Mbuzi v Hird
[2022] FedCFamC2G 38
•3 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mbuzi v Hird [2022] FedCFamC2G 38
File number(s): BRG 442 of 2021 Judgment of: JUDGE EGAN Date of judgment: 3 February 2022 Catchwords: ADMINISTRATIVE LAW – Application for review of decision of a Registrar to refuse to accept documents for filing on the ground that such documents were frivolous or vexatious and instead had no prospect of success – where Court lacked jurisdiction to hear and determine the applicant’s proposed application – application for review dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r.1.06(2) and (3), 2.26 Division: Division 2 General Federal Law Number of paragraphs: 9 Date of last submission/s: 9 December 2021 Date of hearing: 11 November 2021 Applicant: Mr Mbuzi Respondent: Submitting appearance ORDERS
BRG 442 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOSIYAS MBUZI
Applicant
AND: REGISTRAR HIRD
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
3 FEBRUARY 2022
IT IS ORDERED THAT:
1.The Application for Review filed on 24 September 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN:
On 24 September 2021, the applicant filed an application for review of the decision of a Registrar of this Court, whereby the following documents were not accepted for filing in the registry:
•Application – General Federal Law dated 14 September 2021;
•Applicant’s genuine steps statement – Rule 4.07; and
•Affidavit of Josiyas Mbuzi sworn on 14 September 2021
The decision to refuse to accept the documents was made pursuant to the provisions of Rule 2.26 of the Federal Court Rules 2011. Such rule could be relied upon, pursuant to the provisions of Rule 1.06 (2) and (3) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021, in circumstances where the Rules of this Court were insufficient to deal with the matter at hand.
In a letter dated 21 September 2021 sent by National Registrar Hird to the applicant (“the Refusal Letter’) it was said, in part, as follows:
“Review of the documents lodged for filing
I have refused to accept them for filing pursuant to rule 2.26 of the Federal Court Rules 2011, which states:
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.
Under rule 2.26 of the Federal Court Rules 2011, a document may be refused for filing if a Registrar is satisfied that the document is an abuse of process of the Court. The term “abuse of process” includes an application which has no cause of action properly stated and no prospects of success.
While the following is not exhaustive, I note the following:
•Whilst perhaps only procedural in nature, the named respondent on the Documents is ‘SPER’, from my perusal of the Documents it is not entirely clear who the named respondent is.
•From my perusal of the Documents, you seek relief which includes that the respondent be restrained from suspending your Driver’s Licence and collecting an amount of money issues pursuant to an infringement notice. The Federal Circuit and Family Court of Australia does not have jurisdiction to grant such relief.
•From my pursuant of the Documents, you appear to seek to agitate issues that have history in the Supreme Court of Queensland, however you have failed to identify how the Federal Circuit and Family Court of Australia has jurisdiction to consider such matters.
•From my perusal of the Documents, you appear to make mention of the “Australian Consumer Law (ACL) 2021 Sections 20; 21 and 22” and that “the respondent has engaged in conduct that is unconscionable, undeue harassment, misleading and deceptive”… the Australian Consumer Law and most relevantly the sections on which you seek to rely (ss 20 and 21) relate to conduct ‘in trade or commerce’ in connection with the ‘supply or possible supply of goods and services’. Matters relating to infringements and the cancellation of Drivers Licences are not in trade and commerce.
In light of the above, I am satisfied that the Documents are frivolous or vexatious and have no prospects of success and are doomed to fail. It would constitute an abuse of process of the Court if they were accepted for filing.
I enclose the Documents by way of return.
I recommend that you seek legal advice prior to filing any further documents with the Court.
Yours sincerely
Alison Hird
National Registrar”
At the hearing of the application for review, the applicant relied upon written submissions which provided as follows:
“OUTLINE OF SUBMISSIONS BY THE APPLICANT
Issues:
-Jurisdiction of the Federal Circuit and Family Court of Australia
-Apprehension of bias by the presiding Judge
Introduction:
This proceeding has resulted from the decision of the respondent, who is a registrar, deciding to refuse the filing of a duly prepared application, which is marked "JMl", as amended due to developments whereby the first and second respondents are now involved, as per document marked "JM2".
In her decision, the respondent does not rely on any authorities. Further, the respondent does not rely on any legislation. Thus, the lack of authorities and legislation should be sufficient enough to find that her decision was made in error and therefore, the applicant should be allowed to file and serve his prepared application as amended. While the respondent lacks basis for her decision, the applicant has outlined authorities and legislations and the respondent has failed to dispute even one of the authorities and legislations which the applicant has outlined in invoking the jurisdiction of the Federal Circuit and Family Court of Australia.
In relation to the issue of apprehension of bias by the presiding judge, the applicant relies on the demonstrable conduct of the judge at the directions hearing. Based on what the High Court of Australia determined in Webb v. The Queen (105), the issue of apprehension of bias arises.”
For the reasons advanced by Registrar Hird on page 2 of the Refusal Letter of 21 September 2021 (which letter is marked as Exhibit 1 on the Court file), it is found by the Court that the application for review filed on behalf of the applicant is entirely without merit, frivolous and vexatious.
The application attempted to be filed by the applicant was Exhibit JM-1 to the applicant’s affidavit filed on 24 September 2021.
This Court has no jurisdiction to entertain an application of the kind sought to be ventilated by the applicant.
The Application for Review is accordingly dismissed.
The Registrar did not relevantly appear on the hearing of the Application for Review and has not sought costs. In such circumstances, there will be no order as to costs.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 3 February 2022
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