1935 (SA).

16.     [The Primary Judge] failed to apply and enforce Rule 212.3-Jurisdiction of Court of Appeal of Supreme Court of South Australia Uniform Civil Rules 2020

17.     IF immunity does exist in the Commonwealth of Australia, then this ground of appeal carries weight, namely, [the Primary Judge] failed to apply and enforce s 5-Immunity for appropriate disclosures of public interest information of the Whistleblowers Protection Act 1993 (SA), BUT IF immunity is non-existent in law and the Parliament have made a very serious error in law, then this ground of appeal is abandoned.

18.    IF victimization does exist in the Commonwealth of Australia, then this ground of appeal carries weight, namely, [the Primary Judge] failed to apply and enforce s 9-Victimisation of the Whistleblowers Protection Act 1993 (SA), BUT IF victimization is non-existent in law then the Parliament have made a very serious error in law, then this ground of appeal is abandoned.

58    The multitude of grounds of appeal are advanced in support of a plethora of relief. Again, notwithstanding the excessive length of the relief claimed, for illustrative purposes, it is useful to extract the whole of this part of the Notice of Appeal (as written):

Orders sought

1.     The appeal is allowed.

2.     The judgment of [the Primary Judge] of 22 December 2023 in Ferdinands v Registrar Burns [2023] FCA 1646 is set aside.

3.     An order that the respondent is amended to the correct name/title of the respondent and be shown as 'REGISTRAR BURNS of the FEDERAL COURT OF AUSTRALIA'.

4.     An order that this full court deal with all three matters at once by killing three birds with one stone.

5.     The decision of Registrar Burns of 21 July 2023 is set aside and declared ultra vires.

6.     The decision of Premier of South Australia Peter Bryden Malinauskas of 10 July 2023 is set aside and declared ultra vires.

7.     An order that the Premier of South Australia Peter Bryden Malinauskas and the State of South Australia are named and listed as Second Respondent and Third Respondent accordingly, and that they do so produce all (1) documents, (2) materials and (3) information held by and in custody and knowledge the State of South Australia in the matter of investigation, prosecution, appeal and termination of the Appellant, and all post-appeal (1) documents, (2) materials and (3) information held by and in custody and knowledge the State of South Australia from Year January 2000 to Year January 2024.

8.     The decisions in (1) Ferdinands v District Court of South Australia & Ors [2010] SASC 265, and (2) Ferdinands v Registrar Cridland [2021] FCA 592 and (3) Ferdinands v Registrar Cridland [2022] FCAFC 80 and ( 4) Ferdinands v Registrar Parkyn [2020] FCA 1676 and (5) Ferdinands v State of South Australia [2018] FCA 589 and (6) Ferdinands v State of South Australia [2018] FCA 589 are ultra vires and are set aside.

9.     In lieu there, there be a favourable judgment for the Appellant, namely:

1.     Pursuant to s 51 (xxv) of the Constitution which states, the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States, working in accordance and harmony with rule 1.40 of Federal Court Rules 2001 (Cth) which states that, the Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding, the court is compelled to apply rule 1.32 of FCR (2001) which states that, the Court may make any order that the Court considers appropriate in the interests of justice and does so make an order that Martin J judgment of August 2001 is set aside, and conviction quashed.

2.    Pursuant to s 51 (xxv) of the Constitution which states, the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States, working in accordance and harmony with rule 1. 40 of Federal Court Rules 2001 (Cth) which states that, the Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding, the court is compelled to apply rule 1.32 of FCR (2001) which states that, the Court may make any order that the Court considers appropriate in the interests of justice and does so make an order that the s 42 Notice of Termination of 22 November 2001 under the Police Act 1998 (SA) issued against the Applicant, 1562/4 Constable TK Ferdinands is revoked.

3.     Pursuant to s 51 (xxv) of the Constitution which states, the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States, working in accordance and harmony with rule 1. 40 of Federal Court Rules 2001 (Cth) which states that, the Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding, the court is compelled to apply rule 1.32 of FCR (2001) which states that, the Court may make any order that the Court considers appropriate in the interests of justice and does so make an order that the Applicant, 1562/4 Constable Trevor Kingsley Ferdinands is returned to South Australia Police effectively immediately at same rank and status prior to the fraud.

4.     Pursuant to s 51 (xxv) of the Constitution which states, the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States working in accordance and harmony with rule 1. 40 of Federal Court Rules 2001 (Cth) which states that, the Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding: (a) on its own initiative; or (b) on the application of a party, or a person who has a sufficient interest in the proceeding, the court is compelled to apply rule 1.32 of FCR (2001) which states that, the Court may make any order that the Court considers appropriate in the interests of justice and does so make an order for compensation for loss of wages in the sum of $4,574,397.92.

5.     An order that the matters are listed for hearing with 7 days of the closure of these hearings.

59    Mr Ferdinands filed a notice of a constitutional matter under s 78B of the Judiciary Act in the SAD1/2024 Appeal on 3 January 2024. As mentioned, none of the Attorneys-General sought to intervene in the proceeding.

Determination

60    Before turning to the grounds of appeal, it is worth emphasising the confines of the decision-making process that gave rise to the judicial review by the Primary Judge and in turn this appeal.

61    First, as the Full Court stated in Nyoni, a Registrar acting under r 2.26 does not have, and does not exercise, judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process of the Court (or is frivolous or vexatious). Rather, r 2.26 expresses the administrative requirement 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.

62    Secondly, as the Primary Judge correctly stated, the Court’s jurisdiction to review the administrative decision of a Registrar under r 2.26 is relevantly limited by statute. A decision of a Registrar is susceptible to review based on s 5 of the ADJR Act: Nyoni at [37]. The Primary Judge also referred to the jurisdiction conferred by s 39B(1) of the Judiciary Act. Section 39B(1) confers original jurisdiction on this Court 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, subject to limited exceptions not presently relevant.

63    As Mr Ferdinands did not expressly identify the basis of the Court’s jurisdiction on which he relied but used the form appropriate for a review under s 5 pursuant to an application under s 11 of the ADJR Act, it would have been appropriate for the Primary Judge to consider the review through the lens of s 5 of the ADJR Act alone. The review by the Primary Judge was confined to an assessment of the Registrar’s decision under r 2.26 and focussed on determining whether there was reviewable error. Separately, but importantly, the review before the Primary Judge was not, and the Primary Judge did not embark upon, a merits review or a hearing de novo in relation to the substantive merits of the claims which Mr Ferdinands sought to institute in the documents that were rejected for filing.

