Ferdinands v Registrar Parkyn

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FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Parkyn [2020] FCA 1676  

File number: SAD 123 of 2020
Judgment of: WHITE  J
Date of judgment: 20 November 2020
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:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 7

Australian Constitution s 51

Corporations Act 2001 (Cth) ss 13, 180, 181, 182, 184

Federal Court Rules 2011 (Cth) rr 2.26, 31.01

Criminal Law Consolidation Act 1935 (SA)

Magistrates Court Act 1991 (SA)

Police Act 1998 (SA)

Police (Complaints and Disciplinary Proceedings) Act 1985 (SA)

Supreme Court Act 1935 (SA)

Cases cited:

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

Ferdinands v Commissioner for Public Employment [2004] SASC 30

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

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

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 37
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 123 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:

20 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application for review of the Registrar’s decision of 19 August 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. On 14 August 2020, the applicant lodged three documents with the Court Registry for filing.  These were:

    (a)an originating application for judicial review;

    (b)an affidavit made by the applicant himself on 14 August 2020; and

    (c)a document entitled “Notice of a Constitutional matter under section 78B of the Judiciary Act 1903”.

  2. A Registrar of the Court, acting under r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR), refused to accept the documents for filing. Rule 2.26 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.

  3. In his letter of 19 August 2020 to the applicant informing him that the documents would not be accepted for filing, the Registrar set out the terms of r 2.26 in full and continued:

    The originating process…

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Details
Case
[2020] FCA 1676
Decision Date

CaseChat Overview and Summary

The case of Ferdinands v Registrar Parkyn involves Trevor Kingsley Ferdinands, who sought judicial review of a decision by the Registrar of the Federal Court to reject documents he attempted to file for litigation. The rejected documents included an originating application for judicial review against Steven Marshall, the Premier of South Australia, and various other documents related to Ferdinands' dismissal from the South Australia Police in 2001. The core dispute was whether the application and accompanying documents were frivolous and vexatious, thereby warranting rejection under rule 2.26 of the Federal Court Rules 2011 (Cth). The court was required to determine if the application met the jurisdictional criteria set out in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

The court held that the documents did not disclose any decision by the Premier that could be subject to judicial review under the ADJR Act. It was noted that the decisions in question were made under South Australian legislation, which is not covered by the ADJR Act. Furthermore, the court found that the Premier's potential failure to respond to Ferdinands' letter did not constitute a decision under the ADJR Act. The court concluded that the application and accompanying documents did not demonstrate that the Federal Court had jurisdiction over the matters Ferdinands sought to litigate.

The court dismissed the application for judicial review of the Registrar's decision, emphasising that the Registrar's role under rule 2.26 is to ensure that documents filed do not abuse the Court's process or are frivolous or vexatious, without making substantive assessments of the merits of the claims. The court reiterated that the Registrar lacks judicial power to determine whether a claim should be dismissed on substantive grounds. The decision underscores the importance of ensuring that any application for judicial review satisfies jurisdictional requirements before being brought before a judge of the Court.

Orders

Orders of the court

1. The application for review of the Registrar’s decision of 19 August 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

On Saturday, 1 August 2020, the applicant wrote to the Honourable Steven Marshall MP, the current Premier of South Australia, at Parliament House, Adelaide. The subject line of the letter was as follows:Re: Trevor Kingsley Ferdinands – FERDINANDS V POLICE [2001] SASC – Video Tape evidence The letter commenced with a statement of the applicant’s purpose in writing to the Premier:My purpose in writing is to advise you that I have been seeking for some time the full and complete file including video tape evidence from [the] Attorney General’s Department including Director of Public Prosecutions and Commissioner of Police in [the] State of South Australia.That file has not been made available to me. The matters are now bound for the Federal Court of Australia as they involve matters of due diligence pursuant to the Corporations Act 2001 (Cth) to which you are bound by (sic). The letter then went on to request intervention by the Premier so as to facilitate the provision to the applicant of various documents including the video tape of evidence used in his Magistrates Court trial, the personal notes of the Magistrate who heard the trial, the personal notes of the Supreme Court Judge who dismissed the appeal against conviction, as well as other documents. It extended over three pages and it is not easy to summarise its contents succinctly. The applicant concluded the letter by saying:As Premier you are required to show due diligence and duty of care yet you have refused to. I shall seek to bring this action as soon as possible to determine whether you have breached your due diligence provisions and duty for (sic) care provisions under the Corporations Act 2001 (Cth). I hope to hear from you within 14 days with all evidence thereafter I shall file judicial review in the Federal Court of Australia. So far as the materials lodged by the applicant for filing with the Court indicate, the Premier had not made any response to the applicant’s request by 14 August 2020 when the applicant lodged the documents for filing in the Court. The applicant’s proposed proceedings named “Steven Marshall, Premier of South Australia” as the sole respondent and were entitled “Originating application for judicial review”. They purported to be an application under the ADJR Act and commenced by stating:The Applicant applies to the Court to review the decision of the Respondent that declined to intervene and omitted to make a decision and settle a case out of court. The following “Details of Claim” extended over 279 paragraphs, followed by 12 questions posed under a heading “Questions of Law”, followed by 14 paragraphs under a heading “Answers to Questions of Law”, followed by seven paragraphs under a heading “Grounds of Application”, followed by 14 paragraphs under the heading “Orders sought”. I think it fair to say that all of the orders sought are directed to the applicant’s claim for redress in respect of his dismissal from South Australia Police in 2001 and its consequences.The function of a Registrar under r 2.26

