FEDERAL COURT OF AUSTRALIA

Bird v Registrar, Federal Court of Australia [2016] FCA 21

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review filed on 11 November 2015 be dismissed.

2.    The interlocutory application filed on 22 October 2015 be dismissed.

3.    The half (½) day hearing listed at 10.15 am on 2 February 2016 be vacated.

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

REASONS FOR JUDGMENT

COLLIER J:

1    This is an application filed on 11 November 2015 pursuant to r 31.01(1) of the Federal Court Rules 2011 (Cth) (the Rules) and s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), in which the applicant, Mr Bird, seeks judicial review of a decision of a Deputy Registrar of this Court to refuse to accept for filing an application brought by Mr Bird for mandamus, habeas corpus and related orders. A Deputy Registrar of this Court had refused to accept for filing an originating application sought to be filed by the applicant. Relevantly, r 2.26 of the Rules provides:

Refusal to accept document for filingabuse 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.

Background

2    So far as I can ascertain from the applicant’s submissions, the background to this case is as follows.

3    The applicant has, or has for some time, or at some time had, a relationship with Ms Elizabeth Rickleman. Variously, the applicant describes Ms Rickleman as his girlfriend and his de facto spouse.

4    It appears that Ms Rickleman is subject to a mental disability. The applicant submits that she has “a very minor disability, bipolar disorder, which means she cannot get to sleep unless she takes certain medication twice a day”.

5    Ms Rickleman is subject to guardianship orders under the Guardianship and Administration Act 2000 (Qld) (the Queensland Guardianship and Administration Act). The applicant submits that her guardians are Mr Kevin Martin, the Public Guardian of Queensland under the Public Guardian Act 2014 (Qld), and Mr Michael Walsh, Director-General, Queensland Health Department. The applicant submits, however that Ms Rickleman’s condition is such that she should not be subject to guardianship orders. The applicant submits that Ms Rickleman is involuntarily subject to relevant guardianship orders.

6    The applicant submits that Ms Rickleman lives in “Herston Lodge”. According to the internet site for Herston Lodge http://www.herstonlodge.com.au/about/:

Herston Lodge provides supported accommodation including accommodation, meals and personal care for people with an illness or disability who require day to day personal assistance to live in the community.

7    Further information on the website http://www.herstonlodge.com.au/services/ states:

Herston Lodge is a Level 3 Supported Accommodation that provides single or shared rooms, full provision of meals and staff who are available 24 hours a day to assist residents with life challenges.

8    Ms Rickleman is apparently entitled to receive social security payments, which the applicant does not particularise. The applicant submits that those payments are made by the Secretary, Department of Social Security, to the Public Trustee on Ms Rickleman’s behalf.

9    Ms Rickleman allegedly made a power of attorney in Tasmania in 2007.

Earlier decision in Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs

10    In 2009, Roberts FM (as his Honour then was) delivered his decision in Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2009] FMCA 20. In that case his Honour observed:

4.    On 11 August 2003 the Guardianship and Administration Tribunal of Queensland (“the Guardianship Tribunal”) appointed:

a)    The Adult Guardian of Queensland (“the Adult Guardian”) as guardian for Ms Rickleman for legal matters not related to her financial or property matters; and

b)    The Public Trustee of Queensland (“the Public Trustee”) as administrator for her for all financial matters.

11    His Honour observed that these appointments were extended.

12    His Honour continued:

13.    At the initial hearing on 22 July 2008 Ms Rickleman and Mr Bird were seeking orders that can be summarised as follows:

a)    A writ of mandamus to require the Secretary to investigate allegations by Ms Rickleman and Mr Bird concerning the treatment of Ms Rickleman and other disability pensioners by the public trustee.

b)    An order quashing the SSAT decision.

c)    An order directing the Secretary to reconsider the decision not to cancel the appointment of the Public Trustee as payment nominee.

d)    A writ of prohibition forbidding of the Secretary from paying Ms Rickleman’s social security payments to the Public Trustee.

e)    A declaration that orders of the Guardianship Tribunal concerning Ms Rickleman have no effect when she is outside Queensland.

f)    A declaration that the Guardianship Tribunal has no jurisdiction to make guardianship or administration orders or declarations concerning Ms Rickleman when she is outside Queensland.

