FEDERAL COURT OF AUSTRALIA

Mbuzi v Curnow (Registrar) [2025] FCA 213

ORDERS

THE COURT ORDERS THAT:

1.    The originating application for judicial review filed on 21 November 2024 is dismissed.

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

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTION

1    On 21 November 2024, the Applicant filed an originating application for judicial review seeking to review the decision of Registrar Curnow (the Registrar) dated 8 November 2024. The Registrar has filed a submitting notice. The Registrar decided that the following documents submitted by the Applicant could not be accepted for filing. Those being:

(1)    Form 15 – Originating Application dated 29 October 2024 (OA);

(2)    Form 59 – Affidavit of Mr Josiyas Mbuzi dated 29 October 2024 (Original Affidavit); and

(3)    Form 16 – Applicant’s genuine steps statement dated 29 October 2024 (Genuine Steps).

(collectively, the Original Documents)

2    The matter came on for a first case management hearing before Registrar Schmidt on 16 December 2024 wherein it was to be listed for hearing at 10:15 am on 6 March 2025. The Applicant was given an opportunity to file and serve any further affidavits and submissions in support of his judicial review application by 20 February 2025.

3    Given the recent major weather event of Tropical Cyclone Alfred and its aftermath, the hearing was adjourned until 11 March 2025, wherein the Applicant appeared at the hearing of the judicial review application and made further submissions.

THE REGISTRAR’S DECISION

4    The Applicant submitted the Original Documents to the Queensland District Registry on 4 November 2024, which were referred to the Registrar in her capacity as National Duty Registrar to review and determine whether they should be accepted for filing. The Registrar records that she read and considered the Original Documents. The Registrar determined that the Original Documents could not be accepted for filing and in a letter dated 8 November 2024, the Registrar set out the reasons for refusing to accept the Original Documents for filing.

5    The Registrar referred to and applied r 2.26 of the Federal Court Rules 2011 (Cth) (FCR). That rule provides that a registrar may refuse to accept a document, if satisfied that the document is an abuse of process 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.

6    The Registrar referred to the decision of White J in Ferdinands v Registrar Cridland [2021] FCA 592 at [27]-[30], and expressly summarised the meaning of the “frivolous”, “vexatious” and “abuse of process”. Having regard to those matters, the Registrar was satisfied that the OA sought to be filed by the Applicant was an abuse of process, frivolous and vexatious. As such, the Registrar refused to accept the Original Documents for filing pursuant to r 2.26 of the FCR.

7    Although it was not entirely clear on the face of the OA, the Registrar was of the view that the OA appeared to seek damages. The Registrar made express reference to paragraphs 6 and 7, seeking payments of $100 per day until a future point in time, as well as paragraph 8, seeking payment of $75,000 for breach of Pt 111A of the Privacy Act 1988 (Cth). The Registrar observed that r 8.05 requires an originating application seeking relief that includes damages to be accompanied by a statement of claim. The Registrar observed that while the nature of the relief sought in the OA was not specified, it was the Registrar’s view that the relief sought by the Applicant was likely to engage r 8.05 and therefore, the OA should have been accompanied by a statement of claim.

8    Accordingly, the Registrar refused to accept the documents for filing, pursuant to r 2.26 and r 2.27(b) of the FCR. Rule 2.27(b) provides that a document will not be accepted for filing if it does not substantially comply with the FCR. It is apparent that the Registrar was of the view that non-compliance with r 8.05 was substantial non-compliance.

9    It is this decision which the Applicant seeks to judicially review.

JUDICIAL REVIEW APPLICATION

10    The Applicant’s judicial review application is based on and seeks the following:

Details of claim

1.    It is otherwise contrary to law, And also

2.    It is attended with apprehended bias.

Grounds of application

1    Jurisdictional error.

2    Apprehended bias.

3    Breach of procedural fairness.

4    Unreasonableness

5    Error of law

Orders sought

1    An order for the decision to be quashed or set aside.

2    An order for the documents to be accepted for filing as of the date they were lodged.

11    As well as the submissions made by the Applicant at the oral hearing on 11 March 2025, I have also had regard to the following:

(a)    the originating application for judicial review to review the Registrar’s decision to refuse to accept for filing the Original Documents lodged on 21 November 2024 and accepted for filing on 22 November 2024 (JR Application);

(b)    affidavit of the Applicant lodged on 21 November 2024 and accepted for filing on 22 November 2024 (November Affidavit);

(c)    affidavit of the Applicant lodged on 20 February 2025 and accepted for filing on 21 February 2025 (February Affidavit);

(d)    the Applicant’s written outline of submissions lodged on 20 February 2025 and accepted for filing on 21 February 2025.

12    The November Affidavit, amongst other matters, annexed copies of the Original Documents, for the purposes of the JR Application. The February Affidavit provided additional documents which the Applicant submitted supported his contention of apprehended bias.

The Original Documents

13    Before dealing with each of the Applicant’s grounds of review, I will set out the content of the Document which he sought to file.

The Originating Application dated 29 October 2024

14    The OA names Australian and New Zealand Banking Group Limited (the Bank) and Mr Shayne Elliot, who may be the Bank’s Chief Executive, as the first and second respondent respectively. The OA expressly refers to the following, as the bases for which the relief set out in the OA is sought:

(a)    section 39B(1A)(c) of the Judiciary Act 1903 (Cth);

(b)    section 21 of the Federal Court of Australia Act 1976 (Cth);

(c)    Corporations Act 2001 (Cth);

(d)    section 20(1) of the Australian Consumer Law (ACL) or Sch 2 of the Competition and Consumer Act 2010 (Cth);

(e)    Part 111A of the Australian Privacy Act 1988 (Cth);

(f)    “Common law”; and

(g)    Rule 1.32 and r 1.34 of the FCR.

15    The relief which the Applicant’s claims, and the grounds to support which are said to be stated in accompanying affidavit, are as follows:

1.    A mandatory injunction for the first respondent by itself, its agents, or howsoever, to expunge a record of ‘bankruptcy’ it maintains against the applicant’s account profile.

2.    For the second respondent to ensure compliance with order 1, as ANZ Bank’s CE.

3.    A mandatory injunction for the first respondent, by itself, its agents, or howsoever, to expunge a record of $11,417.86 credit card debt it maintains against the applicant’s account profile.

