Hoffman v Sanderson
[2003] FMCA 21
•3 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOFFMAN v SANDERSON & ORS | [2003] FMCA 21 |
| ADMINISTRATIVE LAW – Application to review decision by Registrars and/or Master of Supreme Court of Western Australia – whether alternative remedy available – application of s.10(2)(b)(ii) Administrative Decisions (Judicial Review) Act (ADJR Act)– exercise of judicial power – no administrative decision – ADJR Act does not apply – summary dismissal. |
PRACTICE AND PROCEDURE: – Summary dismissal – costs – relevance of similar previous application discontinued without order for costs.
Administrative Decisions (Judicial Review) Act 1997, s.10(2)(b)(ii)
Federal Magistrates Court Rules, rules 13, 13.10
Rules of the Supreme Court of Western Australia 197, O 4 rules 3, 3(2),
O 60A rule 5(1)
Supreme Court Fee Regulations 2002 (WA) subregulation 7(1)
| Applicant: | JOSHUA HOFFMAN |
| Respondents: | CRAIG WILLIAM SANDERSON, DAVID LEWIS POWELL and SIMON CHRISTOPHER STEDMAN DIXON |
| File No: | WZ9 of 2003 |
| Delivered on: | 3 February 2003 |
| Delivered at: | Perth |
| Hearing date: | 3 February 2003 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant | In person |
| Counsel for the Respondents: | Mr C P Wayte |
| Solicitor for the Respondents: | Peter Apostolos Panegyres |
ORDERS
The application filed by the applicant on 22 January 2003 be dismissed.
The notice of motion filed by the applicant on 29 January 2003 be dismissed.
The notice of motion filed by the applicant on 30 January 2003 be dismissed.
The applicant shall pay the costs of the respondents in accordance with schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ9 of 2003
| JOSHUA HOFFMAN |
Applicant
And
| CRAIG WILLIAM SANDERSON, DAVID LEWIS POWELL and SIMON CHRISTOPHER STEDMAN DIXON |
Respondents
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by JOSHUA HOFFMAN filed on the 22nd day of January 2003 and at the same time the Court has before it two notices of motion by the applicant, one filed 29 January 2003 and a second filed 30 January 2003.
It should be noted that in the application, the applicant seeks against three-named respondents who are respectively Registrars in the case of the first two respondents of the Supreme Court of Western Australia (the Supreme Court) and the third respondent being a Master of that Court. The applicant in his application for an order to review refers respectively to three decisions which are said to be decisions which would enable the applicant to make application to this Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).
The first of the decisions the applicant seeks to review is a decision said to be made on 23 October 2002 by Registrar Dixon who had decided that the applicant not be granted leave in the Supreme Court, it is said, to commence and act in the name of Molecular Inventory Systems Pty Ltd (the Company). It is said that a second decision was made by the second respondent of like nature and a third decision, it is said, was made by the Master.
It is clear that in this application there are similarities between the relief sought and the background to the application as appeared in application number WZ232 of 2002 (the earlier application). That application was the subject of a notice of discontinuance by the applicant filed with the Court on 2 December 2002, but at the outset I indicated to the parties that although a notice of discontinuance had been filed, I was prepared to allow both the applicant and indeed the respondents in the current application who, it should be noted, were not identical to the respondents in the earlier application to refer to the extent required to material lodged in the earlier application.
The matter is before the Court this day on the first hearing date or first return date, and it became apparent to me at the commencement of this application that a number of the issues sought to be agitated in this application were issues of a like kind to those sought to be agitated before me in the earlier application.
It was made clear by the representative of the respondents that at this stage the respondents, having simply filed a notice of address for service, had not yet filed further affidavit material and had not yet filed a formal response. In the circumstances, given that there had been previous proceedings and given that the representative of the respondents foreshadowed the filing of an application to summarily dismiss this application and the associated notices of motion pursuant to rule 13 of the Federal Magistrates Court Rules, I decided with the consent of the parties that it would be more appropriate and in the interests of the administration of justice if I were to exercise the powers which I undoubtedly have to dispense with compliance with the rules and to grant leave to the respondents to make an oral application this day to summarily dismiss the application filed 22 January 2003 and the notices of motion filed 29 and 30 January 2003. I further ordered that so much of the rules of the Court be dispensed with that would otherwise prevent the respondents' application for summary dismissal being heard and determined this day.
