Federal Court of Australia

Storry v Parkyn [2023] FCA 1141

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

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

REASONS FOR JUDGMENT

(DELIVERED EX TEMPORE AND REVISED FROM TRANSCRIPT)

RANGIAH J:

1    On 17 August 2023, the applicant lodged a proposed originating application and affidavit with the Court’s registry for filing.

2    The respondent, a Registrar of the Court, made a decision under r 2.26 of the Federal Court Rules 2011 (Cth) to refuse to accept the applicant’s documents for filing.

3    The applicant has now filed an originating application seeking review of the Registrar’s decision.

4    The Registrar has filed a submitting appearance and, consequently, there is no contradictor.

5    The applicant seeks review of the Registrar’s decision pursuant to s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (the Rules). There is clear authority that a Registrar’s decision under r 2.26 of the Rules is not reviewable under s 35A(5) of the Act: Nyoni v Murphy [2018] FCAFC 75 at [37]. However, a decision under r 2.26 is amenable to review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act): Nyoni at [41]. I will treat the applicant as having sought judicial review of the Registrar’s decision under s 5 of the ADJR Act.

6    The reasons given by the Registrar state, relevantly:

I am satisfied having considered the content of the documents that the documents are on their face frivolous or vexatious. In circumstances where the court made orders on 15 August 2023 refusing your application for leave to appeal, it would constitute an abuse of process of the Court if a further originating process and affidavit were accepted for filing in this proceeding.

7    It is necessary to briefly discuss some of the extensive history of the proceedings that have been brought by the applicant.

8    On 16 July 2021, the applicant applied to the Business Licensing Authority of Victoria for a real estate agent’s licence under the Mutual Recognition Act 1992 (Cth) (the MRA). As part of her application, the applicant declared that she was, “not the subject of disciplinary proceedings”. The Business Licensing Authority refused the application under s 23(1)(a) of the MRA on the basis that the applicant had provided a materially false or misleading statement as there were ongoing disciplinary proceedings against her in the Queensland Civil and Administrative Tribunal (QCAT).

9    The applicant unsuccessfully applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the Business Licensing Authority, and then appealed to this Court against the Tribunal’s decision. In Storry v Business Licensing Authority (No 2) [2023] FCA 102, Thomas J summarily dismissed the appeal. The applicant then filed a notice of appeal against the judgment of Thomas J.

10    In Storry v Business Licensing Authority [2023] FCA 964, SC Derrington J treated the applicant as having sought leave to appeal since Thomas J’s judgment was interlocutory. Her Honour refused leave to appeal on the basis that the judgment was not attended with sufficient doubt and refusal of leave would not cause the applicant substantial injustice.

11    In the rejected proposed originating application, the applicant sought an order setting aside the orders made by SC Derrington J on 15 August 2023. The application relied upon r 39.05(b) of the Rules, which provides, relevantly, that:

The Court may vary or set aside a judgment or order after it has been entered if … it was obtained by fraud…

12    The proposed originating application claimed that the judgment of SC Derrington J was obtained by “fraud” in two respects. First, false evidence had been placed before QCAT and subsequently the Supreme Court of Queensland. Second, the Business Licensing Authority determined that the applicant had provided a false statement when it knew that her statement was in fact true. It is evident that the “fraudulent” material must have been known to the applicant at the time of the respective proceedings before the Tribunal, Thomas J and SC Derrington J.

13    The power of the Court to set aside its own perfected judgment for fraud requires actual fraud, and that the fraud be proved by fresh evidence not available to the moving party before the judgment was delivered: Clone Pty Ltd v Players Pty Ltd (in liquidation) [2018] HCA 12; (2018) 264 CLR 165 at [2] and [65]; see also Monroe Schneider Assocs (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 at 241; Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 at [60]-[61].

14    The proceeding before SC Derrington J was an application for leave to appeal against the judgment of Thomas J. There is no allegation that her Honour was misled in that proceeding as to the applicant’s prospects of success or whether the applicant would suffer substantial injustice if leave were refused. The applicant does not, in truth, contend that the judgment of SC Derrington J was obtained by fraud, but only that earlier proceedings in the Administrative Appeals Tribunal and QCAT were affected by evidence she characterises as fraudulent. In substance, the applicant seeks to reopen the application for leave to appeal to raise allegations that were known to the applicant and capable of being agitated before SC Derrington J and in the earlier proceedings to the extent they were relevant.

15    The proposed originating application was rejected on the basis that it was an abuse of process. It had no reasonable prospect of success. A proceeding that has no reasonable prospect of success is an abuse of process: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 at 393. The applicant has failed to demonstrate any legal error by the Registrar in making that assessment and in refusing to accept the applicant’s documents for filing.

16    The applicant’s application for review of the Registrar’s decision must be dismissed.

Associate:    

Dated:    22 September 2023