King v Higgins
[2009] ACTSC 153
•18 November 2009
ROBERT JOHN KING v THE HONOURABLE TERENCE JOHN HIGGINS AO AND OTHERS
[2009] ACTSC 153 (18 November 2009)
ADMINISTRATIVE DIRECTION TO THE REGISTRAR UNDER RULE 6142 OF
THE COURT PROCEDURES RULES 2006 (ACT)
PRACTICE AND PROCEDURE – judicial direction to Registrar to reject document – whether document on its face an “abuse of process” or “frivolous or vexatious”, CourtProcedures Rules 2006 (ACT), s 6142 – administrative decision – reluctance to refuse access to the courts – claim on face of document must be untenable on version most favourable to applicant – immunity from and incompetence of certain parties from suit – certain claims presume interference in judiciary by the executive – further argument required – other claims arguable – document rejected – applicant may file amended document upon application to the Court.
Court Procedures Rules 2006 (ACT), rr 50, 54, 70, 6120, 6142, 6256, 6405, 6467, Div 6.3.3, Dictionary
Uniform Civil Procedures Rules 2005 (NSW), rr 4.10, 4.15
Supreme Court Rules 1937 (ACT), O 66 r 10B
Federal Court Rules (Cth), O 46 r 7A
High CourtRules 2004 (Cth), r 6.07
Rules of the Supreme Court 1971 (WA), r 67.5
Supreme Court Civil Rules 2006 (SA), r 53
Supreme Court Civil Rules 1987 (SA), r 102.09
Uniform Civil Procedures Rules 1999 (Qld), r 15
Federal Court of Australia Act 1976 (Cth), s 35A
Supreme Court Act 1933 (ACT), ss 3, 47
Court Procedures Act 2004 (ACT), ss 7, 9, Schedule 1
Administrative Decisions (Judicial Review) Act 1989 (ACT)
High Court of Australia Act 1979 (Cth), ss 17, 45
Judiciary Act 1903 (Cth), s 63
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 36
Cowen Z and Derham DP, “The Independence of Judges” (1953) 26 ALJ 462
Kaufman IR, “Cruelling Judicial Independence” (1979) 88 Yale LJ 681
Kaufman IR, “Maintaining Judicial Independence” (1950) 66 Amer Bar Assn J 470
In the Marriage of Gornalle (1992) 110 FLR 158
Angus Fire Armour Australia Pty ltd v Collector of Customs (NSW) (1988) 19 FCR 477 Beecham (Australia) Pty Ltd v Rogue Pty Ltd (1987) 11 NSWLR 1
Re Commercial Union Assurance Co (Ltd) (1900) 18 NZLR 585
Capewell v Seltino Pty Ltd [1986] 2 Qd R 2
Sheen v Burke & Anor [1993] 1 VR 584
Bird v Free and Ors (1994) 126 ALR 475
King and Anor v Stelmag Pty Ltd [2006] ACTCA 14
King and Anor v Stelmag Pty Ltd [2007] ACTCA 2
Roderick v Australian and Overseas Telecommunications Corporation Ltd (unreported, FCA, Von Doussa J, SG 10 of 1992, 6 May 1997)
Re Hochmuth [2002] FCA 790
Paramasivam v Randwick City Council [2005] FCA 369
Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353
Piepkorn v Caroma Industries Ltd [2002] FCA 182
Gunter v Doogan, Registrar of the High Court of Australia [1999] FCA 1648
Jessop v Westpac Banking Corporation [1999] FCA 1646
Letts v Commonwealth (1985) 8 FCR 585
Satchithanantham v National Australia Bank Ltd [2009] FCA 1171
Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia 2008) 170 FCR 426
Eastman v Higgins [2007] ACTSC 29
Walton v Gardiner (1993) 177 CLR 378
Re Horvath and Anor; Ex parte Commonwealth Bank of Australia (unreported, FCA, Goldberg J, VG 604 of 1998, 10 November 1998)
Re Pickering [2009] FCA 809
Bahonko v Sterjov [2007] FCA 1717
Re Cameron [1996] 2 Qd R 218
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Financial Integrity Group Pty Ltd v Farmer and Anor [2009] ACTSC 143
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Jamieson v The Queen (1993) 177 CLR 574
Mann v O’Neill (1997) 191 CLR 204
Re East and Ors; Ex parte Nguyen (1998) 196 CLR 354
Fingleton v The Queen (2005) 227 CLR 166
Sirros v Moore [1975] QB 118
Re McC [1985] AC 528
Taff Vale Railway Co v Amalgamated Society of Railway Servants and Ors [1901] 1 KB 170
London Association for Protection of Trade and Anor v Greenlands Ltd [1916] 2 AC 15
Laurie v Carroll (1958) 98 CLR 310
R v Justices of Wilts (1811) 13 East 352; 104 ER 406
Willis v Magistrates Court of Victoria and Anor (1996) 89 A Crim R 273
Jago v District Court of New South Wales and Ors (1989) 168 CLR 23
Harris v Caladine (1991) 172 CLR 84
Eastman v Australian Capital Territory (2008) 163 ACTR 29
Wilson and Ors v Minister for Aboriginal and Torres Strait Island Affairs and Anor (1996) 189 CLR 1
