FEDERAL COURT OF AUSTRALIA

Satchithanantham v National Australia Bank Limited [2009] FCA 1171

ADMINISTRATIVE LAW – whether decision by a Deputy District Registrar of the Federal Court of Australia made pursuant to O 46 r 7A(1) of the Federal Court Rules to reject a Notice of Appeal submitted for filing within time on the ground that it constituted an abuse of the process of the Court is a decision of an administrative character – decision held to be a decision of an administrative character – decision susceptible to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – applicant failed to specify or make out any ground of review – application dismissed

PRACTICE AND PROCEDURE – whether decision of a Registrar of the Federal Court of Australia made pursuant to O 46 r 7A(1) of the Federal Court Rules to refuse to accept a Notice of Appeal for filing is reviewable under s 35A(5) or s 35A(6) of the Federal Court of Australia Act 1976 (Cth) – decision held not to be reviewable under s 35A  

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)

Federal Court of Australia Act 1976 (Cth), s 35A

Federal Court Rules, O 1 r 4, O 46 r 7A, O 54

Satchithanantham v National Australia Bank [2009] FMCA 562 related

Satchithanantham v National Australia Bank Limited [2009] FCA 198 cited

Satchithanantham v National Australia Bank Limited [2009] FCA 501 cited

Bahonko v Sterjov [2007] FCA 1556 cited

Bahonko v Sterjov [2007] FCA 1717 cited

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 applied

Gunter v Doogan [1999] FCA 1648 cited

Legal Aid Commission (WA) v Edwards (No 2) (1982) 61 FLR 419; 42 ALR 154 cited

Letts v Commonwealth (1985) 8 FCR 585 cited

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 applied

Paramasivam v Randwick City Council [2005] FCA 369 applied 

THAMBIAPPAH SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK LIMITED and DEPUTY DISTRICT REGISTRAR P HANNIGAN

NSD 783 of 2009

FOSTER J

14 OCTOBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The Application filed by the applicant on 30 July 2009 be dismissed.

2.                  The applicant pay the first respondent’s costs of and incidental to that Application.

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                                             On 30 July 2009, Thambiappah Satchithanantham (the applicant) filed in this Court an originating process entitled:  Application for an Order of Review (the Application).  The Application was said to be made under O 54 of the Federal Court Rules.  Those Rules relate to applications made in this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).  The applicant does not rely upon s 39B of the Judiciary Act 1903 (Cth) in the Application.

2                                             The decision which the applicant seeks to overturn (the Registrar’s decision) is a decision by a Deputy District Registrar of this Court (the second respondent) made on 7 July 2009 and notified to the applicant by letter dated 7 July 2009.  By that decision, the second respondent declined to accept for filing a document entitled:  Notice of Appeal (the proposed Notice of Appeal).

3                                             The applicant had attempted to file the proposed Notice of Appeal on 7 July 2009.  By the proposed Notice of Appeal, the applicant sought to challenge a decision of a Federal Magistrate, Driver FM, made on 16 June 2009, in which the Federal Magistrate dismissed as an abuse of process an application made by the applicant to set aside a sequestration order made in respect of his estate.  In the application before Driver FM, the applicant also sought an order annulling his bankruptcy and damages against the first respondent.  The applicant also sought other related orders and interim relief.

4                                             Under the Federal Court Rules, the last day on which the applicant could file any Notice of Appeal in respect of Driver FM’s decision was 7 July 2009.

5                                             In her letter to the applicant dated 7 July 2009, the second respondent said:

The document [referring to the proposed Notice of Appeal] is not accepted for filing pursuant to Order 46 rule 7A (1) of the Federal Court Rules as it is an abuse of process:

“It is an abuse of process because it is doomed to fail; Walton v Gardiner (1993) 177 CLR 378”.

Order 46 rule 7A (1) provides;

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.

I return your Notice of Appeal.

