Federal Court of Australia

Rana v Registrar Cridland [2021] FCA 848

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is allowed.

2.    The decision of the Registrar on 5 March 2021 refusing to accept the Applicant’s documents for filing is set aside.

3.    If the Applicant seeks an order for costs of the application, he is, by 4 pm on 29 July 2021, to file and serve a written submission, not exceeding three pages, making that application.

4.    Any written submissions by the Registrar in response (not exceeding three pages) are to be filed and served by 4 pm on 5 August 2021.

5.    Subject to any further order, the Court will determine any application for costs on the papers.

6.    In the absence of any written submission from the Applicant filed pursuant to Order 3 above, the parties are to bear their own costs.

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

REASONS FOR JUDGMENT

WHITE J:

1    On 3 March 2021, the applicant lodged an Originating Application and a Statement of Claim for filing in the Court. The respondent, who is a Registrar of the Court, refused to accept those documents for filing.

2    By proceedings commenced on 26 March 2021, the applicant, who does not have legal representation, seeks review, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), of the Registrar’s decision.

3    By an email to my Associate of 15 April 2021, the applicant said that he would like the application dealt with on the papers, that is, without an oral hearing. The Registrar has filed a submitting notice and does not wish to be heard. Accordingly, this judgment is made on the basis of the documents filed in this action together with the documents which the applicant sought to file on 3 March 2021. Specifically, and subject to what I say below, the documents to which I have had regard are:

    the Originating Application filed on 26 March 2021;

    the Statement of Claim filed on 26 March 2021;

    the applicant’s Outline of Submissions filed on 1 April 2021;

    the applicant’s affidavit made on 9 March 2021 but filed on 1 April 2021;

    the Originating Application lodged for filing on 3 March 2021; and

    the Statement of Claim lodged for filing on 3 March 2021.

4    The applicant’s Statement of Claim in the judicial review proceedings filed on 26 March 2021 had attached to it, as “Annexure “A””, a document entitled “Proposed Amended Statement of Claim”, comprising 57 pages. The heading to this document indicates that it is the form of an amended statement of claim in the proceedings which the applicant sought to commence on 3 March 2021. As the applicant seeks review of the Registrar’s decision of 5 March 2021 and this document was not before her when she made that decision, I consider it inappropriate to have regard to it. That is because it was not the subject of the decision being reviewed.

5    The documents in the judicial review proceedings also refer to an interlocutory application, affidavit and genuine steps statement which the applicant says he had lodged for filing (in his proposed proceeding) on 4 March 2021. By the proposed interlocutory application, the applicant sought orders with respect to service of the documents. It is not clear that the Registrar had regard to these documents and I have referred to them only for limited purposes.

The Registrar’s decision

6    In her letter to the applicant of 5 March 2021, the Registrar said (relevantly):

I note the terms of Rule 2.26 of the Federal Court Rules 2011 (the Rules), which states:

2.26 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.

After careful consideration of the Documents, it is not clear that a viable cause of action has been identified that would enliven the jurisdiction of the Federal Court of Australia. In my view the Documents are an abuse of the process of the Court and/or are frivolous or vexatious. For these reasons, I refuse to accept the Documents.

I recommend that you seek independent legal advice in relation to this matter and prior to filing any further documents with the Court.

7    As is apparent, the Registrar considered that the documents lodged for filing were an abuse of the Court’s process and/or frivolous or vexatious because it was not “clear that a viable cause of action has been identified that would enliven the jurisdiction of the [Court]”. The composite manner in which the Registrar expressed her reasons means that it is unclear whether she considered that there were no viable claims or that, while there were viable claims, it was not apparent that these were within the Court’s jurisdiction.

8    It is in any event apparent that the Registrar relied upon the first limb of r 2.26 by reaching a conclusion “on the face of the documents” lodged for filing, and not by reference to any further documents.

The function of a Registrar under r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR)

9    As the Registrar set out the terms of r 2.26 of the FCR in her letter to the applicant, it is not necessary to repeat them.

10    I have referred to some of the principles relating to the exercise of the Registrar’s power pursuant to r 2.26 in a number of previous decisions, most recently in Ferdinands v Registrar Cridland [2021] FCA 592 at [10]-[12]. It is sufficient for present purposes to note what has been said in two Full Court decisions. In the first, Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353, the Full Court said of the predecessor of r 2.26:

[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.

