FEDERAL COURT OF AUSTRALIA

Shaw v Buljan [2016] FCA 829

ORDERS

THE COURT ORDERS THAT:

1.    The application is allowed.

2.    The Deputy Registrar is to accept for filing in proceedings VID 182 of 2016 the following two documents submitted for filing by the applicant on 12 May 2016;

(a)    the applicant’s interlocutory application dated 10 May 2016; and

(b)    the applicant’s supporting affidavit sworn on 10 May 2016.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The applicant, Mr Shaw, is the appellant on an appeal commenced in this Court on 26 February 2016: John Shaw v Yarranova Pty Ltd & Anor VID 182 of 2016 (the appeal proceeding). The appeal proceeding is set down for hearing before the Full Court commencing on 22 August 2016.

2    On 11 May 2016 Mr Shaw attended the Victoria District Registry of the Court. He lodged a proposed interlocutory application and a supporting affidavit that he sought to have accepted for filing in the appeal proceeding: see r 2.25 of the Federal Court Rules 2011 (Cth) (Rules). The Deputy Registrar refused to accept the documents for filing. The Deputy Registrar gave reasons to the effect that the proposed interlocutory application constituted an abuse of process. This is an application for judicial review of the Deputy Registrar’s refusal.

3    There are two respondents joined in the appeal proceeding. They are represented on the appeal by the same law firm and file principal. Mr Shaw intended, by the proposed interlocutory application, to seek interlocutory orders restraining the respondents’ lawyers from acting for either or both of them on the appeal.

4    For the reasons given below, the application for judicial review against the Deputy Registrar’s decision should be allowed.

BACKGROUND

5    A sequestration order was made against Mr Shaw on 11 June 2014: Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616 (Gordon J). On 17 December 2014, Mr Shaw commenced proceedings under s 153B of Bankruptcy Act 1966 (Cth) to have the sequestration order annulled or set aside. Pagone J dismissed the application: Shaw v Yarranova Pty Ltd [2016] FCA 88. That is the judgment appealed against in the appeal proceeding.

6    The proceedings to which I have referred are recent chapters in a lengthy and complex course of litigation between Mr Shaw and the respondents to the appeal proceeding. I will refer to the salient features of that history later in these reasons. For present purposes, it is sufficient to note that the course of litigation is one in which Mr Shaw has been largely unsuccessful. Mr Shaw contends that during the course of that litigation, the respondents have at all times been represented by the law firm Arnold Bloch Leibler (ABL) of which the same solicitor, Mr Alexander King, has acted as file principal.

7    A Notice of Address for Service filed on behalf of the first and second respondents in the appeal proceeding on 20 April 2016 confirms that ABL acts as solicitor for both respondents. The Notice is signed by Mr King on behalf of ABL. As I have mentioned, Mr Shaw now seeks to file an interlocutory application seeking orders restraining ABL and Mr King from acting for the respondents on the appeal. Neither ABL nor Mr King are joined as parties on this application. The consequence of my allowing the application is that the respondents and their solicitors may be heard on the merits of the interlocutory application, or make their own applications in respect of it if they are so advised.

the proposed interlocutory application

8    There are two orders sought on the proposed interlocutory application:

1.    The court restrain Arnold Bloch Leibler & Mr Alexander King from acting as solicitors of record for the respondents in this proceeding.

2.    Costs.

9    The affidavit sought to be filed by Mr Shaw in support of the proposed interlocutory application states:

I believe that there is ample evidence that would cause a reasonably informed observer to conclude that there is a real risk that the administration of justice would be compromised if the solicitors were allowed to represent both of the respondents.

10    There follows a list of 15 reasons as to why the respondents’ solicitors “would not be seen to be impartial”, together with a lengthy and detailed history of alleged dealings between Mr Shaw and the respondents’ solicitors dating back as early as 2007. Mr Shaw deposes to having appeared self-represented in “dozens of proceedings against the respondents with Mr King & ABL acting for them”. He complains that in those proceedings, Mr King and other solicitors under the employ of ABL have sworn affidavits that were relied upon by the respondents. He makes broad ranging and serious allegations to the effect that the respondents’ solicitors have acted unethically or otherwise inappropriately in the course of those proceedings. The affidavit concludes:

I am disappointed that not one judge or barrister appearing against me in all the previous hearings has raised the issue of a potential conflict or to question the ethics of Mr King & his solicitors giving evidence against me & acting as the only witnesses in all of the proceedings.

However, taking into account the history & Mr King’s testimony in the annulment hearing, I submit that it is not too late to redress this potential miscarriage of justice or the appearance that justice is not being seen to be done & request that the court restrain ABL from acting further in this proceeding.

THE DEPUTY REGISTRAR’S DECISION

11    Rule 2.26 provides:

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.

12    The Deputy Registrar gave reasons for her refusal to accept the proposed interlocutory application and affidavit for filing by way of a letter dated 25 May 2016 (the 25 May Letter). It relevantly stated:

I refer to the documents you sought to file at the Court Registry on 11 May 2016. The documents consist of a Form 35 Application under Rule 17.01(1) of the Federal Court Rules 2011 (‘the Rules’) and a supporting affidavit. The documents have been referred to me to decide if they should be accepted for filing.

I have reviewed your documents. I note that the documents refer to a range of allegations that also appear to have been raised in the Notice of Appeal (VID182/2016) you filed with the Court on 26 February 2016. I further note that the relief sought in the interlocutory application has no bearing on the conduct of the appeal matter VID182/2016 and, therefore, there would appear to be no utility to the application.

In the above circumstances, I am satisfied that your documents comprise an abuse of process. Accordingly, pursuant to r 2.26 of the Rules, I refuse to accept your documents for filing.

13    Mr Shaw received the 25 May Letter by email on that day. The following morning, he sent an email to the Deputy Registrar requesting that the decision be reconsidered. He made submissions challenging the Deputy Registrar’s finding that the relief sought on the proposed interlocutory application would have no bearing on the conduct of the appeal proceeding. He said, among other things:

…if my allegations are made out there would be the possibility that the appeal itself would be compromised if the solicitors were allowed to continue. In other words, if the evidence shows that the administration of justice has already been compromised, this situation should not be allowed to continue in the Court of Appeal & during the hearing of the appeal.

That is the basis of my application.

Applications to restrain solicitors from acting are routinely made in the Federal Court.

14    The Deputy Registrar responded to those submissions by letter delivered by email later on 26 May 2016 (the 26 May Letter). The Deputy Registrar stated:

In view of your email and submissions dated 26 May 2016, I have reviewed the documents relating to you [sic] interlocutory application. I confirm my decision not to accept the documents pursuant to r. 2.26 of the Federal Court Rules 2011 (‘the Rules’), and together with my letter dated 25 May 2016, I remain satisfied that the documents are an abuse of process of the Court, or are frivolous or vexatious, for the following reasons:

•    The allegations raised in your affidavit appear to overlap with the grounds you have set out in your Notice of Appeal in VID182/2016, which the Court will consider during the hearing of the appeal; and

•    Your affidavit appears to raise issues regarding the potential need to sanction ABL for apprehended bias, a lack of impartiality and a failure to act in good faith. These matters appear to relate to issues of professional conduct that are more properly raised with the relevant professional regulator.