64    Thirdly, notwithstanding the form of the Notice of Appeal, the present appeal is an appeal from the decision of the Primary Judge exercising the original jurisdiction of the Court. The right of appeal arises under s 24(1) and s 25(1) of the FCA Act and is concerned with the correction of error. It is not a merits review. Again, it is not concerned with the substantive merits of the claims which Mr Ferdinands sought to institute in the documents he attempted to file.

65    Finally, it is appropriate to record that the grounds of appeal advanced by Mr Ferdinands, and his submissions made in support of them, heave with scandalous allegations about matters of serious importance. He makes these allegations wantonly without any substantive attempt to articulate a reasonable basis to justify making such serious allegations. The submissions made in support of these grounds are expressed in language that is intemperate, repetitive, and pejorative. The allegations as made could not have been advanced by any responsible legal representative consistently with the professional obligations owed to the Court.

Overview

66    The Primary Judge was correct to proceed on the basis that the Registrar acted in accordance with r 2.26. It is clear that the Registrar understood that her task was to make an assessment on the face of the relevant documents. The Registrar’s assessment that the relevant documents were on their face an “an abuse of process, frivolous and vexatious” was carried out in accordance with the terms of r 2.26 and was open on the face of the documents for the reasons given by the Registrar. There is nothing which suggests that the Registrar did not actually and reasonably form the opinion on the bases which she identified in her letter to Mr Ferdinands.

67    The Primary Judge alluded to the potential for the Registrar’s conclusion to be amenable to criticism on the basis that the Registrar took into account matters extraneous to the documents that were the subject of the attempted filing. The Primary Judge did not find it necessary to determine whether this was so because of the acknowledgements made by Mr Ferdinands in the hearing of the review application. Strictly speaking, it is not necessary for us to assess this aspect of the Registrar’s decision either, but we should make clear that in proceeding on this basis we do not suggest that the Registrar’s decision was flawed by taking into account extraneous material. To the contrary, when one has regard to the voluminous documents which were the subject of the lodgment and the extensive incorporation by reference in those documents to the convoluted and connected context which Mr Ferdinands contends is relevant, it would be difficult to sustain a criticism of the Registrar’s decision on that basis.

68    In any event, the Primary Judge was satisfied that it was clear that (and indeed acknowledged by Mr Ferdinands that) he was yet again seeking to attempt to invoke the jurisdiction of this Court to set aside his past conviction and to obtain orders for reinstatement of his employment and an award of compensation for alleged losses and other relief. The decision of the Premier about which he complains relates to proceedings in State courts which in turn relate to his history of dealings with SAPOL and other State entities, including members of the judiciary and prosecutorial authorities.

69    Mr Ferdinands has not established error on the part of the Primary Judge in reaching the conclusion that the Registrar was correct in concluding that the documents did not disclose a decision that was capable of review by this Court. We agree with the Primary Judge that this was a sufficient basis of itself to dispose of the review application. It is also sufficient to dismiss the SAD1/2024 Appeal.

70    In these circumstances, we will be brief in addressing the remaining grounds of appeal agitated by Mr Ferdinands. Notwithstanding the discursive scope of the Notice of Appeal, the grounds may be broadly disposed of on the basis that Mr Ferdinands fundamentally and persistently misapprehends the nature of the decision-making process and the confines of this appeal. Mr Ferdinands has not demonstrated error on the part of the Primary Judge. The relief that Mr Ferdinands seeks in his Notice of Appeal is misconceived and, in the main, beyond the jurisdiction of the Court.

Grounds 1 and 2

71    By grounds 1 and 2, Mr Ferdinands alleges in effect that the Primary Judge erred in failing to observe s 109 of the Constitution and the doctrine of separation of powers.

72    Mr Ferdinands relies on s 51(xxv) of the Constitution in combination with r 1.32 of the Rules (which provides that the Court may make any order considered appropriate in the interests of justice) in support of the various orders he seeks to set aside as “ultra vires” some six separate judgments of this Court (5) and the Supreme Court of South Australia (1) and in lieu thereof to make orders quashing his criminal conviction, revoking his termination and reinstating his employment with SAPOL and compensating him for lost wages in the sum of $4,574,397.92.

73    Section 51(xxv) of the Constitution is concerned with the legislative power of the Parliament to make laws with respect to “the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States”. It does not confer jurisdiction on this Court to make the orders sought by Mr Ferdinands. Mr Ferdinands’ recourse to r 1.32 of the Rules is misconceived – that rule does not operate to remedy a lack of jurisdiction. The allegation of error on the part of the Primary Judge is misconceived. These grounds will be dismissed.

Grounds 3 and 4

74    By grounds 3 and 4, Mr Ferdinands alleges in effect that the Primary Judge erred in failing to “adhere to and apply” the doctrines of due process and equal protection. Mr Ferdinands seeks declarations including by way of example, a declaration that “the (1) due process of law, and (2) equal protection of law, and (3) the freedom of expression of any person and by any person including any Applicant or Plaintiff or Appellant shall not be infringed under any circumstances whatsoever and any person seeking to file any legal documents in the registries of the Australian law courts and they may do so without any blockages, delays, hindrances, thwarting or frustrations by the Registrar of any court.” It may immediately be observed that the declarations that Mr Ferdinands seeks are not declarations that are apt to be made by a Court.

75    It is not clear what Mr Ferdinands intends by these grounds. If he intends to claim that the Primary Judge erred in failing to afford Mr Ferdinands procedural fairness or in some other way failed to observe the dictates of procedural fairness, no such error is established. Mr Ferdinands was given ample opportunity to be heard, of which he availed himself, filing materials, including written submissions, and appearing at the hearing and making oral submissions.

76    Mr Ferdinands has not demonstrated any error by the Primary Judge — these grounds will be dismissed.

Grounds 5, 6 and 7

77    This miscellany of grounds share the common feature that Mr Ferdinands alleges that the Primary Judge erred by “knowingly and deliberately misleading [him]” in specified respects.

