FEDERAL COURT OF AUSTRALIA

Reaper v Luxton [2017] FCA 949

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be amended to “Deputy District Registrar Luxton”.

2.    The respondent’s decision to refuse to accept for filing the documents lodged by the applicant on 5 March 2017 be set aside.

3.    The documents the subject of the decision referred to in order 2 be referred to the Registrar (as defined in the Federal Court Rules 2011 (Cth)), not being the Deputy District Registrar who made the decision referred to in order 2, for further consideration.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    This is an application for judicial review of a decision made by a Deputy District Registrar of this Court (the Deputy Registrar) to refuse to accept certain documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules).

The rejected documents

2    On 5 March 2017, the applicant lodged with the Victoria Registry an application (the new application), which sought in part to invoke or rely on s 178 of the Bankruptcy Act 1966 (Cth) (the Act).

3    Section 178(1) and(2) of the Act provide as follows:

(1)    If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.

(2)    The application must be made not later than 60 days after the day on which the person became aware of the trustee’s act, omission or decision.

4    In substance, the new application sought relief against Mr Vrsecky, the trustee of the applicant’s bankrupt estate, “concerning missing and damaged property” arising out of the execution in December 2016 of a warrant of possession obtained by Mr Vrsecky in relation to the applicant’s house in Narre Warren South, Victoria. The applicant also sought to file an affidavit sworn on 1 March 2017 that deposed, among other things, to the loss and damage that, he says, was caused to his personal possessions and household items by agents of the trustee when they took possession of the property (the affidavit).

THE DEPUTY REGISTRAR’S DECISION

5    On 6 March 2017, the applicant received an email through the Commonwealth Courts Portal eLodgement System informing him that his lodgement had been marked “pending” and that “[y]our documents have been referred and we are awaiting a response. No action is required on your behalf”.

6    On 9 March 2017, the lodgement was rejected through the eLodgement System, with the reason for the rejection stated as being “Information requested not received”. The eLodgement System also noted a message from the Registry, “Please refer to the email sent to you this afternoon from the following email address: vicreg@fedcourt.gov.au”.

7    In his affidavit filed in support of the application for judicial review, the applicant deposes that the Registry had not previously requested any further information from him.

8    By letter dated 9 March 2017, the Deputy Registrar informed the applicant why the lodgement had been rejected. The letter relevantly stated:

I refer to the proposed application, supporting affidavit and related documents lodged by you on 5 March 2017.

The application sets out a range of allegations and claims. Paragraph [1] states that you apply to the Court under s 178 of the Bankruptcy Act 1966. However, the application does not identify the relevant acts, omission or decision pursuant to which s 178 is said to be enlivened. I also note that there are already two proceedings on foot (VID73/2017 and VID74/2017) in which you make claims against Mr Vrsecky pursuant to s 178 of the Bankruptcy Act 1966. It is not apparent why it is necessary to commence a third proceeding involving the same parties in respect [of] the same legislative provision.

Paragraph [10] of the application states that you:

[Claim] that the Respondent, Peter Vrescky, failed to protect property at [the applicant’s address] which had vested in him from loss or damage and failed to reinstate the property;

Substantially the same matters were the subject of proceeding VID58/2017 brought by you against Mr Vrescky. Paragraph [1] of the application filed in that proceeding stated that you:

[Apply] pursuant to section 178 of the Bankruptcy Act 1966 (Cth) for an order that the Respondent, Petr Vrescky, do all things required to be done to ensure the re-instatement of the property at [the applicant’s address] prior to its sale.

Proceeding VID 58/2017 was, of course, dismissed by order of Justice Middleton on 2 February 2017.

In these circumstances, I am satisfied that the documents lodged by you on 5 March 2017 comprise an abuse of process. Accordingly, pursuant to r 2.26 of the [Rules] I refuse to accept for filing any of those documents.

9    On 10 March 2017, the applicant responded to the Deputy Registrar’s 9 March 2017 letter. The 10 March 2017 letter asserted that the Deputy Registrar’s view that the 5 March 2017 lodgement was an abuse of process was misconceived, because the documents concerned matters unrelated to those the subject of VID 58/2017, VID73/2017 or VID74/2017 and that the “application when read in conjunction with the supporting affidavit identifies the relevant act, omission or decision with sufficient particularity to allow the [r]espondent to answer”. On 14 March 2017, the Deputy Registrar wrote to the applicant and stated, relevantly, that nothing in the applicant’s 10 March 2017 letter led the Deputy Registrar to a conclusion different to that the subject of his 9 March 2017 decision.