4.    A finding of contempt of court against both the first and second respondents.

5.    A finding of breach of contract against both the first and second respondents.

6.    Payment to the applicant by the first respondent of $100.00 per day from 21 December 2011 until compliance with order 3.

7.    Payment to the applicant by the first respondent of $100.00 per day from 29 March 2012 until compliance with order 1.

8.    Payment to the applicant by the first respondent of $75,000.00 for breach of Part 111 A of the Privacy Act 1988 (Cth).

9.    Interest of 12.5 % on the judgment amount.

10.    Any other order the court deems fit including, but not limited to imprisonment of the second respondent if, non-compliant.

[sic]

Affidavit of Mr Mbuzi in support, dated 29 October 2024

16    The Applicant’s Affidavit exhibits what is submitted to be a record maintained by the Bank against his personal profile. The Applicant states that the record is false and has cost him business opportunities as well as the ability to guarantee his daughter’s mortgage application. It is apparent that the Applicant is referring to the suggested date of bankruptcy in that record as well as a purported debt of $11,417.86.

17    In relation to the suggested date of bankruptcy, the Applicant states he is not bankrupt and that he has never committed an act of bankruptcy. The Applicant annexes an Order of Collier J in QUD315/2011 made on 28 March 2012, which was an appeal from as it was then known, the Federal Magistrates Court. The appeal was allowed and the sequestration order made against the Applicant’s estate was set aside.

18    In relation to the purported debt, the Applicant refers to an earlier allegation by the Bank, in relation to a credit card debt of the same amount. In this regard, the Applicant refers to proceedings in the Supreme Court of Queensland and what he refers to as an “out of court settlement”. An email dated 20 December 2011 is exhibited which is submitted to evidence this position. Further, the Applicant also annexes a copy of an Application which appears to have been filed in the Supreme Court of Queensland in matter number 11847/11, as against the Bank, dated 22 December 2011, and which was made returnable on 23 December 2011. The relief sought in Application 11847/11 was:

1.    That the assurances and undertakings made by the respondent to the applicant on 20 December 2011 be court registered.

2.    Costs to be fixed.

3.    Any other order the Honourable Court deems fit.

19    The email which was dated 20 December 2011 at 1.55 pm, relevantly stated as follows:

Dear Mr Mbuzi

Proposed injunctive proceedings

The assurances below should satisfy all of the matters referred to in your letter dated 14 December 2011 in relation to your proposed injunctive proceedings (adopting the numbering in that letter):

l(a).    I can confirm that ANZ will take all possible steps to remove any record alleging that you owe ANZ $11,417.86. I note that at no time has ANZ alleged that this amount is currently owed to or claimed by ANZ.

l(b).     I confirm that you do not owe ANZ the sum of $11,417.86 in relation to your use of a credit card.

l(c).     I confirm that ANZ will not make any further disclosure to any person which alleges that you owe ANZ the sum of $11,417.86 in relation to your use of a credit card.

2.     I again assure you that ANZ does not allege that you owe to it the sum of $11,417.86.

Please let me know if there are any matters the subject of your letter of 14 December 2011 that you consider to be outstanding.

In light of these assurances, the relief that you intended to seek by way of injunctive proceedings foreshadowed in your letter of 14 December has been met. Further, in light of these assurances, there is no urgency to any claim or relief.

If you do proceed with seeking injunctive relief, ANZ will be required to incur significant legal costs in defending the application and will seek an order for the costs on an indemnity basis.

Please provide this email to the Court with the material in support of your application.

Magistrates’ Court proceedings

The business is considering your proposal and I will revert to you as soon I have received their response.

Yours sincerely

20    The Applicant’s material does not provide evidence of how he obtained the purported personal profile page with the ANZ Bank, which is annexed.

21    The Applicant also seeks to rely on a statement he says was made by his Honour Justice Byrne. There is no judgment or other material referred to, which otherwise evidences this statement. It is also not in evidence what date it is contended that Byrne J made this statement. Finally, there is no evidence regarding what has otherwise occurred or what is the current status of those proceedings in the Supreme Court of Queensland from 2011.

22    There is no evidence annexed to this accompanying affidavit, to support the monetary claims.

Applicant’s Genuine Steps Statement

23    The Applicant’s Genuine Steps states, in summary:

(1)    That since 7 December 2023, he has been dealing with approximately eight different officers of the respondent, in relation to these records, without getting a satisfactory resolution.

(2)    After not getting a satisfactory resolution, he made a complaint to the Australian Financial Complaints Authority (AFCA), without there being a satisfactory outcome.

(3)    That for almost 11 months he has had to provide documents to the Bank and AFCA, without any resolution, as the officers have failed and/or refused to expunge the records in dispute and to also pay compensation.

(4)    This is a case of a multi-billion dollar corporation pitted against an individual of low socio-economic status, from which the Applicant has suggested unfairness has resulted.

(5)    The officers from the Bank and AFCA have stated that their policies does not provide for historical removal of bankruptcy status.

CONSIDERATION

24    Before dealing with the grounds advanced, the scope and purpose of r 2.26 of the FCR should be considered.

Legal Framework

25    Rule 2.26 of the FCR states as follows:

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.

26    Rule 2.26 is in substantively the same form as the previous federal court rules being O 46 r 7A: Rahman v Hedge [2012] FCA 68 at [5]; Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [32], and hence earlier authorities are of assistance.

27    A decision by the Registrar under r 2.26 (or the earlier rule) is an administrative decision, which is therefore amendable to be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): Nyoni at [38]; Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222; [2010] FCAFC 47 at [49]; Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15]–[16]; [2003] FCAFC 42.

28    The purpose of r 2.26 was described by the Full Court in Nyoni at [33] as follows:

[33]    The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15]. It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend. Procedural law deals with the means and instruments by which courts regulate the conduct and relations of courts and litigants in respect of the litigation itself: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176. Compliance with rules as to practice and procedure is usually adjudicated rather than dealt with administratively. However, some aspects of procedural law are carried into effect administratively without any judicial determination.