78    By ground 5, Mr Ferdinands alleges that the Primary Judge erred by “knowingly and deliberately misleading [him] with regards to the Racial Discrimination Act 1975 (Cth)” in a variety of ways. The ground is extracted in full at paragraph [57]. It is not articulated comprehensibly. It contains a serious allegation against the Primary Judge that is not particularised in any meaningful way and is liable to be struck out. No error is demonstrated. The Primary Judge was correct to observe that Mr Ferdinands’ attempt to engage the Racial Discrimination Act to his aid in this proceeding was misconceived because the preconditions for this Court to adjudicate on such a dispute had not been fulfilled. In addition, no part of the Primary Judge’s function on the review application extended to assessing the substance of Mr Ferdinands’ claims of racial discrimination. The ground will be dismissed.

79    By ground 6, Mr Ferdinands alleges that the Primary Judge knowingly and deliberately misled him “with regards to the immunity and upholding the concept, doctrine and principles of immunity”. We repeat our observations in relation to ground 5. The ground is not comprehensible. It will be dismissed.

80    Ground 7 alleges that the Primary Judge “knowingly and deliberately misleading [him] with regards to second-party liability in cabal matters, and not upholding the concept, doctrine and principles of second-party liability in cabal matters and thereby allowing second-party players to avoid and escape investigations, charges, prosecutions, convictions and monetary fines and penalties issued by the court.” Again, the observations we have made in relation to grounds 5 and 6 are apposite. This ground will be dismissed.

Grounds 8 and 9

81    By grounds 8 and 9, Mr Ferdinands alleges in effect that the Primary Judge failed to “review de novo” and consider the validity of the National Anti-Corruption Commission Act 2022 (Cth). He seeks an order that this Court reviews the National Anti-Corruption Commission Act de novo and a declaration that the National Anti-Corruption Commission Act is unenforceable and invalid. He contends that on the basis of the various matters in which he has been involved and to which he makes reference in his materials that “the matters require the court declare invalid the new National Anti-Corruption Commission Act 2022 (Cth)”.

82    Mr Ferdinands fails to, or perhaps purports to fail to, understand the role of the Primary Judge in determining whether there was error in the Registrar’s construction or application of r 2.26 of the Rules. No part of the Registrar’s function or the review by the Primary Judge called for a determination of the merits of the claims sought to be pressed in the documents that on their face were an abuse of process, frivolous and vexatious. Mr Ferdinands has not demonstrated any error by the Primary Judge — these grounds will be dismissed.

Grounds 10, 11, 12, 13, 14, 15 and 16

83    These grounds share the common feature that Mr Ferdinands alleges that the Primary Judge “failed to apply and enforce” a disparate range of statutory provisions. The grounds are extracted in full at paragraph [57] above. The list of statutory provisions which Mr Ferdinands contends the Primary Judge “failed to apply and enforce” are as follows: various provisions of the Legal Practitioners Act 1981 (SA) relating to unsatisfactory professional conduct and professional misconduct of legal practitioners (ground 10); s 40 of the Magistrates Court Act 1991 (SA) relating to right of appeal (ground 11); various regulations of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) [repealed] relating to making complaints about a designated officer (ground 12); various provisions of the Police Regulations 1999 (SA) [revoked] relating to duties of members of SAPOL (ground 13) and the code of conduct of SAPOL employees (ground 14); s 19B of the Supreme Court Act 1935 (SA) relating to jurisdiction of the Court of Appeal of the Supreme Court of South Australia (ground 15); and r 212.3 of the Uniform Civil Rules 2020 (SA) relating to the jurisdiction of the Court of Appeal of the Supreme Court of South Australia (ground 16).

84    These grounds are misconceived for the same reasons as given in relation to grounds 8 and 9. No error is established. These grounds will be dismissed.

Grounds 17 and 18

85    Grounds 17 and 18 reference the statutory protections for whistleblowers under the Whistleblowers Protection Act 1993 (SA) [repealed]. They are extracted in full at [57] above. Again, the grounds are incomprehensible. They are marked by a conditionality that is based on a false premise that in this appeal it is necessary to determine whether “immunity” and “victimization” exists in Australia and if so whether the Primary Judge failed to apply and enforce provisions relating to immunity and victimisation in the context of public interest disclosures by whistleblowers under the relevant legislation. The grounds are not expanded in or supported by the submissions and other materials upon which Mr Ferdinands relies.

86    We repeat our observations in relation to grounds 8, 9, 10, 11, 12, 13, 14, 15 and 16. Grounds 17 and 18 will be dismissed.

Conclusion

87    For these reasons, the SAD1/2024 Appeal will be dismissed. We will make an order accordingly, which will be subject to the procedural orders we address in the penultimate section of our reasons.

SAD16/2023 Appeal

88    This appeal relates to the Allaway Refusal which was an earlier refusal decision than the Burns Refusal that is the subject of the SAD1/2024 Appeal. We have addressed the appeals in reverse chronological order because, as mentioned, Mr Ferdinands focussed his attention on the SAD1/2024 Appeal and maintained that the SAD16/2023 Appeal in effect stood or fell with the outcome of the SAD1/2024 Appeal.

Registrar’s decision – the Allaway Refusal

89    On 6 July 2022, the Registrar refused to accept for filing a proposed originating application dated 4 July 2022 and supporting documents which the applicant lodged for filing on 6 July 2022. The documents which Mr Ferdinands sought to file on 6 July 2022 are described at [9] above.

90    The originating application is styled as an “originating application for judicial review” under r 31.01(1) of the Rules. The application is in Mr Ferdinands’ name as applicant and names “Anthony Albanese, Prime Minister, Commonwealth of Australia” as respondent. The originating application is structured somewhat similarly to that which was the subject of the Burns Refusal.

91    The chapeau to the originating application states that Mr Ferdinands “applies to the Court to review the decision of [Mr Albanese] on 1 July 2022.” The decision is not otherwise identified.

92    The details of the claim which follow are divided into six paragraphs as follows:

Details of claim

The Applicant is aggrieved by the decision conduct because:

1.     The respondent has erred by not properly or adequately assessing the facts and circumstances of the case caused by Chief of Army in Year 1999.

2.     The respondent has erred by not properly or adequately assessing the facts and circumstances of the invalidity of Defence Force Discipline Act 1982 (Cth).

3.     The respondent has erred by not properly or adequately assessing the facts and circumstances of financial fraud in the case before the court from Year 1999 to Year 2022.

4.     The respondent has erred by not properly or adequately assessing the facts and circumstances of public corruption in the case before the court from Year 1999 to Year 2022.

5.     The respondent erred by acting in malice or indifference to the facts and circumstances by not viewing any documents from Year 1999 to Year 2022 and not reviewing any documents from Year 1999 to Year 2022.

