FEDERAL COURT OF AUSTRALIA

Somasundaram v Luxton [2020] FCA 1076

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The applicant, Amara Somasundaram, seeks review of the decision of a District Registrar and National Judicial Registrar of this Court pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules) to refuse to accept documents for filing on the basis that the proposed proceeding constitutes an abuse of process. The proposed proceeding is a defamation claim by the applicant against the Honourable Philip Misso, a judge of the County Court of Victoria, and also against the State of Victoria, based in remarks made in a judgment of that Court (the proposed defamation proceeding).

2    For the reasons I explain the application must be dismissed.

The facts

3    The proposed defamation proceeding arises from remarks made in the judgment of Misso J dated 15 May 2018 in Somasundaram v Department of Education and Training & Ors (Ruling) [2018] VCC 649 (the Ruling). Relevantly, his Honour said (at [9]), when summarising the applicant’s claim:

The Statement of Claim alleges:

•    That the plaintiff was a teacher employed by the Department of Education and Training.

•    In paragraphs 6-18, the plaintiff alleges that the other defendants conspired to damage her professional reputation (“the conduct”).

•    In paragraph 6, she alleges that some of that conduct resulted in her becoming “mentally damaged”. In paragraph 7, she alleges that she then went on to WorkCover. She particularised the conduct that resulted in the mental damage in paragraphs 8 to11, and in particulars subjoined to paragraph 11.

…

(Emphasis added.)

His Honour went on to summarily dismiss the applicant’s claim on the basis that the pleaded cause of action was untenable.

4    The applicant appealed the summary dismissal of her claim to the Victorian Supreme Court of Appeal. In Somasundaram v Department of Education and Training [2018] VSCA 318 at [1]-[10] (Maxwell P, Almond and Macauley AJJA) the Court of Appeal summarised the history of the dispute as follows:

[1]    The applicant, Ms Somasundaram, is a teacher at a Victorian government school. She is employed by the Secretary of the respondent Department (‘Department’), under the provisions of the Education and Training Reform Act 2006.

[2]    In November 2010, Ms Somasundaram made a written complaint to the Regional Director of the Department, claiming that:

…there has been bullying, harassment, discrimination and unprofessionalism against me since 2008 and it is still continuing.

On 24 December 2010, the Regional Director advised Ms Somasundaram that her complaint had been investigated and had been determined to be without substance.

[3]    Subsequently, Ms Somasundaram made a complaint of discrimination and victimisation to the Victorian Equal Opportunity and Human Rights Commission. She also made a WorkCover claim, based on the psychological effect on her of the alleged bullying and harassment. The claim was accepted and Ms Somasundaram received statutory compensation. Ms Somasundaram was absent from work between June 2011 and November 2013.

[4]    On 23 January 2015, the Department terminated Ms Somasundaram’s employment. In February 2015, she brought an application for relief from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009. In July 2015 that application was upheld. The Fair Work Commission held that the dismissal was both unjust and unreasonable. In October 2015, the Commission ordered that Ms Somasundaram be reinstated.

[5]    In July 2017, Ms Somasundaram commenced the proceeding in the County Court which gives rise to the present application. Her originating motion named the Department and 16 individuals as defendants. The cover sheet of the motion contained this statement:

NATURE OF CLAIM: Conspiracy to Damage Plaintiff’s Professional Reputation.

The attached statement of claim pleaded the fact of the 2010 complaint and alleged that:

From 2011 Department personnel started to conspire to damage the plaintiff’s professional reputation.

[6]    During September and October 2017, there was correspondence between the Department and Ms Somasundaram, and with the County Court, about whether the statement of claim disclosed a cause of action. Ms Somasundaram was invited to consider re-pleading her statement of claim and ― at the request of the Court ― the Department agreed to fund her to obtain independent advice from counsel about her claim. As a result of the advice received, Ms Somasundaram commenced a separate proceeding in the Federal Court under the ‘adverse action’ provisions of the Fair Work Act 2009.

[7]    Ms Somasundaram’s position throughout was that there was no need to re-plead. Her contention in the Court below, and again in this Court, was that she has a valid cause of action in tort against the defendants, namely, the tort of conspiracy to injure by unlawful means. She contends that all of the elements of that tort are pleaded in her statement of claim.

[8]    There having been no amendment to the statement of claim, the Department brought on a strike out application. Having had lengthy written submissions from Ms Somasundaram, and having heard argument from her and from counsel for the Department, the judge upheld the application and ordered that the proceeding be dismissed. It is from that order that Ms Somasundaram now seeks leave to appeal.

