FEDERAL COURT OF AUSTRALIA
Ferdinands v Registrar Parkyn [2021] FCA 24
File number: SAD 154 of 2020 Judgment of: WHITE J Date of judgment: 29 January 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 original application and accompanying documents are frivolous and vexatious – application dismissed. Legislation: Australian Constitution ss 51(xxiv), 51(xxv)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 7(1)(a), 11(1)(c)
Corporations Act 2001 (Cth) ss s 53(a), 53AA, 180, 181, 182, 183, 184
Federal Court Rules 2011 (Cth) rr 2.26, 31.01(1), 36.01(1)
Cases cited: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353
Donoghue and Stevenson [1932] AC 562
Ferdinands v Registrar Parkyn [2020] FCA 1675
Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 32 Date of hearing: Determined on the papers Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent filed a submitting notice ORDERS
SAD 154 of 2020 BETWEEN: TREVOR KINGSLEY FERDINANDS
Applicant
AND: NIC PARKYN, ACTING NATIONAL JUDICIAL REGISTRAR AND DISTRICT REGISTRAR FEDERAL COURT OF AUSTRALIA
Respondent
ORDER MADE BY:
WHITE J
DATE OF ORDER:
29 JANUARY 2021
THE COURT ORDERS THAT:
1.The application for review of the Registrar’s decision of 13 October 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:
This is a judgment on an application for judicial review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The applicant is Mr Trevor Ferdinands. The sole respondent, Mr Parkyn, is a Registrar of this Court. He has lodged a submitting notice.
The applicant seeks judicial review of the decision of the Registrar made pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR) on 13 October 2020 to refuse to accept for filing a proposed originating application and supporting documents which he had lodged for filing on 11 October 2020.
This is the third judgment in recent times concerning an application by the applicant in respect of the refusal of the Registrar, acting under r 2.26, to accept documents for filing. The first decision was an application for an extension of time in which to commence proceedings under the ADJR Act seeking judicial review of the Registrar’s refusal to accept for filing documents lodged on 1 May 2020 and which in general terms concerned the Army Cadet Scheme: Ferdinands v Registrar Parkyn [2020] FCA 1675. The second was an application for judicial review of the Registrar’s decision on 19 August 2020 pursuant to r 2.26 in respect of proposed proceedings arising out of the applicant’s termination as a police officer in…
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- Case
- [2021] FCA 24
- Decision Date
CaseChat Overview and Summary
The court examined whether Ferdinands' application was frivolous or vexatious, a determination resting on the adequacy and relevance of the documents. The court found that Ferdinands' application was based on a fundamental misunderstanding of the Corporations Act, which does not apply to the State of South Australia. Consequently, the proposed application was flawed as it did not establish a basis for ASIC's jurisdiction over the Premier in his official capacity. Moreover, Ferdinands' invocation of sections 51(xxiv) and (xxv) of the Australian Constitution lacked clarity on how these provisions were violated, making the claims unlikely to succeed. The court concluded that the Registrar's decision was justified and did not involve any error of law.
The court dismissed Ferdinands' application for judicial review, affirming the Registrar's decision. The court noted that the documents were indeed frivolous and vexatious, as they did not meet the necessary legal or procedural standards for filing. The dismissal was grounded in the procedural and substantive inadequacies of the documents, which failed to provide a viable basis for the claims made. The court's decision underscored the importance of ensuring that filings meet the requisite legal standards and are not an abuse of the court process.
Orders
Orders of the court
1. The application for review of the Registrar’s decision of 13 October 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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In his letter of 13 October 2020, the Registrar informed the applicant that he was “unable to accept [the applicant’s] documents for filing pursuant to r 2.26 of the Federal Court Rules 2011”. The Registrar then set out the content of r 2.26 and continued:I am satisfied having considered the documents you have sought to file that they are on their face frivolous or vexatious. It would constitute an abuse of the process of the Court if they were accepted for filing. Consideration The applicant’s application for judicial review does not identify the particular ground or grounds stated in s 5(1) of the ADJR Act on which he relies. I have assumed, however, that the applicant relies on s 5(1)(f), namely, that the Registrar’s decision involved an error of law. In my opinion, for the reasons which follow, the Registrar’s decision has not been shown to be affected by any such error (remembering that his decision is essentially about the adequacy of the content and form of the documents lodged for filing). First, it is plain on its face that the Proposed Application was prepared on the assumption that the State of South Australia is a corporation to which the Corporations Act applies. As I sought to explain in Ferdinands v Registrar Parkyn [2020] FCA 1676 at [29]‑[30], that involves a misconception. Sections 181‑184 of the Corporations Act on which the applicant relies are provisions specifying duties of directors, secretaries, officers and employees of corporations governed by the Corporations Act. The State of South Australia, as a constituent State of the Commonwealth of Australia, is not such a corporation. This has the consequence that the Premier of the State of South Australia is not, in that capacity, a director, secretary, officer or employee of a corporation to which the Corporations Act applies. Sections 180‑184 have no application to the discharge by the Premier of South Australia of his functions and responsibilities as Premier. This could be said to be a substantive point and not one of procedural compliance. However, it provides the background in which the procedural defects are made obvious. That is that the applicant does not even purport to show in the documents lodged for filing a basis upon which ASIC may have jurisdiction, responsibility or power with respect to Mr Marshall in his capacity as Premier of the State of South Australia or of the State of South Australia itself. It should be taken that an applicant seeking review under the ADJR Act of the failure of the decision‑maker to make a decision should identify in the originating document the duty to which it is said the decision‑maker is subject – see s 7(1)(a) of the ADJR Act. The applicant does not, and for the reason stated above cannot, comply with that procedural obligation. Secondly, there is the applicant’s invocation of ss 51(xxiv) and (xxv) of the Australian Constitution. Section 51 vests legislative powers in the Australian Parliament. By s 51(xxiv), the Australian Parliament may make laws for “the service and execution throughout the Commonwealth of the civil and criminal process in the judgments of the courts of the States”. By s 51(xxv), the Australian Parliament may make laws for “the recognition throughout the Commonwealth of the laws, the public Acts and records, and judicial proceedings of the States”. The applicant’s proposed claim that the respondents have violated those provisions does not contain any articulation of how it is that the provisions have been contravened. It is improbable that the applicant will be able to do so because none of the respondents is subject to those Constitutional provisions, and none of them could exercise the powers contained in those provisions. This makes it likely that any attempt by the applicant to pursue claims of this kind will be frivolous or vexatious, but the point for present purposes is that the applicant’s proposed proceedings did not, as a minimum, articulate how either of these provisions had been “violated” by the respondents.