Federal Court of Australia

Ferdinands v Registrar Burns [2023] FCA 1646

ORDERS

THE COURT ORDERS THAT:

1.    The originating application is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 17 July 2023 the applicant lodged four documents for filing in the South Australia District Registry:  a document titled “Originating application for judicial review”, an affidavit, an outline of submissions and list of authorities (Documents). The Documents are before the Court and are now marked for identification MFI-A.

2    By lodging those documents, the applicant sought to commence a proceeding naming the Premier of South Australia as the sole respondent. The document titled “Originating application for judicial review” stated:

The Applicant applies to the Court to review the decision of the Peter Bryant Malinauskas [sic] that on 10 July 2023 in the State of South Australia he did fail by logic and reason, and by any reasonable conduct to settle a case in which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument.

3    Under the heading “Details of claim” there appear nine paragraphs explaining why the applicant is aggrieved by the decision referred to in that paragraph. Under the heading “Grounds of application” the document alleges a myriad of ways in which the Premier is said to have erred in the making of the impugned decision.

4    Rule 2.26 of the Federal Court Rules 2011 (Cth) relevantly provides:

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.

5    The respondent is a Registrar of the Court. By letter dated 21 July 2023, the Registrar informed the applicant that she had refused to accept the Documents for filing in the exercise of the power conferred by r 2.26. The letter set out brief reasons for the decision. The Registrar’s reasons commence with a summary of principles about the operation of r 2.26. The summary included an extract from the reasons in Ferdinands v Registrar Cridland [2022] FCAFC 80, in which the Full Court approved of the approach of the primary judge in Ferdinands v Registrar Cridland [2021] FCA 592 and Ferdinands v Registrar Parkyn [2020] FCA 1676, as follows:

And, as the primary judge correctly observed, the function of the Registrar is to ensure ‘compliance with procedural requirements, by refusing to accept for filing documents which on their face are frivolous or vexatious or would be an abuse of the Court’s process’:  Ferdinands v Cridland (at [12], original emphasis). The primary judge went on to observe that the words ‘frivolous’ and ‘vexatious’ were not defined in the dictionary contained in the Rules. In respect of their meaning, his Honour said this:

27    … However, the term ‘vexatious proceeding’ is defined in s 37AM(1) of the Federal Court of Australia 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section 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.

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. …

6    The Registrar’s reasons continued:

Reasons for refusing to accept the Documents for filing

Having considered the form and content of the Documents, I have refused to accept the Documents for filing, pursuant to rule 2.26 of the Rules, on the basis that that they are an abuse of process, frivolous and vexatious. The reasons for my decision are set out below:

•    the OA names Peter Bryant Malinauskas, Premier of South Australia, as the sole respondent and seeks a review of ‘the decision of the Peter Bryant Malinauskas that on 10 July 2023 in the State of South Australia he did fail by logic and reason, and by any reasonable conduct to settle a case to which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument’. However, the Documents do not particularise, with sufficient detail, a decision that is capable of review by the Court; and

•    the purported cause of action set out in the Documents is one which on the face of it is one which no reasonable person could properly treat as bona fide as it appears to agitate grievances arising out of your dismissal from South Australia Police more than twenty years ago.

7    Now before the Court is an application for review of the Registrar’s decision.

8    This Court has jurisdiction to review the decision, either under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) or in the exercise of the jurisdiction conferred by s 39B(1) of the Judiciary Act 1903 (Cth). The Court proceeds on the basis that both sources of jurisdiction are invoked.

9    There are multiple grounds of review. It is sufficient to summarise them. They variously allege that:

(1)    the decision is ultra vires the power conferred by r 2.26;

(2)    the decision is affected by fraud;

(3)    the Registrar was wrong to conclude that this Court did not have the power to review the impugned decision of the Premier; and

(4)    the Registrar was wrong to conclude that by lodging the documents the applicant sought to agitate grievances arising out of his dismissal from South Australia Police more than 20 years ago.