6.     The respondent erred by acting in malice or indifference by failing to settle the case out of court and making payment for compensation, general damages and punitive damages.

93    The next section of the originating application comprises 93 paragraphs under the heading “Grounds of application”. The subject matter of the grounds traverses the terrain of public corruption, racial discrimination and Mr Ferdinands' familiar claims concerning the events dating from his prosecution in about 1999.

94    This is followed by a section entitled “QUESTIONS OF LAW” which includes eight paragraphs grammatically framed as questions. A subsection of this section of the originating application is captioned “Possible answers to Questions of Law” comprising some 20 pages.

95    The final section of the originating application is headed “Orders sought”. It enumerates in 25 paragraphs numerous claims for purported relief including “orders”, “declarations”, claims for compensation and damages (general and punitive) conditional on whether Mr Albanese provides full discovery and disclosure of all the facts and circumstances of the 1999 prosecution of Mr Ferdinands, and an order that Mr Albanese give a “Ministerial direction” to the Chief of Army and Chief of the Defence Forces in the terms set out in the originating application. To be clear, this description of the relief claimed is illustrative only, it is not an exhaustive description.

96    As with the Burns Refusal documents, it is not necessary to describe in detail the other documents which Mr Ferdinands lodged for filing with the originating application, other than to note that these documents are relevant in that the Registrar in making a decision under r 2.26 may also refer to any documents already filed or submitted for filing with, relevantly, the originating application.

97    The Registrar concluded that each of the documents Mr Ferdinands sought to lodge were, on their face, an “abuse of the process of the Court, frivolous and vexatious”. Accordingly, the Registrar refused to accept the documents for filing. The Registrar concluded his letter to Mr Ferdinands by exhorting Mr Ferdinands to seek legal advice before attempting to file any further documents in connection with the matter.

Application for judicial review – the Allaway Review

98    On 19 July 2022, Mr Ferdinands applied for judicial review of the Registrar’s decision. In his application, Mr Ferdinands raised:

(1)    14 grievances said to result from the Registrar’s decision;

(2)    13 grounds of review, nine of which assert that the Registrar erred in his use of r 2.26 and the remaining four assert that the Registrar erred in his approach to the Rules and to s 51(xxv) and s 109 of the Constitution; and

(3)    various orders, including an order to set aside the Registrar’s decision.

99    At the request of the parties, the application was determined on the papers. The date of the last submissions was 22 August 2022.

100    On 2 September 2022, the Primary Judge made an order that Mr Ferdinands was not to file or attempt to file any documents in this matter without obtaining the leave of the Court to do so.

101    The Primary Judge delivered judgment on 20 January 2023 (PJ 16/2023).

Intervening interlocutory application

102    In the period between the date of the last submissions being lodged and judgment being delivered, Mr Ferdinands brought an interlocutory application seeking leave to file further documents, file and serve subpoenas on non-parties and refer questions of law to the Full Court.

103    On 2 November 2022, the Primary Judge dismissed Mr Ferdinands’ interlocutory applications: Ferdinands v Allaway, National Duty Registrar (No 1) [2022] FCA 1599. Mr Ferdinands did not seek leave to appeal in respect of this decision but has included in his Notice of Appeal in the SAD16/2023 Appeal that he appeals from “the whole of the judgment on 20 January 2023 (and whole of the interlocutory orders of the Federal Court given on 2 November 2022) in matter of SAD117 of 2022 at Adelaide in State of South Australia”. He has not addressed separate grounds of appeal or submissions to the making of the orders on 2 November 2022, so it is not necessary to address this separately from our consideration of the appeal as framed in the Notice of Appeal.

The Primary Judge’s decision - the Allaway Review

104    In the Allaway Review, Mr Ferdinands relied on his affidavit sworn on 25 July 2022, submissions, and the documents which were the subject of the Allaway Refusal which had been before the Registrar.

105    In addition to the material provided in support of the application, both before and during the period when the application was reserved to be determined on the papers, Mr Ferdinands continued to attempt to file further documents without first seeking leave to do so, including further affidavits and submissions amounting to hundreds of pages in total. The Primary Judge did not consider these additional documents for the purpose of reaching his decision: PJ 16/2023 [44].

106    Mr Ferdinands did not identify the relevant legislation on which he sought to have the review application determined by the Court. As mentioned, the Primary Judge noted that the Allaway Review was the seventh judgment since November 2020 dealing with applications by Mr Ferdinands in respect of refusals by a Registrar to accept documents for filing acting under r 2.26.

107    The Primary Judge proceeded to consider the review application on the basis that it was intended to be an application under the ADJR Act. The originating application was described on its face as an “Originating Application for Judicial Review - Form 66 - Rule 31.01(1)”, which relates to applications for orders under s 11(1) of the ADJR Act. The Primary Judge’s approach at PJ 16/2023 [16]-[20] was consistent with authority: see Nyoni at [41].

108    As Mr Ferdinands did not specify the specific grounds under s 5(1) of the ADJR Act on which he relied, the Primary Judge interpreted Mr Ferdinands’ references to the Registrar as failing properly or adequately to address various matters as coming within the scope of ss 5(1)(c) and (f) of the ADJR Act. Subsections 5(1)(c) and (f) are extracted at paragraph [26] above.

109    The Primary Judge disposed of the s 5(1)(c) ground on the basis that the Registrar did not make a substantive judgment about the underlying merit of the claims in the proposed proceedings when refusing to accept the document styled as an originating application for filing under r 2.26. The Primary Judge observed that the Registrar made it clear in his letter to Mr Ferdinands that he refused to accept the documents for filing on the basis they were an abuse of the process of the Court, frivolous and vexatious, and that in so doing the Registrar was not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but was ensuring compliance with procedural requirements: PJ 16/2023 [36]. We would add that the Registrar expressly stated in his letter that he was satisfied that on their face the documents were an abuse of the process of the Court, frivolous and vexatious.

110    The Primary Judge disposed of the s 5(1)(f) ground on the basis that the Registrar had not made any error in refusing to accept the documents for filing, being satisfied that the documents were (on their face) frivolous, vexatious and abuse of process: PJ 16/2023 [42].

111    Accordingly, in all the relevant circumstances, the Primary Judge concluded that the Registrar did not err in characterising the relevant documents as being, on their face, an abuse of process of the Court, frivolous and vexatious, with the result that the review application was dismissed: PJ 16/2023 [42]-[43].

