Federal Court of Australia

Cooper v Judicial Registrar Lackenby [2022] FCA 1153

ORDERS

THE COURT ORDERS THAT:

1.    The application 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    On 4 March 2022, Richard John Cooper (applicant) lodged for filing with the ACT Registry of the Court, a Bankruptcy Form 2 Application and supporting affidavit (first Cooper affidavit). On 7 March 2022, Registrar Lackenby refused to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR). On 23 March 2022, the applicant filed an originating application in which the applicant applies for judicial review of Registrar Lackenby’s decision.

2    On 31 March 2022, the applicant lodged for filing a Form CP14 indictment and Form CP15 indictment information notice. That same day, Registrar Edwards refused to accept the documents pursuant to FCR 2.26. The applicant also seeks judicial review of Registrar Edward’s decision.

3    On 13 April 2022, the applicant filed an interlocutory application in which he sought to join to these proceedings Registrar Edwards; the Commonwealth; the Commonwealth Director of Public Prosecutions; an alleged petitioning creditor, Selection Steel Trading Pty Ltd (ACN 005 324 497); Mr Christopher Chapman (Mr Chapman), a person whom the applicant alleges stole goods from him after the applicant was declared bankrupt; Mr Gregory Dudley (Mr Dudley), who allegedly volunteered as the applicant’s Trustee in Bankruptcy; and the Australian Financial Services Authority.

4    On 21 April 2022, the applicant emailed to the Court written submissions in support of the interlocutory application.

5    In addition, on 21 April 2022, at 1:26am, the applicant emailed a 52 page affidavit to my chambers (second Cooper affidavit).

6    During the course of the hearing, I explored with the applicant his grounds for seeking to join the various parties. After engaging in that process, I refused leave to the applicant to join all parties except Registrar Edwards.

7    On 10 June 2022, Registrar Lackenby lodged a Form 29 submitting notice. On 14 June 2022, Registrar Edwards lodged a Form 29 submitting notice.

8    All parties requested that the Court deal with these matters on the papers.

9    On 26 May 2022, the applicant filed further written submissions.

10    On 5 August 2022, the applicant emailed a further document to the Court referring to the “Kable principle”: See Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51. In broad terms, the principle in Kable is that a State Court may not act in a manner incompatible with Ch III of the Commonwealth Constitution or exercise jurisdiction that is incompatible with the integrity, independence and impartiality of a State Court when it is exercising federal jurisdiction invested under Ch III. Since this application concerns an administrative decision made by a Federal Court Registrar, Kable has no application.

The originating application seeking judicial review

11    The originating application does not identify the Act under which the application is brought, although it 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).

12    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.

13    In the circumstances, I treat the originating application as an application for judicial review pursuant to s 11(1) of the ADJR Act.

14    To have standing to seek a review of a decision pursuant to s 11(1) of the ADJR Act, a person must be aggrieved by a decision to which the ADJR Act applies: s 5(1) ADJR Act.

15    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.

16    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

17    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

18    The decision by Registrar Lackenby dated 7 March 2022 is annexure RJC-1 to the second Cooper affidavit. After identifying the documents that were sought to be filed, the Registrar set out FCR 2.26 and said:

I am of the view that the Documents should be refused for filing under rule 2.26 of the Rules on the basis that you seek to encompass in the one application multiple respondents and various causes of action, many of which appear to attempt to be criminal prosecutions for which the Federal Court does not have jurisdiction.

Accordingly, the Documents are returned to you and. I encourage you to seek legal advice.

19    The decision by Registrar Edwards dated 31 March 2022 is annexure RJC-4 to the second Cooper affidavit. After identifying the documents that were sought to be filed, the Registrar set out FCR 2.26 and said:

I am of the view that the Documents should be refused for filing under r 2.26 of the Rules because they are, on their face, an abuse of process, frivolous or vexatious.

The Federal Court of Australia does not have jurisdiction to determine offences of attempting to pervert the course of justice under the Crimes Act, or crimes against humanity under the Criminal Code. Such offences are federal offences that may only be prosecuted in state or territory courts exercising federal jurisdiction: see by way of guidance, ss 39B(1A)(c) and 68(2) of the Judiciary Act 1903 (Cth), and Div 1A of the Federal Court Act 1976 (Cth).

The Federal Court of Australia also does not have jurisdiction in respect of the international instruments you refer to in your letter.

If you disagree with this decision you may make an application for judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1997 (Cth).

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

The Documents are returned to you.

20    The remaining paragraphs of Registrar Edward’s decision refer to the possibility of the applicant discontinuing the application for judicial review and having the originating application stamped and issued so that the applicant may serve it.

