Federal Court of Australia

Patial v Schmidt [2025] FCA 748

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s decision to refuse to accept for filing the originating application and the statement of claim lodged by the applicant on 5 January 2025 be set aside.

2.    The question whether the originating application and the statement of claim the subject of Order 1 should be accepted for filing be remitted to a Registrar (as defined in the Federal Court Rules 2011 (Cth)), other than the respondent.

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

REASONS FOR JUDGMENT

GOODMAN J:

a.    Introduction

1    The applicant, Mr Patial, seeks judicial review of the decision of a Registrar of this Court made under r 2.26 of the Federal Court Rules 2011 (Cth) to refuse to accept for filing an originating application and statement of claim lodged by Mr Patial. I will refer to these documents as the proposed originating application and the proposed statement of claim respectively.

2    For the reasons set out below, the decision under review should be set aside and the question of whether the proposed originating application and the proposed statement of claim should be accepted for filing remitted for reconsideration.

B.    Background

3    In a proceeding commenced in the Fair Work Commission in 2020, Mr Patial sought relief against Kailash Lawyers Pty Ltd trading as Kailash Lawyers and Consultants.

4    On 6 August 2021, Commissioner McKenna of the Fair Work Commission published her decision in that proceeding and her reasons for that decision: see Prateek Patial v Kailash Lawyers Pty Ltd T/A Kailash Lawyers and Consultants [2021] FWC 4167 (Commission decision).

5    On 3 January 2025, Mr Patial lodged the proposed originating application and the proposed statement of claim with this Court. Kailash Lawyers and the Commission are named as the respondents. By the proposed originating application, Mr Patial seeks orders quashing or setting aside the Commission decision, a declaration that the Commission decision is invalid, and the remittal of the Commission decision to the Commission for reconsideration according to law. Such orders are sought on various bases, including contended breaches of the obligation to afford procedural fairness, reliance upon “misrepresented and contradictory evidence” and the misapplication of established legal principles.

6    On 5 January 2025, the Registrar wrote to Mr Patial in the following terms:

RE: Documents Presented for Filing on 3 January 2025

I refer to the following documents presented via eLodgment (ID: 1411329) (Documents) to the New South Wales Registry of the Federal Court of Australia (Court) on 3 January 2025:

a)    Originating Application for relief under Section 39B Judiciary Act 1903 - Form 69

b)    Statement of Claim - Form 17 (Statement of Claim)

The Documents have been referred to me for consideration as National Duty Registrar to determine whether they should be accepted for filing.

I have considered the content of the Documents and I have determined that they should not be accepted for filing. The reasons for my decision are set out below.

Reasons for refusing documents for filing

Rule 2.26 of the Federal Court Rules 2011 provides;

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.

The term “abuse of process” in Rule 2.26 includes an application which has no cause of action properly stated or has no reasonable prospects of success. The terms “frivolous”, “vexatious” were considered by Justice White in Ferdinands v Registrar Cridland [2021] FCA 592 at [27] to [30]. A matter that is frivolous may be described as one that is “without substance or groundless or fanciful” and a matter that is vexatious is an abuse of the process of the Court.

On the face of the Documents, I am satisfied that they assert claims which do not have reasonable prospects of success. I note that you have on a number of previous occasions purported to file documents making similar claims which have also been rejected by the Court.

Accordingly, I am of the view that the application you seek to bring is an abuse of process within the meaning of that term in Rule 2.26 and as such, the Court should not accept the Documents for filing.

You may wish to seek legal advice on the matters outlined in this letter.

(emphasis in original)

7    I will refer to the decision to not accept the proposed application and proposed statement of claim for filing as the Registrar’s Decision.

8    On 6 January 2025, Mr Patial responded, requesting reconsideration, and setting out various reasons in support of his request.

9    On 7 January 2025, an officer of the New South Wales Registry of the Court responded, indicating that there would be no further correspondence regarding the Registrar’s Decision.

10    On 16 January 2025, Mr Patial filed his originating application in this proceeding, together with an affidavit affirmed by him on 15 January 2025. I will refer to this originating application as the present originating application.

11    The Registrar has filed a submitting appearance, save as to costs.

C.    Present ORGINATING application

12    By the present originating application, Mr Patial seeks an order setting aside the Registrar’s Decision, an order directing the Registrar to accept the proposed originating application and proposed statement of claim for filing (or, alternatively, to provide Mr Patial with specific procedural guidance to correct any filing deficiencies); and a declaration that the Registrar’s Decision was made “in breach of procedural fairness” and constitutes an improper exercise of discretion under r 2.26 of the Rules.

13    The present originating application is made using Form 66 and is to be taken as an application for an order of review under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act): see r 31.01 of the Rules. It is also clear from Mr Patial’s submissions that he seeks relief under the AD(JR) Act. The present originating application also refers to s 39B of the Judiciary Act 1903 (Cth) and I will treat it as an application for relief of a kind mentioned in that section that arises out of, or relates, to the same subject matter: see r 31.03(3) of the Rules.

