Federal Court of Australia

Ferdinands v Registrar Stone [2022] FCA 589

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review filed on 24 January 2022 is dismissed.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

Introduction

1    The applicant in these judicial review proceedings is Mr Trevor Kingsley Ferdinands (the applicant). The respondent, Ms Stone, is a Registrar of the Federal Court (the Registrar).

2    The applicant seeks judicial review of the Registrar’s decision pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR) made 19 January 2022 in which the Registrar refused to accept for filing a proposed originating application and supporting documents which the applicant had lodged for filing that same day.

3    The Registrar lodged a Form 29 submitting notice on 10 March 2022.

4    Both parties requested that the Court deal with this matter on the papers. Given the Registrar filed a submitting notice, the only evidence filed is by the applicant.

Background

5    The documents which the applicant had sought to file on 19 January 2022 comprised:

(a)    An originating application naming himself as the applicant and Scott Morrison as Prime Minister of Australia as respondent;

(b)    An affidavit of the applicant dated 19 January 2022;

(c)    Notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth); and

(d)    Notice to produce a document in a pleading or affidavit.

6    On 24 January 2022, the applicant filed the originating application the subject of this judgment, supported by:

(a)    An affidavit of the applicant sworn and filed on 24 January 2022;

(b)    An unsworn document described as an affidavit of the applicant, filed by the applicant on 4 February 2022;

(c)    An unsworn document described as an affidavit of the applicant, filed by the applicant on 10 February 2022;

(d)    An unsworn document described as an affidavit of the applicant, filed by the applicant on 12 February 2022; and

(e)    An affidavit sworn and filed by the applicant on 22 February 2022.

7    I have considered these documents.

The originating application seeking judicial review

8    The originating application does not identify the Act under which the application is brought. The originating application is described on its face as an ‘Originating Application for Judicial Review - Form 66 - Rule 31.01(1)’. FCR 31.01(1) is the rule relating to applications for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): FCR Dictionary in Schedule 1 to the FCR.

9    Section 11(1) of the ADJR Act provides relevantly:

11 Manner of making applications

(1)    An application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review:

(a)    shall be made in such manner as is prescribed by:

(i)    in the case of an application to the Federal Court—Federal Court Rules; or

(ii)    in the case of an application to the Federal Circuit and Family Court of Australia (Division 2)—Federal Circuit and Family Court of Australia (Division 2) Rules; and

(b)    shall set out the grounds of the application; and

(c)    shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

10    The originating application identifies the decision of the Registrar followed by five paragraphs setting out why the applicant is aggrieved by the Registrar’s decision. In order for a person to have standing to seek a review of a decision pursuant to s 11(1) of the ADJR Act, that person must be aggrieved by a decision to which the ADJR Act applied: s 5(1) ADJR Act.

11    In summary, for the purposes of this judgment, amongst other things, the ADJR Act applies to a decision of an administrative character, proposed to be made, or required to be made (whether in the exercise of a discretion or not) under an Act of the Commonwealth.

12    In Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 [41], (Barker, Banks-Smith and Colvin JJ) the Court noted that a registrar’s decision in refusing to accept documents for filing was a decision of an administrative character and may be susceptible to judicial review under the ADJR Act.

Principles

13    In Ferdinands v Registrar Cridland [2021] FCA 592 at [9], White J referred to what he said in Ferdinands v Registrar Parkyn [2020] FCA 1676 where he set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to FCR 2.26. In Cridland, his Honour said:

10    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.

11    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)

The decision under review and the documents the Registrar refused to accept for filing

14    The decision by the Registrar dated 19 January 2022 is exhibit TF-02 to the applicant’s affidavit sworn and filed on 24 January 2022. After identifying the documents that were sought to be filed, the Registrar said:

I have carefully considered the content of your documents and advise that I am unable to accept the documents for filing pursuant to rule 2.26 of the Federal Court Rules 2011 (Rules). This rule 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 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.

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.

I recommend that you seek legal advice prior to filing any further documents with the Court.

The documents the Registrar refused to accept for filing

15    The originating application and supporting documents dated 19 January 2022, which the Registrar refused to accept for filing, is itself an application for judicial review: affidavit of applicant, filed 24 January 2022, exhibit TF-01.

16    The originating application starts by stating that the applicant applies to the Court to review the decision of the Prime Minister in that he:

(1)    Failed to make a decision on 10 January 2022 regarding the suspension from public office for abuse of power by the Chief Justice and a number of justices of the High Court of Australia.

(2)    Failed to make a decision on 10 January 2022 regarding the suspension from public office for obstruction of justice by the Chief Justice and a number of justices of the High Court of Australia.

(3)    Failed to make a decision on 10 January 2022 in relation to the Chief Justice and a number of justices of the High Court of Australia for misleading the Court.

