Federal Court of Australia

Ferdinands v Registrar Parkyn [2020] FCA 1675

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed on 3 July 2020 is dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    This is a judgment on an application for an extension of the time in which the applicant may commence proceedings for the review of a decision of a Registrar refusing the acceptance of documents for filing.

2    Rule 2.26 of the Federal Court Rules 2011 (Cth) (the FCR) provides for circumstances in which a Registrar may refuse to accept a document for filing:

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.

3    It is established that a decision of a Registrar exercising the power conferred by r 2.26 is an administrative decision amenable to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act): Satchithanantham v National Australia Bank [2010] FCAFC 47, (2010) 268 ALR 222 at [49]-[50]; Nyoni v Murphy [2018] FCAFC 75, (2018) 261 FCR 164 at [22]-[23], [41]; McDonald v Federal Court of Australia [2017] FCA 1216 at [56]. The application which the present applicant wishes to commence is an application under s 5 of the ADJR Act.

Factual setting

4    On 1 May 2020, the applicant, who is unrepresented, lodged several documents with the Court for filing. These included an originating application for judicial review in which the proposed respondents were The Honourable Darren Chester MHR, Minister for Veterans’ Affairs and Minister for Defence Personnel in the Australian Government and the Honourable John Gardner MLC, the Minister for Education in the Government of South Australia. I will refer to the subject matter of the proposed proceedings in more detail shortly. For present purposes it is sufficient to note that the applicant wished to have this Court review the “failure” of the two respondents to halt the Australian Army Cadet Scheme in State schools in South Australia.

5    In addition to the originating process, the applicant sought to file a letter addressed to the Registrar dated 28 April 2020, an unsigned and unexecuted affidavit of his own with a number of annexures, a document purporting to be notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) and an interlocutory application.

6    The applicant had sought the filing of the documents using the Court’s eLodgment system.

7    By a letter dated 4 May 2020, the Registrar (Mr Parkyn) informed the applicant that, pursuant to r 2.26 of the FCR, he was unable to accept the documents for filing. After setting out the terms of r 2.26, the Registrar said:

I am satisfied having considered the documents you have sought to file that they are on their face frivolous and vexatious. It would constitute an abuse of the process of the Court if they were accepted for filing.

8    The effect of s 11(1)(c) and s 11(3)(iii) in the ADJR Act is that the applicant was required to commence his application for judicial review within 28 days of the date on which the Registrar’s decision was furnished to him, or within such further time as the Court may allow.

9    In the present case, the Registrar’s decision under r 2.26 was provided to the applicant on 4 May 2020. That meant that the application for review should have been commenced by 1 June 2020. The applicant did not lodge his application for an extension of time until 3 July 2020. Accordingly, he needs an extension of time of 32 days in which to commence the application for judicial review.

10    The application for an extension of time names a single respondent, namely, Mr Parkyn, the Registrar who made the decision which the applicant wishes to impugn. Mr Parkyn has filed a submitting notice in relation to the application for the extension of time.

11    The applicant filed an affidavit of service on 27 July 2020 in which he deposed that he had “via electronic transfer of documents to [a] recognised email address” served his application for judicial review and supporting documents on the Australian Government Solicitor at 101 Pirie Street, Adelaide and had “out of common courtesy and respect” also informed the Crown Solicitor of the State of South Australia at 10 Franklin Street, Adelaide, via email. Neither Mr Chester nor Mr Gardner have sought to be joined to the application for the extension of time or otherwise sought to be heard on it.

12    By email correspondence to the Court on 24 August 2020, the applicant informed the Court that he wished to have the application for an extension of time determined on the papers. That is to say, the applicant did not seek a hearing in which oral submissions could be made.

13    Accordingly, I have proceeded on that basis. The documents to which I have had regard in determining the application for the extension of time are these:

(a)    the application for the extension of time filed on 3 July 2020;

(b)    the applicant’s affidavit made on 3 July 2020 together with the annexure;

(c)    the draft originating application for judicial review in respect of which the applicant seeks the extension of time;

(d)    the applicant’s affidavit of service;

(e)    the applicant’s affidavit of 28 August 2020;

(f)    the documents which the applicant lodged for filing with the Court on 1 May 2020, as outlined above; and

(g)    the applicant’s written submissions of 27 July 2020.

