Ferdinands v Registrar Parkyn

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FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Parkyn [2020] FCA 1675  

File number: SAD 96 of 2020
Judgment of: WHITE J
Date of judgment: 20 November 2020
Catchwords: ADMINISTRATIVE LAW – application for an extension of time in which to commence an 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 – merits of the application and prejudice to the applicant – application dismissed.
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5, 6, 7, 11

Australian Constitution s 51

Corporations Act 2001 (Cth) ss 180‑183

Defence Act 1903 (Cth) s 62‑62D

Judiciary Act 1903 (Cth) s 78B

Federal Court Rules 2011 (Cth) rr 2.26, 3.01, 31.01(1)

Education Act 1972 (SA) s 7
Cases cited:

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

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1986) 186 CLR 541

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315

Hartnett v Migration Agents Registration Authority [2004] FCA 50

Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Lovett v Le Gall (1975) 10 SASR 479

McDonald v Federal Court of Australia [2017] FCA 1216

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

Satchithanantham v National Australia Bank [2010] FCAFC 47, (2010) 268 ALR 222

Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 53
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: The Respondent did not appear

ORDERS

SAD 96 of 2020
BETWEEN:

TREVOR KINGSLEY FERDINANDS

Applicant
AND:

REGISTRAR PARKYN, REGISTRAR OF FEDERAL COURT OF AUSTRALIA

Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

20 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application for an extension of time filed on 3 July 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. This is a judgment on an application for an extension of the time in which the applicant may commence proceedings for the review of a decision of a Registrar refusing the acceptance of documents for filing.

  2. Rule 2.26 of the Federal Court Rules 2011 (Cth) (the FCR) provides for circumstances in which a Registrar may refuse to accept a document for filing:

    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…

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Details
Case
[2020] FCA 1675
Decision Date

CaseChat Overview and Summary

The case of Ferdinands v Registrar Parkyn involved an application for judicial review by the applicant, seeking to challenge the Registrar's decision under rule 2.26 of the Federal Court Rules 2011 (Cth) to reject documents for filing. The core dispute centered on whether the original application and accompanying documents were frivolous and vexatious. The applicant aimed to contest the Registrar’s decision to reject his documents, which were intended to initiate a judicial review of the failure of two Ministers to halt the Australian Army Cadet Scheme in South Australian schools.

The court had to determine whether the application was frivolous or vexatious, and if it identified a valid decision for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). It needed to assess whether the applicant had correctly identified the decision being reviewed and the relevant enactment under which the decision was made. Additionally, the court had to examine whether the relief sought by the applicant was within the scope of what the ADJR Act permits.

In its reasoning, the court held that the applicant's application failed to meet the minimum standard required to be considered a valid application for judicial review. The applicant did not clearly identify the decision he sought to have reviewed, nor did he specify the relevant enactment. Furthermore, some of the relief sought, such as compliance with obligations under the Corporations Act and an award of general damages, exceeded the proper scope of an application under the ADJR Act. Consequently, the court dismissed the application for being frivolous and vexatious.

The court's final order was that the application for an extension of time filed on 3 July 2020 was dismissed. This decision was made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for an extension of time filed on 3 July 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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

An application for judicial review, whether made under ss 5, 6 or 7 of the ADJR Act, lies (relevantly) in relation to a “decision to which this Act applies”. That expression is defined in s 3(1) of the ADJR Act: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:(c) a decision by the Governor‑General; or(d) a decision included in any of the classes of decisions set out in Schedule 1.Note:Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.(Emphasis in the original) It is accordingly an ordinary expectation that an application under s 5 will identify the decision which is the subject of the proposed review and will identify the elements giving it the character of a “decision to which this Act applies”. For the reasons which follow, the applicant’s proposed proceedings against the two Ministers did not satisfy this minimum standard. In fact, subject to two qualification, it is not even clear that the applicant seeks relief in respect of a “decision” at all. The application commences by stating its subject matters as:The Applicant applies to the Court to review the failure of the First Respondent and the Second Respondent to decide to halt the Australian Army Cadet Scheme being taught in State schools in South Australia.(Emphasis added) Thus, it is apparent that the applicant has selected in Form 66 the alternative applicable for applications under s 7 of the ADJR Act, that is, failures to make a required decision. If the applicant does make his application under s 5 of the ADJR Act, he does not identify the decision he seeks to have reviewed, or the enactment under which it is said to have been made. This omission is particularly acute in the case of Mr Gardner because the Education Act to which the applicant does refer in some places is an enactment of the Parliament of the State of South Australia. It is accordingly not within the definition of an “enactment” in s 3(1) of the ADJR Act. If the applicant intended making his application under s 7(1) of the ADJR Act, then it was necessary for him to identify the required elements for a review under that provision. This meant that he had to identify the duty to which each Minister was subject and the matters said to constitute the “unreasonable delay”. The applicant did not do either. Moreover, it is plain on the face of the documents that much of the relief which the applicant proposed seeking by his application went beyond the proper scope of an application for judicial review. For example, his claim for an order that the proposed first respondent comply with obligations imposed by ss 180‑182 of the Corporations Act (noting that in any event those provisions can have no application to the first respondent in his capacity as Minister of Defence), at [11], and his claim for an award of general damages against both respondents, at [12].

Ratio Decidendi

Legal Principle Established

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