FEDERAL COURT OF AUSTRALIA

Ninan v Hannigan [2014] FCA 258

THE COURT ORDERS THAT:

1.    The application for review of the Registrar’s decision dated 4 November 2013 be refused.

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

THE COURT ORDERS THAT:

1.    The application for review of the Registrar’s decision dated 17 November 2013 be refused.

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

THE COURT ORDERS THAT:

1.    The application for review of the Registrar’s decision dated 17 November 2013 be refused.

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

REASONS FOR JUDGMENT

1        Between 4 November and 17 November 2013 the applicants, Mr Ninan and Ms George, sought to file a number of documents in the South Australian District Registry of this Court. Each of these documents was rejected by a Deputy District Registrar of the Court (Registrar).

2        The applicants have filed three originating processes seeking review of each of the Registrar’s decisions.

BACKGROUND

Primary Proceeding

3        On 18 May 2012, the applicants commenced proceedings by way of originating application seeking various forms of declaratory relief and exemplary damages in excess of 33 billion dollars against the 10 named respondents (Primary Proceeding).

4        I refer to and rely upon the detailed background to the matter as set out in paragraphs [4] – [22] of Edmond J’s decision of Ninan v St George Bank Ltd [2013] FCA 818. For ease of reference, I set out below those facts relevant to the present determination. For consistency, I also adopt the definitions used by Edmonds J.

5        Shortly after the Primary Proceeding was commenced, the respondents (other than the first and third respondents, one of which had been deregistered and the other placed into administration) filed interlocutory applications seeking security for costs from the applicants. The relevant respondents’ applications were heard on 21 August 2012 and judgment handed down by Griffiths J on 23 August 2012. Each of the respondents succeeded and the applicants were ordered to provide security for costs in the amount of $148,830 by 31 December 2012 (Ninan v St George Bank Ltd [2012] FCA 905) (Security Judgment). I note that the identity of the first respondent, St George Bank Ltd, is relevant to the present determination, as discussed below at [8] and [17].

6        The applicants failed to provide security and instead filed an interlocutory application seeking to vary the order for security for costs. The application was initially filed on 20 December 2012 but was the subject of a number of amendments by the applicants. The final iteration was not filed until 7 February 2013. In turn, the respondents filed applications seeking to have the Primary Proceeding dismissed on the basis of the applicants’ failure to provide security for costs. On 28 March 2013, Griffiths J dismissed the applicants’ interlocutory application and the Primary Proceeding against the respondents, with costs (Ninan v St George Bank Ltd (No 2) [2013] FCA 273) (Dismissal Judgment).

7        The applicants sought leave to appeal from the whole of the Dismissal Judgment. Leave was refused by Edmonds J (Ninan v St George Bank Ltd [2013] FCA 818).

New Proceedings

8        Between 30 April and 17 June 2013, the applicants filed four further sets of proceedings against some of the existing respondents to the Primary Proceeding, including St George Bank Ltd, together with an additional proceeding, filed on 21 June 2013, against a new respondent, the City of Mandurah (together, the New Proceedings).

9        The respondents to the New Proceedings sought orders for summary dismissal or, in the alternative, security for costs. The New Proceedings appeared to arise from the same claims and grievances upon which the Primary Proceeding had been based ([2013] FCA 789 at [9] per Buchanan J). Given the similarity between the Primary and New Proceedings, Buchanan J considered there to be a clear case for an order for security for costs, on the basis of the reasons previously expressed by Griffiths J in the Security Judgment ([2013] FCA 789 at [24] per Buchanan J). The applicants were directed to provide security for costs in the New Proceedings, to be lodged by 4pm AEST, Friday 30 August 2013. The orders provided that, in the event that security for costs was not lodged by this time, the New Proceedings would stand dismissed without further order (Ninan v Valuer- General of Western Australia [2013] FCA 789). Justice Buchanan further ordered that (at [27]):

If the proceedings are dismissed as a consequence of a failure to provide security for costs, no further originating application is to be filed by the applicants or accepted by any Registry of the Court from the applicants or any one of them which names a respondent to any of the proceedings as a party, without the leave of the Court being given.

10        The applicants sought an extension of time for leave to appeal, and leave to appeal, from these orders. This application was dismissed by Jacobson J (Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180).

11        To date, the applicants have failed to lodge any security with the Court.

Decisions of the Registrar

12        On or about 4 November 2013, about the applicants sought to file an application in the South Australian District Registry of this Court, seeking leave to appeal the Security Judgment.

13        The applicants were advised by return email from the Registry that:

Your leave to appeal application appears to have been lodged in the wrong registry. You should lodge it in the New South Wales registry. I will reject it and you can relodge in the correct registry.

