FEDERAL COURT OF AUSTRALIA

Collier v Tesoriero [2017] FCA 1497

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review of the decision made by the respondent on 10 August 2017 be allowed.

2.    The decision of the respondent to refuse to accept for filing the originating application and supporting affidavit lodged by the applicant be set aside.

3.    The originating application dated 9 August 2017 and the supporting affidavit of the applicant sworn 9 August 2017 be accepted for filing.

4.    Upon acceptance for filing, the originating application dated 9 August 2017 and the supporting affidavit of the applicant sworn 9 August 2017 be transferred to the Federal Circuit Court of Australia pursuant to rr 27.11 and 1.40 of the Federal Court Rules 2011 (Cth).

5.    There be no order as to the costs of and incidental to this application.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    On 14 August 2017, Ms Marion Louise Collier filed an application for judicial review of a decision of the respondent, Mr Tony Tesoriero, in his capacity as a Registrar of this Court, to refuse to accept for filing an originating application dated 9 August 2017 and supporting affidavit sworn 9 August 2017. As Mr Tesoriero filed a submitting appearance save as to costs, there was no contradictor to the application to review his decision.

2    The reasons for the refusal to accept Ms Collier’s documents for filing were contained in an email sent on behalf of Mr Tesoriero to Ms Collier on 10 August 2017, the same day as the documents were lodged for filing. The email stated that the documents lodged for filing appeared to duplicate other proceedings that were still current and had not been finalised. That description requires some contextual elaboration. The prior proceedings referred to as being current and not finalised were initially commenced in this Court. Those proceedings were transferred to the Federal Circuit Court of Australia by an order made on 16 November 2016 by Flick J. Those remitted proceedings are now the subject of an application for leave to appeal in this Court by Ms Collier in relation to interlocutory decisions made by a judge of the Federal Circuit Court. It is that application for leave to appeal that is expressly referred to in the email sent on behalf of Mr Tesoriero. The remitted proceedings in the Federal Circuit Court have not yet been heard and so also remain current and not finalised. It is the originating application in the remitted proceedings that was apparently seen as appearing to be duplicated by the originating application (and supporting affidavit) rejected for filing.

3    The evidence in support of Ms Collier’s application for judicial review comprised:

(1)    an affidavit sworn by her on 29 November 2017, which was read; and

(2)    a copy of the email sent to her on 10 August 2017 on behalf of Mr Tesoriero, which was admitted into evidence at the hearing of this application.

4    By a combination of Ms Collier’s affidavit and submissions, which may be accepted in a limited way as to factual matters not strictly proven in order to deal with the substance of the present application, the following history of events may be discerned:

(1)    Ms Collier was a customer of Telstra Australia Corporation Limited over many years.

(2)    Ms Collier ceased being a Telstra customer in about October 2017. Her present and proposed proceedings concerned certain events in confined and discrete periods in 2016 and 2017.

(3)    Ms Collier described having some difficulties with Telstra from about June 2011.

(4)    In 2016, Ms Collier wanted to change her plan with Telstra so that her separate Foxtel service became a part of her Telstra service. On her account, that did not go well, for reasons that do not need to be detailed in these reasons. Relevantly, she complains of difficulties she encountered, including allegations of failure of service delivery, expenses and how she was treated by Telstra, and how her complaints were handled by the Telecommunications Industry Ombudsman (TIO). This culminated in her filing an originating application in this Court in 2016 in relation to events that took place in her dispute with Telstra and subsequently with the TIO during the period from April to October 2016. It will be convenient to refer to those proceedings as the 2016 Proceedings.

(5)    Ms Collier estimates that her loss and damage to which the 2016 Proceedings relate could be as much as $10,000. That is not at all precise, but gives a sense of the order of magnitude involved. She also seeks collateral relief, including, it seems, pecuniary penalties. None of this has yet appeared to be the subject of any detailed particulars or pleadings.

(6)    On 16 November 2016, Flick J transferred the 2016 Proceedings to the Federal Circuit Court. Ms Collier advised this Court that, following a series of events in the Federal Circuit Court, including not being able to appear in person due to medical problems, procedural orders that she regarded as being adverse to her interests were made by Judge Dowdy on 17 March 2017. On 29 March 2017, she sought to have Judge Dowdy recuse himself for apprehended bias (or perhaps actual bias). When his Honour refused to do so, Ms Collier sought leave to appeal in this Court from that recusal decision and from the adverse procedural orders. That application was heard on 27 October 2017 by Farrell J, exercising the appellate jurisdiction of this Court as a single judge. Her Honour reserved that decision and allowed the parties time to file additional submissions.

(7)    In the meantime, a separate dispute had been brewing between Ms Collier and Telstra concerning her NBN service, and other issues to do with her landline and mobile services. Again, it is not necessary to descend into the detail of what is alleged to have transpired. It suffices to say that the events that Ms Collier complains about, and seeks to litigate, took place in the period from about April to August 2017. It was those separate matters that caused her to wish to bring proceedings against Telstra, and against two of Telstra’s employees, but not against the TIO. It will be convenient to refer to those prospective proceedings as the Proposed 2017 Proceedings.

