Bilaczenko v Bochner

Case [2016] FCA 275

FEDERAL COURT OF AUSTRALIA

Bilaczenko v Bochner [2016] FCA 275

File number: SAD 456 of 2015
Judge: WHITE J
Date of judgment: 22 March 2016
Catchwords:

ADMINISTRATIVE LAW – application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – application for extension of time – District Registrars of Federal Court refused on two occasions in the exercise of the power under r 2.26 Federal Court Rules 2011 (Cth) to accept documents for filing – whether proposed applications constituted an abuse of process because of attempt to re‑agitate matter determined by judgment in earlier proceedings – where earlier judgment interlocutory in nature.

Held: District Registrars’ decisions do not involve errors of law – application dismissed.

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 11(3)(a)

Federal Circuit Court Act 2001 (Cth) s 17A(2)

Federal Circuit Court Rules 2001 (Cth) r 13.10

Federal Court Rules 2011 (Cth) r 2.26

Cases cited:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175

Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420

Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268

CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 30 VR 555

Coffey v Secretary, Department of Social Security [1999] FCA 375, (1999) 86 FCR 434

DA Christie Pty Ltd v Baker [1996] 2 VR 582

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

Farah Constructions Pty Ltd v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257

Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185

Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139

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

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

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

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

State of Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121

Walton v Gardiner (1993) 177 CLR 378

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

Date of hearing: 9 March 2016
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondents: The Respondents did not appear

ORDERS

SAD 456 of 2015
BETWEEN:

NICHOLAS BILACZENKO

Applicant
AND:

KATRINA BOCHNER (and others named in the Schedule)

First Respondent

JUDGE:

WHITE J

DATE OF ORDER:

22 MARCH 2016

THE COURT ORDERS THAT:

1.The oral application for an extension of time within which to commence proceedings is refused and the application is dismissed.

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

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Details
AGLC
Bilaczenko v Bochner [2016] FCA 275
Case
[2016] FCA 275
Decision Date

CaseChat Overview and Summary

The case of Bilaczenko v Bochner concerns an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and an application for an extension of time for filing documents in relation to proceedings against several respondents, including the Financial Ombudsman Service (FOS), Commonwealth Securities Limited, E-Trade Australia Securities Ltd, Direct Shares, Third Party Platform trading as Bell Direct, and ASIC. The applicant, Bilaczenko, sought to re-litigate matters that had already been determined in earlier proceedings in the Federal Circuit Court, which had been dismissed on the basis that the applicant had no reasonable prospect of success. The District Registrars of the Federal Court refused to accept Bilaczenko's documents for filing on two occasions, considering the proposed proceedings to be an abuse of process.

The legal issues the court was required to decide included whether the District Registrars’ decisions to refuse to accept Bilaczenko's documents for filing involved errors of law and whether the proposed proceedings constituted an abuse of the Court’s process. The court had to consider the inherent power of the court to prevent misuse of its procedures in a manner that would be manifestly unfair or bring the administration of justice into disrepute.

The court found that the District Registrars’ decisions did not involve errors of law. The court recognised that an attempt to re-litigate a case already judicially determined may constitute an abuse of the Court’s process. The court cited several authorities, including Walton v Gardiner, Hunter v Chief Constable of the West Midlands Police, Aon Risk Services Australia Ltd v Australian National University, and Plaintiff S3/2013 v Minister for Immigration and Citizenship, to support its conclusion. The court held that Bilaczenko's attempt to re-agitate matters determined in earlier proceedings was an abuse of process, and therefore, the District Registrars’ decisions were correct.

The court dismissed Bilaczenko's application for an extension of time within which to commence proceedings and dismissed the application. The court noted that entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The oral application for an extension of time within which to commence proceedings is refused and the application is dismissed.