Accordingly, pursuant to r 2.26 of the Rules, I confirm that I refuse to accept your documents for filing.

15    Later that same day, Mr Shaw sent a further email to the Deputy Registrar in which he directed the Deputy Registrar’s attention “to authorities that deal with the issue of an application to restrain solicitors”. He asked the Deputy Registrar to state whether the information he had provided “changes the position”. The Deputy Registrar did not respond to Mr Shaw’s further submissions.

The application for judicial review

16    This application for judicial review was filed on 21 June 2016. On 1 July 2016, the Deputy Registrar filed a notice submitting to any order the Court may make in this proceeding, except as to costs.

17    The originating application is made in Form 66 and is taken to be an application for orders under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Act): see r 31.01 of the Rules. No application for relief of a kind mentioned in s 39B of the Judiciary Act 1903 (Cth) is joined on the originating application.

18    The originating application specifies four grounds for review of the Deputy Registrar’s decision, together with two further grounds for review of conduct said to be related to the making of the decision. The grounds are expressed as follows:

Grounds of application

1.    The making of the decision breached the rules of natural justice by not providing reasons for rejecting the submissions of the applicant & not taking relevant factors & submissions into account & taking into account irrelevant considerations.

2.    The procedures that were required by law to be observed in connection with the making of the decision were not observed;

3.    The making of the decision was an improper exercise of the power conferred by the Federal Court Act & rules & the Administrative Decisions (Judicial Review ac) by

a.    taking irrelevant considerations into account in the exercise of the power;

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

c.    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

4.    The decision involved an error of law, in referring to documents that were not admissible & failing to recognise the jurisdiction of the court to restrain solicitors from acting in a proceeding & not applying correct principles in finding that the application is an abuse of process.

Applications for review of conduct related to making of the decisions

The applicant applies for a review on any one or more of the following grounds:

1.    that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct by the Registrar taking into account irrelevant considerations & failing to take into account submissions & authorities when making & reaffirming the decision & failing to establish the path of reasoning in arriving at the decision that the application is an abuse of process;

2.    the required procedures of taking into account all relevant considerations & submissions & providing adequate reasons for not taking them into account or rejecting those submissions that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(Original spelling and grammar retained).

The case management hearing

19    At a case management hearing, Mr Shaw acknowledged that it would be necessary for him to provide better particulars of his grounds of review. Orders were made requiring him to furnish those particulars in the course of making written submissions. Mr Shaw was also given an opportunity to file an affidavit in support of his originating application, deposing to the following matters:

(1)    any requests made for a statement of reasons pursuant to s 13 of the Act and any responses he had received to those requests;

(2)    any reasons why the applicant has not previously made an application for an order restraining the respondents’ solicitors from acting for either of the respondents in any proceedings against him.

20    I extended Mr Shaw the opportunity to file an affidavit deposing to the matters referred to in paragraph 19(2) above because there was, at the time of the case management conference, a possibility that I might have regard to those matters in the exercise of my discretion as to whether to grant Mr Shaw relief on this application pursuant to s 16 of the Act should he succeed in establishing one or more of the grounds of review. For the reasons given below, I have determined not to take into account Mr Shaw’s evidence as to why he has not previously sought to have the respondents’ solicitors from acting in any other proceeding against him, including the proceedings before Pagone J. That is an issue that may nonetheless become relevant upon a hearing of the merits of Mr Shaw’s interlocutory application (once filed). It is an issue in respect of which the respondents in the appeal proceeding are entitled to be heard.

21    At the case management hearing, I indicated that I considered it appropriate to deal with Mr Shaw’s application for review without an oral hearing pursuant to s 20A of the Federal Court Act 1976 (Cth). Mr Shaw initially opposed that course because he intended to have the Deputy Registrar compelled to attend before the Court to be cross-examined as to her reasons for decision. In circumstances where the Deputy Registrar has filed a submitting notice, I determined that any findings of fact as to the reasons for the Deputy Registrar’s decision were findings that should be made by reference to the content of the 25 May Letter and the 26 May Letter. In all of the circumstances, I determined that the case was not one in which it would be appropriate to hear oral evidence from the Deputy Registrar, assuming that Mr Shaw was able to secure her attendance for that purpose, whether by the issue of a subpoena or otherwise.

22    As Mr Shaw could not advance any other reason to oppose the determination of the matter without an oral hearing, the matter proceeded by reference to Mr Shaw’s written materials, including written submissions filed by Mr Shaw on 11 July 2016.

Evidence admitted on this application

23    For the purposes of determining this application, the Court had before it the two documents sought to be filed by Mr Shaw. These were received in evidence for the limited purpose of proving the fact that documents in those terms were sought to be filed. They are:

(1)    the proposed interlocutory application (marked A2); and

(2)    the proposed supporting affidavit of Mr Shaw sworn on 10 May 2016 (marked A3).

24    Mr Shaw provided the Court with a copy of the submissions he made before the Deputy Registrar. In response to that invitation, Mr Shaw provided two bundles of emails. The first bundle may properly be described as submissions made in correspondence to the Deputy Registrar and was received in evidence as proof of those submissions having been made. It is marked A1. The second bundle of emails included correspondence between Mr Shaw and the Victoria District Registry of this Court in relation to the preparation and commencement of these proceedings. Some of that material is irrelevant to the determination of Mr Shaw’s application for judicial review. However, the bundle also includes evidence of a request Mr Shaw made pursuant to s 13 of the Act for a written statement of reasons, and evidence of the Deputy Registrar’s response to that request. The bundle is relevant insofar as it evidences that request and the response made to it. It is marked A4.

25    The Court also had regard to the Notice of Appeal filed in the appeal proceeding. That is a document that Mr Shaw alleges to have been “inadmissible” before the Deputy Registrar. For the reasons given below, I consider him to be wrong about that.

The particularised grounds

26    The grounds for review adopt some of the language employed in s 5(1) of the Act. Having regard to Mr Shaw’s written materials, I proceed on the basis that Mr Shaw intends the Court to read his particularised grounds in the manner expressed below.

27    GROUND ONE alleges that a breach of the rules of natural justice occurred in connection with the making the decision within the meaning of s 5(1)(a) of the Act in that the Deputy Registrar did not comply with:

(1)    a statutory duty to furnish him with a statement of reasons in accordance with s 13 of the Act;

(2)    a duty arising independently of s 13 of the Act to furnish reasons equivalent in detail to those of a judicial officer of the Court.

28    GROUND TWO alleges that procedures that were required by law to be observed in connection with the making of the decision were not observed within the meaning of s 5(1)(b) of the Act in that;

(1)    the Deputy Registrar failed to observe a procedural requirement that she only refer to the two documents sought to be filed and no other documents;

(2)    the Deputy Registrar impermissibly referred to the Notice of Appeal filed in the appeal proceeding;

(3)    the Deputy Registrar impermissibly made her own assessment, based upon the Notice of Appeal, of the prospects of success of the proposed interlocutory application.

