FEDERAL COURT OF AUSTRALIA
Spain v Belcher [2014] FCA 663
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IN THE FEDERAL COURT OF AUSTRALIA |
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Applicant | |
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AND: |
M. BELCHER (DEPUTY DISTRICT REGISTRAR - BRISBANE) Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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QUEENSLAND DISTRICT REGISTRY |
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GENERAL DIVISION |
QUD 120 of 2014 |
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BETWEEN: |
ERIC RAYMOND SPAIN Applicant |
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AND: |
M. BELCHER (DEPUTY DISTRICT REGISTRAR - BRISBANE) Respondent |
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JUDGE: |
GREENWOOD J |
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DATE: |
23 JUNE 2014 |
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PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 These proceedings are concerned with an application by Mr Eric Raymond Spain for an order of review pursuant to the provisions of the Administrative Decision (Judicial Review) Act 1977 (Cth) (the “AD(JR) Act”) of a decision of Deputy District Registrar Belcher made under r 2.26 of the Federal Court Rules 2011 to refuse acceptance of a document for filing in the Court.
2 Deputy District Registrar Belcher refused acceptance of an application by which Mr Spain sought relief in the exercise of the original jurisdiction of the Court on the contended footing that jurisdiction is conferred upon the Court under s 39B(1A) of the Judiciary Act 1903 (Cth) to grant the relief sought.
3 Deputy District Registrar Belcher wrote a letter to Mr Spain on 5 March 2014 in which he said that in his view Mr Spain’s application could not succeed and was clearly foredoomed to fail and thus, without having any regard to the propriety of Mr Spain’s application, the originating application was to be rejected for filing on the basis that, if filed, the proceeding, commenced by the application, would amount to an abuse of process. Rule 2.26 is in these terms:
2.26 Refusal to accept document for filing – abuse of process or frivolous or vexatious documents
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.
4 Deputy District Registrar Belcher was satisfied, on the face of the document submitted by Mr Spain, that the document was an abuse of process because the consequential proceeding would be foredoomed to fail. In Walton v Gardiner (1993) 177 CLR 378 at 393, Mason CJ, Deane and Dawson JJ observed that it has been long established that “regardless of the propriety of the purpose of the person responsible for [the] institution and maintenance [of proceedings], proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail [citations omitted]”.
5 For present purposes, I proceed on the footing that the exercise of decision-making by Deputy District Registrar Belcher under r 2.26 is a decision of an administrative character made under an enactment for the purposes of s 3 of the AD(JR) Act having been made under the Federal Court Rules 2011 established by the Judges of the Federal Court acting in accordance with the provisions of the Federal Court of Australia Act 1976 (Cth).
6 The application is to be dismissed because no ground of review has been made out.
7 Apart from that consideration, however, the application is to be dismissed in the exercise of judicial supervisory review of the decisions of the Registrar (and thus decisions of the Deputy District Registrars).
8 The dismissal of the application follows for the reason that each of the claims for relief Mr Spain seeks to maintain in the proposed originating application to be filed in the Court, are foredoomed to fail.
9 Mr Spain accepts that the application he sought to file seeks five orders.
10 The first order is an order for the “[r]emoval of Almighty God’s blessing from the preamble of the Commonwealth of Australia Constitution Act 1900”. Mr Spain seems to accept that it is not possible for the Federal Court of Australia to order the members of the House of Commons, the Members of the House of Lords and Her Majesty, Queen Elizabeth II, to enact legislation which would remove the words “humbly relying on the blessing of Almighty God” from the preamble to the Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
11 The second order Mr Spain seeks is an order for the “[r]emoval of all references to God in the Constitution”.
12 Plainly, the Constitution can only be amended in accordance with the requirements of s 128 of the Constitution.
13 The third order seeks an order for the “[r]emoval of all references to God used for any purpose in law and government everywhere in the Commonwealth of Australia”.
14 Plainly, there is no power to make such an order.
15 The fourth order seeks an order directed to the “government to make public a declaration that God has removed His blessing from the Crown, State, and people” and the fifth order seeks an order directed to the Commonwealth of Australia that the Commonwealth “publicly apologise to God for coveting His name in vain from 20 March 2003 and beyond”. Neither of these orders are competent claims to relief.
16 Mr Spain has filed written submissions in support of all of these orders.
17 Plainly, none of the relief sought in the proceeding is either rational or within power.
18 On the face of the material, any proceeding commenced in the Court which seeks to agitate a claim for any of the five grounds of relief is not only foredoomed to fail but represents a fundamental waste of judicial resources in the administration of justice.
19 The proposed proceeding represents an abuse of the process of the Court.
20 The application must necessarily be dismissed.
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I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
Associate:
