FEDERAL COURT OF AUSTRALIA

Bailiff v The Honourable Anthony Murray Gleeson [2001] FCA 344

PRACTICE AND PROCEDURE – procedural matters – orders restraining initiation of proceedings – failure to comply with rules regarding form of application – whether document should be accepted for filing.

PRACTICE AND PROCEDURE – procedural matters – orders restraining initiation of proceedings – abuse of process – document presented to a registry to commence proceedings – document appeared to Registrar to be an abuse of the process, frivolous or vexatious – whether Registrar should be directed to refuse to accept document or issue originating process.

COURTS AND JUDGES – bias – reasonable apprehension of bias – where judge is named as a party – whether judge automatically disqualified – principles governing disqualification – necessity – whether there is a principle of necessity – circumstances giving rise to the operation of the principle of necessity.

Federal Court Rules O 4 rr 1(2), 3(1), 6(1), 14 (2), O 46 r 7A

Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group Ltd (2000) 75 ALJR 277, applied

ALEXANDER MARCEL ANDRE SEBASTIAN BAILIFF & ORS v THE HONOURABLE ANTHONY MURRAY GLEESON & ORS

MADGWICK J

16 FEBRUARY 2001

CANBERRA

DIRECTIONS TO REGISTRAR:

1.                  The District Registrar is to refuse to accept or issue the documents presented on behalf of the intended applicants insofar as they would, if accepted, affect intended Respondents other than Rodney Neville Madgwick.

2.                  The District Registrar is to seek the direction of another Judge of this Court insofar as it relates to Rodney Neville Madgwick, named as the 46th and 276th intended Respondent.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     The District Registrar for the Australian Capital Territory has brought to my attention three proposed applications sought to be filed by the applicant and others – more correctly, of course, they are intended applicants - in the Australian Capital Territory District Registry of this Court.  The District Registrar believes that the applications, on their face, are an abuse of process of the Court or are frivolous or vexatious, and seeks a direction under O 46 r 7A of the Federal Court Rules.

2                     Order 46 r 7A provides:

“If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him:

(a)        to accept or issue it; or

(b)        to refuse to accept or issue it; or

(c)        to refuse to accept or issue it without the leave of a Judge first had and obtained.”

3                     It is convenient to consider first the application which names as a respondent, every Judge (including myself) of the principal superior courts in each jurisdiction within Australia.  Another person and bodies which may or may not have legal personality are each named as “Amicus Curiae”. 

Bias and the principle of necessity

4                     Firstly, I must consider whether I am biased (or there could be a reasonable apprehension that I am) and should therefore disqualify myself from the case as I am named as a respondent, not once but twice.

5                     The High Court most recently outlined the test to be applied in deciding whether a judge should disqualify himself or herself in Ebner v The Official Trustee in Bankruptcy; Clenae Pty Ltd v ANZ Banking Group Ltd (2000) 75 ALJR 277.  The majority (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at paras [59] – [63]:

“Although it is not material to the decision in the present cases, we note that the requirement that a judge must not be a party to the case he or she is deciding is one which may have significance apart from, and where necessary may operate independently of, problems relating to apprehension of bias.

It was said earlier that the fundamental principle to which effect is given by disqualification of a judge is the necessity for an independent and impartial tribunal.  Concepts of independence and impartiality overlap, but they are not co‑extensive.  In order to maintain both the reality and the appearance of independence, as well as impartiality, there must be a prohibition upon a judge sitting in a case to which he or she is a party, and that would include a case where one of the parties on the record is a nominee or alter ego of the judge.

There is a line of cases where the judicial officer was a party to proceedings either because the name of that officer was on the record as a necessary and proper party to the case [Dickason v Edwards (1910) 10 CLR 243 at 258–259], or because effectively or in substance the judicial officer was a moving party to the proceedings (eg, as a member of a body instituting a prosecution) even though not named on the record [R v Meyer (1875) 1 QBD 173 at 177; R v Milledge (1879) 4 QBD 332 at 333; R v Gibbon (1880) 6 QBD 168 at 170; R v Lee (1882) 9 QBD 394 at 396; R v London County Council; Ex parte Akkersdyk; Ex parte Fermenia [1892] 1 QB 190 at 198; R v Gaisford [1892] 1 QB 381 at 383-384; Dickason v Edwards [1909] VLR 403 at 408–409; revd (1910) 10 CLR 243].