Decision

Reasons for decision

The expression “decision to which this Act applies” is defined in s 3 of the ADJR Act (relevantly) as follows:decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;other than:… The term “enactment” is defined in s 3(1) to include an Act of the Australian Parliament (other than certain Acts which are presently immaterial). Acts enacted by State Parliaments (other than those listed in Sch 3, none of which is material presently) are not within the definition. There appears to be scope for doubt that the Premier of South Australia has made any “decision” at all which could be the subject of review under the ADJR Act, if that review be otherwise available, but it is neither necessary nor appropriate to consider that question. The more fundamental problem for the applicant is that, assuming the Premier has made a decision, it cannot have been a “decision to which [the ADJR Act] applies”. Each of the Acts under which the applicant was prosecuted and convicted in 2001, and pursuant to which he appealed, was an Act of the South Australian Parliament. I refer in this respect to the Criminal Law Consolidation Act 1935 (SA), the Magistrates Court Act 1991 (SA) and the Supreme Court Act 1935 (SA). Further, each of the Acts regulating the applicant’s position as a police officer is an Act of the South Australian Parliament. I refer in this respect to the Police Act 1998 (SA) and the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). None of the Acts in question is even alleged to be an Act of the Australian Parliament. It seems that the applicant may have been alert to this difficulty because he asserted in the documents rejected for filing by the Registrar that the Premier was bound by ss 180, 181, 182 and 184 of the Corporations Act 2001 (Cth) and, in addition, by s 13 of the Corporations Act. The Corporations Act is of course an enactment of the Australian Parliament. However, if that was the applicant’s intention, it does not avail him as it is plain that those provisions have no application to Mr Marshall in his capacity as Premier of the State of South Australia. Sections 180‑184 of the Corporations Act are provisions specifying duties of directors, secretaries, officers and employees of corporations governed by the Corporations Act. The State of South Australia as a polity is not such a corporation. It is a constituent State of the Commonwealth of Australia. 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. Nor can those provisions have any application to Mr Marshall’s response (whatever it may have been) or, more likely, his non response to the applicant’s letter of 1 August 2020.

Ratio Decidendi

Legal Principle Established

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)Consideration In my view, the documents which the applicant sought to have lodged in the Court, and which were rejected by the Registrar, suffered from a fundamental flaw. That is that they did not disclose on their face that this Court has jurisdiction over the matters which the applicant wishes to litigate. The following reasons explain why that is so. Section 5 of the ADJR Act permits a person aggrieved by “a decision to which this Act applies” to bring an application for review of that decision. Section 7 permits applications to be made in respect of some failures by decision‑makers to make a required “decision to which this Act applies”. The expression “decision to which this Act applies” is defined in s 3 of the ADJR Act (relevantly) as follows:decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;other than:… The term “enactment” is defined in s 3(1) to include an Act of the Australian Parliament (other than certain Acts which are presently immaterial). Acts enacted by State Parliaments (other than those listed in Sch 3, none of which is material presently) are not within the definition. There appears to be scope for doubt that the Premier of South Australia has made any “decision” at all which could be the subject of review under the ADJR Act, if that review be otherwise available, but it is neither necessary nor appropriate to consider that question. The more fundamental problem for the applicant is that, assuming the Premier has made a decision, it cannot have been a “decision to which [the ADJR Act] applies”. Each of the Acts under which the applicant was prosecuted and convicted in 2001, and pursuant to which he appealed, was an Act of the South Australian Parliament. I refer in this respect to the Criminal Law Consolidation Act 1935 (SA), the Magistrates Court Act 1991 (SA) and the Supreme Court Act 1935 (SA). Further, each of the Acts regulating the applicant’s position as a police officer is an Act of the South Australian Parliament. I refer in this respect to the Police Act 1998 (SA) and the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA). None of the Acts in question is even alleged to be an Act of the Australian Parliament.