Federal Court of Australia

Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1119

ORDERS

THE COURT ORDERS THAT:

1.    The Originating Application be dismissed.

2.    These orders be entered forthwith.

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before the Court is an originating application for judicial review of a decision of a Registrar of the Court refusing to accept for filing an application for leave to appeal, a draft notice of appeal and a supporting affidavit lodged by the applicant (“Mr Kitoko”).

2    By his application for leave to appeal, Mr Kitoko would seek leave to appeal from the judgment of Burley J given on 21 June 2024 dismissing an interlocutory application dated 21 February 2023 and ordering that the applicants pay the first respondent’s costs (Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675). According to the application for leave to appeal, leave to appeal is required by ss 24(1), 24(1A) and 24(1D)(b) of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”).

3    On 2 September 2024 I made an order pursuant to s 20A of the FCA Act that this matter be dealt with without an oral hearing. I also made an order for the filing of any written submission on which Mr Kitoko sought to rely in support of his application for judicial review. Since making the order pursuant to s 20A, Mr Kitoko has filed a written submission.

4    The decision which the applicant seeks to have reviewed was made by a Registrar under r 2.26 of the Federal Court Rules 2011 (Cth) (“the FCR”). That rule 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    In considering the present application I have had regard to the following material:

(a)    Mr Kitoko’s originating application for judicial review dated 31 July 2024;

(b)    Mr Kitoko’s affidavit affirmed on 31 July 2024;

(c)    Mr Kitoko’s submissions dated 7 September 2024 filed 9 September 2024;

(d)    the judgment of Burley J of 21 June 2024;

(e)    Mr Kitoko’s application for leave to appeal dated 4 July 2024;

(f)    Mr Kitoko’s draft notice of appeal dated 4 July 2024;

(g)    Mr Kitoko’s affidavit sworn on 4 July 2024; and

(h)    the statement of the reasons of the Registrar dated 10 July 2024 for not accepting the documents referred to in (e), (f) and (g) above for filing.

6    The reasons given by the Registrar for refusing to accept the application for leave to appeal and supporting documents were as follows:

The Documents seek leave to appeal from the Orders entered on 21 June 2024 of Justice Burley in proceedings NSD 589 of 2022 and NSD 903 of 2022: Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 4) [2024] FCA 675.

Section 24(l)(a) of the Federal Court of Australia Act 1976 ('the Act') provides that the Court has jurisdiction to hear and determine appeals from Orders of the Court constituted by a single Judge in exercise of the original jurisdiction of the Court. The Orders in matters NSD 589 of 2022 and NSD 903 of 2022 relate to an application for an extension of time to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) and, as such, involved the exercise of the Court's appellate jurisdiction under s 25(1AA)(a) the Act, not the original jurisdiction of the Court. Accordingly, the Court's appellate jurisdiction in these matters is exhausted.

Under r. 2.26 of the Federal Court Rules 2011 (Cth), a Registrar may refuse to accept a document if satisfied that the document is an abuse of the process of the Court. The term 'abuse of process' includes an application in which the jurisdiction of the Court is not properly identified. I am satisfied that these documents are an abuse of process and refuse to accept them for filing.

7    The draft notice of appeal identifies four proposed grounds of appeal. Ground 1 appears to take issue with the fact that the proceeding was reallocated to Burley J and also asserts that Burley J proceeded to hear and determine the whole of the applicant’s interlocutory application dated 21 February 2023 rather than consider various issues raised by the interlocutory application separately. Ground 2 asserts that his Honour denied the applicants procedural fairness, and that his decision was affected by both actual and apprehended bias. Ground 3 relates to what is said to be his Honour’s failure to find that there had been improper communications between Katzmann J and a legal representative for another party and for failing to accept that her Honour should have disqualified herself. Ground 4 relates to what is said to be a failure by Burley J to find that Katzmann J denied Mr Kitoko procedural fairness by not affording him an opportunity to be heard.

8    The background to the interlocutory application dismissed by Burley J on 21 June 2024 may be summarised as follows:

(a)    Mr Jean Pierre Tukala Tukala and Ms Veronique Vela sought review of a decision of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Minister”) refusing to grant a visa to their adult son. Their application for review was dismissed by the Administrative Appeals Tribunal (“the Tribunal”) for want of jurisdiction.

(b)    An application for judicial review of the Tribunal’s decision filed by Mr Tukala and Ms Vela was dismissed by the Federal Circuit and Family Court of Australia (Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 525). The judge who heard that application (Judge Laing) also made an order under s 486F of the Migration Act 1958 (Cth) (“the Migration Act”) that Mr Kitoko pay the Minister’s costs of that proceeding.

(c)    Mr Tukala and Ms Vela filed an application for an extension of time in which to appeal the order dismissing the application for judicial review of the Tribunal’s decision (Proceeding NSD 589 of 2022). Mr Kitoko also filed an application for an extension of time to appeal from the costs order made against him under s 486F of the Migration Act (Proceeding NSD 903 of 2022).