g)    A declaration that Social Security payments intended for Ms Rickleman and made by the Secretary to the Public Trustee after 27 June 2007 and prior to any administration order being made in Tasmania concerning Ms Rickleman be regarded as having been paid into the wrong bank account and not as having been paid to Ms Rickleman.

h)    A declaration that the registration of orders made by the Guardianship Tribunal concerning Ms Rickleman with the Tasmanian guardianship and Administration board has no legal effect.

i)    A declaration that Ms Rickleman is not mentally incapacitated.

j)    Alternatively:

i)    an order that the Tasmanian guardianship and Administration board hold an inquiry to determine whether Ms Rickleman is insane; and

ii)    a declaration that Ms Rickleman is not mentally incapacitated.

k)    An order that publication of the names of Ms Rickleman and Mr Bird in reports of these proceedings and in reports of proceedings of the SSAT be prohibited.

14.    The Secretary opposed the making of any such orders and contended that the SSAT had made no error of law which constitutes a ground of review under section 5 of the ADJR Act.

13    Later, his Honour said:

28.    In my view, there are ample reasons for the Court to conclude that Ms Rickleman needs a litigation guardian. For example:

a)    Consistently, throughout proceedings before the Guardianship Tribunal, Ms Rickleman has been found to be a person with an incapacity. In the Reasons for the interim order of 11 August 2008, the President of that tribunal noted that “Ms Rickleman has been known to Tribunal since 2001 and has a long history of psychiatric disorder”.

b)    Throughout the life of these proceedings, the Adult Guardian has had legal authority in Queensland to act on Ms Rickleman’s behalf in relation to such matters. On 11 August 2008 an interim order of the Guardianship Tribunal appointed the Adult Guardian her guardian “for all personal matters” and on 6 November 2008 the tribunal made a further such order valid for five years “unless the tribunal orders otherwise”.

c)    When this matter came on for hearing on 22 July 2008, Ms Rickleman played virtually no part in the proceedings and, indeed, she appeared to be asleep with her head on her arms on the bar table throughout most of that hearing.

14    His Honour noted that Ms Rickleman, through the Adult Guardian, had discontinued the matter in the Federal Magistrates Court, and in circumstances where the recipient of Centrelink benefits was not seeking to have the payment nominee changed, the applicant could not continue with the application (at [34]).

15    Further, his Honour observed:

37.    … the sole basis upon which Mr Bird could continue the proceedings would be that he and Ms Rickleman were living together in a shared domestic relationship. He pointed out that as that is no longer the case, even if this matter could be referred back to the SSAT, there would be absolutely no possibility that Mr Bird could be appointed as payment nominee for Ms Rickleman. In those circumstances, the whole application is completely futile.

Relevant material

16    The application for decision by this Court is in the following terms:

The Applicant applies to the Court to review the decision of the Respondent that the Applicant’s proposed application for mandamus, habeas corpus and related orders submitted to the Brisbane Registry of the Federal Court of Australia on 11 September 2015 is an abuse of process.

Details of claim

The Applicant is aggrieved by the decision because:

1.    The purported decision as it stands finally determines the Applicant’s application for mandamus, habeas corpus and related orders without granting the Applicant the remedies to which he is entitled; and

2.    The purported decision has delayed the hearing of the Applicant’s application for mandamus, habeas corpus and related orders, in violation of section 6 of the Habeas Corpus Act 1640 (Imp), in force in Queensland under the Imperial Acts Application Act 1984 (Qld).

Grounds of application

1.    The Respondent’s decision involves errors of law that under the circumstances are so unreasonable that no reasonable person could possibly have made them.

2.    The Respondent was not authorised by the Federal Court of Australia Act 1976 to refuse to file an application that sought orders in the nature of habeas corpus.

Orders sought

1.    An order that the Respondent must immediately file an application by the Applicant in accordance with the draft shown in Annexure “GJB1” of the affidavit of G.J. Bird sworn 12 October 2015.

2.    Alternatively, an order that this originating application is amended so as to be in accordance with the draft shown in Annexure “GJB1” of the affidavit of G.J. Bird sworn 12 October 2015.

17    The Registrar of the Federal Court of Australia (the Registrar) is the respondent to these proceedings. The Registrar filed a submitting notice on 19 November 2015.

