Ferdinands v Registrar Burns

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FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Burns [2024] FCAFC 105  

Appeal from:

Ferdinands v Registrar Burns [2023] FCA 1646

Ferdinands v Allaway, National Duty Registrar (No 2) [2023] FCA 12
File number(s): SAD 1 of 2024
SAD 16 of 2023
Judgment of: CHEESEMAN, GOODMAN, MCEVOY JJ
Date of judgment: 21 August 2024
Catchwords: ADMINISTRATIVE LAW – concurrent appeals – where appellant lodged documents for filing on two separate occasions – where a Registrar on each occasion refused under r 2.26 of the Federal Court Rules 2011 (Cth) to accept the documents for filing – where separate judicial review applications in respect of each Registrar’s decision – where each primary judge concluded that the relevant Registrar did not err in characterising the documents on their face as an abuse of process, vexatious or frivolous – whether appealable error – Held: appeals dismissed.
Legislation:

Constitution ss 51(xxv), 51(xxvi), 109

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11, 13

Federal Court of Australia Act 1976 (Cth) ss 24(1), 25(1), 28(1), 35A, 37AO, 37AM(1)

Judiciary Act 1903 (Cth) s 39B(1)

Federal Court Rules 1979 (Cth) O 46 r 7A

Federal Court Rules 2011 (Cth) rr 1.32, 2.26, 2.27, 26.01, 31.01

High Court Rules 2004 (Cth) r 6.07
Cases cited:

Bechara v Bates [2021] FCAFC 34; 286 FCR 166

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424

Ferdinands v Allaway, National Duty Registrar (No 1) [2022] FCA 1599

Ferdinands v Allaway, National Duty Registrar (No 2) [2023] FCA 12

Ferdinands v Attorney-General of South Australia (Sitting in Executive Council) [2007] SASC 53

Ferdinands v Chief of Army [2013] FCAFC 103

Ferdinands v Commissioner for Public Employment [2003] SAIRC 19

Ferdinands v Commissioner for Public Employment [2004] SASC 30

Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130

Ferdinands v Commissioner of Police (No 2) No. Dcaat-01-60 [2002] SADC 9

Ferdinands v Commissioner of Police (No. 3) No. Dcaat-01-60 [2003] SADC 28

Ferdinands v Commissioner of Police No. Dcaat-00-84 [2000] SADC 114

Ferdinands v Department of Premier and Cabinet [2007] SADC 136

Ferdinands v Police No. SCCIV-02-136 [2002] SASC 46

Ferdinands v Police No. SCCRM-02-136 [2002] SASC 279

Ferdinands v Registrar Burns [2023] FCA 1646

Ferdinands v Registrar Cridland [2021] FCA 592

Ferdinands v Registrar Cridland [2022] FCAFC 80

Ferdinands v Registrar Parkyn [2020] FCA 1676

Ferdinands v State of South Australia [2018] FCA 589

Ferdinands, In the matter of an application for leave to issue or file [2023] HCATrans 101

In the matter of an application by Trevor Kingsley Ferdinands for leave to appeal [2023] HCASL 191

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

Sobey v Nicol and Daviess, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389

Storry v Parkyn [2024] FCAFC 67
Division: General Division
Registry: South Australia
National Practice Area:
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Details
Case
[2024] FCAFC 105
Decision Date

CaseChat Overview and Summary

In Ferdinands v Registrar Burns, the appellant, Trevor Kingsley Ferdinands, brought concurrent appeals against the decisions of two Registrars who refused to accept his documents for filing in the Federal Court. The first refusal occurred on 6 July 2022 by Registrar Allaway, and the second on 17 July 2023 by Registrar Burns. Each refusal was pursuant to rule 2.26 of the Federal Court Rules 2011 (Cth). Ferdinands challenged these decisions through separate judicial review applications, both of which were dismissed by the primary judges. He subsequently appealed these dismissals to the Full Court.

The legal issues centred on whether the Registrars erred in characterising Ferdinands' documents as an abuse of process, vexatious, or frivolous under rule 2.26 of the Rules, and if such errors were reviewable. The court's jurisdiction to review these decisions was governed by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The Full Court's appellate jurisdiction was to correct any errors made by the primary judges.

The Full Court found that the Registrars did not err in their assessments of the documents as abuse of process, vexatious, or frivolous. The Court considered Ferdinands' history as a repeat and frequent litigant, which influenced the assessment of his filings. The Full Court emphasised that the Registrars' decisions were based on the face of the documents and did not require further inquiry into the adequacy of reasons provided. Ferdinands' submissions did not challenge the sufficiency of the Registrars' reasons, and his arguments were not sufficient to demonstrate that the primary judges made any reviewable errors.

