Federal Court of Australia

Sayed v Salvation Army Housing [2023] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The Registrar be directed under rules 1.37 and 3.04 of the Federal Court Rules 2011 (Cth) to accept for filing the Interlocutory Application lodged for filing on 5 October 2023, on the conditions that:

(a)    first, the Interlocutory Application be amended either to name the Victorian Civil and Administrative Tribunal (VCAT) as a respondent to the Interlocutory Application or to state that the Interlocutory Application is to be served on VCAT; and

(b)    second, the Interlocutory Application be accompanied by either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or other documents on which the applicant relies, in support of the Interlocutory Application.

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

REASONS FOR JUDGMENT (Revised from the transcript)

HORAN J:

Introduction

1    On 5 October 2023, the applicant sought to file at the Victorian Registry an Interlocutory Application accompanied by a covering letter of the same date. By letter dated 9 October 2023, a Judicial Registrar (the Registrar) advised the applicant that she was of the view that the documents should not be accepted for filing pursuant to rr 2.26 and 2.27(b) of the Federal Court Rules 2011 (Cth) (the Rules). On 18 October 2023, the applicant applied without notice under r 3.04 of the Rules for an order that the Registrar be required to accept filing of the Interlocutory Application. This application was heard ex parte before me as duty judge on 20 October 2023.

2    On 23 October 2023, I made orders directing the Registrar under rr 1.37 and 3.04 of the Rules to accept for filing the Interlocutory Application, on the conditions that:

(a)    first, the Interlocutory Application be amended either to name the Victorian Civil and Administrative Tribunal (VCAT) as a respondent to the Interlocutory Application or to state that the Interlocutory Application is to be served on VCAT; and

(b)    second, the Interlocutory Application be accompanied by either an affidavit setting out the facts, matters and documents on which the applicant relies, or a list of the correspondence or other documents on which the applicant relies, in support of the Interlocutory Application.

3    Reasons were delivered orally following the making of those orders on 23 October 2023. The applicant was informed that written reasons would follow. I now publish those reasons.

Background

4    The proceedings in which the current application arises have a lengthy and rather complicated background, some of which was addressed in the first instance judgment of O’Callaghan J in Sayed v Salvation Army Housing [2023] FCA 526 at [11]-[39] (Sayed). I will attempt to summarise some of the key aspects in so far as they are relevant to the present application.

5    In February 2020, the applicant entered into an agreement to lease premises from the second respondent, Salvation Army Housing (Victoria) (SAHV), under the Residential Tenancies Act 1997 (Vic) (RTA). SAHV operates in Victoria as a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It provides housing services pursuant to a Service Agreement entered into with the State of Victoria.

6    Under the rental agreement, SAHV let the premises in question to the applicant for a period of 16 weeks commencing on 6 February 2020 and ending on 28 May 2020 or until terminated in accordance with the RTA. The premises were let for the purpose of providing transitional housing to the applicant whilst he was in housing crisis. Notwithstanding the limited term of the lease, it is apparent that the applicant currently remains in occupation of the premises. There were terms of the rental agreement that SAHV must make sure the premises are maintained in good repair and were in a reasonably clean condition on the day on which the applicant entered into occupation, and that the applicant must keep the premises in a reasonably clean condition during the period of the agreement and must not use or allow the premises to be used in any such manner as to cause a nuisance.

7    On 28 October 2022, the applicant made a complaint to a Commissioner of the Salvation Army, copied to a director of SAHV, in relation to the condition of his apartment. Following this complaint, SAHV issued a notice of inspection of the rented premises under s 86(1)(e) of the RTA. On 9 November 2022, representatives of SAHV conducted an inspection during which they took photographs of the inside of the premises.

8    The inspection and the taking of photographs gave rise to further complaints made by the applicant, who claimed that he had not given his consent either to the entry to the premises or the taking of photographs. I note that it does not appear that the applicant had a right to refuse entry by SAHV in so far as it was exercising a right of entry under the RTA.