18    The proposed parties to the applicant’s proposed substantive claim are as follows:

    first applicant: Mr Geoffrey Bird;

    second applicant: Ms Elizabeth Jane Rickleman;

    first respondent: Mr Kevin Martin, Public Guardian of Queensland;

    second respondent: Public Trustee of Queensland;

    third respondent: Mr Michael Walsh, Director-General, Queensland Health Department;

    fourth respondent: Mr Finn Pratt, Secretary, Commonwealth Department of Social Services;

    fifth respondent: Judge Stuart Roberts, Federal Circuit Court Judge.

19    The details of the claim of the appellant, in respect of which the Deputy Registrar refused to accept for filing an originating application, as set out in Annexure “GJB1” of his affidavit sworn 12 October 2015, are as follows:

On the grounds stated in the statement of claim, accompanying affidavit, or other document prescribed by the Rules, the Applicant applies for the following relief under section 39B of the Judiciary Act 1903:

1.    An order in the nature of habeas corpus ad subjiciendum addressed to Kevin Martin, Queensland Public Guardian, Michael Walsh, Director-General, Queensland Health Department and Finn Pratt, Secretary, Commonwealth Department of Social Services, commanding them to release Elizabeth Jane Rickleman from their custody and control.

2.    A declaration that Elizabeth Jane Rickleman is not subject to any valid guardianship, administration or involuntary treatment order.

3.    A declaration that the enduring guardian document made by Elizabeth Jane Rickleman in Tasmania in 2007 is legally valid and effective in Queensland as an enduring power of attorney for personal matters and as an advance health directive.

4.    A declaration that the enduring power of attorney made by Elizabeth Jane Rickleman in Tasmania in 2008 is legally valid and effective in Queensland.

5.    A declaration that Elizabeth Jane Rickleman is not mentally incapacitated.

6.    An order in the nature of mandamus commanding Finn Pratt, Secretary, Commonwealth Department of Social Services to reconsider the decision to have the Public Trustee of Queensland appointed as payment nominee for Elizabeth Jane Rickleman and to make a decision in accordance with law.

7.    A declaration that the Secretary, Department of Social Services and his predecessors have acted unlawfully by paying social security for Elizabeth Jane Rickleman to the Public Trustee of Queensland.

8.    An order in the nature of certiorari quashing the purported decision of Judge Stuart Roberts of 21 January 2009 concerning Elizabeth Jane Rickleman.

9.    An order in the nature of certiorari quashing the purported decision of the Social Security Appeals Tribunal of 29 October 2007 concerning Elizabeth Jane Rickleman.

10.    An order in the nature of certiorari quashing the purported order of the Queensland Civil and Administrative Tribunal of 5 November 2013 concerning Elizabeth Jane Rickleman.

11.    An order in the nature of certiorari quashing the most recent purported order of the Queensland Mental Health Review Tribunal purporting to confirm the purported status of Elizabeth Jane Rickleman as an involuntary patient.

12.    A declaration that the decision of Judge Stuart Roberts of 21 January 2009 concerning Elizabeth Jane Rickleman is null and void.

13.    A declaration that the decision of the Social Security Appeals Tribunal of 29 October 2007 concerning Elizabeth Jane Rickleman is null and void.

14.    A declaration that the purported order of the Queensland Civil and Administrative Tribunal of 5 November 2013 concerning Elizabeth Jane Rickleman is null and void.

15.    A declaration that the most recent purported order of the Queensland Mental Health Review Tribunal concerning Elizabeth Jane Rickleman is null and void.

16.    An order in the nature of certiorari quashing the order of the Queensland Guardianship and Administration [sic] Tribunal of 9 December 2004 appointing the Public Trustee of Queensland as administrator for Elizabeth Jane Rickleman.

17.    An order permanently restraining Finn Pratt, Secretary, Commonwealth Department of Social Services, his successors in office for administering the Australian Government’s social security legislation, and their employees and delegates from appointing a payment nominee for Elizabeth Jane Rickleman.

18.    An order permanently restraining Kevin Martin, Queensland Public Guardian, his successors in office and their employees from bringing applications to courts and tribunals concerning Elizabeth Jane Rickleman or otherwise interfering in her affairs.

19.    An injunction permanently restraining Michael Walsh, Director-General, Queensland Health Department, his successors in office, their employees and delegates, and authorised doctors appointed by any of them, from providing or directing psychiatric treatment for Elizabeth Jane Rickleman without her consent or the consent of her attorney for personal matters or the consent of a guardian appointed by the Supreme Court of a state or territory.