14    The grounds for review set out in the present originating application are numerous and detailed. However, for the reasons set out below it is sufficient to address only one of those grounds.

D.    Consideration

15    Rule 2.26 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.

16    “Registrar” is defined in the Dictionary in Schedule 1 to the Rules as follows:

Registrar means:

(a)     the Chief Executive Officer, or a Registrar, District Registrar or Deputy District Registrar of the Court; and

(b)     any officer from time to time authorised to perform the duties of the Chief Executive Officer, or a Registrar, District Registrar or Deputy District Registrar of the Court.

17    The discretion in r 2.26 to refuse to accept a document is enlivened when a Registrar forms the opinion that a document lodged for filing: (1) constitutes an abuse of the process of the Court; (2) is frivolous; or (3) is vexatious. As Justice Charlesworth explained in Shaw v Buljan [2016] FCA 829; (2016) 153 ALD 252 at 259 to 260 ([31] to [32]):

[31]     The power conferred on a Registrar by r 2.26 of the Rules is substantively the same as that conferred by O 46 r 7A of the former Rules. The power is preconditioned by the requirement that the Registrar be “satisfied” that a document sought to be filed constitutes an abuse of process or is frivolous or vexatious. As Perram J observed in Rahman v Hedge [2012] FCA 68 (Rahman) at [6], r 2.26:

[6] … confers a power to refuse to accept a document for filing in circumstances where the Registrar is ‘satisfied’ of the particular state of affairs referred to in the rule. The manner and circumstances in which judicial review of powers subject to the formation of a satisfaction or of an opinion are to be conducted are well-known and usefully, with respect, collected by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [128]–[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118–9; 9 ALR 481 at 487:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it erred in one of these ways, or that its decision could not reasonably have been reached.

[32]     The state of satisfaction to be reached by the Deputy Registrar is not one involving policy or taste. Rather, it is in the nature of an opinion concerning mixed questions of fact and law. Cases may arise under r 2.26 in which the formation of such an opinion involves the making of an evaluative judgment in respect of which reasonable minds may differ. In such cases, an applicant for judicial review may well have difficulty establishing reviewable error affecting the Registrar’s decision. However, where an opinion formed by a Registrar is founded upon an error of law, or based upon an irrelevant consideration, the opinion will not be one that is open to the Registrar to form and the requisite state of satisfaction prescribed under the rule will not have been reached. …

(emphasis added)

18    See also Reaper v Luxton [2017] FCA 949 at [20] to [21] (O’Callaghan J).

19    In reaching that opinion or state of satisfaction under r 2.26, a Registrar must do so by reference only to one or more of the following.

20    First, the face of the lodged documents. In Paramasivam v Randwick City Council [2005] FCA 369, a case concerned with the predecessor to r 2.26, Sackville J explained at [45]:

The expression ‘on the face’, according to Butterworths Australian Legal Dictionary refers to

‘the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation’.

There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person’s litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document ‘on its face’.

21    Secondly, documents already filed. The “documents already filed” are documents already filed in the proceeding in which the documents lodged for filing are sought to be filed (see Shaw at 266 to 267 [55]) and do not include documents filed in other proceedings: see SZVCP v Cho [2017] FCA 310; (2017) 250 FCR 225 at 236 [28] (Markovic J); Reaper at [33]; Frigger v Trott [2021] FCA 18 at [14] (Jackson J). As Justice Jackson explained in Frigger at [14]:

… If a registrar forms the state of satisfaction after taking into account documents filed in different proceedings, he or she will have taken an irrelevant consideration into account. That will mean that the decision is an improper exercise of power under s 5(1)(e) and s 5(2)(a) of the ADJR Act: SZVCP at [43]; Reaper v Luxton [2017] FCA 949 at [33] (O'Callaghan J).

(emphasis in original)

22    Thirdly, other documents submitted for filing at the same time as the documents in issue.

23    A decision made by a Registrar under r 2.26 is of an administrative character, and as such may be susceptible to review under s 5(1) of the AD(JR) Act: Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at 170 [32] and 172 [41] (Barker, Banks-Smith and Colvin JJ).

24    Section 5 of the AD(JR) Act provides, in so far as is presently relevant:

5     Applications for review of decisions

(1)     A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)     that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

…

(2)     The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)     taking an irrelevant consideration into account in the exercise of a power;

…

25    Mr Patial is plainly a person whose interests are adversely affected by the Registrar’s Decision and, as such, is a person aggrieved within the meaning of s 3(4)(a)(i) of the AD(JR) Act. It follows that he has standing under s 5 of the Act.