Accordingly, the Full Court dismissed both appeals, finding no reviewable errors in the primary judges' decisions. The Court will determine whether a vexatious proceedings order should be made against Ferdinands following the conclusion of these appeals.

Orders

Orders of the court

In SAD 1 of 2024:

1. Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

2. On or by 4 weeks from date of these orders, the appellant:

(a) file any material upon which he intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Trevor Kingsley Ferdinands be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b) notify the Registry in writing as to whether he wishes to have an oral hearing in relation to whether the proposed order ought be made by the Full Court and, in the absence of such notification, the issue as to whether the proposed order ought be made be dealt with on the papers by the Full Court.

3. On or by 6 weeks from the date of these orders, in the event that an amicus curae is appointed to assist the Court in connection with whether the proposed order ought be made, the amicus provide any material including written submissions to District Registrar Colbran who will provide copies to the appellant and to the Full Court.

4. Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Full Court on a date to be fixed not earlier than 8 weeks from date of these orders.

In SAD16 of 2023:

5. Following the determination of the process timetabled in orders 2 to 4, the appeal be dismissed.

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

Background

Background to the litigation

For the reasons that follow, we will make orders that the appeals will be dismissed following our determination of whether a vexatious proceedings order ought be made in relation to Mr Ferdinands.BACKGROUND On 6 July 2022 and 17 July 2023, Mr Ferdinands lodged a collection of documents for filing in the South Australia District Registry. On each occasion, the lodgment was referred to the National Duty Registrar who refused to accept the documents for filing pursuant to r 2.26 of the Rules. The documents lodged on 6 July 2022 comprised the following:(1)Form 66: Originating application for judicial review dated 4 July 2021 [sic] (45 pages);(2)Affidavit of Trevor Kingsley Ferdinands sworn 4 July 2022 (10 pages); and(3)Outline of Submissions dated 4 July 2022 (31 pages).These documents were referred to Registrar Allaway in his capacity as National Duty Registrar. Registrar Allaway refused to accept the documents for filing on 6 July 2022 and provided a short statement of reasons in a letter on that same day (the Allaway Refusal). The documents lodged on 17 July 2023 comprised the following: (1)Form 66: Originating application for judicial review, dated 17 July 2023 (17 pages);(2)Affidavit of Trevor Kingsley Ferdinands, sworn 17 July 2023 (108 pages);(3)Outline of Submissions, dated 17 July 2023 (43 pages); and(4)List of Authorities, dated 17 July 2023 (3 pages).These documents were referred to Registrar Burns in her capacity as National Duty Registrar. Registrar Burns refused to accept the documents for filing on 21 July 2023 and provided reasons in a letter on that same day (the Burns Refusal). Mr Ferdinands commenced separate applications for judicial review in respect of each refusal decision. The applications were each dismissed: Ferdinands v Allaway, National Duty Registrar (No 2) [2023] FCA 12 (Allaway Review); Ferdinands v Registrar Burns [2023] FCA 1646 (Burns Review). The applications were each determined by a primary judge. The applications were not determined by the same primary judge. For the purpose of these appeals it is not necessary to distinguish between the two primary judges. We will refer to each of the primary judges as the Primary Judge. On 7 February 2023, Mr Ferdinands lodged an appeal in respect of the Allaway Review (the SAD16/2023 Appeal). On 3 January 2024, Mr Ferdinands lodged an appeal in respect of the Burns Review (the SAD1/2024 Appeal). In the SAD1/2024 Appeal Mr Ferdinands filed a notice of a Constitutional matter under s 78B of the Judiciary Act 1903 (Cth). None of the Attorneys-General of the Commonwealth or of the States sought to be heard in response to the s 78B notice. In each of the present appeals, Mr Ferdinands seeks, amongst many other things, to set aside each of the administrative and judicial decisions referred to above. The present appeals raise common issues and are now determined concurrently. For each of the appeals, the respondent Registrar will be referred to simply as the Registrar. In each appeal the Registrar has relevantly entered a submitting appearance.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 2.27 of the Rules provides that a document will not be accepted for filing if the Court has given a direction that the document not be accepted (r 2.27(e)) or the Court has given a direction that the document not be accepted for filing without the Court’s leave, and leave has not been obtained (r 2.27(f)).The Court’s jurisdiction to review a refusal decision The Court’s jurisdiction is relevantly limited by statute. The Court’s jurisdiction to review the Refusal Decisions is conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). ADJR Act A Registrar’s refusal decision under r 2.26 is a decision of an administrative character and is amenable to review under s 5 of the ADJR Act: Nyoni at [41]. A Registrar’s decision under r 2.26 of the Rules is not an exercise of judicial power pursuant to delegation. A Registrar’s decision under r 2.26 is not reviewable under s 35A(5) of the FCA Act: Nyoni at [37]. Section 5(1) provides that: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 … for an order of review in respect of the decision on any one or more of the following grounds:(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c) that the person who purported to make the decision did not have jurisdiction to make the decision;(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;(g) that the decision was induced or affected by fraud;(h) that there was no evidence or other material to justify the making of the decision;(j) that the decision was otherwise contrary to law. It appears that Mr Ferdinands may potentially rely on the grounds specified in s 5(1)(c), (d), (e), (f) and/or (i). Section 11(1) provides that an application to the Court for review is to:(1)be made in the manner as is prescribed by the Rules: s 11(1)(a)(i); (2)set out the grounds of the application: s 11(1)(b); and (3)be lodged with the relevant Registry within the prescribed period: s 11(1)(c). In making his review application, Mr Ferdinands used Form 66 which is prescribed by r 31.01 of the Rules as the form to apply for an order under s 11(1) of the ADJR Act. Judicial review applications under the ADJR Act are heard in the Court’s original jurisdiction as an appeal by way of rehearing. The review is ordinarily based on the evidence before the decision-maker at the time of the decision but may extend to additional evidence relevant to the particular grounds of review.