29    GROUND THREE alleges that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purportedly made, within the meaning of s 5(1)(e) of the Act, in that:

(1)    the Deputy Registrar took an irrelevant consideration into account in the exercise of the power within the meaning of s 5(2)(a) of the Act, namely the fact that Mr Shaw may have recourse to make a separate complaint to a professional regulator in respect of misconduct he alleges against the respondents’ solicitors;

(2)    the Deputy Registrar failed to take a relevant consideration into account in the exercise of the power, within the meaning of s 5(2)(b) of the Act, namely:

(a)    the submission Mr Shaw made in response to the 25 May Letter;

(b)    the authorities to which Mr Shaw referred in his response to the 26 May Letter;

(c)    the “inherent” jurisdiction of the Court to restrain a solicitor from acting for a party in proceedings before it;

(d)    the evidence set forth in the affidavit sought to be filed, being the affidavit of Mr Shaw sworn on 10 May 2016, particularly the allegations made by Mr Shaw about the respondents’ solicitors;

(e)    the utility in the relief specified in the proposed interlocutory application.

(3)    the Deputy Registrar’s decision constituted an exercise of power that was so unreasonable that no reasonable person could have so exercise the power, within the meaning of s 5(2)(g) of the Act.

30    GROUND FOUR alleges that the Deputy Registrar’s decision involved an error of law within the meaning of s 5(1)(f) of the Act in that the Deputy Registrar;

(1)    referred to the Notice of Appeal filed on the appeal proceeding, in circumstances where that document was “inadmissible”;

(2)    failed to recognise that the Federal Court had “inherent” jurisdiction to restrain solicitors from acting for a party;

(3)    erroneously determined that there was no utility in the proposed interlocutory application;

(4)    misunderstood or misapplied the test in r 2.26 as to whether the proposed interlocutory application constituted an abuse of process.

CONSIDERATION

31    The power conferred on a Registrar by r 2.26 of the Rules is substantively the same as that conferred by O 46 r 7A of the former Rules. The power is preconditioned by the requirement that the Registrar be “satisfied” that a document sought to be filed constitutes an abuse of process or is frivolous or vexatious. As Perram J observed in Rahman v Hedge [2012] FCA 68 (at [6]) (Rahman), r 2.26:

[6]    … confers a power to refuse to accept a document for filing in circumstances where the Registrar is ‘satisfied’ of the particular state of affairs referred to in the rule. The manner and circumstances in which judicial review of powers subject to the formation of a satisfaction or of an opinion are to be conducted are well-known and usefully, with respect, collected by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-654 [128]-[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it erred in one of these ways, or that its decision could not reasonably have been reached.

32    The state of satisfaction to be reached by the Deputy Registrar is not one involving policy or taste. Rather, it is in the nature of an opinion concerning mixed questions of fact and law. Cases may arise under r 2.26 in which the formation of such an opinion involves the making of an evaluative judgment in respect of which reasonable minds may differ. In such cases, an applicant for judicial review may well have difficulty establishing reviewable error affecting the Registrar’s decision. However, where an opinion formed by a Registrar is founded upon an error of law, or based upon an irrelevant consideration, the opinion will not be one that is open to the Registrar to form and the requisite state of satisfaction prescribed under the rule will not have been reached. With those principles in mind, I turn to consider each ground of review in turn.

Ground One

The issues

33    This ground concerns the existence, source and scope of the Deputy Registrar’s obligation to give reasons and the additional question of whether a failure to comply with any such obligation constitutes a breach of the rules of natural justice within the meaning of s 5(1)(a) of the Act.

34    The present case is one in which the Deputy Registrar, in the absence of a direction given by the Court, refused to accept Mr Shaw’s documents for filing: compare r 2.27(e). The decision is administrative in character: see Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222; [2010] FCAFC 47 at [49] in relation to the relevantly equivalent power conferred under O 46 r 7A(1) of the former Rules. Indeed, Mr Shaw’s standing and success in this proceeding depends upon the decision being one to which the Act applies, namely a “decision of an administrative character” made under an enactment: see s 3(1) of the Act. Mr Shaw’s entitlement to a statement of reasons pursuant to s 13 of the Act also depends upon the decision being one to which the Act applies.

35    Section 13 relevantly provides:

13 Reasons for decision may be obtained

(1)    Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

(2)    Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

…

(7)    If the Federal Court or the Federal Circuit Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.

…

(11)    In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:

(a)    a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies;

(b)    a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c)    a decision included in any of the classes of decision set out in Schedule 2.

36    A few things should be said about s 13 at this juncture. The first is that the duty does not include the giving of reasons for conduct related to decisions reviewable under s 6 of the Act; it is confined in its operation to the reasons for a decision reviewable under s 5. Next, the obligation to give a statement of reasons under s 13 only arises where the aggrieved person makes a request pursuant to s 13(1). The recipient of a statement of reasons given in response to a request made under s 13(1) may apply to this Court or the Federal Circuit Court for an order pursuant to s 13(7) requiring the decision maker to furnish an additional statement or statements containing further and better particulars in relation to matters specified in the order. Subsection 13(7) does not address the present situation in which a decision maker asserts that the decision included, or was accompanied by, “a statement setting out findings of fact, a reference to the evidence or other material on which those findings were based and the reasons for the decision” within the meaning of s 13(11)(b), so that the decision is not one to which s 13 applies at all. In that circumstance, the aggrieved person may seek declaratory and other relief to the effect that a statement fulfilling the criteria in s 13(11)(b) has not been provided, and that the decision maker is obliged to comply with a request under s 13(1) of the Act in relation to the decision.

37    By letter dated 16 June 2016, Mr Shaw made a written request to the Registrar for a statement of reasons under s 13 of the Act. His request contains a list of nine requested particulars. The letter concludes with this statement:

Although I am a layperson I have a reasonable ability to interpret the rules & case law but without further reasons I am unable to understand the basis for the decision.

38    The Deputy Registrar replied to the request by letter dated 17 June 2016. The letter relevantly states:

I refer to your application dated 16 June 2016 under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (‘the Act’).

I note that s.13(11)(b) of the Act states that s.13 does not apply to a decision that includes, or is accompanied by, a written statement of reasons. In my letters to you on 25 and 26 May 2016 (attached) I set out in writing the evidence that I had regard to and the reasons for my decision to refuse to accept the documents you sought to file on 11 May 2016. As such, these letters constitute my written statement of reasons for my decision and, accordingly, it is not a decision to which s.13 of the Act applies.