20.    An order in the nature of prohibition permanently prohibiting the Queensland Civil and Administrative Tribunal from exercising jurisdiction under legislation relating to guardianship or powers of attorney in relation to Elizabeth Jane Rickleman or Geoffrey James Bird.

21.    An order prohibiting the publication of the names of Elizabeth Jane Rickleman or Geoffrey James Bird, except that this proceeding may be reported as “Bird v Martin”

22.    An order closing the court file for this proceeding to public inspection, and making the file subject to inspection only by the parties or pursuant to an order of a judge made after an application of which one month’s notice has been given to Elizabeth Jane Rickleman and Geoffrey James Bird.

20    The proposed originating application also included a claim for interlocutory relief, in the following terms:

The Applicant also claims interlocutory relief:

1.    An order pursuant to section 3 of the Habeas Corpus Act 1816 that Elizabeth Jane Rickleman is released on bail from the respondents’ custody and control on her undertaking to appear before the court at future hearings in this proceeding.

2.    An order that the Secretary of the Commonwealth Department of Social Services is restrained from having a payment nominee appointed for Elizabeth Jane Rickleman for the duration of this proceeding.

3.    An order that Geoffrey James Bird is to be taken to be attorney for health and personal matters for Elizabeth Jane Rickleman for the duration of this proceeding.

4.    An order that the respondents must within 15 working days file and serve written cases in answer to the applicant’s case contained in his affidavit.

5.    An order that the respondents must within 15 working days agree between themselves on a psychiatrist on whom they intend to rely and file and serve an affidavit made by this psychiatrist stating why the psychiatrist says Elizabeth Jane Rickleman is mentally incapacitated, why she should have a guardian and administrator, why she should have involuntary psychiatric treatment, and why her affairs should not be managed by Geoffrey James Bird if she became incapacitated, as well as the facts on which the psychiatrist relies, and the names of the people who provided these facts, unless a fact is known to the psychiatrist from personal observation.

6.    An order that the respondents must within 15 working days file and serve affidavits of all persons mentioned in the affidavit of the psychiatrist on whose testimony they rely, as being the source of the psychiatrist’s facts, which affidavits must each state those facts known to the deponent from personal observation and that were mentioned in the psychiatrist’s affidavit.

7.    An order that the applicant must file and serve a written case and affidavit in reply to the respondents’ cases and affidavits within 15 working days of receiving the respondents’ written cases and affidavits.

8.    An order that the respondents must have the psychiatrist and other witnesses on whose affidavits they rely at the Commonwealth Law Courts, 119 North Quay, Brisbane, 4000 at 10.15am on ….. 2015 for cross-examination by the applicant.

9.    An order that the parties have liberty to apply for further orders.

10.    An order that the costs of this hearing be costs in the cause.

21    The decision of the Deputy Registrar of the Federal Court in refusing the applicant’s application for filing is found in a letter dated 14 September 2015. Materially, that letter provides as follows:

I refer to your Originating Application for relief under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) lodged with the Federal Court of Australia on 11 September 2015.

In its current form that originating application would be foredoomed to fail, for reasons I will outline below, and would therefore constitute an abuse of process. In such circumstances an application could not be accepted for filing.

The Federal Court of Australia has limited jurisdiction under s 39B of the Judiciary Act and that jurisdiction would not extend to the First, Second or Third Respondents.

As against the Fifth Respondent, the application seeks a declaration that the decision of Judge Stuart Roberts of 21 January 2009 concerning Elizabeth Jane Rickleman is null and void. As that decision was the decision of a Judge of the then Federal Magistrates Court of Australia, you would have had certain rights of appeal from that decision. Those rights of appeal would have long since expired. Consequently, it would not be appropriate to re-agitate those matters as contemplated by this application.

The jurisdiction of the Federal Court of Australia under s 39B of the Judiciary Act could extend to the Fourth Respondent as an Officer of the Commonwealth, though it is unclear to what extent the relevant issues concerning the Fourth Respondent have already been the subject of litigation and judicial consideration.

As the Federal Court is a costs jurisdiction I am returning your documents so that you might redraft your originating application to bring it within the jurisdiction of the Court. In doing so, I would strongly encourage you to seek further legal advice.

Submissions of the applicant

22    The applicant appeared in Court at directions hearings but was content to have the matter decided on his submissions. I note the submissions filed by the applicant on 21 October 2015 and 16 November 2015. These submissions are a mixture of narrative evidence, legal submission, and scandalous propositions. So, for example, the applicant submits that:

    Guardianship laws historically derived from slavery in North America and South America.