[9]    For reasons which follow, we would refuse leave to appeal. In short, there was an incurable defect in the claim which Ms Somasundaram sought to bring. She alleged that the ‘unlawful means’ element of the tort was established by the failure of the Department to treat her complaint of November 2010 as a ‘protected disclosure’ within the meaning of the Whistleblowers Protection Act 2001.

[10]    The complaint made by Ms Somasundaram could only have attracted the provisions of that Act if she had been alleging some form of ‘improper conduct’ within the meaning of that Act. On no view of her allegations of bullying and harassment did the alleged conduct answer the statutory definition. Accordingly, the claim which Ms Somasundaram clearly identified as the claim she wished to bring was untenable as a matter of law, and the judge was correct to dismiss it.

(Footnotes omitted.)

5    Although dismissing the appeal, the Court of Appeal said that Misso J had made two errors which, while “immaterial”, gave the applicant a legitimate cause to complain. The Court said (at [29]):

At one point, his Honour described Ms Somasundaram as having claimed that she had been ‘mentally damaged’. As she correctly pointed out, she did not make that allegation. Instead, her complaint was that it had been falsely stated by the defendants that she had been ‘mentally damaged’.

(Footnotes omitted.)

6    Armed with the Court of Appeal’s finding that Misso J had erred when he stated in the Ruling that she had claimed to have been “mentally damaged”, on 14 May 2019 the applicant sought to file an originating application and statement of claim in this Court, alleging defamation by his Honour and by the State of Victoria. The proposed defamation proceeding alleged that the Ruling as a whole and particularly the third dot point in [9] conveyed the imputation that the applicant “does not function mentally 100%”, which was alleged to have caused injury to the applicant’s credit, character, reputation and profession and have brought her into public disrepute, scandal, odium and contempt.

7    By letter dated 15 May 2019 District Registrar and National Judicial Registrar Luxton (the Registrar) informed the applicant that he refused to accept the documents for filing, and his reasons for doing so. The letter relevantly stated:

I have formed the view that your claim would, if filed, almost inevitably be doomed to fail. There are two reasons for this.

Firstly, the publications which you complain of were made in the course of judicial proceedings. Accordingly, the defence of absolute privilege would apply, giving the respondents a complete defence to your claim.

Secondly, even if the defence of absolute privilege did not apply, it would appear that the Court does not have jurisdiction to hear and determine your claim. This is because you do not allege that any publication has occurred in either the Australian Capital Territory or the Northern Territory.

For the reasons set out above, I am satisfied that the documents lodged by you comprise an abuse of process. Accordingly, I refuse to accept those documents for filing pursuant to r 2.26 of the Federal Court Rules, and they are enclosed by way of return to you.

8    On 20 May 2019 the applicant again sought to file the originating application and statement of claim, this time accompanied by notice of a constitutional matter under section 78B of the Judiciary Act 1903 (Cth). The notice of constitutional matter stated, without correction:

The Applicant gives notice that the proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.

Nature of Constitutional Matter

The proceeding involves a matter rising under the interpretation of section 51 of the Constitution. Section 51 of the Constitution states:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxiv)    the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

(xxv)    throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States.

Facts showing that section 78B Judiciary Act 1903 applies

1.    The defamatory matter was published in a Summary Judgment Ruling by the County Court of Victoria.

2.    Section 27(1) of the Defamation Act 2005 provides for a statutory defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

3.    Section 27(2b) of the Defamation Act 2005 states that matter is published on an occasion of absolute privilege if it was in the course of the proceedings of an Australian court which includes judgements.

4.    The Defamation Act does not qualify the occasions when the absolute privilege might not apply.

5.    Publishing incorrect matter that is defamatory in judgements/rulings does not conform to section 51 of the Constitution.

6.    Therefore, the Federal Court by way of section 39B of the Judiciary Act 1903 has the original jurisdiction to hear matter involving the interpretation of the Constitution.

9    By letter dated 4 June 2019 the Registrar informed the applicant that he had again refused to accept the documents for filing, and gave reasons for doing so. The letter relevantly stated:

I have considered your documents. The comments made in my letter to you dated 15 May 2019 continue to apply to your originating application and statement of claim.

To the extent that you now seek to raise an issue arising under the Constitution, or involving its interpretation, I note that no such issue is referred to in either the originating application or statement of claim. The only document which makes any reference to the Constitution is your notice of a constitutional matter. Paragraph [5] of that document states:

Publishing incorrect matter that is defamatory in judgements/rulings does not conform to section 51 of the Constitution.