26    One of the bases upon which Mr Patial seeks relief is that the Registrar improperly exercised the power under r 2.26 by taking into account “that [Mr Patial had] on a number of previous occasions purported to file documents making similar claims which have also been rejected by the Court”.

27    As is clear from the authorities discussed above, taking into account the litigious history of an applicant (to the extent this is not apparent on the face of the document lodged for filing, or apparent from a document already filed or a document which is submitted with the document lodged for filing) will involve the taking into account of an irrelevant consideration and thus an improper exercise of the power under r 2.26 within the meaning of ss 5(1)(e) and 5(2)(a) of the AD(JR) Act: see e.g., Paramasivam at [45] and Frigger at [34] and [38] and the authorities there cited.

28    The reasons given by the Registrar in the 5 January 2025 letter – which is set out at [6] above – are, in essence, that:

(1)    it is apparent on the face of the proposed originating application and the proposed statement of claim that they assert claims which do not have reasonable prospects of success;

(2)    Mr Patial had, on a number of previous occasions, purported to file documents making similar claims which had also been rejected by the Court; and

(3)    accordingly, the application within the proposed originating application is an abuse of process within the meaning of that term in r 2.26 and as such the proposed originating application and the proposed statement of claim should not be accepted for filing.

29    It is plain that the Registrar’s reasoning to his state of satisfaction that the proposed originating application and the proposed statement of claim constituted an abuse of the processes of the Court involved taking into account that Mr Patial had, on a number of previous occasions, purported to file documents making similar claims which had also been rejected by the Court. This is made clear by the Registrar’s use of the expression “Accordingly” in the penultimate paragraph of the 5 January 2025 letter which suggests that the conclusion in [28(3)] above followed from each of the premises in [28(1)] and [28(2)] above.

30    The proposition that Mr Patial had, on a number of previous occasions, purported to file documents making similar claims which had also been rejected by the Court is not evident on the face of the proposed originating application or the proposed statement of claim.

31    Nor can that proposition be said to be evident by reference to documents already filed, in circumstances where: (1) the expression “documents already filed” is limited to documents already filed in a proceeding of which the documents lodged for filing are to form part; and (2) the proposed originating application and the proposed statement of claim, if accepted, would have commenced a new proceeding and have been the first two documents in that new proceeding.

32    Finally, that proposition is not evident by reference to documents “submitted for filing with the document”. In this regard, reference might be made to the proposed statement of claim for the purpose of assessing the proposed originating application (and vice versa). However, as noted at [30] above, neither provides evidence that Mr Patial had, on a number of previous occasions, purported to file documents making similar claims which had also been rejected by the Court.

33    It follows that, with respect, I must find that the Registrar took into account an irrelevant consideration and that the making of the Registrar’s Decision was an improper exercise of the power conferred under r 2.26.

E.    Relief

34    I turn now to the question of relief.

35    Section 16 of the AD(JR) Act provides, in so far as is presently relevant:

16     Powers of the Federal Court and the Federal Circuit and Family Court of Australia (Division 2) in respect of applications for order of review

(1)     On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a)     an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)     an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)     an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)     an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

36    Relief under s 16 of the AD(JR) Act (and under s 39B of the Judiciary Act) is discretionary. Such relief should not be granted if to do so would be inutile. Relevantly, there would be no utility if the proceeding that Mr Patial seeks to commence by filing the proposed originating application and the proposed statement of claim were doomed to fail: see Dunstan v Morgan [2024] FCA 982 at [19] (Kennett J).

37    I have reviewed the proposed originating application and the proposed statement of claim. Having done so, I have formed the view that the claims set out therein are not of a kind that require that the whole of the proposed originating application should be terminated in limine. That is not to say that the claims therein have any particular strength, or that the Court should not entertain argument concerning summary relief in respect of the claims set out in the proposed originating application if, upon reconsideration by the Registrar (as to which see below) the proposed originating application and the proposed statement of claim were to be accepted for filing, and Kailash Lawyers were to appear and seek summary relief.

38    In my view, the appropriate exercise of the discretion in the present case is to make orders setting aside the Registrar’s Decision; and an order referring the question whether to accept the proposed originating application and the proposed statement of claim for filing to the Registrar (as defined in the Rules), being a Registrar other than the respondent for reconsideration (in circumstances where the basis for the relief is the taking into account of an irrelevant consideration – see e.g., SZVCP at 240 [46] and Reaper at [37]; cf Dunstan at [24]).

39    An order directing that the proposed originating application and the proposed statement of claim be accepted for filing is inappropriate, when the Court’s determination is limited to a finding that the Registrar’s Decision should be set aside because an irrelevant consideration was taken into account and does not include a determination by the Court that the lodged documents should be accepted for filing: see SZVCP at 240 [46]; Reaper at [37]; Frigger at [42].

40    I will make orders accordingly.

Associate:

Dated:    10 July 2025