21    A letter from the applicant to Registrar Edwards dated 4 April 2022 follows Registrar Edward’s decision, both of which are in annexure RJC-4 to the second Cooper affidavit. The letter includes the applicant’s intention to join Registrar Edwards to the application.

The documents Registrar Lackenby refused to accept for filing

22    The Bankruptcy Form 2 Application and the accompanying first Cooper affidavit, which Registrar Lackenby refused to accept for filing on 7 March 2022, is itself an application for judicial review to set aside a Sequestration Order of the Federal Circuit Court and a claim for “pecuniary penalties” against Mr Chapman; Mr Dudley; the Commonwealth; Selection Steel Trading Pty Ltd; and the Commonwealth Director of Public Prosecutions.

23    Under the heading “Details of claim”, the applicant sets out the sections of the Bankruptcy Act 1996 (Cth); the Criminal Code Act 1995 (Cth); the Federal Court of Australia Act 1976 (Cth); the Constitution; the Bankruptcy Rules 2016 (Cth); the Crimes Act 1914 (Cth); the International Covenant on Civil and Political Rights; and the Judiciary Act 1903 (Cth), that the applicant relies on in support of his application.

24    Under the heading “Claim for interim relief” the applicant seeks the following:

1.    That the Trustee ‘be directed to annul the bankruptcy’ by reference to s 153A of the Bankruptcy Act 1996 (Cth); or

2.    The Court annul the bankruptcy on the grounds set out in s 153B of the Bankruptcy Act 1996 (Cth); and

3.    Order an account under s 30(2) of the Bankruptcy Act 1996 (Cth) between the Petitioning Creditor, The Commonwealth under s 64 of the Judiciary Act 1903 (Cth) and the other respondents.

4.    If the matter and liability is disputed by any other respondent, order a jury trial to determine liability as if this as an indictment under s 30 of the Bankruptcy Act 1996 (Cth); and

5.    If the liability is not disputed, ‘order an interim payment from the Commonwealth so the business is not destroyed by legal actions and the other respondents be ordered to pay as their various actions have resulted in losses and damage to the applicant’s business attracting pecuniary penalties as approved by the law’.

25    The first Cooper affidavit alleges the following:

(a)    Selection Steel Trading Pty Ltd engaged a solicitor to collect a debt owing by the applicant, which is denied by the applicant, and even though the applicant was not put on notice, a default judgment was made: [5];

(b)    A Bankruptcy Notice was issued out of the Melbourne Registry of the Federal Circuit Court based on the “fraudulent judgment” which was allegedly served upon the applicant at an address unknown to the applicant: [5A];

(c)    A Sequestration Order by default was made in the Federal Circuit Court in Melbourne based upon a fraudulent Affidavit of Service filed by a Process Server in Adelaide. The applicant received a summons from the Adelaide Magistrates Court from the Commonwealth Director of Public Prosecutions, alleging the applicant was obliged to file a Statement of Affairs and had failed to do so, on complaint of Mr Dudley and officers of the Commonwealth Director of Public Prosecutions: [6];

(d)    The Affidavit of Service was served upon a person unknown to the applicant at 23 Paskeville Road, Paskeville SA: [7];

(e)    Mr Chapman commenced an action in the Magistrates Court of South Australia in Adelaide to obtain an Order for Possession for a Chaser Bin that he ordered from the applicant and had paid a deposit for, to avoid payment: [8];

(f)    Mr Dudley acting as Trustee, “did not use due diligence in his acceptance of the Trusteeship of the Estate” and did not enquire whether the bankruptcy order was legitimate: [9];

(g)    The Commonwealth, under s 64 of the Judiciary Act 1903 (Cth), had “mutual dealings through the Federal Circuit Court” and as a “Corporate Offender owes pecuniary penalties and offended s 43 of the Crimes Act 1914 (Cth)” by “not having Selection Steel Trading Pty Ltd strictly prove personal service”: [10];

(h)    Selection Steel Trading Pty Ltd “committed an offence by alleging service upon the applicant was achieved”: [11];

(i)    The Commonwealth Director of Public Prosecutions “attempted to enforce a bankruptcy that is fraudulent”: [12]; and

(j)    At all material times, “Cooper Engineering was and remains a firm within the meaning of the Partnership Act 1891 (SA) and unless sued as a firm, is not subject to the Bankruptcy Act 1996 (Cth). As Trust Property the firm does not vest in a Trustee and while a partnership subsists, each partner is trustee for the other partner”: [13].