Relevant principles

14    The principles on which the Court acts in considering applications for an extension of time in which to commence proceedings are well settled, having been canvassed in a number of decisions, including Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-9; Lovett v Le Gall (1975) 10 SASR 479 at 485. The principal matters to which the Court will usually have regard include:

(a)    the length of the extension of time sought by the applicant;

(b)    the explanation for the matter not having been commenced within the prescribed time;

(c)    the prejudice to the respondent if an extension of time is allowed;

(d)    the prejudice to the applicant if the extension of time refused which usually includes consideration of the potential merit of the proposed proceedings; and

(e)    matters bearing upon the interest of justice more generally, including the purpose and rationale of limitation of time provisions.

15    The last of these matters was discussed by the High Court in some detail in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1986) 186 CLR 541.

16    I will address these matters in turn.

The length of the extension required

17    As noted, the applicant seeks an extension of time of 32 days. This is a not insignificant period, being a little over the length of the period prescribed by s 11 of the ADJR Act. That is to say, the applicant seeks twice the usual period allowed for commencement of applications of the kind he proposes. It is to be kept in mind that the Parliament selected a limitation period of 28 days as being appropriate to promote the interests of justice: Brisbane South at 553.

The explanation for the applicant’s delay

18    The applicant attributes the delay in commencing the application for judicial review of the Registrar’s decision to difficulties which he experienced in complying with the requirements of the Court’s eLodgment system and to his inability to attend the Registry in person by reason of the restrictions imposed in consequence of the COVID-19 pandemic.

19    The applicant has not descended into any detail about the claimed difficulties nor provided any material to support the claimed difficulties in using the eLodgment system nor any detail of his communications with the Registry. I accept readily that restrictions due the COVID-19 pandemic have been in force at material times and may have caused some disruption to the applicant’s ability to file documents. I note, however, that the applicant was able to lodge the documents for the proposed proceedings against Mr Chester and Mr Gardner via eLodgment on 1 May 2020 (that is, also during the period of the COVID-19 pandemic) so it is not readily apparent why he should not have been able to file the subject judicial review proceedings within the prescribed period of 28 days.

20    Accordingly, at the least, the applicant’s explanation appears incomplete.

The prejudice to the respondents

21    I propose to proceed on the basis that there is no identifiable prejudice to the respondents, especially as they have not yet become involved in the proceedings.

The prejudice to the applicant

22    The identified prejudice to the applicant if the extension of time is not granted will be his inability to pursue the proposed application for judicial review of the decision of the Registrar of 4 May 2020. However, whether that will result in material prejudice turns very much on the merit of that proposed application, a matter which I will address separately. It is sufficient to say at this point that if it can be seen at this stage that the proposed proceeding has little prospect of success, any prejudice to the applicant by the refusal of the extension of time will be slight.

The interests of justice

23    There are no particular matters which call for consideration, other than those bearing upon the Registrar’s characterisation of the proposed proceedings as frivolous, vexatious or as constituting an abuse of the process of the Court.

The underlying merit in the application for judicial review

24    The documents filed by the applicant do not particularise the grounds contained in s 5 of the ADJR Act on which he relies in his proceedings for review of the Registrar’s decision. In fact, although the applicant states in the application for an extension of time that he seeks the extension in order to apply for review under the ADJR Act, he does not otherwise refer to the ADJR Act in the application or in his supporting affidavit.

25    The grounds on which the applicant will seek judicial review of the Registrar’s decision, if granted the extension of time he seeks, are set out in his draft originating application for judicial review:

1.    The Registrar erred in determining that rule 2.26 of Federal Court Rules 2011 applied to section 62, 62A, 62B,62C and 62D Defence Act 1903 (Cth) and that the issues were frivolous or vexatious.

2.    The Registrar erred in determining that rule 2.26 of Federal Court Rules 2011 applied to the court's interpretation of the word 'cadet' and 'voluntary' within the Defence Act 1903 (Cth) and that the issues were frivolous or vexatious.