(8)    Ms Collier estimates that her loss and damage to which the Proposed 2017 Proceedings relate could be as much as $7,000. Again, that is not at all precise, but gives a sense of the order of magnitude involved. Again, she also seeks collateral relief, including, it seems, pecuniary penalties. This has not been the subject of any detailed particulars or pleadings, although some detail is contained in the affidavit that she unsuccessfully sought to file in support of her originating application in this Court on 10 August 2017.

5    It seems that at some time during the course of appearances in the 2016 Proceedings in the Federal Circuit Court, including during a case management hearing in this Court before Gleeson J and in the hearing of the application for leave to appeal to this Court before Farrell J, the subject matter of the Proposed 2017 Proceedings was raised. Ms Collier’s preferred outcome would have been to add this additional claim arising from alleged events in 2017 to the 2016 Proceedings. However, Ms Collier says she was told that she would need to have permission to do that, noting that she and Telstra were common to both disputes but the remaining respondents/proposed respondents were different. She candidly conceded that no application for leave to amend the originating application for the 2016 Proceedings (transferred to the Federal Circuit Court) was ever made in writing, either formally or informally.

6    Ms Collier formed the view that the best, and perhaps only, course open to her was to commence separate proceedings. It is neither necessary nor desirable to attempt to determine whether, ultimately, Ms Collier’s grievances with Telstra in 2016 and 2017 should be litigated as part of the same proceedings, as two different proceedings heard together, or as two different proceedings heard separately. That will be a matter for the Federal Circuit Court to determine. What matters is that, as she wanted to have the 2016 proceedings transferred back to this Court, she decided to seek to commence the Proposed 2017 Proceedings in this Court.

7    During the hearing of this application, I informed Ms Collier that it was unlikely that her bid to have the 2016 Proceedings transferred back to this Court would be acceded to, given the subject matter of her complaint and the amounts of money involved. I further informed her that if I were to grant her application and allow her originating application for the Proposed 2017 Proceedings to be filed in this Court, I would almost certainly order the transfer of those proceedings to the Federal Circuit Court. While that is not her preferred outcome, she appeared to accept my view that her dispute was a matter appropriately dealt with by a judge of the Federal Circuit Court, rather than this Court. In the end, Ms Collier seeks to have both the 2016 and 2017 disputes dealt with by a single judge in a single registry of the same Court, preferably in Canberra because she now lives relatively close to Canberra. I indicated to Ms Collier that registry transfers of that kind were a matter for the Federal Circuit Court.

8    Before proceeding to a determination of this application, it should be observed that the first two paragraphs of the originating application for the 2016 Proceedings and the first two paragraphs of the originating application for the Proposed 2017 Proceedings are substantially identical. Neither contains any dates or any other basis for differentiation. A number of aspects of the originating application for the Proposed 2017 Proceedings are different from those in the originating application for the 2016 Proceedings, including Ms Collier now wishing to seek relief against two Telstra employees whom she names as respondents for the first time. However, it was understandable that registry staff would regard the originating application for the Proposed 2017 Proceedings as appearing to duplicate the originating application for the 2016 Proceedings, given the almost identical terms of the first two paragraphs of the documents.

9    It was not for registry staff to have to tease out nuanced differences between the existing and proposed proceedings when the opening paragraphs of the two originating applications were practically identical and there was no clear statement explaining the difference to be found without delving into the details. However, having heard Ms Collier, it is clear that the events complained of in the two originating applications occurred in different years, as well as there being a difference between the existing and proposed additional respondents other than Telstra. Despite that difference, and therefore understandable error in the reasons given for refusing to allow the originating application for the Proposed 2017 Proceedings to be filed in this Court, those proceedings do not belong in this Court. As both the 2016 and Proposed 2017 proceedings involve dual jurisdiction of this Court and the Federal Circuit Court, and both Courts are legally capable of hearing the matter, that is not a proper basis to refuse to allow Ms Collier to file her application in this Court. However, once filed, the Proposed 2017 proceedings should be transferred to the Federal Circuit Court.

10    The better course would have been for Ms Collier either to commence the Proposed 2017 Proceedings in the Federal Circuit Court, subject to meeting the requirements for commencing proceedings in that Court, or to seek formal leave to amend the 2016 Proceedings in that Court so as to add the additional causes of action and parties that arose in 2017. However, Ms Collier could not be compelled to do either.

11    It follows that the application for judicial review must be allowed and the decision of Mr Tesoriero to refuse to accept the originating application for the Proposed 2017 Proceedings in this Court must be set aside. Once the filing of any such proceedings is complete, they should be transferred to the Federal Circuit Court pursuant to rr 27.11 and 1.40 of the Federal Court Rules 2011 (Cth).

12    The problem underlying this application for judicial review was created by the terms of the originating application sought to be filed, which did not adequately differentiate it from the originating application for the 2016 Proceedings. Accordingly, there should not be any order in relation to the costs of and incidental to this application, if any were incurred.

Associate:

Dated:    15 December 2017