9    On 11 November 2022, SAHV issued the applicant with a notice to vacate under s 91ZL of the RTA on the basis that the premises were unfit for human habitation, or had been destroyed totally or to such an extent as to be rendered unsafe. The reasons for the notice referred to the applicant’s letter raising concerns and providing pictures depicting the state of the property, the inspection that was conducted on 9 November 2022 by representatives of SAHV, and the photographs that were taken during that inspection. The notice asserted that the premises were unsafe due to health and safety issues caused by the accumulation of rubbish and failure to maintain the property by the tenant.

10    The service of the notice to vacate led to further complaints made by the applicant against and in relation to the Salvation Army.

11    By an originating motion dated 18 November 2022, the applicant commenced proceedings in this Court claiming relief against a number of respondents including SAHV (VID 685 of 2022). In addition to alleged breaches of the RTA, the applicant alleged contraventions by Salvation Army Housing and SAHV of a number of provisions of Commonwealth legislation, including ss 13 to 13G, 15 and 80W of the Privacy Act 1988 (Cth) (Privacy Act) and s 95.10 of the Australian Charities and Not for Profit Commission Act 2012 (Cth) (ACNC Act), and sought declaratory relief, damages and civil pecuniary penalties under the Privacy Act and under ss 19, 22 and 23 of the Federal Court of Australia Act 1976 (Cth) and s 39B(1A)(c) of the Judiciary Act 1903 (Cth). These allegations seem to relate primarily to the claimed unauthorised use or disclosure of personal information contained in the letter and accompanying pictures that were sent by the applicant to the Salvation Army raising concerns about his welfare at the premises, which led to the notice of inspection and ultimately the notice to vacate. Among other things, the originating motion sought an interim or interlocutory injunction to prohibit SAHV from disclosing or using the photographs of the premises for the purposes of obtaining a possession order in relation to the premises.

12    On 19 December 2022, SAHV made an application to VCAT pursuant to s 322(1) of the RTA for a possession order for the rented premises. The application was based on the notice to vacate given under s 91ZL of the RTA.

13    On 22 December 2022, the applicant lodged for filing an “interlocutory application” in proceeding VID 685 of 2022. This application was accepted for filing on 23 December 2022. The interlocutory application named SAHV as “First Respondent” and VCAT as “Second Respondent”. The interlocutory orders sought were identified in the following terms:

The applicant applies under sections 21 and 23 of the Federal Court of Australia Act 1976 (Cth) (‘FCAA’) and section 39B of the Judiciary Act 1903 (Cth) for a declaration and a writ of prohibition in relation to proceeding (R202235725/00) currently before the Victorian Civil and Administration Tribunal (VCAT/Tribunal) instituted by Salvation Army Housing (Victoria) (SAHV). Refer to attached ‘Notice of Hearing’.

Accordingly the applicant claims following relief:

1. A declaration that the VCAT lacks jurisdiction to entertain the applications instituted by Salvation Army Housing Victoria;

2. A writ of prohibition issued against VCAT directing it to take no further step in the proceedings save for making orders for the dismissal of the proceedings; and

3. Such further orders as the Court sees fit.

14    The grounds of the interlocutory application included the claim that the VCAT proceedings in which SAHV had applied for a possession order involved a matter comprising a single justiciable controversy that was “federal in character, due to the dispute before VCAT, being subject of the proceedings already before the [Federal] Court”, and that VCAT lacked jurisdiction to determine any matter arising under laws made by the Commonwealth Parliament. The interlocutory application stated that it was “intended to serve this application on all Respondents”. While it is unclear whether this referred only to the persons named as respondents on the interlocutory application or extended to all respondents in proceeding VID 685 of 2022, a copy of the interlocutory application was in fact provided to VCAT, which responded by letter dated 17 January 2023 to advise the Principal Judicial Registrar that VCAT did not intend to take an active role in the proceeding and would abide the decision of the Court save as to costs.