The Notice of Appeal

112    In the Notice of Appeal filed on 2 February 2023 and accepted for filing on 7 February 2023, Mr Ferdinands raises 15 grounds of appeal (as written):

1.     The single Justice erred in determining that the respondent had a valid and informed standing in the case when the doctrine of separation of powers clearly delineates a separation between Judiciary and the Executive Government.

2.     The single Justice erred in determining that the respondent had a valid and informed standing in the case when Chapter Ill of the Constitution The Judicature strictly forbids any Executive Government officer from acting judicially, and gives all judicial power and all judicial making decisions to judicial officers pursuant to s 51 (xxv) the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; of the Constitution to handle legal documents in judicial proceedings.

3.     The single Justice erred by failing to apply the rule of law or wrongly applied the rule of law, in that the whole of the evidence is still with the respondent, and none of the evidence is with the Appellant.

4.     The single Justice erred in determining that rule 2.26 of Federal Court Rules 2011 validly gave authority and power to a Registrar of a court to determine issues such as abuse of process, vexatious and frivolous claims when that authority and power given by the Parliament is invalid and in direct conflict with the doctrine of separation of powers and Chapter III of the Constitution.

5.     The single Justice erred in application of s 35A of the Federal Court of Australia Act 1976 (Cth) concluding that the Parliament had a legal right to give judicial power to the Registrar of the Federal Court of Australia to determine the merits of a case.

6.     The single Justice erred in not removing the respondent immediately from the case, and allowing the original case, FERDINANDS v Albanese to go forward, as the respondent is an Executive Government officer with no judicial authority.

7.     The single Justice erred in failing to use all enabling authority and power in conjunction with circumstantial evidence to make a compensation payment as amended for 24-years commencing 18 January 1999 to 20 January 2023 in the sum of $5,369,218.00 [adjusted for inflation].

8.     The single Justice erred in failing to monitor and supervise the court’s own interpretation of the word ‘good government’ within the Constitution Act 1901 (Cth) and ensure that there was no misconduct.

9.     The single Justice erred in failing to apply a proper legal standard to all legal practitioners especially Ministers of the Crown, departmental secretary's and legal practitioners in the employ of the Crown as stated by Justice Ipp in Lawyers’ Duties to the Court’ (1998) 114 Law Quarterly Review 63, with specific regard to:

(a)     a general duty of disclosure owed to the court;

(b)     a general duty not to abuse the court’s process;

(c)     a general duty not to corrupt the administration of justice; and

(d)     a general duty to conduct cases efficiently and expeditiously.

10.     The single Justice erred by failing to make orders for (1) compensation and (2) full discovery and disclosure as he did not alert his mind that the court may have been misled for 24-years by the Commonwealth of Australia and its various Ministers of the Crown, departmental secretary's and legal practitioners as to the true nature and character of the Appellant, and the Crown relentless refusal for full and complete discovery and disclosure.

11.     The single Justice erred as he did not alert his mind to s 31 Nature of copyright in original works, s 32 Original works in which copyright subsists, and s 33 Duration of copyright in original works and s 35 Ownership of copyright in original works of the Copyright Act 1968 (Cth) and that the Appellant as the sole creator and author of all communications and literary works especially letters, reports, emails and memos from Year 1999 to Year 2023 actually still owns all his documents, materials and information and he has legal entitlement to those documents, materials and information either by Ministerial direction (see letter to Albanese) or court order (see draft subpoenas to departmental secretary's and heads and Ministers of the Crown).

12.     The single Justice erred by not allowing for and making orders to taken in relevant materials to the case to end the quagmire in the case, that have come to light since the decision of Registrar Phillip Allaway namely, gathering, collating and sorting facts in issues and facts relevant to facts in issue in the case including (1) the decision of Stephen Donahue in the matter of Scott Morrison's secret ministries report, (2) the Brittany Higgins rape compensation case and out of court settlement, (3) the 2022 Local Government elections information and communications in the State of South Australia, (4) invalid parts of the Defence Force Discipline Act 1982 (Cth) and (5) Western Australia Legal Profession Conduct Rules 2010 (WA) to validate or invalidate that there are two systems of justice in the Commonwealth of Australia, and two classes of people that exist in law in the Commonwealth of Australia.

13.     The single Justice erred by not inspecting the whole of the evidence and applying the rule of fairness.

14.     The single Justice erred by not dealing with the whole of the evidence and declaring a serious miscarriage of justice.

15.     The single Justice erred by not dealing with the whole of the evidence and making a compensation payment for loss of wages, as sought, as after he had scrutinized the whole of the evidence he would have assessed swathes of elements of process corruption and other anomalies and irregularities as per para 12 parts 4 and 5, that were used in a malicious prosecution against a soldier, to force that soldier out of employment and out of the army.

113    Mr Ferdinands also seeks a panoply of relief comprising some 20 orders (which include personal claims for damages, general and punitive, in the tens of millions of dollars, and a claim in the nature of a class action for “$28.0 Billion dollars”) and a further 30 declarations.

114    Mr Ferdinands did not file any evidence or submissions in the SAD16/2023 Appeal, although he had the opportunity to do so, including to provide an appeal book collated with the assistance of the Registry. Mr Ferdinands relied on his submissions in the SAD1/2024 Appeal which as mentioned, he contended would, if accepted, establish that he should also succeed on the SAD16/2023 Appeal.

115    As mentioned above, the progress of the SAD16/2023 Appeal was stayed for a period pending the determination of two consecutive applications in the High Court instituted by Mr Ferdinands.

116    The first application in the High Court was an application filed on 14 June 2023 for leave to issue or file an application for a constitutional or other writ under r 6.07.3 of the High Court Rules 2004 (Cth). It appears that leave was required because the Registrar of the High Court had been directed by Jagot J on 16 May 2023 pursuant to r 6.07.2 of the High Court Rules to refuse to file the document unless leave had first been obtained. Rule 6.07 is the parallel rule in the High Court Rules which deals with the subject matter addressed in rr 2.26 to 2.27 of the Rules of this Court. Though the two Courts’ rules are framed differently, both include the common feature of a document appearing to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious. At the time, r 6.07 of the High Court Rules relevantly provided:

6.07     Refusal to issue or file a document

6.07.1     If a writ, application, summons, affidavit or other document (the document) appears to a Registrar on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court, the Registrar may seek the direction of a Justice.

