Federal Court of Australia

Scott v Judicial Registrar Ditton [2023] FCA 947

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review 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:

1    On 7 December 2022, the applicant in these judicial review proceedings, Susan Jane Scott, attempted to file an originating application and supporting documents (Documents). On 20 December 2023, a Judicial Registrar of this Court refused to accept the documents for filing (Decision) pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR).

2    The applicant filed an originating application seeking judicial review of the Decision (JR Application).

3    The Registrar lodged a Form 29 submitting notice on 20 February 2023.

4    The applicant 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.

5    It is for the reasons set out below that the application for judicial review is dismissed.

The documents

6    The originating application the applicant attempted to file on 7 December 2022 claimed:

“Relief sought under the provisions of the Claim of Civil Liability for Wrongful Acts causing Death Act 1936 (SA) asserted as justiciable matters to the Federal Court. Exemplary damages are sought …”

7    The exemplary damages are sought against the Crown Solicitor of South Australia; the President of the South Australian Civil and Administrative Appeals Tribunal (SACAT); the Public Advocate of South Australia, and a fourth person.

8    The Documents referred to ss 19(1) and 32(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) and s 39B(1A) of the Judiciary Act 1903 (Cth).

9    An affidavit sworn by the applicant on 7 December 2022 and sought to be filed at the same time as the originating application is somewhat difficult to comprehend but in essence, the applicant deposes to claiming relief as a result of what is described as the failure of the judicial system in South Australia to consider a claim of civil liability for “wrongful acts to cause death” in relation to Alice Barbara Scott, (Mrs Scott) the applicant’s mother, who died in April 2018.

10    The annexures to the affidavit refer to proceedings before SACAT in relation to an application for administration of Mrs Scott’s property and finances; Supreme Court of South Australia judicial review proceedings against orders of SACAT made in relation to Mrs Scott’s property and finances; the role of the Crown Solicitor before the Supreme Court of South Australia in the judicial review proceedings; and the failure by the South Australian State Coroner to conduct an inquest into the death of Mrs Scott.

11    The Decision was communicated by letter dated 20 December 2022 from the Registrar to the applicant: annexure SJS-1 to the affidavit of Susan Jane Scott sworn 22 December 2022 (first Scott affidavit).

12    The Registrar advised the applicant in the letter that after reading and considering the documents, the Registrar was of the view that there was no jurisdictional basis for this Court to determine the applicant’s originating application since:

(a)    The matter the subject of the originating application does not rise under a Federal Law. The Act relied upon for the relief sought is a South Australian statute;

(b)    Although the affidavit filed in support of the originating application made references to various provisions and contraventions of the Commonwealth of Australia Constitution Act 1900 (Cth), the documents accompanying the originating application do not clearly set out the grounds upon which the application could be considered a matter arising under the Constitution or involving its interpretation. The nature of the relief sought in the originating application does not support the matter being considered a Constitutional Law matter;

(c)    The affidavit filed in support of the originating application refers to the claim as being an “associated matter” for the purposes of s 32(1) of the FCA, however that cannot be the case because there are no other matters referred to in the Documents to satisfy the “core matter” requirement to which the claim might be associated; and

(d)    Since the originating application did not enliven the jurisdiction of the Court, it cannot succeed.

13    On these bases, the Registrar was satisfied the Documents are an abuse of process or frivolous or vexatious.

The Judicial Review application

14    The applicant filed two affidavits in support of her application for judicial review – the first Scott affidavit and an affidavit of the applicant sworn 15 March 2023 (second Scott affidavit).

15    The JR Application does not identify the Act under which the application is brought. 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): Dictionary in Schedule 1 to FCR.

16    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.

17    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.

18    Section 11(1) of the ADJR Act provides that in order for a person to have standing to seek a review of a decision pursuant to that section, the person must be “aggrieved” by the decision to which the ADJR Act applies: s 5(1).