15    The applicant also subsequently applied to VCAT for summary dismissal of the possession order application pursuant to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). This summary dismissal application was made on the basis that VCAT did not have jurisdiction to hear or determine an application involving a federal matter (that is, involving an exercise of the judicial power of the Commonwealth).

16    Following a directions hearing before VCAT, SAHV made an application for the matter to be referred to the Supreme Court of Victoria pursuant to s 77 of the VCAT Act. I was told by the applicant during the hearing of the current application that this referral application was made in response to the jurisdictional concerns raised by his summary dismissal application. This appears to be consistent with an affidavit filed in support of the referral application made by SAHV (affidavit of Benjamin Robert Thrift affirmed 3 February 2023), which stated that the Supreme Court of Victoria was a more appropriate forum to deal with the possession application “[h]aving regard to the existence of the Privacy Act and ACNC Act claims, and the provisions of the RTA which vest jurisdiction in respect of the Possession Application in [VCAT]”. The supporting affidavit nevertheless asserted that:

[a]t the time of filing the application for possession at the Tribunal, it was not established (and is still not established) that the claims made pursuant to the Privacy Act and the ACNC Act could have any bearing on the Possession Application pursuant to the RTA and, therefore, whether the subject matter of those claims were part of the same justiciable controversy as the Possession Application.

17    The possession order application was adjourned by VCAT to enable the summary dismissal application and the referral application to be heard together at the same time by a judicial member of VCAT.

18    Neither the summary dismissal application nor the referral application had been listed for hearing by VCAT at the time that O’Callaghan J delivered judgment in Sayed. At the hearing of this application, I was told by the applicant that those applications were not subsequently heard. Indeed, it appears that the possession order application by SAHV did not ultimately proceed any further before VCAT, perhaps as a consequence of the proceedings commenced by the applicant in this Court.

19    The respondents in proceeding VID 685 of 2022 applied for summary judgment. On 26 May 2023, O’Callaghan J upheld that application, and made orders dismissing the proceeding: Sayed. It is unnecessary for present purposes to consider the detail of the reasons for judgment, other than to note that his Honour relevantly found that the provisions of the Privacy Act and the other Commonwealth legislation on which the applicant relied had no application to SAHV and to the circumstances of the case that was before his Honour.

20    On 5 June 2023, the applicant applied for leave to appeal from the judgment of O’Callaghan J. That application for leave to appeal is the current proceeding VID 411 of 2023, in which the applicant has sought to file the Interlocutory Application dated 5 October 2023. Again, it is unnecessary for present purposes to consider the proposed grounds of appeal in any detail. The application for leave to appeal was heard on 16 August 2023 by Katzmann J, whose judgment is currently reserved.

21    On 2 October 2023, in proceeding VID 685 of 2022 (the first instance proceeding that was dismissed by O’Callaghan J), the applicant filed an application for orders against the solicitor for Salvation Army Housing and SAHV for an alleged contempt of court in connection with the proceeding. I do not suggest that there is any proper basis to this application, which has not yet been the subject of any judicial consideration.

22    On or about 24 August 2023, SAHV applied again to VCAT for a possession order in respect of the premises. In contrast to the previous possession order application, this recent application now seeks an order for possession as a result of unpaid rent pursuant to s 91ZM of the RTA, based on a notice to vacate dated 10 July 2023. At the hearing before me, the applicant handed up a copy of a document entitled “Summary of proofs for possession applications by a residential rental provider (landlord) for rent arrears: Notice to vacate given under s 91ZM”. That document provides details of the rental agreement as having commenced on 6 November 2020, and states that the lease ended on 26 March 2021. This appears to be a different and subsequent rental agreement to that referred to in the reasons for judgment of O’Callaghan J in Sayed. Nevertheless, SAHV seeks a possession order on the basis that the applicant had not made any rental payment since 4 November 2022, and in circumstances where the premises were intended to be provided as temporary crisis accommodation and were not intended to be the long-term place of residence for occupants. SAHV is seeking possession of the premises from 30 October 2023.

