Ninan v Hannigan

Case [2014] FCA 258

FEDERAL COURT OF AUSTRALIA

Ninan v Hannigan [2014] FCA 258

Citation: Ninan v Hannigan [2014] FCA 258
Parties: GEORGE NINAN and MOLLY GEORGE v DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN, FEDERAL COURT OF AUSTRALIA
File number(s): NSD 2331 of 2013
NSD 2351 of 2013
NSD 2428 of 2013
Judge(s): BENNETT J
Date of judgment: 25 March 2014
Catchwords: ADMINSTRATIVE LAW – judicial review – Federal Court Rules  2.26 and 36.02 – whether Deputy District Registrar properly exercised power to refuse to accept documents for filing  
Legislation: Federal Court Rules 2011(Cth) rr 2.26, 36.02
Cases cited: Connelly v Director of Public Prosecutions [1964] A.C. 1254
Jago v District Court (NSW) (1989) 168 CLR 23
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Ninan v St George Bank Ltd [2012] FCA 905
Ninan v St George Bank Ltd (No 2) [2013] FCA 273
Ninan v St George Bank Ltd [2013] FCA 818
Ninan v Valuer- General of Western Australia [2013] FCA 789
Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180
Walton v Gardiner (1993) 177 CLR 378
Date of hearing: Heard on the papers
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicants: The Applicants appeared in person
Counsel for the Respondent: The Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2331 of 2013
BETWEEN:

GEORGE NINAN
First Applicant

MOLLY GEORGE
Second Applicant
AND:

DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN
FEDERAL COURT OF AUSTRALIA
Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

25 MARCH 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for review of the Registrar’s decision dated 4 November 2013 be refused.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2351 of 2013
BETWEEN:

GEORGE NINAN
First Applicant

MOLLY GEORGE
Second Applicant
AND:

DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN
FEDERAL COURT OF AUSTRALIA
Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

25 MARCH 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for review of the Registrar’s decision dated 17 November 2013 be refused.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2428 of 2013
BETWEEN:

GEORGE NINAN
First Applicant

MOLLY GEORGE
Second Applicant
AND:

DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN
FEDERAL COURT OF AUSTRALIA
Respondent

JUDGE:

BENNETT J

DATE OF ORDER:

25 MARCH 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for review of the Registrar’s decision dated 17 November 2013 be refused.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 2331 of 2013
BETWEEN:

GEORGE NINAN
First Applicant

MOLLY GEORGE
Second Applicant
AND:

DEPUTY DISTRICT REGISTRAR PADDY…

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Ninan v Hannigan [2014] FCA 258
Case
[2014] FCA 258
Decision Date

CaseChat Overview and Summary

The applicants, who had been unsuccessful in obtaining security for costs in the Federal Court, filed three originating processes seeking review of the Registrar’s decisions regarding their ability to appeal. The respondents, including the City of Mandurah and St George Bank Ltd, sought summary dismissal or security for costs in the new proceedings. The primary legal issues involved whether the applicants were entitled to appeal the orders for security for costs and whether the Registrar’s advice could be relied upon. The court held that the applicants did not have the right to appeal the security for costs orders under the Federal Court Rules, as the relevant rules pertained to interlocutory judgments and judgments set aside or varied after entry, neither of which applied. The court also found that the Registrar’s advice, which suggested the applicants could appeal if unsuccessful in varying the order, was incorrect as it was not possible to pursue both an interlocutory application and an appeal simultaneously. The applicants' arguments based on reliance on the Registrar’s advice were therefore unsuccessful.

The court dismissed the applicants’ claims, affirming that the Registrar’s advice was not binding and did not confer any rights on the applicants. The applicants had not demonstrated any entitlement under the Rules to file the documents in question, and the advice given by the Registrar did not alter this outcome. The court also noted that the applicants' failure to comply with the orders for security for costs had resulted in the dismissal of their previous proceedings, and there were no grounds to overturn the security orders. Consequently, the applicants' applications for review were denied, and their attempts to appeal the security for costs orders were rejected.