These cases were described by Isaacs J in Dickason v Edwards [(1910) 10 CLR 243 at 259] as instances of “incompatibility”.

It is not difficult to think of examples of cases where a party to a litigation has no financial interest in the outcome of the litigation.  That may arise, for example, because of arrangements of indemnity or insurance, or in the case of a submitting party, or in various other circumstances.  A judge is disqualified from deciding a case to which he or she is a party, even if the judge has no pecuniary interest in the outcome of the case.  Again, this rule is subject to qualifications of waiver and necessity.” (emphasis added)

6                     At para [65] the majority took what I understand to be, with respect, a practical and commonsense approach to the question of what constituted necessity in the case before them.  They held that if the trial judge had disqualified himself:

“[s]uch a consequence would not promote public confidence in the administration of justice.  It would have the opposite effect.”

7                     On the application of any such test, I should consider the matter except to the extent that it is avoidable that I do so.  A similar result follows if the narrower approach thought appropriate by Gaudron J at para [102] were applied.  Similarly, although by analogy, the view put by Kirby J at para [172] also supports this result.

8                     Clearly, I would normally have to disqualify myself, because I am named as a party.  Likewise, every other judge of this Court would also have to disqualify himself or herself, as they are all named.  However, this is equally clearly a case where, out of necessity, some Judge must make a decision as to whether the document should be accepted or rejected for filing, and/or whether the Court’s processes should be subjected to a measure of protection.

9                     In my opinion, I can and should consider the matter insofar as the application relates to the approximately 300 respondents other than myself.  The District Registrar should refer the matter to another Judge of this Court to determine whether a direction should be made insofar as the application relates to me.

Abuse of process, frivolous or vexatious

10                  The number of respondents is over 300.  Under the heading “Details of Claim”, the application indicates that the intended applicant is claiming relief for the supposed failure of some 1788 public officials (and apparently also every diplomat posted to Australia) to perform a “duty in accordance with High Court Rules”; the supposed failure to call a Royal Commission of Inquiry; the supposed failure to assist the intended applicant in requesting political asylum; supposed violation of unnamed “United Nations Covenants” by every member of the United Nations; and supposed negligence for violation of those unnamed “United Nations Covenants”.  There are other matters.  One deduces only that the underlying grievance, which gives rise to the document presented, in some way originates from a belief that someone has failed to perform a supposed public duty, and that this delayed Mr Bailiff, the intended first applicant “from earning from international implementation of [some unspecified] commercial strategy [he] developed at 19”. 

11                  The interlocutory relief sought is as follows:

“Caveats are sought on all assets of all Respondents until final payments of amounts owed by each of the public officials, institutions and countries for negligence due to violation of United Nations Covenants, has been paid in gold.”

12                  Quite aside from whether the application, on its face, is an abuse of process of the Court or is frivolous or vexatious, it fails to comply with O 4 of the Federal Court Rules.  It does not seek any cognisable final form of relief (O 4 r 3(1)(a)) and it does not specify the legislative basis of the Court’s jurisdiction to hear the application (O 4 r 3(1)(b)).  Neither is it accompanied by the required affidavit (O 4 r 6(1)).  Finally, it appears that some of the named intended applicants are corporations and corporations may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor (O 4 r 14(2)). Strictly speaking, the District Registrar is not required to accept the document because of these deficiencies, without the need to consider whether it falls under O 46 r 7A.  (At a readily remediable technical level, the application does not strictly or substantially comply with Form 5 in the First Schedule to the Federal Court Rules, particularly as it is not signed or dated:  O 4 r 1(2)).

13                  Nevertheless, in respect of O 46 r 7A, in my opinion the District Registrar’s concerns about the document are justified – it falls into all three categories.  The proposed parties would face severe practical embarrassment in dealing with the document.  If proceedings were instituted by its filing, the proceedings would be bound to fail.  By no rational conception could even a lay person imagine legally justiciable culpability in the intended respondents named and certainly no comprehensible basis appears from the document, for inferring any possibly supportable theory of such culpability against any of the intended respondents.  I would therefore direct that the District Registrar refuse to accept or issue the document. 

Disposition

14                  In my view, this is an appropriate case for a direction under O 46 r 7A(b).  The other two proposed applications, referred to me, should be dealt with by the Judge who will deal with the proposed application as it relates to me.

Associate:

Dated:              30 March 2001