3.    The Registrar erred in determining that rule 2.26 of Federal Court Rules 2011 applied to section 7 of the Education Act 1972 (SA) and that the issues were frivolous or vexatious.

4.    The Registrar erred in determining that rule 2.26 of Federal Court Rules 2011 applied to the court's interpretation of the word 'good government' within section 51 of the Constitution Act 1901 (Cth) and that the issues were frivolous or vexatious.

5.    The Registrar erred in determining that rule 2.26 of the Federal Court Rules 2011 applied to sections 180, 181, 182 and 183 of the Corporations Act 2001 (Cth) when assessing the conduct of (1) the Minister for Defence Force Personnel and (2) Minister for Education (SA).

6.    The decision of the Respondent is ultra vires as he does not have authority or power to determine the entire-and-complete-merits of the case rather his power is to (sic) structure of a case and elements of a case that is the peripheral issues of a case such as jurisdiction, parties to proceedings, Commonwealth law Acts and rules of the court inter alia he has no power to determine pleadings, legal arguments, case law or interpretation of the Constitution.

7.    The Respondent has discretion and has not exercised his discretion correctly within section 51 of the Constitution for ‘good government’.

8.    The Respondent has power pursuant to rule 3.01 of the Federal Court Rules, namely:

[Rule 3.01 is set out in full]

9.    The Respondent erred in determining that rule 2.26 of the Federal Court Rules 2011 applied to Defence Act 1903 (Cth) and that the issues were frivolous or vexatious.

10.    The Respondent has misconstrued and misinterpreted the words “frivolous” and “vexatious”.

11.    The Respondent erred in determining that rule 2.26 of the Federal Court Rules 2011 applied to the court’s interpretation of the word ‘cadet’ and ‘voluntary’ within the Defence Act 1903 (Cth) and that the issues were frivolous or vexatious.

12.    The Respondent erred in determining that rule 2.26 of the Federal Court Rules 2011 applied to Education Act 1972 (SA) and that the issues were frivolous or vexatious.

13.    The Respondent erred in determining that rule 2.26 of the Federal Court Rules 2011 applied to the court’s interpretation of the word ‘good government’ within the Constitution Act 1901 (Cth) and that the issues were frivolous or vexatious.

26    It is the potential merit of these grounds which must be assessed in order to determine whether the applicant will be prejudiced by the refusal of an extension of time.

27    On my understanding, each of the applicant’s proposed grounds may be characterised as attempts to invoke s 5(1)(f) of the ADJR Act, namely, that the Registrar’s decision involved an error of law; alternatively, an attempt to invoke s 5(1)(b), namely, that his decision was not authorised by r 2.26; or alternatively again, an attempt to invoke s 5(1)(e), namely, that the Registrar’s decision was an improper exercise of the power conferred by r 2.26.

28    With due respect to the applicant, the grounds in his proposed proceedings suggest that he may be labouring under a misapprehension as to the operation of r 2.26, of the nature of the power it vests in Registrars, and of the effect of the Registrar’s decision of 4 May 2020.

29    As was pointed out by the Full Court in Nyoni v Murphy, r 2.26 exists to assist the Registrar to maintain the efficient operation of the Registry. It reflects a requirement, in the furtherance of the interests of the administration of justice, that there be compliance with procedural requirements before an application is brought before a Judge of the Court and before other parties are required to deal with a proceeding, at [33]. See also Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. As the Full Court explained further in Nyoni v Murphy:

[37]    For reasons we have given, the power conferred by r 2.26 is not a judicial power being exercised under s 35A(1) of the Federal Court Act. Under r 2.26, the refusal of acceptance of the document means that the matter is not brought forward for any adjudication.

[38]    In those circumstances, a Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious ...