6                                             When the applicant filed the Application, he named the first respondent as the only respondent in the proceedings.  The first respondent was the petitioning creditor in the applicant’s bankruptcy.  On 26 August 2009, when the proceedings came before me for the first time, I drew the applicant’s attention to the fact that he needed to join the second respondent as an additional respondent party.  On that occasion, I also fixed the proceedings for final hearing before me on 15 September 2009.

7                                             When the proceedings were called on for hearing before me on 15 September 2009, the applicant applied to join the second respondent and several others as respondent parties to the proceedings.  He did so outside the time which I had allowed to him to obtain orders for the joinder of additional respondents under the orders which I had made on 26 August 2009.  Notwithstanding the lateness of his joinder application, I made an order joining the second respondent but I declined to join any other parties.  None of the other parties which the applicant sought to join on 15 September 2009 was either a necessary or a proper party. 

The Application

8                                             In the Application, the applicant seeks the following relief:

Applicant claims:

1          Set aside the decision made by the registrar P Hannigan on 7/7/09.

2          Applicant be granted leave to file & serve “notice of appeal” as to the refusal made by the registrar P Hannigan on 7/7/09.

3          The registry of this court to make arrangement to transfer the file : SYG 786/2009 from the court below to this court, prior to the hearing of this application.

4          Applicant be granted leave that the registry of this court to make arrangement to provide transcripts to the applicant in the court below matter SYG 786/09, before the Registrar Hedge on 12/5/09 & 16/6/09 [Verbal submissions by the parties on the directions dates] and before His honour Driver FM on 16/6/09, in consideration with the order- 2 above.

9                                             It is extremely difficult to discern in the Application any intelligible grounds upon which the applicant relies in support of the relief which he seeks.  It is also somewhat difficult to grasp the substance of some of the relief which he seeks.  As far as the grounds relied upon are concerned, he seems to want to assert that the Registrar’s decision was equivalent to a decision in his appeal on the merits and was therefore a decision which could only be made by a Full Court of this Court comprising a bench of three Judges.  The applicant does not mention the ADJR Act in the Application and does not expressly or even impliedly refer to any of the statutory grounds set out in that Act by which relevant administrative decisions might be attacked.  The applicant did not contend that O 46 r 7A(1) was invalid.  Nor did he contend that the decision was a decision of a judicial character rather than a decision of an administrative character.  Such a contention would have run counter to his whole case.  The first respondent, on the other hand, did submit that the decision was judicial and not administrative in character in support of a submission that the applicant’s claims made in the Application were misconceived and should be dismissed. 

The Proposed Notice of Appeal

10                                          The grounds of appeal set out in the proposed Notice of Appeal are in the following terms:

GROUNDS OF APPEAL:

I           Appellant has suffered natural justice in the court below.

2          His Honour Federal Magistrate Driver erred in law and facts by dismissing the applicant’s application on 16/6/09 by hearing on “DURESS”, which was listed for further direction of the substantive hearing of the matter 786/09 and the hearing listed for “interim orders” sought in the substantive matter, on the same day.

3          His honour erred in law by entertaining and accepting respondent’s verbal application heard and determined on 16/6/09 by dismissed the applicant’s application.

Particulars:

a.         By law, the respondent application should have been made any application in the court below by way of written application or reply within 21 days of the serving the substantive application matter no: 786/09.

b.         Respondent defaulted to do such application, on time.

c.         The court below applied “favors” to the respondent, unreasonably.

d.         His honour has been in the situation of “Apprehended bias” as to his honours previous dismissal of previous bankruptcy in 2002, which were challenged upo to High Court then.

4          His honour erred in law by concluding the decision of the dismissal of the applicant’s application in short period of time “within an hour” as to the serious matter raised before the court in the applicant’s bankruptcy annulment application without having benefit of reading or understanding the issues raised in many materials, and affidavits, which were before his honoour, by such “Apprehended bias”.

5          Appellant relies on his verbal arguments made before his honour Driver FM on 16/6/08, as part of the appeal grounds, in addition to the as referred in his application in the court below matter: SYG 786/09, for which the respondent conceded by not challenging in the affidavits filed and served by the respondent in the court below, neither in the verbal arguments made by the respondent’s counsel before his honour Driver FM on 16/6/09.