    Since the High Court has proceeded for many years on the basis that its decisions were subordinate to those of the Privy Council in most areas, decisions of the High Court and Privy Council are inextricably linked and should be considered as interchangeable.

    “Officious busybodies now work for agencies like the Public Guardian, which is a sort of government licenced extremist political group which promotes involuntary euthanasia for mentally ill people.”

    Judicial or administrative tribunal members with “crazy views” invariably refuse to disqualify themselves.

    Most Federal Court judges are not open to ruling in favour of an unrepresented litigant, although they might think that they are. He submits, inter alia:

166.    My preference for the judge to hear my proposed case is Justice Dowsett, and I ask that Your Honour communicate this choice to the Chief Justice.

167.    In arriving at this choice, I have been heavily influenced by the disclosures at the Royal Commission into Institutional Responses to Child Abuse. The experiences of the victims in having their complaints rejected is remarkably identical to my own experience in having my court cases thrown out by certain Supreme Court Judges. The only Supreme Court judges who have given me a fair hearing were Justice Fryberg and Justice de Jersey.

…

169.    Based on Justice Dowsett’s profile, I believe he would be open to ruling in favour of an unrepresented litigant if a suitable case was made out.

170.    When the Chief Justice chose Your Honour to hear this application, I can see he has sought that my case should be very sympathetically considered, hence his choice of a former law professor whom he probably thought would be more forgiving towards mistakes than former senior counsel.

171.    The difficulty with my choosing Your Honour to hear my case is that there is no publicly available information about what schools Your Honour went to and whether they are government schools, Anglican, Catholic or whatever, and the Christian denomination in which Your Honour was brought up. I would need this information to work out whether in my view Your Honour would be open to ruling in favour of unrepresented litigants.

23    There is a great deal of material of this nature in the applicant’s submissions. This type of submission indicates a sincerity of belief of the applicant in his case, however such submissions are irrelevant to the question before the Court, namely whether the Deputy Registrar was correct in rejecting the applicant’s application for filing.

24    More relevantly, the applicant makes the following additional submissions:

    The court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) to hear a challenge to the decision of the Secretary, Department of Social Security, to pay Ms Rickleman’s social security to the Public Trustee.

    There is a question as to whether Ms Rickleman can properly be named as the second applicant in his proposed application because she is disabled and is not represented by a litigation guardian. The applicant submits:

In the application I am seeking to bring, Ms Rickleman and I are seeking to challenge the legality of various judicial inquiries declaring her to be mentally incapacitated, so the case is within the scope of the Escheator Inquisitions Act 1548, s 6, and Ms Rickleman does not need a litigation guardian.

    In relation to the question of his standing to bring the proposed case “from the standpoint of standing to bring a habeas corpus case and from the standpoint of standing to bring an administrative law case in general”:

○    if a person objects to being in custody, anyone may bring a habeas corpus case on their behalf without their permission. The medical report of Dr Levine, included in the applicant’s affidavit, demonstrates that Ms Rickleman objects to having a guardian and to having her finances and affairs controlled by the government;

○    anyone may bring a habeas corpus case if they have the permission of the person who is in custody. Ms Rickleman has given the applicant that permission. A copy of one of her letters is in his affidavit;

○    the applicant is Ms Rickleman’s de facto husband;

○    the applicant has a prima facie right to custody of Ms Rickleman if she is mentally incapacitated, as she has appointed him her attorney for personal matters: Barnardo v Ford [1892] AC 326.

    The appointment of the Public Guardian as Ms Rickleman’s guardian is not valid.

    Controlling the income of a person is equivalent to having them in custody, as it results in effective control over where they can live, and accordingly habeas corpus lies.

    If the decision of a subordinate tribunal was not in good faith, or there is no evidence to justify a finding, there will be one or more jurisdictional errors.

    The view of some judges that a subordinate tribunal can shield itself from judicial review by making “cunning findings of fact” is quite wrong.

    In his affidavit of 11 September 2015 he has provided a comprehensive case as to why the decisions of the Queensland Civil and Administrative Tribunal, the Mental Health Review Tribunal, the Social Security Appeals Tribunal and the Federal Circuit Court are null and void as containing jurisdictional errors.