Consequently, I deemed it appropriate to hear submissions for and on behalf of the respondents as to why the Court should proceed to dismiss this application. I permitted the respondents to rely upon and adopt written submissions which had been filed in the earlier application on 26 November 2002. Essentially, the submissions on behalf of the respondents this day have been that the application by the applicant is misconceived, and, as I understand it, the submission made is that the decisions sought to be impugned or sought to be the subject of review are effectively decisions which could not be characterised as decisions of an administrative nature; that is, they are not decisions which could be said to attract the exercise of this Court's power under the provisions of the ADJR Act.
The alternative, it is submitted, is that in any event there are alternative remedies open to the applicant by way of either appeal from any Master's decision or indeed review of Registrars' decisions and the right of appeal indeed still exists, it is argued, in relation to the more recent of those decisions; that is, the decision of the Master, subject perhaps to the requirement for an application for leave to appeal out of time. Therefore subsection 10(2)(b)(ii) of the ADJR Act applies. That subsection provides:
“The adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.”
In relation to the decision of the Registrars, I accept that there are provisions to appeal from those decisions and such an appeal may be made pursuant to Order 60A rule 5(1) of the rules of the Supreme Court. The current application refers to decisions by the Registrars being decisions where it is said the Registrars; that is, each of them, would not permit the applicant to be granted leave in the Supreme Court to commence and act in the name of the Company of which the applicant at all material times has been a director.
In fact, it is clear on the material before me that the Registrars did not make a decision in those precise terms but rather, as indicated in the earlier application, the decisions of the Registrars were decisions made in each case pursuant to subregulation 7(1) of the Supreme Court Fees Regulations 2002 (WA) to refuse to waive the fee payable for the filing of an originating process in the Supreme Court.
I accept on the material before me that the decision that was before the Master was a decision which the Master made in relation to a notice of originating motion dated 9 December 2002 whereby the applicant had sought the following:
“(1)The Applicant is granted leave from Order 4 rule 3 of the Supreme Court Rules to permit Joshua Hoffman, as Director to commence and act for Molecular Inventory Systems Pty Ltd in the action against the Dept. of Industry, Tourism and Resources & Ors.
(2)The Plaintiff is granted a deferral of court fees.
(3)The cost of this application is reimbursed.”
It has to be understood and recognised in a matter of this kind that the applicant appears to be doing the best he can on the available material and in one sense is endeavouring to pursue the matter based upon the understanding he has of Court rules, practice and procedure. Those rules are not a matter which are easy for a layman to properly follow but nevertheless I am satisfied in the present case that the applicant does have an understanding of what it is he is seeking to achieve both in terms of waiver of fees and the leave to be granted for him as a director to begin an action in the name of the Company. It is not necessary nor relevant for me to consider the further background detail as to why that action should be commenced in that way save that that has consistently been the concern of the applicant.
It is clear that the Master in delivering the decision on 13 December 2002 had before him an application as indicated brought by way of the originating motion which seeks the leave of the Court be granted to the Applicant to commence proceedings in the name of the Company.
Again it is not necessary for me to consider in great detail the rules of the Supreme Court save to say that the Rules provide in Order 4 Rule 3(2) the following:
“Except as expressly provided by or under any Act a body corporate may not begin or carry on any such proceedings otherwise than by a solicitor.”
It is clear that there is no qualification to that rule. It is equally clear to me that there is a body of law which may indicate that there is an inherent power in Courts, including the Supreme Court to perhaps exercise a discretion to permit proceedings to begin by an individual for and on behalf of a company but it is not necessary for me to consider whether that body of law applies necessarily to the applicant in the circumstance of this case. That in my view is a matter properly the subject of consideration by the Supreme Court.
In considering an application of this kind I need to be satisfied that the application is properly made for review under the ADJR Act. It seems to me also that in considering the issues in the present case it is not necessary for me to consider in detail whether or not a state Court exercising Commonwealth jurisdiction is exercising jurisdiction in relation to a Commonwealth enactment. For the present purposes I am prepared to accept that there may potentially at least be an argument that Registrars, indeed in the present case, may well be said to be exercising Federal jurisdiction to the extent that there was some involvement of Commonwealth law. I do not wish to pursue that matter in any further detail as it is unnecessary to do so in this application.
It is clear to me in the current application that there are indeed decisions of a kind made by the Registrars and certainly a decision made by the Master which in all instances could be regarded as decisions whereby either the Registrars or the Master were acting in a manner which could be described as exercising judicial function. I am not satisfied on the material before me that the decisions to either refuse to waive fees or to refuse to grant leave of the kind described could be regarded as a decision of an administrative character.