6.07.2     The Justice may direct the Registrar to issue or file the document, or to refuse to issue or file the document, without the leave of a Justice first had and obtained by the party seeking to issue or file the document.

6.07.3     An application for leave for the Registrar to issue, or for leave to file, a document that is subject to the direction of a Justice under subrule 6.07.2:

(a)    must be in Form 31; and

(b)     must not be served on any person, unless the Court or a Justice otherwise orders.

117    The proposed application which Mr Ferdinands sought to file concerned his enduring complaints stemming from his Defence Force prosecution in 1999 and its sequalae. In it, he sought a broad range of orders and declarations directed to, amongst others, the then case management judge in the SAD16/2023 Appeal, the Prime Minister, “any legal practitioner” and the police. Mr Ferdinands sought to invoke the Copyright Act 1968 (Cth) as a basis for relief. Justice Gageler (as the Chief Justice then was) refused leave on 10 August 2023, concluding that:

The underlying complaint, as articulated by the applicant, appears to arise from a prosecution of the applicant in 1999 before a Defence Force magistrate, within the meaning of the Defence Force Discipline Act 1982 (Cth). In short, he complains about the propriety of the conduct of that prosecution and subsequent appeals. He alleges “malicious prosecution and conviction by fraud”, and an associated “cover up” involving refusal to grant the applicant access to documents relating to the prosecution.

The supporting affidavit discloses several unsuccessful attempts by the applicant to obtain “discovery” of documents relevant to the prosecution and subsequent appeals. He complains that the conduct of several judges and a judicial registrar of the Federal Court was affected by “financial fraud” and “public corruption”. The applicant has commenced and seemingly maintains a proceeding against that judicial registrar in the Federal Court. One order sought is to quash case management orders made in that proceeding by [the case management judge].

The proposed application is not articulated comprehensibly.  The claims agitated and the relief sought by the proposed application, and any proper bases for relief sought, are unclear.  Some of the relief sought is beyond the jurisdiction of this Court.  The proposed application is frivolous, vexatious, and an abuse of process.

Ferdinands, In the matter of an application for leave to issue or file [2023] HCATrans 101.

118    Mr Ferdinands applied for special leave to appeal from the order made by Gageler J. Special leave was refused on the papers on 7 December 2023 on the basis that “any appeal would not have any prospects of success”: In the matter of an application by Trevor Kingsley Ferdinands for leave to appeal [2023] HCASL 191.

119    As mentioned, the stay of the SAD16/2023 Appeal was lifted on 5 April 2024.

Determination

120    The general observations that we have made in relation to the SAD1/2024 Appeal apply equally to the SAD16/2023 Appeal. We will not repeat those observations here other than to note that the SAD16/2023 Appeal also proceeds upon a fundamental misapprehension of the nature of the decision-making process and the confines of the appeal.

Grounds 1 and 2

121    By grounds 1 and 2, Mr Ferdinands contends in effect that the Primary Judge erred in determining that the Registrar had standing to make the decision under r 2.26 because he maintains that this would offend Chapter III of the Constitution and the doctrine of separation of powers. Mr Ferdinands’ contention must be rejected. Again, it is predicated on a misunderstanding of the role of the Registrar in this context and the nature of the administrative decision under r 2.26. In making a refusal decision under r 2.26, a Registrar does not exercise judicial power, but rather exercises an administrative function, which is reviewable by a judge or judges of the Court, pursuant to s 5(1) of the ADJR Act: Nyoni at [32] and [37]-[38]. No error has been demonstrated. Grounds 1 and 2 will be dismissed.

Ground 3

122    By ground 3, Mr Ferdinands alleges that the Primary Judge erred in failing to apply or wrongly applying the rule of law, “in that the whole of the evidence is still with the respondent, and none of the evidence is with [Mr Ferdinands]”. Even if one assumes that “the respondent” is meant to denote the Prime Minister and not the Registrar, the ground is still misconceived. No part of the review function performed by the Primary Judge involved applying the law in relation to document disclosure. This ground will be dismissed.

123    It is possible that this ground is intended to relate to the interlocutory order made on 2 November 2022 in which the Primary Judge refused leave to Mr Ferdinands to issue subpoenas directed to the Commissioner of the Australian Federal Police, the Director of Military Prosecutions, the Minister for Defence, the Commissioner of Australian Human Rights Commission, the Commissioner of the Office of the Australian Information Commission; and the Attorney-General of the Commonwealth; but that is by no means clear: see Ferdinands v Allaway, National Duty Registrar (No 1) [2022] FCA 1599 at [5]-[6]. Assuming for present purposes that it is the case, we would not grant leave to appeal on the basis that any appeal would not have any prospects of success.

Grounds 4 and 5

124    In grounds 4 and 5, Mr Ferdinands contends that: r 2.26 of the Rules is invalid because it purports to confer judicial power on the Executive; that the Primary Judge erred in the application of s 35A of the FCA Act by concluding that the Parliament had the right to confer judicial power on a Registrar; and that in the instant case that the Registrar could exercise judicial power to determine the merits of a case.

125    Mr Ferdinands’ contentions must be rejected. First, the Primary Judge did not proceed on an assumption that r 2.26 of the Rules confers judicial power on the Registrar. It is well established that it does not: Nyoni at [32] and [37]-[38]. The assertion that r 2.26 is invalid for this reason is based on a false premise. The Registrar did not purport to make any substantive decision concerning the merits of Mr Ferdinands’ claims, rather the Registrar reached the evaluative conclusion based on the face of the documents themselves that informed his administrative decision. The Registrar did not make a decision on the basis of the exercise of a judicial power following a consideration of the merits of the underlying claims.

126    As to Mr Ferdinands’ contentions in relation to s 35A of the FCA Act, they too are misconceived, and in any event, they are irrelevant. The Full Court’s observations in Bechara v Bates [2021] FCAFC 34; 286 FCR 166 at [1] are apposite:

When it comes to federal judicial power in Australia, certain matters are fundamental. The judicial power of the Commonwealth may only be exercised by judges of federal courts or other courts exercising federal jurisdiction and membership of a federal court is confined to judges appointed in accordance with s 72 of the Constitution. However, federal judicial power may be delegated to registrars if the power exercised by them is subject to review or appeal by a judge or judges of the court:  Harris v Caladine (1991) 172 CLR 84 at 94–95 (Mason CJ and Deane J), 123, 126 (Dawson J), 150–151 (Gaudron J) and 164 (McHugh J) (noting the dissenting views to the effect that federal judicial power invested in a federal court cannot be exercised by a registrar, at 109 (Brennan J) and 141 (Toohey J)).  …

127    Grounds 4 and 5 will be dismissed.

Grounds 6 and 7

128    Grounds 6 and 7 are extracted at [112] above. Stripped back, Mr Ferdinands’ complaint is that the Primary Judge erred in not allowing Mr Ferdinands’ proposed proceedings against the Prime Minister to go forward and in not awarding compensation in the sum of $5,369,218 “adjusted for inflation” for the 24 years between 18 January 1999 and 20 January 2023.