Reference is also made to s 51(xxiv)-(xxv) of the Constitution, which provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxiv)    the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

(xxv)    the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

Having considered these provisions, and the document as a whole, I [am] unable to identify any question of substance arising under the Constitution, or involving its interpretation.

For the reasons set out above, I am satisfied that the documents lodged by you comprise an abuse of process. Accordingly, I refuse to accept those documents for filing pursuant to r 2.26 of the Federal Court Rules, and they are enclosed by way of return to you.

The Registrar’s power under Rule 2.26

10    Rule 2.26 of the Rules provides:

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.

Rule 2.27(d) provides that a document will not be accepted for filing if a Registrar has refused to accept the document.

11    In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]-[16] (Lee, Whitlam and Jacobson JJ), the Full Court discussed the purpose and nature of the power conferred in the predecessor to r 2.26, being Order 46 r 7A of the former Federal Court Rules. Their Honours held 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.

No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power…

12    At [19] the Court held:

It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction….

13    In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia and Others [2008] FCAFC 162; (2008) 170 FCR 426 at [19] (Gray, Branson and Besanko JJ), the Full Court said:

…s 35A(2) [of the Federal Court of Australia Act 1976 (Cth)] authorises a party to a proceeding to apply to the Court for review of the exercise of a registrar of any of the powers of the Court under s 35A(1). Where it is an originating process that is not accepted for filing the person concerned will not be a party to any proceeding at the relevant time. Even where this issue does not arise, the authority vested in a registrar by O 46 r 7A to refuse to accept a document, whether pursuant to a direction of a judge or of his or her own motion under O 46 r 7A(1), is not a power of the Court under s 35A(1). None of the powers identified in s 35A(1)(a)-(g) relates to the acceptance of documents for filing. Nor does any of the powers prescribed by O 46 r 7AA (see s 35A(1)(h)).

14    Relevantly, r 2.26 is in substantively the same form as the former O 46 r 7A, except that r 2.26 does not provide that a Registrar may seek a direction of a judge as to whether to accept a document for filing. The power exercised by a Registrar under r 2.26 is substantively the same power as existed under O 46 r 7A, that is, a power of an administrative nature: Rahman v Hedge [2012] FCA 68 (Rahman) at [5] (Perram J); Shaw v Buljan [2016] FCA 829; (2016) 153 ALD 252 (Shaw) at [31) (Charlesworth J).

15    Although no appeal lies to the Court pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (FCA) and r 3.11 of the Rules, the administrative nature of a decision under r 2.26 attracts the operation of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act).

16    Alternatively, another avenue of review of a Registrar’s decision to refuse to accept documents for filing is pursuant to r 3.04. It provides as follows:

A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.

In Cristovao v Registrar Scott [2013] FCAFC 92 at [17] (North, Siopis and McKerracher JJ) the Full Court described this as “the most obvious avenue of review” in such cases. The applicant did not take this route but nothing turns on that.

The application for judicial review

17    Rule 31.01 of the Rules provides, inter alia, that a person who wishes to apply to this Court for an order under s 11(1) of the ADJR Act must file an originating application in accordance with Form 66 of the Rules.

18    On 24 June 2019 the applicant, who is self-represented, filed an originating application in the form of Form 66. The application relevantly states:

The applicant applies to the Court to review the decision of the [sic] Tim Luxton [of] 4 June 2019.

Details of claim

1.    The Applicant believes that she has the right to find legal remedy against those responsible for falsely publishing that the Applicant had asserted in her statement of claim that she had become “mentally damaged”. The immunity given to the publishers in the Defamatory Act 2005 under absolute privilege is not constitutional as it overlooks misrepresentation of facts in the Rulings. The Applicant’s originating application should have been accepted without delay.

Grounds of application

1.    Breach of natural justice

2.    The failure to take into account the legal remedy for the Applicant and Jurisdiction of Courts (Cross-vesting) Act 1987.

Orders sought

1.    The Applicant's originating application, statement of claim and the notice of constitutional matter under section 788 of the Judiciary Act 1903 to be accepted.

2.    To hear and determine the proceedings without delay in the interests of justice as per section 788 (5) of the Judiciary Act 1903.

3.    If the second interlocutory order sought cannot be granted, request the Attorney - General of the Commonwealth to consider authorising payment of an amount to the Applicant in respect of costs arising out of adjournment of the cause.