Moldex Ltd v Recon Pty Ltd [1948] VLR 59
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Clyne v East (1967) 68 SR (NSW) 385
Simms Motor Units Ltd v Minister for Labour and National Service [1946] 2 All ER 201
Liyanage and Ors v The Queen [1967] 1 AC 259
Manolakis v Leonard [2008] FCA 929
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Kowalski v Davison [2006] SASC 123
SC 87 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 18 November 2009
IN THE SUPREME COURT OF THE )
) No: SC 87 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ROBERT JOHN KING
Plaintiff
AND:THE HONOURABLE TERENCE JOHN HIGGINS AO
First Defendant
AND:FRANCIS JOHN PURNELL SC
Second Defendant
AND:THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Third Defendant
AND:THE COURTS ADMINISTRATOR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Fourth Defendant
AND:THE CHIEF EXECUTIVE OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY
Fifth Defendant
AND:THE EXECUTIVE OF THE AUSTRALIAN CAPITAL TERRITORY GOVERNMENT
Sixth Defendant
AND:BEN JEFFERSON SALMON QC
Seventh Defendant
AND:RAYMUND FRANCIS LIVINGSTON
Eighth Defendant
DIRECTION UNDER RULE 6142
Judge: Refshauge J
Date: 18 November 2009
Place: Canberra
JUSTICE REFSHAUGE DIRECTS THE REGISTRAR:
To reject the Originating Claim dated 16 October 2009 lodged by Robert John King unless the Court gives leave to accept the document.
Robert John King wishes to commence proceedings against a number of defendants. I shall describe the proposed defendants and the proposed proceedings more fully below.
In order to commence the proceedings, Mr King has lodged with the Registrar of this Court an Originating Claim with copies seeking to have it sealed and issued. As required under r 50(2) of the Court Procedures Rules 2006 (ACT) (Court Procedures Rules), a Statement of Claim is attached to the Originating Claim.
In order to commence proceedings, Mr King has to file the Originating Claim, with enough copies for service and proof of service under r 6120 of the Court Procedures Rules. Under r 6467(6), an affidavit of service must annex or exhibit the document served, so up to an additional copy in respect of each defendant may be required.
I refer to the filing of the Originating Claim, but there is some ambiguity about this term. “Filed” in relation to a document is defined in the Dictionary to the Court Procedures Rules to mean that a document has been lodged, that is, presented to and left at the Registry: In the Marriage of Gornalle (1992) 110 FLR 158 (at 164) (though the rule there under consideration has now changed); Angus Fire Armour Australia Pty ltd v Collector of Customs (NSW) (1988) 19 FCR 477 (at 488-9). It would appear that it can be lodged, and filed, by leave, through being handed up in court to the associate or a judicial officer: Beecham (Australia) Pty Ltd v Rogue Pty Ltd (1987) 11 NSWLR 1 (at 10).
Filing is, at common law, the actual placement of the document on the court file: Re Commercial Union Assurance Co (Ltd) (1900) 18 NZLR 585 (at 588) per Stout CJ. The definition in the Court Procedures Rules, however, has somewhat modified that and in common parlance, the distinction between filing and lodging has largely disappeared.
When filed, the original and the copies are sealed under r 70 of the Court Procedures Rules and then returned so that they can be served. Under r 54, the Originating Claim and attached Statement of Claim must be served personally on each defendant. Personal service is prescribed under r 6405 to mean giving to the person to be served, in the case of an Originating Claim (the original of which has been sealed), a sealed copy of the Originating Claim. This issue of service is further addressed below.
Despite the apparent inevitability in the rules that a lodged document must be filed (and so accepted), under Div 6.3.3 of the Court Procedures Rules, the Registrar may reject filed (i.e. lodged) documents and the documents would then be taken not to have been filed, despite the definition and the terms of the Court Procedures Rules. For a more explicit provision, see Uniform Civil Procedures Rules 2005 (NSW) r 4.10.
