Federal Court of Australia

Mbuzi v Hird [2022] FCA 1285

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 15 September 2021, the appellant lodged an “Application – General Federal Law” (the rejected application) and two accompanying documents for filing in the Federal Circuit and Family Court of Australia (Division 2) (the FCFCOA (Div 2)).

2    On 21 September 2021, the respondent, a registrar of the FCFCOA (Div 2) (the Registrar), decided, purportedly under r 2.26 of the Federal Court Rules 2011 (Cth), that the appellant’s documents should not be accepted for filing.

3    The appellant then filed an application in the FCFCOA (Div 2) seeking review of the Registrar’s decision. On 3 February 2022, in Mbuzi v Hird [2022] FedCFamC2G 38, the primary judge dismissed the appellant’s application for review.

4    The appellant now appeals to this Court against the judgment of the primary judge.

Background

5    The appellant has not placed the rejected application and other rejected documents before the Court. It seems that the rejected application named only one respondent, “State Penalties Enforcement Registry” (SPER).

6    The content of the rejected application may be inferred from a document that has been placed before this Court, namely a proposed amended application relied upon before the primary judge. The proposed amended application sought to add and seek relief against Australian and New Zealand Banking Group Limited (ANZ) as a respondent. I infer that the rejected application did not otherwise differ from the proposed amended application.

7    The appellant’s proposed amended application sought:

    orders declaring a notice given by SPER stating that the appellant owed a debt of $8,458.40 to be invalid;

    an injunction restraining SPER and ANZ from causing funds to be removed from the appellant’s bank account in relation to the alleged debt;

    a declaration that SPER had engaged in, “unconscionable, misleading and deceptive, false representations and undue harassment”; and

    damages.

8    The appellant’s proposed amended application alleged that SPER had engaged in conduct that was, “unconscionable, undue harassment, misleading and deceptive and false representations in its claims that the respondent (sic) owes a debt to it of $8,458.40”, and in saying that the debt, “won’t go away”. The appellant alleged that ANZ was negligent in claiming that notices from SPER requiring that ANZ redirect funds from his bank account are “court orders”. The appellant claimed to have suffered emotional distress and other loss and damage as a result of the conduct of SPER and ANZ.

9    On 21 September 2021, the Registrar wrote to the appellant informing him that the rejected application and accompanying documents would not be accepted for filing. The Registrar stated that, under r 2.26 of the Federal Court Rules, a document may be refused for filing if a Registrar is satisfied that the document is an abuse of the process of the Court. The Registrar then stated:

•    Whilst perhaps only procedural in nature, the named respondent on the Documents is ‘SPER’, from my perusal of the Documents it is not entirely clear who the named respondent is.

•    From my perusal of the Documents, you seek relief which includes that the respondent be restrained from suspending your Driver’s Licence and collecting an amount of money issued pursuant to an infringement notice. The Federal Circuit and Family Court of Australia does not have jurisdiction to grant such relief.

•    From my pursuant of the Documents, you appear to seek to agitate issues that have history in the Supreme Court of Queensland, however you have failed to identify how the Federal Circuit and Family Court of Australia has jurisdiction to consider such matters.

•    From my perusal of the Documents, you appear to make mention of the “Australian Consumer Law (ACL) 2021 Sections 20; 21; and 22” and that “the respondent has engaged in conduct that is unconscionable, undue harassment, misleading and deceptive...” The Australian Consumer Law and most relevantly the sections on which you seek to rely (ss 20 and 21) relate to conduct ‘in trade or commerce’ in connection with the ‘supply or possible supply of goods and services’. Matters relating to infringements and the cancellation of Drivers Licences are not in trade and commerce.

10    The Registrar concluded:

In light of the above, I am satisfied that the Documents are frivolous or vexatious and have no prospects of success and are doomed to fail. It would constitute an abuse of process of the Court if they were accepted for filing.

11    It can be seen that the Registrar considered that the appellant’s documents were frivolous or vexatious and an abuse of process for two reasons. First, the Registrar considered that the FCFCOA (Div 2) lacked jurisdiction to grant the declaration sought by the appellant against SPER. Second, the Registrar considered that the claim apparently based on contraventions of the Australian Consumer Law must fail.