(d)    The applications for orders extending the time to appeal the primary judge’s orders were heard by Katzmann J. Her Honour also heard an application filed by the Minister seeking an order under s 486F that Mr Kitoko pay the Minister’s costs of Proceeding NSD 589 of 2022. Her Honour dismissed both applications for extensions of time on 9 February 2023 and also made the costs order sought by the Minister (Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74, Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75 and Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241).

(e)    On 21 February 2023, Mr Kitoko lodged an interlocutory application seeking orders that the orders made by Katzmann J dismissing the applications for extensions of time be set aside and remitted to a different judge for reconsideration. The orders sought by Mr Kitoko in his interlocutory application were that the:

“… orders of the Full Court of the Federal Court of Australia made on 09 February 2023 be set aside and, in their place, there be orders that:

a.    the judge of Full Court of Federal Court of Australia to be disqualified, on the ground of a reasonable apprehension of bias arising from the Full Federal Court Judge’s secret meeting or private communications with the Minister’s Barrister on 24 November 2022 inside the court’s room after judgement [sic] was reserved, as personally seen by Applicants and Mr. Kitoko, and also on the ground of procedural unfairness arising from the Full Federal Court Judge’s excessive judicial interference relating to excessive judicial questioning or pejorative comments by the full federal court judge, this conduct was said to give rise to a reasonable apprehension of bias.

b.    Mr. Tukala’s application filed 07 August 2022 for an extension of time under rule 36.05 to file a notice of appeal to the Full Federal Court to challenge order 1 made by Laing J on 01 July 2022 (NSD 589/2022), and Mr. Kitoko’s application filed on 21 October 2022 for an extension of time under rule 36.05 to file a notice of appeal to the Full Federal Court to challenge order 2 made by Laing J on 01 July 2022 (NSD903/2022), be remitted to the Full Court of the Federal Court of Australia for rehearing with different Full Federal Court Judge.”

It is clear the reference in the interlocutory application to the orders of the Full Court made on 9 February 2023 is in fact a reference to orders made by Katzmann J on that date in both Proceedings NSD 589 of 2022 and NSD 903 of 2022. It is also clear it was Mr Kitoko’s intention to lodge the same interlocutory application in both proceedings.

(f)    The Registrar refused to accept the interlocutory application and various related documents for filing on the grounds that they were an abuse of process because they sought to challenge the decision of a single judge of this Court exercising appellate jurisdiction. Mr Kitoko brought a proceeding against the Registrar seeking judicial review of the decision refusing to accept the interlocutory application for filing. That application for judicial review was dismissed by Halley J (Kitoko v Registrar, Registry of New South Wales, Federal Court of Australia [2023] FCA 1056 (“Kitoko [2023] FCA 1056”)).

(g)    Mr Kitoko appealed from the judgment of Halley J. The Full Court allowed Mr Kitoko’s appeal and ordered that the Registrar’s decision refusing to accept the interlocutory application for filing be quashed and that the proposed interlocutory application and associated documents which the Registrar refused to accept be deemed to have been lodged for filing on the date and at the time that Mr Kitoko sought to lodge those documents. The Full Court also ordered that the interlocutory application be listed for a case management hearing before Katzmann J (Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14) (“Kitoko FC”). The Full Court held that the interlocutory application and associated documents were lodged for filing before the orders made by Katzmann J were taken to be entered in accordance with r 39.32(3) of the FCR, and at a time when it was still open to her Honour to permit Mr Kitoko to re-open to raise his allegations of bias.

(h)    The interlocutory applications were later reallocated from Katzmann J to Burley J, presumably because they raised allegations of bias and procedural unfairness in relation to the conduct of the hearing by Katzmann J.

(i)    On 21 June 2024 Burley J made orders in proceedings NSD 589 of 2022 and NSD 903 of 2022 dismissing the interlocutory application and ordering the applicants to pay the Minister’s costs of the applications. Those are the orders from which Mr Kitoko now seeks leave to appeal.

9    Both Proceedings NSD 589 of 2022 and NSD 903 of 2022 were commenced in the appellate jurisdiction of the Court: see the Full Court in Kitoko FC at [6] and Pt III, Div 2 of the FCA Act, and, in particular, s 24(1)(d) and s 25(2)(b). Both proceedings sought orders extending the time within which an appeal could be brought from the orders of Judge Laing. The interlocutory application heard by Burley J was brought in the same proceedings and was also heard by his Honour in the appellate jurisdiction of the Court.

The Applicant’s Submissions

10    In his originating application, Mr Kitoko sets out seven grounds upon which he relies in support of this application, which are largely unparticularised. In his written submission, Mr Kitoko relies only on two of those grounds. By the first of these grounds, Mr Kitoko asserts that the Registrar exercised a discretionary power improperly or in bad faith by refusing to accept the documents for filing: see ss 5(1)(e) and 5(2)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). In support of this, Mr Kitoko asserts that the Registrar failed “to refer to the jurisdiction conferred by s 39B(1A)(c) of the Judiciary Act 1903 [(Cth) (“Judiciary Act”)]”. I will refer to this complaint as “Ground 1A”. Mr Kitoko also asserts that this Court had not exhausted its appellate jurisdiction because Burley J was exercising the original jurisdiction of the Court. I will refer to this complaint as “Ground 1B”.