10    The applicant relied on written submissions and, in addition, he has filed the following affidavits: 24 July 2023; 8 August 2023; and 6 October 2023. He made oral submissions in support of the grounds of review, which traversed his history of dealings with South Australia Police, including legal proceedings culminating in his conviction for a criminal offence and the termination of his employment as a police officer in around 2000 to 2001. The effect of his oral submissions was that the past prosecution was malicious, unlawful and unconstitutional.

11    The applicant acknowledged that he has on many occasions attempted to invoke the jurisdiction of this Court in order to have the judgment culminating in his conviction set aside and to obtain orders for reinstatement of his employment, an award of compensation for alleged losses and other relief.

12    The applicant’s written and oral submissions confirm that the decision of the Premier about which he complained in the Documents related to proceedings in state courts which in turn related to his history of dealings with South Australia Police and other state entities, including members of the judiciary and prosecutorial authorities.

13    The applicant submitted that this Court “is a supervisor of all of the state courts” and that, accordingly, the Registrar erred in concluding that the Court did not have the power to review a decision of the Premier. The applicant further submitted that this Court had the power to review the impugned decision of the Premier by reason of certain provisions of the Constitution including s 51(xxv) and s 51(xxvi). They are to the effect that the Parliament has the power to make laws with respect to “the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States” and “the people of any race for whom it is deemed necessary to make special laws” respectively.

14    The applicant further submitted that he had been subject to discrimination contrary to the Racial Discrimination Act 1975 (Cth).

Consideration

15    The Registrar was correct to conclude that the Documents did not disclose a decision that was capable of review by this Court. This Court’s jurisdiction is limited by statute. The impugned decision of the Premier is not one that can be reviewed under the ADJR Act or the Judiciary Act. The provisions of the Constitution to which the applicant referred concern the power of the Commonwealth Parliament to make laws with respect to certain subject matter. This Court’s jurisdiction is not conferred by those provisions and it cannot reasonably be argued otherwise. The applicant pointed to no enactment of the Commonwealth conferring power on this Court to review the impugned decision of the Premier. For the purposes of s 78B of the Judiciary Act, there is no genuine issue arising under the Constitution or otherwise requiring its interpretation.

16    The applicant’s references to the Racial Discrimination Act do not assist him. Even if the Documents contain allegations of racial discrimination, the preconditions for this Court to adjudicate on such dispute are not fulfilled.

17    That was a sufficient basis for the Registrar to refuse to accept the Documents for filing. The originating application in this action should be dismissed on that basis alone.

18    The second basis for refusing to accept the documents for filing will nonetheless be considered.

19    A conclusion by a Registrar that a document constitutes an abuse of process is a conclusion that must be reached by reference to the document itself (including in combination with other documents lodged at the same time), and not on the basis of extraneous material.

20    In the present case, the Documents contain sufficient information to support the Registrar’s conclusion that the applicant sought to agitate grievances arising out of his dismissal from South Australia Police more than 20 years ago. But it is not necessary to form a concluded view on that issue. Even if the conclusion were not able to be drawn by the Registrar by reference only to the Documents, the same conclusion is able to be drawn on all of the material now before me. In the course of oral submissions, the applicant acknowledged that he had commenced or attempted to commence many proceedings in this Court with a view to having his criminal conviction set aside and his employment reinstated. That acknowledgment is supported by the Court’s published judgments. Over and again, the applicant has been unsuccessful in his attempts to identify a basis for this Court to make orders vindicating his position in his long-running dispute. See, for example:  Registrar Cridland; Registrar Parkyn; Ferdinands v State of South Australia [2018] FCA 589 and the prior litigation referred to therein.

21    Even if the Registrar committed an error in relation to the second identified basis for refusing to accept the Documents for filing, that would not furnish a sufficient basis to set the Registrar’s decision aside. This Court’s discretion to grant relief on an application for judicial review may be exercised having regard to this Court’s own power to direct that a document not be accepted for filing:  Rules, r 2.27(e) and r 2.27(f). The Documents are such that there could and should be such a direction made by a judge of the Court, even if the decision of the Registrar were affected by reviewable error.

22    The originating application will be dismissed.

Associate:

Dated:    22 December 2023