Federal Court of Australia

Frigger v Trott [2021] FCA 18

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), the decision of the respondent notified in his letter of 2 October 2020 to the applicants is set aside with effect from the date of this order.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicants, Mrs and Mr Frigger, have applied under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for review of a decision of the respondent, a registrar of this court, not to accept an originating process and supporting affidavit for filing. The Registrar has filed an appearance submitting to any order the court may make, save as to costs.

2    The Registrar referred to three matters in his letter notifying the applicants of his refusal to accept the documents for filing: firstly, that the documents that the applicants attempted to file appeared to raise issues that had already been dealt with by this court; secondly, that the documents contained material that could be considered scandalous; and, thirdly, that the heading the applicants had given the documents was incorrect. It appears that in relation to the first two of those matters, the applicants' complaint is based on what they say is a failure by the Registrar to give adequate reasons for his decision. The complaint regarding the third matter is that the decision was improper and contrary to law, and an exercise of discretion that was unreasonable and plainly unjust.

3    For the following reasons, the Registrar's decision was not vitiated by any failure to give adequate reasons, or by his observations in relation to the heading of the document. But I have concluded, with respect, that the Registrar took into account a consideration which was irrelevant to the exercise of the power, namely previous proceedings commenced by the applicants in this court, the subject matter of which was not disclosed on the face of the documents that were rejected for filing. Therefore the decision will be set aside.

The documents sought to be filed

4    By the proposed originating process, the applicants sought to commence proceedings against Professional Services of Australia Pty Ltd (PSA), Sandra May Banning and three lawyers, David Lenhoff, Timothy Stephenson and Cameron Eastwood. The remedies sought were damages for harm done to reputation, emotional distress and similar damage, legal costs and losses caused to the applicants' self-managed superannuation fund.

5    The wrongs alleged to give rise to those remedies were malicious prosecution of a proceeding in the Supreme Court of Western Australia and related appeals, abuse of process in PSA's application for the appointment of a provisional liquidator to, and for the winding up of, Computer Accounting and Tax Pty Ltd (in liquidation) (CAT), malicious prosecution of criminal proceedings against Mrs Frigger for an alleged attempt to pervert the course of justice, and malicious prosecution of a means inquiry in the Supreme Court. The originating process also alleged 'breach of warranty of authority' against the lawyers in connection with most of those matters.

6    Each of the applicants was named as a plaintiff. The originating application was said to have been made pursuant to s 90-20 of the Insolvency Practice Schedule, which is Sch 2 to the Corporations Act 2001 (Cth), as well as pursuant to a deed of company arrangement for PSA. The affidavit in support contained a narrative of the facts said to support the relief sought.

7    The documents appear to have been lodged for filing with the registry of this court on around 22 September 2020. The Registrar wrote to the applicants on 2 October 2020 notifying them that he had refused to accept the documents, and explaining why, as follows:

From the content of the above documents it appears they raise issues that already have been dealt with by this Court in previous proceedings commenced by you. In the circumstances it is not appropriate for you to commence fresh proceedings seeking to re-agitate those same issues.

Additionally, I note from your affidavit that some parts of it contain material that could be considered scandalous.

Further, although in the title of your documents it is stated: “In the matter of Computer Accounting & Tax Pty Ltd (in liquidation) (ACN 009 470 491)”, that entity is not named as a party in either document, presumably as you lack standing pursuant to s. 236(2) of the Corporations Act 2001 to bring proceedings on the entity’s behalf or because no leave to bring such proceedings has been obtained pursuant to the requirements set out in s. 237.

Rule 2.26 of the Federal Court Rules 2011 provides that 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.

In accordance with the above rule, I refuse to accept your documents for filing as any proceeding would constitute an abuse of process for the reasons as outlined herein.

It is the decision notified in this letter which the applicants now challenge.

Principles

8    Section 5(1) of the ADJR Act provides that a person who is aggrieved by a decision to which the Act applies may apply to this court or the Federal Circuit Court for an order of review in respect of the decision on any one or more specified grounds.

