Bowman v TAC

[2021] VSCA 196

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCI 2021 0058

RICKY BOWMAN	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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APPLICATION

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JUDGES:	PRIEST and WALKER JJA
DATE OF HEARING:	Determined on the papers
DATE OF REASONS:	12 July 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 196

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PRACTICE AND PROCEDURE – Application to direct the Registrar to accept an application for leave to appeal –  Whether the  decision sought to be appealed from judicial or administrative in nature – proposed appeal incompetent – Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 applied – Supreme Court (General Civil Procedure) Rules 2005, r 64.43(5) – Application refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

PRIEST JA
WALKER JA:

1. Mr Ricky Bowman (for convenience, ‘the applicant’) apparently wishes to bring a claim for damages against the Transport Accident Commission (‘TAC’).

1. For that purpose, he sought to initiate proceedings in the County Court by attempting to file a Writ and Statement of Claim.  He was, however, refused permission to do so.  Thus, on 4 December 2020, Judge Ginnane made the following order:

Upon referral to Judge Ginnane to determine whether the Registrar is to be directed to permit the Plaintiff to file a Writ endorsed with a Statement of Claim the order of the Court is;

1.   The Registrar is directed not to permit the Plaintiff to file the Writ and Statement of Claim pursuant to Rule 27 .06.[1]

[1]Rule 27.06 of the County Court Civil Procedure Rules 2018 provides:

Registrar refusing to seal or accept document

(1)   The Registrar may refuse to seal an originating process without the direction of the Court where the Registrar considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.

(2)Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court—

(a) the Registrar may refuse to accept it for filing without the direction of the Court;

(b)  the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is duly prepared is made available.

(3)   The Court may direct the Registrar to seal an originating process or accept a document for filing

1. We pause to note that the Writ and Statement of Claim to which Judge Ginnane’s order relates is undated.  It consists of a printed form headed ‘Form 5A’ and ‘Writ’, the main body of the document being constituted by a handwritten endorsement, which, although discursive, very poorly drafted and otherwise obscure, appears to be designed to make a claim for damages against the TAC for loss of earning capacity and pain and suffering.  That said, it is impossible to discern any possible (let alone viable) cause of action from the endorsement.

1. It would appear that the applicant now wishes to challenge Judge Ginnane’s order.  Hence, on 19 May 2021, the applicant sought to file a number of documents in the Court of Appeal Registry.  The documents included:

·     an application for extension of time to file an application for leave to appeal;

·     an application for leave to appeal;

·     a written case;

·     a list of authorities;

·     a draft summary;

·     a draft application book index;

·     a copy proposed County Court writ and statement of claim; and

·     a copy of the order made by Judge Ginnane on 4 December 2020.

1. In an email to the applicant dated 8 June 2021, the Registry advised the applicant that his documents would not be accepted for filing.  Three reasons were advanced:

The documents you submitted to the Court of Appeal are not accepted for filing for the following reasons:

1.   The Form 64B should be accompanied by an explanation of the reasons for the delay – up to the time of submitting documents to the Court of Appeal.

2.   Your proposed grounds of appeal in the Form 64A and your arguments in support of them in the written case are not clear.  For example, it is not clear in which respects you say Judge Ginnane’s decision was wrong, and why.

3.   In any event, the legal basis for your claim against the TAC and the facts you rely on to support it are not clear from your proposed County Court writ and statement of claim.

1. Following the Registry’s email of 8 June 2021, the applicant sent emails to the Registry as follows:

·     11 June 2021 at 2:41 pm and 6:34 pm;

·     14 June 2021 at 2:55 am,  5:15 pm and 11.45 pm;

·     17 June 2021 at 3:17 am, 6:25 pm and 8:04 pm;

·     20 June 2021 at 4:34 am and 5:42 am;

·     21 June 2021 at 11:29 pm;

·     22 June 2021 at 5:06 am and 6:54 am;

·     25 June 2021 at 2:01 pm;

·     2 July 2021 at 5.58 pm;

·     4 July 2021 at 9.52 pm; and

·     6 July 2021 at 5.24 pm.

1. Importantly, by an email to the applicant on 17 June 2021 at 4:15 pm, the Registry referred to the applicant’s emails between 2:41 pm on 11 June to 3:17 am on 17 June 2021, and informed the applicant as follows:

The Court has treated your emails as an application pursuant to rule 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015 for one or more Judges of Appeal to direct the Registrar to accept your documents for filing. You will be informed of the outcome of that application in due course.