29    A registrar, when making a decision pursuant to r 2.26 of the FCR, is not considering the underlying merit of the matters the subject of the (proposed) proceedings, nor is a registrar making any substantive judgment about such matters: Ferdinands at [12]. A registrar is ensuring 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 process. The Full Court in Nyoni described it in this way at [38]:

[38]    In those circumstances, a Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious).  The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious).  Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious.  For reasons we have given, we are satisfied that the Registrar acted properly in the exercise of such an administrative power in refusing to accept the application in the present case, and Siopis J was correct to dismiss Mr Nyoni's application to this Court in respect of that refusal.

30    The Applicant’s application for judicial review expressly refers to and relies on the ADJR Act for the purposes of this application.

31    Section 5 of the ADJR Act entitles a person who is aggrieved by a decision to which that Act applies to apply to, amongst others, this Court for an order of review of a decision on any one or more of the grounds contained within the ADJR Act. Section 3(1) of the ADJR Act defines the words “decision to which this Act applies” as being, relevantly for the purposes of this matter, a decision of an administrative character, inter alia, made under an Act of the Commonwealth or by a Commonwealth authority or by an officer of the Commonwealth under legislation defined under an “enactment”. Section 3(1) also defines “enactment”, relevantly to include “An Act” under subsection (a) and an instrument (including rules, regulations or by-laws) made under such an Act or such an Ordinance, unless excluded by s 3A. As the Full Court stated in Satchithanantham at [50]:

There is no reason why a decision by an administrative officer under the Court Act would not satisfy the requirement of such definition. Nor is such a decision one which would be excluded from review by Sch 1 to the Court Act (referred to in the definition of “decision to which this Act applies” at (d) in s 3(1) of the ADJR Act).

32    The Full Court’s reference to the Court Act, in the above passage, was a reference to the Federal Court of Australia Act 1976 (Cth) (see Satchithanantham at [16]).

33    The alternative basis of the Registrar’s decision was pursuant to r 2.27(b) of the FCR, which states as follows:

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.

Grounds 1 and 5 – jurisdictional error and error of law

34    The Applicant’s written submissions commence by reference to the Court’s jurisdiction, observing that the Registrar was exercising administrative power and not judicial power. As explained above, this is correct. The Registrar in considering whether to accept a document for filing is exercising an administrative power.

35    However, the Applicant submits that the Registrar has erred by engaging in a “merit review” of the Original Documents which was outside that administrative power. The Applicant’s submissions in relation to ground 1 were focused upon the Registrar straying into the substance, being the merits of the Applicant’s proceedings. The Applicant submitted that the Registrar acted outside that administrative power.

36    On seeking clarification with the Applicant at the hearing, this ground was not meant to raise the broad spectrum of errors, which if established, result in the conclusion that the decision-maker had committed a jurisdictional error: see Craig v South Australia (1995) 184 CLR 163 at 179; [1995] HCA 58; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 at [60]-[70]. This ground was targeted at a jurisdictional error being an allegation that the Registrar made a decision which exceeded the authority or power conferred upon the Registrar, in that, so the submission was put, the Registrar considered the underlying merits, being the substance of the proceedings. In this way, the Applicant also contended his last ground, error of law, should be read together with this ground. If the Registrar had done this and weighed into the merits, that would be in error.

37    The Registrar does not list or expressly consider the multitude of statutory provisions pursuant to which the Applicant claimed to bring the OA. To take a few examples from the OA, it refers to it being an application pursuant to the “Common law”, and separately the Corporations Act 2001 (Cth), without any specificity to these bases for the relief claimed. Furthermore, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) and then pursuant to other statutory provisions, for example the Competition and Consumer Act 2010 (Cth), seems, on its face, internally inconsistent. The final paragraph seeks that the second respondent be imprisoned if there is non-compliance. There is no express basis or cause of action for the claimed imprisonment and there is no identification of what ‘non-compliance’ is being referred to (although, it may be other paragraphs of the relief claimed).

38    There are 10 separate matters claimed to be the subject of relief of the Applicant’s OA, again none of which are expressly considered in the Registrar’s decision.

39    The Registrar refers to the OA as a whole, “which seeks to commence a proceeding that would be without substance and have no prospect of success”. The respondents are stated as “Australia and New Zealand Banking Group Limited”, without reference to an Australian Company Number or Australian Business Number for that entity and purportedly the Bank’s Chief Executive (however, that is only gleaned by the handwritten addition to Order 2 of the relief sought). The OA states it is intended to serve both respondents but no addresses for service are identified. On the face of the OA, it appears that it seeks to commence proceedings in relation to matters which may or may not have occurred in 2011.

40    The Applicant in his submissions was adamant that he has never been made bankrupt and no debt to the Bank is owed by him.

41    The Applicant also submitted that the Registrar’s requirement of the Applicant to include a statement of claim was beyond power. The Applicant submitted that a judge can decide when hearing a matter whether it should proceed by way of affidavits in lieu of a statement of claim and can make an order dispensing with compliance with any of the FCRs (see r 1.34 of the FCR). The Applicant relied on other originating applications which he had prepared as applicant, and which had been accepted for filing in this Court which were not accompanied by a statement of claim. By these examples, the Applicant submitted that the same should have happened in relation to the Original Documents and they should have been accepted for filing. The Applicant also relied on a particular aspect of the progress of proceedings QUD523/2023 and QUD24/2024, wherein it was submitted that the respondents sought for the matters to proceed by way of statement of claim, which it was submitted, was not accepted by Meagher J in the circumstances of those cases. The Applicant sought to rely broadly on a number of proceedings he has brought in this Court (with references to particular judges of this Court he has appeared before), to support his position that he should not be burdened with technicalities, like a statement of claim. The Applicant submitted that many (if not all) of those matters involved identical relief being sought, by way of an injunction and damages, which was the same relief as was sought against the Bank in the Original Documents. Finally, the Applicant contended that the Registrar in applying r 8.05 did so in isolation and without considering or overlooking other relevant factors, including that a judge can decide for a matter to proceed by way of affidavits.

42    The Registrar expressly refers, with reference to r 2.26 of the FCR, to considering the material “on the face of the document”. The Registrar also refers to the meaning of the terms “frivolous” and “vexatious” from the decision of White J in Ferdinands. In my view, the Registrar considered the OA as a whole and on its face.