11    More recently, in Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164, 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)

12    Thus, Registrars exercising the power under r 2.26(a) do so with a view to ensuring compliance with the Court’s procedural requirements, by refusing to accept for filing documents which are on their face frivolous or vexatious or an abuse of the Court’s process. The requirement that Registrars make the decision by reference to the face of the document is important. In Paramasivam v Randwick City Council [2005] FCA 369, Sackville J discussed the meaning of the expression “on its face” in the predecessor of r 2.26. His Honour said:

[45]    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’.

…

13    It is established that the reference to documents “already filed” in r 2.26(b) is a reference to documents filed in the same proceeding, and not to documents filed in different proceedings: SZVCP v Cho [2017] FCA 310; (2017) 250 FCR 225 at [26]; Frigger v Trott [2021] FCA 18 at [14]. There were no such documents in the present case.

Section 5 of the ADJR Act

14    An application for review of the decision of a Registrar under r 2.26 is properly brought under the ADJR Act: Nyoni v Murphy at [41].

15    Section 5 of the ADJR Act provides (relevantly):

5 Applications for review of decisions

(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;

…

(h)    that there was no evidence or other material to justify the making of the decision;

…

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

…

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

…

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

…

(3)    The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

16    The applicant’s application for judicial review relies on the three limbs in s 5(1) set out above. He contends, first, that a breach of the rules of natural justice occurred in connection with the making of the decision. There is some ambiguity in the applicant’s expression of this ground. On one view, the applicant complains that he was not given a hearing before the decision was made in which he may have assisted the Registrar in the assessment of his Originating Application and Statement of Claim and, in particular, in the identification of the causes of action on which he relied. On another view, the applicant complains that the Registrar did not have regard to the interlocutory application and affidavit he had lodged for filing on 4 March 2021.

17    The applicant contends, secondly, that the Registrar’s decision was an improper exercise of the power conferred by r 2.26 because she had failed to take a relevant consideration into account (s 5(2)(b)) and because she had exercised the discretionary power in accordance with a rule or policy and without regard to the merits of the instant case (s 5(2)(f)).

18    Thirdly, the applicant contends that there had been “no evidence or other material to justify the making of the decision” thereby invoking s 5(1)(h).

The applicant’s proposed proceedings

19    There were six respondents to the applicant’s proposed proceedings. These were:

(i)    Google Inc, first respondent;

(ii)    Automattic Inc, second respondent;

(iii)    Dr Janice Margaret Duffy, third respondent;

(iv)    Darda Gregurev, fourth respondent;

(v)    Nina Gregurev, fifth respondent; and

(vi)    Microsoft Corporation Inc, sixth respondent.

20    Before referring to the applicant’s proposed claims against these respondents, it is appropriate to refer to some matters of history revealed by previous decisions of this Court.

21    In 2012, the applicant commenced Action SAD98/2012 in which the respondents were Google Australia Pty Ltd, Darda Gregurev, Nina Gregurev and Google Inc. In those proceedings, the applicant sought damages for defamation in respect of statements said to have been published by Darda Gregurev and Nina Gregurev on Google websites. In Rana v Google Australia Pty Ltd [2013] FCA 60, Mansfield J granted summary judgment to Google Australia Pty Ltd dismissing the application against it but giving the applicant leave to file and serve a further amended application and a further amended statement of claim with respect to his claims against Darda and Nina Gregurev. His Honour stood over for further consideration the applicant’s application for leave to serve overseas his proceedings against Google Inc and the application by Darda and Nina Gregurev for summary dismissal of the claims against them. Later, the applicant discontinued the whole of the remaining parts of his claims in Action SAD98/2012.

22    On 28 October 2014, the applicant commenced proceedings against Google Inc and the Commonwealth. The claim against the Commonwealth (a claim under the ADJR Act) was resolved by consent on 2 February 2015. The applicant made claims against Google in defamation, negligence and for contraventions of ss 18 and 21 of the Australian Consumer Law (the ACL) contained in Sch 2 to the Competition and Consumer Act 2010 (Cth). His claim in defamation was based on material said to have been authorised by the Gregurevs and said to have been published on Google websites. The applicant sought leave to serve the proceedings on Google Inc overseas, but that application was refused, albeit with a grant of leave for the applicant to file a proposed amended originating application and an amended statement of claim: Rana v Google Inc [2016] FCA 461. The applicant did file amended documents on 14 June 2016, naming four persons as respondents, namely, Google Inc, Darda and Nina Gregurev and the Commonwealth. Again, he sought leave to serve the amended proceedings on Google Inc outside the jurisdiction. However, on 25 January 2017, a Judge dismissed the proceedings on the basis that the Court lacked jurisdiction to hear and determine the claims in defamation against Google: Rana v Google Inc (No 2) [2017] FCA 17.

