Cooper v Judicial Registrar Lackenby

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FEDERAL COURT OF AUSTRALIA

Cooper v Judicial Registrar Lackenby [2022] FCA 1153

File number(s): SAD 45 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 18 October 2022
Catchwords: ADMINISTRATIVE LAW – application for judicial review of two decisions, each by a different Registrar made under r 2.26 of the Federal Court Rules 2011 (Cth) to reject documents for filing – the first decision concerned whether a Bankruptcy Form 2 application and accompanying affidavit were frivolous, vexatious and sought orders outside the jurisdiction of the Court – a subsequent interlocutory application to join the second Registrar to the proceedings allowed – the second decision concerned whether a Form CP14 indictment and Form CP15 indictment information notice were frivolous, vexatious and sought orders outside the jurisdiction of the Court – whether the Registrars made a substantive judgment about the underling merit of the claims when making their decisions – application dismissed
Legislation:

Acts Interpretation Act 1901 (Cth), s 34 AB(1)(b)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), 5(1)(c) & (f), 11(1)

Federal Court of Australia Act 1976 (Cth), ss 35A(1)(h), 37AM

Federal Court Rules 2011 (Cth), rr 2.26, 31.01(1), Schedule 1
Cases cited:

Ferdinands v Registrar Cridland [2021] FCA 592

Ferdinands v Registrar Cridland [2022] FCAFC 80

Ferdinands v Registrar Parkyn [2020] FCA 1676

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51

Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 48
Date of last submission/s: 14 June 2022
Date of hearing: Determined on the papers
Counsel for the Applicant: No appearance
Counsel for the Respondents: No appearance

ORDERS

SAD 45 of 2022
BETWEEN:

RICHARD JOHN COOPER

Applicant
AND:

KIM LACKENBY, JUDICIAL REGISTRAR, CANBERRA, AUSTRALIAN CAPITAL TERRITORY

First Respondent

AMELIA EDWARDS, JUDICIAL REGISTRAR, MELBOURNE, VICTORIA

Second Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

18 OCTOBER 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

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


REASONS FOR JUDGMENT

O’SULLIVAN J:

INTRODUCTION

  1. On 4 March 2022, Richard John Cooper (applicant) lodged for filing with the ACT Registry of the Court, a Bankruptcy Form 2 Application and supporting affidavit (first Cooper affidavit). On 7 March 2022, Registrar Lackenby refused to accept the documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR).  On 23 March 2022, the applicant filed an originating application in which the applicant applies for judicial review of Registrar Lackenby’s decision.

  2. On 31 March 2022, the applicant lodged for filing a Form CP14 indictment and Form CP15 indictment information notice.  That same day, Registrar Edwards refused to accept the documents pursuant to FCR 2.26.  The applicant also seeks judicial review of Registrar Edward’s decision.

  3. On 13 April 2022, the applicant filed an interlocutory application in which he sought to join to…

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Details
Case
[2022] FCA 1153
Decision Date

CaseChat Overview and Summary

In Cooper v Judicial Registrar Lackenby, the applicant sought judicial review of two decisions made by different Registrars to reject documents for filing in the Federal Court. The first decision concerned the refusal to accept a Bankruptcy Form 2 application and accompanying affidavit, while the second involved the rejection of a Form CP14 indictment and Form CP15 indictment information notice. Both decisions were made under rule 2.26 of the Federal Court Rules 2011 (Cth), which grants Registrars the authority to refuse to accept or issue documents that appear to be frivolous, vexatious, or seek orders outside the Court's jurisdiction.

The primary legal issue before the court was whether the Registrars made a substantive judgment about the underlying merit of the claims when exercising their discretion under rule 2.26. The court found that when Registrars refuse to accept documents for filing, they do not make any substantive judgment about the claims' merit. Instead, they ensure compliance with procedural requirements, which was sufficient to dismiss the application's grounds of review.