It would appear that the Registrar had at common law power to reject a document, such as a writ, which is irregular on its face: Capewell v Seltino Pty Ltd [1986] 2 Qd R 2 (at 7); Sheen v Burke & Anor [1993] 1 VR 584 (at 586). Rule 6142 of the Court Procedures Rules, however, gives the Registrar express power to consider the substance of a document lodged for filing and to reject it, if appropriate. The rule is in the following terms:
6142 Rejecting documents – abuse of process etc
(1)This rule applies if a document that is filed in the court appears to the registrar on its face to be an abuse of the court’s process or to be frivolous or vexatious.
(2)The registrar may –
(a)reject the document; or
(b)refer the document to a judicial officer for directions about how to deal with it.
(3)If the registrar refers the document to a judicial officer, the judicial officer may direct the registrar –
(a)to accept the document; or
(b)to reject the document; or
(c)to reject the document unless the court gives leave to accept the document.
Note: Pt 6.2 (Applications in proceedings) applies to an application for leave.
(4)This rule applies to a written notification under rule 6613 (Documents and things in custody of court) as if it were a document filed in the court.
(5)In this rule:
Judicial officer means –
(a)for the Supreme Court – a judge or the master; or
(b)for the Magistrates Court – a magistrate.
As can be seen, the Registrar also has power to refer the matter for direction by a judicial officer. The Originating Claim lodged by Mr King has been referred to me by the Registrar for direction under that rule.
The nature of the consideration to be given following such a referral is set out below. I note, however, that it is common in the Federal Court of Australia, which has a similar rule, for the direction to be given in the form of a written decision (though not, perhaps, a judgment). See, for example, Bird v Free and Ors (1994) 126 ALR 475. I shall proceed in somewhat the same way, though with differences to be noted below.
The originating claim
Mr King seeks to claim damages through his Originating Claim. He names as defendants the Chief Justice Terence John Higgins AO, three named barristers, the Supreme Court of the Australian Capital Territory, the Courts Administrator of the Supreme Court of the Australian Capital Territory, the Chief Executive of the Department of Justice and Community Safety and the Executive of the Australian Capital Territory Government.
The claim is said to arise out of proceedings in which Mr King and others were defendants and a company, Stelmag Pty Ltd, was the plaintiff. The following facts (apart from the description of the appeals in [13] below, which are taken from the published reasons for judgment in the appeals) are alleged in the Statement of Claim accompanying the Originating Claim. The proceedings were heard at first instance by the Chief Justice and judgment was delivered in April 2005 when findings were made against Mr King.
Mr King then appealed to the Court of Appeal and in August 2006 that Court upheld the appeal: King and Anor v Stelmag Pty Ltd [2006] ACTCA 14. It referred the proceedings between Mr King and Stelmag Pty Ltd back for a retrial. A cross-appeal was treated as abandoned, though that had not in fact been the case, and a further decision was made in March 2007 on that issue: King and Anor v Stelmag Pty Ltd [2007] ACTCA 2.
The Statement of Claim then alleges that the proceedings were re-heard and this “litigation was concluded in November 2007 with no judgment remaining against [Mr King]”.
The claim pleaded against the Chief Justice is that although he was the trial judge, he had a personal connection with the senior counsel for the plaintiff, Stelmag Pty Ltd. This connection, it was alleged, was the provision of services and gifts from counsel to the immediate family of the Chief Justice at a reduced rate. It was claimed that this was not disclosed to Mr King and that this failure to disclose breached a fiduciary duty that the Chief Justice, and the counsel, owed to Mr King.
There were other alleged breaches of a claimed fiduciary duty that the Chief Justice was claimed to owe to Mr King said to arise out of his Honour’s membership of the Council of Chief Justices and also by allegedly failing to follow appropriate standards of judicial conduct.
There were further claims against the Chief Justice as well as the Supreme Court, the Court’s Administrator, and the Chief Executive of the Department and the Executive of the Territory, pleaded as arising out of an alleged “responsibility, authority and power” for “establishing, monitoring and maintaining the administration and conduct of matters before the [Supreme] Court” including, inter alia “codes of conduct and standards of behaviour”. It was not expressly pleaded, however, that any of these alleged obligations had been breached. That would not, of itself, require rejection of the document, though amendment would ultimately be required. See [43] below.
It was further claimed against these defendants that they had duties of care to persons who appear before the court, including Mr King and that they had breached those duties of care.