(Emphasis added)

30    It is accordingly not to be expected that, in considering whether to accept the applicant’s documents for filing, the Registrar embarked upon a consideration of substantive matters of the kind which the applicant’s grounds seem to suppose. It would be a matter of considerable surprise for a Registrar of the Court to so misconceive the operation of r 2.26 as to engage in substantive determination of the issues in a proposed proceeding before the proceedings were even accepted for filing. There is no indication that the Registrar did so especially as the Registrar did not seek any submissions from the applicant as would be expected before any substantive determination. Instead, it is more natural to understand that the Registrar made the kind of administrative evaluation to which the Full Court referred in [38] in Nyoni v Murphy.

31    When this is understood, there is no difficulty in concluding that several of the applicant’s proposed grounds have no apparent merit. By way of example, the Registrar did not, as the applicant’s grounds suppose, determine that r 2.26 of the FCR applied to s 62-62D of the Defence Act 1903 (Cth); did not determine that r 2.26 applies to the Court’s interpretation of the word “cadet” and “voluntary” within the Defence Act; did not determine that r 2.26 applies to s 7 of the Education Act 1972 (SA); did not determine that r 2.26 applies to the interpretation of the word “good government” within s 51 of the Australian Constitution; and did not determine that r 2.26 applies to ss 180-183 of the Corporations Act 2001 (Cth) when assessing the conduct of the two Ministers. Nor did the Registrar determine that the issues which the applicant sought to raise were frivolous or vexatious. The Registrar made no such assessments at all. All the Registrar did was to apply r 2.26 to the documents by which the applicant sought to commence the proceedings on 1 May 2020.

32    For this reason alone, proposed Grounds 1-5, 9 and 11-13 have no apparent merit.

33    This leaves Grounds 6-8 and 10 in the proposed proceedings. Ground 6 has no apparent merit because, for the reasons just given, there is no indication that the Registrar did purport “to determine the entire-and-complete-merits” of the applicant’s proposed proceedings.

34    Proposed Ground 7 does not assist the applicant because the Registrar was not purporting to exercise a power bestowed by s 51 of the Australian Constitution.

35    Ground 8 does no more than recite r 3.01 of the FCR. It does not assist the applicant because the Registrar was not purporting to exercise a power bestowed pursuant to r 3.01.

36    As to proposed Ground 10, the Courts have generally declined to attempt precise definitions of the terms “frivolous” and “vexatious”. A matter may be frivolous if it does not warrant serious attention and vexatious if, objectively considered, it is likely to cause the incurring, unreasonable expense and delay. But close definition is not desirable. It is appropriate instead to refer to aspects of the proceedings which the applicant sought to commence against the two Ministers. They were described on their face as proceedings for judicial review under s 39B of the Judiciary Act and s 5 of the ADJR Act. The applicant sought relief under both s 39B and s 5 in respect of “decisions” made by both Ministers. He did not seek to distinguish between the two provisions in respect of the relief which he sought. This makes it sufficient to consider the requirements for an application under the ADJR Act.

37    Section 11(1) of the ADJR Act requires that an application in this Court for review is to be made in the manner prescribed by the FCR and “set out the grounds of the application”. It is to be expected that, in the case of applications under ss 5 and 6 of the ADJR Act, the grounds required by s 11(1)(b) will incorporate one or more of those specified in those sections. An applicant is expected to identify the particular grounds invoked under s 5 or s 6 for the application for judicial review and to do so with some conciseness so as to indicate with clarity to the respondent(s) and to the Court the particular matters relied upon.

38    In contexts in which an appeal lies only on a question of law, it has been held that the notice of appeal should state with sufficient precision the question of law involved. For example, in Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [62(2)], the Full Court said that the statement of the question of law with sufficient precision is a matter of great importance to the efficient and effective hearing and determination of appeals from the Administrative Appeals Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). See also Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50].

39    In my view, similar reasoning is applicable when s 5(1)(f) of the ADJR Act is sought to be invoked. The same may be said in respect of each other ground of review for which s 5(1) of the ADJR Act provides.

