Agapis

Case [2017] FCA 286

FEDERAL COURT OF AUSTRALIA

Agapis [2017] FCA 286

File number(s): WAD 395 of 2016
Judge(s): MCKERRACHER J
Date of judgment: 22 March 2017
Catchwords:

PRACTICE AND PROCEDURE – vexatious proceedings order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) – whether leave should be granted to institute a proceeding pursuant to s 37AR(2) of the Federal Court Act – applicant seeking to appeal vexatious proceedings order – application for leave filed out of time – apprehended bias – whether primary judge should have recused himself

Held:  application for leave to institute a proceeding refused

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AO, 37AQ, 37AM(1), 37AR, 37AR(2), 37AR(3), 37AS, 37AT
Cases cited:

Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Fuller v Toms [2015] FCAFC 91

Jones v Skyring (1992) 109 ALR 303

Ramsey v Skyring (1999) 164 ALR 378

SZVBN v Minister for Immigration and Border Protection (No 2) [2017] FCA 123
Date of hearing: 9 December 2016
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: The Applicant appeared in person

ORDERS

WAD 395 of 2016

RAOUL AGAPIS

Applicant

JUDGE:

MCKERRACHER J

DATE OF ORDER:

22 MARCH 2017

THE COURT ORDERS THAT:

1.The application for leave to file an appeal is refused. 

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


REASONS FOR JUDGMENT

MCKERRACHER J:

  1. Mr Agapis applies for leave to institute a proceeding pursuant to s 37AR(2) of the Federal Court of Australia Act 1976 (Cth).

  2. In Fuller v Toms [2015] FCAFC 91 the Full Court (Siopis, Logan and McKerracher JJ) noted that such an applicant requires a grant of leave to file a notice of appeal so as to institute (‘start’) an appeal. This is effectively what Mr Agapis has sought. The reasoning of the Full Court is as follows (at [8]-[19]):

    8. The point is a novel one but generally relevant to practice and procedure under Part VAAA of the Federal Court Act, which is directed to the subject of vexatious proceedings.

    9. Order 3 was expressed to have been made pursuant to s 37AO(2) of the Federal Court Act, which provides:

    (2)       The Court may make any or all of the following orders:

    (a)an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

    (b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

    (c)any other order the Court considers appropriate in relation to the person.

    10. Insofar as Order 3 provided that Mr Fuller must not start any proceedings in the Court against any of the respondents, the particular foundation for it within s 37AO(2) of the Federal Court Act was in s 37AO(2)(b).

    11. By s 37AO(5)…

Continue reading Agapis

Sign in free to access the full text

Details
AGLC
Agapis [2017] FCA 286
Case
[2017] FCA 286
Decision Date

CaseChat Overview and Summary

In the matter of Agapis, the applicant sought leave to appeal a vexatious proceedings order made by the primary judge. The primary decision, which sought to prohibit Mr Agapis from instituting proceedings in the Federal Court of Australia, was based on the applicant's history of frequently instituting or conducting vexatious proceedings in Australian courts and tribunals. The primary judge had concluded that Mr Agapis's actions met the definition of 'vexatious proceedings' as set out in the Federal Court of Australia Act 1976 (Cth), and therefore granted the order sought by the Plumbers Licensing Board. The central legal issue in this appeal was whether the primary judge should have granted leave to Mr Agapis to institute an appeal against the vexatious proceedings order, despite the application for leave being filed out of time. Additionally, the applicant argued that the primary judge should have recused himself due to apprehended bias.

The court considered the applicant's numerous reasons for contending that the original decision was wrong, with particular emphasis on the argument of apprehended bias. However, the court found that the applicant's submissions went behind conclusions already reached by judges, courts, and tribunals in proceedings that had been finalised or were out of time for appeal. The court also noted that the applicant's approach of attempting to re-litigate out of time all the matters on which he had already lost was not likely to be successful. The court held that it was entirely inappropriate and pointless for the Court to attempt to re-hear all of the proceedings on which the vexatious litigant had previously lost. The court ultimately concluded that the application for leave to institute an appeal should be refused.

The court's decision highlights the importance of the power of the Court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance. In this case, the applicant's attempt to re-litigate numerous concluded matters adversely decided to him was not a course that was likely to be met with success, and the Court was right to refuse the application for leave to institute an appeal. The final orders of the court were to refuse the application for leave to file an appeal.