19    In an affidavit sworn 24 June 2019 the applicant expanded on the grounds of the application.

20    Neither the originating application or the affidavit refer to the ADJR Act in terms, but the application is in accordance with Form 66, titled Originating Application for Judicial Review, and relies on an alleged breach of natural justice. It is appropriate to treat it as an application for judicial review under the ADJR Act. There is no indication in the material that the application is made pursuant to r 3.04.

21    Section 5(1) and (2) of the ADJR Act relevantly provide:

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

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

…

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

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

…

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

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

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

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

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

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

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

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

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

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

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

22    I will take the application to be put on the grounds that in deciding to refuse to accept the proposed defamation proceeding for filing, the Registrar:

(a)    breached the rules of natural justice in connection with the making of the decision (s 5(1)(a));

(b)    improperly exercised the power conferred by the FCA (s 5(1)(e));

(c)    made a decision that involved an error of law, whether or not the error appears on the record of the decision (s 5(1)(f)); or

(d)    made a decision that was otherwise contrary to law (s 5(1)(j)).

23    The Registrar filed a notice submitting to any order the Court may make in the proceeding, except as to costs.

The applicant’s submissions

24    The applicant filed written submissions and consented to the proceeding being determined on the papers.

25    Amongst other things, the applicant submitted that:

(a)    the Commonwealth of Australia Constitution Act 1900 (Cth) (the Constitution) is like no other Act in Australia, it was passed by way of citizens voting for it, and it is important to consider not only the intention of the framers of the Constitution but also the expectation of Australian citizens in its interpretation;

(b)    section 51 of the Constitution gives authority to the Federal Parliament to make laws for “peace, order and good government of the Commonwealth” in relation to 39 specified subject matters, which should be understood as having played a major part in citizens deciding to vote for the Constitution;

(c)    the framers of the Constitution debated the relevance of “peace, order and good government” and deemed it necessary for that phrase to be included in s 51: Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901), 512-515. Even when the Australia Act 1986 (Cth) was enacted, the phrase “peace, order and good government” was considered essential and was included in s 2;

(d)    Australian citizens would have expected the phrase “peace, order and good government” to define and limit the scope of the powers granted to the State Courts and therefore contribute to a standard that would be maintained throughout Australia;

(e)    the Constitution includes both express and implied rights. Pursuant to s 51(xxiv) of the Constitution and the significance of the fact that Federal Parliament is constrained to lawmaking for “peace, order and good government”, Australian citizens have an implied right:

(i)    to benefit through service and execution of State Court process that is just; and

(ii)    to benefit through execution of State Court judgments that is just.

            Under the Constitution citizens are assured of fair access to justice and fair access to the courts;

(f)    section 118 of the Constitution provides that full faith and credit shall be given throughout the Commonwealth to “the laws, the public Acts and records, and the judicial proceedings of every State”. Pursuant to s 51(xxv) of the Constitution Australian citizens have an implied right to be protected from being unfairly affected by the flawed execution of processes and inconsistent execution of judgements in the courts of the States. They would have been confident that the Constitution granted the Australian people the right to benefit from execution of processes that are just and the right to benefit from execution of just judgements in the courts of the States; and

(g)    pursuant to s 5 of the Constitution, it is “binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”. Any immunities that are granted under State laws are invalid if they are inconsistent with the express and implied rights under the Constitution.

26    Based in these contentions the applicant submitted that the Defamation Act 2005 (Vic) (Defamation Act) is “bad in law”. She contended, amongst other things that:

(a)    the purpose of the Defamation Act is to enact in Victoria provisions to promote uniform laws of defamation in Australia. The objectives in s 3 of the Act include:

(i)    to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance; and

(ii)    to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter

(b)    section 27(2)(b)(iii) of the Defamation Act provides a defence of absolute privilege for the publication of a defamatory matter in any judgment, order or other determination of the court or tribunal;

(c)    the Defamation Act took the common law of defamation and enacted it as it stood at a particular point of time. Under the common law the law is “ever evolving” on a case-by-case basis, which allows for “corrections” to be made “when the legal system is not operating correctly”;

(d)    the rationale for the defence of absolute privilege is to ensure the effective performance of judicial, legislative or official functions. The defence of absolute privilege under the common law is not as rigid as it is under the Defamation Act, which leaves open the possibility that the privilege might be misused, as it “grants authority to a certain category of people in certain situations to act anyway they like with the guarantee of immunity”;

