Ferdinands v Registrar Cridland

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FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Cridland [2021] FCA 592

File number: SAD 166 of 2020
Judgment of: WHITE J
Date of judgment: 4 June 2021
Catchwords: ADMINISTRATIVE LAW — application for judicial review of a Registrar’s decision under r 2.26 of the Federal Court Rules 2011 (Cth) to reject documents for filing — whether the original application and accompanying documents are frivolous and vexatious — application dismissed.
Legislation:

Australian Constitution s 51

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Corporations Act 2001 (Cth) ss 53, 180, 181, 182, 183, 184

Federal Court of Australia Act 1976 (Cth) s 37AM

Federal Court Rules 2011 (Cth) rr 2.26, 36.01

Civil Liability Act 1936 (SA) ss 31, 32, 33, 35, 44, 73

Police Act 1998 (SA) s 42

Cases cited:

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

Ferdinands v Registrar Parkyn [2020] FCA 1675

Ferdinands v Registrar Parkyn [2020] FCA 1676

Ferdinands v Registrar Parkyn [2021] FCA 24

Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

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

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

Swee Yen Tay v Migration Review Tribunal [2009] FCA 515; (2009) 178 FCR 1

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 40
Date of last submission/s: 27 November 2020
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: The Respondent filed a Submitting Notice

ORDERS

SAD 166 of 2020
BETWEEN:

TREVOR KINGSLEY FERDINANDS

Applicant
AND:

MERIDITH CRIDLAND, NATIONAL REGISTRAR FEDERAL COURT OF AUSTRALIA

Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS THAT:

1.The Applicant’s application for judicial review filed on 13 November 2020 is dismissed

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


REASONS FOR JUDGMENT

WHITE J:

  1. The applicant in these judicial review proceedings is Mr Trevor Ferdinands.  The respondent, Ms Cridland, is a National Registrar of the Court (the Registrar). 

  2. The applicant seeks judicial review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), of a decision made by the Registrar under r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR) to refuse to accept for filing a proposed originating application and supporting documents which he had lodged for filing on 11 November 2020. The documents comprised:

    ·an originating application;

    ·a statement of claim;

    ·the applicant’s affidavit made on 2 November 2020;

    ·a notice to produce;

    ·an outline of submissions; and

    ·a document entitled “Legislation Relied Upon” containing extracts of three South Australian Acts.

  3. This is the fourth judgment in recent…

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Details
Case
[2021] FCA 592
Decision Date

CaseChat Overview and Summary

The case of Ferdinands v Registrar Cridland involved the applicant, Ferdinands, seeking judicial review of a decision by the Registrar to reject documents for filing under rule 2.26 of the Federal Court Rules 2011. The Registrar had deemed the documents to be frivolous and vexatious, refusing to accept them for filing. The applicant sought to challenge this decision, arguing that the Registrar had no authority to reject documents on the basis of them being frivolous and vexatious. The central legal issue in this case was whether the Registrar had the authority to refuse to accept documents for filing if they were deemed frivolous and vexatious. This required an interpretation of rule 2.26 of the Federal Court Rules 2011, and an examination of relevant case law. The court considered the Registrar's power under rule 2.26, which allows for the refusal of documents that are frivolous or vexatious, or an abuse of court process. The court emphasised that a Registrar's decision under this rule is administrative rather than judicial, and that the Registrar does not have the power to determine the substantive merits of a claim. The court found that the Registrar was correct in refusing to accept the documents for filing as they appeared to be an attempt to re-litigate criminal proceedings that had already been determined by other courts. The court dismissed the applicant's application for judicial review, affirming the Registrar's decision. The court's reasoning highlighted the importance of maintaining the efficient operation of the court's registries and preventing abuse of court processes. The court's decision was based on the clear indication that the documents were an abuse of process, were frivolous, and were vexatious. The court did not find it necessary to delve into the merits of the applicant's claims, focusing instead on the administrative nature of the Registrar's power under rule 2.26. The court's final order was to dismiss the applicant's application for judicial review.

Orders

Orders of the court

1. The Applicant’s application for judicial review filed on 13 November 2020 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

I have not conducted an oral hearing on the application. That is because the applicant requested in the written submissions lodged on 23 November 2020 that the Court “deal with the case on the papers by affidavit evidence”. The Registrar has filed a submitting notice. Accordingly, the only evidence on the application is that filed by the applicant. The Registrar’s decision In her letter of 12 November 2020 informing the applicant that his documents were not accepted for filing, the Registrar said (after identifying the documents and referring to r 2.26):It appears that you are seeking to re‑litigate criminal proceedings that have been determined in other Courts. Having considered the documents you have sought to file, I am satisfied that they are on their face frivolous and vexatious as described in the Rule above. In accordance with that Rule, I refuse to accept the Documents.I suggest that you seek independent legal advice in relation to this matter. The function of a Registrar under r 2.26 of the FCR Rule 2.26 provides:2.26Refusal to accept document for filing — abuse of process or frivolous or vexatious documentsA 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. In Ferdinands v Registrar Parkyn [2020] FCA 1676, I set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to r 2.26. It is convenient to repeat verbatim what I said then. The 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. This 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)

Ratio Decidendi

Legal Principle Established

For the reasons which will become apparent, it is not necessary to outline the applicant’s submissions in more detail.Consideration Neither the term “frivolous” nor the term “vexatious” are defined in the dictionary contained in Sch 1 to the FCR. However, the term “vexatious proceeding” is defined in s 37AM(1) of the Federal Court of Australia 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section 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. As 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. In 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)