Orders

Orders of the court

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Background

Background to the litigation

The applicants have filed three originating processes seeking review of each of the Registrar’s decisions.BACKGROUNDPrimary Proceeding On 18 May 2012, the applicants commenced proceedings by way of originating application seeking various forms of declaratory relief and exemplary damages in excess of 33 billion dollars against the 10 named respondents (Primary Proceeding). I refer to and rely upon the detailed background to the matter as set out in paragraphs [4] – [22] of Edmond J’s decision of Ninan v St George Bank Ltd [2013] FCA 818. For ease of reference, I set out below those facts relevant to the present determination. For consistency, I also adopt the definitions used by Edmonds J. Shortly after the Primary Proceeding was commenced, the respondents (other than the first and third respondents, one of which had been deregistered and the other placed into administration) filed interlocutory applications seeking security for costs from the applicants. The relevant respondents’ applications were heard on 21 August 2012 and judgment handed down by Griffiths J on 23 August 2012. Each of the respondents succeeded and the applicants were ordered to provide security for costs in the amount of $148,830 by 31 December 2012 (Ninan v St George Bank Ltd [2012] FCA 905) (Security Judgment). I note that the identity of the first respondent, St George Bank Ltd, is relevant to the present determination, as discussed below at [8] and [17]. The applicants failed to provide security and instead filed an interlocutory application seeking to vary the order for security for costs. The application was initially filed on 20 December 2012 but was the subject of a number of amendments by the applicants. The final iteration was not filed until 7 February 2013. In turn, the respondents filed applications seeking to have the Primary Proceeding dismissed on the basis of the applicants’ failure to provide security for costs. On 28 March 2013, Griffiths J dismissed the applicants’ interlocutory application and the Primary Proceeding against the respondents, with costs (Ninan v St George Bank Ltd (No 2) [2013] FCA 273) (Dismissal Judgment). The applicants sought leave to appeal from the whole of the Dismissal Judgment. Leave was refused by Edmonds J (Ninan v St George Bank Ltd [2013] FCA 818).New Proceedings Between 30 April and 17 June 2013, the applicants filed four further sets of proceedings against some of the existing respondents to the Primary Proceeding, including St George Bank Ltd, together with an additional proceeding, filed on 21 June 2013, against a new respondent, the City of Mandurah (together, the New Proceedings). The respondents to the New Proceedings sought orders for summary dismissal or, in the alternative, security for costs. The New Proceedings appeared to arise from the same claims and grievances upon which the Primary Proceeding had been based ([2013] FCA 789 at [9] per Buchanan J). Given the similarity between the Primary and New Proceedings, Buchanan J considered there to be a clear case for an order for security for costs, on the basis of the reasons previously expressed by Griffiths J in the Security Judgment ([2013] FCA 789 at [24] per Buchanan J). The applicants were directed to provide security for costs in the New Proceedings, to be lodged by 4pm AEST, Friday 30 August 2013. The orders provided that, in the event that security for costs was not lodged by this time, the New Proceedings would stand dismissed without further order (Ninan v Valuer- General of Western Australia [2013] FCA 789). Justice Buchanan further ordered that (at [27]):If the proceedings are dismissed as a consequence of a failure to provide security for costs, no further originating application is to be filed by the applicants or accepted by any Registry of the Court from the applicants or any one of them which names a respondent to any of the proceedings as a party, without the leave of the Court being given.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicants filed extensive documentation in support of each of the applications, including detailed Originating Applications, Statements of Claim and affidavits in support. The applicants also filed written submissions in support of their applications. I have considered all the documents filed by the applicants, each of which contains substantial duplication. Given the extent of the duplication, my consideration centres on the key submissions that emerge, taking account of all of the matters raised.First Decision As to the First Decision, the essence of the applicants’ argument can be distilled as follows:·The Rules allow the application seeking leave to appeal the Security Judgment.·The applicants received advice from a Registrar of this Court and are entitled to rely on this advice.·The Security Judgment ought to be overturned. Turning to the first of the applicants’ claims, the applicants rely on Rules 35.1 and 39.05(c) in support. Rule 35.1 deals with oral applications for leave to appeal from interlocutory judgments of the Court at the time the judgment is delivered. Rule 39.05(c) deals with judgments being set aside or varied after they have been entered. These Rules have no application in the present case. The applicants have not established that they are entitled under the Rules to file the documents the subject of the First Decision. In respect of the second limb of the applicants’ argument, the applicants place strong reliance on an email received from a Registrar of the Court purportedly advising them that they would be entitled to apply for leave to appeal the Security Judgment in the event that the applicants were unsuccessful in varying the terms of the order. The email to which the applicants refer is part of a chain of correspondence between the Registrar and Mr Ninan which is annexed to an affidavit sworn by Mr Ninan on 29 August 2013. However, from the portion which has been included, it seems that on 12 December 2012, the applicants sought to file both an interlocutory application to vary the orders of the Security Judgment and also sought an extension of time for leave to appeal from those same orders. Later that day the Registrar advised the applicants that:You have sent both an Interlocutory application (which, if accepted, will relist the proceeding before Justice Griffith [sic]) and an Application for an extension of time (which, if accepted, will be listed before another Judge in relation to a possible appeal). Either you are seeking to have the Orders of 23 August 2012 varied or you are seeking to appeal the Orders. However, you cannot do both.If you are seeking to have the Orders of 23 August 2012 varied, please file an interlocutory application (form 35) and an Affidavit in support (form 59).If you are seeking to appeal the Orders, please file an Aplication [sic] for extension of time and leave to appeal (Form 118) together with the five documents referred to in rule 35.14(3) of the Federal Court Rules 2011.