(e)    the defence of absolute privilege under the Defamation Act gives “total immunity” to a judge and the State of Victoria for publishing a defamatory matter in a judgment without there being any inquiry into the reasonableness of their actions in so publishing. Assuring total immunity from defamation in judicial proceedings is repugnant to the Constitution as such a law is not for “peace, order and good government” and ignores the right to benefit in execution of processes and judgment that is just;

(f)    the Defamation Act would not be repugnant to the Constitution if it required the publisher of defamatory matter to have actively taken reasonable steps to verify the accuracy of the published material;

(g)    a law which grants immunity for misrepresenting facts in judicial proceedings without taking reasonableness into consideration would have been abhorrent to Australian citizens who voted for the Constitution, and it would undermine the confidence in the Australian Courts; and

(h)    as the Constitution binds the courts, judges and people of every State the absolute privilege defence in the Defamation Act is unconstitutional and invalid.

27    The applicant submitted that four principal issues are relevant for the Court to determine whether her proposed defamation proceeding should be accepted for filing, being:

Whether the term “peace, order and good government” in the [Constitution] was significant to the Australian citizens who voted for the Constitution?

Whether section 51 xxiv & xxv of the Constitution provide implied rights in regard to processes, judgments, records and judicial proceedings in the Courts of the States?

Whether the Constitution provides immunity to those who do not abide by the Constitution?

Whether the Defamation Act is bad in law in relation to the Constitution?

Consideration

28    The questions for the Court to decide are not as they were stated by the applicant.

29    The power in r 2.26 is conditioned upon the Registrar reaching a state of satisfaction that the document sought to be filed constitutes an abuse of process or is frivolous or vexatious. As Perram J said in Rahman at [6]:

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 [128]–[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118–9:

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.

30    To similar effect Charlesworth J explained in Shaw at [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…

31    The applicant failed to establish that the Registrar erred as alleged.

32    First, it is the Registrar’s satisfaction regarding the requisite circumstances which enlivens the power to reject a document for filing: Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; (2009) 260 ALR 567 at [43] (Foster J) (upheld on appeal in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222 (Marshall, Cowdroy and Buchanan JJ)). In an application for judicial review such as the present case it is for the applicant to establish that the Registrar’s decision, for example: (a) breached the rules of natural justice; (b) was an improper exercise of power; (c) involved an error of law; or (d) was otherwise contrary to law. The power of the Court in an application under the ADJR does not extend to merits review.

33    As I have said, the documents the Registrar refused to accept for filing comprised a proposed defamation proceeding against a Judge of the County Court and the State of Victoria, for remarks made in a judgment of that Court. The Registrar considered that because the publication of the alleged defamatory matters were made in the course of judicial proceedings the defence of absolute privilege would apply, giving the respondents a complete defence to the claim. On that basis he concluded that the proposed defamation proceeding “would, if filed, almost inevitably be doomed to fail”, and therefore constituted an abuse of process.

34    Section 27(2)(b)(iii) of the Defamation Act provides a defence of absolute privilege for the publication of a defamatory matter in a judgment of a court or tribunal, as the applicant accepted. The defences under the Defamation Act are in addition to common law defences or exclusion of liability available apart from the Act: Defamation Act, s 24(1). Section 9A of the County Court Act 1958 (Vic) provides that a judge has, in the performance of his or her duties as a judge, the same protection and immunity as a judge of the Supreme Court.

35    Pursuant to s 27 of the Defamation Act such a defence is to be pleaded, which is a matter for the defendant to the action, but such a defence is additional to the defences available under the common law. The common law provides that no action lies against judges for acts done in the course of hearing or deciding cases which come before them; that is, there is judicial immunity from suit. The principles concerning judicial immunity from suit were discussed by the New South Wales Court of Appeal in Rajski v Powell (1987) 11 NSWLR 522 (Rajski) (Kirby P, Hope and Priestley JJA).

36    In Rajski the defendants sought summary dismissal of an action brought against the first defendant, the Honourable P.E. Powell, a judge of the Supreme Court of New South Wales, and against the Attorney General for NSW, in relation to acts of Powell J when hearing a proceeding involving the plaintiff. The Court held that a judge of the Supreme Court is immune from civil liability for acts done in the exercise of his or her judicial function or capacity: at 538 per Priestly JA (with whom Hope JA agreed)

37    Priestley JA said the following (at 538-539):

The submissions of the defendants are supported by authorities stretching from the Year Books (see Floyd v Barker (1607) 12 Co Rep 23; 77 ER 1305) to the present day. The need for and recognition of judicial immunity have been upheld or acknowledged in the House of Lords (eg Miller v Hope (1824) 2 Sh Sc App 125, Everett v Griffiths [1921] 1 AC 631), the Privy Council (eg Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385) and the High Court of Australia (eg Gibbons v Duffell (1932) 47 CLR 520 at 524, 525 and 528 and Cabassi v Vila (1940) 64 CLR 130 at 139 and 140).