19    The JR Application identifies the Decision followed by a single paragraph under the heading “Details of claim” setting out why the applicant is aggrieved by the Decision and then two paragraphs setting out the “Grounds of application”. The prayer for relief, in effect, seeks an order that the Documents be accepted for filing.

Details of claim

20    The details of the claim is that the Registrar failed to comprehend the originating application as invoking the jurisdiction of the Federal Court.

Grounds of application

21    The two grounds contend:

(a)    First, an alleged failure by the Registrar to acknowledge the subject matter of the originating application “… as the denial of the Rule of Law, Separation of Powers and the common law of freedoms and rights to all Australians encompassed in the Constitution”; and

(b)    Second, a repeat of the first ground as founding a claim of “civil liability” as a consequence of the administration proceedings against Mrs Scott in SACAT to secure her property; proceedings in the Supreme Court of South Australia “to destroy Mrs Scott’s Testamentary freedom as refusal to acknowledge the wrongful acts to cause death to Mrs Scott, as denial of relevant Forfeiture Defence by the Supreme Court and as refusal to file the Claim of civil liability of Wrongful acts to cause death by the Higher Courts Registrar of South Australia.”

The applicant’s submissions

22    The applicant filed written submissions, in which (at [1]) she confirmed her initial application to this Court which is the subject of the Decision, is for this Court “to adjudicate what the South Australian Court refuses to adjudicate”.

23    The applicant describes her claim as arising “… from the failure of constitutional liberal democratic government in South Australia, the refusal by the Supreme Court of South Australia to abide by the Rules of the Supreme Court and in contravention of the common law of Australia to pervert the course of justice.” The claim is also said to “arise from the refusal of the Rule of Law and Separation of Powers in South Australia”.

24    The submissions (at [3]) also refers to the “common law right of Testamentary Disposition in the delegation of a trusted person as Executor”.

25    In the written submissions, the applicant questions the role of the Registrar to act in a way which is described by the applicant as prohibiting the exercise of judicial power.

26    The applicant contests the description of her claim as being an abuse of process, or vexatious or frivolous and contends it is a tool used to censor and disregard factual evidence.

Principles

27    In Ferdinands v Registrar Stone [2022] FCA 589 at [13], I said:

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)

Consideration

28    The JR application does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to the Registrar having failed to comprehend the originating application as invoking the jurisdiction of the Court 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;

…

29    I accept the applicant is a person who is aggrieved within the meaning of s 5(1) of the ADJR Act.

30    Although it is suggested by the applicant in her written submissions that the Registrar acted to prohibit the exercise of judicial power by the Court, that is incorrect. The Registrar did not make a substantive judgment about the underlying merit of the claims in the Documents when making the Decision but was carrying out an administrative task: Nyoni at [41].

31    There can be no suggestion the Registrar was prohibiting the exercise of judicial power. The Registrar was ensuring compliance with procedural requirements.

32    That is sufficient to dispose of the ground of review in s 5(1)(c) of the ADJR Act.

33    In Ferdinands v Registrar Cridland at [27]-[31], White J considered the meaning of the terms “frivolous” or “vexatious” or the expression “an abuse of the Court’s process”. His Honour noted that the Dictionary contained in Schedule 1 to FCR contained a definition of “vexatious proceeding” by reason of a cross-reference to s 37AM of the FCA. 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.

34    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.

35    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).

36    The Registrar made it clear in the letter that the refusal to accept the documents for filing was on the basis that the Documents did not enliven the jurisdiction of the Court such that the claim cannot succeed. On that basis, the Documents were an abuse of the process of the Court, or were frivolous or vexatious.

37    Adopting the meanings of “frivolous”, “vexatious” and the expression “abuse of process” set out above, the Documents were frivolous, vexatious and an abuse of process of the Court.

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

39    In all the circumstances, there is no error in the Registrar refusing to accept the Documents for filing.

Conclusion

40    The application for judicial review is dismissed.

Associate:

Dated:    11 August 2023