The application for judicial review

10    The applicant, who is self-represented, now seeks judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) of the Deputy Registrar’s refusal to accept for filing the documents lodged on 5 March 2017. The Deputy Registrar’s decision is of an administrative character and was made under an enactment within the meaning of the ADJR Act: see Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222 at [30]-[31]. The Court accordingly has jurisdiction to hear the application for review.

11    The application for judicial review states that the Deputy Registrar’s decision is challenged on the basis that it constituted an improper exercise of power, which would bring the application within the terms of s 5(1)(e) of the ADJR Act. However, no further particulars have been provided as to the specific grounds relied upon.

12    For the purposes of claims under s 5(1)(e) of the ADJR Act, s 5(2) of that Act states:

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.

13    Although Mr Reaper does not refer in his application for judicial review to any of the grounds in s 5(2) of the ADJR Act, I take the application to be put on the grounds that the Deputy Registrar took into account an irrelevant consideration within the meaning of s 5(2)(a) or that the decision is unreasonable within the meaning of s 5(2)(g), essentially because the Deputy Registrar was wrong to say that the substance of Mr Reaper’s new application was the same as matters previously filed (and in one case already dismissed).

14    The Deputy Registrar filed a submitting notice, save as to costs, and played no part in the hearing of the application.

15    By an interlocutory application and supporting affidavit filed 19 April 2017, the applicant seeks summary judgment against the Deputy Registrar pursuant to r 26.01 of the Rules.

The DEPUTY Registrar’s power UNDER R 2.26

16    Rule 2.26 of the Rules states:

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.

17    The Dictionary in Schedule 1 to the Rules defines “Registrar” to mean “the Registrar, a Deputy Registrar or a Deputy District Registrar, of the Court” (paragraph (a)) and “any officer from time to time authorised to perform the duties of a Registrar mentioned in paragraph (a)” (paragraph (b)).

18    In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, the Full Court discussed the purpose and nature of the power conferred by the predecessor to r 2.26, O 46 r 7A. Comparing the form of the rule as originally enacted with the form of O 46 r 7A as then in force, the Court said (at [13]-[15]):

Rule 7A in its original form was inserted in the Rules on 1 February 1983. It then read:

“Abuse of Process

7A.    If a document in any proceeding, including any originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar shall seek the direction of a Judge who may direct him to issue it or to refuse to issue it without the leave of a Judge first had and obtained by the party seeking to issue it.”

The rule was repealed and promulgated in its present form on 1 July 1985 and it reads as follows:

“Abuse of process

7A.    If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him –

(a)    to accept or issue it; or

(b)    to refuse to accept or issue it; or

(c)    to refuse to accept or issue it without the leave of a Judge first had and obtained.”

The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.

19    The current form of r 2.26 is substantively the same as O 46 r 7A of the former Rules: Shaw v Buljan [2016] FCA 829 at [31]. Although r 2.26 contains no reference to a Registrar seeking a direction of a Judge as to whether to accept a lodgement for filing, r 2.27 provides for a document not being accepted where such a direction has been given: r 2.27(e), (f).

Requisite state of satisfaction

20    Rule 2.26 is preconditioned, as were its predecessors, on the Registrar reaching a state of satisfaction as to whether a lodged document constitutes an abuse of process or is frivolous or vexatious. Of the requisite state of satisfaction, Perram J said in Rahman v Hedge [2012] FCA 68 at [6]:

… [r 2.26] 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; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [128]–[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118–9; 9 ALR 481 at 487:

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.

21    Similarly, in Shaw v Buljan [2016] FCA 829 at [32], Charlesworth J observed:

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.

Matters to which regard may be had

22    On the current form of the rule, a Registrar may reach the requisite state of satisfaction by having regard to the “face of the document” (r 2.26(a)) or by reference to “any documents already filed or submitted for filing with the document” (r 2.26(b)).

“On the face of the document”

23    Considering the phrase “on the face” in O 46 r 7A, Sackville J said in Paramasivam v Randwick City Council [2005] FCA 369 at [45]:

The expression ‘on the face’, according to Butterworths Australian Legal Dictionary refers to:

the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation.

There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person’s litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document ‘on its face’.

