Ferdinands v Commissioner of Consumer Affairs
[2014] SASC 200
•19 December 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FERDINANDS v COMMISSIONER OF CONSUMER AFFAIRS
[2014] SASC 200
Reasons for Decision of The Honourable Justice Nicholson
19 December 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed summons, interlocutory application and affidavit to the Court - whether the documents, on their face, are an abuse of process.
Held: Proposed summons, interlocutory application and affidavit are an abuse of process; Registrar to reject them for filing.
Supreme Court Rules 2006 (SA) r53, referred to.
Rana v Housing Trust of South Australia; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, discussed.
FERDINANDS v COMMISSIONER OF CONSUMER AFFAIRS
[2014] SASC 200Civil
NICHOLSON J.
Introduction
Trevor Kingsley Ferdinands has sought to file a summons and affidavit in support seeking judicial review of a decision by the Commissioner for Consumer Affairs to refuse Mr Ferdinands’ application for a security licence in April 2012. I note that the respondent is described in Mr Ferdinands documentation as the Commissioner of Business Affairs.
The affidavit which purports to set out the basis relied on by Mr Ferdinands for his claim to orders consequent on a judicial review also challenges, in a number of respects, a decision made by his Honour Judge Griffin (as he then was) in the matter of Ferdinands v Commissioner for Consumer Affairs & Commissioner of Police, published on 24 February 2012. However, the District Court is not recorded as a party to Mr Ferdinands’ proposed application for judicial review. In that decision, Judge Griffin dismissed an appeal from a Master of the District Court. The Master had decided that, because, as at the time of the appeal, no decision had been made by the Commissioner for Consumer Affairs, any appeal by Mr Ferdinands was premature and there was no jurisdiction in the District Court to hear an appeal.
Pursuant to rule 53 of the Supreme Court Rules 2006 (SA) the Registrar has referred to me the summons and affidavit, in support, that Mr Ferdinands wishes to file. Rule 53 provides for a power to reject documents submitted for filing and the Registrar has asked whether or not I am prepared to direct that Mr Ferdinands’ proposed documentation be rejected on the basis that it is, inter alia, an abuse of the processes of the Court.
The relevant principles have been helpfully summarised by Gray J in an earlier decision of this court.[1] I, with respect, adopt that summary of principles as sufficient for present purposes.
[1] Rana v Housing Trust of South Australia; Rana v Gregurev [2011] SASC 127.
Rule 53 provides for power to reject documents submitted for filing. The rule relevantly provides:
(1) A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2) If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3) If the Judge or Master so directs, the Registrar will reject the document.
(4) If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
The purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[2] The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[3] Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[4] The direction made under rule 53(4), is an administrative act not subject to appeal.[5]
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[6] If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
In Eastman v Higgins,[7] Lander J considered the correct approach to be taken by the Judge or Master in respect of a rule not materially different from rule 53. In that case, Lander J observed that the question raised in the rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?[8]
I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[9] where I concluded:[10]
Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[11] While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[12] On the other hand, a fundamental rule of law is that all persons have access to courts.[13] Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[14] It is however a power which should be exercised with care.
[2] Staats v United States of America (1992) 66 ALJR 793.
[3] Re Davison (1997) 147 ALR 259.
[4] Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[5] Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].
[6] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].
[7] Eastman v Higgins (2007) 210 FLR 464.
[8] As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].
[9] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[10] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].
[11] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].
[12] Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].
[13] See Ramsey v Skyring (1999) 164 ALR 378.
[14] Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable [in] terms to rule 53.
The affidavit in support is a detailed but, in large part, difficult to follow discourse about apparent complaints and concerns by Mr Ferdinands. Assertions made include that the Commissioner for Business Affairs has been less than independent and impartial and has extended the persecution, oppression and fraud suffered by Mr Ferdinands in his earlier employment as a police officer. No or insufficient particulars of these serious allegations are provided. It is not possible for the proposed respondent to have a clear and fair understanding of the case brought against it. In fact, much of the affidavit deals with asserted criticisms of Judge Griffin which are essentially irrelevant to any claim that might be brought against the Commissioner for a refusal to issue a security licence. All Judge Griffin did was to uphold a decision of the Master to the effect that an appeal by Mr Ferdinands against the Commissioner was premature. Judge Griffin did not at any stage involve himself in the merits of any dispute between Mr Ferdiands and the Commissioner. As such, the document contains a significant amount of irrelevant and embarrassing material. The affidavit also makes the very serious allegations of fraud and malice against the Commissioner without providing any factual substratum or particularisation in support. For these reasons, the document contains matters that are scandalous and is vexatious.
As already indicated, the documents offer no relevant details sufficient to allow the proposed respondent, whether it be the Commissioner or the District Court, to appreciate the case it would be required to meet. Judicial review proceedings based on an application in this form would be doomed to fail.
In the circumstances, Mr Ferdinands summons, interlocutory application and affidavit in support, sworn 3 December 2014, if filed, would be an abuse of the processes of the Court. I direct the Registrar to reject the documents. I direct that a copy of these reasons be sent to Mr Ferdinands.
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