6          Appellant’s application as to the his annulment of his bankruptcy application SYG 786/09 was supported and consented by the Bankruptcy Trustee [ITSA], as to it’s merits, as to the hearing before his honour FM on 16/6/09, though trustee was in presence in the court on 16/6/09, as in the court’s records.

7          Appellant has suffered unfairness treatments in the court below, as to procedural issues, which were “bypassed” as to the undue influence caused by the respondent before the court below.

8          His honour erred in law by the assumptions that that the matter was already dealt with Her honor Stone J in this court on 11/5/09, in contrary, that Her honour left the matter to the court below to determine the issues, as to the left over evidence, though her honour was dealing with only issue of law, being an appeal, as it was raised before her honour in the morning hearing on 11/5/09, as recorded in the transcripts. As to consequences, the applicant has placed in a situation of “foot ball” in the foot ball ground where applicant has been kicked from both ends and became a victims, before the eyes of the justice and merits of the applicants’ case, as a whole.

I have reproduced the Grounds of Appeal in the precise terms in which they appear in the proposed Notice of Appeal.  The spelling errors and difficulties of expression are those of the applicant.  I understand that he was the author of the document. 

11                                          In the proposed Notice of Appeal, the applicant seeks a stay of the sequestration order.  He also seeks some unspecified relief in respect of the Supreme Court judgment which was the basis of the bankruptcy proceedings in which the sequestration order was made and other relief concerning transcripts of certain hearings.

The Judgment of the Federal Magistrate

12                                          The applicant tendered in evidence before me the Reasons for Judgment of Driver FM dated 16 June 2009 in proceedings SYG 786 of 2009 (Satchithanantham v National Australia Bank [2009] FMCA 562).

13                                          At [3]–[10] of those Reasons, the Federal Magistrate said:

3.         The background to the matter is somewhat detailed but has been dealt with in earlier proceedings in various courts. On 12 December 2007 the Supreme Court of New South Wales made a costs order against the applicant.  An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008 the High Court refused special leave to appeal to that Court. On 14 May 2008, the respondent creditor served a bankruptcy notice on the applicant based on the judgment debt created by the costs order. The bankruptcy notice was not complied with. 

4.         The bankruptcy notice was challenged in earlier proceedings in this Court and that application was dismissed on 1 July 2008 by Smith FM (Satchithanantham v NAB Limited [2008] FMCA 940). The applicant appealed from that decision to the Federal Court and on 27 February 2009 his Honour Edmonds J dismissed that appeal (Satchithanantham v NAB Limited [2009] FCA 198). A creditor’s petition was then brought and was listed to be heard on 15 October 2008. There was some delay pending the resolution of the appeal before Edmonds J. The applicant did not attend the hearing of the creditor’s petition which occurred on 11 March 2009.  A sequestration order and other orders were made by Smith FM on that day (NAB Limited v Satchithanantham  (No 2) [2009] FMCA 229). The applicant appealed from those orders to the Federal Court.  On 11 May 2009 her Honour Stone J dismissed that appeal (Satchithanantham v NAB Limited [2009] FCA 501). I understand that the applicant is also seeking special leave to appeal to the High Court against both the judgment of Edmonds J and the judgment of Stone J. I understand that there are also continuing proceedings in the Supreme Court. 

5.         The application is supported by three affidavits by the applicant filed on 3 April 2009, 26 May 2009, and 16 June 2009.  That comprises a substantial volume of material, some of which was objected to by the respondent.  I received all of the affidavit material on the basis that I would attribute appropriate weight to it and would treat as submissions those parts of it which were submissions rather than assertions of fact.  The respondent relies upon the affidavit of Jane Heather Pike made on 7 May 2009.  I also received as an exhibit a bundle of documents comprising the applicant's notice of opposition to the creditor's petition, his notice of appeal in the Federal Court earlier this year, and an amended notice of appeal. 