    In relation to the Social Security Appeals Tribunal, the Social Security (Administration) Act 1999 (Cth) provides that the Secretary had a discretion to appoint someone to be Ms Rickleman’s payment nominee. The Tribunal decided that, because the Public Trustee was Ms Rickleman’s administrator, it would be an advantage if the payment nominee for her social security benefits could be the Public Trustee. The applicant submits that it is an irrelevant consideration that the Public Trustee is Ms Rickleman’s administrator – the only relevant considerations are:

○    whether the Public Trustee is willing to be the payment nominee; and

○    whether the Public Trustee is likely to do a good job of managing Ms Rickleman’s finances.

    The question arises whether a Federal Court Registrar can dismiss an application for habeas corpus. The answer is no, because under s 1 of the Habeas Corpus Act 1816 (Imp), the intention is that an application can be dismissed only by a judge empowered to grant such an application. This power to grant – and therefore dismiss – an application for habeas corpus does not extent do Registrars.

    The key authority in respect of grant of habeas corpus is the decision of the Privy Council in Eshugbayi Eleko v Governor of Nigeria [1928] AC 459.

    Although the Deputy Registrar who refused to accept the applicant’s application for filing “did not say so in his letter, the reason why he refused to file my case was obviously because I was on a list of vexatious litigants”.

    The decision of the Deputy Registrar was a miscarriage of justice and therefore amounted to “Wednesbury unreasonableness”.

    For a Judge to be digging for reasons to try to refuse leave for a case is procedurally unfair, and this could be a ground of appeal.

    Since the Deputy Registrar is a respondent to this application, the Court cannot decide the matter without first hearing from him. Conversely however, the Deputy Registrar does not have standing to oppose the application and the Court does not need to hear from him.

    Because the applicant is seeking an order in the nature of habeas corpus, the Court has no discretion to refuse to remedies sought.

Review of decisions under the ADJR Act

25    A decision of a Registrar to refuse to accept a document for filing is reviewable pursuant to s 5 of the ADJR Act: see the discussion of Foster J in respect of this issue in Satchithanantham v National Australia Bank Limited [2009] FCA 1171. Section 5 of the ADJR Act defines the grounds on which a person who is aggrieved by a decision to which the Act applies to seek review. It provides:

Applications for review of decisions

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

(2)    The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

26    In this case I am satisfied that the applicant’s application for review of the decision of the Deputy Registrar should be dismissed.

27    First, and placing to one side scandalous submissions of the applicant, it is clear that the applicant seeks a decision from this Court on aspects of the merits of his claims. His submissions ranged substantially wider than the matter which is before the Court – namely whether the decision of the Deputy Registrar was characterised by any of the flaws set out in s 5(1) of the ADJR Act.

28    Second, the applicant is wrong in his claim that the Deputy Registrar was not authorised to refuse to accept for filing an application seeking orders in the nature of habeas corpus. Rule 2.26 of the Rules is in broad terms, and is not limited in the fashion claimed by the applicant. Indeed, if the power in r 2.26 were so limited a Registrar of this Court would rarely be able to refuse to accept a document for filing, because Registrars of the Court are limited in the exercise of their powers. This is clear from s 35A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), as explained in such cases as Conlan v Pratt (No 2) [2013] FCA 105.

29    Third, I do not accept that the Deputy Registrar’s decision involves errors of law which are so unreasonable that no reasonable person could possibly have made them and in that respect constituted a miscarriage of justice. In particular, I note the following points:

    It is trite law that the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament (s 19(1) Federal Court Act). Further, s 39B of the Judiciary Act relevantly provides:

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

Note:    Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.

    On the basis that Ms Rickleman is subject to guardianship orders under the Queensland Guardianship and Administration Act, the application of the applicant insofar as he proposes to seek orders inconsistent with those guardianship orders (including, as in this case, habeas corpus) is incompetent in the Federal Court of Australia. The proper venue for any application in respect of orders under the State guardianship legislation is the State Courts in Queensland.

    Similar considerations apply in relation to the applicant’s claim that guardianship orders in respect of Ms Rickleman under the State legislation should be set aside, and that Ms Rickleman does not suffer any mental disability.

    Any orders under the Powers of Attorney Act 1998 (Qld) relating to the validity of an enduring power of attorney of Ms Rickleman are properly the domain of the State Courts in Queensland.