The rule for which the defendants contend in the present case has in past decisions been stated very shortly. Typical is what was said by Aickin J in an unreported decision, Durack v Gassior (High Court of Australia, 13 April 1981);

“…No action may be brought under our legal system against judges for acts done in the course of hearing or deciding cases which come before them.

References to the numerous authorities can be found in a recent New South Wales case: Moll v Butler (1985) 4 NSWLR 231 at 238-244, Halsbury's Laws of England, 2nd ed, vol 26 pars 592-593 at 276-279; 4th ed, vol 1, par 210 at 199-200 and Sirros v Moore [1975] QB 118. The many authorities all support the way the matter was put by Aickin J in Durack in regard to cases where no question of the judge's jurisdiction arises. There is some room for argument about the way in which the test should be stated when there is a supportable allegation that the judge was without jurisdiction to do the act complained of: the different ways by which the members of the English Court of Appeal in Sirros dealt with this latter question in all reaching the same result in that case illustrate the different views.

In reference to the last sentence in the passage cited, his Honour recognised differences in the authorities regarding the position where a judge knowingly acts outside jurisdiction. But that is not of relevance to the present case as the applicant made no suggestion that Misso J was acting outside jurisdiction, let alone knowingly.

38    President Kirby expressed the principle of judicial immunity in the following terms (at 534-535):

Although it has not been the subject of a binding holding of the High Court of Australia, a number of cases in that Court make it plain that the principle [of judicial immunity] is accepted in this country to be as full and ample as it has been stated to be in England: see, eg, Gibbons v Duffell (1932) 47 CLR 520 at 524 and Cabassi. Indeed, it is a principle which appears to be fundamental to all the jurisdictions of the common law. As has been demonstrated, it is clearly accepted and repeatedly applied in England. It has been applied in New Zealand: see Nakhla. It is settled law in Canada: see, eg, Clendenning and Board of Police Commissioners for City of Belleville (1976) 75 DLR 3d 33; Morier v Rivard (1985) 23 DLR (4th) 1. It is also clearly established by many cases in the United States of America both in Federal and State courts: see Corpus Juris Secundum, vol 48A, par 86. It is perhaps most clearly stated in that country in the words of Warren CJ in Pierson v Ray 386 US 547 at 553-554 (1967):

“…Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v Fisher, 13 Wall 335 (1872). This immunity applies even when the judge is accused of acting maliciously and corruptly, and it is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences. (Scott v Stansfield LR 3 Ex 220, 223 (1868), quoted in Bradley v Fisher at 350). It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.”

Attempts to modify, qualify or limit the scope of the immunity so conferred are made against the background of the enduring and universal features of the principle so established. Although exceptions have been provided, immunity has been consistently upheld, save in the most exceptional cases where a judicial officer acts knowingly in the clear absence of all jurisdiction: see, eg, Stump v Sparkman. As pointed out by Woodhouse J in Nakhla “jurisdiction” in this context means the judicial power to hear and determine a matter. It does not mean the manner, method or correctness of the exercise of that power. It is a word, in the context, to be construed broadly in order to ensure that the issue of judicial immunity does not come to depend upon the determination of fine questions of jurisdiction: cf Williams v Sepe 487 F 2d 913 (1973); Jacobson v Schaefer 441 F 2d 127 (1971) and Rankin v Howard 633 F 2d 844 (1980); cert den 451 US 939.

39    In Gallo v Dawson (1988) 82 ALR 401 at 402-3, Wilson J cited Lord Denning MR in Sirros v Moore [1975] 1 QB 118 at 132 as follows:

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages.

The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

40    It is an abuse of process to commence an action in circumstances where such proceedings cannot possibly succeed: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393. I can see no error in the Registrar’s decision in deciding that the proposed defamation proceeding constituted an abuse of process.

41    Second, there is nothing in the materials to indicate a breach of natural justice as alleged in the first ground of the application. It is true that the Registrar did not give the applicant the opportunity to make submissions or provide a hearing before deciding to refuse to accept the documents, but r 2.26 does not require the Registrar to receive submissions or hold a hearing. A Registrar must reach the requisite state of satisfaction having regard only 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)).