23    This possession order application (VCAT Ref No R2023/28397/00) was listed for hearing by VCAT on 16 October 2023, but was ultimately adjourned until 2.00 pm on 23 October 2023.

24    The applicant sought to file the Interlocutory Application dated 5 October 2023 in response to the VCAT notice of hearing. The Interlocutory Application identifies that it is being filed in proceeding VID 411 of 2023 and lists the parties to that proceeding, which do not include VCAT. The Interlocutory Application is addressed “To the Respondents” and states that it is intended to serve the application “on all respondents”. The orders sought in the Interlocutory Application are as follows:

The applicant applies under ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) and s 39B of the Judiciary Act 1903 (Cth) for:

i.    A declaration that the Victorian Civil and Administration Tribunal (“VCAT”) lacks authority to hear the application for possession order filed by the second respondent, Salvation Army Housing (Victoria) (“SAHV”).

ii.    A writ of prohibition issued against VCAT, directing it to take no further step in the relation to the application for possession order save for making an order to dismiss that application.

iii.     Such further orders as the Court sees fit.

25    It may be observed that these orders are in materially similar terms to the orders sought in the Interlocutory Application dated 22 December 2022 that was filed in proceeding VID 685 of 2022, but which was not ultimately heard or determined in that proceeding.

26    The grounds set out in the Interlocutory Application dated 5 October 2023 were differently expressed but included a claim that “[t]he rental dispute agitated before VCAT constitutes a substratum of the underlying dispute currently pending in this Court”. The applicant also relied on s 448 of the RTA (which provides that in certain circumstances VCAT must not determine an issue in an application or proceedings if there is a pending civil proceeding before a court in respect of that issue) and a claim of “constructive estoppel” based on an alleged undertaking given by VCAT in relation to proceeding VID 685 of 2022.

27    In his covering letter dated 5 October 2023 addressed to the District Registrar, the applicant stated:

Form 35 - Interlocutory Application in the Federal Court proceeding no: VID 411 of 2023

…

I refer to the above matter currently reserved for judgement by the Honourable Justice Katzmann.

I request for an urgent hearing of the enclosed interlocutory application on account of the eviction proceeding commenced by the second respondent, Salvation Army Housing (Victoria) (“SAHV”) in the Victorian Civil and Administrative Tribunal (“VCAT”).

The VCAT has listed the matter for hearing on 16 October 2023. Please refer to the relevant Notice of Hearing attached to the interlocutory application.

Lastly, pursuant to rule 17.02 the interlocutory application need not be accompanied by an affidavit given that the documents relied in support of the application are part of correspondence between the parties or the authenticity is not in disput [sic]. However if an affidavit is required or deemed appropriate, please direct at you earliest convenience.

I look forward to your earliest response.

28    On 9 October 2023, the Registrar refused to accept the Interlocutory Application for filing. The letter from the Registrar relevantly stated:

I refer to the following documents presented to the Victorian Registry of the Federal Court of Australia on 5 October 2023:

(a)    Interlocutory Application dated 5 October 2023;

(b)    Letter dated 5 October 2023.

By the Interlocutory Application you seek, inter alia, a declaration that the Victorian Civil and Administrative Tribunal (VCAT) lacks authority to hear an application for possession filed by Salvation Army Housing (Victoria), and that a writ of prohibition issue against VCAT, directing it to take no further step in relation to the application for possession save for making an order to dismiss that application.

You have sought to file the Interlocutory Application in matter number VID411/2023. In that matter the Court is reserved for judgment on your application for leave to appeal an interlocutory judgment.

The Documents have been referred to me for consideration as to whether the Registry should accept them for filing.

Rule 2.26 of the Federal Court Rules 2011 (Cth) states that a Registrar may refuse to accept a document for filing if the Registrar is satisfied that the document is an abuse of the process of the Court, or is frivolous or vexatious on the face of the document, or by reference to any documents already filed or submitted for filing with the document.

Rule 2.27(b) of the Rules provides that a document will not be accepted for filing if it does not substantially comply with the Rules.