Ratio Decidendi

Legal Principle Established

The applicants have filed three applications seeking review of the First, Second and Third Decisions.CONSIDERATION The applicants filed extensive documentation in support of each of the applications, including detailed Originating Applications, Statements of Claim and affidavits in support. The applicants also filed written submissions in support of their applications. I have considered all the documents filed by the applicants, each of which contains substantial duplication. Given the extent of the duplication, my consideration centres on the key submissions that emerge, taking account of all of the matters raised.First Decision As to the First Decision, the essence of the applicants’ argument can be distilled as follows:·The Rules allow the application seeking leave to appeal the Security Judgment.·The applicants received advice from a Registrar of this Court and are entitled to rely on this advice.·The Security Judgment ought to be overturned. Turning to the first of the applicants’ claims, the applicants rely on Rules 35.1 and 39.05(c) in support. Rule 35.1 deals with oral applications for leave to appeal from interlocutory judgments of the Court at the time the judgment is delivered. Rule 39.05(c) deals with judgments being set aside or varied after they have been entered. These Rules have no application in the present case. The applicants have not established that they are entitled under the Rules to file the documents the subject of the First Decision. In respect of the second limb of the applicants’ argument, the applicants place strong reliance on an email received from a Registrar of the Court purportedly advising them that they would be entitled to apply for leave to appeal the Security Judgment in the event that the applicants were unsuccessful in varying the terms of the order. The email to which the applicants refer is part of a chain of correspondence between the Registrar and Mr Ninan which is annexed to an affidavit sworn by Mr Ninan on 29 August 2013. However, from the portion which has been included, it seems that on 12 December 2012, the applicants sought to file both an interlocutory application to vary the orders of the Security Judgment and also sought an extension of time for leave to appeal from those same orders. Later that day the Registrar advised the applicants that:You have sent both an Interlocutory application (which, if accepted, will relist the proceeding before Justice Griffith [sic]) and an Application for an extension of time (which, if accepted, will be listed before another Judge in relation to a possible appeal). Either you are seeking to have the Orders of 23 August 2012 varied or you are seeking to appeal the Orders. However, you cannot do both.If you are seeking to have the Orders of 23 August 2012 varied, please file an interlocutory application (form 35) and an Affidavit in support (form 59).If you are seeking to appeal the Orders, please file an Aplication [sic] for extension of time and leave to appeal (Form 118) together with the five documents referred to in rule 35.14(3) of the Federal Court Rules 2011.