9    The decision here was made pursuant to r 2.26 of the Federal Court Rules 2011 (Cth). That rule is accurately stated in the penultimate paragraph of the Registrar's letter and it is not necessary to repeat it.

10    A decision by a registrar to refuse to accept a document for filing under r 2.26 is a decision of an administrative character susceptible to judicial review under the ADJR Act: Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; (2009) 260 ALR 567 at [30]-[31] (Foster J), upheld on appeal in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222 at [49]-[50]; Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [32], [41] (Barker, Banks-Smith and Colvin JJ). While Satchithanantham concerned a decision made under the predecessor to r 2.26 in the Federal Court Rules 1979 (Cth) (O 46 r 7A), there is no reason to distinguish the power exercised under that rule from the power exercised by a registrar under r 2.26: Nyoni at [32].

11    In requiring the registrar to be satisfied that the documents filed are an abuse of process or frivolous or vexatious, the rule requires the existence of an opinion held by the registrar which must be honestly and actually formed. The opinion must be reasonable, but that is not a back door means of carrying out a merits review of the decision: Satchithanantham at [43].

12    It is also necessary that the registrar's state of satisfaction is reached on the face of the document or by reference to any documents already filed or submitted for filing with it: r 2.26(a) and r 2.26(b) and SZVCP v Cho [2017] FCA 310; (2017) 250 FCR 225 at [26] (Markovic J).

13    In Paramasivam v Randwick City Council [2005] FCA 369 at [45], Sackville J held in relation to O 46 r 7A:

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

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

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

While Sackville J's ultimate conclusion was that the point was sufficiently arguable in the case before him to mean that summary judgment should not be granted against the applicant, his Honour's statement of principle here is not a tentative one.

14    In r 2.26(b), the reference to documents 'already filed' is a reference to documents filed in the same proceeding, and not to documents already filed in different proceedings: SZVCP at [28]. If a registrar forms the state of satisfaction after taking into account documents filed in different proceedings, he or she will have taken an irrelevant consideration into account. That will mean that the decision is an improper exercise of power under s 5(1)(e) and s 5(2)(a) of the ADJR Act: SZVCP at [43]; Reaper v Luxton [2017] FCA 949 at [33] (O'Callaghan J).

15    As far as giving reasons goes, s 13 of the ADJR Act entitles a person to give notice to a person who has made an applicable decision 'to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision'. But there is no similar entitlement at common law. In Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 662 Gibbs CJ held (with the agreement of the other members of the court) that there:

is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons.

16    While the requirement to give reasons is a normal incident of the judicial process, that does not mean that it is an incident of an administrative process. There is no justification for regarding rules which govern the exercise of judicial functions as necessarily applicable to administrative functions, which are different in kind: Osmond at 667.

17    In Shaw v Buljan [2016] FCA 829; (2016) 153 ALD 252 at [47]-[50], Charlesworth J left open the question whether there is a duty to give reasons which can be implied on a proper construction of r 2.26 itself. But her Honour held that if there is any such duty, it is less burdensome than the statutory duty imposed by s 13 of the ADJR Act and does not entitle a person aggrieved by a decision under r 2.26 to reasons of the kind that might be delivered by a judicial officer of the court.

Consideration

18    The applicants have not specified the sub-paragraphs in s 5(1) of the ADJR Act on which they rely. Their application does, however, allege that the making of the decision was an improper exercise of power, which is a ground recognised by s 5(1)(e). It is relevant to note that s 5(2) provides that the reference in that paragraph to improper exercise of power includes a reference to taking an irrelevant consideration into account in the exercise of a power (s 5(2)(a)) and to an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power (s 5(2)(g)). The originating application also alleges an error of law, which is a ground of review afforded by s 5(1)(f).

19    I ordered this application to be determined on the papers and the applicants have filed written submissions. It is not entirely clear how the grounds of review identified above correspond with those submissions. As I have indicated, the submissions complain that in relation to the first two matters which the Registrar identified in his letter, he has failed to give sufficient details. They do not suggest that this asserted failure is an improper exercise of power or that it involves an error of law. But it could, conceivably, be an allegation of a breach of the rules of natural justice which would engage s 5(1)(a) of the ADJR Act.

