Ferdinands v Registrar Stone

Case [2022] FCA 589

FEDERAL COURT OF AUSTRALIA

Ferdinands v Registrar Stone [2022] FCA 589

File number(s): SAD 10 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 24 May 2022
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 – application for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under r 31.01(1) of the Federal Court Rules 2011 (Cth) – whether the original application and accompanying documents are frivolous and vexatious – application dismissed.
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1), 11(1)

Federal Court of Australia Act 1976 (Cth) s 37AM(1)

Federal Court Rules 2011 (Cth) rr 2.26, 31.01(1)
Cases cited:

Ferdinands v Registrar Cridland [2021] FCA 592

Ferdinands v Registrar Cridland [2022] FCAFC 80

Ferdinands v Registrar Parkyn [2020] FCA 1676

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: 38
Date of last submission/s: 31 March 2022
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 10 of 2022
BETWEEN:

TREVOR KINGSLEY FERDINANDS

Applicant
AND:

SUSIE STONE, JUDICIAL REGISTRAR, FEDERAL COURT OF AUSTRALIA

Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

24 MAY 2022

THE COURT ORDERS THAT:

1.The application for judicial review filed on 24 January 2022 is dismissed.

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


REASONS FOR JUDGMENT

O’SULLIVAN J:

INTRODUCTION

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

  2. The applicant seeks judicial review of the Registrar’s decision pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR) made 19 January 2022 in which the Registrar refused to accept for filing a proposed originating application and supporting documents which the applicant had lodged for filing that same day.

  3. The Registrar lodged a Form 29 submitting notice on 10 March 2022.

  4. Both parties requested that the Court deal with this matter on the papers.  Given the Registrar filed a submitting notice, the only evidence filed is by the applicant.

    Background

  5. The documents which the applicant had sought to file on 19 January 2022 comprised:

    (a)An originating application naming himself as the applicant and Scott Morrison as Prime Minister of Australia as respondent;

    (b)An affidavit of the applicant dated 19 January 2022;

    (c)Notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth); and

    (d)Notice to produce a document in a pleading or affidavit.

  6. On 24 January 2022, the applicant filed the originating application the subject of this judgment, supported by:

    (a)An affidavit of the applicant sworn and filed on 24 January 2022;

    (b)An unsworn…

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AGLC
Ferdinands v Registrar Stone [2022] FCA 589
Case
[2022] FCA 589
Decision Date

CaseChat Overview and Summary

The case of Ferdinands v Registrar Stone involved the applicant, Ferdinands, seeking judicial review of the Registrar's decision under rule 2.26 of the Federal Court Rules 2011 to reject documents he sought to file, including an originating application for judicial review. The applicant contested the Registrar's decision, which was made on the basis that the documents were frivolous and vexatious and would constitute an abuse of court process. The court was tasked with determining whether the Registrar's decision to reject the documents was lawful and if the application itself was frivolous or vexatious.

The key legal issue before the court was whether the Registrar correctly exercised her discretion under rule 2.26 of the Federal Court Rules 2011 in refusing to accept the applicant's documents for filing. The court examined the authority of the Registrar to refuse documents under this rule and the criteria for such a decision, particularly focusing on whether the documents were frivolous or vexatious on their face. Additionally, the court had to consider if the applicant's application was itself frivolous or vexatious.

The court concluded that the Registrar was entitled to refuse the documents under rule 2.26 of the Federal Court Rules 2011, as the documents were indeed frivolous and vexatious on their face. The Registrar's decision did not involve a substantive judgment on the merits of the claims but was an exercise of procedural oversight to prevent abuse of court processes. Given the repetitive nature of the applicant's attempts to file similar documents and the lack of substantive merit in the claims, the court dismissed the application for judicial review.

Consequently, the court dismissed the application for judicial review and refused to set aside the Registrar's decision. The applicant's efforts to challenge the Registrar's decision were unsuccessful, and the court found no grounds for the application to proceed.