23    That decision was set aside on appeal: Rana v Google Inc [2017] FCAFC 156 (Rana v Google Full Court). The Full Court held that, while the applicant’s pleading was discursive, difficult to interpret (at [7]), and lacking in “clarity and coherence” (at [29]), it was sufficient to indicate that the Court’s jurisdiction had been invoked. The Full Court referred in particular to the commonality in the substratum of facts and claims concerning the applicant’s defamation claim against Google, on the one hand, and his “Federal” claims against the Commonwealth which had been resolved, on the other, to indicate that the Court’s jurisdiction had been enlivened. Other bases for jurisdiction were also identified. Ultimately, on 14 August 2020, the applicant discontinued those proceedings wholly.

24    The descriptions of the applicant’s pleadings given by the Full Court in relation to the applicant’s pleading in Action SAD286/2014 are in many respects also apposite to his pleadings in the documents lodged for filing on 3 March 2021. That is understandable given the applicant’s status as an unrepresented litigant. However, despite the inadequacies in the manner of pleading, the claims and causes of action (or at least claimed causes of action) which the applicant wishes to pursue are reasonably apparent. These are:

(a)    a claim for damages for defamation against all respondents other than Nina Gregurev in respect of the publication on the websites of Google Inc, Automattic Inc and Microsoft Corporation Inc of allegedly defamatory statements made in blogs by Dr Duffy and Darda Gregurev. The applicant accepts that s 21 of the Defamation Act 2005 (SA) (s 23 of the Defamation Act 2005 (NSW)) applies to his claim so that he needs leave to bring this claim. The claims against the respondents relate to blogs said to have been published on 1 October 2020, 13 October 2020 as well as earlier publications on 2 April and 29 May 2009;

(b)    a claim for injunctions restraining the publication by the respondents of the defamatory material (this claim is not made against Nina Gregurev);

(c)    a claim for a declaration that Google Inc is in breach of a Conciliation Agreement facilitated by the Office of the Australian Information Commissioner – although it is unclear, I infer that it may have been this agreement which led to the discontinuance of the 2014 proceedings on 14 August 2020;

(d)    a claim for damages for negligence against all respondents other than Nina Gregurev;

(e)    a claim against all respondents for unspecified relief in respect of alleged breaches of claimed obligations with respect to use of the applicant’s confidential information;

(f)    a claim for unspecified relief in respect of alleged unconscionable conduct arising from alleged breaches of s 37 of the Privacy Act 1988 (Cth) and ss 20 and 21 of the ACL; and

(g)    a claim of undue influence, although the conduct to which this claim refers is not altogether clear.

Consideration

25    Three of the bases on which the applicant seeks judicial review can be addressed quite shortly.

26    Insofar as the applicant claims that he was denied natural justice because he was not given a hearing by the Registrar, the claim fails for the same reasons as were given by Murphy J in Somasundaram v Luxton [2020] FCA 1076 at [41]-[44]. As his Honour noted, the requirements of natural justice vary according to the circumstances of the individual case. In the present case, relevant matters are that the decision concerned the acceptance of a document for filing, ie, a short and confined administrative action; that the Registrar was to make the decision (relevantly) by reference to the face of the document and not by reference to extraneous materials – see Frigger v Trott at [12]-[14]; and the decision of the Registrar did not preclude the applicant from lodging for filing documents which did, on their face, invoke the jurisdiction of the Court. These matters indicate that the Registrar was not required to give the applicant an opportunity to be heard.

27    Insofar as the applicant claims a denial of natural justice because the Registrar did not consider the interlocutory application and affidavit lodged for filing on 4 March 2021, the claim fails because the Registrar was required relevantly to determine the application of r 2.26 on the face of the documents lodged on 3 March 2021, these being the documents by which the applicant sought to invoke the jurisdiction of the Court. The interlocutory application and supporting affidavit had not been lodged for filing on 3 March 2021, and were in any event ancillary to the applicant’s proposed proceeding.

28    The second ground which can be dealt with shortly is that, although seeking to invoke s 5(2)(f) of the ADJR Act, the applicant did not identify the “rule or policy” which he contended the Registrar had applied.

29    The third is that the applicant did not point to any matter by which the criteria specified in s 5(3) for the purposes of s 5(1)(h) could be satisfied.

30    This means that the fate of the application for judicial review turns on whether s 5(1)(e) is available to the applicant. This depends in turn on whether the applicant establishes that the Registrar failed to take a relevant consideration into account.