After careful consideration of the Documents, I am of the view that they should not be accepted for filing pursuant to rules 2.26 and 2.27(b) of the Rules.

The orders sought are not interlocutory in nature, operate against VCAT which is not a party to the proceeding, and are not, on their face, related to a matter within the federal jurisdiction of this Court.

For those reasons, in my view, the Interlocutory Application is, on its face, frivolous or vexatious and an abuse of the Court’s process.

Further, the Interlocutory Application is not accompanied by any supporting affidavit. In the Letter you state that you rely on rule 17.02(1) of the Rules. In order to rely on rule 17.02(1) of the Rules, the conditions in rule 17.02(2) must be met.

If you disagree with this decision you may make an application for judicial review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

29    On 10 October 2023, the applicant filed the present application seeking orders under r 3.04 of the Rules in relation to the Registrar’s refusal to accept the Interlocutory Application for filing. The orders sought by the applicant are in the following terms:

I.    [The Registrar] is ordered to accept filing of the interlocutory application lodged by the applicant on 05 October 2023 (Lodgement ID: 1247812);

II.    A declaration that the Registrar’s reasons for refusing to file the application were affected by error;

III.    Any further order the Court thinks is appropriate.

30    The grounds of the application dispute each of the bases on which the Registrar found that the Interlocutory Application was (on its face) an abuse of process, or frivolous or vexatious.

31    During the course of the hearing, the applicant stated that he no longer presses the application for a declaration (that the Registrar’s reasons for refusing to file the application were affected by error), in the light of the fact that r 3.04 does not necessarily require him to establish error on the part of the Registrar in refusing to accept the Interlocutory Application for filing.

Applicable rules

32    The present application is brought under r 3.04 of the Rules, which provides as follows:

3.04 Application for orders in relation to Registrars

A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.

Note:    Without notice is defined in the Dictionary.

33    The Dictionary defines “without notice” to mean “without serving or advising another party or other person of an application to be made to the Court”.

34    Rule 3.04 is “designed to enable the Court to give appropriate directions to the registrar in aid of the administration of the Court”, and does not require the Court to find specific error in the Registrar’s decision: DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575 (DOB18) at [8]-[9] per Stewart J; Re Pickering [2009] FCA 809 at [16] per Barker J; see also Cristovao v Registrar Scott [2013] FCAFC 92 at [17] per North, Siopis and McKerracher JJ; MS PD v Registrar of the Federal Court of Australia [2021] FCA 1197 at [8] per Logan J; Somasundaram v Luxton [2020] FCA 1076 at [16] per Murphy J. Unlike an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth), an application under r 3.04 avoids the need to establish reviewable error in the state of satisfaction formed by a Registrar under a provision such as r 2.26. Accordingly, the Court should give a direction to the Registrar if it considers it to be in the interests of the due administration of justice to do so: DOB18 at [9] per Stewart J.

35    I note that, while r 3.04 deals specifically with the refusal a Registrar to do any act or thing that the Registrar is required or entitled to do, the Court also has general power under r 1.37 to direct a Registrar to do, or not to do, an act or thing.

36    In the present case, the Registrar’s decision not to accept the Interlocutory Application for filing was based on rr 2.26 and 2.27, which provide as follows:

2.26     Refusal to accept document for filing – abuse of process or frivolous or vexatious documents

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

(a) on the face of the document; or

(b) by reference to any documents already filed or submitted for filing with the document.

2.27     When documents will not be accepted in a Registry

A document will not be accepted for filing if:

(a) it is not substantially complete; or

(b) it does not substantially comply with these Rules; or

(c) it is not properly signed; or

(d) a Registrar has refused to accept the document; or

(e) the Court has given a direction that the document not be accepted; or

(f) the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

Note:     If a document is lodged with the Court in accordance with paragraph 2.21(1)(b), (c) or (d) and the Registry does not accept it, a Registrar will notify the sender of the document accordingly.