The claims against the named barristers, apart from senior counsel for Stelmag Pty Ltd, are alleged to have arisen from their representation of Mr King at the trial. It is alleged that they became aware of the claimed personal connection between the Chief Justice and senior counsel for Stelmag Pty Ltd but gave Mr King, it is alleged, false and inaccurate advice which “had little or no substance in law” and that they should have, but failed to, raise these matters with the trial judge.
Rule 6142
Rule 6142 of the Court Procedures Rules originally appeared in the same terms as O 66 r 10B of the Supreme Court Rules 1937 (ACT). It had been inserted in 2004. The rule, and its predecessor, was in identical terms to O 46 r 7A of the Federal Court Rules (Cth). Indeed, it was directly copied from it. There are similar rules in other jurisdictions, though not by any means always in identical terms: High CourtRules 2004 (Cth), r 6.07; Uniform Civil Procedure Rules 2005 (NSW) r 4.15; Rules of the Supreme Court 1971 (WA), r 67.5; Supreme Court Civil Rules 2006 (SA), r 53 (following a similar but different rule: r 102.09 in the Supreme Court Civil Rules 1987 (SA)) and Uniform Civil Procedures Rules 1999 (Qld) r 15.
There are a considerable number of decisions of the Federal Court on O 46 r 7A but few on the other rules. I am not able to discern why that may be; it might be worthy of an academic study. In any event, it has been helpful in determining the nature of the proceedings as to how they might be conducted.
The first decision I have been able to find is that noted above, Bird v Free and Ors, where the proceeding was described as an application by the District Registrar. The report notes that “[t]he applicant appeared in person” but it is not clear whether that meant the District Registrar (as the applicant in the application under O 46 r 7A) or Mr Bird (as the applicant in the principal application that he sought to file). This approach, of holding a formal hearing, at which the person seeking to file the document the subject of the direction being sought by the Registrar attends, has been followed in a number of other decisions: see Roderick v Australian and Overseas Telecommunications Corporation Ltd (unreported, FCA, Von Doussa J, SG 10 of 1992, 6 May 1997); Re Hochmuth [2002] FCA 790 (at [3]).
On the other hand, there are examples of such decisions being made in chambers without any hearing, such as is reported in Paramasivam v Randwick City Council [2005] FCA 369 (at [20]).
In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, however, the Full Court of the Federal Court of Australia considered a similar situation (see at 355) and considered the process to be followed under the rules. In a helpful judgment, their Honours said (at 357) of circumstances which are very close to those of the Court Procedures Rules:
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.
No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar’s duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering arguments or submissions upon an application to the Court seeking the exercise of judicial power.
Rule 7A provides for a judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A.
Their Honours then concluded:
It should be concluded, therefore, that a mere direction under O 64 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.
Accordingly, while I have set out in these reasons the basis upon which I have given the direction to the Registrar, this is not a judgment of the Court and is not subject to appeal.
There has been, in the past, quite some uncertainty about this issue. Thus, in Piepkorn v Caroma Industries Ltd [2002] FCA 182, the Full Court of the Federal Court of Australia (at [13]) assumed that such a decision was a judgment of the Court and an appeal could be taken from it. In so doing, the Court relied on cases such as Bird v Free and Ors; Gunter v Doogan, Registrar of the High Court of Australia [1999] FCA 1648, also a decision of a Full Court, and Jessop v Westpac Banking Corporation [1999] FCA 1646, where a Full Court heard and disposed of an appeal from such a direction of a judge.
As noted above, however, that position was expressly considered in Bizuneh v Minister of Immigration and Multicultural and Indigenous Affairs and the position was decided to be that such a direction is not a judgment of the court. As a result, no appeal can be taken from it.
Some doubt was expressed about the reasoning in that decision by Sackville J in Paramasivam v Randwick City Council (at [40]) where his Honour thought that the reasoning in Letts v Commonwealth (1985) 8 FCR 585 led to the opposite conclusion. See also Satchithanantham v National Australia Bank Ltd [2009] FCA 1171 per Foster J (at [27]-[30]).
