Gibbons v The Commonwealth of Australia

[2010] FCA 1447

FEDERAL COURT OF AUSTRALIA

Gibbons v Commonwealth of Australia [2010] FCA 1447

Citation:		Gibbons v The Commonwealth of Australia [2010] FCA 1447
Parties:		PAUL EDWARD GEORGE GIBBONS v THE COMMONWEALTH OF AUSTRALIA – AUSTRALIAN FEDERAL POLICE, ALAN SEAN SCOTT and MICHAEL JOSEPH KEELTY
File number:		QUD 321 of 2010
Judge:		REEVES J
Date of judgment:		21 December 2010
Catchwords:		PRACTICE AND PROCEDURE – application to review decision of Deputy District Registrar to refuse to accept document for filing – Deputy District Registrar acting under O 46 r 7A of the Federal Court Rules – refusal not reviewable under s 35A of the Federal Court of Australia Act 1976 (Cth) – even if Deputy District Registrar’s decision open to review, decision was correct as the application purported to be a notice of appeal against decision by single judge of the Federal Court exercising appellate jurisdiction
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 25(2)(b), 35, 35A(5) Federal Court Rules O 46 r 7A
Cases cited:		Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 Eastman v The Queen (2008) 166 FCR 579; [2008] FCAFC 62
Date of hearing:	10 September 2010, 4 and 11 November 2010
Place:	Brisbane
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	8
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Ms K Garner
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 321 of 2010

BETWEEN:

PAUL EDWARD GEORGE GIBBONS
Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA – AUSTRALIAN FEDERAL POLICE
First Respondent

ALAN SEAN SCOTT
Second Respondent

MICHAEL JOSEPH KEELTY
Third Respondent

JUDGE:	REEVES J
DATE OF ORDER:	21 DECEMBER 2010
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application filed on 21 June 2010 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 321 of 2010

BETWEEN:

PAUL EDWARD GEORGE GIBBONS
Applicant

AND:

THE COMMONWEALTH OF AUSTRALIA – AUSTRALIAN FEDERAL POLICE
First Respondent

ALAN SEAN SCOTT
Second Respondent

MICHAEL JOSEPH KEELTY
Third Respondent

JUDGE:	REEVES J
DATE:	21 DECEMBER 2010
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Gibbons has filed an application under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) seeking to review the decision of Deputy District Registrar Baldwin, as she then was, made on 31 May 2010 to refuse to accept a document for filing.

2. There are at least two reasons why Mr Gibbons’ application is fundamentally defective and must be dismissed.

3. First, in refusing to accept the document for filing, Deputy District Registrar Baldwin was not acting under s 35A of the Federal Court of Australia Act 1976 (Cth), but under O 46 r 7A of the Federal Court Rules.  The former provision defines various powers that may be exercised by a Registrar.  None of those powers was exercised by Deputy District Registrar Baldwin in this instance.  Instead, she exercised the power in O 46 r 7A to “refuse to accept a document submitted for filing”.

4. That being so, a Full Court of this Court has held in Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 that a Registrar’s refusal to accept a document for filing under O 46 r 7A was not reviewable under s 35A: see at [48]–[49]. That decision is obviously binding on me. I should add that there is nothing to suggest Deputy District Registrar Baldwin was acting on the direction of a judge when she refused to accept the document for filing.

5. Secondly, even if Deputy District Registrar Baldwin’s decision were open to review under s 35, I consider she was quite correct in refusing to accept the document in question for filing.

6. The document purports to be a notice of appeal against the decision of Logan J made on 5 May 2010.  In that decision, Logan J refused Mr Gibbons’ application for an extension of time to appeal a decision of Burnett FM made on 24 February 2010.

7. At the time he made his decision, Logan J was sitting as a single judge exercising the appellant jurisdiction of this Court under s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth). It follows that his Honour’s decision cannot be appealed to this Court: see Eastman v The Queen (2008) 166 FCR 579; [2008] FCAFC 62 at [45]. If Mr Gibbons wishes to appeal the decision of Logan J, he will have to look to a court which is above the Full Court of the Federal Court in the appellate hierarchy.

8. For these reasons, Mr Gibbons’ application must be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:

Dated:        21 December 2010