Collier v Tesoriero

FEDERAL COURT OF AUSTRALIA

Collier v Tesoriero [2017] FCA 1497

File number(s):	ACD 63 of 2017
Judge(s):	BROMWICH J
Date of judgment:	15 December 2017
Catchwords:	PRACTICE AND PROCEDURE – application for judicial review of decision by Registrar to refuse to accept originating application and supporting affidavit for filing – refusal to accept for filing on basis of apparent duplication of proceedings – held: application for judicial review allowed and decision of Registrar set aside – held: no duplication of proceedings
Legislation:	Federal Court Rules 2011 (Cth), rr 1.40, 27.11
Date of hearing:	4 December 2017
Registry:	New South Wales
Division:	General
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicants:	The Applicant appeared in person
Counsel for the Respondent:	The Respondent filed a submitting notice save as to costs

ORDERS

ACD 63 of 2017

BETWEEN:

MARION LOUISE COLLIER
Applicant

AND:

REGISTRAR TONY TESORIERO

Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	15 DECEMBER 2017

THE COURT ORDERS THAT:

1.The application for judicial review of the decision made by the respondent on 10 August 2017 be allowed.

2.The decision of the respondent to refuse to accept for filing the originating application and supporting affidavit lodged by the applicant be set aside.

3.The originating application dated 9 August 2017 and the supporting affidavit of the applicant sworn 9 August 2017 be accepted for filing.

4.Upon acceptance for filing, the originating application dated 9 August 2017 and the supporting affidavit of the applicant sworn 9 August 2017 be transferred to the Federal Circuit Court of Australia pursuant to rr 27.11 and 1.40 of the Federal Court Rules 2011 (Cth).

5.There be no order as to the costs of and incidental to this application.

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

REASONS FOR JUDGMENT

BROMWICH J:

1. On 14 August 2017, Ms Marion Louise Collier filed an application for judicial review of a decision of the respondent, Mr Tony Tesoriero, in his capacity as a Registrar of this Court, to refuse to accept for filing an originating application dated 9 August 2017 and supporting affidavit sworn 9 August 2017.  As Mr Tesoriero filed a submitting appearance save as to costs, there was no contradictor to the application to review his decision. 

2. The reasons for the refusal to accept Ms Collier’s documents for filing were contained in an email sent on behalf of Mr Tesoriero to Ms Collier on 10 August 2017, the same day as the documents were lodged for filing.  The email stated that the documents lodged for filing appeared to duplicate other proceedings that were still current and had not been finalised.  That description requires some contextual elaboration.  The prior proceedings referred to as being current and not finalised were initially commenced in this Court.  Those proceedings were transferred to the Federal Circuit Court of Australia by an order made on 16 November 2016 by Flick J.  Those remitted proceedings are now…