The court dismissed the application, concluding that the Registrars did not make a substantive judgment about the underlying merit of the claims when exercising their discretion under rule 2.26. The Registrars' decisions were based on ensuring compliance with procedural requirements, and there was no error of law or jurisdiction in their actions. Therefore, the application for judicial review was dismissed.

Orders

Orders of the court

1. 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Ferdinands v Registrar Cridland [2021] FCA 592 at [9], White J referred to what he said in Ferdinands v Registrar Parkyn [2020] FCA 1676 where he set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to FCR 2.26. In Cridland, his Honour said:10The nature of the power bestowed on a Registrar pursuant to O 46, r 7A of the original Federal Court Rules (the predecessor of r 2.26) was discussed by the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353. The Full Court said:[15]The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.11This reasoning was applied more recently in Nyoni v Murphy in which the Full Court said:[33]The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry … It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend ……[38][A] Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious …(Citation omitted and emphasis added)The decision under review The decision by Registrar Lackenby dated 7 March 2022 is annexure RJC-1 to the second Cooper affidavit. After identifying the documents that were sought to be filed, the Registrar set out FCR 2.26 and said:I am of the view that the Documents should be refused for filing under rule 2.26 of the Rules on the basis that you seek to encompass in the one application multiple respondents and various causes of action, many of which appear to attempt to be criminal prosecutions for which the Federal Court does not have jurisdiction. Accordingly, the Documents are returned to you and. I encourage you to seek legal advice.

Ratio Decidendi

Legal Principle Established

The originating application also seeks that the Court disallow Registrars from exercising their power under FCR 2.26 to refuse the filing of documents in the Courts “bankruptcy and equitable” jurisdiction.CONSIDERATION The application for judicial review does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to Registrars not having the power to make decisions relating to the filing of documents suggests ss 5(1)(c) and (f). Those provisions provide:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:…(c)that the person who purported to make the decision did not have jurisdiction to make the decision;...(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;… When refusing to accept a document for filing under FCR 2.26, the Registrars do not make any substantive judgment about the underlying merit of the claims in the proposed proceedings. The Registrars said in their letters to the applicant, that they refused to accept the documents because on their face they were frivolous or vexatious. In so doing, the Registrars were not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but were ensuring compliance with procedural requirements. That is sufficient to dispose of the ground of review in s 5(c) of the ADJR Act. As to the meaning of “frivolous” or “vexatious” or the expression “an abuse of the Court’s process”, there is no definition of either of the terms “frivolous” or “vexatious” in the FCR nor of the expression “an abuse of the Court’s process. In Ferdinands v Registrar Cridland at [27]-[31], White J considered the meaning of these terms. His Honour noted that the Dictionary contained in Schedule 1 to the FCR contained a definition of “vexatious proceeding” by reason of a cross-reference to s 37AM of the Federal Court of Australia Act 1976 (Cth). Section 37AM(1) provides:vexatious proceeding includes:(a)a proceeding that is an abuse of the process of a court or tribunal; and(b)a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and(c)a proceeding instituted or pursued in a court or tribunal without reasonable ground; and(d)a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. After referring to s 37AM, his Honour continued at [28]-[30]:28As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.29In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of the terms “vexatious” and “frivolous” appearing in r 26.01(1) of the FCR. His Honour said:[35]The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …[36]A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …[37]In relation to the term ‘frivolous’:(a)a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;(b)a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and(c)‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …[38]In relation to the term ‘vexatious’:(a)a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;(b)proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;(c)a proceeding is to be regarded as ‘vexatious’ where:(i)it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or(ii)it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or(iii)irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and(d)‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …(Citations omitted)30.As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. There is no reason to suppose that the Registrar did not apply meanings of this kind in the present case when considering whether the applicant’s proposed proceeding was frivolous or vexatious on the face of the documents. In reaching that conclusion, I take into account that the applicant has not sought to point to any particular error by the Registrar in her construction of these terms.