Federal Court of Australia

Reynolds v Judicial Registrar Burns (No 2) [2025] FCA 409

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 14 March 2025 is dismissed.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    On 12 March 2025, I dismissed the applicant’s application for judicial review of a decision made by the respondent, a Registrar of the Court, to refuse to accept for filing an originating application, concise statement, affidavit and notice of constitutional matter: Reynolds v Judicial Registrar Burns [2025] FCA 186.

2    The dismissal order was made under r 30.22 of the Federal Court Rules 2011 (Cth) on the basis that the applicant had failed to appear at the trial of the proceeding.

3    On 14 March 2025, the applicant filed an interlocutory application which sought to set aside the dismissal order and an affidavit in support.

4    The Registrar filed a submitting appearance.

BACKGROUND

5    To give context to the interlocutory application, it is necessary to begin with the applicant’s application for judicial review. On 1 November 2024, the applicant lodged the following Documents for filing:

(a)    an originating application dated 31 October 2024;

(b)    a concise statement dated 31 October 2024;

(c)    a notice of a constitutional matter dated 31 October 2024; and

(d)    an affidavit dated 31 October 2024.

6    The originating application, which named as respondents the Western Australian Police Force and five members of the Police Force:

(a)    sought final relief under the Criminal Code Act 1902 (WA) and Criminal Code Act Compilation Act 1913 (WA) in connection with grievances held by the applicant with respect to the handling of certain matters concerning him which were before the Magistrates’ Court of Western Australia (and were later the subject of the appeals to the Supreme Court of Western Australia), and raised allegations of fraud and misrepresentation;

(b)    sought interlocutory relief in the form of an injunction seeking the withdrawal of all charges against the applicant and freezing orders with respect to orders made by the Western Australian Supreme Court for the cancellation of the applicant’s driver’s licence and in respect of other fines, penalties, and infringement notices against him; and

(c)    sought orders for compensation and aggravated damages for stolen private property, deprivation of liberties, denial of individual rights, discrimination of parental rights and denial of religious freedoms.

7    The concise statement specified the grounds for the relief sought as discrimination under s 92 of the Constitution, and it estimated the applicant’s loss and damage for deprivation of liberties and freedoms to be $9.36 million.

8    The notice of a constitutional matter claimed that the proposed proceeding raised matters under s 92 of the Constitution, namely issues of discrimination, prejudice and improper purpose, and matters arising under s 117 of the Constitution, namely the overreach of State legislation.

9    A copy of the affidavit lodged for filing was not made available.

10    By letter dated 7 November 2024, the Registrar explained her reasons for refusing to accept the Documents for filing in the following terms:

Dear Mr Reynolds

Documents lodged for filing on 1 November 2024

I refer to the following documents lodged, via email, with the Western Australia Registry of the Federal Court of Australia (Court):

•    Form NCF1 – Concise Statement dated 31 October 2024;

•    Form 59 – Affidavit dated 31 October 2024;

•    Form 15 - Originating Application dated 31 October 2024;

•    Form 18 – Notice of a Constitutional Matter – dated 31 October 2024

    (Collectively ‘the Documents’)

The Documents have been referred to me, in my capacity as a National Duty Registrar, to review and determine whether they should be accepted for filing by the Court.

In considering the Documents, I have had regard to the procedural requirements of the Federal Court Rules 2011 (the Rules). I note that rule 2.26 of the Rules states:

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.

….

Further, the Full Court has considered the application of rule 2.26 of the Rules in the judgment of Ferdinands v Registrar Cridland [2022] FCAFC 80. In that judgment, Justices Charlesworth, Burley and Cheeseman included the following in their reasons for judgment:

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

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

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court     or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass     or annoy, to cause delay or detriment, or for another     wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or     tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way     so as to harass or annoy, cause delay or detriment, or     achieve another wrongful purpose.

28    As is apparent, that definition is not an exhaustive definition.     It indicates, however, that a proceeding will be vexatious if,     amongst other things, it is instituted or pursued without     reasonable cause.

29    In Prior v South West Aboriginal Land and Sea Council     Aboriginal Corporation [2020] FCA 808, McKerracher J     discussed the meaning of the terms ‘vexatious’ and ‘frivolous’     appearing in r 26.01(1) of the FCR. His Honour said:

[35]    The expressions ‘scandalous’, ‘vexatious’ and     ‘frivolous’ can be used either separately, or in     conjunction, or interchangeably, with the expression     ‘abuse of process of the court’ …

[36]    A matter is ‘frivolous and vexatious’ where the ‘cause     of action is one which on the face of it is clearly one     which no reasonable person could properly treat as     bona fide, and contend that he had a grievance which     he was entitled to bring before the court’ …

…

30    As is apparent, a proceeding will be frivolous and vexatious     if, amongst other things, it is based on a cause of action which     no reasonable person could properly treat as bona fide or if it     is without substance, groundless, or fanciful. …

Reasons for refusing to accept the Documents for filing

Having considered the ‘form and content’ of the Documents, I have refused to accept them for filing, pursuant to rule 2.26 of the Rules, on the basis that they are an abuse of the process of the Court and they are frivolous and vexatious.

