Federal Court of Australia

Ferdinands v Registrar Parkyn [2020] FCA 1676

ORDERS

THE COURT ORDERS THAT:

1.    The application for review of the Registrar’s decision of 19 August 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    On 14 August 2020, the applicant lodged three documents with the Court Registry for filing. These were:

(a)    an originating application for judicial review;

(b)    an affidavit made by the applicant himself on 14 August 2020; and

(c)    a document entitled “Notice of a Constitutional matter under section 78B of the Judiciary Act 1903”.

2    A Registrar of the Court, acting under r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR), refused to accept the documents for filing. Rule 2.26 provides:

2.26    Refusal to accept document for filing — abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

  (a)    on the face of the document; or

(b)    by reference to any documents already filed or submitted for filing with the document.

3    In his letter of 19 August 2020 to the applicant informing him that the documents would not be accepted for filing, the Registrar set out the terms of r 2.26 in full and continued:

The originating process is a discursive document that does not set out any cogent grounds of review against the named respondent. It appears from the documents that you are seeking to re-litigate criminal proceedings that have already been determined in other Courts. I am satisfied having considered all 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.

4    The applicant then commenced the present proceedings on 24 August 2020. The Registrar is the sole respondent to the proceedings.

5    Although the applicant’s originating application does not say so specifically, I have taken it to be an application for judicial review of the Registrar’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). A number of matters indicate that that is an appropriate understanding of the application:

(a)    the originating process is entitled “Originating application for judicial review” and indicates on its face that it is in the form of Form 66, which is the Form required by r 31.01(1) of the FCR for applications under the ADJR Act;

(b)    the application commences with 10 paragraphs purporting to particularise the applicant’s claim that he is “aggrieved” by “the decision”, this being a requirement for the applicant to have standing to bring the application under s 5(1) of the ADJR Act; and

(c)    it is established that an application pursuant to the ADJR Act is the appropriate means by which a person may seek review of a decision of a Registrar under r 2.26 of the FCR: Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164.

6    The Registrar has entered a submitting appearance.

7    By correspondence to the Court, the applicant requested that the Court determine his present application “on the papers”, that is to say, without conducting an oral hearing. I have proceeded on that basis.

8    For the purposes of determining the applicant’s originating application, I have had regard to the documents identified above, the documents which the applicant lodged for filing and which were rejected by the Registrar, and the Registrar’s letter to the applicant of 19 August 2020.

9    The applicant contends that the decision of the Registrar was ultra vires and had proceeded on a misconstruction of the term “abuse of process”, “frivolous” and “vexatious” contained in r 2.26. Although the originating application indicates that the applicant seeks 15 different forms of relief, it seems in essence that he seeks the setting aside of the Registrar’s decision and the issue of an order that the Registrar accept the rejected documents for filing.

Factual setting

10    It is appropriate to commence with a brief summary of some background circumstances. For the purposes of this summary, I have mostly relied upon the contents of the documents lodged for filing which were rejected by the Registrar. They are not findings of fact which are independent of the assertions in those documents.

11    Between 1986 and 2001, the applicant was a member of South Australia Police. In 2001, the applicant was charged on summons by South Australia Police on one count of common assault against an arrested person held in the City Watch House. He was convicted and fined. The applicant’s appeal against his conviction was dismissed by a judge in the Supreme Court of South Australia. The applicant was dismissed from SA Police by reason of the offence. He then commenced proceedings in the Industrial Court of South Australia seeking relief in respect of that dismissal but it ruled that it did not have jurisdiction in the matter. That decision was upheld in the Supreme Court of South Australia (Ferdinands v Commissioner for Public Employment [2004] SASC 30) and by the High Court: Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130.

12    The applicant continues to be dissatisfied with that outcome. Over the succeeding years, has commenced proceedings in different courts with a view to pursuing his complaints. The applicant has come to believe that he has been the victim of a conspiracy in the criminal and curial processes in and since 2001.