43    It is evident by the approach and the reasons of the Registrar that the correct assessment of the Original Documents has been undertaken. I am not persuaded that the Registrar has sought to weigh or consider the underlying merits or the substance of the OA. As outlined above, there is support on the face of the OA that it “would be without substance and have no prospects of success” (as observed by the Registrar). If the Registrar had delved into the substance of the OA, greater detail of the matters contained within the OA would have been expected. I am satisfied that the Registrar has only considered the OA on its face.

44    As a separate basis for making the decision to not accept the OA for filing, the Registrar referred to r 8.05 of the FCR. That rule relevantly requires:

Accompanying document for originating application

(1)    An originating application seeking relief that includes damages must be accompanied by:

(a)    unless paragraph (b) or (c) applies--a statement of claim; or

(b)    if a practice note issued by the Chief Justice requires the originating application to be accompanied by an alternative accompanying document--the alternative accompanying document; or

(c)    if a practice note issued by the Chief Justice permits the originating application to be accompanied by an alternative accompanying document--the alternative accompanying document or a statement of claim.

45    On the face of the OA, the Applicant is seeking damages under paragraphs 6, 7 and 8. The Applicant’s Genuine Steps document, at paragraph 3, also referred to a refusal or failure to “pay compensation”. At the hearing, the Applicant accepted and submitted that he was seeking damages in the OA.

46    The OA was in Form 15, with express reference on the face of the document to r 8.01(1) and r 8.04(1). The OA provided a multitude of bases pursuant to which the Applicant was seeking to claim relief. However, none of those matters made express reference to the proceedings seeking to be under or pursuant to the Federal Court (Corporations) Rules 2000 (Cth).

47    The alternative accompanying document in rr 8.05(1)(b) and (c) is a reference to a “Concise Statement” (see: National Practice Area Practice Note - Commercial and Corporations Practice Note (C&C-1)). Even if that did apply (which is unnecessary to decide), the Applicant’s OA was not accompanied by a concise statement either and hence those subsection would not have been satisfied. The OA was only accompanied by the Original Affidavit (and the Genuine Steps document).

48    As such, I am not persuaded that the Registrar has acted beyond the administrative jurisdiction conveyed, by refusing to accept for filing the Original Documents. Rule 2.27(b) provides that a document will not be accepted for filing if it does not substantially comply with the FCR. The Registrar referred to and applied r 8.05(1) which requires a statement of claim where damages are sought. It was within the administrative jurisdiction of the Registrar, on the face of the Original Documents, to be satisfied that there was not substantial compliance with the FCRs in this respect.

49    For these reasons, grounds 1 and 5 of the JR Application must be dismissed.

Grounds 2 and 3 – apprehended bias; procedural fairness; conflict of interest

50    Although listed as separate grounds, both in the Applicant’s written submissions and at the hearing, the Applicant dealt with these grounds together. As this is how the Applicant presented his case, I will similarly consider these matters together.

51    The Applicant’s written submissions refers to “Judicial Recusal: Principles, Process and Problems by Grant Hammond”, and quotes the following passage:

The administration of justice requires a fair, impartial, neutral, and independent mind. Any deviation in appearance from these characteristics disqualifies a judge from adjudicating on any assigned matters.

52    There can be no doubt as to that principle.

53    The Applicant submits that the question is not whether the Court officer concerned is actually biased, or in fact decided partially the matter, but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there might be bias affecting the decision-making. That is, the Applicant was relying on apprehended bias. At the hearing the Applicant went further and also suggested a failure of the system.

54    It is a “fundamental rule” of natural justice: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [38], that adjudicators, which would include the Registrar making this administrative decision, must be free from bias, being each of actual bias and apprehended bias.

55    An allegation of apprehended bias must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352.  It is not sufficient if the reasonable bystander merely “has a vague sense of unease or disquiet”: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424; [2002] FCA 1054 at [100]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [135].  The test for apprehended bias is whether a fair-minded lay observer, re-being a properly informed member of the public, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question he or she is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6].  Such a reasonable member of the public is neither “complacent nor unduly sensitive or suspicious”: Johnson at [53]. It is a question being “one of possibility (real and not remote)”, not probability: Ebner at [7].

56    To establish error on the basis of an apprehension of bias, a two-step process is required to be considered: Ebner at [8]. First, it requires the identification of what it is said might lead the decision-maker to decide the matters in issue other than on its merits. Secondly, an articulation of the logical connection between the matters and the apprehended feared deviation of deciding the matter on its merits. As the High Court further articulated, the bare assertion that the decision-maker has an ‘interest’ will be of no assistance, until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making, is articulated.

57    These principles were summarised in Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]. The High Court (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ) summarised the principles as follows (footnotes omitted): 

Apprehended bias

[11]     Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute.  The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.

[12]     As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”.

58    The Applicant submits that the Registrar presided in a previous matter in which the Applicant was involved, being BRG167/2024. The Applicant alleges that by reference to the transcript of proceedings before Judge Vasta on 11 July 2024, his Honour determined that “it was not appropriate for the Respondent to any longer have jurisdiction over my matters” (this was the description given by the Applicant to the transcript annexed in his November Affidavit). The Applicant submitted that BRG167/2024 was “removed” from the Registrar and it is within that context that he relied on the observations in the transcript of Judge Vasta.

59    The passages of the transcript relied on by the Applicant state as follows (the First Passage was lines 25-30, however, it should be put in the context of the entire passage by his Honour):

First Passage

HIS HONOUR:    Well, the problem I see here, Mr Scuteri, is that these are matters that are filed in this court. They’re filed in the small claims jurisdiction. That means that they usually are matters that are dealt with by judges, but they have, under section 254 of the Act, what has happened is that the powers to hear matters pursuant to the small claims jurisdiction have been delegated to registrars. So the matter is before a Registrar, and of course if there is any problem with that, there is the remedy of review, which the applicant has exercised here. But the real question here is this, that given what has transpired so far, and given that the applicant has launched a fairly vicious attack upon the character of the Registrar, it’s proper that the court – it may be proper that the court takes back the jurisdiction because it’s obvious the matter can’t go back to Registrar Curnow, given what this applicant has said about her.