37    As r 2.26 makes clear, the Registrar’s satisfaction that a document is an abuse of the Court’s process or is frivolous or vexatious must be formed either on the face of the document, or by reference to any documents already filed or submitted for filing with the document. The power conferred by r 2.26 is an administrative power and not a judicial power, and must therefore be exercised administratively: Nyoni v Murphy (2018) 261 FCR 164 (Nyoni) at [36]-[37] per Barker, Banks-Smith and Colvin JJ; Ferdinands v Registrar Cridland [2022] FCAFC 80 at [29] per Charlesworth, Burley and Cheeseman JJ; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 (Bizuneh) at [15]-[16] per Lee, Whitlam and Jacobson JJ. This means that a Registrar acting under r 2.26 does not adjudicate the substantive merits of the claims advanced in an application sought to be filed in order to determine whether those claims are an abuse of process or are frivolous or vexatious; rather, the Registrar considers whether the document is in its form or content an abuse of process or is frivolous or vexatious, irrespective of any substantive assessment of its merits: Nyoni at [38]-[39]. While abuse of process can encompass circumstances in which a claim or proceeding cannot possibly succeed (see Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ), this must be clear on the face of the document or from other documents filed or submitted for filing, and without any judicial consideration of the substantive merits. The outcome of a refusal of acceptance of a document means that “the matter is not brought forward for any adjudication”: Nyoni at [37].

Consideration

38    In the present case, the claim sought to be advanced by the applicant by his Interlocutory Application dated 5 October 2023 is that VCAT has no jurisdiction in the proceedings arising from SAHV’s application for a possession order because it forms part of a single justiciable controversy that is a matter within federal jurisdiction, and is the subject of the proceedings currently before this Court seeking leave to appeal from the summary dismissal of the applicant’s amended originating application dated 9 February 2023.

39    It is unnecessary for present purposes to reach any concluded view on the applicant’s submission that the proceedings before VCAT form part of the same matter or controversy as that raised in the pending proceedings before this Court. Rather, the question is whether the applicant’s claim to that effect is sufficiently connected to the matter currently before this Court as to make it appropriate for the applicant to make an application for that relief.

40    In this regard, it may be noted that an analogous interlocutory application for similar relief directed against VCAT was accepted for filing in proceeding VID 685 of 2022 before O’Callaghan J, although it appears that this application was not heard or determined prior to the summary dismissal of that proceeding. Of course, the fact that a similar interlocutory application in relation to earlier VCAT proceedings was previously accepted for filing is not itself determinative of the question whether the current interlocutory application is properly regarded as an abuse of process or frivolous or vexatious for the purposes of r 2.26.

41    The applicant places some reliance on the decision in Qantas Airways Ltd v Lustig (2015) 228 FCR 148 (Qantas Airways). In that case, Perry J made a declaration that VCAT lacked jurisdiction in proceedings that had been brought against Qantas Airways Ltd (Qantas) in VCAT for relief under the Fair Trading Act 1999 (Vic) and for breach of contract, in circumstances where Qantas had relied by way of defence on provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). The Court found that the raising of a federal defence (that is, alleging rights or duties under a law of the Commonwealth) deprived VCAT of jurisdiction, on the basis that VCAT was not a court of a State in which federal jurisdiction had been vested under s 77 of the Commonwealth Constitution.

42    The applicant’s submission that VCAT has no jurisdiction to hear or determine the pending possession order application may face several hurdles. In contrast to cases such as Qantas Airways, it is not immediately apparent whether any federal claims or defences arising under Commonwealth laws have been raised in the proceedings currently before VCAT, which appear to arise from a fresh application for a possession order based on unpaid rent under s 91ZM of the RTA. The fact that the applicant has proceedings in this Court arising out of his relationship or dealings with SAHV (or the other respondents) does not of itself necessarily deprive VCAT of jurisdiction to hear and determine an application made under the RTA, and nor does it bring that application within the jurisdiction of this Court. Nor is it clear whether or how the claims made in the proceedings litigated in this Court under various Commonwealth statutes (including the Privacy Act or the ACNC Act) are relevant to or bear upon any rights and duties under the RTA that are in issue in the proceedings before VCAT.