13    On Saturday, 1 August 2020, the applicant wrote to the Honourable Steven Marshall MP, the current Premier of South Australia, at Parliament House, Adelaide. The subject line of the letter was as follows:

Re: Trevor Kingsley Ferdinands – FERDINANDS V POLICE [2001] SASC – Video Tape evidence

14    The letter commenced with a statement of the applicant’s purpose in writing to the Premier:

My purpose in writing is to advise you that I have been seeking for some time the full and complete file including video tape evidence from [the] Attorney General’s Department including Director of Public Prosecutions and Commissioner of Police in [the] State of South Australia.

That file has not been made available to me.

The matters are now bound for the Federal Court of Australia as they involve matters of due diligence pursuant to the Corporations Act 2001 (Cth) to which you are bound by (sic).

15    The letter then went on to request intervention by the Premier so as to facilitate the provision to the applicant of various documents including the video tape of evidence used in his Magistrates Court trial, the personal notes of the Magistrate who heard the trial, the personal notes of the Supreme Court Judge who dismissed the appeal against conviction, as well as other documents. It extended over three pages and it is not easy to summarise its contents succinctly.

16    The applicant concluded the letter by saying:

As Premier you are required to show due diligence and duty of care yet you have refused to. I shall seek to bring this action as soon as possible to determine whether you have breached your due diligence provisions and duty for (sic) care provisions under the Corporations Act 2001 (Cth).

I hope to hear from you within 14 days with all evidence thereafter I shall file judicial review in the Federal Court of Australia.

17    So far as the materials lodged by the applicant for filing with the Court indicate, the Premier had not made any response to the applicant’s request by 14 August 2020 when the applicant lodged the documents for filing in the Court.

18    The applicant’s proposed proceedings named “Steven Marshall, Premier of South Australia” as the sole respondent and were entitled “Originating application for judicial review”. They purported to be an application under the ADJR Act and commenced by stating:

The Applicant applies to the Court to review the decision of the Respondent that declined to intervene and omitted to make a decision and settle a case out of court.

19    The following “Details of Claim” extended over 279 paragraphs, followed by 12 questions posed under a heading “Questions of Law”, followed by 14 paragraphs under a heading “Answers to Questions of Law”, followed by seven paragraphs under a heading “Grounds of Application”, followed by 14 paragraphs under the heading “Orders sought”.

20    I think it fair to say that all of the orders sought are directed to the applicant’s claim for redress in respect of his dismissal from South Australia Police in 2001 and its consequences.

The function of a Registrar under r 2.26

21    The nature of the power bestowed on a Registrar pursuant to O 46, r 7A of the original Federal Court Rules (the predecessor of r 2.26) was discussed by the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353. The Full Court said:

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

22    This reasoning was applied more recently in Nyoni v Murphy in which the Full Court said:

[33]    The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry … It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend …

…

[38]    [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 …

(Citation omitted and emphasis added)

Consideration

23    In my view, the documents which the applicant sought to have lodged in the Court, and which were rejected by the Registrar, suffered from a fundamental flaw. That is that they did not disclose on their face that this Court has jurisdiction over the matters which the applicant wishes to litigate. The following reasons explain why that is so.

24    Section 5 of the ADJR Act permits a person aggrieved by “a decision to which this Act applies” to bring an application for review of that decision. Section 7 permits applications to be made in respect of some failures by decision-makers to make a required “decision to which this Act applies”.

25    The expression “decision to which this Act applies” is defined in s 3 of the ADJR Act (relevantly) as follows:

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:

…

26    The term “enactment” is defined in s 3(1) to include an Act of the Australian Parliament (other than certain Acts which are presently immaterial). Acts enacted by State Parliaments (other than those listed in Sch 3, none of which is material presently) are not within the definition.

27    There appears to be scope for doubt that the Premier of South Australia has made any “decision” at all which could be the subject of review under the ADJR Act, if that review be otherwise available, but it is neither necessary nor appropriate to consider that question.