Second Passage

HIS HONOUR:     Given what you’ve said about the registrar - - -

Third Passage

HIS HONOUR:     - - - as far as the interlocutory application would be – it was concerned – would be then handled by this court. Therefore, the thinking of the registrar was that the whole matter would now be handled by this court, and wouldn’t be handled by the registrar any more. And that’s a proper basis for the registrar to give to this court. And what the registrar was doing was simply saying, “I do not want to bind the court. I, as a registrar, do not want to tell the judge that this is the timetable. And the judge can figure out whatever timetable the judge wants.”

60    The Applicant submitted that by the First Passage Judge Vasta determined that the matter could not continue with the Registrar. The Applicant submitted that his Honour determined that the Registrar would not be an appropriate person to determine this matter, given what had gone on.

61    Building on this and with reference to the Second Passage, the Applicant submitted that Judge Vasta determined that the Registrar would not be independent and would not bring an independent mind. This was the interpretation advanced by the Applicant.

62    Finally, with reference to the Third Passage, the Applicant submitted that the interpretation of this passage was self-explanatory, in that the matter would not be handled by the Registrar anymore. At the hearing, the following took place, wherein the Applicant withdrew his reliance on this Third Passage:

HER HONOUR:     - - - isn’t his Honour simply saying as far as interlocutory application would be, it was concerned would be then handled by this court. Therefore, the thinking of the registrar was that the whole matter would now be handled by this court and wouldn’t be handled by the registrar any more, and that’s a proper basis for the registrar to give to this court.

MR MBUZI:         I accept, your Honour - - -

HER HONOUR:     And what the registrar was doing was simply saying, “I do not want to bind the court. I, as a registrar, do not want to tell the judge that this is the timetable. And the judge can figure out whatever timetable the judge wants.”

MR MBUZI:    What Judge Vasta was saying there – he was trying to read the mind of Ms Curnow, and I accept your Honour’s interpretation of that.

HER HONOUR:     Yes.

MR MBUZI:     Which is very difficult, but your Honour’s understanding of that – the judge was never told that he was speculating or thinking, and it may be right based on that. That interpretation that your Honour has given might be right.

HER HONOUR:    All right. So that paragraph would not then support your argument of apprehended bias against the registrar.

MR MBUZI:     I will take it away based on what your Honour said at the moment.

63    Although the Applicant refers to the transcript as being where Judge Vasta “determined” certain things, a transcript of proceedings is not a substitute for a Judge’s reasons for decision. As was said in SZDCJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 212 ALR 581; [2004] FCA 1500 at [17]-[18]:

(ii)    Whether the transcript of the hearing of 26 July 2004 sufficiently constitutes reasons within that principle

[17]    While the transcript of the hearing of 26 July 2004 is of some assistance in understanding the issues raised by the parties, the transcript does not fulfil one of the core purposes served by a judicial decision, this purpose was identified by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 :

[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision.

[18]    In my opinion the transcript cannot satisfy this purpose. It contains a true and accurate reflection of the hearing of the matter, but it did not provide the parties with an understanding of the basis upon which the federal magistrate came to his decision.”

64    Also see the Full Court of this Court in National Australia Bank Limited v Norman [2009] FCAFC 13 at [56]:

[56]    The applicants’ counsel took the Court to the transcript of the hearing before the primary judge.  The transcript of argument is an unreliable source of a judge’s reasons for decision.  Exchanges with counsel do not necessarily reflect the judge’s considered views.  However, there is nothing in the transcript which would indicate that the primary judge proceeded upon a wrong principle or misapprehended the facts.  Nor is there anything to suggest that the primary judge took into account any irrelevant facts or failed to have regard to any relevant facts.

65    The Applicant did not rely on the judgment delivered by Judge Vasta dated 11 July 2024 in BRG167/2024, stating that his Honour’s judgment had no reference to the Registrar’s decision.

66    Each of these transcript passages was said to support the Applicant’s ultimate submission that the Registrar’s decision was one affected by apprehended bias. The Applicant, in addition to these passages, sought to also establish this ground by reference to an Order of the Registrar in BRG167/2024, which was annexed to his February Affidavit. The Applicant referred to the following from the Order of the Registrar on 28 June 2024:

THE COURT NOTES THAT:

A.    The respondent filed an interlocutory application on 21 June 2024 which has been referred to a judge.

THE COURT ORDERS THAT:

1.    The timetabling orders dated 15 May 2024 be vacated.

(the 28 June Order)

67    The Applicant also referred to, in this context to the front filing page of that interlocutory application which stated as follows:

Document Lodged:         Application in a Proceeding

Court of Filing:    FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FCFCOA)

Date of Lodgment:         21/06/2024 6:11:40 PM AEST

Date Accepted for Filing:     28/06/2024 3:29:57 PM AEST

File Number:             BRG167/2024

68    Then the Applicant relied on rr 2.25(1)(a) and (b), which states:

When is a document filed

(1)    A document is filed if:

(a)    it is lodged with the Court in accordance with rule 2.21(1); and

(b)    either:

(i)    for a document in an existing proceeding--it is accepted in the proper Registry by having the seal of the Court affixed to it; or

(ii)    in any other case--it is accepted in a Registry by having the seal of the Court affixed to it.

Note:    A document that is accepted for filing is added to the Court file. See the definition of Court file in the Dictionary.

69    Ultimately, the Applicant submitted that these matters meant that the interlocutory application was filed on 28 June 2024. Therefore, the Registrar’s Order which stated that the interlocutory application was filed on 21 June 2024 was “a lie” and “[t]here was no such thing” and this, so the Applicant submitted, was based on bias and prejudice. The Applicant submitted this was supported by the self-evident position that the interlocutory application was not filed on 21 June 2024. Hence, these matters, the Applicant submitted, supported his contention that the Registrar’s decision was effected by apprehended bias.

70    Rule 2.25(3) of the FCR provides as follows:

(3)    If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

(a)    if the whole document is received by 4.30 pm on a business day for the Registry--on that day; or

(b)    in any other case--on the next business day for the Registry.

Note 1:    Business day is defined in the Dictionary.

Note 2:    File is defined in the Dictionary as meaning file and serve.

Note 3:    Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.

71    The proper construction and application of that rule is that once the document is accepted for filing under subrule (1) and the seal of the Court affixed, the document is “taken to have been filed” on the day that the whole document was received, if it was received by 4.30 pm on a business day for the Registry. Otherwise, it is deemed, which is the effect of the words “taken to have been”, to have been filed on the next business day for the Registry.