11    Ground 2 as elaborated in Mr Kitoko’s submissions appears to assert that the Registrar, in refusing to accept documents for filing, has “deliberately or intentional[ly] taken an irrelevant consideration into account”: see ss 5(1)(e) and 5(2)(a) of the ADJR Act. However, the submissions do not identify any irrelevant consideration. Instead, in the balance of submissions in relation to this ground, Mr Kitoko seems to assert that the Registrar did not provide a “statement of reasons explaining why the [filing] has been rejected” and that this constituted a ground for review under ss 5(1)(a) and 5(1)(b) of the ADJR Act.

Consideration

12    In Kitoko [2023] FCA 1056, Halley J referred to r 2.26 of the FCR and the power of a Registrar to refuse to accept a document for filing. His Honour said at [40]-[41]:

[40]    It is well established that a decision by a registrar, pursuant to r 2.26 of the Rules, is administrative in nature and thereby susceptible to judicial review under the ADJR Act: Markwell v Registrar of the Federal Court of Australia [2022] FCA 954 at [20] (Cheeseman J), citing with approval Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 at [49] (Marshall, Cowdroy and Buchanan JJ); Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [32] and [41] (Barker, Banks-Smith and Colvin JJ).

[41]    A registrar does not, when refusing to accept documents for filing pursuant to r 2.26 of the Rules, make any substantive assessment or judgment of the merits of the claims in the proposed proceeding: Ferdinands v Registrar Cridland [2021] FCA 592 at [12] (White J); Rana v Registrar Cridland [2021] FCA 848 at 10 (White J); Markwell at [39]. A registrar does not exercise judicial power in refusing to accept a document for filing, pursuant to r 2.26: Wijaya v Judicial Registrar of the Federal Court [2023] FCA 317 at [12] (Wheelahan J). The registrar is instead ensuring compliance with procedural requirement, 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.

Although Mr Kitoko’s appeal from his Honour’s judgment was successful, nothing said by the Full Court casts doubt on the correctness of his Honour’s summary of the relevant principles.

13    The documents that Mr Kitoko now seeks to file are directed at commencing an appeal, rather than seeking to re-open the interlocutory application heard by Burley J. The Full Court’s reasoning regarding r 39.32(3) of the FCR in Kitoko FC is therefore inapplicable.

14    The Registrar was in my opinion completely justified in refusing to accept Mr Kitoko’s application for leave to appeal. It was apparent on the face of the application for leave to appeal and the associated material which Mr Kitoko lodged with it that the judgment of Burley J in each of Proceedings NSD 589 of 2022 and NSD 903 of 2022 was made in the appellate jurisdiction and was one from which no appeal could be brought in this Court. The Registrar was entitled to refuse to accept the application for leave to appeal and the associated material for filing on the basis that the proceeding Mr Kitoko proposed to commence by the filing of those documents was on its face outside the appellate jurisdiction of the Court and an abuse of process. Mr Kitoko’s assertion by Ground 1B that Burley J was exercising the original jurisdiction of this Court is plainly incorrect.

15    As to Ground 1A, the submission that the registrar “failed” to refer to the Court’s jurisdiction under s 39B(1A)(c) of the Judiciary Act is misconceived. Section 39B relevantly provides:

39B    Original jurisdiction of Federal Court of Australia

Scope of original jurisdiction

(1)    Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

(b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

…

16    Section 39B(1A) exists as a general conferral of jurisdiction to overcome the need for “limited Act by Act conferral of jurisdiction upon the Federal Court”: Transport Workers’ Union of Australia v Lee (1998) 84 FCR 60 at 67 per Black CJ, Ryan and Goldberg JJ. It does not overcome the fact that this Court’s jurisdiction may have been exhausted. Nor does it confer any right of appeal in this Court in relation to a decision of a single judge exercising appellate jurisdiction. To the extent that Mr Kitoko intended to refer instead to s 39B more generally, and to the power of the Court to judicially review a decision of an officer of the Commonwealth under s 39B(1), a judge of this Court does not have the jurisdiction to issue a writ of prohibition or grant an injunction against another judge of this Court: Bird v Free (1994) 126 ALR 475 at 478 – 480 per Drummond J as approved by the High Court in Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595 at 608 – 609 per Dawson J, 616 – 617 per Toohey and Gaudron JJ and 631 per Gummow J. In any case, none of the documents Mr Kitoko sought was intended to commence a proceeding under s 39B(1) of the Judiciary Act.

17    As to Ground 2, the Registrar’s reasons for rejecting the documents for filing are set out clearly in the correspondence sent to Mr Kitoko and reproduced in paragraph 6, above. There is no basis for any contention that the Registrar did not properly explain the decision or provide adequate reasons.

18    The originating application seeking judicial review of the Registrar’s decision will be dismissed.

Associate:

Dated:    26 September 2024