14        Mr Ninan queried why the South Australian District Registry would not accept the filing and was emailed the text of Rule 36.02 of the Federal Court Rules 2011 (Cth) (the Rules), which requires that a notice of appeal from a single judge of the Court must be filed in the District Registry in the State or Territory where the proceeding was last heard, in this instance, NSW.

15        Mr Ninan reiterated his request that the appeal be ‘handled and filed in Adelaide’ on the basis that ‘judges in Sydney are showing antagonism to me due to their conflict of interest in the matter’.

16        This correspondence was copied to the Registrar, who replied that same day, advising Mr Ninan that:

The Application for extension of time, seeks leave to appeal a decision of Justice Griffiths of 23 August 2012. On 7 February 2013, you filed an amended interlocutory application to vary the orders made by Justice Griffiths on 23 August 2012, this amended interlocutory application was dismissed by Justice Griffiths on 28 March 2013. On 15 August 2013, Justice Edmonds refused your application for leave to appeal the decision of Justice Griffiths of 28 March 2013.

You are seeking to review a matter that has already been the subject of a leave to appeal application in this Court.

Accordingly, I decline to accept the documents for filing pursuant to the Federal Court Rules 2.26, I am satisfied that the proposed application is an abuse of process, as the issue has already be [sic] determined by the Court.

(First Decision)

17        On or about 17 November 2013, the applicants attempted to e-file an originating process naming, inter alia, St George Bank Ltd as a respondent. The e-lodgement was rejected by the Registrar on the basis that ‘the application is the same application filed and determined in New South Wales’ (Second Decision).

18        On 17 November 2013 the applicants also sought to file electronically in the South Australian District Registry of this Court an originating application seeking review of the First Decision. This e-lodgement was rejected by the Registrar on 18 November 2013 and the applicants were sent an email advising them that ‘the proper place to file this application is the New South Wales Registry’ and ‘you should file it there’ (Third Decision).

19        The applicants have filed three applications seeking review of the First, Second and Third Decisions.

CONSIDERATION

20        The applicants filed extensive documentation in support of each of the applications, including detailed Originating Applications, Statements of Claim and affidavits in support. The applicants also filed written submissions in support of their applications. I have considered all the documents filed by the applicants, each of which contains substantial duplication. Given the extent of the duplication, my consideration centres on the key submissions that emerge, taking account of all of the matters raised.

First Decision

21        As to the First Decision, the essence of the applicants’ argument can be distilled as follows:

    The Rules allow the application seeking leave to appeal the Security Judgment.

    The applicants received advice from a Registrar of this Court and are entitled to rely on this advice.

    The Security Judgment ought to be overturned.

22        Turning to the first of the applicants’ claims, the applicants rely on Rules 35.1 and 39.05(c) in support. Rule 35.1 deals with oral applications for leave to appeal from interlocutory judgments of the Court at the time the judgment is delivered. Rule 39.05(c) deals with judgments being set aside or varied after they have been entered. These Rules have no application in the present case. The applicants have not established that they are entitled under the Rules to file the documents the subject of the First Decision.

23        In respect of the second limb of the applicants’ argument, the applicants place strong reliance on an email received from a Registrar of the Court purportedly advising them that they would be entitled to apply for leave to appeal the Security Judgment in the event that the applicants were unsuccessful in varying the terms of the order.

24        The email to which the applicants refer is part of a chain of correspondence between the Registrar and Mr Ninan which is annexed to an affidavit sworn by Mr Ninan on 29 August 2013. However, from the portion which has been included, it seems that on 12 December 2012, the applicants sought to file both an interlocutory application to vary the orders of the Security Judgment and also sought an extension of time for leave to appeal from those same orders. Later that day the Registrar advised the applicants that:

You have sent both an Interlocutory application (which, if accepted, will relist the proceeding before Justice Griffith [sic]) and an Application for an extension of time (which, if accepted, will be listed before another Judge in relation to a possible appeal). Either you are seeking to have the Orders of 23 August 2012 varied or you are seeking to appeal the Orders. However, you cannot do both.

If you are seeking to have the Orders of 23 August 2012 varied, please file an interlocutory application (form 35) and an Affidavit in support (form 59).

If you are seeking to appeal the Orders, please file an Aplication [sic] for extension of time and leave to appeal (Form 118) together with the five documents referred to in rule 35.14(3) of the Federal Court Rules 2011.