6.         The fundamental problem facing the applicant is that he is seeking to re-agitate in these present proceedings issues that have already been dealt with in this Court and in the Federal Court.  He invites the Court to again revisit the costs order of the Supreme Court.  He also invites the Court to revisit the earlier decisions of Smith FM and the appeals dealt with in the Federal Court.

7.         I am, of course, bound by the two judgments of the Federal Court relating to the bankruptcy notice and the sequestration order.  I gave the applicant an opportunity to explain to me whether there was any basis other than the issues which have previously been dealt with in the earlier Court proceedings to support the application for annulment, but having heard his oral submissions at some length, I have not discerned any issue that was not dealt with in the earlier proceedings or which could not have been.

8.         In his judgment at [20], Edmonds J found that the various attacks by the applicant on the debt underlying the bankruptcy notice were vexatious and frivolous and were correctly dismissed by Smith FM. In her judgment at [14] Stone J rejected the claims of procedural unfairness arising out of the applicant's non attendance before this Court when it made its sequestration order.

9.         For his part, Smith FM dealt at some length with the issues raised by the applicant concerning the adverse costs order in the Supreme Court in both of his judgments. Having regard to the earlier proceedings and the material now presented by the applicant, I have come to the view that the present application is an abuse of process. It is simply a vehicle being used by the applicant to re-agitate issues that have already been dealt with. The application should not have been brought and further like applications should be prevented. 

10.       I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate.

14                                          The judgment to which Driver FM first referred at [8] of his Reasons is a judgment of Edmonds J delivered on 11 March 2009 (Satchithanantham v National Australia Bank Limited [2009] FCA 198).  That judgment contained his Honour’s reasons for dismissing an appeal from Smith FM on 27 February 2009.  Smith FM had declined to set aside the Bankruptcy Notice which was the foundation of the sequestration order ultimately made in respect of the applicant’s estate.  The underlying debt was $10,000.00, being the amount of a costs order made on 12 December 2007 in favour of the first respondent against the applicant by a Judge of the Supreme Court of New South Wales in proceedings in that Court.  Leave to appeal from that order was refused with costs by the Court of Appeal on 16 June 2008.  On 14 July 2008, a further attempt to challenge that order was also dismissed with costs by the Court of Appeal.  The applicant’s application to the High Court for special leave to appeal from the Court of Appeal’s orders was refused.  There is, therefore, no other avenue by which the applicant can have the costs order overturned. 

15                                          At [20] of his Reasons, Edmonds J said: 

Viewed in this context, the various attacks by the appellant on the debt underlying the bankruptcy notice are vexatious and frivolous and were correctly dismissed by his Honour.

16                                          Edmonds J went on, in effect, to uphold the validity of the Bankruptcy Notice.

17                                          In the judgment of Stone J referred to at [8] of the reasons of Driver FM (Satchithanantham v National Australia Bank Limited [2009] FCA 501), her Honour dismissed an appeal from another judgment of Smith FM, who made the sequestration order against the applicant’s estate on 11 March 2009.  Once again the applicant attempted to go behind the costs order which was the foundation of the Bankruptcy Notice and Creditor’s Petition, and once again failed in that endeavour.

18                                          It is quite clear that the complexion on events given by Driver FM at [6] of his Reasons was an accurate one.

Consideration and Decision

19                                          Order 46 r 7A of the Federal Court Rules 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.

20                                          In the present case, the second respondent acted under O 46 r 7A(1).  She did not seek a direction from a Judge.  She did not engage O 46 r 7A(2).  She specifically relied upon the abuse of process ground and upon that ground alone.

21                                          The second respondent did not appear on 15 September 2009 and has taken no part in the proceedings.  The first respondent actively opposed the relief sought by the applicant.

22                                          The applicant has not advanced any basis for setting aside the Registrar’s decision under the ADJR Act.  Notwithstanding that circumstance, I am obliged, I think, to consider the Application and the applicant’s claims doing the best I can to arrive at the just result. 

