Bilaczenko v Bochner

Case [2016] FCA 1207


FEDERAL COURT OF AUSTRALIA

Bilaczenko v Bochner [2016] FCA 1207

Appeal from: Application for leave to appeal: Bilaczenko v Bochner [2016] FCA 275
File number(s): SAD 95 of 2016
Judge(s): CHARLESWORTH J
Date of judgment: 11 October 2016
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 11

Federal Circuit Court Act 1999 (Cth), s 17A

Federal Circuit Court Rules 2001 (Cth), r 13.10

Federal Court of Australia Act 1976 (Cth), ss 24(1A), 25

Federal Court Rules 2011 (Cth), r 2.26

Cases cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

AZAFX v Federal Circuit Court of Australia [2016] FCA 1139

Bilaczenko v Bochner [2016] FCA 275

Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420

Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268

Coffey v Secretary, Department of Social Security (1999) 86 FCR 434

Dallas Buyers Club LLC v iiNet Ltd (No 5) (2015) 115 IPR 544, [2015] FCA 1437

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110

Pedra Holdings Pty Ltd v Westfield Shoppingtown Carousel Pty Ltd [2005] FCA 909

Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560, [2013] HCA 22

R v Panel on Takeovers and Mergers; ex parte Datafin PLC [1987] 1 QB 815

Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95

Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275

Sharp v Deputy Commissioner of Taxation (Cth) (1988) 19 ATR 908, (1988) ATC 4,184

Walton v Gardiner (1993) 177 CLR 378

Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704

Date of hearing: 3 May 2016
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 60
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondents: The first, second and third respondents filed a submitting appearance
Counsel for the Respondents: The fourth respondent did not appear

ORDERS

SAD 95 of 2016
BETWEEN:

NICHOLAS BILACZENKO

Applicant

AND:

KATRINA BOCHNER

First Respondent

HEATHER BALDWIN

Second Respondent

FINANCIAL OMBUDSMAN SERVICE LIMITED (and another named in the Schedule)

Third Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

11 OCTOBER 2016

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The South Australia District Registrar is, by 25 October 2016 to deliver a copy of these reasons to each of the respondents by their last known email address or, if no email address for a respondent is known, by way of ordinary post to the respondent’s physical address for service.

3.Any application for costs by the second or third respondent is to be filed and served on or before 1 November 2016.

4.In the event that no application is filed by a respondent in accordance with the order in paragraph 2 of these orders, there is to be no order as to costs in relation to that respondent.

5.In the…

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AGLC
Bilaczenko v Bochner [2016] FCA 1207
Case
[2016] FCA 1207
Decision Date

CaseChat Overview and Summary

In the case of Bilaczenko v Bochner, the applicant, Mr Bilaczenko, sought leave to appeal a decision made by the District Registrars of the South Australia District Registry of the Federal Court of Australia, Ms Bochner and Ms Baldwin, who refused to accept documents for filing in relation to two proposed actions. Each proposed action sought to challenge determinations made by the Financial Ombudsman Service (FOS) and the Australian Securities and Investments Commission (ASIC). The District Registrars considered the proposed actions as an attempt to re-agitate matters that had already been judicially decided, thus amounting to an abuse of process under rule 2.26 of the Federal Court Rules 2011 (Cth).

The primary legal issue the court had to decide was whether there was sufficient doubt warranting reconsideration by the Full Court of White J's determination that the District Registrars were correct in determining that the proposed actions constituted an abuse of process because they sought to re-agitate issues that had already been judicially determined. The court also needed to consider whether the principle stated in Datafin applied to make FOS amenable to judicial review and whether each of the FOS determinations was properly to be regarded as a "decision under an enactment" for the purposes of the ADJR Act.

The court found that the proposed grounds of appeal were misdirected as the issue of FOS's amenability to judicial review had already been judicially determined in a previous case, and Mr Bilaczenko's application for leave to appeal that decision had been refused. The court held that it was neither necessary nor appropriate to embark on an examination of whether the Datafin principle applied to FOS in the performance of its contractual obligations, as the issue did not properly arise for determination on the application before the court. Moreover, the court found that the proposed actions constituted an abuse of process because they sought to re-agitate issues that had already been judicially determined.

In conclusion, the application for leave to appeal was dismissed. The South Australia District Registrar was ordered to deliver a copy of the reasons to each of the respondents by their last known email address or, if no email address for a respondent was known, by way of ordinary post to the respondent's physical address for service. Any application for costs by the second or third respondent had to be filed and served on or before 1 November 2016. There was to be no order for costs in relation to the first respondent and the fourth respondent.

Orders

Orders of the court

1. The application is dismissed.

2. The South Australia District Registrar is, by 25 October 2016 to deliver a copy of these reasons to each of the respondents by their last known email address or, if no email address for a respondent is known, by way of ordinary post to the respondent’s physical address for service.

3. Any application for costs by the second or third respondent is to be filed and served on or before 1 November 2016.

4. In the event that no application is filed by a respondent in accordance with the order in paragraph 2 of these orders, there is to be no order as to costs in relation to that respondent.

5. In the event that the second or third respondent files and serves an application for costs in accordance with paragraph 2 of these orders, the application is to be set down for hearing at a date to be fixed by the District Registrar.

