FEDERAL COURT OF AUSTRALIA

Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCA 1615

ANASTASIOS MANOLAKIS v DISTRICT REGISTRAR, SOUTH AUSTRALIA DISTRICT REGISTRY, FEDERAL COURT OF AUSTRALIA and WESFARMERS LTD TRADING AS KMART

SAD 96 of 2008

BESANKO J

31 OCTOBER 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The description of the first respondent be amended to District Registrar, South Australia District Registry, Federal Court of Australia.

2.                  The application for an order of review be dismissed.

3.                  The applicant pay the second respondent’s costs, including the costs of its attendances on 3 and 10 October 2008.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application by Mr Anastasios Manolakis for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision in question was made by the District Registrar, South Australia District Registry, Federal Court of Australia on or about 1 July 2008. The District Registrar made a decision under O 46 r 7A of the Federal Court Rules to refuse to accept a document proffered by Mr Manolakis and described as a notice of appeal.

2                     Order 46 r 7A is in the following terms:

7A       Refusal to accept document for filing

(1)        A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious.

(2)        A Registrar may seek the direction of a Judge who may direct the Registrar that a document (including any document which is, or if issued will become, an originating document):

(a)        is to be accepted or issued; or

(b)        is not to be accepted or issued; or

(c)        is not to be accepted or issued without the leave of a Judge.

3                     In this case, the Registrar made her own decision not to accept the document for filing.  She did not seek the direction of a Judge.

4                     The document in question was a purported appeal by Mr Manolakis from a decision made by Mansfield J on 19 June 2008. On that day, his Honour made an order that an application by Mr Manolakis for leave to appeal from an interlocutory decision of the Federal Magistrates Court made on 13 May 2008 be dismissed. The Registrar decided that, as Mansfield J was exercising the appellate jurisdiction of this Court, the Court did not have jurisdiction to hear an appeal from his Honour’s decision. In those circumstances the Registrar considered that the appeal in its present form was doomed to fail and she refused to accept the document for filing.

5                     Mansfield J sets out the history of this proceeding in his reasons: Manolakis v Wesfarmers Ltd Trading as Kmart [2008] FCA 928. His Honour said that Mr Manolakis sought leave to appeal from an interlocutory decision of the Federal Magistrates Court made on 13 May 2008 and that the decision was to make an order striking out Mr Manolakis’ statement of claim in the proceeding. Mr Manolakis was given leave by the Federal Magistrate to file and serve an amended statement of claim. Mansfield J said that parts of the statement of claim were inadequate and that it was appropriate for the Federal Magistrate to strike them out. Other parts of the statement of claim contained allegations which were “clearly unnecessary to, and unrelated to, the claim in the application”. Mansfield J said that neither the Federal Magistrates Court nor this Court would have jurisdiction to entertain a number of the allegations in the statement of claim. Mansfield J held that the Federal Magistrate’s decision to strike out the statement of claim was correct and that leave to appeal should be refused.

6                     The purported notice of appeal is dated 30 June 2008. It purports to appeal from the whole of the judgment of Mansfield J. The application for an order of review of the District Registrar’s decision refusing to accept the notice of appeal is dated 10 July 2008.

7                     In my opinion, the District Registrar’s decision to refuse to accept the purported notice of appeal is correct. There is no error of law or fact.  Section 24 of the Federal Court of Australia Act 1976 (Cth) identifies the appellate jurisdiction of this Court and s 25 deals with the exercise of that jurisdiction. Section 25(2) provides that applications for leave or special leave to appeal to the Court may be heard and determined by a single judge or by a Full Court. In this case, the application for leave to appeal has been heard and determined by a single judge. In doing so, the single judge was exercising the appellate jurisdiction of this Court, and no further appeal lies to the Full Court. That proposition is well established: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Hamod v New South Wales (2002) 188 ALR 659.

8                     The application for an order of review must be dismissed, and the applicant must pay the second respondent’s costs including the costs of its attendances on 3 and 10 October 2008.

Associate:

Dated:         30 October 2008