42    As the Full Court noted in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 232 FCR 361 at [84]-[86] (Allsop CJ, Middleton Foster JJ) the requirements of natural justice vary according to the circumstances. Their Honours said:

The common expression of the fundamental structure of the rules of natural justice or procedural fairness is the so-called “bias rule” and the “hearing rule”: that a person may not be a judge in his or her own cause; and that a person should be given a fair hearing...

It is essential to recall, however, as the learned authors (Sir Michael Mustill and Mr Boyd) said in The Law and Practice of Commercial Arbitration in England (1982) at p 252, that the expression “natural justice” (and thus the expression “the rules of natural justice”) must be approached with caution because the phrase tends to suggest that there exists a package of procedural rules which must always be observed, when, in fact, the requirements of natural justice vary according to the circumstances. This does not deny the ready structure of available rules to guide judgment, but it reminds one that the underlying premise is not one or more black-letter rules, but the notion of fairness.

The required content of fairness in any particular case will depend on context: constitutional, statutory and human, on all the circumstances of the case. The fairness required relates principally to the procedure employed in dealing with the party in question. That may involve the exercise of state or governmental power over the individual, who may be vulnerable and powerless, or a great corporation. The terms of any statute will be critical. The common element is that, generally speaking, the exercise of power should be fair. That exercise will always have a human context. That is why, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at 14, fairness is not an abstract concept, but essentially practical. The concern of the law is to avoid practical injustice. Fairness is normative, evaluative, context-specific and relative.

(Emphasis added. Citations omitted.)

43    Also, as Perram J said in Rahman at [8], the Registrar was not obliged by notions of procedural fairness or natural justice to indicate to the applicant in advance of the decision that he was contemplating refusing her permission to file the proposed defamation proceeding. An administrative decision-maker is not obliged to give a running commentary on their current state of mind.

44    Having regard to the terms of r 2.26 I am not persuaded that the Registrar breached the rules of natural justice in deciding to refuse to accept the proposed defamation proceeding for filing.

45    Third, there is no merit in the second ground of the application which alleged that the Registrar failed to take into account the legal remedy for the applicant under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Cross-Vesting Act). The applicant’s argument appears to be that, having regard to the Registrar’s conclusion that it appeared that the Court does not have jurisdiction to hear and determine the proposed defamation proceeding, the Registrar should have accepted the documents for filing and then cross-vested the proposed defamation proceeding to the Supreme Court of Victoria.

46    The Registrar’s reasons in his letter dated 15 May 2019, which were picked up in his letter dated 4 June 2019, said that “even if the defence of absolute privilege did not apply, it would appear that the Court does not have jurisdiction to hear and determine your claim. This is because you do not allege that any publication has occurred in either the Australian Capital Territory or the Northern Territory.” Absence of jurisdiction was a secondary and separate reason for rejecting the documents for filing.

47    I doubt the correctness of the Registrar’s view that Court does not have jurisdiction to hear and decide the proposed defamation proceeding. In Oliver v Nine Network Australia Pty Ltd [2019] FCA 583, Justice Lee discussed the Federal Court’s jurisdiction to hear defamation proceedings (at [6]-[18]) and noted the Full Court decision of Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451 (Bennett, Perram and Robertson JJ) which held that the Court had original jurisdiction over a proceeding that would be within the jurisdiction of the Australian Capital Territory or Northern Territory Supreme Courts. The statement of claim in the proposed defamation proceeding does not identify how or where publication occurred, let alone whether it occurred in the Australian Capital Territory or the Northern Territory, in circumstances where the Ruling was published online it seems likely that it was published throughout Australia and that the Court would have jurisdiction. Upon the applicant making a bona fide non-colourable allegation in this Court that attracted jurisdiction, then the Court would be seized with jurisdiction to deal with the controversy and would retain that jurisdiction: Prasad v Google LLC [2020] FCA 67 at [18] (Wheelahan J).

48    But even if the Registrar’s conclusion regarding jurisdiction is incorrect, no error was demonstrated in the Registrar’s conclusion that judicial immunity from suit meant that the proposed defamation proceeding was bound to fail, and was thus an abuse of process. The Registrar’s conclusion regarding jurisdiction was a secondary basis for the decision to refuse to accept the documents for filing and to the extent he erred in that regard it made no difference to the outcome.