20    In relation to the third matter referred to in the Registrar's letter, namely the heading to the documents, the applicants do submit that this involves an improper exercise of power and an error of law. They say that it is an exercise of power so unreasonable that no reasonable person would have so exercised it.

21    I will proceed on the basis that in relation to the first two matters mentioned in the Registrar's letter, the applicants rely on s 5(1)(a) (natural justice) based on what they say is a failure to give adequate reasons and that, in relation to the third matter, they rely on s 5(1)(e) (improper exercise of power) read together with s 5(2)(g) (unreasonableness) and 5(1)(f) (error of law).

Adequate reasons

22    The applicants' submissions proceed on the basis that the Registrar had a duty to give reasons equivalent to the duty of a judge to give reasons for his or her decision. On the principles from Osmond that are stated above, it is clear that this is wrong. Considered purely as a matter of common law, the Registrar had no duty to give reasons and so would not have breached the rules of natural justice had he not given any. And s 5(1)(a) of the ADJR Act does not impose any obligation to observe the rules of natural justice in circumstances where no such obligation otherwise exists: McVeigh v Willara Pty Ltd (1984) 6 FCR 587 at 600 (Toohey, Wilcox and Spender JJ).

23    As to any statutory duty that can be derived from r 2.26 itself, for reasons which Charlesworth J gave in Shaw at [49], I doubt any such duty exists. To those reasons I would add the underlying purpose of the rule, which is to assist the registrars to maintain the efficient operation of a registry: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. It seems inconsistent with that purpose for the rule to require (implicitly) that reasons be given for every decision to reject a document for filing.

24    However, like Charlesworth J, I do not need to reach a conclusion on that question. The Registrar here did give reasons. The applicants' complaint is essentially a lack of particulars. They say that the Registrar did not specify which issues already dealt with by the court are prohibited from being raised in the new proceeding. But the applicants had no difficulty, in the first version of the submissions which they filed, in identifying the proceeding to which the Registrar was alluding (WAD 607 of 2015). That is not changed by the fact that in a subsequent version of the same submission, they removed any reference to that proceeding.

25    In my view the reasons here gave the applicants sufficient indication of why the document had been rejected on the basis of that earlier proceeding. They could assess any similarities (or differences) between the issues raised by WAD 607 of 2015 and those raised by the proposed new proceeding for themselves. In view of the aim of r 2.26 which I have mentioned above, and in the context of the administrative decision which he made, the Registrar had no duty to perform the no doubt laborious task of laying out all the similarities for them.

26    I reach the same conclusion in relation to the Registrar's expressed view that some parts of the affidavit the applicants sought to file contained material that could be considered scandalous. A review of the affidavit makes it obvious enough what the Registrar had in mind. In it, Mrs Frigger asserts, with little or no specific evidence in support, that certain persons 'illegally obtained confidential records of our self-managed superannuation fund from the Australian Tax Office', or made in court 'numerous unsubstantiated and false allegations of wrong-doing against my husband and me', that they engaged in 'malicious prosecution in the pursuit of unjustifiable collateral objectives', and so on. Once again, there was no obligation on the Registrar to perform the laborious task of laying out in his letter everything in the affidavit that he considered to be scandalous.

27    In so far as s 13 of the ADJR Act is concerned, the applicants did give a notice to the Registrar under that section. He declined to provide the reasons sought. He did so because, in his view, s 13(11)(c) and item (f) of Schedule 2 to the ADJR Act meant that there was no obligation under s 13(1) to give reasons for the decision because it was a decision made in connection with the institution or conduct of proceedings in a civil court. The applicants have not sought judicial review or other relief in respect of the Registrar's refusal to give reasons under s 13, so it is not necessary to consider it further.

28    I do not uphold the applicants' challenge based on inadequacy of reasons to the Registrar's decision in relation to the first and second matters he relied on.