The documents Registrar Edwards refused to accept for filing

26    The Form CP14 indictment and Form CP15 indictment information notice (Forms), which Registrar Edwards refused for filing on 31 March 2022, are annexed to the second Cooper affidavit as part of annexure RJC8.

27    The Forms name the prosecutor as The Commonwealth, as a Commonwealth Public Official under authority of the Parliament of the Commonwealth granted by s 13 of the Crimes Act 1914 (Cth) and Criminal Code Act 1995 (Cth) acting through the applicant. It names the accused as Mr Chapman and purports to charge Mr Chapman with an offence under s 43 of the Crimes Act. It purports to allege crimes against humanity under s 268.12 of the Criminal Code Act 1995 (Cth). The Forms also refer to Article 9 of the International Covenant on Civil and Political Rights and Statute 1 Will & Mary C 6 (Coronation Oath) (1688).

The application for judicial review of the Registrars’ decisions

28    As I have noted, on 21 April 2022, I granted leave to the applicant to file an amended originating application to join Registrar Edwards. The applicant did not file an amended originating application. Nonetheless, in view of the submitting notices, I treat the originating application filed 23 March 2022 as applying to the decisions of both Registrar Lackenby and Registrar Edwards. The originating application contains three subheadings: “Details of claim”, “Grounds of application” and “Orders sought”.

Details of claim

29    The applicant asserts three grievances said to result from the Registrars’ decisions to refuse to accept the documents for filing.

30    In the first and second grievance, the applicant contends that FCR 2.26 contravenes s 79 of the Constitution because the judicial power of the Commonwealth may only be exercised by a Judge. The applicant contends a Judicial Registrar is not a Judge, does not have the power to arbitrarily decide any dispute, and that a Judge does not have the power to delegate that authority.

31    In the third grievance, the applicant contends that s 34AB(1)(b) of the Acts Interpretation Act 1901 (Cth) prohibits a Judge from delegating power to a Judicial Registrar and that a Judicial Registrar does not have the power to make a “Rule of the Court” to exercise the power of a Judge.

Grounds of application

32    There are 3 grounds of application. I summarise them as follows:

(1)    Failing to apply the International Covenant on Civil and Political Rights is a criminal offence pursuant to s 268.12 of the Criminal Code Act 1995 (Cth) therefore, any Rules of the Court that are applied to overrule it must be disallowed;

(2)    There is a “wide spread systematic attack on the civilian population” by Registrars willing to “deny the course of justice” in relation to applications for judicial review of administrative decisions; and

(3)    The Free Access to Courts Act 1400 2 Hen 4 c 1 is in force in the ACT.

Orders sought

33    The applicant seeks an order that the decisions of both Registrar Lackenby and Registrar Edwards be set aside and an order that his application be granted.

34    The originating application also seeks that the Court disallow Registrars from exercising their power under FCR 2.26 to refuse the filing of documents in the Courts “bankruptcy and equitable” jurisdiction.

CONSIDERATION

35    The application for judicial review does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to Registrars not having the power to make decisions relating to the filing of documents suggests ss 5(1)(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;

…

36    When refusing to accept a document for filing under FCR 2.26, the Registrars do not make any substantive judgment about the underlying merit of the claims in the proposed proceedings.

37    The Registrars said in their letters to the applicant, that they refused to accept the documents because on their face they were frivolous or vexatious. In so doing, the Registrars were not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but were ensuring compliance with procedural requirements.

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

39    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.

40    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.

41    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.

42    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).

43    Adopting the meanings of “frivolous”, “vexatious” and the expression “abuse of process” set out above, the Bankruptcy Form 2, accompanying affidavit, Form CP14 and Form CP15, were frivolous, vexatious and an abuse of process of the Court.

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

45    In all the circumstances, there is no error in each of the Registrar’s characterisation of the respective 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.

46    In view of my decision that there is no error in the Registrars’ characterisations of the proposed proceedings as frivolous and vexatious on their faces, there is no need to address the applicant’s third grievance set out in [32] above and his application for an order that the Court disallow Registrars from exercising their powers under FCR 2.26.

47    Nonetheless, s 34AB(1)(b) of the Acts Interpretation Act 1901 (Cth) does not prohibit a judge of the Court from delegating power to a Judicial Registrar. Section 35A(1)(h) of the Federal Court of Australia Act 1976 (Cth) specifically provides that if the Court directs, a Registrar has a power of the Court prescribed by the rules of the Court. These sections provided the answer as to why such an order should not be made.

CONCLUSION

48    The application for judicial review filed on 23 March 2022 is dismissed.

Associate:

Dated:    18 October 2022