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

Background

Background to the litigation

The principal reason for the refusals by the two District Registrars to accept the applicant’s documents for filing was that they regarded the proposed proceedings as an attempt by him to re‑litigate matters which had already been judicially determined and, accordingly, an abuse of the Court’s process. Before setting out the reasons of the two Registrars in more detail, it is appropriate to refer to some matters of background.Background In 2012, the applicant commenced two proceedings in the Federal Circuit Court (the FCC) (then known as the Federal Magistrates Court). The two proceedings (Action ADG 128 of 2012 and Action ADG 156 of 2012) were heard together. In both actions, the applicant sought review under the ADJR Act of determinations made by FOS. The first application sought judicial review of the “decision” of FOS not to “examine stockbroker fraud” and “stockbroker trading systems malfunctions” on the ground that it had “acted in bad faith for want of jurisdiction” and had made “an unauthorised” determination identified as No. 17815. The second complained of a determination made by FOS identified as No. 17129. The applicant alleged “contract impropriety” by FOS and that it had had no authority to make the determination it had. FOS applied for the summary dismissal of both applications pursuant to s 17A(2) of the Federal Circuit Court Act 2001 (Cth) and, or in the alternative, pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) on the basis that the applicant had no reasonable prospect of successfully prosecuting either action. The FCC Judge upheld the applications of FOS and, on 31 May 2013, found that the applicant had no reasonable prospect of prosecuting either action successfully: Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420. Accordingly, he dismissed both applications. The Judge was satisfied that the decisions of FOS which the applicant impugned were not amenable to judicial review because they were not decisions made under an enactment (s 3 of the ADJR Act) and, accordingly, were not decisions to which the ADJR Act applied (s 5(1)). Essentially this was because the decisions of FOS were made as part of a dispute resolution service provided by Financial Service Providers and were made pursuant to a contractual arrangement made between the complaining consumer, FOS and the Financial Services Provider whose conduct was the subject of the consumer’s complaint. The evidence in the FCC indicated that FOS is a public company limited by guarantee which provides an internal dispute resolution service sponsored by ASIC. Consumers availing themselves of the service were required to sign a contract. Under the terms of the contract, the material provided to FOS by the consumer or by the Financial Services Provider was “without prejudice”, the determination of FOS was not reviewable, and the consumer complainant was free to pursue such legal rights as that person chose after the determination had been made. The consumer agreed not to take any action against FOS or its adjudicators in relation to a complaint or its determination unless the adjudicator had acted in bad faith.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There matters rested until the applicant attempted to commence fresh proceeding in this Court in July 2015. The decisions of the District Registrars The application which the applicant sought to file in July 2015 was an application for judicial review under the ADJR Act. The applicant proposed naming six respondents: FOS, Commonwealth Securities Limited, E‑Trade Australia Securities Ltd, Direct Shares, Third Party Platform trading as Bell Direct, and ASIC. The affidavit of the applicant made on 8 July 2015 which accompanied the proposed application identified at its commencement the issues which he sought to have determined as followings: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. In paragraph 2 of the same affidavit, the applicant deposed:As there was no determination of the content matters I again refile another application for judicial review of the decisions of FOS which content has significant commercial and general public interest. Much of the remaining content of the affidavit was given over to an argument that the “Datafin principle” should be applied in Australia. The applicant referred to several decisions in which the Datafin principle had been applied in Australia, including State of Victoria v Master Builders’ Association of Victoria [1995] 2 VR 121 and CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 30 VR 555. He also referred to the first instance decision in Mickovski v Financial Ombudsman Service Ltd [2011] VSC 257 at [9] in which Pagone J considered the Datafin principle to be correct generally but inapplicable in the case of decisions by FOS. The affidavit of 8 July 2015 also indicates that the applicant wished to agitate a separate question altogether, namely, “whether criminal matters are subject to judicial review in the Australian Federal Courts”. The character of this aspect of the applicant’s claim is seen in the following paragraph of his affidavit:[32]The Federal Court of Australia does not allow applications for judicial review of criminal matters, for the purpose of demonstrating exception justifiable circumstances in invoking the supervisory role of judicial review of the Federal Court in the interest of Australian motorists, Bilaczenko (the plaintiff) is entitled to make application for judicial review, not only seeking my acquittal to be set aside on the basis of breach of the Summary Procedure Act 1921 but also I am entitled to obtain from this Court writs and declarations of invalidity and serve upon any officer of the Commonwealth including officers of the Federal Attorney General Department, SA Transport and Department of Public Prosecution (DPP) on the basis of police enforcement without lawful authority for the purpose of exposing bad federal road traffic legislation.

Ratio Decidendi

Legal Principle Established

On 16 September 2015, the applicant again posted documents to this Court for filing. District Registrar Baldwin refused to accept the documents for filing, again exercising the power in r 2.26. She gave the following reasons in her letter to the applicant of 22 September 2015:The originating application accompanying your correspondence dated 16 September 2015 is deficient for the reasons that follow:1.The originating application states:The applicant applies to the Court to review the decision of the First Respondent that [specify decision].The application fails to identify the decision or decisions which you seek to have reviewed. 2.The originating application is in the same format and has the same content as the one that was refused by District Registrar Bochner for filing on 20 July 2015. In her correspondence, District Registrar Bochner explained to you that the decisions you purported to have reviewed by the Court were the same decisions that have already been reviewed by the Court proceedings ADG 128/2012 and ADG 156/2012. You were unsuccessful in those two applications. 3.To the extent that this latest originating application may seek to review the decisions that have already been considered by the Court, the application is an abuse of process. A party is not able to re‑agitate the point once it is finalised. 4.It appears from your correspondence that you are actually seeking legal advice and want to access the Court’s pro bono legal assistance scheme, but can only do so if an application has already commenced in the Court. This is not a proper basis upon which to commence proceedings in this Court.Consequently I am unable to accept your documents for filing, pursuant to r 2.26 of the Federal Court Rules 2011. Consideration It is well established that that an attempt to re‑litigate a case already judicially determined may constitute an abuse of the Court’s process. Mason CJ, Deane and Dawson JJ said in Walton v Gardiner (1993) 177 CLR 378 at 393:[P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as “the inherent power which any court of justice must possess to prevent misuse of its procedure in way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to a litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people”.(Emphasis added and citations omitted)See also, Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, (2009) 239 CLR 175 at [33] (French CJ) and Plaintiff S3/2013 v Minister for Immigration and Citizenship [2013] HCA 22, (2013) 297 ALR 560 at [11] (Gageler J).