6. There is to be no order for costs in relation to the first respondent and the fourth respondent.

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

Background

Background to the litigation

For the reasons that follow, the application for leave to appeal should be dismissed.BACKGROUND In July 2015, the applicant, Mr Bilaczenko, lodged for filing in the South Australia District Registry of this Court (Registry) an originating application and supporting affidavit. The first respondent to this application (Ms Bochner) was, at that time, the South Australia District Registrar. Ms Bochner decided not to accept the applicant’s documents for filing. She notified the applicant of her decision by letter dated 20 July 2015, delivered by ordinary post. In September 2015, Mr Bilaczenko again lodged for filing an originating application and supporting affidavit. The second respondent to this application (Ms Baldwin) was, at that time, the South Australia District Registrar. Ms Baldwin decided not to accept the applicant’s documents for filing. She notified Mr Bilaczenko of her decision by letter dated 22 September 2015, delivered by ordinary post. I will refer to the two proceedings sought to be commenced by Mr Bilaczenko in July and September 2015 as “the proposed actions”. Each of the proposed actions sought to challenge determinations made or purportedly made by the Financial Ombudsman Service (FOS) and the Australian Securities and Investments Commission (ASIC). There were six respondents named on each of the proposed actions: FOS, Commonwealth Securities Ltd, E-Trade Australia Securities Ltd, Direct Shares, Third Party Platform trading as Bill Direct, and ASIC. FOS and ASIC are respectively joined as the third and fourth respondents on this application. No other respondents are joined. In an affidavit sworn on 8 July 2015 and lodged in support of the first of the proposed actions, Mr Bilaczenko confirmed that he sought to have the following issues determined:Whether the decisions of a private body the Financial Ombudsman Service [FOS] performing public duties and public law functions for a public purpose is subject to judicial review.Whether FOS is bound by the established principles of administrative law in its public law functions, in particular, the process of procedural fairness, which used to be called natural justice. Ms Bochner and Ms Baldwin refused to accept Mr Bilaczenko’s documents for filing because they viewed the proposed actions as an attempt to re-agitate matters that had already been judicially decided. Accordingly, they determined that the proposed actions amounted to an abuse of process: see r 2.26 of the Federal Court Rules 2011 (Cth). In order to understand the District Registrars’ reasons, it is necessary to cast back further in time to 2006. In that year, Mr Bilaczenko instituted complaints with FOS about the services provided to him by a stockbroker. FOS at that time was a public company limited by guarantee. It operated a dispute resolution scheme approved by ASIC. The service had previously been operated by another entity with which FOS eventually merged, although nothing for present purposes turns on that history. Evidence in earlier proceedings showed that Mr Bilaczenko entered into a contract with FOS governing the parties’ rights and obligations in relation to the dispute resolution scheme (Contract). Mr Bilaczenko was, and to this day remains, dissatisfied with the dispute resolution service provided by FOS.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The first to third respondents filed submitting notices confirming that they did not seek to be heard on this application. Only the second and third respondents have reserved their positions as to costs. Although the fourth respondent, ASIC, was served with the application, it filed no submitting notice on the basis that it did not consider itself to be a party that had been properly joined. It confirmed that position in a letter to Mr Bilaczenko, a copy of which has been provided to the Court.CONSIDERATION It is convenient to consider Mr Bilaczenko’s proposed grounds of appeal in reverse order.Proposed Ground 3 By his submissions on this application, Mr Bilaczenko urged the Court to find that the FCC judgment was erroneous. He sought to demonstrate that the principle stated in Datafin applied so as to render FOS amenable to judicial review. His voluminous documentary materials largely concern that issue. They also concern the merits of the underlying complaints that Mr Bilaczenko had sought to have dealt with by FOS from 2006, presumably to demonstrate that FOS had committed reviewable errors in the discharge of its functions. Mr Bilaczenko’s submissions were typified by this statement made in the course of his oral submissions:… his Honour ruled that the decisions of the Financial Ombudsman were not amenable to do a judicial review. And I disagree. That’s what I’m here for. That’s what I would have liked to have done better in the first place. Mr Bilaczenko’s submissions were misdirected. The submissions fail to recognise that the issue of the amenability of FOS to judicial review has been judicially determined previously in the FCC, and that his 2013 application for leave to appeal the FCC judgment had been refused by Mansfield J. He cannot erase that procedural history by seeking to demonstrate that the FCC or, for that matter, Mansfield J, erred in determining the question of whether FOS was amenable to judicial review in accordance with any principle stated in Datafin. The fact would remain that the issues had been judicially determined, albeit adversely to Mr Bilaczenko. The third ground of appeal reflects Mr Bilaczenko’s repeatedly stated intention to agitate, on the proposed appeal itself, those same issues afresh. The material I have extracted at [32] above make that patently clear. Mr Bilaczenko’s oral submissions and written materials do not effectively address the question to be determined on the application now before this Court. The question may be expressed in this way: is there sufficient doubt warranting reconsideration by the Full Court of White J’s determination that the District Registrars were correct in determining that the proposed actions constituted an abuse of process because they sought to re-agitate issues that had already been judicially determined? In my opinion, that question must be answered no. It is neither necessary nor appropriate in these reasons to embark on an examination of whether the Datafin principle applies to FOS in the performance of its contractual obligations, for three reasons. First, as I have said, the issue does not properly arise for determination on this application. Second, and relatedly, even if I were to determine that issue in favour of Mr Bilaczenko, it would not follow that his proposed actions did not constitute an abuse of process. Third, determining that issue would not yield an answer to the question of whether each of the FOS determinations was properly to be regarded as a “decision under an enactment” for the purposes of the ADJR Act. Mr Bilaczenko did not address that discrete issue before me. I do not propose to consider or determine it of my own motion because, coming full circle, the issue was judicially determined by the FCC in 2013.Proposed Ground 2