23                                          The first question to be decided is whether the Registrar’s decision was a decision of an administrative character within the meaning of s 5(1) of the ADJR Act.  As I have already mentioned, the first respondent submitted that it was not such a decision but was rather a decision of a judicial character.

24                                          In Letts v Commonwealth (1985) 8 FCR 585, Toohey J (when sitting as a Judge of this Court) held that a decision made by the Registrar of the High Court to seek a direction from a Justice of the High Court pursuant to O 58 r 4(3) of the High Court Rules as to whether the Registrar should decline to accept a document for filing because it was an abuse of the process of the Court or a frivolous or vexatious proceeding, was not a decision of an administrative character.   At 587 of the report, Toohey J said:

The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions. If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character. The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. “Although he was not a member of the court he was ... part of the organisation through which the powers and jurisdiction of the court were exercised ...”:  see Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, r 3(4) provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission of Western Australia v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court.

25                                          Letts 8 FCR 585 was a very different case from the present.  In Letts, the decision of the Registrar under challenge was a decision to refer a matter to a Justice of the High Court viz whether the Justice should direct the Registrar not to accept a document.  The present case involves a decision made by the Deputy District Registrar not to accept the proposed Notice of Appeal.  There was no attempt to involve a Judge of this Court in the relevant decision-making in the present case.  Furthermore, Letts 8 FCR 585 concerned an application in this Court under the ADJR Act for judicial review of a decision of the Registrar of the High Court—a very different subject matter from the subject matter of the present case.  In Letts 8 FCR 585 at 587–588, Toohey J said: 

If I was of the opinion that the action of the Registrar constituted an administrative decision made under an enactment and thus susceptible of review under the Judicial Review Act, I would nevertheless refuse to grant the application for review. Adequate provision is made by the High Court Rules for a justice of that Court to determine whether or not the Registrar shall issue the process in question. In those circumstances it would be quite inappropriate for a judge of this Court to determine what is in essence that very matter.

26                                          The judicial review in this Court of a decision by a Registrar of this Court to refuse to accept a document for filing is a very different thing from the judicial review in this Court of a decision of the Registrar of the High Court to seek a direction from a Justice of that Court. 

27                                          There is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [11]–[19] (pp 356–357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J).  See also Legal Aid Commission (WA) v Edwards (No 2) (1982) 61 FLR 419; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect).  In Bizuneh 128 FCR 353, the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule “removed a clog on the Registrar’s discretion”.  The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act.  This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court. 

28                                          This body of authority has developed notwithstanding the fact that an earlier Full Court assumed, without deciding, that a direction given by a Judge to a Registrar pursuant to O 46 r 7A was a “judgment, decree or order” of the Court (see Gunter v Doogan [1999] FCA 1648 at [12], [14], [18] and [19]). 

29                                          Further, in Paramasivam v Randwick City Council [2005] FCA 369, Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as “administrative in character”.  His Honour nonetheless followed Bizuneh 128 FCR 353 as he regarded himself as being bound by the decision.  At [40], his Honour said: 

It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts.  Had the reasoning in Letts been followed, it would seem that the Judge’s direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar's actions pursuant to the direction) constituted a ‘judgment’ for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal.

30                                          I too am bound by the reasoning in Bizuneh 128 FCR 353.  If a direction by a Judge to a Registrar is an administrative decision and not a judicial decision, it follows that the decision by a Registrar taken on his or her own initiative pursuant to O 46 r 7A(1) is a fortiori a decision of an administrative character.  Quite apart from the fact that the reasoning in Bizuneh 128 FCR 353 is binding upon me, I would have thought that a decision of the latter kind made by a Registrar on his or her own initiative is clearly a decision of an administrative character.

31                                          For these reasons, I am of the opinion that the Registrar’s decision was a decision of an administrative character and is thus susceptible to judicial review under the ADJR Act.

32                                          In O 1 r 4 of the Federal Court Rules, Registrar is defined, for the purposes of those Rules, as:

… the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place.