39    As I have mentioned, notwithstanding that Mr Shaw takes the view that the Deputy Registrar has not complied with a duty to give a statement of reasons pursuant to his request made under s 13(1) of the Act, he has not sought to obtain any remedy to rectify that particular circumstance prior to commencing this application for judicial review based on the reasons already provided. That is not intended as a criticism of Mr Shaw. I accept that Mr Shaw is concerned to have his interlocutory application accepted for filing in sufficient time to have it determined pending the hearing of the appeal proceeding and that a separate action remedying the alleged deficiency in the reasons would frustrate that object.

40    Ground One proceeds upon an assumption that the failure of the Registrar to comply with the statutory duty under s 13 of the Act constitutes a breach of the rules of natural justice within the meaning of ss 5(1)(a) and 6(2)(a) of the Act, such that an order may be made under s 16 of the Act setting the decision aside for that reason. By Ground One, Mr Shaw also contends that the Deputy Registrar had, as an aspect of the rules of natural justice, and independently of the statutory duty to give reasons imposed by s 13 of the Act, a duty at common law or an implied statutory duty to furnish him with reasons containing more detail than those with which he was provided. The content of that duty is, he contends, equivalent to the obligation of a Judge of this Court to give reasons for judgment. Again, it is contended that this alleged breach is one in respect of which an order may be made under s 16 of the Act setting aside the Deputy Registrar’s decision. These are the issues with which I am presently concerned.

41    For the reasons that follow, the obligation imposed by s 13 of the Act does not form a part of the rules of natural justice to which s 5 or s 6 of the Act refer. Moreover, insofar as there is imposed on the Registrar a distinct implied statutory obligation to give reasons for her decision, that obligation does not form a part of the rules of natural justice to which s 5 or s 6 of the Act refer. Even if I am wrong in these conclusions, the reasons given by the Deputy Registrar in any event are sufficient to discharge her obligation to furnish Mr Shaw with reasons for her decision.

Section 13 and the rules of natural justice

42    Neither s 5(1)(a) nor s 6(1)(a) of the Act impose any obligation to observe the rules of natural justice in circumstances where no such obligation otherwise exists: McVeigh v Willara Pty Ltd (1984) 6 FCR 587 at 600 (Toohey, Wilcox and Spender JJ).

43    In Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124, Gummow J said (at 130), of the scope and purpose of s 13:

Section 13 of the ADJR Act is a remedial provision in that the duty for which it provides stands in high contrast to the apparently very limited obligations at common law of a decision-maker to furnish reasons: Public Service Board of NSW v Osmond (1986) 60 ALJR 209 at 215, 217. Brennan J recently observed (Miller v TCN Channel Nine Pty Ltd (1986) 60 ALJR 698 at 720-721) that the ADJR Act removes what would otherwise have been procedural obstacles to discovery of the grounds on which discretions have been exercised. The policy which s 13 implements is (as Lockhart J explained in Dalton v Deputy Commissioner of Taxation (NSW) (1985) 7 FCR 382 at 391-392) to provide any citizen having sufficient interest in the matter with material to assist him in determining whether there is any error in the process of reasoning of the decision-maker and, accordingly, to chart his future course of action, by, for example, seeking an order for review under the other provisions of the ADJR Act.

44    Similarly, in Minister for Immigration and Ethic Affairs v Taveli (1990) 23 FCR 162, French J (as he then was) said, at 178:

The section has been described as crucial and designed to ensure that the basis upon which a decision is made is able to be seen so that its legality can be tested. The obligation it imposes ‘demands the furnishing of reasons which make intelligible the true basis of the decision’: ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (Cth) (1986) 10 FCR 197 at 204 per Burchett J. It is remedial, supplying the deficiency of the common law: Re Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124 at 130, per Gummow J. The section balances requirements that those persons affected by administrative decisions should know why they are made on the one hand and that the administration of the country be carried on effectively without undue intervention by the Courts on the other. It is designed to provide persons affected by a decision with sufficient information to decide whether to accept it or pursue the matter further with the administrative process or through the court: Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193 at 197 per Lockhart J; Australian Institute of Marine and Power Engineers v Secretary, Department of Transport at 130, per Gummow J; Dalton v Deputy Commissioner of Taxation (Cth) (1985) 7 FCR 382 at 391-392 per Lockhart J.

45    The position at common law to which the above passages refer is that, in Australia, the rules of natural justice do not oblige an administrative decision maker to give reasons for their decisions: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (Osmond) (Gibbs CJ at 662-670, Wilson, Brennan and Dawson JJ agreeing at 671, 675 and 678). The position in Australia diverges from that in the United Kingdom where it is settled that there not only exists a general law duty to provide reasons for an administrative decision, but that the duty is an aspect of the decision maker’s obligation to afford natural justice: R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310 at 317; R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531 at 539. As Deane J said in Osmond, after reviewing the United Kingdom authorities (at 675-676):

Nonetheless, the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administrative decision-maker, having extended to persons who might be adversely affected by a decision an adequate opportunity of being heard, is bound to furnish reasons for the exercise of a statutory decision-making power. To the contrary, the ordinary common law position remains that established by the authorities referred to by the Chief Justice in his judgment, namely that where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission.

46    The purpose of s 13 includes the facilitation of the Court’s determination of whether a breach of the rules of natural justice, as traditionally conceived, has occurred “in connection with the making of decision” within the meaning of s 5(1)(a). Having regard to its purpose, the statutory duty under s 13 of the Act should not be construed as forming any part of the rules of natural justice to which ss 5(1)(a) and 6(1)(a) of the Act refer. There is no policy imperative to construe the duty in that way. It is, instead, to be understood as imposing a statutory duty arising only in the circumstances it prescribes and enforceable either on its own terms (such as in a case where s 13(7) applies) or by an order in the nature of mandamus compelling its observance.

An implied statutory duty?

47    The Deputy Registrar has in fact given reasons. Mr Shaw’s complaint goes to their sufficiency. I understand his contentions to mean that there exists a separate and distinct duty imposed on a Registrar arising by implication from the Rules themselves equivalent to the obligation of a Judge of the Court to give reasons for his or her decision “so the person if unsuccessful can at least understand the reasons why & an appellate court can discern the path of reasoning without having to look at the evidence or try the case afresh”. He referred to Police Federation of Australia v Nixon (2011) 198 FCR 267; [2011] FCAFC 161 (Nixon) at 283 [66] and the cases referred to therein. In applying those principles to the case at hand, Mr Shaw submitted that the Deputy Registrar was obliged to fully engage with each of the submissions that he had made, and to explain in some detail why his submissions had been rejected. He also contended that the Deputy Registrar was obliged to deal with each of the authorities to which he had referred and to give reasons as to why they did not apply. He further contended that it was not sufficient for the Deputy Registrar to give a broad summary of conclusions of fact without particularising the intermediary steps in arriving at her findings.

