CLA15 v Minister for Home Affairs (No.3)
[2018] FCCA 1833
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLA15 v MINISTER FOR HOME AFFAIRS (No.3) | [2018] FCCA 1833 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case whether the applicant should be prohibited from instituting proceedings in the Federal Circuit Court of Australia Act 1999 without leave pursuant to s.88Q(2)(b) – Court satisfied requirements of s.88Q(1) made out – applicant is a person who has frequently conducted vexatious proceedings in Australian Courts – Court’s powers exercised under Part 6B Division 1 of the Federal Circuit Court of Australia Act 1999. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), ss.88N, 88Q Migration Act 1958 (Cth), s.48B |
Cases cited:
CLA15 vMinister for Immigration & Anor [2017] FCCA 2873
Haque v Jabella Group Pty Ltd and Anor [2016] FCCA 14
Haque v Jabella Group Pty Ltd [2016] FCA 962
Haque v Tesoriero [2017] FCA 86
Pascoe v Liprini [2011] NSWSC 1484
Siteberg v Maples [2010] NSWSC 1344
Smith v Jarvie [2015] FCCA 2483
Spencer & Commonwealth (2010) 241 CLR 118
| Applicant: | CLA15 |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | SYG 1193 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 6 July 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| The Applicant appeared in person. | ||
| Solicitors for the Respondent: | Ms H Dejean | |
ORDERS
Grant leave to the applicant to rely upon the affidavit of 22 pages forwarded electronically to the Court and to the respondent and the Court dispenses with the need for the electronic filing of the same.
Pursuant to s.88Q(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth), the applicant is prohibited from instituting proceedings in this Court without leave of a Judge of the Court.
Pursuant to s.88Q(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth), any proceedings before the Federal Circuit Court by the applicant are stayed and are not to be pursued without leave of a Judge of the Court.
The applicant pay the costs of the respondent fixed in the amount of $2,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1193 of 2018
| CLA15 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application in a case for orders by the Court under Part 6B Division 2 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) against the applicant. The proceedings in this Court were commenced on 24 April 2018 seeking judicial review of a decision of a delegate of the respondent on 5 April 2018 not to refer the applicant’s request for Ministerial Intervention under s 48B of the Migration Act 1958 (Cth). That application was dismissed on 4 June 2018, with this Court finding that the proceedings were vexatious. On that occasion, leave was given to the respondent to seek an order if so desired under Part 6B Division 1 of the FCCA Act.
The interlocutory application now before the Court was filed on 13 June 2018. On 26 June 2018, this matter came before the Court pursuant to the orders made by the Court on 4 June 2018. On that occasion, the applicant requested an adjournment and an opportunity to put on further evidence which was granted. On that occasion, the applicant produced some initial pages of what the applicant ultimately annexed to an affidavit of 5 July 2018, together with other documents. Both those affidavits have been read.
On 26 June 2018, the Court explained to the applicant that the nature of the hearing of the interlocutory hearing was to consider whether the applicant had frequently brought vexatious proceedings. The Court explained to the applicant that the Court would take into account any submissions or affidavit evidence put on by the applicant explaining the nature of the proceedings he had brought, why they were reasonably arguable, and why he should not be the subject of any adverse order. The Court also explained to the applicant that it would take into account the nature of what the applicant filed in considering whether or not it was appropriate to make the orders sought.
Vexatious proceedings commenced by the applicant
The respondent has read an affidavit that identifies that the Commonwealth Courts Portal records discloses that 12 separate proceedings have been brought, excluding the current application. The respondent acknowledges that not all proceedings that have been brought by the applicant has been vexatious proceedings.
The respondent, however relies, first, upon the proceedings involving claims allegedly connected with the Fair Work Act2009 (Cth) that were brought before Judge Nicholls of the Federal Circuit Court of Australia in matter number SYG 3246 of 2014. In Haque v Jabella Group Pty Ltd and Anor [2016] FCCA 147 Judge Nicholls found that the proceedings were doomed to failure without reasonable grounds, were also an abuse of process and were found to be frivolous and vexatious. His Honour made reference in particular in Haque v Jabella Group Pty Ltd and Anor [2016] FCCA 147 at [155] to affidavits which sought to put submissions which he characterised as “long, incoherent and incomprehensible narratives” containing “large amounts of unexplained and irrelevant matters”. Those proceedings are ones which on their face can be described as proceedings meeting the definition of “vexatious proceedings” identified in s 88N(1) of the FCCA Act.
The applicant sought an extension of time for leave to appeal in relation to the proceedings that were adversely determined by Judge Nicholls. That decision, Haque v Jabella Group Pty Ltd [2016] FCA 962 at [25] referred to the applicant’s affidavit as containing “expressions that cannot be penetrated”, in the reasons of the learned Bromwich J. The learned Justice identified unsustainable grounds of appeal and taking into account that the onus in relation to determining whether proceedings are vexatious, as well as the primary judge’s references to the principles applicable in respect of self-represented litigants, the learned Justice also concluded that the conclusions reached by the primary judge were correct and the application was dismissed with costs. On the face of those reasons, the proceedings NSD 340 of 2016 were ones that were pursued without reasonable ground and within the meaning of “vexatious proceedings” in s 88N(1) of the FCCA Act.
On 9 February 2017, the learned Bromwich J reviewed a decision of a Registrar to refuse to accept an application for leave to appeal in circumstances where the Registrar considered the applicant could not possibly succeed and was therefore, vexatious. In Haque v Tesoriero [2017] FCA 86, the Court found that the Registrar was entirely correct to refuse the application. Those proceedings NSD 1751 of 2006 were accordingly proceedings that were an abuse of process and/or without reasonable cause and vexatious proceedings within s 88N of the FCCA Act.