Ratio Decidendi

Legal Principle Established

The FCA Act vests appellate jurisdiction in the Full Court to hear and determine appeals from judgments of the Court constituted by a single judge exercising the original jurisdiction of the Court: ss 24(1) and 25(1). The proper role of a court exercising appellate jurisdiction under s 25 is ordinarily to correct error: Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389 at [72]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [22] (and authorities cited therein). A Full Court may affirm, reverse or vary the judgment appealed from: s 28(1).CONSIDERATION An overarching and relevant feature of the present appeals is that Mr Ferdinands is a repeat and frequent litigant in this Court and in other courts and tribunals. His appetite for commencing and pursuing litigation is properly described as insatiable. This is an issue to which we will return separately below. For present purposes, it is relevant to our consideration of the application of the rubric of abuse of the process of the Court, frivolous or vexatious to the assessment of the documents that Mr Ferdinands attempted to file in each of the proceedings having regard to the face of the documents. As mentioned at the outset, Mr Ferdinands continues to seek to agitate the grievances he has long held arising out of events dating back to 1999 and 2001. Relevantly, the Primary Judge observed in the judgment given on the Allaway Review, that it was the seventh judgment since November 2020 dealing with applications by Mr Ferdinands in respect of various refusal decisions of Registrars exercising the administrative power under r 2.26. Mr Ferdinands has not sought the provision of further or adequate reasons in respect of either of the refusal decisions pursuant to s 13 of the ADJR Act. In his oral submissions Mr Ferdinands confirmed that he did not seek to challenge the adequacy of the reasons provided by either of the Registrars. He submitted that to do so would be to entertain the power he sought to challenge in these appeals. We now turn to address each of the appeals in sequence. Mr Ferdinands focussed in his submissions on the SAD1/2024 Appeal as the principal appeal. He submits that the issues he raises in that appeal apply to and will similarly dictate the outcome of the SAD16/2023 Appeal. It is thus convenient to first address the SAD1/2024 Appeal.SAD1/2024 AppealRegistrar’s decision – the Burns Refusal On 21 July 2023, the Registrar refused to accept documents proffered by Mr Ferdinands on 17 July 2023 for filing pursuant to r 2.26 of the Rules. The documents which Mr Ferdinands sought to file are identified at [10] above. The originating application is styled as an “originating application for judicial review” under r 31.01(1) of the Rules. The application is in Mr Ferdinands’ name as applicant and names “Peter Bryden Malinauskas, Premier of South Australia” as respondent. The chapeau to the originating application is as follows:The Applicant applies to the Court to review the decision of the Peter Bryant Malinauskas that on 10 July 2023 in the State of South Australia he did fail by logic and reason, and by any reasonable conduct to settle a case to which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument.