Mulhern v Morgan - [2017] FCA 1183

FEDERAL COURT OF AUSTRALIA
Mulhern v Morgan [2017] FCA 1183

File number: NSD 1469 of 2017

Judge: BROMWICH J

Date of judgment: 22 September 2017

Date of publication of reasons: 4 October 2017

Catchwords: PRACTICE AND PROCEDURE – application for judicial review of decision by Registrar to refuse to accept interlocutory application for filing in separate proceedings – refusal to accept for filing on basis of applicant’s lack of standing as a non-party to those proceedings – held: decision of Registrar affirmed – held: originating application summarily dismissed pursuant to rr 1.40 and 26.01(1)(a) of Federal Court Rules 2011 (Cth)

Legislation:
Federal Court of Australia Act 1976 (Cth), s 31A

Federal Court Rules 2011 (Cth), rr 1.40, 2.26, 16.21(1)(b), (c), (d), 26.01(1)(a), 39.05(c), (h)

Cases cited:
Mulhern v Bank of Queensland [2015] FCA 44

Mulhern v Bank of Queensland (No 2) [2015] FCA 579

Mulhern v Bank of Queensland Limited(No 3) [2015] FCA 927

Mulhern v Official Receiver [2015] FCA 807

Date of hearing: 22 September 2017

Registry: New South Wales

Division: General

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 18

Counsel for the Applicants: The Applicant appeared in person

Counsel for the Respondent: The Respondent filed a submitting notice save as to costs

ORDERS

NSD 1469 of 2017

BETWEEN:
RONAN JOSEPH MULHERN
Applicant

AND: DEPUTY DISTRICT REGISTRAR T. MORGAN
Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

29 SEPTEMBER 2017

THE COURT ORDERS THAT:
1.The order made on 22 September 2017 summarily dismissing these proceedings be varied pursuant to rule 39.05(c) and (h) of the Federal Court Rules 2011 (Cth), to read:
The originating application dated 23 August 2017 be summarily dismissed on the Court’s own initiative pursuant to rules 1.40 and 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
BROMWICH J:

On 22 September 2017, I summarily dismissed the originating application, dated 23 August 2017, by which these proceedings were commenced. I did so at the first case management hearing for the proceedings. These are my reasons for making that summary dismissal order, and for subsequently varying that order to correctly reflect the basis upon which it was made.
The named applicant in these proceedings is Mr Ronan Joseph Mulhern. Mr Ronan Mulhern is the adult son of Mr Michael Richard Mulhern (who presented himself in these proceedings as Richard Mulhern) and Mrs Jacqueline Patricia Mulhern. Mr Richard Mulhern and Mrs Jacqueline Mulhern were the second and eleventh plaintiffs respectively in proceedings NSD887 of 2014 brought against the Bank of Queensland Limited. Those proceedings were heard before Gleeson J, resulting in three judgments being delivered: Mulhern v Bank of Queensland [2015] FCA 44, delivered on 5 February 2015; Mulhern v Bank of Queensland (No 2) [2015] FCA 579, delivered on 12 June 2015; and Mulhern v Bank of Queensland Limited(No 3) [2015] FCA 927, delivered on…

Grounds of appeal

[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.

Continue reading Mulhern v Morgan

Details

AGLC: Mulhern v Morgan [2017] FCA 1183
Case: [2017] FCA 1183
Decision Date: 22 September 2017

CaseChat Overview and Summary

Mulhern v Morgan involved an application for judicial review of a decision by the Registrar of the Federal Court to refuse to accept an interlocutory application for filing in separate proceedings. The applicant, Mulhern, sought to intervene in proceedings already underway between Morgan and a third party. The Registrar refused to accept the filing on the basis that Mulhern lacked standing as a non-party to those proceedings. Mulhern then sought judicial review of the Registrar’s decision. The court was required to determine whether the Registrar's decision was correct, and whether Mulhern had standing to seek judicial review in the circumstances.

The court began by examining the legal framework governing standing and the role of the Registrar in managing the Court’s caseload. It held that the Registrar has broad discretion in determining whether to accept a filing, and this discretion should not be lightly interfered with. The court found that Mulhern did not have standing to intervene in the existing proceedings because they were not a party to the action, and the proceedings did not directly affect Mulhern’s rights or interests. The court concluded that the Registrar's decision was within the scope of their authority and correctly exercised.

As a result, the court dismissed Mulhern’s application for judicial review. It also varied the original order of dismissal to reflect that the dismissal was made on the Court's own initiative, pursuant to the relevant rules of the Federal Court. This case underscores the importance of standing in judicial review proceedings and reinforces the deference owed to the Registrar's discretion in managing court filings.

Orders

Orders of the court

1. The order made on 22 September 2017 summarily dismissing these proceedings be varied pursuant to rule 39.05(c) and (h) of the Federal Court Rules 2011 (Cth), to read:

The originating application dated 23 August 2017 be summarily dismissed on the Court’s own initiative pursuant to rules 1.40 and 26.01(1)(a) of the Federal Court Rules 2011 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 1469 of 2017
Judge:	BROMWICH J
Date of judgment:	22 September 2017
Date of publication of reasons:	4 October 2017
Catchwords:	PRACTICE AND PROCEDURE – application for judicial review of decision by Registrar to refuse to accept interlocutory application for filing in separate proceedings – refusal to accept for filing on basis of applicant’s lack of standing as a non-party to those proceedings – held: decision of Registrar affirmed – held: originating application summarily dismissed pursuant to rr 1.40 and 26.01(1)(a) of Federal Court Rules 2011 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth), s 31A Federal Court Rules 2011 (Cth), rr 1.40, 2.26, 16.21(1)(b), (c), (d), 26.01(1)(a), 39.05(c), (h)
Cases cited:	Mulhern v Bank of Queensland [2015] FCA 44 Mulhern v Bank of Queensland (No 2) [2015] FCA 579 Mulhern v Bank of Queensland Limited(No 3) [2015] FCA 927 Mulhern v Official Receiver [2015] FCA 807
Date of hearing:	22 September 2017
Registry:	New South Wales
Division:	General
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Applicants:	The Applicant appeared in person
Counsel for the Respondent:	The Respondent filed a submitting notice save as to costs

NSD 1469 of 2017
BETWEEN:	RONAN JOSEPH MULHERN Applicant
AND:	DEPUTY DISTRICT REGISTRAR T. MORGAN Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	29 SEPTEMBER 2017