In all decisions the powers being exercised by either the Registrars or the Master are powers which are either delegated or indeed allocated to each of them under the appropriate state legislation and are powers to be administered judicially. As I have indicated, despite the inaccurate reference to the decisions of the Registrars in the Application, I am not satisfied the Registrars have indeed exercised any power of the kind exercised by the Master in relation to the notice which was the subject of the decision delivered on 13 December 2002. In any event, in an application of this kind where I am satisfied that the decisions which are sought to be the subject of review could not properly be regarded as decisions of an administrative character it is my concluded view that therefore the application in this instance is misconceived and it does not have any or any realistic prospect of success and indeed is not arguable.
In the alternative, in my view, if I am wrong in relation to that matter, it is further submitted by the respondent and I accept that in the present case in any event there is an alternative remedy available to the applicant by way of appeal on review in the Supreme Court. Whether he pursues that remedy within time or pursues it with due diligence is not relevant. What is relevant is whether or not there is adequate provision made by the laws of the State of Western Australia, particularly the laws of the Supreme Court of that state, in governing its own practice and procedure which the applicant could properly pursue.
To the extent that I find that there are such avenues, either by way of an appeal from the decision of the Master or review, as indicated, under the Rules of the Supreme Court of Western Australia of a decision of the Registrars, in either event there is clearly adequate provision made by law that the applicant is entitled to pursue in relation to the matters which are the subject of his complaint. To that extent, therefore, I am satisfied that subsection 10(2)(b)(ii) of the ADJR Act applies and I accept the submissions otherwise advanced for and on behalf of the respondent that in the circumstances of this case those alternative remedies would render this application inappropriate and/or futile.
Having regard to my findings, therefore, of the nature of the decisions and the alternative remedies available it is appropriate to dismiss the application. In my view, applying the principles which should be applied to summary dismissal, namely that the exercise of a discretion should be exercised with due caution and in a careful manner and accepting otherwise the law as it applies in relation to summary dismissal, in my view the only appropriate conclusion in the present case is that I should exercise the powers the Court undoubtedly has to dismiss the application and the associated notices of motion and I do so pursuant to Rule 13.10 of the Federal Magistrates Court Rules.
I find that there is no reasonable cause of action under the ADJR Act which has been disclosed. In the alternative, I otherwise find that the proceeding is frivolous or vexatious and/or an abuse of process of the Court for the reasons I have stated.
Accordingly, the following orders will be made:
(1)The application filed by the applicant on 22 January 2003 be dismissed.
(2)The notice of motion filed by the applicant on 29 January 2003 be dismissed.
(3)The notice of motion filed by the applicant on 30 January 2003 be dismissed.”
Costs
In this application the respondents upon orders being made dismissing the application and associated notices of motion, sought an order that the applicant pay the respondent's costs. It's submitted on behalf of the applicant that in applications under the ADJR Act an order for costs is not usual and it is submitted in reply by the representative of the respondents that there is in effect no reason why costs should not follow the event. To the extent that it's relevant, it was noted that in the earlier proceeding no costs were sought following a notice of discontinuance and it is further submitted that costs may, whether pursued or otherwise, perform a role of a disincentive to the applicant to further pursue applications of this kind to this Court, exercising federal jurisdiction under the ADJR Act.
In my view, where a Court dismisses an application summarily as it has done in the present case for the reasons stated that in a sense can assist both parties in reaching an early termination of the dispute and thereby save costs for both sides and indeed contain the issue of costs and expenses. I accept that in ADJR applications the issue of costs is not quite the same as it may be in other applications of a commercial nature. However, in the present case I also take into account – as in my view it's relevant to do so – the significant material that was filed in the earlier action which was the subject of notice of discontinuance and about which there was no claim for costs, despite a notice of discontinuance which would have given rise to such a claim.
I further note that notwithstanding the alternative remedies which at all material times have been available to the applicant to pursue under the rules of the State Court, that is, by way of review of the Registrar's decisions or appeal from the Master's decision, that those matters have not been pursued in the manner that is available to the applicant. In all the circumstances, it's my view, exercising the discretion I undoubtedly have, that in this matter costs should follow the event and accordingly
I further order:
(4)The applicant shall pay the costs of the respondents in accordance with schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 February 2003
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