31    In identifying above the causes of action in the applicant’s proposed proceedings, I was not expressing any view as to their viability. As the Registrar seems to have concluded, I consider, at least as things stand presently, that there is reason to doubt the viability of several. For example, the applicant’s claim based on a “tort of breach of confidentiality” and his supposition that ss 89-94 of the Privacy Act give him a private cause of action. The latter appears misconceived because, as s 89 indicates, those provisions do not have apparent application to the respondents. Section 89 provides:

89 Obligations of confidence to which Part applies

Unless the contrary intention appears, a reference in this Part to an obligation of confidence is a reference to an obligation of confidence:

(a)    to which an agency or a Commonwealth officer is subject, however the obligation arose; or

(b)    that arises under or by virtue of the law in force in the Australian Capital Territory; or

(c)    that arises under or by virtue of a law in force in an external Territory.

32    At the least, it can be said that the applicant has not pleaded any material facts which would indicate that these provisions are applicable to the respondents.

33    The applicant’s claim that breaches of s 36 of the Privacy Act will support a claim of unconscionable conduct may also be doubtful.

34    However, in my view, the applicant did, on the face of the documents, raise viable defamation claims, albeit that a grant of leave under s 21 of the Defamation Act may be required before he can pursue them. The documents contain a pleading of the elements of the tort of defamation, being the publications containing the statements said to be defamatory, the imputations said to have been conveyed by them, the manner in which the statements were published, the makers of the statements, and he has alleged that he has been damaged by the publications.

35    The Registrar’s reference to a cause of action which would “enliven the jurisdiction of the Federal Court” suggests that she may have been concerned about the jurisdiction of this Court to hear the defamation claims and the other “non-federal” claims. With respect to the Registrar, I consider that, if these were her concerns, she has overlooked, and did not take into account, important considerations bearing upon this Court’s jurisdiction.

36    The Court’s jurisdiction with respect to defamation claims of the present kind (and with respect to non-federal claims more generally) was considered in Rana v Google Full Court. It is not necessary to repeat in these reasons all that was said then. It is sufficient to say that that decision confirmed a number of propositions of present relevance:

(a)    when federal and non-federal claims comprise the same justiciable controversy, a court exercising federal jurisdiction has jurisdiction to resolve the entire matter in the exercise of its federal jurisdiction, at [17];

(b)    a “matter” for the purposes of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) will “arise under” a law of the Parliament in a number of ways, including in cases in which the cause of action is created by Commonwealth statute; in which a Commonwealth statute is relied upon as establishing a right to be vindicated; in which a Commonwealth statute is the source of a defence that is asserted; in which the subject matter of the controversy owes its existence to Commonwealth legislation; in which it is necessary to decide whether a right or duty based on a Commonwealth statute exists even when that has not been pleaded by the parties; and in which a federal issue is raised on the pleadings even though it is not necessary to decide that issue, at [18];

(c)    generally, a non-colourable assertion of a federal issue is enough to attract federal jurisdiction, at [21]; and

(d)    independently of those matters, by reason of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), this Court has jurisdiction over civil matters which are within the jurisdiction of the Supreme Courts of the Australian Capital Territory and the Northern Territory, at [24]. In particular, s 9(3) has the effect of conferring on this Court the jurisdiction of the Territories’ Supreme Courts to hear and determine defamation matters which would be within their jurisdiction – see Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451.

37    The last of these sources of jurisdiction is particularly pertinent presently. It is established that a defamatory statement made by online means is taken to be “published” for the purposes of an action in defamation when and where it is downloaded: Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. The applicant’s proposed statement of claim did not allege expressly that the claimed defamatory items on the impugned websites had been published in the Australian Capital Territory or in the Northern Territory or even that they had been viewed by people in those places. He did, however, allege in his proposed statement of claim:

[41]    Over a decade over more than 65,000 people have seen the above cited publications globally, and mostly people in Australia.

38    If that be correct, the applicant may well be able to establish that there had been some downloading of the impugned statements in both the Australian Capital Territory and the Northern Territory.

39    As was noted in Rana v Google Full Court at [40], the electronic nature of the publications on which the applicant then sought to sue suggested that it would not be difficult for him to allege that there had been downloading of the impugned publications in either the Australian Capital Territory or the Northern Territory or both.

40    With respect to the Registrar, this basis for the Court’s jurisdiction does appear to have been overlooked by her. I am satisfied that it means that the applicant has established that the Registrar did fail, within the terms of s 5(2)(b) of the ADJR Act, to take a relevant consideration into account in the exercise of the power under r 2.26 and therefore that the decision was an improper exercise of the power within the meaning of s 5(1)(e).

