FEDERAL COURT OF AUSTRALIA

Vasiliou v Honourable Justice Marshall [2011] FCA 588

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    There be no order as to costs.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This matter concerns an application filed on 12 February 2009. The first named applicant is a Mr Andrew Vasiliou (who was described as the Guardian and Appointor of the Vasiliou Family Trust) (Mr Vasiliou). The second named applicant is Optquest Pty Ltd (ACN 006 828 664), (as trustee of the Vasiliou Family Trust) (the Second Applicant). The named respondent is described as the “Hon Shane Raymond Marshall (a Federal Court Judge)”. The application was supported by an affidavit.

2    As a preliminary matter, I note that the Second Applicant is a company. In Federal Court proceedings, a company must be represented by solicitors unless leave of the Court is granted: see O 4 r 14 of the Federal Court Rules 1979 (Cth) (the Rules). The Second Applicant does not have solicitors on the record and no leave has been granted. However, for the reasons that follow, ultimately that issue may be put to one side.

PROCEDURAL BACKGROUND

3    The application sought the following relief:

1.    An order setting aside the directions given by Justice Marshall on the 19th December 2008;

2.    A declaration from the Court that the application referred to in this proceeding is not an abuse of process;

3.    An order that the Registry of the Court comply with Justice Heerey’s directions given on the 15th of December 2008 and accept the application and notice of motion and to file those as soon as possible with the Court; and

4.    Costs and other remedies as the Court feels fit to apply or make on the date of hearing(s).

4    The application was described as an “[a]pplication to review the decision made by the respondent Hon Shane Raymond Marshall that this Judge has on the 19th December 2008 … directed the Registrar to refuse to issue [certain documents] … as being an abuse of process made under O 46 [r] 7[A]” (emphasis removed). In other words, the application appears to be one for review of a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The decision under review is the direction given by Marshall J in refusing to accept or issue certain documents pursuant to O 46 r 7A of the Rules. At the relevant time, that rule relevantly provided:

(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.

5    The documents the subject of his Honour’s direction were an application, a notice of motion and an affidavit in support. In a hand-written note in the corner of the first page of those documents, his Honour made a direction “to refuse to issue this document as it appears on its face to be an abuse of process. Such direction is made under O 46 r 7A of the Rules of Court”. That note is dated 19 December 2008 and is signed by his Honour. The applicants described in those various documents are the same named applicants currently seeking judicial review. The respondents are named as Brendan John Marchesi (as Trustee of a bankrupt estate of Andrew Vasiliou, a former bankrupt) and the Registrar of Titles of the State of Victoria.

6    Those documents canvass a number of matters, and seek a multiplicity of relief against various parties. The documents are difficult to follow. In particular, it is unclear how the application and notice of motion relate to each other as each seeks similar but differently constituted relief. Nevertheless, even taken at their highest, at no point in either document is the basis of the Court’s jurisdiction to grant the relief set out or explained. Predominantly, the relief sought is injunctions restraining the removal of caveats over certain properties. There are associated declarations. The relief sought is broad and is mostly sought against the Registrar of Titles of the State of Victoria. The relief sought against the first respondent seems to be that they be restrained from lodging further legal proceedings regarding the relevant properties without leave of the Court.

7    The nature of O 46 r 7A has been the subject of previous consideration by the Courts. It now appears to be the position, given previous decisions of this Court, that the decision of a judge under O 46 r 7A is administrative in character and subject to judicial review under the ADJR Act: see Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222 at [38] – [50]; Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 at [22]; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [16] – [19] and Bahonko v Sterjov [2007] FCA 1556 at [16].

GROUNDS OF REVIEW

8    The grounds for review provided in the application are various and overlap. The grounds include that the decision of Marshall J constituted an error of law, was a denial of natural justice, an abuse of his discretion, lacked jurisdiction and was induced or affected by fraud. The ADJR Act was invoked (and improperly described), and it was alleged that “Justice Marshall has not only erred in law but also breach[ed] [ss] 5 and [6(1)(a)-(i), (2) and (3)] of [the] [ADJR Act]”. Such allegations are serious. One would expect them to be substantiated by a cogent and clear explanation. On the material filed and the submissions adduced at the hearing, no such explanation was proffered.

9    The affidavit filed in support of the application for review alleged a gamut of matters said to give rise to the various grounds outlined in [8] above. I have considered that material. It is inconsistent, difficult to comprehend and is largely inadmissible. Nevertheless, taking what is before me at its very highest, the relevant facts can be simply and shortly stated. In his affidavit, Mr Vasiliou alleges that Marshall J was somehow not entitled to issue the direction the subject of this review as another judge of the Federal Court (Heerey J) had made a contrary direction or order. It is this fact which allegedly gives rise to the various grounds of review. The precise nature, and more importantly the substance of that alleged direction or order, are difficult to determine. Again, taking the allegations at their very highest, Mr Vasiliou alleges that the previous direction or order in some fashion provided for the unconditional acceptance of the documents the subject of the direction of Marshall J.

10    There is no basis for that allegation. First, there is no direction or order of the Court of the kind described by Mr Vasiliou.

11    Further, Mr Vasiliou’s version of events surrounding the making of such a direction or order is improbable. It is possible (and indeed likely) that Mr Vasiliou has misunderstood statements made to him by Court staff. The extent to which this is true and how such misunderstandings could have arisen is not necessary to determine. The only relevant issue is that Mr Vasiliou’s application for review appears to be solely based upon the existence of some direction or order contrary to the direction made by Marshall J, and that alleged fact somehow gives rise to review of his Honour’s decision. As I have stated earlier, such a direction or order does not exist. No other direction or order was made relating to those documents. I can identify no error in the decision of Marshall J to refuse to issue the relevant documents.

12    Finally, I note for the sake of completeness that should a direction under O 46 r 7A be considered as other than an administrative decision, it is clear on the face of the documents the subject of the direction of Marshall J that they constitute an abuse of process, and thus there was no error of law or fact in his Honour’s direction. The reasons for this conclusion are manifest upon even a cursory glance at the documents.

13    The direction of Marshall J given under O 46 r 7A was entirely appropriate. To adopt the words of Besanko J in Manolakis v Costello [2008] FCA 1616 at [8] – [9] when considering a similar application:

… there can be no doubt the substantive application and affidavit are an abuse of process or frivolous or vexatious. There is no error of law or fact in so concluding. The decision under review … was correct and the application for an order of review must be dismissed.

14    The application is dismissed. I make no order as to costs.

Associate:

Dated:    31 May 2011