The respondent also relied upon proceedings that had been instituted by the applicant in SYG 1113 of 2017 in respect of which on 22 November 2017, the Court found in CLA15 vMinister for Immigration & Anor [2017] FCCA 2873, that the proceedings were patently vexatious.
The current application before this Court
The respondent also relied on the substantive application that was filed in these proceedings and which the Court found to be vexatious. Notwithstanding the opportunity given to the applicant, the applicant has not put on submissions seeking to engage with why those proceedings were reasonable, or why the applicant had a reasonable prospect of success in those proceedings.
Rather, the applicant has filed an affidavit that, whilst partially intelligible, reflects no insight or understanding as to the abuse of process in respect of the vexatious proceedings that had been taken and, in relation to which the applicant identifies both an intention to continue to seek to pursue what appear to be vexatious proceedings that were the subject of determination adversely by the learned Judge Nicholls and what appears to be the same subject matter as related to the proceedings that the learned Bromwich J also refused by attempting to commence proceedings as recently as 5 July 2018 under the Fair Work Act 2009 (Cth).
The applicant also annexed a decision of the learned Nettle J in matter No S286 of 2017, of an application for a show cause order being dealt with in the High Court of Australia. The learned Nettle J in that decision identified a history of applications by the applicant to the Federal Circuit Court and to the Administrative Appeals Tribunal that on their face reveal cause for concern, and which ultimately, refers to orders made by this Court on 30 October 2017 and found that the application was not one that would be in the interests of justice to do so. The Court finds on the basis of the reasons identified, that those proceedings were without reasonable ground and within the meaning of vexatious proceedings in s 88N of the FCCA Act.
The applicant’s affidavit affirmed 5 July 2018 relevantly, included as follows:
Applicant also believes his skilled migration visa decision was not properly reviewed by High Court for serious breach of procedural fairness…Applicant has some findings already to believe he will become successful to have a trial of his case.
The substance of what was said by the applicant appears not just to reflect a lack of understanding of the determination adverse to the applicant of his application filed in the High Court of Australia, but also to appear to reflect an intention by the applicant to continue pursuing this case.
The applicant’s submissions from the bar table in substance were to the effect that it was premature for the Court to determine whether or not he should be declared a vexatious litigant. The applicant indicated he wanted to continue his proceedings and was of the view that it was the conduct of the Court not the applicant that was in issue.
Whether the applicant should be declared a vexatious litigant
The Court takes into account the principles and caution in Spencer & Commonwealth (2010) 241 CLR 118 at [24]-[25] and [59]-[60] in determining whether or not proceedings meet the definition of vexatious proceedings in Part 6B of the FCCA Act. The Court takes into account that the applicant is self-represented and the caution and leniency that should be exercised in circumstances where a person is unrepresented in considering whether or not the proceedings are ones properly to be characterised as vexatious proceedings.
The Court also takes into account, as the respondent has identified, that there are proceedings that the applicant has brought which were not vexatious, or not apparently vexatious. The principles to be applied in this regard have been helpfully summarised in Smith v Jarvie [2015] FCCA 2483 at [13]-[25], as well as being expanded upon as to whether the proceedings had been frequently instituted or conducted by the learned Adamson J in Pascoe v Liprini [2011] NSWSC 1484 at [75]-[78], as well as the observations in Siteberg v Maples [2010] NSWSC 1344 at [31].
The Court also takes into account the purpose of Part 6B of the FCCA Act, which is not to punish the applicant, but rather is a protective provision to prevent the Court and the public from being adversely affected by wasteful and misconceived proceedings.
I find in the present case, that the applicant by reason of the matters referred to above, has frequently instituted or conducted vexatious proceedings in Australian Courts or Tribunals. Judges of this Court, the Federal Court and the High Court of Australia variously describe the applicant’s proceedings as vexatious, patently vexatious, an abuse of process and having no reasonable prospect of success. The applicant has used the Court for the purpose of advancing extraneous complaints.
The Court also takes into account that subject to the provisions of Part 6B of the FCCA Act, the right of a person to have access to the courts is an important and significant right, and that it is only where the statutory provisions of s 88Q of the FCCA Act have been made out that the Court should consider making an order. In that regard, the Court takes into account that under s 88Q of the FCCA Act, the Court must be satisfied that the applicant has been given the opportunity of being heard in respect of the proposed orders.
I am satisfied in the circumstances of the present case that the requirements of s 88Q(1) of the FCCA Act are made out and that the applicant is a person who has frequently conducted vexatious proceedings in Australian Courts or Tribunals. I am satisfied that the applicant has been given the opportunity of being heard in relation to the application before the Court. In that regard, the proceedings were to be heard on an earlier date and were adjourned at the request of the applicant, and the applicant has adduced evidence and submissions in relation to the application. The applicant’s evidence only exacerbates the circumstances in terms of identifying that the applicant has no insight in relation to the vexatious proceedings that have been taken and on the face of the material before the Court, I find the applicant intends to continue to take proceedings that would be in substance vexatious and would involve waste of Court time and resources.
Those considerations weigh in favour of the making of an order in the present case and was identified by the respondent requiring leave in respect of the continuation of any proceedings currently before the Court. The making of these orders does not prevent the applicant seeking leave to institute proceedings, or seeking leave to continue proceedings if those proceedings are ones that are not vexatious. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under Part 6B Division 1 of the FCCA Act.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 7 September 2018
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