Grass v Tesoriero

[2016] FCA 794

FEDERAL COURT OF AUSTRALIA

Grass v Tesoriero [2016] FCA 794

File number:

NSD 886 of 2016

Judge:

PERRAM J

Date of judgment:

12 July 2016

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Australian Citizenship Act 2007 (Cth)

Federal Court Rules 2011 (Cth), r 2.26, 16.02(1)

Cases cited:

Northern Territory v Mengel (1995) 185 CLR 307

Date of hearing:

Heard on the papers

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

No Catchwords

Number of paragraphs:

25

Counsel for the Applicants:

The applicant appeared in person

Counsel for the Respondent:

The respondent filed a submitting appearance

ORDERS

NSD 886 of 2016

BETWEEN:

JOHN GRASS

First Applicant

CORAZON GRASS

Second Applicant

AND:

A TESORIERO DEPUTY DISTRICT REGISTRAR FEDERAL COURT

Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	12 JULY 2016

THE COURT ORDERS THAT:

1.Order absolute in the first instance for a writ of certiorari directed to the respondent quashing the decision of 2 June 2016 to refuse the applicants’ documents for filing.

2.If the Registrar ultimately accepts for filing the documents lodged with the Registry on 1 June 2016 they are to be taken to be and always to have been filed on that date.

3.No order as to costs.

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

REASONS FOR JUDGMENT

PERRAM J:

1. This is an application for an order that a decision made by a Registrar of this Court on 2 June 2016 be set aside.  That decision was a decision to refuse to accept for filing an originating application and statement of claim which the applicants (Mr and Mrs Grass) had sought to file with this Court in order to commence a proceeding.

2. The Registrar is authorised under rule 2.26 of the Federal Court Rules 2011 (Cth) to refuse to accept a document for filing in certain circumstances. It 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. The Registrar concluded that he should exercise this power.  He gave reasons for this decision as follows:

   The issues canvassed in your application have been heard and determined.  I refer to original proceedings in the Federal Circuit Court in file SYG2514/2012 and also an appeal from that decision in this Court in file NSD473/2014 where your appeal was heard and dismissed on 27 March 2015.

   For these reason, in my view the application cannot possibly succeed and therefore the document is an abuse of the process of the Court and frivolous and vexatious.

4. It is necessary to say something of these earlier proceedings.  Mrs Grass…