In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426 (Manolakis), the Full Court did consider, inter alia, Letts v Commonwealth and concluded (at 431-2):
In our view, where a registrar is directed by a judge pursuant to O 46, r 7A(2) not to accept the document for filing, the conduct of the registrar undertaken in compliance with the judge’s direction is not open to review under s 35A(5) of the Federal Court of Australia Act 1976 (Cth). We take this view for two reasons. First, the registrar is obliged to act in accordance with the direction of the judge. For this reason the person seeking to file the document is aggrieved not by the conduct of the registrar but rather by the direction given by the judge (see Letts v Commonwealth 8 FCR at 587). Secondly, s 35A(2) authorises a party to a proceeding to apply to the Court for review of the exercise of a registrar of any of the powers of the Court under s 35A(1). Where it is an originating process that is not accepted for filing the person concerned will not be a party to any proceeding at the relevant time. Even where this issue does not arise, the authority vested in a registrar by O 46, r 7A to refuse to accept a document, whether pursuant to a direction of a judge or of his or her own motion under O 46, r 7A(1), is not a power of the Court under s 35A(1). None of the powers identified in s 35A(1)(a) to (g) relates to the acceptance of documents for filing. Nor does any of the powers prescribed by O 46, r 7AA (see s 35A(1)(h)).
We turn then to the direction of the judge pursuant to O 46, r 7A. In our view, having regard to the weight of the above authorities, it should now be accepted in this Court that a direction of a judge under O 46, r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court of Australia Act. If a different view is to be taken, that view should be expressed by the High Court. In our view, the reasoning of Toohey J in Legal Aid Commission v Edwards 61 FLR 419; 42 ALR 154 and of the Full Court in Bizuneh 128 FCR 353 concerning the necessary attributes of a judicial, as opposed to an administrative decision, even where the decision is taken within the framework of the judicial branch of government is persuasive. We respectfully consider that, to the extent that Toohey J took a different view in Letts v Commonwealth 8 FCR 585, this is explicable on the basis that that matter concerned a decision of the Registrar of the High Court whose conduct was appropriately controlled by the justices of that court.
I note that the reference to s 35A(2) of the Federal Court of Australia Act 1976 (Cth) appears to be actually a reference to s 35A(5), which is the sub-section which gives a right to a review a decision of a registrar by a judge. Nevertheless, there does not seem to be an equivalent provision in the ACT legislation. The powers of the ACT Registrar are given by s 47 of the Supreme Court Act 1933 (ACT) which, basically, refers to powers given “under this Act or another Territory law”. Section 7 of the Court Procedures Act 2004 (ACT), empowers the rule-making committee (established under s 9) to make rules in relation, inter alia, to anything mentioned in Schedule 1. That schedule includes “the jurisdiction of the master, registrars and deputy registrars, including reviews of their decisions”.
At present, the only “review” is under r 6256 of the Court Procedures Rules which provides for a hearing de novo (r 6256(4)) of an appeal against “an order” made by the Registrar. This is certainly not as wide as s 35A(5) of the Federal Court of Australia Act 1976 (Cth) and not exhaustive of the power under Schedule 1 of the Court Procedures Act 2004 (ACT).
Nevertheless, a decision of the Registrar under the Court Procedures Rules that is not an order within the meaning of r 6256 could be reviewed, at least procedurally, under the Administrative Decisions (Judicial Review) Act 1989 (ACT). There may be a case for a review mechanism similar to that available to the Federal Court, thus permitting merits review of decisions that are not orders.
I note, next, that there is no breach of the rules of natural justice in not hearing from Mr King: Eastman v Higgins [2007] ACTSC 29 (at [73]). Were I to consider, however, more than what was on the face of the document, that is were I to consider facts and circumstances other than those on the face of the document, I should have to have heard from Mr King: Eastman v Higgins (at [74]). I do not consider my brief reference to the appeal decisions above amounts to such additional facts and circumstances. Accordingly, I have not heard from Mr King.
The purposes for a rule such as r 6142 was well expressed by Lander J in Eastman v Higgins where his Honour said (at [51]), though referring to the version of the rule in the Supreme Court Rules 1937 (ACT):
The rule has at least two purposes. First, it provides a mechanism where the Registrar can himself or herself, or at the direction of a judge, administratively protect the integrity of the Court’s processes by ensuring that inappropriate documents are not filed. In doing so, the rule assists by ensuring that documents of that kind do not become part of the public record. Secondly, the rule provides a level of protection to litigants other than the party seeking to file the document. It protects other litigants from being the victims of collateral and perhaps scandalous attacks, and saves them from being put to the cost of replying to allegations in a document which are frivolous, vexatious or an abuse of the Court’s process.
The issue to be decided is a relatively simple one. As put by his Honour in Eastman v Higgins (at [62]) it is “[d]oes the document appear, on the face of it, to be an abuse of the Court’s process or frivolous or vexatious?” This, then, is the question that has to be asked.