(4)    Failed to make a decision on 10 January 2022 regarding the suspension from public office for misconduct by the Chief Justice and a number of justices of the High Court of Australia.

(5)    Failed to make a decision on 10 January 2022 regarding the suspension from public office for misconduct of the Chief Justice and a number of justices of the Federal Court of Australia and the Registrar of that Court.

(6)    Failed to make a decision on 10 January 2022 as to whether allegations that the Chief Justice of the Federal Court of Australia and the Registrar of the Federal Court of Australia had in fact misled the Court.

(7)    Failed to appoint a Commissioner for a Commission of Inquiry using all enabling authority and power of inter-government alliances and agreements to access of former (sic) United States of America Supreme Court Justice to inquire into misconduct by the Chief Justice and a number of justices of the High Court of Australia; the Chief Justice of the Federal Court of Australia; and the Registrar of the Federal Court of Australia.

17    Under the heading ‘Details of claim’, the applicant alleges he is aggrieved by the respondent’s decisions because of 12 matters. I do not set out those 12 matters but they range from allegations that the respondent misled the Court (although which Court is not identified, but in view of the description of what the applicant seeks to be judicially reviewed, presumably the High Court of Australia and the Federal Court of Australia) by refusing to use his authority to investigate various claims involving public racism, fraud, dishonesty and corruption as well as showing prejudice and bias.

18    Under the heading ‘Grounds of application’, the applicant sets out 10 grounds. Again, I do not set them out but they range from an allegation that the respondent has infringed upon s 51 (xxv) of the Constitution by not providing reasons for his decisions, to failing to uphold law and order including rules of the Court (again, the Court is not identified) and rules of evidence.

19    Under the heading ‘Orders sought’, the applicant seeks 6 orders, namely:

(1)    That the decision of the respondent on 10 January 2022 is set aside.

(2)    That the respondent submit an affidavit or statutory declaration document to the Court (ie, the Federal Court of Australia given the originating application was sought to be filed in this Court) with regards to whether the respondent has misled the Court advertently or inadvertently, directly or indirectly, or has definitely not misled the Court from the period Year 2018 to Year 2022.

(3)    In the interests of justice and continued public confidence in the Judiciary, that the suspensions from public office pending full investigations into misconduct are made effective forthwith of the Chief Justice and a number of justices of the High Court of Australia.

(4)    In the interests of justice and continued public confidence in the Judiciary, that the suspensions from public office pending full investigations into misconduct are made effective forthwith of the Chief Justice of the Federal Court of Australia and the Registrar of that Court.

(5)    That the allegations of misconduct on the part of the Chief Justice and a number of justices of the High Court of Australia, the Chief Justice of the Federal Court of Australia, and the Registrar of that Court be investigated and inquired into by a former United States of America Supreme Court Justice who is to be appointed the Commissioner for a Commission of Inquiry by use of the established authority and power of inter-government alliances and agreements between the Commonwealth of Australia and the United States of America with co-ordination of the US Department of Justice.

(6)    Any other orders deemed fit and necessary in the administration of justice including answering the questions of law correctly.

The application for judicial review of the Registrar’s decision

20    The originating application the subject of this judgment seeks a review of the Registrar’s decision. It contains three subheadings: ‘Details of claim’, ‘Grounds of application’ and ‘Orders sought’.

Details of claim

21    The applicant asserts five grievances said to result from the Registrar’s decision to refuse to accept the documents for filing.

22    In the first grievance, it is asserted that the Registrar has not properly or adequately assessed the facts and truth of the “refusal case” in the originating application sought to be filed.

23    In the second, third and fourth grievances, the applicant asserts that the Registrar did not properly or adequately assess the facts of the allegation of procedural fairness (presumably lack of procedural fairness); the facts of due process (presumably the lack of due process); and the facts of equal protection (presumably the lack of equal protection under the law).

24    In the fifth grievance, the applicant alleges that the use by the Registrar of FCR 2.26 is “voidable in law due to the doctrine of separation of powers and s 51 (xxv) of the Constitution”.

Grounds of application

25    There are no less than 36 grounds. I do not set them all out but they include allegations:

(1)    That the Registrar has:

(a)    acted illegally (ground 1(a));

(b)    erred by ousting the jurisdiction of the High Court of Australia (grounds 2-5); and

(c)    has erred in law by misconstruing and then misapplying the meaning of the words ‘abuse of process’, ‘frivolous’ and ‘vexatious’ (grounds 6 and 7).

(2)    That “they” allowed false summons (sic) to be issued in the Adelaide Magistrates Court alleging dishonest dealings with documents contrary to s 140 of the Criminal Law Consolidation Act 1935 (SA) (ground 12).

(3)    That the Registrar has, by asserting that the documents sought to be filed were frivolous and vexatious, become a co-conspirator and has breached s 256 of the Criminal Law Consolidation Act 1935 (SA) (perverting the course of justice) (ground 13).

