ADMINISTRATIVE LAW – application for judicial review of a decision of a Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) – documents rejected as constituting an abuse of process – no reviewable error
HIGH COURT AND FEDERAL COURT – equitable jurisdiction of Federal Court of Australia to set aside a perfected judgment other than in the exercise of appellate jurisdiction – application of principles stated Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165 – whether documents lodged for filing capable of attracting the principles – consideration of the clarity of proposed pleadings and the sufficiency of evidence relied upon to establish an allegation of actual fraud affecting an earlier judgment – materiality of alleged fraud to the outcome of the earlier proceeding
PRACTICE AND PROCEDURE – prior order imposing a requirement for leave to be granted for a document to be accepted for filing – whether documents lodged for filing fell within the scope of the order – leave required – leave refused
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
McDonald v Colbran [2019] FCA 1937
Case
[2019] FCA 1937
Decision Date
CaseChat Overview and Summary
The case of McDonald v Colbran involves the plaintiff, McDonald, seeking judicial review of a decision by the respondent, Colbran, to refuse to accept certain documents for filing. The dispute was heard in the Federal Court of Australia. The primary legal issue before the Court was whether the documents lodged by McDonald could be accepted for filing, particularly in light of a prior order that required leave to be granted for any document to be accepted. Additionally, the Court had to determine if there was any reviewable error in Colbran's decision to reject the documents, considering them an abuse of process.
The Court found that the documents were not to be accepted for filing as they did not meet the criteria set out in the Federal Court Rules 2011, and there was no reviewable error in Colbran's decision. The Court noted that the documents were rejected due to their nature and content, which did not align with the claims McDonald sought to pursue. The Court also addressed the application for recusal, finding that there was no reasonable apprehension of bias on the part of the judge based on prior decisions or employment history. The Court concluded that the documents did not constitute an abuse of process and were not capable of attracting the principles set out in Clone Pty Ltd v Players Pty Ltd (in liq).
The Court dismissed all the interlocutory applications brought by McDonald and ordered that he pay the respondent's costs. The orders also provided a framework for McDonald to potentially apply to vary or revoke certain orders and to set down a hearing for a stay application if an affidavit was filed in accordance with the specified conditions.
Orders
Orders of the court
1. The applicants’ interlocutory applications dated 29 March 2019 and 1 October 2019 are dismissed.
2. The application for review of the respondent’s decision made on 15 February 2019 is dismissed.
3. The applicants’ application for leave for the documents lodged with the Court on 11 February 2019 to be accepted for filing is dismissed.
4. The applicants are to pay the respondent’s costs, fixed in the sum of $2,666.95.
5. The applicants may file and serve an application to vary or revoke the order in [4], such application to be filed and served on or before 6 December 2019.
6. Any application made in accordance with the order in [5] is to be determined on the papers.
7. On or before 6 December 2019, the applicants may file and serve an affidavit deposing to whether they oppose the application for an order in terms set out in [3.2] of the affidavit of Tarley Leideritz affirmed on 27 November 2019 (the stay application).
8. In the event that the applicants or either of them file an affidavit in accordance with the order in [7]:
(a) the stay application is to be set down for a hearing on a date to be fixed, not earlier than 28 January 2020;
(b) pending the determination of the stay application, any documents lodged for filing by the applicants or either of them are to be referred to the presiding judge for a direction as to whether the documents should be accepted for filing.