Orders

Orders of the court

1. The application for judicial review filed on 24 January 2022 is dismissed.

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

Background

Background to the litigation

Both parties requested that the Court deal with this matter on the papers. Given the Registrar filed a submitting notice, the only evidence filed is by the applicant.Background The documents which the applicant had sought to file on 19 January 2022 comprised:(a)An originating application naming himself as the applicant and Scott Morrison as Prime Minister of Australia as respondent;(b)An affidavit of the applicant dated 19 January 2022;(c)Notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth); and(d)Notice to produce a document in a pleading or affidavit. On 24 January 2022, the applicant filed the originating application the subject of this judgment, supported by:(a)An affidavit of the applicant sworn and filed on 24 January 2022;(b)An unsworn document described as an affidavit of the applicant, filed by the applicant on 4 February 2022;(c)An unsworn document described as an affidavit of the applicant, filed by the applicant on 10 February 2022;(d)An unsworn document described as an affidavit of the applicant, filed by the applicant on 12 February 2022; and(e)An affidavit sworn and filed by the applicant on 22 February 2022. I have considered these documents.The originating application seeking judicial review The originating application does not identify the Act under which the application is brought. The originating application is described on its face as an ‘Originating Application for Judicial Review - Form 66 - Rule 31.01(1)’. FCR 31.01(1) is the rule relating to applications for orders under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): FCR Dictionary in Schedule 1 to the FCR. Section 11(1) of the ADJR Act provides relevantly:11 Manner of making applications(1)An application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review:(a) shall be made in such manner as is prescribed by:(i)in the case of an application to the Federal Court—Federal Court Rules; or(ii)in the case of an application to the Federal Circuit and Family Court of Australia (Division 2)—Federal Circuit and Family Court of Australia (Division 2) Rules; and(b)shall set out the grounds of the application; and(c)shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows. The originating application identifies the decision of the Registrar followed by five paragraphs setting out why the applicant is aggrieved by the Registrar’s decision. In order for a person to have standing to seek a review of a decision pursuant to s 11(1) of the ADJR Act, that person must be aggrieved by a decision to which the ADJR Act applied: s 5(1) ADJR Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Ferdinands v Registrar Cridland [2021] FCA 592 at [9], White J referred to what he said in Ferdinands v Registrar Parkyn [2020] FCA 1676 where he set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to FCR 2.26. In Cridland, his Honour said:10The 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.11This 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)The decision under review and the documents the Registrar refused to accept for filing The decision by the Registrar dated 19 January 2022 is exhibit TF-02 to the applicant’s affidavit sworn and filed on 24 January 2022. After identifying the documents that were sought to be filed, the Registrar said:I have carefully considered the content of your documents and advise that I am unable to accept the documents for filing pursuant to rule 2.26 of the Federal Court Rules 2011 (Rules). This rule provides that 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 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.I am satisfied having considered all the documents you have sought to file that they are on their face frivolous and vexatious. It would constitute an abuse of the process of the Court if they were accepted for filing.I recommend that you seek legal advice prior to filing any further documents with the Court.The documents the Registrar refused to accept for filing

Ratio Decidendi

Legal Principle Established

The applicant seeks, amongst other things, an order that his application be granted and that the Registrar’s decision made 19 January 2020 be set aside.Consideration This is the sixth judgment since November 2020 dealing with applications by the applicant in respect of refusals by a registrar acting under FCR 2.26 to accept documents for filing. In Ferdinands v Registrar Cridland at [3], White J set out the history of prior applications by the applicant in the following terms:This is the fourth judgment in recent times on applications by the applicant in respect of refusals by a Registrar, acting under r 2.26 of the FCR, to accept documents for filing. The first judgment concerned an application for an extension of time in which the applicant could commence proceedings under the ADJR Act for judicial review of a 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 judgment concerned an application for judicial review of a Registrar’s refusal on 19 August 2020 to accept for filing documents lodged by the application concerning his termination as a police officer in SAPOL in 2001: Ferdinands v Registrar Parkyn [2020] FCA 1676. The third judgment concerned a Registrar’s refusal to accept for filing documents lodged by the applicant on 11 October 2020 by which (in paraphrased form) the applicant sought “review” of “the failure” of the Australian Securities and Investments Commission (ASIC) to decide that the State of South Australia (SA) and its Premier had, between 1997 to 2001, contravened ss 180-184 of the Corporations Act 2001 (Cth) and that those contraventions comprised “examinable affairs” of a corporation: Ferdinands v Registrar Parkyn [2021] FCA 24. The application for judicial review does not identify the ground or grounds in s 5(1) of the ADJR Act upon which he relies. The reference to the Registrar having failed to properly or adequately assess various matters suggests ss 5(c) and (f). Those provisions provide:5 Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:…(c)that the person who purported to make the decision did not have jurisdiction to make the decision;...(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;… As the authorities to which I have referred above make clear, when refusing to accept an originating application for filing under FCR 2.26, the Registrar does not make any substantive judgment about the underlying merit of the claims in the proposed proceedings. The Registrar said in her letter to the applicant dated 19 January 2022, that she was refusing to accept the documents because on their face they were frivolous or vexatious. In so doing, the Registrar was not making a substantive judgment about the underlying merit of the claims in the proposed proceedings but was ensuring compliance with procedural requirements.