FEDERAL COURT OF AUSTRALIA
Bilaczenko v Bochner [2016] FCA 1207
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
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
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