40    The applicant’s proposed proceedings against the two Ministers did not meet this minimum standard. The applicant used Form 66 in the FCR for his proposed proceedings. This was appropriate because Form 66 is the Form prescribed by r 31.01(1) for applications under the ADJR Act. However, the grounds stated in the proposed application comprise some 92 paragraphs. There are then a further 27 paragraphs under the heading “Grounds of review”. These grounds are expressed discursively and, although the applicant purports to invoke s 5 of the ADJR Act, are not linked to the various grounds contained in s 5 (despite the applicant’s verbatim recitation (with some repetition) of that section in [17] of the Grounds). It is possible that, somewhere within this large number of paragraphs, a question has, or questions of law have, been identified but if so, and with due respect to the applicant who has prepared the document himself, they are well submerged. By itself this would make the proposed proceedings vexatious.

41    There are other fundamental difficulties.

42    An application for judicial review, whether made under ss 5, 6 or 7 of the ADJR Act, lies (relevantly) in relation to a “decision to which this Act applies”. That expression is defined in s 3(1) of the ADJR Act:

decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a)    under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b)    by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c)    a decision by the Governor-General; or

(d)    a decision included in any of the classes of decisions set out in Schedule 1.

Note:    Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.

(Emphasis in the original)

43    It is accordingly an ordinary expectation that an application under s 5 will identify the decision which is the subject of the proposed review and will identify the elements giving it the character of a “decision to which this Act applies”. For the reasons which follow, the applicant’s proposed proceedings against the two Ministers did not satisfy this minimum standard. In fact, subject to two qualification, it is not even clear that the applicant seeks relief in respect of a “decision” at all.

44    The application commences by stating its subject matters as:

The Applicant applies to the Court to review the failure of the First Respondent and the Second Respondent to decide to halt the Australian Army Cadet Scheme being taught in State schools in South Australia.

(Emphasis added)

45    Thus, it is apparent that the applicant has selected in Form 66 the alternative applicable for applications under s 7 of the ADJR Act, that is, failures to make a required decision.

46    If the applicant does make his application under s 5 of the ADJR Act, he does not identify the decision he seeks to have reviewed, or the enactment under which it is said to have been made. This omission is particularly acute in the case of Mr Gardner because the Education Act to which the applicant does refer in some places is an enactment of the Parliament of the State of South Australia. It is accordingly not within the definition of an “enactment” in s 3(1) of the ADJR Act.

47    If the applicant intended making his application under s 7(1) of the ADJR Act, then it was necessary for him to identify the required elements for a review under that provision. This meant that he had to identify the duty to which each Minister was subject and the matters said to constitute the “unreasonable delay”. The applicant did not do either.

48    Moreover, it is plain on the face of the documents that much of the relief which the applicant proposed seeking by his application went beyond the proper scope of an application for judicial review. For example, his claim for an order that the proposed first respondent comply with obligations imposed by ss 180-182 of the Corporations Act (noting that in any event those provisions can have no application to the first respondent in his capacity as Minister of Defence), at [11], and his claim for an award of general damages against both respondents, at [12].

49    Further again, some of the relief sought is plainly of a form which the Court would not grant on an application for judicial review. These include his claims for a declaration that:

(a)    the first respondent has been “secretive, evasive and misleading in basic requests for documents, materials and information”, at [5]; and

(b)    that subjects being taught are “actually dangerous, unsafe, hazardous and extremely risky and can produce dangerous (sic) either during programs and subject teaching or effects (sic) later on in adult life including criminal activity or suicide”, at [6].

50    There were accordingly several bases on which the Registrar could, in the proper application of r 2.26, have determined that the documents lodged for filing were on their face frivolous or vexatious or an abuse of the process of the Court.

51    Having regard to all these matters, I am not satisfied that the applicant will suffer any relevant prejudice if the extension of time is refused and he is thereby precluded from having the decision of the Registrar reviewed.

Summary and conclusion

52    Looked at generally, the period of the extension sought by the applicant is not insignificant in the context of the prescribed 28 day limitation period; his explanation for not filing the application within time is not complete; and it does not seem that the matters which the applicant wishes to argue on the review have reasonable prospects of success. In these circumstances, I am not persuaded that the extension of time sought by the applicant should be granted.

53    The application for an extension of time filed on 3 July 2020 is dismissed.

Associate:

Dated:    20 November 2020