28    The more fundamental problem for the applicant is that, assuming the Premier has made a decision, it cannot have been a “decision to which [the ADJR Act] applies”. Each of the Acts under which the applicant was prosecuted and convicted in 2001, and pursuant to which he appealed, was an Act of the South Australian Parliament. I refer in this respect to the Criminal Law Consolidation Act 1935 (SA), the Magistrates Court Act 1991 (SA) and the Supreme Court Act 1935 (SA). Further, each of the Acts regulating the applicant’s position as a police officer is an Act of the South Australian Parliament. I refer in this respect to the Police Act 1998 (SA) and the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). None of the Acts in question is even alleged to be an Act of the Australian Parliament.

29    It seems that the applicant may have been alert to this difficulty because he asserted in the documents rejected for filing by the Registrar that the Premier was bound by ss 180, 181, 182 and 184 of the Corporations Act 2001 (Cth) and, in addition, by s 13 of the Corporations Act. The Corporations Act is of course an enactment of the Australian Parliament. However, if that was the applicant’s intention, it does not avail him as it is plain that those provisions have no application to Mr Marshall in his capacity as Premier of the State of South Australia.

30    Sections 180-184 of the Corporations Act are provisions specifying duties of directors, secretaries, officers and employees of corporations governed by the Corporations Act. The State of South Australia as a polity is not such a corporation. It is a constituent State of the Commonwealth of Australia. The Premier of the State of South Australia is not, in that capacity, a director, secretary, officer or employee of a corporation to which the Corporations Act applies. Sections 180-184 have no application to the discharge by the Premier of South Australia of his functions and responsibilities as Premier. Nor can those provisions have any application to Mr Marshall’s response (whatever it may have been) or, more likely, his non response to the applicant’s letter of 1 August 2020.

31    The applicant’s purported reliance on ss 51(xxiv) and (xxv) of the Australian Constitution does not assist him either. In the first place, the applicant does not point to any decision made (or not made) under either of those placita. In the second place, decisions under placita within s 51 of the Australian Constitution are not within the definition of “decisions to which this Act applies” for the purposes of s 3 of the ADJR Act.

32    More generally, the documents proposed to be filed by the applicant did not disclose a basis on which this Court may have jurisdiction with respect to the conduct of the Commissioner of Police in South Australia, the Magistrates Court of South Australia, or the Supreme Court of South Australia in respect of the applicant’s dismissal as a police officer in 2001, or with respect to conduct of the Premier of South Australia in relation to the applicant’s letter of 1 August 2020.

33    This means that the applicant’s proposed proceedings fail to disclose on their face that they are within the jurisdiction of this Court.

34    Proceedings which are intended to be prosecuted despite not being within the Court’s jurisdiction, are foredoomed to fail and constitute an abuse of the process of the Court. The Registrar was entitled to reach that conclusion.

35    Moreover, the Registrar was justified in exercising the power pursuant to r 2.26 of the FCR to reject the applicant’s proposed proceedings by reason of their prolixity, which gave them a vexatious quality. The prolixity is evident in the length of the proposed application outlined earlier. It is a reasonable expectation that an application under the ADJR Act will state with conciseness the decision sought to be reviewed and identify clearly, with reference to the grounds stated in s 5 of the ADJR Act (or s 6 or s 7 as the case may be) the grounds upon which the review is sought. In the case of an application under s 5(1), the application will identify with precision the particular ground or grounds within that subsection on which the application is made and the manner in which those grounds are said to be engaged.

36    It is plain on their face that the applicant’s proposed proceedings fail to achieve that minimum standard. No error is shown in the Registrar’s conclusion in that respect.

37    For these reasons, I consider that the applicant’s application under the ADJR Act for a review of the Registrar’s decision of 19 August 2020 must be dismissed. That will be the order of the Court.

Associate:

Dated:    20 November 2020