41    That conclusion makes it unnecessary to consider whether the applicant has also established that the Registrar failed to take into account the possible existence of a common substratum of facts between his proposed claims of unconscionable conduct, on the one hand, and those underpinning his other claims, on the other. It is, however, sufficient to note that, independently of the provisions in the Privacy Act to which the applicant refers, he had pleaded breaches of ss 20 and 21 of the ACL. Those sections proscribe unconscionable conduct:

20 Unconscionable conduct within the meaning of the unwritten law

(1)    A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

Note:    A pecuniary penalty may be imposed for a contravention of this subsection.

(2)    This section does not apply to conduct that is prohibited by section 21.

21 Unconscionable conduct in connection with goods or services

(1)    A person must not, in trade or commerce, in connection with:

  (a)    the supply or possible supply of goods or services to a person; or

(b)    the acquisition or possible acquisition of goods or services from a person;

engage in conduct that is, in all the circumstances, unconscionable.

…

42    The claims based on ss 20 and 21 of the ACL are “federal” claims. In my opinion, it is not possible to be confident about the viability of these claims or that they are based on the same substratum of facts as are the defamation claims. That is particularly so because they seem to be made on a very confined basis, as the following paragraphs in the proposed originating application indicate:

Unconscionable conduct by the First Respondent in breach of s. 36 of the Privacy Act 1988 (Cth), and Section 20 and 21 of the ACL Act (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

[22]    The agreement between Ranjit SJB Rana and Google LLC (per Managing Member Kenneth Hohee Yi, Assistant Secretary of Google LLC) dated 26/8/2020 was signed.

[23]    The reference was per CP15/00623 of the Office of Australian Information Commissioner.

[24]    The Office of Australian Information Commission closed its file as of [23] above per s. 41 (1A) of the Privacy Act.

[25]    The breach of the implied term being bringing https://sites.google.com/site/answerstoranjitranasaffidavits/ alive on 1.10.2020 contrary to it having being disabled on the date of signing the above said agreement.

[26]    The Applicant requests the Court to declare the agreement null and void, which is that it serves no purpose in the best interest of the Applicant anymore.

43    Whether or not the applicant’s claims based on ss 20 and 21 are viable is not an issue which is appropriate for determination on the present application. Nor is it appropriate on the present application to determine whether the applicant’s pleading of “causes of action” under the Privacy Act or under the ACL are “colourable”, that is, made for the improper purpose of fabricating jurisdiction: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation [1987] FCA 686; (1987) 18 FCR 212 at 219; Rana v Google Full Court at [22].

44    For the reasons given above, I consider that the applicant’s claim that the Registrar’s decision was an improper exercise of the power conferred by r 2.26 should be upheld. That is because I am satisfied, with respect, that the Registrar did fail to take a relevant consideration into account, namely, the applicant’s pleading of at least some causes of action (those in defamation) which are within the Court’s jurisdiction. I repeat that an acceptance that the applicant has identified causes of action which, on their face, are within the jurisdiction of the Court, conveys no implication about the ultimate viability of those causes of action or about the adequacy of the pleading of those causes of action. All I am indicating is that, having regard to the limited function of a Registrar pursuant to r 2.26, the Registrar does appear to have failed to consider relevant matters bearing on the Court’s jurisdiction. The question of whether the applicant’s claims may be vulnerable to applications for summary judgment or strike out because of the inadequacies in the manner of their pleading, or on other bases, is not an issue which arises presently.

Conclusion

45    For this reason, I uphold the application for judicial review.

46    The appropriate order to give effect to these reasons is an order setting aside the decision of the Registrar: Frigger v Trott at [42]. It will then be a matter for a Registrar to consider afresh whether the documents should be accepted for filing, but doing so in the light of these reasons.

47    I have not heard from the parties with respect to the issue of costs and will give them the opportunity to make submissions. I indicate, however, my preliminary view that it may be appropriate to make no order as to costs. That is so because it is not apparent that the applicant, as an unrepresented litigant, has incurred any costs of a material kind which can be the subject of a costs order and, secondly, because the manner of the applicant’s pleading of his causes of action seems to have contributed materially to the Registrar’s decision. I also observe that neither the Originating Application nor the Statement of Claim contain any claim by the applicant for the costs of the proceedings. However, I will give the parties the opportunity to be heard on the question.

Associate:

Dated:    27 July 2021