24    In that case, the Registrar had sought a direction from a Duty Judge of this Court under O 46 r 7A. In seeking the direction, the Registrar attached a memorandum setting sets out a brief history of proceedings previously instituted or sought to be instituted by the applicant. The Duty Judge subsequently endorsed the Registrar’s memorandum and made the direction sought. Determining an application for summary judgment in that case, Sackville J held (at [49]-[50]):

It seems to me that the applicant’s case for judicial review cannot be characterised as hopeless and therefore bound to fail. The memorandum sent by the Registrar states, without any elaboration, that the application and affidavit on their face were an abuse of process or frivolous or vexatious. However, the Registrar enclosed a memorandum which set out some of the applicant’s litigious history. If the Registrar took that history into account in forming an opinion that the application and supporting affidavit constituted an abuse of the Court’s process, he arguably would have taken into account an irrelevant consideration. There is therefore a factual question that needs to be resolved. The applicant is entitled to have the Court determine the question.

The notation made by Jacobson J strongly suggests that his Honour was concerned only with the contents of the application and the affidavit the applicant sought to file. In other words, his Honour seems to have been correctly concerned only with whether the documents on their face constituted an abuse of process. But even if that is so, for the reasons I have given, the applicant still has an arguable case that she is entitled to relief under the ADJR Act.

25    Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; 260 ALR 567 (upheld on appeal in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222), was an application for review of a Registrar’s refusal to accept for filing a notice of appeal, on the basis that the notice was an abuse of process because “it was doomed to fail” (citing Walton v Gardiner (1993) 177 CLR 378). Finding that there was no ground in s 5(1) of the ADJR Act that could assist the applicant, Foster J held (at [42]-[44]):

In the present case, there is no evidence to suggest that the [Registrar] formed the opinion which she did by reference to anything other than the proposed notice of appeal. Indeed, counsel for the first respondent made detailed submissions designed to demonstrate that the proposed notice of appeal was, on its face, clearly an abuse of the process of the court. Those submissions were based solely on the terms of the proposed notice of appeal. She submitted that the grounds of appeal were largely incomprehensible. Counsel also submitted that the pejorative terms “duress”; “suffering natural justice”; “apprehended bias”; “undue influence”; and “favouritism” were all bandied about in the proposed notice of appeal without any proper foundation. In the proposed notice of appeal, the applicant also sought to incorporate oral arguments made before the Federal Magistrate in an entirely impermissible way.

There is a great deal to be said for the arguments advanced by counsel for the first respondent in support of the proposition that the Registrar’s decision was plainly correct. But the first respondent does not need to go that far. The language of O 46 r 7A(1) requires the Registrar to form the opinion that the document presented for filing “on its face” is “an abuse of the process of the court or is frivolous or vexatious” (the words are “if the document appears to the Registrar … to be”) (Emphasis added). That opinion must be honestly and actually formed. It is the appearance to the mind of the Registrar of the requisite circumstances which enlivens the power to reject a document for filing. The Registrar must form that opinion reasonably (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; 178 ALR 421; 65 ALD 1; [2001] HCA 17 at [73] (p 532) and the cases referred to in footnote 52 on p 532 of the report). This latter requirement must not be used as a back door means of carrying out a merits review of the relevant decision.

In the present case, there is no evidence upon which I could, let alone should, make a finding that the [Registrar] did not actually and honestly form the opinion which she expressed in her letter to the applicant dated 7 July 2009. The terms of the proposed notice of appeal itself provide a reasonable basis for the formation of that opinion.

“Any documents already filed or submitted for filing with the document”

26    Charlesworth J considered the construction of r 2.26(b) of the Rules in Shaw v Buljan [2016] FCA 829. In that case, the question of construction arose in the context of the Court considering whether it was open to a Registrar, in reaching the requisite state of satisfaction in respect of a document lodged in a proceeding, to consider documents already filed in that proceeding, in addition to documents filed as part of the lodgement the subject of the Registrar’s decision. Resolving the question turned on the meaning of “already filed” in sub-rule (b).

27    Relevantly, her Honour stated (at [54]-[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 [the applicant’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.

(Emphasis added.)

28    Thus, when determining whether a particular lodgement constitutes an abuse of process or is frivolous or vexatious, a Registrar may have regard to documents already filed in the proceeding in which the document in question is lodged. However, regard may not be had to documents already filed in a different proceeding (SZVCP v Cho [2017] FCA 310 at [27]-[28]; citing with approval Shaw v Buljan [2016] FCA 829 at [55]) or to documents previously not accepted by a Registrar for filing in the same proceeding: SZVCP v Cho [2017] FCA 310. The latter was recently held by Markovic J in SZVCP v Cho [2017] FCA 310 to involve taking into account irrelevant considerations.