72    The interlocutory application records that it was lodged on 21 June 2024 at 6:11:40 pm AEST. 21 June 2024 was a Friday. In accordance with r 2.25(3), that would mean that the interlocutory application was taken to have been filed on Monday 24 June 2024, being the next business day for the Registry, as it was received after 4.30 pm on Friday 21 June 2024. It would not be taken to have been filed on 28 June 2024, as was advanced by the Applicant.

73    In this context, the Applicant also relied on an email dated 1 July 2024 and the fact that the interlocutory application was accepted for filing, as support for his submission of apprehended bias. The interlocutory application was filed by solicitors in the BRG167/2024 matter, which it was submitted was in the Fair Work, small claims jurisdiction where leave is required to be represented by lawyers. The Applicant submitted that by the Registrar allowing the solicitors to file the application that supported his submission of apprehended bias. Further to this, the Applicant contended that he received a copy of the 28 June Order, prior to being served with the interlocutory application. In this regard, the Applicant also referred to his email to the Registry on 1 July 2024 at 3.16 pm complaining that he had not been served with the interlocutory application despite the earlier communication of 28 June 2024. The Applicant did provide a further email dated 1 July 2024 at 4.09 pm, from the respondent’s solicitors, serving the interlocutory application in the BRG167/2024 matter. Lastly, the Applicant submitted that the Registrar’s failure to recuse herself also supported his contention of apprehended bias.

74    These events, he submitted supported his allegation of apprehended bias, by the Registrar. In short, the Applicant accepted that his contention could be described as, by the Registrar allowing the solicitors to file an application in a matter which involved a Fair Work, small claims matter, where lawyers are not permitted without an order of the court or consent of the other side, that supported his submission of apprehended bias.

75    Applying then the first step from the two-step process from Ebner it appears that the identification of matters which are relied upon by the Applicant to support his submission that the Registrar would decide this matter, being the refusal to accept the Original Documents for filing, other than on its merits, are as follows:

(1)    the First Passage and Second Passage of the Transcript (Transcript references);

(2)    the suggested error in the 28 June Order (Error in the Order);

(3)    that the interlocutory application seeking leave for the respondent to be represented by lawyers, in a Fair Work, small claims matter was accepted for filing (Acceptance of the IA);

(4)    the sequence of events concerning when the interlocutory application was filed, when the Applicant was given the 28 June Order and when the Applicant was served with that interlocutory application (Sequence of events); and

(5)    cumulatively, when all of these matters are taken together, from BRG167/2025 (Context of BRG167/2024).

Transcript references

76    The Transcript references by Judge Vasta in a separate, different, unrelated proceeding, do not support the submission that the Registrar would decide this matter, being the refusal to accept the Original Documents for filing, other than on its merits.

77    The Transcript references are not observations of the Registrar, from which an approach or mindset is sought to be gleaned. These are observations from Judge Vasta, in a transcript, not a judgment. His Honour did not determine or rule that the Registrar could not continue with the proceedings. His Honour made passing observations in the context of the matters before him.

78    In relation to the First Passage, his Honour Judge Vasta was observing that in light of the fairly vicious attack upon the Registrar’s character, it was now time for the Court deal with the proceedings. That ‘attack’ is the email that the Applicant sent to Alstergren CJ, which was headed “Administrative complaint against Ms Robyn Curnow, a registrar, and a respectful request for her removal from presiding over matter BRG 167/2024”. The language used in that email is inappropriate.

79    Once that email is deprived of the inappropriate language and other irrelevancies, it is clear that the Applicant strongly disagreed with the Registrar regarding:

(a)    the timetabling orders of 15 May 2024, wherein the Applicant was required to file any material in reply (including any further affidavits and/or outline of submissions) within 7 days of the respondent’s material and that further submissions could be made orally at the hearing; and

(b)    the respondent’s lawyers speaking first, rather than the Applicant.

80    Self-represented litigants may prefer to express their position orally, at a hearing rather than in writing. The Registrar in the timetabling orders of 15 May 2024 afforded the Applicant both an opportunity to provide written submissions (together with affidavit material) and to be heard orally at the hearing. Such an approach does not indicate that the Registrar did not bring an impartial mind to the proceedings. It shows a flexible approach and one which affords the Applicant, as a self-represented litigant, opportunities to address the issues in different ways.

81    There is no transcript before this Court in relation to the hearing where the respondent’s lawyers spoke first. As such, it is unknown what issue was raised with them. Although usually an Applicant would address the Court first, it may have been that the Court would be most assisted in hearing from the respondent first. That would also allow the Applicant to hear that response before addressing the Court. Finally, that email is specifically addressing the proceedings in BRG167/2024. None of these matters provides a proper basis to conclude that the Registrar might decide any matter involving the Applicant, other than on its merits.

82    Returning then to the First Passage of the transcript, it is recording an exchange between his Honour and Mr Scuteri, who was the in-house legal counsel with the respondent in BRG167/2024. This was part of the dialogue and argument for the respondent seeking leave to be represented by lawyers, pursuant to the interlocutory application. Although filed by the solicitors who were seeking leave to appear, his Honour appears to have treated it as though the respondent itself filed the application. Judge Vasta’s observations regarding a Judge now dealing with these proceedings and not the Registrar is based upon language used, the strong disagreement conveyed and the tenor of the Applicant’s position in that email regarding the Registrar. That is, it is based on the Applicant’s actions. His Honour is not expressing any concern that the Registrar would decide this matter other than on its merits. The First Passage of the transcript does not convey any of the meanings or interpretations attributed to it by the Applicant. The First Passage of the transcript does not support the Applicant’s contention of apprehended bias.

83    The Second Passage cannot, on any view, be read as the Court finding or determining (or even observing) that the Registrar would not bring an independent mind to the proceedings. The Second Passage states “Given what you’ve said about the registrar….”. Consistent with the observations above, again this is Judge Vasta observing that the Applicant has said some things about the Registrar. It is not an observation regarding the position of the Registrar.

84    Therefore, none of the Transcript references relied on by the Applicant would satisfy the first step in Ebner. Further, none support a position that a fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to issue of whether to accept the Original Documents for filing.