48    Mr Shaw’s submissions proceed on the assumption that the principles to which the Full Court referred in Nixon apply to a decision of an administrative character. The assumption is wrong. As explained by Gibbs CJ in Osmond at 666 - 667 (citations omitted):

It has long been the traditional practice of judges to express the reasons for their conclusions by finding the facts and expounding the law (see Deakin v Webb and Jacobs v London County Council) and there have been many cases (some of which are collected in De Iacovo v Lacanale) in which it has been held that it is the duty of a judge or magistrate to state his reasons. That does not mean that a judicial officer must give his reasons in every case; it is clear, to use some of the words of Woodhouse P. in (Reg v Awatere), that there is no ‘inflexible rule of universal application that reasons should be given for judicial decisions. Nevertheless, it is no doubt right to describe the requirement to give reasons, as Mahoney J.A. did in Housing Commission (N.S.W) v Tatmar Pastoral Co., as ‘an incident of the judicial process’, subject to the qualification that it is a normal but not a universal incident. That does not mean that the requirement is an incident of a process which is not judicial but administrative; there is no justification for regarding rules which govern the exercise of judicial functions as necessarily applicable to administrative functions, which are different in kind. Moreover, the principle that judges and magistrates ought to give reasons in any case in which an appeal lies from the decision provides a quite inadequate basis for the suggested further principle that a body exercising discretionary administrative powers must give reasons to enable persons affected by the exercise of the power to bring proceedings for judicial review. That suggested principle would undermine the rule, well established at common law (see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw) that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them.

49    Against that background, I make three observations which inform the question of the existence and scope of any implied duty on the Deputy Registrar to give reasons for a decision made under r 2.26. First, the rule is to be applied in circumstances where the interests of a person in receiving detailed reasons compete with the interests of other litigants properly relying upon the resources of the Court’s Registry. Those resources are not unlimited. Second, the power conferred by the rule is one involving an assessment as to whether a document is an abuse of process or is frivolous or vexatious. Matters that fall within the description of an abuse of process or that are frivolous or vexatious are, not uncommonly, prolix, disordered or otherwise embarrassing in their nature. The very subject matter with which the rule is concerned tends against the implication of an obligation that written reasons be given engaging with and responding in detail to every submission, allegation or complaint contained in the documents themselves or in submissions accompanying them. Third, where a Registrar determines that a document constitutes an abuse of process, the reasons for that determination are capable of being briefly explained without the provision of a lengthy discourse of legal principle or by way of a meticulous recitation of intermediate findings.

50    Having regard to those observations, any implied statutory duty to give reasons deriving from the Rules themselves is, in my opinion, one that is less burdensome than the statutory duty imposed by s 13 of the Act. It follows that I reject Mr Shaw’s submission that a person aggrieved by a decision made pursuant to r 2.26 is entitled to reasons of the kind that might be delivered by a judicial officer of the Court, both as a matter of construction of the rule itself and because the implication of such a duty would be inconsistent with the principles stated by Gibbs CJ in Osmond to which I have referred.

Sufficiency of the Deputy Registrar’s reasons

51    Turning to the reasons given by the Deputy Registrar in the 25 May Letter and the 26 May Letter, the reasons fairly disclose, whether expressly or by implication, that the Deputy Registrar:

(1)    read the two documents sought to be filed;

(2)    read the written submissions made by Mr Shaw by his email on the morning of 26 May 2016;

(3)    read the Notice of Appeal filed in the appeal proceeding;

(4)    reached the following conclusions:

(a)    the relief specified in the proposed interlocutory application would not affect the conduct of the appeal;

(b)    because the relief sought on the application could not affect the conduct of the appeal proceeding, the interlocutory application had no utility in the appeal;

(c)    the proposed interlocutory application sought to have the Court determine on an interlocutory basis a controversy that overlapped, at least in part, with the controversy to be determined on the substantive appeal;

(d)    insofar as the affidavit sought to be filed by Mr Shaw alleged a need to sanction ABL for apprehended bias, lack of impartiality and a failure to act in good faith, the allegations were more appropriately dealt with by a professional regulator having the power to investigate complaints about the conduct of legal practitioners;

(5)    on the basis of those conclusions, determined that the documents were an abuse of process, or frivolous or vexatious.

52    I reject Mr Shaw’s submissions that the Deputy Registrar’s reasons fail to adequately disclose her findings and reasoning. The Deputy Registrar has set out with sufficient particularity the reasons why she concluded that the documents should be refused for filing. Mr Shaw has demonstrated little difficulty formulating and articulating arguments before this Court as to why, in his submission, the reasoning of the Deputy Registrar is affected by reviewable error. The Deputy Registrar was under no obligation to engage in any argumentative exchange with Mr Shaw, whether before or after delivering her 26 May Letter. Her disinclination to do so does not constitute reviewable error.

53    Ground One is not established.

Ground Two

54    Ground Two also turns upon the proper construction of r 2.26. Shortly stated, Mr Shaw’s contention is that in exercising the power to refuse to accept his documents for filing, the Deputy Registrar was legally bound to consider only the documents on their face and “any documents already filed or submitted for filing with the document”: r 2.26(b). Mr Shaw contends that the Notice of Appeal filed in the appeal proceeding was not a document “already filed or submitted for filing with the document” within the meaning of the rule. As the Notice of Appeal was not filed with the proposed interlocutory application, it must, the submission goes, be ignored.

55    It can be accepted that the words used in paragraph (b) of the rule are susceptible to alternative meanings. The alternatives arise because the qualifying phrase “with the document” may or may not attach to the words “already filed”. On Mr Shaw’s interpretation, documents that are already filed may only be referred to by the Registrar if they were filed together with the document in issue. That construction should be rejected for three reasons. First, the text of the rule, construed in the context of the Rules as a whole, contemplates that the power conferred under it may be exercised in relation to a proposed interlocutory application and supporting affidavit. The question of whether a proposed interlocutory application constitutes an abuse of process or is frivolous or vexatious will invariably depend upon the content of other documents previously filed in the same proceeding. It is difficult to identify any policy reason for precluding a Registrar from making a determination as to whether a proposed interlocutory application constitutes an abuse of process or is frivolous or vexatious without having reference to the originating process defining the issues in dispute in the action in which the proposed interlocutory application is sought to be made. Any determination as to whether or not the document constitutes an abuse of process must, in my opinion, be made having regard to the legal, procedural and factual context of the substantive proceeding. The context, and purpose of r 2.26 support a construction that permits the Registrar to refer to any documents already filed that may legitimately inform an assessment of whether a document submitted for filing is an abuse of process, or is frivolous or vexatious, including the very kind of assessment the Deputy Registrar made in the present case. The question of whether or not the assessment so undertaken is otherwise affected by error is dealt with below.

56    Ground Two further alleges that the Deputy Registrar impermissibly made her own assessment of the merits of the proposed Interlocutory Application by reference to the Notice of Appeal.

57    The Deputy Registrar made no determination of the prospect of Mr Shaw succeeding in making out the factual allegations he has directed at the respondents’ solicitors in his proposed supporting affidavit. Rather, the Deputy Registrar has made an assessment as to whether the factual allegations raised in the proposed interlocutory application are the same as or similar to certain allegations alleged in the Notice of Appeal. She determined that the allegations were “overlapping”. That determination was an intermediate step in the Deputy Registrar’s conclusion that the relief sought on the proposed interlocutory application would have no utility in the appeal proceeding itself. Her conclusion did not involve any assessment of the merits of the proposed interlocutory application itself.

58    Ground Two is not established.

Grounds Three and Four

The jurisdiction sought to be invoked by Mr Shaw

59    Grounds Three and Four raise a common contention that the Deputy Registrar erred in law in failing to recognise that this Court has a discretionary power to restrain a solicitor from acting for a party in proceedings before it. The power is said by Mr Shaw to form a part of this Court's “inherent jurisdiction”. The phrase “inherent jurisdiction” is used in some of the authorities of this Court upon which Mr Shaw relies: see, for example Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404; (2006) 237 ALR 612 (Geelong).

60    The term “inherent jurisdiction” is apt to describe the jurisdiction inhering in superior courts of record of unlimited jurisdiction: it derives from the very nature of such courts.

61    In academic discourse, the four functions of the inherent jurisdiction of a superior court of record of unlimited jurisdiction have been identified as:

(1)    ensuring convenience and fairness in legal proceedings;

(2)    preventing steps from being taken that would render judicial proceedings inefficacious;

(3)    preventing abuse of process;

(4)    acting in aid of superior courts or in aid or control of inferior courts and tribunals.

See Mason QC, K “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449 at 449 – 456; Lacey W, “Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution” (2003) 31(1) FL Rev 57 at pp 63 – 67.

62    This Court is not a court of unlimited jurisdiction. As Toohey J observed in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (Jackson) at 630-631 (citations omitted):

The Federal Court is a creature of statute, but so too are the superior courts and other courts of this country. The High Court itself has the jurisdiction conferred upon it by the Constitution and Acts of the Parliament. Though it is common to speak of the inherent jurisdiction possessed by superior courts of unlimited jurisdiction, in truth there is within the federal system of this country no court of unlimited jurisdiction. The notion of inherent jurisdiction is in any event capable of misleading for, when examined, it is invariably concerned with the power of a particular court to act in a particular way: see, e.g., the analysis of judicial decisions in Riley McKay Pty Ltd v McKay. In Reg v Forbes; Ex parte Bevan Menzies J said of inherent jurisdiction that it is ‘the power which a court has simply because it is a court of a particular description’. A Full Court of the Federal Court commented in Parsons v Martin:

‘In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.

In view of the way in which the phrase ‘inherent jurisdiction’ is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.’

63    The Full Court in Western Australia v Ward (1997) 76 FCR 492; [1997] FCA 585 (Ward) Hill and Sundberg JJ said at 498, of this Court’s jurisdiction to restrain a solicitor from acting for a party:

It is true that a court such as the Federal Court which exercises jurisdiction conferred by statute does not have ‘inherent jurisdiction’. However, in addition to the powers expressly or by implication conferred on it, it has such powers as are incidental and necessary to the exercise of the jurisdiction so conferred: see Parsons v Martin (1984) 5 FCR 235 at 241, Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 630-631 and Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224; 117 ALR 253 at 232-234; 262-263.

In Kooky Garments Ltd v Charlton [1994] I NZLR 587 at 590 Thomas J noted that the general right of a party to be represented by the counsel or solicitor of its choice must give way to the overriding principle of protecting the integrity of the judicial process: see also Grimwade v Meagher [1995] 1 VR 446.

Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party’s choice. The instances in which courts have prevented chosen counsel or solicitors from acting have involved misconduct, potential use of confidential information, and a real risk of lack of objectivity and of conflict of interest and duty: Grimwade v Meagher. The present case is only another example of situations in which the ‘integrity of the judicial process’, the ‘interests of justice’, and the ‘need to preserve confidence in the judicial system’, to use some of the notions that lie behind the inherent jurisdiction to exclude counsel or solicitors, may override the public interest that a litigant be able to be represented by the lawyer of its choice. That public interest is ‘an important value’: Black v Taylor at 408. It is a serious matter to prevent a party from retaining its chosen lawyer: Grimwade v Meagher. But as those cases illustrate, particular circumstances may require some modification of the public interest in the ability of a litigant to have a lawyer of its choice.

64    Even before the establishment of this Court, the High Court recognised the distinction between the inherent jurisdiction of a superior court of unlimited jurisdiction, and that jurisdiction derived by implication from a statute expressly conferring jurisdiction on it. As Menzies J explained in R v Forbes; Ex Parte Bevan (1972) 127 CLR 1 (Forbes) at 7:

Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as ‘inherent jurisdiction’, which, as the name indicates, requires no authorizing provision.

65    In light of the passages in Forbes, Jackson and Ward to which I have referred, it is inappropriate to describe the jurisdiction sought to be invoked by the proposed interlocutory application as forming a part of this Court’s “inherent” jurisdiction. The jurisdiction to restrain a solicitor from acting within an appeal proceeding of the kind commenced by Mr Shaw is one that is more properly described as incidental and necessary to the exercise of the power conferred by s 24(1)(a) of the Federal Court Act 1976 (Cth) to hear and determine an appeal against a judgment of the Court constituted of a single Judge exercising the Court’s original jurisdiction. When described in that way, the limited scope on jurisdiction becomes apparent. This Court’s power to restrain a legal officer from acting for a party does not have, as its source, any inherent supervisory jurisdiction to sanction legal practitioners more generally as an officer of the Court. Rather, the source of the power is the statute conferring jurisdiction on the Court to determine the particular justiciable controversy before it which, as a matter of statutory construction, is accompanied with such implied incidental powers as are necessary for its effective exercise.

66    The test applicable in this Court as to whether a solicitor should be restrained from acting for a party has nonetheless been held to be equivalent to a test applicable in courts of unlimited jurisdiction, as expressed by Mandie J of the Supreme Court of Victoria in Grimwade v Meagher [1995] 1 VR 446 (Grimwade). See, for example: Geelong at [28] - [35], Fonterra Brands (Australia) Pty Ltd v Viropoulos [2013] FCA657; (2013) 304 ALR 332 at [29] (Robertson J), Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065; (2014) 228 FCR 252 at [94] (Beach J).

67    In Grimwade, Mandie J held (at 452) that the Supreme Court of Victoria has:

… an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.

68    The words used in the proposed interlocutory application and the proposed supporting affidavit are clearly intended to assert that the test as stated in Grimwade is satisfied in respect of the appeal proceeding, although the factual basis for that contention is not confined to conduct or threatened conduct of the respondents’ solicitors in the course of defending the appeal itself. Put simply, Mr Shaw relies on a long history of alleged dealings with the respondents’ solicitors in this Court and in other courts dating back to 2007, including in the proceedings before Pagone J. Mr Shaw alleges that the history of his dealings with the respondents’ solicitors gives rise to an appearance that justice in the appeal proceeding will not be seen to be done. For the most part, the factual allegations made in support of the proposed interlocutory application are not new. They are allegations that Mr Shaw has raised or sought to raise in other legal contexts, including proceedings in which he joined the respondents’ solicitors personally in a suit alleging (among other things) unconscionable conduct and fraud against them: see Shaw v MAB Corporation Pty Ltd [2013] FCA 1231 (Jessup J) and Shaw v MAB Corporation Pty Ltd [2014] FCA 62; (2014) 220 FCR 425.

69    An assessment of the merits of Mr Shaw’s allegations against the respondents’ solicitors forms no part of my determination of whether the Deputy Registrar erred in refusing to accept Mr Shaw’s documents for filing. Nor do I make any assessment of whether the discretion of a court to grant Mr Shaw the relief sought on the proposed interlocutory application might or might not be exercised in his favour. The brief survey I have just given is intended only to describe the jurisdiction sought to be invoked by Mr Shaw and the circumstances said by him to justify its exercise favourably toward him.

70    It is against that background that I now turn to consider whether the Deputy Registrar erred in the manner specified in Grounds Three and Four of this application for judicial review.

Consideration

71    The reasons of the Deputy Registrar are to be read beneficially and without an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. When considered against those principles, the reasons of the Deputy Registrar should be interpreted as proceeding upon an assumption that the Court may, in an appropriate case, restrain a solicitor from acting or continuing to act in a proceeding before it.

72    The Deputy Registrar’s statement that matters raised in Mr Shaw’s proposed supporting affidavit “are more properly raised with the relevant professional regulator” does not involve a denial of the existence of the Court’s jurisdiction to respond to the allegations by making an order restraining the respondents’ solicitors from acting in the appeal proceeding. The phrase “more properly” is to be read as an expression by the Deputy Registrar of an opinion that there was a more appropriate means, among alternatives, by which Mr Shaw’s complaints ought be resolved. For similar reasons, I reject Mr Shaw’s allegation that the Deputy Registrar failed to take into account the content of the proposed supporting affidavit submitted for filing with the proposed interlocutory application. The 26 May Letter makes direct reference to the affidavit and characterises it as one raising issues that, in the Deputy Registrar’s view, would more properly be resolved by means other than the making of an interlocutory application in the appeal proceeding.

73    The Deputy Registrar’s reasons are concerned not so much with the question of the Court’s power to grant the relief, but with the question of whether the relief, if granted, could have any bearing on the conduct of the appeal proceeding or could otherwise have any utility. Jurisdiction to grant the relief is assumed by the Deputy Registrar, although the utility in the relief is denied.

74    Finally on this issue, I reject Mr Shaw’s contention that the Deputy Registrar failed to take into account the authorities to which he referred in his response to the 26 May Letter. That response was made after the Deputy Registrar’s decision had been made, then reconsidered, then affirmed. Mr Shaw’s response set out the authorities upon which he relied in support of his contention that this Court has the jurisdiction, in an appropriate case, to restrain a solicitor for acting for a party in proceedings before it. As I have already determined, the Deputy Registrar did not fail to recognise the existence of that jurisdiction in any event.

75    It follows that Grounds Three and Four are rejected insofar as they contend that the Deputy Registrar failed to take into account the existence of this Court’s jurisdiction to restrain a solicitor from acting for a party. Ground Three is also rejected insofar as that ground alleges that the Deputy Registrar failed to take into account Mr Shaw’s submissions or authorities going to that topic, or the content of the proposed supporting affidavit submitted for filing with the proposed interlocutory application.

Utility

76    The Deputy Registrar’s statements to the effect that the relief sought on the proposed interlocutory application would have no bearing on the conduct of the appeal and that “there would appear to be no utility to the application” should be taken to mean the same thing: nothing was to be achieved by the grant of relief on the proposed interlocutory application over and above that which may be achieved on the disposition of the substantive appeal. There is, in my opinion, an error disclosed in this aspect of the Deputy Registrar’s reasons.

77    The relief specified in the proposed interlocutory application would, if granted, have a bearing on the conduct of the appeal in that the relief addresses what Mr Shaw alleges to be a state of affairs in which the proper administration of justice in the appeal proceeding itself is compromised. An order restraining the respondents’ solicitors from acting, would, in that sense, have a bearing on the conduct of the appeal and there would, for that reason, be some utility in the grant of relief over and above the relief sought in the substantive appeal proceeding. The Deputy Registrar erred in finding otherwise.

78    I emphasise that nothing I have said on this question should be taken as expressing any view as to the merits of the proposed interlocutory application, whether on the facts or the law.

79    Grounds Three and Four are established in that the Deputy Registrar failed to recognise that the relief sought on the proposed interlocutory application would, if granted, have no utility.

The professional regulator

80    Ground Three further alleges that the Deputy Registrar took into account the irrelevant consideration of Mr Shaw’s ability to have recourse to a professional regulator insofar as he sought to have sanctions imposed upon the respondents’ solicitors.

81    As I have said, the Deputy Registrar’s reasons on this topic do not disclose any failure to recognise the Court’s jurisdiction to restrain a solicitor from acting for a party in proceedings before it. Rather, what is expressed is an opinion that Mr Shaw sought to have sanctions imposed upon the respondents’ solicitors and that there were alternative and more proper means by which Mr Shaw might achieve that end, other than by way of an interlocutory application filed within the appeal proceeding. It is implicit in the Deputy Registrar’s reasons that the existence of an alternative forum in which Mr Shaw might ventilate his complaints was a consideration which supported a finding that the documents sought to be filed by Mr Shaw constituted an abuse of process.

82    There are two errors disclosed in this aspect of the Deputy Registrar’s reasons.

83    The first is that the Deputy Registrar characterised the proposed interlocutory application as one seeking the imposition of disciplinary sanctions upon the respondents’ solicitors of the kind that might be imposed by a professional regulator. That is not a proper characterisation of the relief sought on the proposed interlocutory application. The relief is confined to an order restraining the solicitors from acting in one particular action. It may be that the Deputy Registrar formed a view that the underlying purpose of the proposed interlocutory application was something other than that specified in the proposed interlocutory application, but no such view is expressed and the brevity of the Deputy Registrar’s reasons is such that there is no clear basis upon which I might impute such a view to her.

84    The second and related error is that the mere existence of an alternative avenue of complaint does not, of itself, preclude a litigant in this Court from relying on the same allegations of fact in support of an application for an order restraining solicitors from acting for a party before it. The existence of that alternative avenue of complaint is irrelevant on an assessment of whether the proposed interlocutory application is an abuse of process, except to the extent (if any) that it may support a conclusion that the proposed interlocutory application was submitted for filing for an improper purpose. As I have said, the Deputy Registrar has expressed no such conclusion.

85    I accept Mr Shaw’s submission that the Deputy Registrar took into account an irrelevant consideration in determining that the allegations made in the proposed supporting affidavit were more properly made before a professional regulator. Ground Three is established for this additional reason.