129    These grounds are yet another instance of Mr Ferdinands’ fundamental misapprehension of the respective roles of the Primary Judge and the Registrar and the nature of the function served by r 2.26 of the Rules and the scope of judicial review under s 5 of the ADJR Act. No error is established. These grounds will be dismissed.

Grounds 8, 9 and 10

130    Grounds 8, 9 and 10 are extracted at paragraph [112] above. We will not repeat them — they do not improve with repetition or paraphrasing. They are predicated on a false premise that in conducting the judicial review the Primary Judge erred by failing to “use all enabling authority and power” to monitor and supervise the court with an eye to ensuring good government under the Constitution and “ensure there was no misconduct” (ground 8); supervise and enforce “proper legal standard to all legal practitioners especially Ministers of the Crown, departmental secretary’s [sic] and legal practitioners in the employ of the Crown” (ground 9); and award compensation and make orders for full discovery and disclosure on the basis of 24 years of alleged misleading conduct by the Commonwealth and its Ministers, public servants and legal practitioners (ground 10).

131    At the risk of repetition, these grounds again demonstrate Mr Ferdinands’ fundamental misapprehension of the respective roles of the Primary Judge and the Registrar, the nature of the function served by r 2.26 of the Rules, and the scope of judicial review under s 5 of the ADJR Act. No error is established. The grounds will be dismissed.

Ground 11

132    Ground 11 is to the effect that the Primary Judge erred in not considering copyright subsisting in Mr Ferdinands’ communications and other documents which he seeks to characterise as related literary works. Although the ground is garbled, as best we can follow it, it appears to be an attempt to call in aid of his discovery and disclosure quest an assertion of copyright for all materials held by the Commonwealth in any way relating to him in the period 1999 to 2023. The ground is without substance, it is fundamentally flawed and incapable of giving rise to an appealable error. It will be dismissed.

133    To the extent that this ground is intended to be directed to the interlocutory order made on 2 November 2022, we repeat what we have said in relation to ground 3.

Grounds 12, 13, 14 and 15

134    Grounds 12, 13, 14 and 15 allege that the Primary Judge erred by not considering a raft of the materials that Mr Ferdinands says “have come to light since” the Registrar’s decision and otherwise complains about the consequences he alleges flow from the alleged failure.

135    The materials to which Mr Ferdinands refers include “(1) the decision of Stephen Donahue in the matter of Scott Morrison's secret ministries report, (2) the Brittany Higgins rape compensation case and out of court settlement, (3) the 2022 Local Government elections information and communications in the State of South Australia, (4) invalid parts of the Defence Force Discipline Act 1982 (Cth) and (5) Western Australia Legal Profession Conduct Rules 2010 (WA)”. Mr Ferdinands contends that taking in these materials would “end the quagmire in the case” and “validate or invalidate that there are two systems of justice in the Commonwealth of Australia, and two classes of people that exist in law in the Commonwealth of Australia.”

136    Again, Mr Ferdinands’ appeal grounds are incomprehensible. They are predicated on a complete misunderstanding of the decision under r 2.26, the Primary Judge’s review of that decision, and the necessity to demonstrate, not just allege, error in order to succeed in an appeal such as this. Mr Ferdinands has not established any error on the part of the Primary Judge. These grounds will be dismissed.

Conclusion

137    In his grounds of appeal Mr Ferdinands does not grapple with the conclusion of the Primary Judge that the documents he sought to file were on their face an abuse of the process of the Court, frivolous and vexatious and that the Registrar was correct to so conclude.

138    There being no error in the decision of the primary judge in dismissing the Allaway Review, the SAD16/2023 Appeal will be dismissed.

139    Before making orders to give effect to our reasons, we now turn our attention to whether we should initiate a process to consider whether to make a vexatious proceedings order against Mr Ferdinands.

SHOULD A PROCESS TO CONSIDER MAKING A VEXATIOUS PROCEEDINGS ORDER BE INITIATED?

140    Section 37AO of the FCA Act empowers the Court to make a vexatious proceedings order against a person, including an order that the person not commence proceedings in the Court: s 37AO(2)(b). Importantly, the Court may make a vexatious proceedings order on its own initiative: s 37AO(3), but must not make such an order without hearing the person or giving the person an opportunity of being heard: s 37AO(4).

141    In the course of a recent appeal the Full Court had occasion to consider whether it should of its own initiative institute a process for making a vexatious proceedings order against the appellant, Ms Storry, a litigant described by the Court as indefatigable: Storry v Parkyn [2024] FCAFC 67. The Full Court observed at [39] that:

[39]     It is well established that vexatious proceedings orders are an extreme measure and should not be made lightly. The nature of the relief is not to bar vexatious litigants from instituting proceedings entirely or to impose condign punishment for past litigious misdeeds, but to place the prospective litigation under the control of the Court by imposing a requirement for leave. In part, the purpose of such an order is to protect the Court’s processes against unwarranted usurpations of its limited resources, which must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits: see Jones v Skyring (1992) 66 ALJR 810 (at 814 per Toohey J); Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (at [3] per Perram J). As the Full Court explained in Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535 (at 545 [31]):

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

142    In Storry v Parkyn the Full Court initiated a process of its own initiative to ascertain whether the Court “could be satisfied that [a litigant] has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and, if this was established, that a vexatious proceedings order could follow”: see [40]-[43].

143    We have decided to adopt a similar process in relation to Mr Ferdinands and will make orders accordingly. This is not a decision that we have reached lightly. A close examination of the circumstances giving rise to the present appeals in the context of the numerous proceedings that Mr Ferdinands has otherwise pursued, or sought to pursue, in this and other Courts in relation to the bedrock events of 1999 and 2001 compels us to initiate a process to ascertain whether it might be appropriate to make a vexatious proceeding order. In taking this step we are conscious of the need to consider on the one hand, Mr Ferdinands’ individual rights, and then on the other hand, the broader considerations in protecting the Court’s processes and procedures, including by reference to the impost on court time and resources and the potential detriment to other litigants in the Court. That process will, of course, entail hearing from Mr Ferdinands or giving him an opportunity of being heard. In fairness to Mr Ferdinands, it is appropriate for us to say something at this stage as to some of the issues which have informed our decision to initiate this process.