43    There may also be practical options available to the applicant or SAHV in the proceedings before VCAT in order to deal with any threshold jurisdictional issues. As he has previously done in relation to the earlier VCAT proceedings, it may be open to the applicant to raise his objection to jurisdiction before VCAT, whether by way of an application for summary dismissal or otherwise. I note that this was also a course that was initially taken by Qantas in Qantas Airways at [24]-[32]. It is clear that VCAT would have power or jurisdiction to consider for itself whether it has jurisdiction in the proceeding, albeit that it could not make a binding determination on that question: see eg Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 at [21], [24]-[27] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ and [63]-[65] per Edelman J. It may also be possible for another application to be made for the proceeding to be referred to the Supreme Court of Victoria under s 77 of the VCAT Act in order to avoid any jurisdictional doubts. In this regard, the view expressed by Perry J in Qantas Airways at [105]-[109] that VCAT lacks power to refer to the Supreme Court a proceeding in which it lacks jurisdiction has not subsequently been accepted by the Victorian Court of Appeal: see Thurin v Krongold Constructions (Aust) Pty Ltd [2022] VSCA 226; (2022) 407 ALR 187 at [152] per McLeish, Niall and Walker JJA. Further, it may be possible to have recourse to Part 3A of the VCAT Act, which permits controversies involving federal subject matter to be brought before the Magistrates’ Court of Victoria, including on the application of a person whose application to VCAT in its original jurisdiction is struck out, dismissed, rejected or withdrawn on the ground that VCAT has no jurisdiction to exercise judicial power to resolve the relevant controversy.

44    Nevertheless, neither the consideration by the Registrar under rr 2.26 and 2.27 nor the present application under r 3.04 for an order directing the Registrar to accept the Interlocutory Application for filing necessitate a determination of these questions. It suffices for present purposes to conclude that the relief sought in the Interlocutory Application, and the basis on which that relief is sought, are sufficiently connected to the matters currently before this Court that it is appropriate to allow the applicant to file the Interlocutory Application. I do not consider or determine whether or not the Interlocutory Application has any reasonable prospect of success. The substantive merits of the Interlocutory Application will be a matter to be addressed if and when that application is listed for hearing, on notice to all interested parties: compare DOB18 at [31] per Stewart J. As the Full Court observed in Bizuneh at [19], a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a Judge, may still apply for a summary judicial determination that the proceeding be stayed or dismissed if that respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious.

45    In the decision giving rise to the present application, the Registrar observed that the orders sought in the Interlocutory Application “operate against VCAT which is not a party to the proceeding”. That observation is well-founded. I consider that it is necessary that the Interlocutory Application be made on notice to VCAT, against whom the orders are sought. This does not necessarily require that VCAT be joined as a party to the proceedings, although that may be an appropriate course if the relief were to be properly regarded as final in nature. But VCAT should at least be named as a respondent to the Interlocutory Application, or as a party upon whom it is intended to serve the Interlocutory Application, as was done in the applicant’s previous Interlocutory Application dated 22 December 2022 that was filed in proceeding VID 685 of 2022.

46    The Registrar also considered that the Interlocutory Application was not accompanied by a supporting affidavit and failed to comply with the conditions in r 17.02(2) that must be met in order to rely on r 17.02(1). Rules 17.01 and 17.02 provide as follows:

17.01 Interlocutory application

(1) A party who wants to apply for an order in a proceeding that has already started must file an interlocutory application, in accordance with Form 35, that must:

(a) state, briefly but specifically, each order that is sought; and

(b) if appropriate, be accompanied by an affidavit.

...

17.02 Reliance on correspondence or undisputed documents

(1) An interlocutory application need not be accompanied by an affidavit if a party (the first party) wants to rely on correspondence or other documents, the authenticity of which is not in dispute.