    The Deputy Registrar correctly stated the position in his letter to the applicant concerning the appropriate approach to setting aside the decision of Judge Roberts (as his Honour now is) in Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs. Indeed, should the applicant seek to have that decision set aside it would be by appeal, and he would need to seek an extension of time in which to file a notice of appeal.

    This Court has no authority to quash any decision of any State administrative tribunal, including the Queensland Civil and Administrative Tribunal, the Queensland Mental Health Review Tribunal or the Guardianship and Administration Tribunal, as contemplated by the applicant’s claim.

    On 1 July 2015, the Social Security Appeals Tribunal merged with the Administrative Appeals Tribunal. An appeal from a decision of the Administrative Appeals Tribunal must be filed within 28 days: s 44(2A) Administrative Appeals Tribunal Act 1975 (Cth). The applicant seeks to complain about a decision of the Social Security Appeals Tribunal made on 29 October 2007. He would need to apply for an extension of time in which to file an appeal in respect of that decision. This assumes, however, that he has standing to make such application. The proposed application refers to the decision of the Tribunal concerning Ms Rickleman. There is nothing to suggest that anyone other than Ms Rickleman or her litigation guardian has standing to make application in respect of that decision.

    While the Federal Court would have jurisdiction to entertain an application against the Secretary of the Department of Social Services:

○    the relief proposed in the applicant’s claim concerns payment of social security benefits on Ms Rickleman’s behalf. It is unclear on the face of the proposed application to what extent the applicant has standing to seek modification to these arrangements;

○    while the applicant seeks an order in the nature of habeas corpus against Mr Pratt for which – as a general proposition – the applicant may have standing, the order sought in fact seeks to overturn orders of the Queensland Guardianship and Administration Tribunal (as it then was) to which Judge Roberts referred in Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs in respect of the financial affairs of Ms Rickleman and the payment of her social security benefits. It also appears that he seeks to overturn a relevant decision of the Social Security Appeals Tribunal;

○    as the Deputy Registrar correctly observed in his letter to the applicant, it is unclear to what extent these issues have already been the subject of litigation and judicial consideration. Indeed, the relief sought to be claimed by the applicant appears to have been the subject of the decision in Rickleman & Bird v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs;

○    none of these issues were addressed by the applicant in his submissions to this Court seeking a review of the decision of the Deputy Registrar.

    While the applicant may have been declared a vexatious litigant in the State Courts of Queensland as he alleges, there is nothing before me to support a finding that this factor influenced the Deputy Registrar in his consideration of the applicant’s application.

30    In the circumstances the proper order is to dismiss the applicant’s application for review of the Deputy Registrar’s decision.

Interlocutory application

31    Further, on 22 October 2015 the applicant filed an interlocutory application seeking the following orders:

1.    An order rescinding the directions made on 20 October 2015.

2.    An order that the originating application be amended so as to be in accordance with the draft shown in Annexure “GJB1” to the affidavit of G.J. Bird sworn 12 October 2015.

3.    An order that the originating application and supporting affidavit may be served on the first, second and third respondents by handing them to an employee at the work address of each respondent, and may be served on the fourth and fifth respondents by handing them to an employee at the Brisbane office of the Australian Government Solicitor.

4.    An order allocating a whole day for a directions and interlocutory hearing on 9 November 2015 or as soon as possible after that day.

32    I have had regard to the transcript of the directions hearing before me of 10 November 2015 attended by Mr Bird. At page 15 lines 28-35 I had the following exchange with the applicant:

MR BIRD: Well, in the Form 66 I also seek an order that the interlocutory application dated 22 October be dismissed, so that will be one of the orders, and then your Honour can dismiss it down the track.

HER HONOUR: It’s of course up to you, Mr Bird. All right. If you want to do that, that’s up to you.

MR BIRD: Well, thank you, your Honour.

33    I note that this exchange took place in circumstances where on 10 November 2015 I made orders extending time to the applicant to file an order for review of the Deputy Registrar’s decision in proper form (namely in accordance with Form 66 of the Federal Court Rules) and to file further submissions.

34    In light of my decision concerning the applicant’s originating application filed 11 November 2015 no outstanding issues remain for determination. The proper order is to dismiss the applicant’s interlocutory application.

Hearing listed for 2 February 2016

35    The hearing of the substantive application which the Deputy Registrar refused to accept for filing has been listed for 2 February 2016. In circumstances where I consider the decision of the Deputy Registrar was correct, it is appropriate that this hearing be vacated.

Associate:

Dated:    28 January 2016