Abuse of process
Although so stated the question is simple, the answer is not always so. The terms “abuse of process” and “frivolous or vexatious” are, however, terms which have received considerable judicial consideration. They also, to a certain extent, overlap.
In this context, abuse of process has included the following concepts:
·where the proceedings are “foredoomed to fail”: Walton v Gardiner (1993) 177 CLR 378 (at 393); Re Horvath and Anor; Ex parte Commonwealth Bank of Australia (unreported, FCA, Goldberg J, VG 604 of 1998, 10 November 1998); Satchithanantham v National Australia Bank Ltd (at [35]); Roderick v Australian and Overseas Telecommunications Corporation Ltd;
·where the claim discloses no cause of action or no justiciable legal controversy: Jessop v Westpac Banking Corporation (at [7]); Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (at 355);
·where there is no rational argument to support the claim: Gunter v Doogan, Registrar of the High Court of Australia (at [16]);
·where the claim is without substance, groundless or fanciful: Re Pickering [2009] FCA 809 (at [33]);
·where the claim contains scandalous and vexatious allegations, such as where they are outrageous and unsupported by reasons or make serious allegations of serious wrongdoing such as of fraud or corruption, against persons who are not parties: Bahonko v Sterjov [2007] FCA 1717 (at [74]); Manolakis (at 427);
·where the claim could not possibly succeed: Re Hochmuth (at [19]).
The term “vexatious and frivolous” is similar to this. Thus, in Bird v Free and Ors, Drummond J said (at 480):
Because Mr Bird in my view has no prospect at all of obtaining leave to appeal Spender J’s direction, I regard the application that he has attempted to file this morning as frivolous or vexatious within the meaning of that term in O 46, r 7A.
As the Full Court said in Piepkorn v Caroma Industries Ltd (at [17]):
That claim has no prospects of success and is undoubtedly frivolous and vexatious and an abuse of the process of the Court.
The question of what makes a proceeding vexatious was dealt with carefully and comprehensively by Fitzgerald P in Re Cameron [1996] 2 Qd R 218 where he said (at 220):
It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 66 ALJR 810; Jones v Cusack (1992) 66 ALJR 815; and Attorney-General (NSW) v West (NSW Common Law Division No 16208 of 1992, 19 November 1992, unreported, BC9201474).
I am mindful, however, that a court must be very careful before finding that a cause of action is not pleaded or that a pleaded cause of action is doomed to fail.
As was made clear in Dey v Victorian Railways Commissioner (1949) 78 CLR 62 (at 91) and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (at 128-30), the court should only make such a finding in the clearest of cases. That is to say, the claim must be untenable on the version of the claim most favourable to Mr King. The court should look at the substance of what is claimed, or sought to be claimed, and not merely at what might be an inadequate expression of it: Financial Integrity Group Pty Ltd v Farmer and Anor [2009] ACTSC 143 (at [15]).
An important element of the common law is that causes of action seen at one time to be unsustainable may, over time and, perhaps, in changed circumstances, become tenable.
Findings
There are a number of claims in the Originating Claim that Mr King has sought to have issued. I shall deal with them serially.
1. The claim against the Chief Justice
The claim, as I have noted, is alleged to involve a breach of fiduciary duty put in three ways and also negligence on the part of the Chief Justice.
There is no doubt, however, that a judge of a Superior Court of Record has an immunity from suit in respect of the performance of his or her judicial duties. This has been held in a number of High Court decisions: Gallo v Dawson (No 2) (1992) 66 ALJR 859; Jamieson v The Queen (1993) 177 CLR 574; Mann v O’Neill (1997) 191 CLR 204; Re East and Ors; Ex parte Nguyen (1998) 196 CLR 354.
In Fingleton v The Queen (2005) 227 CLR 166, Gleeson CJ quoted (at 185) the general principles which had been stated by Lord Denning MR in Sirros v Moore [1975] QB 118 (at 132) as follows:
Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
Mr King, no doubt, will say that his claim comes within the exception that where a judicial officer acts in bad faith, there is an action that will lie. That, however, is not the principle. It was stated by Gleeson CJ in the passage his Honour quoted from Lord Bridge of Harwich in Re McC [1985] AC 528 (at 540):
It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie [1895] 1 QB 668 at 670: ‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action shall lie.’
There is no question about whether the Chief Justice had jurisdiction to hear and determine the proceedings at first instance. His Honour clearly had such jurisdiction. Accordingly, it is manifest that the action of Mr King, so far as it seeks orders against the Chief Justice, is doomed to fail.