(2) However:

(a) the first party must provide a list of the correspondence or other documents to each other party; and

(b) each other party must notify the first party of any further documents that should be added to the list; and

(c) the first party must file the documents mentioned in paragraphs (a) and (b); and

(d) if the documents mentioned in paragraphs (a) and (b) number more than 6 documents, the documents must be indexed and paginated.

47    As a further reason for refusing to accept the Interlocutory Application for filing, it appears that the Registrar may have regarded the failure to provide a supporting affidavit as a failure to comply substantially with the Rules within the meaning of r 2.27(b).

48    In his covering letter accompanying the Interlocutory Application dated 5 October 2023, the applicant relied on r 17.02 in stating that the application: “need not be accompanied by an affidavit given that the documents relied in support of the application are part of correspondence between the parties or the authenticity is not in [dispute]”. The applicant nevertheless invited the Registrar to direct “if an affidavit is required or deemed appropriate”.

49    Rule 17.01 does not prescribe an absolute requirement that an interlocutory application must invariably be accompanied by an affidavit, but rather requires an affidavit in support “if appropriate”. Rule 17.02(1) deals with one situation in which an affidavit is unnecessary, namely where the party wants to rely on correspondence or other documents whose authenticity is not in dispute, provided that the party provides to each other party a list of the correspondence or other documents on which the party relies, and files the documents together with any further documents notified by another party. There may be other circumstances falling outside r 17.02 in which the filing of an affidavit is considered not to be appropriate.

50    In the present case, given the nature of the matters that need to be addressed in order for the applicant to establish a right to the relief sought in the Interlocutory Application, it is appropriate for an accompanying affidavit to be filed setting out the facts and matters on which the applicant relies, or at least that the correspondence and other documents on which the applicant seeks to rely are identified by way of a list in accordance with r 17.02, assuming that their authenticity is not in dispute. By way of example, I note that the current proceedings before VCAT to which the relief sought in the Interlocutory Application is directed were brought by SAHV after Katzmann J reserved judgment on the application for leave to appeal, and accordingly to that extent it is necessary for the applicant to rely on facts and documents beyond those already filed in the proceeding.

51    In forming the view that the applicant’s Interlocutory Application was, on its face, frivolous or vexatious and an abuse of process, the Registrar also observed that the orders sought in the application were not interlocutory in nature. In his present application under r 3.04, the applicant takes issue with this observation, and contends that the orders sought are interlocutory because they do not finally determine the rights of the parties in the underlying dispute concerning the alleged breaches by the respondents of the Privacy Act and equitable duties of confidence. On one view, the orders sought in the Interlocutory Application are arguably final in nature, in so far as they seek to establish that VCAT does not have jurisdiction and to prohibit VCAT from taking any further step in the proceeding other than to dismiss the application. Thus, it might have been possible for the Interlocutory Application to be formulated as a separate originating application for final relief, or perhaps by way of amendment to the relief sought on the application for leave to appeal. Ultimately, however, I do not consider that the character of the orders sought as final or interlocutory is itself a reason not to accept the Interlocutory Application for filing, particularly in the light of the similarly framed application that was previously filed in the first instance proceeding before O’Callaghan J.

52    For the reasons set out above, I am not satisfied that, for the purposes of rr 2.26 and 2.27 of the Rules, the Interlocutory Application is frivolous or vexatious or an abuse of process, either on its face or by reference to other documents filed in the proceeding.

53    It is not necessary for me to find that the Registrar’s decision not to accept the Interlocutory Application involved any error, and I refrain from doing so. On balance, I am satisfied that it is in the interests of the administration of justice to direct the Registrar to accept the application for filing, under either or both rr 1.37 and 3.04 of the Rules, and subject to the conditions to which I have previously referred which address some of the matters relied on by the Registrar – namely, that the Interlocutory Application should be made against and on notice to VCAT, and should be accompanied by either an affidavit or a list of the correspondence and other documents on which the applicant relies.

Associate:

Dated:    27 October 2023

SCHEDULE OF PARTIES