The heading to the documents sought to be filed

29    The third matter the Registrar referred to in his letter was that the documents were headed 'In the matter of Computer Accounting & Tax Pty Ltd (in liquidation) (ACN 009 470 491)'. The applicants attack this by submitting that the provisions to which the Registrar referred, ss 236 and 237 of the Corporations Act, do not apply to CAT because it is under external administration. But whether or not that is correct, I do not consider that those provisions are the basis of the concern that is disclosed in that part of the Registrar's letter. His references to those provisions are merely incidental observations as to why CAT is not a party. His real concern is that CAT is named in the heading to the documents when it should not have been.

30    No error of law underlies that concern. Rule 2.1 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) requires the title to documents filed under those rules to be in accordance with Form 1. That form requires the documents to be headed with the following:

IN THE MATTER OF [full name of corporation to which the proceeding relates and, if applicable, the words ‘(in liquidation)’, ‘(receiver appointed)’, ‘(receiver and manager appointed)’, ‘(controller acting)’, or ‘(administrator appointed)’]

ABN or ACN or ARBN: [insert ABN or ACN or ARBN]

31    This raises the question of whether CAT is a corporation 'to which the proceeding relates' within the meaning of that phrase in the form. But there is a broader question, namely whether the proceeding is properly one to which the Corporations Rules apply at all. Unless the court orders otherwise, they apply to a proceeding commenced in this court under the Corporations Act: Corporations Rules r 1.3(1)(a). The originating process which was not accepted for filing purports to invoke s 90-20 of the Insolvency Practice Schedule in that regard. But the function of that section is to authorise certain persons (including, I will assume, the applicants here) to commence proceedings under s 90-15. Section 90-15 confers a broad power on the court to make such orders as it thinks fit in relation to the external administration of the company.

32    The difficulty is that the rejected originating process seeks no order of that kind. It seeks damages against PSA and four individuals, none of whom are the liquidator of CAT. The closest it gets to bearing any relevant relation to the external administration of CAT is in the claim for damages for 'collateral abuse of process in PSA's application for the insolvent winding up' of CAT. But it seeks no direction or other remedy in that regard which bears on CAT or its liquidation. It does not, for example, seek (somehow) to overturn the winding up or to direct the liquidator to take or not to take any step. As best one can tell, it seeks damages for the alleged commission of a tort against five defendants, none of whom are CAT or its external administrator. And nothing else on the face of the documents sought to be filed indicates that the application is one properly brought under the Corporations Act.

33    There is therefore no error of law disclosed in the Registrar's concern that CAT should not be named in the heading to the documents. Nor is that concern unreasonable. I do not uphold the applicants' complaint in relation to that issue.

Consideration of matters not appearing on the face of the documents

34    Given that the applicants are self-represented litigants I consider it appropriate to address another issue which they have not raised, but which does arise on the face of the materials in this proceeding. I have referred above to Paramasivam, SZVCP and Reaper. They indicate that if a registrar forms the necessary state of satisfaction under r 2.26 after taking into the litigious history of an applicant or taking into account documents filed in different proceedings, he or she will have taken an irrelevant consideration into account, which can found judicial review under s 5 of the ADJR Act on the basis that it involves taking into account an irrelevant consideration. I consider that those principles are applicable here.

35    The first reason the Registrar gave for refusing to accept the documents for filing was that it appeared they raised issues that had already been dealt with by this court in previous proceedings commenced by the applicants. It is difficult to see how he could have formed that view without referring to documents filed in those earlier proceedings, or basing it on his own acquaintance with and knowledge of those proceedings as gained in the past. The documents sought to be filed do not describe any issues as having been previously dealt with by this court. I infer that the Registrar must have gained the knowledge on which he relied from some source other than the two documents which were sought to be filed. And as the proceeding had not been commenced at the time, there was no other document 'already filed' within the meaning of r 2.26(b): see SZVCP at [28].

36    It is true that there are references to two previous proceedings in this court in the affidavit of Mrs Frigger which was rejected for filing. One reference is made in the body of the affidavit, the other is found in a deed which is annexed to it. But nothing in the Registrar's letter suggests that his view was formed on the basis of those references. They merely disclosed the existence and matter number of each proceeding. They say nothing about the subject matter or other content of the proceedings. A mere reference to a proceeding by matter number gives no immediate or apparent information as to what the proceeding is about. The Registrar can only have reached the view that he did on the basis of aspects of the litigious history of the applicants which do not appear on the face of the documents he refused to accept here: see Paramasivam at [45].