49    Nor is there force in the applicant’s contention that it was appropriate for the Registrar to accept the proposed defamation proceeding for filing and then transfer the proceeding under the Cross Vesting Act. The Registrar did not have power to himself transfer a proceeding under the Act, and his decision to refuse to accept the documents for filing meant that there was no proceeding “pending in the Federal Court”, and thus no proceeding for the Court to consider transferring pursuant to s 5(4) of the Act.

50    Fourth, the applicant’s submissions based on the Constitution are difficult to follow but appear to boil down to contentions that the defence of absolute privilege under s 27(2)(b)(iii) of the Defamation Act in relation to the publication of a defamatory matter in a judgment of a court or tribunal is contrary to the Constitution on two bases. First, that s 27(2)(b) of the Defamation Act is enacted outside of the power granted to the Federal Parliament by the Constitution because it is inconsistent with s 51 which empowers parliament to enact laws for “peace, order and good government”. Second, that what occurred to her is unfair and under the Constitution there is an implied right to protection from unjust Court processes. There is no merit in either basis.

51    The Registrar’s letter dated 4 June 2019 explained the reasons for his continuing refusal to accept the proposed defamation proceeding for filing. As well as the matters to which he referred in his earlier letter, the Registrar said that the notice of a constitutional matter did not raise “any question of substance arising under the Constitution or involving its interpretation.” He was therefore satisfied that the proposed defamation proceeding constituted an abuse of process and that it was appropriate to refuse to accept the documents for filing.

52    Again, it is for the applicant to establish that the Registrar erred in the exercise of the power under r 2.26. Having regard to the applicant’s submissions she appeared to contend that the Registrar’s decision was contrary to law or involved an error of law, but she did not make out that contention.

53    A case does not involve a matter arising under the Constitution or involving its interpretation merely because the litigant says so: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (Toohey J). For example, it will not involve such a matter if the asserted constitutional point is frivolous or vexatious or is raised as an abuse of process: Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292 at [14] (French J).

54    There is no substance to the contention that the phrase “for the peace, order and good government” in s 51 of the Constitution imposes limitations on the legislative power of the Victorian or Federal Parliament. In Union Steamship Company of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 at 10 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) the High Court said:

[T]he words “for the peace, order and good government” are not words of limitation. They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony.

55    More recently, Katzmann J observed in Clement v Australian Bureau of Statistics [2016] FCA 948 at [33] (albeit in a different statutory context) that such a constitutional argument is “without substance”. Her Honour said:

The underlying premise of the first point — that [the relevant legislation] is an invalid exercise of the legislative power of the Commonwealth because it is “antithetical to the ‘peace, order and good government of Australia’” — is that the Court has the power to strike down legislation if it concludes that the legislation has this effect. Such a notion was emphatically rejected by all seven justices of the High Court in Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 10.

56    The applicant also contended that the availability of the defence of absolute privilege in relation to the publication of defamatory matters in a judgment of a court or tribunal was inconsistent with the existence of an implied right under the Constitution to protection from unjust Court processes. The applicant submitted as follows:

The ‘citizens’ would have considered the protection from unnecessary judicial proceedings as an implied right in the Constitution to protect the Australian people from being unfairly affected.

She argued that:

The ‘citizens’ would have been confident that the Constitution granted the Australian people the right to benefit from execution of processes that are just and the right to benefit from execution of just judgments in the courts of the States.

57    The applicant did not though rely on an implied right that had previously been accepted by the courts. Rather she submitted that the Court should accept the existence of a hitherto unrecognised implied constitutional right to “protection from unnecessary judicial proceedings”; which protection is said to be contravened if judges are able to rely on the defence of absolute privilege as a defence to defamation proceedings brought in respect of matters published in a judgment.

58    There is no such implied right. First, the applicant contended that the implication arose from the limitations imported by the words “for the peace, order and good government”, but as I have said that contention has no basis. Second, the implication was said to arise from the reasonable expectation of Australian citizens. Such an assertion goes nowhere near providing a sound basis for the Court to draw constitutional implications and recognise such implications as limiting the legislative power of the Victorian or Federal Parliament. Third, the existence of such an implied right is inconsistent with general law authorities going back to the 17th century which provide that no action is maintainable against a judge for anything said or done by him or her in the exercise of a jurisdiction which belongs to him or her.

59    I can see no error in the Registrar’s conclusion that no question of substance arises concerning the Constitution or involving its interpretation.

Conclusion

60    The applicant did not establish that the Registrar erred in deciding to refuse to accept the proposed defamation proceeding for filing pursuant to r 2.26. The application must be dismissed.

Associate:

Dated:    28 July 2020