The judgment of the primary judge

12    Before the FCFCOA (Div 2), the Registrar filed a submitting appearance. There was, accordingly, no contradictor.

13    The appellant has not provided the Court with his application to the FCFCOA (Div 2) for review of the Registrar’s decision.

14    The primary judge’s reasons stated at [2] that the decision to refuse to accept the documents was made pursuant to the provisions of r 2.26 of the Federal Court Rules. His Honour at [3] set out the Registrar’s letter informing the appellant of the reasons for her decision.

15    His Honour at [4] reproduced the appellant’s outline of submissions in full. The appellant had submitted that the Registrar had erred in failing to cite any authorities or legislation and in rejecting his documents, whereas the authorities he relied upon showed that the Court had jurisdiction in respect of his matter. The appellant also claimed that there was an apprehension of bias on the part of the primary judge by reason of his Honour’s conduct during a directions hearing.

16    The totality of the primary judge’s findings were contained in the following paragraphs:

5    For the reasons advanced by Registrar Hird on page 2 of the Refusal Letter of 21 September 2021 (which letter is marked as Exhibit 1 on the Court file), it is found by the Court that the application for review filed on behalf of the applicant is entirely without merit, frivolous and vexatious.

6    The application attempted to be filed by the applicant was Exhibit JM-1 to the applicant’s affidavit filed on 24 September 2021.

7    This Court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant.

8    The Application for Review is accordingly dismissed.

The appeal

17    In the appeal, the Registrar filed a submitting appearance and there is consequently no contradictor.

18    The appellant’s Notice of Appeal sets out the following grounds:

1.    Unreasonableness, in that while the judge below claims (at paragraph 7) that “The court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant”, that claim is not backed by any reasoning or reasons.

2.    Error of law, in that there is no legislation, precedent, or common law that gives immunity to a state government department and a national/international bank (as the ANZ Bank is one such bank) against Federal laws. In fact, there is precedent of a government department (Queensland Police Service) being subjected to courts at Federal level.

3.    Falsity, in that the judge below claims (at paragraph 4) that “At the hearing of the application for review, the applicant relied upon written submissions”, when in fact, there was no hearing held as the matter was decided in the judge’s chambers and the judge refused applicant’s specific request to make appearance and oral submissions. Further, the judge’s falsity and self-contradiction are clearly exposed by his own written judgment on the first page it states:

a.    Date of last submission/s: 9 December 2021

b.    Date of hearing: 11 November 2021. Even a person with just an average level of intelligence would be left wondering how a hearing on 11 November 2021 could be said to have relied on submissions of 9 December 2021, a long time (over a month) before those said submissions had been written and made available. It is respectfully submitted that anyone would find it concerning that a judge at a federal level would lie in writing on how he had passed judgment.

4.    Hostility and abuse of judicial power, in that at the time of giving directions for the matter, the judge below falsely accused the applicant of having filed “two affidavits”, when in fact and truth only one affidavit had been filed in support of the application for review. He went so far as even shutting off applicant’s respectful request to correct the record that the duplicated filings were as a result of incompetence and error by court’s own registry staff.

5.    Refusal and failure by the judge below to consider applicant’s grounds for invoking the jurisdiction of the Federal Circuit and Family Court of Australia even when he was made aware that the respondent had utterly failed to dispute any one of those grounds outlined as marked “JM3” to the affidavit of Josiyas Mbuzi filed on 24 September 2021. Further, at the time of giving directions, the judge below said words to the effect that the applicant did not have to say or give any further statements “because the registrar is obviously right”.

6.    Failure and refusal by the judge below to apply his own thinking to the matter because he states that he made his decision “For the reasons advanced by Registrar Hird on page 2 of the Refusal Letter of 21 September 2021” (at paragraph 5 of the written judgement).

7.    Failure by the judge below to realise that the legislative authorities spelt out in the application the applicant seeks to file (marked JM 1 to the affidavit of Josiyas Mbuzi filed and stamped on 9 December 2021), coupled with the principles of common law, sufficiently confer jurisdiction on the Federal Circuit and Family Court of Australia in relation to that duly prepared application.