1. In emails subsequent to the Registry’s email to him on 17 June 2021, the applicant on several occasions stated that he hoped to ‘be able to receive good news’ from the Registry and ‘the court officials’ concerning his case against the TAC.  So much indicates to us that the applicant understood that two or more judges of the Court of Appeal would be asked to determine whether the Registrar would be directed to accept the applicant’s documents for filing.

1. As the Registry informed the applicant, the power to direct the Registrar to accept a document for filing is to be found in r 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), which provides:

64.43 Further powers of Registrar

(1) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if the Registrar considers that—

(a) the document is irregular;

(b) the document is frivolous or vexatious on its face or by reference to any materials already filed or submitted for filing; or

(c) the filing of the document would give rise to an abuse of the process of the Court.

(2) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if—

(a) it is not complete;

(b) it does not comply with these Rules or the requirements of any applicable practice note;

(c) it is not properly signed, if required to be signed;

(d) it is not accompanied by all the documents required by this Order or any applicable practice note; or

(e) any applicable fee has not been paid.

…

(5) The Court of Appeal constituted by one or more Judges of Appeal may direct the Registrar to accept for filing any document which the Registrar has refused to accept under this Rule.

1. We will not direct the Registrar to accept the applicant’s documents for filing. Quite apart from the manifest deficiencies in the documents, we consider that it would be futile to give a direction under r 64.43(5) of the Rules, since we consider the Court of Appeal to be without jurisdiction to subject Judge Ginnane’s order to appellate review.

1. Section 74(1) of the County Court Act 1958 provides that ‘any party to a civil proceeding who is dissatisfied with any judgment or order of the court constituted by a judge … may appeal from the same to the Court of Appeal with leave of the Court of Appeal’;[2] and s 10(1)(c) of the Supreme Court Act 1986 provides that the Court of Appeal ‘has jurisdiction to hear and determine … all appeals from the County Court constituted by a Judge of that Court’.

   [2]By s 3(1), ‘party’ includes a party to a civil proceeding; and a ‘proceeding’ means ‘any matter in the court’.

1. In Bizuneh,[3] a judge of the Federal Court had, pursuant to O 46 r 7A of the (since repealed) Federal Court Rules, directed the Registrar of that Court not to accept certain documents for filing. The rule provided that ‘the Registrar may refuse to accept or issue’ a document, or ‘seek the direction of a Judge who may direct [the Registrar] … to accept or issue it; or … to refuse to accept or issue it; or … to refuse to accept or issue it without the leave of a Judge first had and obtained’. The person who had sought to file the documents purported to appeal against the judge’s direction to the Full Court, which, under s 24(1)(a) of the Federal Court Act 1976 ‘had jurisdiction to hear and determine … appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court’.  The Court held that mere direction under O 46, r 7A was not a judgment capable of being appealed:[4]

… Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar’s duties, the direction sought is administrative in character.  It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.

Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard.  It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face.  No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A.

A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the judge being unable to form a view on the face of the document that the Registrar is entitled to reject it.  Further, the Registrar may be directed by the judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a judge to lodge or file the document.  An application to a judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.

It should be concluded, therefore, that a mere direction under O 46, r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20, r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.

The application must be dismissed as incompetent.

[3]Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 (Lee, Whitlam and Jacobson JJ) (‘Bizuneh’).

[4]Ibid 357 [16]–[20].

1. A similar situation arose in Manolakis.[5]  After a review of authority, the Court in that case said:[6]

… In our view, having regard to the weight of the above authorities, it should now be accepted in this Court that a direction of a judge under O 46, r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court of Australia Act. If a different view is to be taken, that view should be expressed by the High Court.  In our view, the reasoning of Toohey J in Legal Aid Commission v Edwards 61 FLR 419; 42 ALR 154 and of the Full Court in Bizuneh 128 FCR 353 concerning the necessary attributes of a judicial, as opposed to an administrative decision, even where the decision is taken within the framework of the judicial branch of government is persuasive. We respectfully consider that, to the extent that Toohey J took a different view in Letts v Commonwealth 8 FCR 585, this is explicable on the basis that that matter concerned a decision of the Registrar of the High Court whose conduct was appropriately controlled by the justices of that court.

[5]Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 (Gray, Branson and Besanko JJ) (‘Manolakis’) (emphasis added).

[6]Ibid 432 [20].

1. In our opinion, r 27.06 of the County Court Civil Procedure Rules 2018 is in no different category to the rule considered in Bizuneh and Manolakis.  Any appeal to this Court would be incompetent.  Self-evidently, therefore, it would, as we have said, be futile to give a direction to the Registrar under r 64.43(5).

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