The Originating Application is one which, on the face of it, no reasonable person could properly treat as bona fide as the Court does not have jurisdiction under the Criminal Code 1902 (WA) and the Criminal Code Act Compilation Act 1913.

I enclose the Documents by way of return. Prior to filing any further documents with the Court,

I encourage you to seek legal advice.

[Emphasis in original]

CONSIDERATION

11    As set out in Reynolds at [3], at a case management hearing on 20 December 2024 conducted by Microsoft Teams, orders were made for the applicant to file submissions and any further affidavits on which he sought to rely in support of his application for judicial review by 4:00pm on 31 January 2025. Furthermore, the proceeding was listed for final hearing at 12:00pm (AEDT) on 27 February 2025, to be conducted by Microsoft Teams.

12    As the applicant did not appear on the day his proceeding was set down for final hearing, r 30.22 applied. At the hearing, I indicated that I would make an order pursuant to r 30.22 dismissing the proceeding for the reasons set out in Reynolds, see [14].

13    By the interlocutory application, the applicant sought to set aside the dismissal orders under r 39.05(a) of the Rules, which gives the Court a discretion to set aside a judgment or order after it has been entered if it was made in the absence of a party. The interlocutory application was accompanied by an affidavit of the applicant dated 12 March 2025. The applicant stated in the affidavit, that he did not attend the hearing on 27 February 2025 because he was helping a friend to relocate to Queensland and he had misread an email from my Associate sent on 6 February 2025, referred to in Reynolds at [7]. At the hearing of the interlocutory application on 1 April 2025, the applicant confirmed that the effect of his evidence was that he did not realise the final hearing was going ahead and, in any event, he was not available due to extenuating circumstances, which was a reference to helping his friend to relocate to Queensland.

14    The discretion under r 39.05(a) should ordinarily be exercised only in exceptional circumstances: Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318 at [6] (Gordon J); Polis v Zombor (No 5) [2022] FCA 122 at [43] (O’Bryan J). The relevant considerations include whether the applicant has provided a proper explanation for their absence, and whether the applicant has shown a case which is reasonably arguable: Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 at [9] (White J); Polis (No 5) at [44] (O’Bryan J).

15    I am not satisfied that the applicant has provided a proper, reasonable or adequate explanation for his failure to attend the final hearing. As set out in Reynolds at [4]–[9], timetabling orders for the final hearing were made on 20 December 2024. The applicant did not file his materials by the due date. The applicant, by email to Chambers sent on 6 February 2025, requested an extension of time to file his materials by “the end of this month”.

16    The subsequent email from Chambers sent on the same day made it clear that the applicant’s email was treated as a “request for an extension”, an order was required to extend the timetable, an amended timetable was proposed and the applicant was requested to respond as to whether he was content with the proposed amended timetable. The applicant did not respond to that email or a follow up email sent on 24 February 2025, requesting a response to the email of 6 February 2025. Later in the day, on 24 February 2025, the applicant sent an email to Chambers attaching his written submissions and a sworn affidavit.

17    The applicant’s email of 6 February 2025 suggests he was aware that the scheduling orders for the final hearing were binding unless an extension was granted. It is untenable for the applicant to rely on his apparent misreading of the emails to suggest he did not realise the final hearing was going ahead. Further, I do not accept that the explanation given in the applicant’s affidavit that the assistance provided to help his friend to relocate to Queensland was an “extenuating circumstance” that reasonably explained the applicant’s failure or lack of availability to appear at the final hearing via audio visual link.

18    Further, and in any event, I am not satisfied that the applicant has demonstrated any reasonably arguable case of error in the Registrar’s decision. It is plain on the face of the application for judicial review that the applicant seeks to invoke this Court’s jurisdiction on a basis that is confused or manifestly untenable. The Documents do not disclose an arguable basis for the relief sought. In attempting to file the Documents, the applicant sought to invoke the jurisdiction of this Court in circumstances where no reasonable person could properly treat the Documents as bona fide as this Court does not have jurisdiction under the Criminal Code 1902 (WA) and the Criminal Code Act Compilation Act 1913 (WA).

conclusion

19    For the foregoing reasons, I am not satisfied that it is appropriate to exercise the discretion under r 39.05(a) to set aside the dismissal order. Accordingly, the interlocutory application will be dismissed.

Associate:

Dated:    30 April 2025