8.    Denial of procedural fairness on account of the grounds outlined points 1, 3, 4, 5, 6 and 7 above.

19    In his written submissions, the appellant submits that the judgment under appeal was unjust for the reasons set out in his grounds of appeal.

20    The appellant also submits that the primary judge’s reasons for judgment were inadequate because his Honour failed to refer to any legislation or case law to justify the conclusion that the Court lacked jurisdiction.

21    The appellant claims that his application was made under r 1.06(1) of the Federal Circuit Court Rules 2001 (Cth), r 1.31 and r 1.32 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the FCFCOA General Law Rules), sch 2 of the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law), s 39B(1A)(c) of the Judiciary Act 1903 (Cth) and s 10(2) of the Federal Circuit Court of Australia Act 1999 (Cth). The appellant’s oral submissions focused upon s 39B(1A)(c) of the Judiciary Act.

22    The appellant asserts that the primary judge’s bias, partiality and hostility is demonstrated in the transcript of a case management hearing on 11 November 2021. The appellant claims there were about 16 instances where the primary judge refused to let the appellant finish his sentences. He asserts that he was not permitted to respond to an accusation that the appellant had filed two affidavits in contravention of an order allowing him to file a single affidavit. He submits that his Honour’s comments also indicated prejudgment of the issue of jurisdiction.

23    The appellant asserts that his allegation in his proposed amended application that SPER had contravened the Australian Consumer Law was enough to attract the jurisdiction of the FCFCOA (Div 2). He submits that, “the mere assertion of the federal issue, not its disposition, and not its merit, attracts the jurisdiction of the court”, relying upon Miller v Haweis (1907) 5 CLR 89 at 93 and Felton v Mulligan (1971) 124 CLR 367 at 374. He submits that once a party asserts its position that a matter arises under a federal law, the whole controversy is “federal”, relying on Fencott v Muller (1983) 152 CLR 570 at 606–608 and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 571. The appellant also submits that it was premature for the Registrar to determine that the Court lacked jurisdiction because it was possible that the respondent might file a cross-claim which asserted a claim founded on Commonwealth legislation, relying upon Westpac Banking Corp v Paterson (1999) 95 FCR 59; (1999) 167 ALR 377 at 381. The appellant submits that, “it is abundantly clear that all that is required to invoke federal jurisdiction (and in this case of the [FCFCOA (Div 2)]) is merely a claim, assertion or reference to a legislation arising under the Federal Parliament umbrella”.

Allegations of apprehended bias

24    The appellant’s allegations of apprehended bias should be considered first. That is because those allegations, if made out, would strike at the validity of the hearing at first instance and require the matter to be remitted for rehearing: see Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117] (Kirby and Crennan JJ) and [172] (Callinan J); Jorgensen v Fair Work Ombudsman (2019) 271 FCR 461 at [93].

25    The appellant alleges that statements made by the primary judge and the behaviour of the primary judge towards him indicate an apparent a lack of impartiality.

26    In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ held at [6] that apprehended bias is established:

… if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

(Citations omitted; see also Charisteas v Charisteas [2021] HCA 29; (2021) 393 ALR 389 at [11]-[13]).

27    Their Honours explained at [8] that consideration of an allegation of apprehended bias involves two steps:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.

28    In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, Gaudron and McHugh JJ observed at 100 that:

… what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion, irrespective of the evidence or arguments presented to him or her.

29    In Johnson v Johnson (2000) 201 CLR 488, the plurality observed at [13] that for a judge to express tentative views and to intervene in the conduct of a case does not, of itself, indicate apprehended bias:

At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

(Citations omitted.)

30    The appellant alleges that the behaviour of the primary judge towards him gives rise to an apprehension of bias. Conduct such as excessive judicial intervention and pejorative comments may create an appearance of bias: see RPS v The Queen (2000) 199 CLR 620 at [11]; R v T, WA (2014) 118 SASR 382 at [38]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 at 537-540.

31    The appellant’s complaints concern interruptions by the primary judge during a case management hearing on 11 November 2021. The transcript of that hearing shows his Honour interrupted the appellant a number of times, generally to ask for repetition or clarification of a submission that the appellant was making. There was nothing unusual or improper about that. The interruptions were not gratuitous, rude or argumentative. Nor does the transcript demonstrate hostility on the part of the primary judge.