Error in the Order

85    The Applicant submitted that the Registrar deliberately misstated (even going so far as to say that the Registrar was dishonest) the date in the 28 June Order, as the interlocutory application being referred to was not filed on 21 June 2024.

86    In the transcript before his Honour Judge Vasta, wherein his Honour describes what he has before him that day, says “Now, you – World Vision filed that application in a proceedings on 21 June 2024.”

87    On a detailed consideration of the document, the time it was lodged and the application of rr 2.25(1) and (3) of the FCRs, properly the interlocutory application was taken to have been filed on Monday 24 June 2024.

88    The usual position in relation to documents lodged prior to 4.30 pm on a business day for the Registry is that the date of lodgment is taken to be the date of filing. This appears to have been the approach and reference by the Registrar and by his Honour Judge Vasta, when referring to the date of filing of the interlocutory application. It was an error, a clerical mistake, or accidental slip, capable of correction (if necessary) by rr 17.05(2)(g) or (h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOAR).

89    In relation to this error, there is no basis whatsoever for the Applicant to make the submissions concerning the Registrar. I expressly find that there was no dishonesty, lie or any kind of impropriety by the Registrar in referring to the date of the interlocutory application in the 28 June Order.

90    Therefore, the Error in the Order relied on by the Applicant would not satisfy the first step in Ebner. It does not support a position that a fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to issue of whether to accept the Original Documents for filing.

Acceptance of the IA

91    The Applicant submitted that by the Registrar accepting the interlocutory application for the respondent to be represented by lawyers, that supported his contention of apprehended bias. The Applicant elaborated by stating that the respondent’s lawyers prepared and filed the interlocutory application, in circumstances where the lawyers were not the lawyers on the record. As such, so the Applicant contended, the interlocutory application should not have been accepted for filing because it was prepared and signed by those lawyers when the other party (the Applicant) had not consented to the legal representation and the court had not granted leave for that legal representation.

92    Rule 30.10 of the FCFCOAR provides for the small claims procedure, within Chapter 4, being the Fair Work Division. Rule 30.10(3) provides that the court is not bound by any rules of evidence and procedure and may act in an informal manner and without regard to legal forms and technicalities. Section 548(3) of the Fair Work Act 2009 (Cth) (Fair Work Act) provides similarly about the procedure in small claims proceedings.

93    The Registrar’s approach of accepting the interlocutory application is consistent with those provisions regarding the procedure of small claims matters under the Fair Work Act. The Registrar approached the acceptance of those documents, having regard to the substance of the documents rather than the form or formal requirements.

94    The identification of this matter, being the Registrar accepting documents for filing in another, unrelated matter by lawyers who were not on the record, but who were seeking leave to represent the respondent, would not lead the Registrar to decide this matter, on anything other than its merits. A fair-minded lay observer is not assumed to have detailed knowledge of the law, which would include the particular procedural provisions in the context of a Fair Work, small claims matter. However, accepting the filing of an interlocutory application, rather than requiring the respondent to represent it, but in a form prepared by and signed by the respondent itself, would be to apply a technical approach. Applying this substance based approach (in other proceedings) would not cause a fair-minded lay observer to conclude that the Registrar might not bring an impartial mind to the issue of whether to accept the Original Documents for filing.

Sequence of events

95    The Applicant submits that:

(a)    by the Registrar accepting the interlocutory application for filing, which according to the Applicant was not filed until 28 June 2024 (as explained above that position is not correct);

(b)    an email, submitted to be from the Registrar’s assistant dated 28 June 2024 at 3.28 pm in BRG167/2024, to the parties, which stated:

Having regard to the interlocutory application that has been filed by the respondent, the timetabling orders dated 15 May 2024 have been vacated.

You will be contacted further once the matter has been allocated to a judge for hearing.

(the 28 June Email)

Attached to that email was the 28 June Order. The Applicant submits that there was no interlocutory application filed on 21 June 2024;

(c)    in his response to the 28 June Email on 1 July 2024 at 3.16 pm, which included the respondent (by way of cc), stating amongst other things, that he had not been served with any interlocutory application;

(d)    on 1 July 2024 at 4.09 pm, the lawyers for the respondent emailed him and served sealed copies of the interlocutory application, supporting affidavit and notice of address for service.

96    The Applicant submitted that by this process and the way it occurred, the respondent’s lawyers were just using the Registrar like a “rubber stamp”, in circumstances where the consent of the other party had not been given and leave of the Court had not been obtained. The Applicant also submitted that by the Registrar listening or entertaining what the lawyers for the respondent had to say, that showed the Registrar’s bias against the Applicant. The Applicant submitted that the Registrar should not have listened to those lawyers, as those lawyers “had no business being involved in this matter”.

97    Furthermore, the Applicant submitted that by the Registrar making the 28 June Order, before the Applicant was served with the interlocutory application, was a breach of procedural fairness, which in turn also supports his arguments of apprehended bias.

98    The Applicant submitted, without evidence in his Affidavit material, that he contacted the Sydney Registry of the Court about the interlocutory application not being served. The Applicant claimed it was after contacting the court officer in Sydney, that the interlocutory application was served. That it may have been, however, it is also consistent with his email which was sent to the respondent contacting its lawyers and asking them to serve the interlocutory application. Approximately 55 minutes after the Applicant’s email on 1 July 2024, he was served with the interlocutory application and other supporting material. Monday 1 July 2024 was the next business day after Friday 28 June 2024.

99    This sequence of events does not establish that the Registrar would decide this matter, other than on its merits. The vacation of the earlier orders, because of the interlocutory application and referral to a Judge, is unremarkable. By 28 June 2024, Orders 1 and 2 of the Orders of 15 May 2024 (being the respondent’s material and then the Applicant’s material in reply) would have already required compliance. The Applicant did not provide evidence of whether those Orders had been complied with. The balance of the 15 May 2024 Orders required steps after 28 June 2024.

100    It is plain that the Registrar did not want to bind a Judge, in terms of timetabling orders to hear the interlocutory application. Vacating the previous Orders does not display or indicate a closed mind. It ensures then that the parties can deal with the interlocutory application and timetabling afresh, before the Judge who is going to hear that application. That is a reasonable, sensible approach. The way the matter progressed and the way the Registrar dealt with it does not indicate or provide any support for the Applicant’s submission that the Registrar would decide this matter, of whether to accept the Original Documents for filing, other than on its merits. None of these matters, the sequence it was dealt with or the way it was dealt with, support a position that a fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to issue of whether to accept the Original Documents for filing.

