Federal Court of Australia

Gale v Judicial Registrar Ditton [2024] FCA 730

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review dated 18 April 2024 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

BROMWICH J:

1    This is an application for judicial review of a decision by the respondent, a Judicial Registrar of this Court, not to accept for filing an originating application, statement of claim and genuine steps statement (the Documents). The applicant had presented the Documents to the New South Wales Registry of the Court on 22 March 2024. This Court has jurisdiction to review the Registrar’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and in the exercise of its original jurisdiction conferred by s 39B(1) of the Judiciary Act 1903 (Cth).

2    In presenting the Documents to the Court for filing, the applicant had sought to bring a case as a representative party under Part IVA of the Federal Court of Australia Act 1976 (Cth). The named respondents were the Commonwealth, the Director-General of Security and the Attorney-General of the Commonwealth. Under the heading “Details of claim” in the originating application, the applicant stated:

That the respondent(s) had a state of mind, and engaged in conduct whereby Australian children and minors, within Australia, were subjected to military scientific experiments without their knowledge or consent in the 1970’s and that injury occurred as a result.

3    No members of the asserted group or class that the applicant purported to represent were identified beyond the above general description or the immediately following “Questions common to the claims of group members”:

Did the Respondent(s) have a state of mind, and engage in conduct whereby Australian children and minors, within Australia, were subjected to military scientific experiments without their knowledge or consent in the 1970’s and that injury occurred as a result.

4    Rule 2.26 of the Federal Court Rules 2011 (Cth) empowers the Court’s Registrars to refuse to accept documents for filing in certain circumstances:

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    On 28 March 2024, the Registrar informed the applicant by a letter that she had refused to accept the Documents for filing in an exercise of her power under r 2.26. The relevant portion of her letter states:

I note that the meaning of the terms “frivolous”, “vexatious” were considered by Justice White in Ferdinands v Registrar Cridland [2021] FCA 592 at [27] to [30]. A matter that is frivolous may be described as one that is “without substance or groundless or fanciful” and a matter that is vexatious is an abuse of the process of the Court. The term abuse of process includes an application which has no cause of action properly stated and no prospects of success.

In my view, the Originating Application and Statement of Claim do not disclose, on their face, a cause of action against the proposed respondents that invokes the jurisdiction of this Court. If the jurisdiction of this Court is not enlivened, the proceeding is without substance and has no prospects of success.

Having regard to the above, and to the meaning of the relevant terms considered in Ferdinands, I am of the view that the application you seek to bring is an abuse of process, frivolous and vexatious and as such, I do not accept the documents for filing.

6    On 18 April 2024, the applicant filed an originating application for judicial review of the Registrar’s decision. On 10 May 2024, the Registrar filed a submitting notice, and expressly stated that she did not wish to be heard on costs. There is no evidence of any costs having been incurred by her.

7    The applicant relied on written submissions dated and filed 7 June 2024 in support of this application for review, only a small portion of which address the Registrar’s reasons for the refusal to accept the Documents for filing. In those submissions he states that there are two causes of action disclosed in his statement of claim: trespass to the person and negligence. None of the Documents refer to either cause of action. Even if they did, the Documents do not make clear the basis on which this Court would have jurisdiction to hear an application on either basis. His submissions also refer to “Toxic Torts”, which the applicant appears to understand to be a sub-species of trespass to the person and negligence. The Documents do not refer to a “Toxic Tort” cause of action either.

8    The applicant also made oral submissions which largely consisted of him describing historical events including some involving himself and people in his life, and reading out or referencing paragraphs of his statement of claim. However, at no stage did he demonstrate any error on the part of the Registrar in her concluding that the originating application and statement of claim “do not disclose, on their face, a cause of action against the proposed respondents that invokes the jurisdiction of this Court.”

9    The applicant appears to be under the impression that the purpose of pleadings is to allow him to initiate proceedings, and have evidence adduced, from which he can then attempt to identify and prove a cause of action. That misconceives the role of pleadings documents, which is to make clear the cause of action relied upon and the case that any respondent must meet. The Registrar’s decision that neither the originating application nor the statement of claim originally filed disclose, on their face, a cause of action that invokes the jurisdiction of this Court is correct.

10    Even if the absence of pleading a cause of action was to be rectified by re-pleading, it is not apparent how the jurisdiction of this Court could be engaged in relation to the particular underlying complaint that the applicant appears to have. Nor could he readily overcome the restrictions on bringing class actions, both as to formal requirements and as to this Court’s firm stance, repeated in numerous judgments, on not permitting a litigant in person to bring a representative proceeding.

11    It follows that the originating application for judicial review dated 18 April 2024 must be dismissed. There should be no order as to costs.

Associate:

Dated:    5 July 2024