32    The appellant asserts that he was not permitted to respond to an accusation by the primary judge that the appellant had filed two affidavits in contravention of an order allowing him to file a single affidavit. There was no such accusation. The appellant had filed two affidavits, but only relied on one. The primary judge merely sought to clarify the filing date of the affidavit which the appellant was relying upon.

33    The appellant complains that the primary judge said:

SPER is a part of the State Government … It’s part of the State Government, Main Roads Department or Transport Department. If there is – if you are aggrieved, shouldn’t you be going to a state court – not this court? Mr Mbuzi, I’m giving you some helpful advice, I hope. This court does not have jurisdiction, it would appear to me, to hear your matter. There’s no basis for you bringing the claim in relation to overturning a decision made by SPER. All right. In this court – you should go to another court – a state court, to do that.

34    It is unsurprising that his Honour expressed scepticism about the appellant’s claim that the FCFCOA (Div 2) had jurisdiction to hear the matter since at least the claim for a declaration that the SPER’s notice was invalid lacked any obvious federal connection. The appellant proceeded to direct his Honour’s attention to case law and his Honour then made procedural orders to facilitate a hearing of the question of jurisdiction. It can certainly be accepted that his Honour demonstrated a predisposition against the appellant’s argument concerning jurisdiction, but, as the Full Court observed in Dennis v Commonwealth Bank of Australia (2019) 272 FCR 343 at [32], it is prejudgment, not predisposition, which engages the apprehended bias rule. His Honour’s language, considered in the context of the whole of the case management hearing, did not suggest that he had closed his mind to the appellant’s case.

35    Whether the appellant’s complaints are considered individually or in combination, I do not accept that a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the appellant’s case. The allegation of apprehended bias must be rejected.

Allegations of inadequacy of reasons and denial of procedural fairness

36    The appellant’s Notice of Appeal alleges that the primary judge failed to set out any reasoning for the conclusion that the FCFCOA (Div 2) lacked jurisdiction, consider the appellant’s arguments and authorities, or apply any independent thinking.

37    In Public Service Board (NSW) v Osmond (1986) 159 CLR 656, Gibbs CJ held at 667 that the requirement to give reasons is an incident of the judicial process, and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised.

38    In DL v The Queen (2018) 266 CLR 1, Kiefel CJ, Keane and Edelman JJ observed at [32]:

The content and detail of reasons “will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”. In the absence of an express statutory provision, “a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied”. One reason for this obligation is the need for adequate reasons in order for an appellate court to discharge its statutory duty on an appeal from the decision and, correspondingly, for the parties to understand the basis for the decision for purposes including the exercise of any rights to appeal.

(Citations omitted.)

39    There may be a denial of natural justice where a court fails to respond to a substantial, clearly articulated argument relying upon established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]; Goodwin v Commissioner of Police [2010] NSWCA 239 at [40], [43]; Jess v Cooloola Milk Pty Ltd [2022] FCAFC 75 at [21].

40    In Ultimate Vision Inventions Pty Ltd v Innovation and Science Australia [2022] FCA 606; (2022) 176 ALD 1, Wheelahan J helpfully collected a number of cases involving challenges to the wholesale acceptance by a court or a tribunal of the case of one party. His Honour observed at [144] that such cases have been argued and considered through different lenses. These lenses have included: the adequacy of the reasons provided, whether a party’s case was in fact considered, whether justice was not seen to be done, whether there was independent consideration of the case, denial of procedural fairness, constructive failure to exercise jurisdiction, apprehended bias, and failure to discharge a statutory function.

41    In the present case, the appellant contends that the reasons were inadequate and that the primary judge failed to consider the appellant’s arguments.

42    There were only two findings made by the primary judge. The first was that, “For the reasons advanced by Registrar Hird … it is found by the Court that the application for review filed on behalf of the applicant is entirely without merit, frivolous and vexatious”. This was a finding concerning the merit of the application for review itself, not directly a finding concerning the rejected application. As the reasons given by the Registrar only concerned the rejected application, his Honour did not explain why the Registrar’s reasons made the application for review entirely without merit, frivolous and vexatious.