144    Some of the prior litigation initiated by Mr Ferdinands has been referred to in passing as we addressed the substance of the present appeals, but it appears that this may be but a small part of the litigation which Mr Ferdinands has initiated. It appears that Mr Ferdinands has instituted a great many proceedings since late 2000 in a wide range of courts and tribunals. The present appeals and the large number of proceedings which Mr Ferdinands has instituted over a prolonged period of many years in this Court have consumed considerable court time and resources. This is an issue on which we will give Mr Ferdinands an opportunity to address.

145    In order to facilitate Mr Ferdinands being afforded an opportunity to address the preliminary views that have led us to initiate the process of considering whether to make a vexatious proceedings order, and to make submissions as to why such an order ought not be made, it is appropriate to make the following additional observations about the litigation in which Mr Ferdinands has been involved, so that he may address these matters, amongst others, if he should choose to do so.

146    In the earlier period from about September 2000 to about December 2007 most of Mr Ferdinands’ cases were in the courts and tribunals of South Australia (including Ferdinands v Commissioner of Police No. Dcaat-00-84 [2000] SADC 114; Ferdinands v Commissioner of Police (No 2) No. Dcaat-01-60 [2002] SADC 9; Ferdinands v Police No. SCCIV-02-136 [2002] SASC 46; Ferdinands v Police No. SCCRM-02-136 [2002] SASC 279; Ferdinands v Commissioner of Police (No. 3) No. Dcaat-01-60 [2003] SADC 28; Ferdinands v Commissioner for Public Employment [2003] SAIRC 19; Ferdinands v Commissioner for Public Employment [2004] SASC 30; Ferdinands v Attorney-General of South Australia (Sitting in Executive Council) [2007] SASC 53; and Ferdinands v Department of Premier and Cabinet [2007] SADC 136) with occasional excursions to the High Court on special leave applications and for one limited appeal which was dismissed with costs (see Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130).

147    In the later period from about 2008 to the present, Mr Ferdinands’ preferred, but not exclusive, forum of choice has been the Federal Court, peppered with regular excursions to the High Court seeking leave to commence proceedings and or special leave to appeal.

148    In some of his early cases, Mr Ferdinands enjoyed transient episodes of success, but in the majority of his cases, his claims have been dismissed, often attracting the epitaphs that the claims were without merit, frivolous, vexatious, doomed to fail and or an abuse of process.

149    In the proceedings he has instituted Mr Ferdinands regularly makes claims that legislation is unconstitutional, and he seeks remedies that have been held to be beyond the jurisdiction of the Court in which he sought to press the claims.

150    Mr Ferdinands continues to be pertinacious in the face of the repeated rejection of his claims in case after case.

151    Subject to hearing from Mr Ferdinands, it appears, based on the decisions in the many cases that he has instituted, that his almost singular goal has been to challenge his military conviction in 1999 and his civilian conviction in 2001 which he maintains were both entered as a result of conspiracy, incompetence, corruption and fraud.

152    In deciding whether it is appropriate to initiate a process pursuant to s 37AO(2)(b) of the FCA Act we have had regard to the observations of Allsop CJ (North, Bennett, Siopis and Logan JJ agreeing) in Ferdinands v Chief of Army which led to the making of the 2013 show cause orders.

153    The 2013 show cause orders were directed to protecting the processes and proceedings of the Court. At [22]-[23], Allsop CJ said:

[22]     The history of this matter reveals repeated and dogged applications making the same broad sweeping assertions to revisit a conviction of 14 years standing. The applicant’s submissions reveal no legal basis for either (a) the identification of a proper question of law, or (b) any doubt in the Appeal Tribunal’s decision. The affidavit of Mr Prince amply demonstrates a vexatious character to the appeal and a justification for seeking an order to protect the respondent from further litigation and cost. The Court also has an entitlement to protect its own procedures and proceedings. This is the second occasion in which five judges have been brought to deal with the matter.

[23]     Sweeping allegations of impropriety and fraud have been made from the bar table. There is no basis that has been identified in the evidence to justify those matters, and this court has power, as I said, to protect its own processes and proceedings. …

154    Taking into account the matters which we have outlined, and recognising that Mr Ferdinands may raise issues which may affect the preliminary views we have formed, it is appropriate to initiate a process pursuant to s 37AO(2)(b) of the FCA Act.

155    We have each come to the preliminary view that it may be that the Court could be satisfied that Mr Ferdinands has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals and, if this was established, that a vexatious proceedings order could follow. In the circumstances, we must hear from Mr Ferdinands in accordance with the procedure envisaged by s 37AO(4) of the FCA Act.

Conclusion

156    Accordingly, we will make orders to facilitate the hearing of whether an order should be made under Pt VAAA, Div 2 of the FCA Act in relation to Mr Ferdinands (the proposed order). We will make provision to ensure that Mr Ferdinands is afforded procedural fairness. A timetable will be entered which makes provision for Mr Ferdinands to file the material that he seeks to rely on if he chooses to oppose the making of the proposed order. Any such material should be filed in the SAD1/2024 Appeal proceeding. The matter of whether an order ought be made will either be determined by the Full Court on the papers, or in the event that Mr Ferdinands requests an oral hearing, the matter will be listed for oral hearing.

CONCLUSION

157    For the reasons given, the Court will make the following orders:

In SAD 1 of 2024:

(1)    Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

(2)    On or by 4 weeks from date of these orders, the appellant:

(a)    file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Trevor Kingsley Ferdinands be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b)    notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought be made by the Full Court and, in the absence of such notification, the issue as to whether the proposed order ought be made be dealt with on the papers by the Full Court.

(3)    On or by 6 weeks from the date of these orders, in the event that an amicus curae is appointed to assist the Court in connection with whether the proposed order ought be made, the amicus provide any material including written submissions to District Registrar Colbran who will provide copies to the appellant and to the Full Court.

(4)    Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Full Court on a date to be fixed not earlier than 8 weeks from date of these orders.

In SAD16 of 2023:

(5)    Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

Associate:

Dated:    21 August 2024