Orders

Orders of the court

1. The application for leave to file an appeal is refused.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Toohey J in Jones v Skyring (1992) 109 ALR 303 (at 312) described the objective as being one to reinforce:… the power of the Court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance. THE PRIMARY DECISION By the primary decision from which Mr Agapis seeks leave to lodge an appeal under s 37AR of the Act, the Plumbers Licensing Board sought orders under s 37AO of the Act on the basis that Mr Agapis had frequently instituted or conducted vexatious proceedings in Australian courts and tribunals as contemplated by s 37AO(1) of the Act. The Board sought a vexatious proceedings order of the Court under s 37AO(2)(b) of the Act prohibiting Mr Agapis from instituting proceedings in this Court. The primary judge noted (at [10]) that ‘vexatious proceedings’ is defined in s 37AM(1) of the Act to include the following matters:(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. The primary judge then listed the following proceedings (at [11]) which had been instituted and conducted or were currently being conducted by Mr Agapis:(a)following his criminal conviction in 2011 in respect of burglary, the appellant sought leave to appeal against his conviction and sentence in the Court of Appeal of the Supreme Court of Western Australia (CACR 148 of 2011 and CACR 149 of 2011);(b)on 15 June 2012, the appellant filed an application in the AAT for review of the respondent's decision to refuse to grant a plumbing contractor's licence under the Mutual Recognition Act 1992 (Cth); (c)on 17 August 2012, the appellant appealed an interlocutory order made in the AAT to this Court (WAD 198 of 2012); (d)on 17 April 2013, the appellant filed an appeal in this Court (WAD 111 of 2013) concerning the decision of the AAT; (e)following the conclusion of the proceeding mentioned at (a) above, the appellant filed an application for judicial review in the Supreme Court of Western Australia (CIV 2139 of 2013) in respect of the decision made in his criminal trial;(f)following the decision of McKechnie J in CIV 2139 of 2013 in the proceeding mentioned at (e) above, the appellant filed an appeal (CACV 105 of 2013) in the Supreme Court of Western Australia; (g)on 6 December 2013, the appellant filed a notice of appeal in this Court (WAD 460 of 2013) out of which arises the current application;(h)on 12 December 2013, the appellant filed a writ of summons in the Supreme Court of Western Australia (CIV 2874 of 2013) seeking damages for negligence against the respondent and one of its previous executive officers;(i)on 30 January 2014, the appellant filed a notice of appeal relating to a stay order made by Registrar Boyle on 24 January 2014 in Supreme Court action CIV 2874 of 2013;(j)on 27 February 2014, the appellant filed an interlocutory application seeking a stay of the proceedings in WAD 460 of 2013 arising out of certain personal disorders; and (k)on 3 June 2014, the appellant filed an interlocutory application seeking leave to amend the grounds of his appeal in WAD 460 of 2013.

Ratio Decidendi

Legal Principle Established

For the purpose of the present application, focus is also required on the question of whether leave should be granted to permit filing of an appeal when the appeal would be some two years out of time from the decision of the primary judge. CONSIDERATION There is no doubt that Mr Agapis has exhaustively catalogued numerous reasons for contending that the original decision was wrong, with particular focus on apprehended bias. In citing from the decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (at [6]), particular emphasis has been placed on the word ‘might’, where it appears twice in the well-known recitation of the test 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. This argument omits focus on the word ‘reasonably’. Mr Agapis says the decision was prejudged, contending that in fact the Board did not seek to have Mr Agapis prohibited from instituting proceedings in this Court. In fact this submission is wrong. That is exactly what the Board sought by its application filed on 11 March 2014. Mr Agapis also contends that ‘less severe’ actions were open to his Honour under the relevant section, including an order staying or dismissing all or part of any proceedings in the Court already instituted by the person, an order prohibiting the person from instituting proceedings of a particular type or any other order the Court considered necessary. Complaint is made that the primary judge simply adopted the submissions for the Board. Mr Agapis then proceeds to give his own version of the proper way in which the numerous proceedings examined by the primary judge should be viewed and in doing so makes strenuous criticism of a number of decision‑makers, including judges of this and other courts, a Deputy District Registrar of this Court and at least one member of the Administrative Appeals Tribunal. One of the main difficulties for Mr Agapis is that these submissions effectively go behind conclusions already reached by judges, courts and tribunals in proceedings which have been finalised and in respect of which any prospect for appeal is either exhausted or, as in this case, is well out of time. Despite the requirements of s 37AR(3), it is difficult for a person who has been declared a vexatious litigant to persuade the Court that leave should be granted to institute a proceeding in circumstances where such a broad sweeping approach is taken. To attempt to re-litigate out of time, in effect, all the matters on which the vexatious litigant has already lost, is not a course which is likely to be met with success as distinct from the preferred position of selectively identifying a specific and more precise complaint which requires ventilating. Unfortunately, by re-agitating or attempting to re-agitate so many concluded matters adversely decided to him, such an applicant is simply reimpressing on the Court reasons why he should not be permitted leave to issue proceedings. It is entirely inappropriate and pointless that, in an application for leave pursuant to s 37AO of the Act, the Court should attempt to re-hear, in effect, all of the proceedings on which the vexatious litigant has previously lost.