33                                          The proper place in respect of the proposed Notice of Appeal is the New South Wales District Registry of this Court in Sydney.

34                                          Accordingly, the power reposed in a Registrar by O 46 r 7A(1) of the Federal Court Rules was reposed in the second respondent, amongst others, in the circumstances of the present case.

35                                          The evidence before me discloses that the second respondent was of the opinion that the proposed Notice of Appeal was an abuse of the process of the Court because it was doomed to fail. 

36                                          The grounds available to the applicant to seek an order of review in respect of the decision are set out in s 5(1) of the ADJR Act.  As I have already mentioned, the applicant did not mention the ADJR Act in the Application or in his submissions nor did he identify the basis upon which he sought judicial review of the decision.  Doing the best I can to interpret the Application and the submissions which the applicant made to me in his oral submissions, he seems to want to argue that there is no power in a Registrar of this Court to deny to him his right of appeal because all appeals must be heard on their merits by a bench comprising three Judges of this Court.

37                                          Upon the assumption that O 46 r 7A is valid, there is clearly power in a Registrar of this Court to refuse to accept a document for filing.  The class of documents which may be rejected under that rule include an originating document.  A Notice of Appeal from a decision or judgment of a Federal Magistrate is an originating document within the meaning of O 46 r 7A.

38                                          I am unable to see any ground adumbrated in s 5(1) of the ADJR Act which could conceivably support the relief which the applicant claims in the Application.  The applicant does not have an entitlement to investigate the merits of the decision by means of an application for judicial review.

39                                          In Paramasivam [2005] FCA 369 at [43] ff, Sackville J considered whether the proceedings brought by the applicant in the case before him should be summarily dismissed.  At [46]–[47], his Honour said:

46        FCR, O 46 r 7A, confers on the Registrar certain powers if he or she forms a particular opinion.  The requisite opinion is that a document presented to a Registry on its face is an abuse of the Court's process or is frivolous or vexatious.  If the Registrar forms that opinion, he or she may, without more, refuse to accept or issue the document.  Alternatively, the Registrar may seek the direction of a Judge.  Although r 7A does not expressly say so, it is clearly intended that the Registrar must act in conformity with the Judge's direction.

47        The Registrar’s power to seek the direction of a Judge is thus conditional on the Registrar forming the opinion that the relevant document on its face is an abuse of the process of the Court or is frivolous or vexatious.  It would seem to follow that if an applicant can establish that a Registrar who sought the direction of a Judge in relation to a document presented to the Registry:

•           did not form the requisite opinion; or

•           although forming an opinion that the document was an abuse of process, did so after taking into account matters other than the contents of the document itself,

it is at least arguable that the Registrar’s decision to seek the direction is amenable to judicial review under the ADJR Act.  In the first case, the Registrar’s decision would not seem to have been authorised by the relevant enactment (that is, the FCR) and thus the applicant could invoke s 5(1)(d) of the ADJR Act (providing a ground of review where the decision was not authorised by the enactment).  In the second case an irrelevant consideration would have been taken into account and thus the applicant could invoke s 5(1)(e) of the ADJR Act (see s 5(2)(a)).

(Original emphasis)

40                                          In Paramasivam [2005] FCA 369, Sackville J noted that, at the same time as the Registrar sent the memorandum to the Duty Judge requesting a direction pursuant to O 46 r 7A, the Registrar sent a further memorandum which set out some of the applicant’s litigious history.  Sackville J took the view that the existence of this accompanying memorandum which set out some of the applicant’s litigious history was a sufficient basis to allow the proceedings to go to trial because it may have supported an ultimate contention on the part of the applicant that the Registrar had taken into account an irrelevant consideration, namely, that the applicant’s litigious history was a matter to which regard might be had in forming the requisite opinion under O 46 r 7A.

41                                          In the course of his Reasons for Judgment in Paramasivam [2005] FCA 369, Sackville J discussed the meaning of the expression on its face when used in O 46 r 7A.  At [45], his Honour said:

The expression ‘on the face’, according to Butterworths Australian Legal Dictionary refers to

‘the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation’.