2. Claim against the Supreme Court of the Australian Capital Territory
The Supreme Court of the Australian Capital Territory (the Supreme Court) was originally established in 1933 under that name as a superior court of record. Its constitution is set out in s 3 of the Supreme Court Act 1933 (ACT):
Establishment
3(1) There shall be a Supreme Court of the Territory which shall be known as the Supreme Court of the Australian Capital Territory.
(2)The court shall be a superior court of record.
(3)The court shall consist of the Chief Justice and the other judges.
As such, it is neither an individual, a corporation nor a partnership and thus not an entity known to law as being capable of being sued: Taff Vale Railway Co v Amalgamated Society of Railway Servants and Ors [1901] 1 KB 170 (at 173); London Association for Protection of Trade and Anor v Greenlands Ltd [1916] 2 AC 15 (at 20).
Thus, the first problem in respect of this claim is that the party allegedly joined as a defendant is not a legal entity able to be sued and cannot in law be so joined.
As the Supreme Court is not a legal person in the relevant sense, it cannot be a party to proceedings. There is, further, the problem of service. As there is no mechanism to effect service (cf s 45 of the High Court of Australia Act 1979 (Cth) taken with s 63 of the Judiciary Act 1903 (Cth)), the Supreme Court could not be served personally with process. Service is, of course, necessary for an entity to be made a party to proceedings and for the court, therefore, to have jurisdiction over the party: Laurie v Carroll (1958) 98 CLR 310 (at 323-4).
There are examples of courts which have been given a certain degree of corporate status. Thus, for example, s 17 of the High Court of Australia Act 1979 (Cth) gives to that Court certain powers that would ordinarily be exercisable by a corporate entity. Section 45 of that Act, however, specifies that any proceedings in respect of those powers are to be taken by or against the Commonwealth.
It is true that there are cases where a defendant has been named as a court. For example, R v Justices of Wilts (1811) 13 East 352; 104 ER 406; Willis v Magistrates Court of Victoria and Anor (1996) 89 A Crim R 273; Jago v District Court of New South Wales and Ors (1989) 168 CLR 23. A careful reading of these cases, however, shows that the courts in those cases were not active parties in the proceedings but were there named as the court from which the appeal is taken. They certainly do not provide a precedent for the kind of proceeding which is encompassed in Mr King’s Originating Claim.
The premise on which Mr King’s Originating Claim is based is that the Supreme Court had some supervisory power over the court. In a sense that is what actually occurred in the Court of Appeal. The court exercises control and jurisdiction through the hearing and determination of cases. This can also occur through decisions of the court on appeal. See Harris v Caladine (1991) 172 CLR 84 (at 94). It cannot do it in any other way.
Thus any supervision that the court is entitled or able to exercise has now been exercised. Even were the court able to be joined as a party, which I doubt, it has done all that it can and is expected to do, so a claim for it to do more is doomed to fail.
3. The claim against the Executive of the Australian Capital Territory Government
The Executive is established by s 36 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (Self-Government Act). It is not a corporate body and has no legal existence as a body that can sue or be sued. The comments I made above about legal personality and service relating to the Supreme Court also apply to the Executive.
Although the reasoning is not made explicit in the judgment, it would seem to me on the basis of Eastman v Australian Capital Territory (2008) 163 ACTR 29 that the correct defendant, if Mr King did wish to pursue this claim, would be the Australian Capital Territory.
The contents of the claim also causes concern, however, in that it seems to imply an intervention in the administration of justice by the executive arm of government which is completely inconsistent with the notion of the separation of powers. See Eastman v Australian Capital Territory (at [39]). Thus, there is “a great cleavage” between the judicial function on the one hand and legislative and executive power on the other: Wilson and Ors v Minister for Aboriginal and Torres Strait Island Affairs and Anor (1996) 189 CLR 1 (at 11).
To anticipate that the Executive would interfere directly in such a way as contemplated in the judicial function would be to undermine this separation of powers.
Nevertheless, it may be that some argument could be made for this, although I am unable to suggest one without hearing detailed argument. My concern is with the party named which would have to be altered in order that there be a cause of action: Moldex Ltd v Recon Pty Ltd [1948] VLR 59.
4. The claims against the Courts Administrator and the Chief Executive
These claims would also seem to raise questions about the separation of powers. It would be startling to consider that a member of the Australian Capital Territory government administration, as these two officers are, could intervene in judicial proceedings in a way that affected the outcome of those proceedings without being a party and adducing evidence and making submissions in open court.
