Mathews, Russell Gordon Haig v Ramsey, Graham

[1995] FCA 1149

CATCHWORDS

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 99 of 1995
GENERAL DIVISION                 )

BETWEEN:    RUSSELL GORDON HAIG MATHEWS

Applicant

AND:    GRAHAM RAMSEY

First Respondent

AND:    THE HONOURABLE DOUGLAS PATON DRUMMOND

Second Respondent

CORAM:    SPENDER J
PLACE:    BRISBANE
DATE:     14 DECEMBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT proceedings QG 99 of 1995 are dismissed.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY     )    No. QG 99 of 1995
GENERAL DIVISION                 )

BETWEEN:    RUSSELL GORDON HAIG MATHEWS

Applicant

AND:    GRAHAM RAMSEY

First Respondent

AND:    THE HONOURABLE DOUGLAS PATON DRUMMOND

Second Respondent

CORAM:    Spender J
PLACE:    Brisbane
DATE:     14 December 1995

REASONS FOR JUDGMENT

The applicants on this motion, who are the respondents to the principal proceedings, move the court for orders pursuant to O 20 r 2 of the Rules, as varied by O 54 r 6, for the summary disposal by way of dismissal or stay of the principal proceedings.  As so varied, O 20 r 2 provides that where in any proceeding it appears to the court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding no reasonable basis for the application is disclosed, the court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

The present principal proceedings seek an "order of review of the decision of Drummond J on 31 May 1995" directing the Registrar, who is the first respondent in the principal proceedings, not to accept an application dated 11 May 1995 by Mr Mathews "in the matter of Russell Gordon Haig Mathews v Michael Lavarch, The Attorney-General of the Commonwealth of Australia".

Mr Mathews, by an amended application filed on 24 August 1995, applied under the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act') and also under s 39B of the Judiciary Act 1903 for an order of review of that decision and for an order of mandamus directed to Mr Ramsey, the District Registrar of the Federal Court in Brisbane, instructing him to accept the application of Mr Mathews.

So as to understand the present motion it is necessary to set out some of the relevant history.  In proceedings QG180 of 1994 Drummond J, on 18 May 1995, summarily dismissed Mr Mathews's application against five of the respondents in those proceedings and in respect of the sixth ordered that proceedings against her be permanently stayed.  The first respondent in those proceedings, a Ms Maddigan, was a person who in July 1989 had complained to the Human Rights and Equal Opportunity Commission of workplace sexual harassment by Mr Mathews.  The second and third respondents were her parents.  The fifth respondent is the Human Rights Commissioner who conducted the hearing of the complaint of Ms Maddigan.  The fourth respondent is a Queensland public servant and the sixth is a Queensland Police Officer.

On 29 May 1995 Mr Mathews presented to the Registry an application, dated 11 May 1995 seeking judicial review of a decision of the Attorney-General of the Commonwealth in respect of what appears from his affidavit to be a complaint by Mr Mathews about the grant of Legal Aid to Ms Maddigan and her parents.  The proceedings in QG180/94 had by that stage been concluded by the judgment of Drummond J of 18 May 1995. 

On 31 May 1995 Ms McQuaid, the Deputy District Registrar, sought a direction from Drummond J pursuant to O 46 r 7A.  That rule provides as follows:

"If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him -

(a)to accept or issue it; or

(b)to refuse to accept or issue it; or

(c)to refuse to accept or issue it without the leave of a Judge first had and obtained. "

On 31 May 1995 Drummond J made a direction pursuant to O 46 r 7A that the application not be accepted.  On 2 June 1995 a letter was forwarded to Mr Mathews advising him of the direction that Drummond J had made.  On 11 July 1995 the application in the present proceedings was filed.  On 18 August 1995 leave was granted to amend the application to add the District Registrar as a respondent and on 24 August 1995 the amended application, to which I have earlier referred, was filed.  The present notice of motion with which I am concerned was filed on 27 September 1995.