Unreasonableness

86    Mr Shaw contends that the Deputy Registrar’s decision constituted an exercise of the power conferred by r 2.26 of the Rules that was “so unreasonable that no reasonable person could have so exercised the power” within the meaning of s 5(2)(g) of the Act. That statutory form of words appears to adopt an often quoted expression for a test for legal unreasonableness attributed to Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury). In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) Hayne, Kiefel and Bell JJ said (at 364 [68]), of the judgment in Wednesbury:

Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for ‘circularity and vagueness’, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

(citations omitted)

87    The High Court in Li was concerned with the nature and boundaries of legal unreasonableness as a ground for judicial review in proceedings invoking a Court’s jurisdiction equivalent to that conferred by the High Court under s 75(v) of the Constitution. Although the words of s 5(2)(g) of the Act appear to adopt a test for legal unreasonableness that is more stringent than that explained by the High Court in Li, the statutory provision should, in my opinion, be construed broadly as referring to the same ground for judicial review identified by Gageler J (at 375 [105, [106]) as being, “deeply rooted in the common law”:

[105]    …Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.

[106]    The label ‘Wednesbury unreasonableness’ indicates ‘the special standard of unreasonableness which has become the criterion for judicial review of administrative discretion’. Expression of the Wednesbury unreasonableness standard in terms of an action or decision that no reasonable repository of power could have taken ‘attempts, albeit imperfectly, to convey the point that judges should not lightly interfere with official decisions on this ground’.

(citations omitted)

88    Insofar as the Deputy Registrar’s decision was affected by the two errors of law I have identified above, the decision is not one that falls within the range of possible outcomes that are “defensible” as a matter of law in the sense described by Gageler J. For that limited reason, the ground of review in s 5(2)(g) of the Act is established, although to say that is to say no more than that the decision is affected by the errors which I have already identified.

The remaining grounds

Conduct

89    My consideration of the grounds of review for the Deputy Registrar’s decision encompasses all of the issues raised by Mr Shaw in his originating application insofar as it also seeks to challenge the Deputy Registrar’s conduct in making the decision pursuant to s 6 of the Act, save for one remaining issue.

90    The grounds for review of conduct contain an allegation that the Deputy Registrar breached the rules of natural justice within the meaning of s 6(1)(a) of the Act by “failing to establish the path of reasoning in arriving at the decision that the application is an abuse of process”. Considered apart from Mr Shaw’s complaint that the reasons of the Deputy Registrar are inadequate, I have interpreted this ground of review generously so as to involve a contention that the Deputy Registrar was obliged to inform Mr Shaw of her proposed reasoning in refusing to accept his documents for filing prior to making her decision, so as to provide Mr Shaw with an opportunity to respond. If that is the intended meaning of this ground of review, it must be rejected. In my opinion, the circumstances are not relevantly different to those arising before Perram J in Rahman in which his Honour said (at [8]):

[8]    The basis upon which the Deputy District Registrar has acted consists, so far as I can see, in neither more nor less than the document which Mr Rahman presented to the Registry. I cannot discern in that arrangement a want of procedural fairness. The Deputy District Registrar was not obliged by notions of procedural fairness or natural justice to indicate to Mr Rahman in advance of the decision that she was contemplating refusing him permission to file the document. A number of authorities establish that an administrative decision-maker is not obliged to give a running commentary on their current state of mind: cf. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 51 at 69 [31] per Gleeson CJ and Hayne J; Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 at [54].

RELIEF AND CASE MANAGEMENT

91    An issue arises as to whether the Court should, pursuant to s 16 of the Act, make either one of the orders specified in Mr Shaw's originating application; namely an order to the effect that the proposed interlocutory application and the proposed supporting affidavit be accepted for filing, or an order requiring the Deputy Registrar to reconsider her decision, taking into account the material Mr Shaw alleges she failed to consider.

92    In Lamb v Moss (1983) 76 FLR 296, the Full Court observed (at 312) of s 16 of the Act:

Each of subs (1), (2) and (3) of s 16 must be read subject to the implicit proviso that the specified relief may be granted only if a basis for relief under the Act is established. Subject to that, the narrower view of those subsections would limit the discretion to the selection of the appropriate form of order from the designated categories. However, the natural meaning of the language used is apt to confer upon the court a discretion both as to whether or not to grant relief, provided that a basis for relief is established, and, if relief is to be granted, as to the form of relief; Evans v Friemann (1981) 53 FLR 229 at 237, per Fox J; Cox v Lightly (unreported, Neaves J, 1 July 1983). The words ‘in its discretion’, are emphatic of the discretionary nature of the court’s power.

93    The cases in which this Court might properly refuse the grant of relief pursuant to s 16 of the Act once grounds for judicial review are established are uncommon: Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 per Besanko J at 192-193.

94    The intended consequence of the documents being submitted for filing is that they would constitute an interlocutory application to be judicially determined on its merits in the appeal proceeding unless struck out for any reason without any determination on the merits.

95    I have given careful consideration as to whether, in the course of exercising the discretion conferred by s 16 of the Act, it is desirable or appropriate to make my own assessment of whether the documents submitted for filing would, if filed, be liable to be struck out as an abuse of process for reasons not expressed by the Deputy Registrar and by reference to any materials to which the Deputy Registrar was not permitted to refer. For the reasons that now follow, I do not consider that course to be either desirable or appropriate.

96    The appeal proceeding is one that has already been assigned to a Full Court. If accepted for filing, the interlocutory application is one that must be determined by a single Judge in accordance with s 25(2BB) of the Federal Court Act 1976 (Cth) unless the Full Court to which the appeal proceeding has been assigned considers it appropriate for it to hear and determine the application. It is preferable that the Full Court to which the appeal proceeding has been assigned make its own determination as to whether the interlocutory application ought be heard by it, and that it make that determination by reference to documents having the actual status of an interlocutory application filed in the Registry.

97    Having regard to the issues raised by the respondents and their solicitors as parties to the action in Shaw v MAB Corporation Pty Ltd [2013] FCA 1231, it can be predicted with a fair degree of certainty that each of them will contend that the interlocutory application constitutes an abuse of process. It is preferable that any question of whether the interlocutory application constitutes an abuse of process be heard and determined judicially in the exercise of the Court’s appellate jurisdiction upon hearing from all of the affected parties including, of course, Mr Shaw. It is for this reason that I have made no orders with a view to having the respondents in the appeal proceeding, or their solicitors personally, joined as parties on this application.

98    Nor do I consider it efficacious to make an order directing the Deputy Registrar to consider again whether the documents may be refused for filing pursuant to r 2.26 of the Rules. Again, it can be predicted with a fair degree of certainty that Mr Shaw would commence a further application for judicial review against any further decision of the Deputy Registrar to refuse to accept the documents for filing. While there presently remains some prospect of having the interlocutory application dealt with urgently without necessitating an adjournment of the appeal proceeding, the preferable course is that which has the best chance of achieving that outcome.

99    For the reasons I have given, I will allow Mr Shaw’s application and order that the Deputy Registrar accept Mr Shaw’s documents for filing. Subject to there being any determination by the Full Court to the contrary, the interlocutory application will then fall to be determined on its merits by a single Judge, unless otherwise resolved beforehand.

Associate:

Dated:    21 July 2016