There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person’s litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document ‘on its face’.

42                                          In the present case, there is no evidence to suggest that the second respondent formed the opinion which she did by reference to anything other than the proposed Notice of Appeal.  Indeed, Counsel for the first respondent made detailed submissions designed to demonstrate that the proposed Notice of Appeal was, on its face, clearly an abuse of the process of the Court.  Those submissions were based solely on the terms of the proposed Notice of Appeal.  She submitted that the grounds of appeal were largely incomprehensible.  Counsel also submitted that the pejorative terms “duress”; “suffering natural justice”; “apprehended bias”; “undue influence”; and “favouritism” were all bandied about in the proposed Notice of Appeal without any proper foundation.  In the proposed Notice of Appeal, the applicant also sought to incorporate oral arguments made before the Federal Magistrate in an entirely impermissible way.

43                                          There is a great deal to be said for the arguments advanced by Counsel for the first respondent in support of the proposition that the Registrar’s decision was plainly correct.  But the first respondent does not need to go that far.  The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing “on its face”is “an abuse of the process of the Court or is frivolous or vexatious” (the words are “if the document appears to the Registrar … to be …”) (Emphasis added).  That opinion must be honestly and actually formed.  It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing.  The Registrar must form that opinion reasonably (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report).  This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision. 

44                                          In the present case, there is no evidence upon which I could, let alone should, make a finding that the second respondent did not actually and honestly form the opinion which she expressed in her letter to the applicant dated 7 July 2009.  The terms of the proposed Notice of Appeal itself provide a reasonable basis for the formation of that opinion. 

45                                          It may be that the expression on its face when used in O 46 r 7A allows the Registrar to consider other documents in addition to the document which is submitted for filing, if it is necessary to do so in order to make sense of that document. 

46                                          In the present case, there is no evidence to suggest that the second respondent did more than look at the proposed Notice of Appeal.  In those circumstances, I do not need to determine the wider question. 

47                                          It was submitted on behalf of the first respondent that I have power to review the Registrar’s decision pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth) (the Act).  Section 35A(1) of the Act provides that certain powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar.  Those powers are set out in subpars (a) to (h) of s 35A(1). 

48                                          Section 35A(5) and s 35A(6) are in the following terms:

35A     Powers of Registrars

…

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

(6)        The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised.

49                                          The power to reject a document presented for filing given to the Registrar under O 46 r 7A(1) is not a power of the Court within the meaning of that expression in s 35A(1) of the Act.  It is a power given to the Registrar directly by the Federal Court Rules.  Section 35A is intended to deal with powers of the Court other than powers already specifically given to the Registrar under the Rules.  Furthermore, even if it were such a power, it does not fall within the specific powers referred to in s 35A(1)(a) to (h) of the Act.  Finally, in this case, the second respondent did not act as she did pursuant to a direction from a Judge.  For s 35A(1) to be engaged, there must first be a direction given by the Court or a Judge.

50                                          For these reasons, the Registrar’s decision was not a decision made in the exercise of a power of the kind referred to in s 35A(1) of the Act.  For that reason, the Registrar’s decision cannot be reviewed under that section because, under subs (5) and (6) of s 35A of the Act, only an exercise of power pursuant to s 35A is reviewable under those subsections.  For these reasons, I reject the argument of the first respondent that I can review the Registrar’s decision pursuant to s 35A(6) of the Act. 

51                                          The rejection of the first respondent’s s 35A argument necessarily carries with it the rejection of the further argument put by the first respondent that, because the decision can be reviewed under s 35A(6) of the Act, I should refuse relief to the applicant under the ADJR Act on discretionary grounds, that is to say, I should refuse relief because he has a perfectly adequate alternative avenue available to him whereby he can redress the wrong about which he complains. 

Conclusion

52                                          The applicant has failed to make out any ground for judicial review of the Registrar’s decision.  The application must be dismissed with costs.  I will make orders accordingly.

Associate:

Dated:         14 October 2009