9. The order in [8] does not apply to documents comprising an appeal or application for leave to appeal from any judgment or order in this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The 2019 documents and the documents filed in this action proceed from the footing that proof that Mr McDonald’s former employer was a body corporate would have assisted him to succeed in the 2004 proceedings and the 2010 proceedings. In addition, Mr McDonald seeks to establish that certain individuals joined as defendants in the 2010 proceedings and other proceedings commenced by him were not employees of the Crown in right of South Australia but employees appointed by the same Minister under the Education Act 1972 (SA) and so do not have the benefit of statutory immunity from suit that might otherwise arise under s 74 of the formerly named Public Sector Management Act 1995 (SA) (PSM Act). The applicants’ documents and submissions proceed from the assumption that by making good these contentions, the issues between Mr McDonald and his employer and the individual respondents may be tried in a fresh proceeding or re agitated in the reopened 2010 proceedings as the case may be. This is not an exhaustive statement of the proposed claims.EVIDENCE, SUBMISSIONS AND HEARINGS The Court has before it an affidavit of Mrs McDonald by which she adopts all of the oral and written submissions of Mr McDonald. In this proceeding, Mr McDonald has sworn and filed six affidavits. To the extent that the affidavits contain material in the nature of submissions, they have been read as such. The affidavits sworn on 29 March 2019, 5 April 2019, 29 April 2019, 9 August 2019, 19 August 2019 and 1 October 2019 will be referred to as the first to sixth affidavits respectively. Also before the Court are written submissions dated 1 April 2019 (first April submissions), 15 April 2019 (second April submissions) and 19 August 2019 (August submissions). The second April submissions were handed up at the hearing of 15 April and are marked Exhibit 3. The other evidentiary material before the Court consists of a letter dated 26 July 2017 from the Registrar to Mr McDonald providing reasons for refusing to accept the 2017 documents for filing and attaching copies of those documents as returned to Mr McDonald (Exhibit 1), a USB containing the documents Mr McDonald has lodged for filing in the South Australia District Registry between 20 July 2017 and 15 February 2019 (Exhibit 2) and a letter dated 25 May 2017 to Mr McDonald from a person holding the title Office Manager to the Minister for Education and Child Development (Exhibit 4). The originating application, the leave application and the first recusal application were heard on 15 April 2019. Judgment was reserved on 29 April 2019 following the receipt of further submissions. On 13 August 2019, I made an administrative order reopening argument for the purpose of receiving the fourth affidavit and written submissions in relation to it. Mr McDonald did not file written submissions in response to that order. Instead he filed the fifth affidavit, which has been read. Argument was reopened again for the purpose of hearing a further application for an order that I be disqualified from determining any issue in the proceeding on grounds of actual and apprehended bias. More will be said about that aspect of the proceedings later in these reasons.LEAVE REQUIRED
Decision
Reasons for decision
It may be that Mr McDonald is asserting bias on the basis of my prior employment as a solicitor in the Crown Solicitor’s Office, most recently in 2007. However, it has not been suggested by Mr McDonald that I had any involvement in that capacity in any case to which Mr McDonald was a party. Nor has Mr McDonald asserted the existence of any particular relationship with any particular lawyer with whom he has had prior dealings other than an allegation that I am “acquainted” with persons who have committed fraud. It has not been established that my prior employment with the Crown Solicitor’s Office forms a proper basis for recusal.Fact and outcome of previous decision or decisions Mr McDonald submits that my direction pursuant to r 1.37 of the Rules in relation to documents previously lodged for filing by him in 2017 gives rise to an apprehension of bias or otherwise demonstrates actual bias. The allegation of actual bias is premised on a series of additional grounds to the effect that in making the earlier decision I had previously demonstrated bias and bad faith. These submissions assert no more than a sense of grievance that I have previously decided a question adversely to Mr McDonald’s interests coupled with an assertion that the question was decided erroneously. Mere dissatisfaction with the outcome of a previous decision is insufficient of itself to demonstrate grounds for recusal in relation to a later proceeding. The earlier decision was made on an assessment of the content of the 2017 documents having regard to the nature of the claims summarily dismissed by Besanko J and the judgment in the 2004 proceedings. The decision did not require any question to be decided as to Mr McDonald’s credit so as to affect the adjudication of any question of fact now arising before the Court. The circumstance that I have previously given a direction adverse to Mr McDonald does not of itself justify recusal in the present proceeding on the ground of apprehended bias. It is then submitted that I have in fact prejudged the outcome of the present proceedings because the issues to be determined are the same as those determined in 2017. To the extent that this submission raises a different issue from that which I have just determined (which is unclear) it must also be rejected. The 2017 documents were not in the nature of a proposed proceeding to set aside any judgment on grounds of fraud. They comprised an originating application and statement of claim each of which fell to be considered by reference to their content. I adjudged the proposed proceeding in 2017 to be one by which Mr McDonald sought to sue the same respondents he had previously joined in the 2010 proceedings for acts and omissions arising out of his prior employment. The proposed pleading in 2017 contained no allegation that the 2010 judgment had been procured by actual fraud. It was not an application set aside a judgment on Clone principles. Whilst it might have been Mr McDonald’s intention to show in that proceeding that “new fresh and compelling evidence” had come to light, that of itself would be insufficient to invoke the Court’s original jurisdiction in equity to set aside its own perfected judgment. I reject the contention that consideration of the 2017 documents has brought about the circumstance that the issues arising on this action have been prejudged in fact. I also reject the contention that there is a reasonable apprehension that the Court as presently constituted cannot bring an impartial mind to the questions now falling to be decided in relation to the different documents lodged in 2019.