37    It is true that in Cristovao v Trott [2018] FCA 1605 at [48] Banks-Smith J held that the registrar was permitted to have regard to a decision of the Full Court which was referred to in the document which had not been accepted for filing. But in that case, the document was an interlocutory application which the applicant wanted to bring in the same proceeding as the Full Court decision in question. In endorsing her Honour's reasoning, the Full Court which determined the appeal from her decision said (Cristovao v Registrar Trott [2019] FCAFC 88 at [21]):

We also agree with the observations of her Honour to the effect that, although r 2.26 refers to a finding that is to be made on the face of the documents lodged, the rule clearly permits Registrars to have regard to the content of the file of the Court in relation to the matter in which the document is filed, including any judgment delivered in it. Were it otherwise the Registrars would be denied knowledge of the orders which gave rise to the application. The orders and the fact that they were properly entered inform the context in which the Registrars make their decision: Shaw v Buljan (2016) 153 ALD 252, [55].

Although the registrar can have regard to matters which form part of the immediate context of the document sought to be filed because they are part of the same proceeding, that does not authorise consideration of matters arising in different proceedings, which proceedings are merely referred to in passing in the document.

38    This case is no occasion to consider any broader question as to the extent of background knowledge which may properly inform a state of satisfaction reached on the face of a document for the purpose of r 2.26. Paramasivam, SZVCP and Reaper are authority for the proposition that r 2.26 and its predecessor do not authorise a state of satisfaction to be reached on the basis of documents filed in another proceeding, or of an applicant's litigious history if that does not appear on the face of the documents. I therefore respectfully consider that the Registrar here made an error of the kind referred to in ss 5(1)(e) and 5(2)(g) of the ADJR Act.

Relief to be granted

39    If the error I have identified could not have affected the outcome of the decision, it will not entitle the applicants to the relief they seek: Secretary, Dept of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1; (2013) 209 FCR 215 at [160] and the authorities cited there. I have considered whether that principle applies here, because the Registrar relied on three matters in rejecting the documents for filing, and only one of them is affected by error. If the other two supported his decision independently of the first, it may be that no remedy under s 16 of the ADJR Act should be granted.

40    I have already explained that no error is revealed by the third of the matters, concerning the heading to the documents. I also discern no basis for judicial review of the second matter, namely that the affidavit contained scandalous material. I have already set out certain passages in the affidavit which are arguably scandalous. There are several more, which it is not necessary to set out. It can be an abuse of process to make scandalous allegations without evidence: Chan v Harris (No 2) [2010] FCA 1393 at [68] (Cowdroy J); Zaghloul v Woodside Energy Ltd (No 7) [2019] FCA 818 at [143] (McKerracher J). It is not part of the function of this court to say whether the Registrar was correct on the merits to conclude that the scandalous material rose to the level of abuse of process here (if that is what he did conclude). It is enough to say that this view was reasonably open and involves an evaluation of the facts revealing no error of law.

41    However it is not possible to say with any confidence that each of the three matters on which the Registrar relied truly were independent of each other in the formation of his state of satisfaction for the purposes of r 2.26, and were each sufficient to lead to the decision he made. It may be that the reasons he gave were cumulative, or that the first reason was the decisive one and that the other two were merely additional observations that he wished to make. His appropriately brief letter does not reveal the precise role and weight he gave to each of the considerations. For that reason, I will not refuse relief on the basis that the error in relation to the first matter could not have affected the outcome of the decision.

42    The sole order which the applicants seek in this proceeding is an order that the documents that were rejected be accepted for filing. It is not appropriate to make such an order: see SZVCP at [46]; Reaper at [37]. The court has determined that the decision will be set aside because an irrelevant consideration was taken into account; it has not determined that the decision is incorrect, and has not decided that the documents should be accepted for filing. The only order that is appropriate here is an order setting the decision aside. It will then be for the applicants to lodge the documents again, if they wish, and for the Registrar to consider afresh whether to accept them for filing.

Associate:

Dated:    25 January 2021