While it is not of direct relevance in the disposition of the present notice of motion, Mr Mathews appealed from the decision of Drummond J directing the Registrar not to accept his application but that appeal was discontinued.  Also, Mr Mathews appealed from the decision of Drummond J given on 18 May 1995 in proceedings QG180 of 1994, summarily dismissing Mr Mathews's application against the first five of the respondents in those proceedings and permanently staying the proceedings insofar as it concerned the sixth.  A Full Court constituted by Davies, Foster and Sackville JJ on 6 November 1995 dismissed Mr Mathews's appeal with costs.

The Full Court in that matter concluded that the decision by Drummond J to strike out the proceedings as an abuse of process was fully justified.  The Full Court said at p 8 of their reasons:

"...there is no reason to doubt that the recovery of damages for trespass and the recovery of the documents were not matters which prompted the initiation of the proceedings.  To use the words of Lord Justice Bridge in Goldsmith v Sperrings to which we have already referred, this is a case where Mr Mathews brought proceedings for 'an ulterior purpose unrelated to the subject matter of the litigation and,... but for his ulterior purpose, he would not have commenced proceedings at all.  Thus there was an abuse of process. "

Mr Mathews is on the horns of a dilemma.  The direction by Drummond J to the Registrar to refuse to accept Mr Mathews's application was either a decision of an administrative character and thus might be renewable under the Administrative Decisions (Judicial Review) Act or it was judicial in character in which case it might be challenged either by an appeal or as the subject of leave to appeal.

Mr Mathews discontinued his appeal which sought to challenge the correctness of Drummond J's direction.  It is now submitted on behalf of the respondents in the principal proceedings that there is no reasonable basis for his application for judicial review because the decision by Drummond J was not a decision of an administrative character.

In my opinion, when a judge issues a direction under O 46 r 7A the judge is exercising the jurisdiction of the Court to control frivolous or vexatious applications.  In those circumstances, the judge's function is judicial.

In Letts v Commonwealth (1985) 8 FCR 585, Toohey J, in the Federal Court of Australia, was concerned with a decision by a Registrar of the High Court to seek a direction of a justice of the Court pursuant to O 58 r 4(3) of the High Court Rules in respect of process which appeared to the Registrar to be an abuse of process.  Toohey J concluded that that decision by the Registrar was not a decision of an administrative character but was a decision of a judicial character and therefore was not amenable to review under the Administrative Decisions (Judicial Review) Act.

His Honour found a further ground on which he would refuse to grant the application for review;  that being his view that there was adequate provision made by the High Court Rules for a Justice of that Court to determine whether or not the Registrar should issue the process in question. His Honour no doubt was referring to s 10(2)(b)(ii) of the ADJR Act.

Toohey J, in reaching his conclusion that the decision of the Registrar was judicial in character, said, at 587:

"The Judicial Review Act applies only to decisions of an administrative character and in turn only to conduct leading to the making of such decisions.  If the actions of the Registrar constituted a decision, I do not think it was a decision of an administrative character.  The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the Court as well as justices.  Although he was not a member of the Court he was...part of the organisation through which the powers and jurisdiction of the Court were exercised...': see Commonwealth v Hospital Contribution Fund of Australia (1982) 150 CLR 49 per Gibbs CJ at 59. "

The position in the present case, in my view, is a fortiori.  If Toohey J be right that the Registrar in Letts was engaged in making decisions of a judicial character in referring a matter to a judge for a direction, it seems to me
plain that the decision of the judge directing the Registrar whether to accept the process or not was an exercise by the Court of its judicial power and the decision made by the judge was not a decision of an administrative character.

That, in my opinion, is sufficient to dispose of the motion.  There are, however, other considerations which lend force to the appropriateness of making the orders sought by the notice of motion.

As Mr Mathews himself acknowledged in the course of directions hearings before Drummond J in relation to the present matter, there is a real lack of utility associated with the review which he seeks. The decision to grant legal aid to, inter alia, Ms Maddigan and her parents in QG180 of 1994, was a decision the consequences of which have been spent prior to the making of the present application.

In those circumstances, any review would be purely academic, the stable door having well and truly been shut after the horse has bolted.  For these reasons, the proceedings QG99 of 1995 are dismissed.

I make no order as to costs.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:  14 December 1995

Mr Mathews appeared in person.       

Counsel for the respondents  :        Mr P E Hack

instructed by               :        Austn Govt Solicitor

Date of Hearing             :        14 December 1995