Context of BRG167/2024

101    Finally, the Applicant submitted that in the context of all of the matters which had transpired in BRG167/2024, the Registrar should have recused herself from deciding this matter, being whether to accept the Original Document for filing. This, so it was submitted, also supported the Applicant’s contention for apprehended bias. Moreover, the failure to consider recusal, together with the context of all of these matters from BRG167/2024, was claimed to support the Applicant’s contention of apprehended bias.

102    As is considered above, none of the matters considered separately provide any support for the Applicant’s submissions of apprehended bias. Even considering all of these matters together, cumulatively does not support the Applicant’s contention.

103    The matters referred to by the Applicant show that the Registrar was dealing with BRG167/2024 as it evolved. Registrars in the Federal Circuit and Family Court (Division 2) are busy and it is apparent that a clerical mistake was made, with reference to the date that the interlocutory application was taken to be filed. The Registrar accepted the interlocutory application for the respondent in BRG167/2024 to be, amongst other matters, represented by lawyers in a way that was consistent with the procedural requirements of a Fair Work, small claims matter.

104    Therefore, even on a cumulative consideration of the matters relevant to BRG167/2024 relied on by the Applicant, those matters together would not satisfy the first step in Ebner. None of those matters, taken together, support a position that a fair-minded lay observer might reasonably apprehend that the Registrar might not bring an impartial mind to issue of whether to accept the Original Documents for filing.

Conclusion on Apprehended Bias

105    The Applicant has raised many matters which he asserts might lead the Registrar to decide this matter, being whether the Original Documents should be accepted for filing, other than on its legal and factual merits. None of the matters relied on and identified by the Applicant support that submission. As such, it is strictly unnecessary to consider the second step from Ebner. However, the “logical connection” suggested by the Applicant was no more than a character attack on the Registrar. There was no material whatsoever to support those allegations. As such, there was also no “logical connection”.

106    In all of the circumstances that the Applicant relied on and ventilated, there is no basis to find that a fair-minded lay observer, being a properly informed member of the public, might reasonably apprehend that the Registrar might not bring an impartial mind to the resolution of the question, being whether to accept the Original Documents for filing.

107    For all of these reasons, Grounds 2 and 3 of the JR Application must be dismissed.

Ground 4 - unreasonableness

108    The Applicant submitted it was unreasonable for the Registrar to look at the Original Documents and regard those documents as being vexatious, frivolous, or an abuse of the court process. The Applicant claimed that on the face of the material he provided, by way of the Original Documents, he had established the false claims. He was not bankrupt and he did not have a debt of $11,487 to the Bank. As such, so the submission was put, it was unreasonable, in the sense that no reasonable decision-maker could have ever arrived at the decision that was made by the Registrar, to refuse to accept the Original Documents for filing.

109    The Applicant contended that no reasonable person would view what had gone on, in relation to the Bank, as appropriate and he ought to be given an opportunity to correct the position, being that contained in the internal documents of the Bank.

110    Legal unreasonableness does not depend on a “definitional formulae or one verbal description rather than another”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [2]. There are two different contexts in which the concept of unreasonableness can be employed: firstly, a conclusion after the identification of jurisdiction error for a recognised species of error or an error in process and secondly, an “outcome-focused” conclusion: Stretton at [6]-[9], [12]-[13], [61(c)] and [91]-[92]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44] (Singh 2014); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [27]-[28] and [72] (Li). There is only one correct answer to the question of legal unreasonableness: Minister for Immigration and Multicultural Affairs v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [18], [20], [60], [76] and [117]. Findings of legal unreasonableness are rare: Li at [113]; Stretton at [4]-[5], [61(d)] and [58]-[65]. That is, in part, because it is a demanding standard which is required to establish legal unreasonableness. The question of whether a decision is legally unreasonable is directed to whether or not the decision or action is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful having regard to the scope, purpose and subject matter of the statutory source of power, this can be when the decision lacks an “evident and intelligible justification”: Li at [76]; SZVFW at [10] and [82], Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [61] (Singh 2019).

111    There is an area of “decisional freedom”: Stretton at [7] and [92], or “genuinely free discretion”: Stretton at [56]; SZVFW at [51] and [97], within which reasonable minds might differ. That is not sufficient to establish error on the basis of legal unreasonableness. That reasonable minds may differ as to the exercises of that discretion is not legal unreasonableness: Stretton at [7], [22], [92] and [101]-[102]; Li at [28]; SZVFW at [155]. Finally, in terms of outlining the relevant principles, a conclusion of legal unreasonableness might be drawn if the decision is plainly unjust, arbitrary, capricious or lacking in common sense: Stretton at [11], [87] and [90]; Li at [28] and [110]; Singh 2014 at [44]; Singh 2019 at [61], however an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10], [82]; Li at [68].

112    On the basis of the submissions advanced by the Applicant, it appears he is contending for an outcome focused approach as he has addressed the other species of error for which he has contended, separately. This may be found where on the examination for the reasons provided, it is not possible for the Court to comprehend how the decision was arrived at.

113    The reasons of the Registrar are short, however, it is clear that the Registrar considered the Original Documents on their face and determined that the matters were without substance, groundless and that no cause of action was properly stated. In addition to that, the Registrar considered that r 8.05 applied as damages appeared to be claimed in the OA. Therefore, the OA should have been accompanied by a statement of claim, which it was not. That provided a separate, additional basis for refusing to accept the Original Documents for filing.

114    On either of these bases, the outcome, being the decision of the Registrar to refuse to accept the Original Document for filing, was open. The decision of the Registrar falls within the range of legally and factually justifiable outcomes. Accordingly, the Registrar’s decision was not legally unreasonable.

115    On this basis, Ground 4 of the JR Application must be dismissed.

CONCLUSION

116    The Applicant has raised several grounds of review to submit that the Registrar’s decision should be set aside. None of these grounds has been successful. There is no such error in the Registrar’s decision.

117    It follows that the JR Application filed 21 November 2024 must be dismissed.

Associate:    

Dated:    18 March 2025