(4)    By classifying some of the applicant’s claims for relief, including compensation for loss of wages, as frivolous and vexatious (ground 14).

Orders sought

26    The applicant seeks, amongst other things, an order that his application be granted and that the Registrar’s decision made 19 January 2020 be set aside.

Consideration

27    This is the sixth judgment since November 2020 dealing with applications by the applicant in respect of refusals by a registrar acting under FCR 2.26 to accept documents for filing. In Ferdinands v Registrar Cridland at [3], White J set out the history of prior applications by the applicant in the following terms:

This is the fourth judgment in recent times on applications by the applicant in respect of refusals by a Registrar, acting under r 2.26 of the FCR, to accept documents for filing. The first judgment concerned an application for an extension of time in which the applicant could commence proceedings under the ADJR Act for judicial review of a Registrar’s refusal to accept for filing documents lodged on 1 May 2020 and which in general terms concerned the Army Cadet Scheme: Ferdinands v Registrar Parkyn [2020] FCA 1675. The second judgment concerned an application for judicial review of a Registrar’s refusal on 19 August 2020 to accept for filing documents lodged by the application concerning his termination as a police officer in SAPOL in 2001: Ferdinands v Registrar Parkyn [2020] FCA 1676. The third judgment concerned a Registrar’s refusal to accept for filing documents lodged by the applicant on 11 October 2020 by which (in paraphrased form) the applicant sought “review” of “the failure” of the Australian Securities and Investments Commission (ASIC) to decide that the State of South Australia (SA) and its Premier had, between 1997 to 2001, contravened ss 180-184 of the Corporations Act 2001 (Cth) and that those contraventions comprised “examinable affairs” of a corporation: Ferdinands v Registrar Parkyn [2021] FCA 24.

28    The application for judicial review does not identify the ground or grounds in s 5(1) of the ADJR Act upon which he relies. The reference to the Registrar having failed to properly or adequately assess various matters suggests ss 5(c) and (f). Those provisions provide:

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 and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

…

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

...

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

…

29    As the authorities to which I have referred above make clear, when refusing to accept an originating application for filing under FCR 2.26, the Registrar does not make any substantive judgment about the underlying merit of the claims in the proposed proceedings. The Registrar said in her letter to the applicant dated 19 January 2022, that she was refusing to accept the documents because on their face they were frivolous or vexatious. In so doing, the Registrar was not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but was ensuring compliance with procedural requirements.

30    That is sufficient to dispose of the ground of review in s 5(c) of the ADJR Act.

31    As to the meaning of ‘frivolous’ or ‘vexatious’ or the expression ‘an abuse of the Court’s process’, there is no definition of either of the terms ‘frivolous’ or ‘vexatious’ in the FCR nor of the expression ‘an abuse of the Court’s process’.

32    In Ferdinands v Registrar Cridland at [27]-[31], White J considered the meaning of these terms. His Honour noted that the Dictionary contained in Schedule 1 to the FCR contained a definition of ‘vexatious proceeding’ by reason of a cross-reference to s 37AM of the Federal Court of Australia Act 1976 (Cth). Section 37AM(1) provides:

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

33    After referring to s 37AM, his Honour continued at [28]-[30]:

28    As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.

29    In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of the terms “vexatious” and “frivolous” appearing in r 26.01(1) of the FCR. His Honour said:

[35]    The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …

[36]    A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …

[37]    In relation to the term ‘frivolous’:

(a)    a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;

(b)    a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and

(c)    ‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …

[38]    In relation to the term ‘vexatious’:

(a)    a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;

(b)    proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;

(c)    a proceeding is to be regarded as ‘vexatious’ where:

(i)    it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii)    it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii)    irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and

(d)    ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …

(Citations omitted)

30.    As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. There is no reason to suppose that the Registrar did not apply meanings of this kind in the present case when considering whether the applicant’s proposed proceeding was frivolous or vexatious on the face of the documents. In reaching that conclusion, I take into account that the applicant has not sought to point to any particular error by the Registrar in her construction of these terms.

34    His Honour’s consideration of these expressions was approved by the Full Court of this Court in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8] (Charlesworth, Burley and Cheeseman JJ).

35    Adopting the meanings of ‘frivolous’, ‘vexatious’ and the expression ‘abuse of process’ set out above, the originating application, together with the documents supporting it, were frivolous, vexatious and an abuse of process of the Court.

36    That conclusion is sufficient to dispose of the ground of review in s 5(1)(f) of the ADJR Act.

37    In all the circumstances, there is no error in the Registrar’s characterisation of the proposed proceedings as frivolous and vexatious on their face such that it would constitute an abuse of process of the Court if they were accepted for filing.

Conclusion

38    The application for judicial review filed on 24 January 2022 is dismissed.

Associate:

Dated:    24 May 2022