FEDERAL COURT OF AUSTRALIA
Ferdinands v Registrar Burns [2023] FCA 1646
File number: SAD 103 of 2023 Judgment of: CHARLESWORTH J Date of judgment: 22 December 2023 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Judiciary Act 1903 (Cth) ss 39B, 78B
Racial Discrimination Act 1975 (Cth)
Federal Court Rules 2011 (Cth) rr 2.26, 2.27
Cases cited: Ferdinands v District Court of South Australia & Ors [2010] SASC 265
Ferdinands v Registrar Cridland [2021] FCA 592
Ferdinands v Registrar Cridland [2022] FCAFC 80
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 22 November 2023 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent filed a Submitting Notice ORDERS
SAD 103 of 2023 BETWEEN: TREVOR KINGSLEY FERDINANDS
Applicant
AND: REGISTRAR BURNS
Respondent
ORDER MADE BY:
CHARLESWORTH J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.The originating application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J
On 17 July 2023 the applicant lodged four documents for filing in the South Australia District Registry: a document titled “Originating application for judicial review”, an affidavit, an outline of submissions and list of authorities (Documents). The Documents are before the Court and are now marked for identification MFI-A.
By lodging those documents, the applicant sought to commence a proceeding naming the Premier of South Australia as the sole respondent. The document titled “Originating application for judicial review” stated:
The Applicant applies to the Court to review the decision of the Peter Bryant Malinauskas [sic] 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 in which the State of South Australia has no defence, no merit and no comprehensible or literate legal argument.
Under the heading “Details of claim” there appear nine paragraphs explaining why the applicant is aggrieved by the decision referred to in that paragraph. Under the heading “Grounds of application” the document alleges a myriad of ways in which the Premier is said to have erred in the making of the impugned decision.
Rule 2.26 of the Federal Court Rules 2011 (Cth) relevantly provides:
2.26Refusal to accept document for filing—abuse of process or frivolous or vexatious documents
A Registrar may refuse to accept a document (including a document that would, if accepted become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:
(a) on the face of the document; or
(b)by reference to any documents already filed or submitted for filing with the document.
The respondent is a Registrar of the Court. By letter dated 21 July 2023, the Registrar informed the applicant…
Keep reading for free
Create a free CaseChat account to read Ferdinands v Registrar Burns and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2023] FCA 1646
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Registrar's decision to refuse to accept the documents for filing was in error and whether there was a genuine issue requiring interpretation under the Constitution or otherwise. The court also had to consider whether the applicant's claims of racial discrimination could be adjudicated upon by the court. The court found that the Registrar's decision was not in error and that there was no genuine issue requiring interpretation under the Constitution or otherwise. The court also found that the preconditions for the court to adjudicate on the applicant's claims of racial discrimination were not fulfilled.
The court dismissed the applicant's originating application and found that the Registrar's decision to refuse to accept the documents for filing was correct. The court noted that the applicant had a history of attempting to bring proceedings in the court to have his criminal conviction set aside and his employment reinstated, and had been unsuccessful in identifying a basis for the court to make orders vindicating his position. The court found that the documents contained sufficient information to support the Registrar's conclusion that the applicant sought to agitate grievances arising out of his dismissal from South Australia Police more than 20 years ago. The court held that the documents were such that there could and should be a direction made by a judge of the Court, even if the decision of the Registrar were affected by reviewable error.
The court ordered that the originating application be dismissed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The originating application is dismissed.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The applicant further submitted that he had been subject to discrimination contrary to the Racial Discrimination Act 1975 (Cth).Consideration The Registrar was correct to conclude that the Documents did not disclose a decision that was capable of review by this Court. This Court’s jurisdiction is limited by statute. The impugned decision of the Premier is not one that can be reviewed under the ADJR Act or the Judiciary Act. The provisions of the Constitution to which the applicant referred concern the power of the Commonwealth Parliament to make laws with respect to certain subject matter. This Court’s jurisdiction is not conferred by those provisions and it cannot reasonably be argued otherwise. The applicant pointed to no enactment of the Commonwealth conferring power on this Court to review the impugned decision of the Premier. For the purposes of s 78B of the Judiciary Act, there is no genuine issue arising under the Constitution or otherwise requiring its interpretation. The applicant’s references to the Racial Discrimination Act do not assist him. Even if the Documents contain allegations of racial discrimination, the preconditions for this Court to adjudicate on such dispute are not fulfilled. That was a sufficient basis for the Registrar to refuse to accept the Documents for filing. The originating application in this action should be dismissed on that basis alone. The second basis for refusing to accept the documents for filing will nonetheless be considered. A conclusion by a Registrar that a document constitutes an abuse of process is a conclusion that must be reached by reference to the document itself (including in combination with other documents lodged at the same time), and not on the basis of extraneous material. In the present case, the Documents contain sufficient information to support the Registrar’s conclusion that the applicant sought to agitate grievances arising out of his dismissal from South Australia Police more than 20 years ago. But it is not necessary to form a concluded view on that issue. Even if the conclusion were not able to be drawn by the Registrar by reference only to the Documents, the same conclusion is able to be drawn on all of the material now before me. In the course of oral submissions, the applicant acknowledged that he had commenced or attempted to commence many proceedings in this Court with a view to having his criminal conviction set aside and his employment reinstated. That acknowledgment is supported by the Court’s published judgments. Over and again, the applicant has been unsuccessful in his attempts to identify a basis for this Court to make orders vindicating his position in his long-running dispute. See, for example: Registrar Cridland; Registrar Parkyn; Ferdinands v State of South Australia [2018] FCA 589 and the prior litigation referred to therein. Even if the Registrar committed an error in relation to the second identified basis for refusing to accept the Documents for filing, that would not furnish a sufficient basis to set the Registrar’s decision aside. This Court’s discretion to grant relief on an application for judicial review may be exercised having regard to this Court’s own power to direct that a document not be accepted for filing: Rules, r 2.27(e) and r 2.27(f). The Documents are such that there could and should be such a direction made by a judge of the Court, even if the decision of the Registrar were affected by reviewable error.