43    The primary judge’s second finding was that, “This Court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant”. That was a bare conclusion. His Honour offered no explanation for that conclusion. Further, as the Registrar’s reasons merely asserted that the FCFCOA (Div 2) lacked jurisdiction but did not explain why that was so, his Honour’s adoption of the Registrar’s reasons failed to provide any such explanation.

44    In my respectful opinion, the primary judge’s reasons failed to offer any explanation for why the FCFCOA (Div 2) lacked jurisdiction and the rejected application was without merit, frivolous and vexatious. The appellant is correct to submit that the primary judge’s reasons are inadequate.

45    The primary judge’s reasons set out the appellant’s submissions verbatim. However, the reasons do not reveal any engagement with those submissions. I am satisfied that his Honour, despite having set out the submissions, failed to apply any active mental process to them. I accept that his Honour erred by failing to consider the appellant’s arguments.

46    Although the appellant has demonstrated error on the part of the primary judge, the Court has a discretion under s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) to dismiss an appeal on the basis that no substantial miscarriage of justice has occurred: Conway v The Queen (2002) 209 CLR 203 at [6], [29], [36], [38]; Windoval Pty Ltd v Donnelly (2014) 226 FCR 89 at [95]-[96]. If the primary judge’s conclusion was ultimately correct, the appeal should be dismissed despite the inadequacy of the reasons and failure to consider the appellant’s submissions. It is therefore necessary to consider the appellant’s contention that his Honour’s conclusion was wrong.

The allegation that the primary judge was wrong in concluding that the Registrar’s decision did not contain error

47    The appellant submits that the Registrar’s decision to refuse to accept his application for filing, and consequently the primary judge’s dismissal of the application for review, was wrong.

48    The Registrar purported to reject the application under r 2.26 of the Federal Court Rules on the basis that it was frivolous or vexatious and had no prospects of success and would, accordingly, constitute an abuse of process of the court. However, the Registrar overlooked that the FCFCOA General Law Rules had commenced on 1 September 2021. The Registrar made her decision on 21 September 2021. The primary judge considered that the Registrar was entitled to rely upon r 2.26 of the Federal Court Rules because r 1.06(2) of the FCFCOA General Law Rules provides that if those Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules. However, that conclusion overlooked r 2.06 of the FCFCOA General Law Rules.

49    Rule 2.06 of the FCFCOA General Law Rules, provides, relevantly:

A Registrar may refuse to accept a document for filing if:

(a)    the Registrar is satisfied that the document, on its face or by reference to any other documents filed or submitted for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious;

50    The primary judge’s reasons failed to identify on what basis the FCFCOA (Div 2) had jurisdiction to review the Registrar’s decision, or the nature of the review being conducted.

51    In Winn v Boss Lawyers Pty Ltd [2022] FCAFC 156, the Full Court considered an appeal against a judgment of a FCFCOA (Div 2) judge dismissing an application for review of a decision made by a registrar refusing to accept an application for filing under r 2.06 of the FCFCOA General Law Rules. The Full Court rejected the appellant’s submission that the application could be made under s 256 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCOA Act), which allows a party to proceedings in which a delegate has exercised any power under s 254 to apply to the Court for review of that exercise of power. Section 254 allows the Chief Judge to make Rules of Court delegating the powers of the FCFCOA (Div 2). The powers delegated to registrars are set out in r 21.01 of the FCFCOA General Law Rules, but that rule contains no reference to r 2.06.

52    The Full Court held:

[114]    It follows that the exercise of power by the Registrar under r 2.06 of the General Federal Law Rules was not an exercise of delegated judicial power reviewable under s 256 of the FCFCA Act. Rather, r 2.06 directly conferred upon the Registrar the power to make a decision of an administrative character. As such, the Registrar’s Decision was reviewable by the FCFCA (or this Court) under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

(Citations omitted.)

53    It is far from clear that the appellant made his application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). If that matter is assumed in favour of the appellant, it was necessary for the primary judge to examine whether there was any error within s 5 of the ADJR Act.

54    It must also be observed that the appellant’s attempt to add ANZ as a respondent in the course of his application for review of the Registrar’s decision could not assist his case. A review under the ADJR Act is not a de novo hearing. It was a review for legal error on the part of the Registrar on the basis of the material before her when she made her decision: see Johnson v Federal Commissioner of Taxation (1986) 11 FCR 351, 354-355.

55    It is true that the Registrar wrongly applied r 2.26 of the Federal Court Rules rather than r 2.06 of the FCFCOA General Law Rules. However, the Registrar undoubtedly had authority to refuse to accept a document for filing if satisfied that it was an abuse of process or was frivolous, scandalous or vexatious, so that her error was immaterial. There is a discretion under s 16(1) of the ADJR Act as to whether to grant any relief. The application of that provision would have resulted in a refusal to set aside the Registrar’s decision.

56    It is next necessary to consider whether the Registrar made any error of law by concluding that the appellant’s application was frivolous or vexatious and an abuse of process.

57    In Winn v Boss Lawyers Pty Ltd, the Full Court held:

[133]    The Registrar’s power to refuse to accept a document for filing may only be exercised if the conditions specified in r 2.06 are met. In exercising the power, the Registrar is confined to the limited bases referred to in the rule.

[134]    It may be open to a Registrar in a particular case to refuse to accept an initiating process for filing if it constitutes an abuse of process, is frivolous or vexatious. A document might bear that character if it is founded on an argument concerning the interpretation of a statute or instrument that has no reasonable prospect of acceptance. … The question before the Registrar was not whether the construction of r 17.05(2)(a) asserted by [the appellant] was substantively correct: the correct question was whether the construction was reasonably arguable.

58    It appears that the appellant’s rejected application sought relief which apparently included declarations that a notice issued by SPER stating that the appellant owed a debt was invalid and that SPER had engaged in unconscionable, misleading and deceptive conduct in contravention of ss 20, 21 and 22 of the Australian Consumer Law.

59    Section 131(1) of the FCFCOA Act provides, relevantly, that the FCFCOA (Div 2) has such original jurisdiction as is vested in it by laws made by the Parliament. This provision is comparable with s 19(1) of the Federal Court Act which describes the original jurisdiction of the Federal Court of Australia.

60    Section 134 of the FCFCOA Act also confers jurisdiction on the FCFCOA (Div 2), “in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked”. This provision is comparable with s 32(1) of the Federal Court Act.

61    The appellant contends that s 39B(1A)(c) of the Judiciary Act conferred jurisdiction upon the FCFCOA (Div 2) in respect of his matter. Section 39B provides, relevantly:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

…

(1EA)    If:

(a)    a civil proceeding is before the Federal Circuit and Family Court of Australia or a court of a State or Territory; or

(b)    an appeal arising out of such a proceeding is before the Federal Circuit and Family Court of Australia (Division 1) or a court of a State or Territory;

the following apply:

(c)    the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person who is or was a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related civil proceeding decision;

(d)    the following court is invested with, or has conferred on it, jurisdiction with respect to any such matter:

…

(ii)    if the civil proceeding or appeal is before the Federal Circuit and Family Court of Australia (Division 2)—that court; or

…

62    Section 39B(1A) of the Judiciary Act only confers jurisdiction upon the Federal Court of Australia, not the FCFCOA (Div 2). Section 39B(1EA) only confers jurisdiction upon the FCFCOA (Div 2) with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth in relation to a related civil proceeding decision, but no such relief was sought in the present case. Accordingly, s 39B(1A) does not assist the appellant’s argument that the FCFCOA (Div 2) had jurisdiction.

63    The appellant’s rejected application apparently claimed that SPER had engaged in conduct contrary to ss 20, 21 and 22 of the Australian Consumer Law. The appellant’s submissions also refer to s 18 of the Australian Consumer Law, although it is unclear whether the rejected application relied upon that provision.

64    SPER is established under s 7 of the State Penalties Enforcement Act 1999 (Qld) (the SPER Act). Section 8 of the SPER Act describes SPER’s functions as follows:

(1)    SPER has the functions conferred or imposed on it under this or another Act.

(2)    In particular, SPER has the following functions—

(a)    collecting amounts payable to SPER under this or another Act;

(b)    administering the making of enforcement orders;

(c)    taking enforcement action under this Act.

(3)    The functions must be performed in accordance with the SPER charter.

65    The SPER charter, which is set out in s 9 of the SPER Act, includes the aim of maximising the amount of fines and other money penalties paid before enforcement action is taken.

66    The functions and powers of SPER are principally vested in the registrar of SPER. For example, the registrar must register default certificates issued by an administering authority for non-payment of infringement notices (s 33(4)). The registrar must also register particulars of orders that require or may require payment of money to the State of Queensland, including fines and amounts to be paid on forfeiture of a recognisance, for restitution or compensation and through forfeiture of bail undertakings (s 34(3)). On registration of a default certificate or particulars of orders, SPER becomes responsible for the collection of, and may collect, an unpaid amount (s 35(2)). The registrar may issue an enforcement order, an enforcement warrant, or a fine collection notice for the unpaid amount (s 34(4)).

67    It may be seen that SPER is established by the Parliament of Queensland as a body which collects amounts owing under infringement notices and orders of courts.

68    The appellant’s rejected application sought an order declaring a notice given by SPER stating that the appellant owed a debt of $8,458.40 to be invalid. The appellant has not placed the notice itself before the Court. However, the notice was described in a letter from SPER as a, “Fine Collection Notice for the Redirection of a Debt”, issued by the Registrar. The letter stated that, “SPER has provided your financial institution with specific instructions for the actioning of this Fine Collection Notice”. I infer that the notice was served on ANZ.

69    The “Fine Collection Notice for the Redirection of a Debt” was apparently issued by the registrar of SPER under s 34(4) of the SPER Act. Section 103(1) of the SPER Act requires that, upon service of a fine collection notice, a financial institution must deduct the stated amount from accounts held by the enforcement debtor. Section 102(1) requires that a financial institution, for each regular deposit into the enforcement debtor’s account, must deduct the amount stated in the notice and pay it to SPER.

70    The SPER Act does not purport to confer jurisdiction on the FCFCOA (Div 2) to determine disputes arising under the SPER Act. Section 131(1) of the FCFCOA Act has no application to the circumstances of the case.

71    The appellant also purported to bring the rejected application against SPER under ss 18, 20, 21 and 22 of the Australian Consumer Law. Under s 138A of the Competition and Consumer Act 2010 (Cth), the FCFCOA (Div 2) has jurisdiction in relation to any matter arising under the Australian Consumer Law in respect of which a civil proceeding is instituted by a person other than the Commonwealth Minister, for a claim for damages below $750,000.

72    Section 18 of Australian Consumer Law provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 20(1) provides that 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. Section 21(1) provides that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to a person or the acquisition or possible acquisition of goods or services from a person, engage in conduct that is, in all the circumstances, unconscionable. It is a requirement of each of these provisions that the relevant conduct be, “in trade or commerce”. Section 22 sets out the matters which the court may have regard to for the purposes of determining whether there has been a contravention of s 21(1) of the Australian Consumer Law.

73    In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604, the plurality of the High Court held in respect of s 52(1) of the Trade Practices Act 1974 (Cth):

… [T]he section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.

74    In s 2 of the Australian Consumer Law, the meaning of the expression “trade or commerce” has been extended to include, “any business or professional activity (whether or not carried on for profit)”. There remains a requirement that activities or transactions bear a trading or commercial character: Murphy v Victoria (2014) 45 VR 119 at [89]-[92]; Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 at [31].

75    In various contexts, it has been held that the conduct of a public body in merely fulfilling a statutory obligation does not amount to engaging in trade or commerce: see, for example, Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 at [388]; Markit Pty Ltd v Commissioner of Taxation (Cth) [2007] 1 Qd R 253 at [38]; Bride v Shire of Katanning [2016] FCA 65 at [27]-[28].

76    When SPER issued the “Fine Collection Notice for the Redirection of a Debt” and served it upon ANZ, it was engaged in its statutory function of collecting amounts payable to SPER. That function has no trading or commercial character.

77    It is clear that SPER’s conduct was not in “trade or commerce” within ss 18, 20 or 21 of the Australian Consumer Law. Accordingly, the appellant’s claims relying upon those provisions had no chance of success. A proceeding will constitute an abuse of process if it can be clearly seen to be foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393. The Registrar was correct to find that the application was an abuse of process.

78    The appellant is correct to submit that if the FCFCOA (Div 2) has jurisdiction in respect of his claims under the Australian Consumer Law, it may also have jurisdiction in respect of the remainder of his claims. In ASIC v Edensor Nominees Pty Ltd, Gleeson CJ, Gaudron and Gummow JJ held at [7]:

The federal courts established by the Parliament, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court, exercise their jurisdiction, necessarily federal, by reason of its conferral by laws enacted under s 77(i) of the Constitution. A “matter” in respect of which that jurisdiction is conferred may, in a given case, include claims arising under common law or under the statute law of a State. But the jurisdiction invoked remains, in respect of all of the claims made in the matter, “wholly” federal …

(Footnotes omitted.)

79    However, in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212, the Full Court explained at 219 that there may be no matter attracting federal jurisdiction where a claim is merely “colourable”:

The Court's jurisdiction is to determine each of the claims which together constitute a federal “matter”. That jurisdiction cannot be limited … to the determination of only those claims, federal or attached, which are successfully maintained. On the contrary, the jurisdiction is to entertain, and determine, all claims constituting a “matter”, whatever their ultimate fate. … In principle, the position is no different than it would have been if the claims under the Act had proceeded to trial and had been dismissed on the merits. In that situation, it could not seriously be suggested that the dismissal of the claims under the Act had the effect of depriving the Court of jurisdiction to deal with any attached non-federal claim. The position may have been different if the claims under the Act had been “colourable” in the sense that they were made for the improper purpose of “fabricating” jurisdiction …

80    In Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [88], Perry J, citing Burgundy Royale at 219, held:

The raising of a federal claim will ordinarily give rise to a federal matter unless it is colourable in the sense that it is made for “the improper purpose of ‘fabricating’ jurisdiction”. The question, therefore, of whether a claim is tenable will be relevant to that question but not determinative save (rarely) where a claim is so obviously untenable, and would have been so to those who propounded it, that the claim is found to be colourable.

(Citations omitted.)

81    In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, French J observed at [88]:

In the ordinary course the contention that a claim is not tenable will not go to jurisdiction unless dependent upon a submission that the claim is outside jurisdiction. And indeed, within that class a claim may be untenable because its very nature denies its character as an element of any matter or controversy in respect of which the Court can exercise jurisdiction. So a proceeding based upon the proposition that the Commonwealth Constitution is invalid does not disclose a matter arising under the Constitution or involving its interpretation. A claim may also be a sham reflecting no genuine controversy and therefore establishing no matter in respect of which the Court may exercise its jurisdiction.

(Citation omitted.)

82    The appellant’s claim of contravention by SPER of ss 18, 20 and 21 of the Australian Consumer Law is so obviously untenable as to indicate that it is made for the improper purpose of “fabricating” jurisdiction. There is therefore no matter in respect of which the FCFCOA (Div 2) has jurisdiction.

83    The appellant also claims that the FCFCOA (Div 2) had jurisdiction in respect of his rejected application pursuant to s 10(2) of the Federal Circuit Court of Australia Act, r 1.06(1) of the Federal Circuit Court Rules 2001 (Cth) and r 1.31 and r 1.32 of the FCFCOA General Law Rules. The Federal Circuit Court of Australia Act and the Federal Circuit Court Rules were repealed on 1 September 2021.

84    The FCFCOA General Law Rules were made by the Chief Judge, not Parliament: see s 217(1) of the FCFCOA Act. They cannot, within s 131 of the FCFCOA Act, create any, “original jurisdiction as is vested in it by laws made by the Parliament”. They do not, in any event, purport to confer jurisdiction upon the FCFCOA (Div 2).

85    Accordingly, the Registrar was correct to decide that the FCFCOA (Div 2) had no jurisdiction in respect of the appellant’s claims and that the rejected documents were frivolous or vexatious and an abuse of process.

Conclusion

86    The primary judge’s decision to dismiss the appellant’s application for review of the Registrar’s decision was correct. It follows that the appeal should be dismissed.

Associate:    

Dated:    31 October 2022