CONSIDERATION

29    In substance the new application contemplates an action in damages against the trustee arising out of the execution of the warrant of possession.

30    It seems to me that the Deputy Registrar’s decision was made on two bases: the first, that, on the face of the documents constituting the lodgement, the lodgement was an abuse of process because it did not “identify the relevant acts, omission or decision pursuant to which s 178 [was] said to be enlivened”; the second, that, having regard to both the terms of the documents constituting the lodgement and documents filed in other proceedings – namely, VID73/2017, VID74/2017 and VID 58/2017 – the lodgement was an abuse of process because it sought to re-agitate matters already before, or dispensed with by, the Court.

31    The first basis for the Deputy Registrar’s decision is authorised by r 2.26(a). While, having carefully considered the terms of the new application it seems to me likely that another decision-maker may have formed a different view as to the sufficiency of the particulars provided, there is no evidence before me to support a conclusion that the Deputy Registrar’s view in this respect was not reasonably, honestly and actually formed. Moreover, I do not consider that that aspect of the Deputy Registrar’s decision was unreasonable in the legal sense.

32    There is some debate as to whether the test for unreasonableness at common law is broader than that in s 5(2)(g) of the ADJR Act: see SZVCP v Cho [2017] FCA 310 at [30]-[41] and the cases there cited. I am not satisfied that either standard of unreasonableness is met in this case. The Deputy Registrar’s finding that the lodgement did not “identify the relevant acts, omission or decision pursuant to which s 178 [was] said to be enlivened” cannot, in my view, be characterised as so unreasonable that no reasonable decision-maker would have arrived at it (within the language of s 5(2)(g) of the ADJR Act). Nor was the finding “sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop CJ.

33    The second basis for the Registrar’s decision would need to be supported by r 2.26(b), given that the terms of the documents constituting the lodgement do not themselves reveal the matters raised in the other proceedings, nor do they refer to those proceedings at all. Accordingly, in order to have formed the view that the documents were an abuse of process because they sought to re-agitate matters previously or otherwise litigated before the Court, the Deputy Registrar would have to have had regard to documents other than those constituting the lodgement. Moreover, as the documents constituting the lodgement would have, if accepted, constituted an originating application in a new proceeding, there were no other documents filed in the proceeding to which the Deputy Registrar could have had regard. It seems to me, therefore, that the only way in which the Deputy Registrar could have formed a view that the application sought to re-agitate matters already raised before the Court was to have regard to documents filed in other proceedings. Such documents were beyond the scope of the material to which the Deputy Registrar can have regard under r 2.26(b). Accordingly, the Deputy Registrar erred, by taking into account irrelevant considerations in considering Mr Reaper’s litigation history in this Court, including in respect of VID58/2017, VID73/2017 or VID74/2017, for the purposes of determining whether to accept for filing the documents lodged on 5 March 2017.

34    I should also note, for completeness, that I have carefully considered two of the previous applications made to this Court (VID73/2017 and VID74/2017), to which the Deputy Registrar referred in his 9 March 2017 letter, including in the context of ruling on those applications: see Reaper v Vrsecky (Trustee), in the matter of Reaper [2017] FCA 948. Having done so, it seems to me sufficiently clear that the matters that Mr Reaper sought to raise in his new application have not been the subject of any of the many actions which Mr Reaper has previously brought against the trustee in this Court.

Conclusion

35    The power of the Court to review a decision of a Registrar is obviously important because, without that power, the making of legitimate claims in proceedings in which a party asks a Judge of this Court to exercise the judicial power of the Commonwealth could be stymied by administrative action. That is particularly so where the document in question would, if accepted, constitute an originating application.

36    For the reasons given above, I am satisfied that the Deputy Registrar erred in refusing to accept the documents lodged on 5 March 2017 for filing. In so finding, the Court says nothing about the merits of Mr Reaper’s claims. What, if anything, is to become of the application must await another day.

37    In SZVCP v Cho [2017] FCA 310, Markovic J considered (at [46]) that, having found a decision of the Registrar to be an improper exercise of the power conferred by the r 2.26 of the Rules, it would not be appropriate for the Court to make an order directing the Registrar to accept the document for filing. I agree. The Court will order that the Deputy Registrar’s decision to refuse to accept for filing the documents lodged by the applicant on 5 March 2017 be set aside and refer the documents the subject of that decision to the Registrar (as defined in the Rules), not being the Deputy District Registrar who made the relevant decision, for further consideration.

Associate:

Dated:    21 August 2017