25        Following this email, the applicants enquired with the Registrar if they would ‘be allowed to apply to extend time to appeal after the result of [our] application to vary the order’, to which the Registrar replied ‘yes, after Justice Griffith [sic] has determined any application to vary the Orders of 23 August 2012, you remain able to seek an extension of time and leave to appeal from the Orders of 23 August 2012’.

26        While the Registrar’s advice was correct at the time it was given, the Primary Proceeding has since been determined by way of the Dismissal Judgment. It is no longer relevantly subject to the proposed application.

27        The applicants submit that the First Decision amounts to ‘writing a new Rule which may read in any proceeding, a party is not allowed to apply more than one leave to appeal [sic]’. The applicants further assert that there is no such rule in the Rules. However, Rule 2.26 provides that:

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:

(a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

28        As stated by Brennan J in Walton v Gardiner (1993) 177 CLR 378 at 410 (citing his previous decision of Jago v District Court (NSW) (1989) 168 CLR 23):

An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve.

29        The institution of proceedings which unnecessarily duplicate proceedings already determined are incapable of serving a legitimate purpose ((1993) 177 CLR 378 at 411 per Brennan J citing Connelly v Director of Public Prosecutions [1964] A.C. 1254 at 1361-1362).

30        The applicants’ originating application the subject of the First Decision sought to appeal from the Security Judgment in the Primary Proceeding. The Security Judgment was an interlocutory decision in the Primary Proceeding. The Primary Proceeding was dismissed in the Dismissal Judgment. The Dismissal Judgment was affirmed on appeal. Thus the Primary Proceeding had been finally determined. An attempt now to seek to challenge the Security Judgment constitutes an abuse of the process of the Court. The Registrar correctly concluded that the originating application, which sought to challenge the Security Judgment, was an abuse of process. The Registrar correctly declined to accept the document for filing.

31        The asserted advice given subsequent to the delivery of the Security Judgment but prior to the Dismissal Judgment has no relevance.

Second Decision

32        The applicants’ appeal against the Second Decision proceeds on the basis that the proposed application the subject of that decision is distinct from applications previously filed by the applicants. The applicants say that the previous applications (the subject of the Primary and New Proceedings) only contained a cause of action under what the applicants call the “C & C Act, 2010”, whereas the proposed new originating application seeks to bring claims under the “NCCP Act, 2009” and the “ASIC Act, 2001”. These terms are not defined and it is unclear to which act the “C&C Act, 2010” refers.

33        In any event, this is immaterial in light of Buchanan J’s order that the New Proceedings stand dismissed in the event that security is not provided, and his Honour’s further order that no further originating application be filed by the applicants that names a respondent to the New Proceedings as a party, without the leave of the Court.

34        The applicants have not provided security and they did not obtain leave of the Court prior to attempting to file the proposed application the subject of the Second Decision which, as in the New Proceedings, names St George Bank Ltd as a respondent. The applicants are therefore not entitled to the relief they seek and their attempt to appeal against the Second Decision should be rejected.

Third Decision

35        The applicants seek review of the Registrar’s decision ‘forcing [them]’ to file the application (in respect of the First Decision) in the New South Wales District Registry rather than in the South Australian District Registry.

36        The applicants, in their statement of claim and submissions, claim that this matter is a “transfer matter”. This is an incorrect characterisation. The Third Decision relates to the applicants seeking to file electronically in the South Australian District Registry of this Court an originating application seeking review of the First Decision by the Registrar in the New South Wales District Registry. The First Decision concerned the rejection of the applicants’ application seeking leave to appeal the Security Judgment, which was last heard in Sydney before Griffiths J. The Third Decision, being derivative of the First Decision, can rise no higher than the application for review of the First Decision. As the application for review of the First Decision is rejected, it follows that the application for review of the Third Decision must also be rejected. In any event I note that, on 6 December 2013 (being the first return date for the applications) Mr Ninan, when asked, submitted to my jurisdiction to hear the three applications.

Allegations concerning the conduct of the Registrar

37        Each of the applicants’ claims contains serious allegations of improper conduct by the Registrar. Each is phrased slightly differently; however, the crux of the allegations is that the Registrar was acting in the respondents’ interests at the applicants’ expense. The applicants’ preoccupation with the South Australian District Registry rather than the New South Wales District Registry appears to be grounded on some asserted apprehension of bias.

38        Such allegations are serious and must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J). The applicants make bare allegations unsupported by any evidence or particulars. They are without foundation and must be rejected.

CONCLUSION

39    The applicants seek orders that the First, Second and Third Decisions of the Registrar be set aside. The applicants have not made out a basis for the orders they seek. The applications should be refused. No question of costs arises.

Associate:

Dated:    25 March 2014