It is beyond the scope of these reasons to trace the precise role that the doctrine of the separation of powers plays in the Territory. It has been held, for example, that the New South Wales Constitution does not impose a separation of powers: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (at 65, 84). See also Clyne v East (1967) 68 SR (NSW) 385 (at 395, 400).
As the Self-Government Act is in somewhat different terms, these decisions may not be directly applicable. Nevertheless, there are cogent arguments, supported by some authority, in Cowen Z and Derham DP “The Independence of Judges” (1953) 26 ALJ 462 which support the proposition that the executive government cannot interfere with the decision-making processes of the judiciary. Some support for that is also to be found in Simms Motor Units Ltd v Minister for Labour and National Service [1946] 2 All ER 201. See also Kaufman I R “Cruelling Judicial Independence” (1979) 88 Yale LJ 681; Kaufman I R “Maintaining Judicial Independence” (1950) 66 Amer Bar Assn J 470.
The relationship between these named officers and the courts is by no means clear. It may be, therefore, that there might just possibly be a role for them in the Court, but in the way it is put by Mr King, it seems extremely remote.
That the limits of the divisions between separate powers is not clear can be seen in the Privy Council’s acceptance that legislation ad hominem which is directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary: Liyanage and Ors v The Queen [1967] 1 AC 259 (at 290).
In my view, it is extremely unlikely that the claims by Mr King against these officers could be upheld, but the law is sufficiently lacking in clarity so that, without argument, I would not necessarily find that his claim was doomed to fail, though it seems very likely that it would not succeed and, unless Mr King could show a basis for it succeeding, it should not be allowed to proceed.
5. The claims against the three named barristers
The claims, though somewhat different between those who acted for Mr King and the one who acted for his adversary in the litigation, are, it seems to me, at least arguable.
Summary of claims
As a result, there are claims which should not proceed, claims which are barely arguable, but may not be so thin that they should not be prevented from proceeding without careful argument, and claims that are clearly arguable.
It seems to me, therefore, that it would not be proper merely to direct the Registrar to accept the Originating Claim, for it is, in part, an abuse of process or frivolous or vexatious. On the other hand, it should not merely be rejected for there are arguable claims which, if separated from those which should not be permitted to proceed, should be permitted to proceed.
I note that in Manolakis v Leonard [2008] FCA 929, Mansfield J considered a notice of appeal from a decision of a Federal Magistrate. The District Registrar had sought a direction of a judge in respect of the notice of appeal and, in accordance with that direction, had refused to permit it to be filed because it contained scandalous and vexatious material.
His Honour considered a review of the decision of the District Registrar. Rather similarly to the situation with Mr King’s Originating Claim, his Honour found that some of the grounds of appeal were appropriate and there was some prospect of the applicant succeeding on those grounds. There were, however, other grounds which included allegations of fraudulent, corrupt and criminal conduct against third parties, not party to the proceedings. These were irrelevant to the claim made against the decision of the Federal Magistrate. They were clearly scandalous and vexatious.
His Honour held that the decision of the District Registrar was correct but did note that if the notice of appeal were to be amended to remove the offending grounds of appeal, his Honour would have permitted the notice of appeal to be filed.
It seems to me, with respect, that this approach has much to commend it and is one that could be followed here.
To refuse a party access to the courts by refusing to accept claims they wish to make should not be readily done. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (at 614). The courts should be accessible to all, even though the formulation of their claims may be unorthodox and difficult to manage and the claims themselves may be challenging to accepted norms. Against this, the courts must not permit their processes to be abused and for potential defendants be put to trouble and expense for claims that have no possible prospects of success.
In this case, where there are a variety of claims, it seems to me that the preferable approach, adopted from that of Mansfield J, though in a slightly different context, is to direct the Registrar that the Originating Claim lodged by Mr King should be rejected unless the Court gives leave to accept the document.
Mr King may then make application to the Court which can decide which parts of the Originating Claim can be accepted and which parts must be rejected. If the Originating Claim is then amended to remove the rejected parts, it could be accepted. Such an application is an ordinary judicial proceeding before the court: Re Horvath and Anor; Ex parte Commonwealth Bank of Australia. Such an application is to be made ex parte: Kowalski v Davison [2006] SASC 123 (at [34]).
Accordingly, I direct that the Registrar reject the Originating Claim dated 16 October 2009 lodged by Robert John King unless the Court gives leave to accept the document.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for the Administrative Direction herein of his Honour, Justice Refshauge.
Associate:
Date: 18 November 2009
Date of judgment: 18 November 2009
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