ADMINISTRATIVE LAW – application for judicial review of a decision of the primary judge dismissing an application for review of a decision of the Registrar to refuse to accept documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) – whether the primary judge erred in finding that the Court could not grant prerogative relief against itself applying Bird v Free (1994) 126 ALR 475 – whether the primary judge erred in concluding that a breach of the rules of natural justice had not occurred – no grounds made out – appeal dismissed
[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
Nyoni v Bird [2022] FCAFC 61
Case
[2022] FCAFC 61
Decision Date
CaseChat Overview and Summary
The case of Nyoni v Bird involves a challenge by the appellant, Mr Nyoni, against the decision of Registrar Bird, who refused to accept for filing a proposed application. The case was appealed to the Federal Court of Australia, where the primary judge dismissed Mr Nyoni's application for judicial review. Mr Nyoni appealed this decision to the High Court. The central issue before the Court was whether the primary judge was correct in finding that the Federal Court could not grant prerogative relief against itself, as per the decision in Bird v Free, and whether the primary judge erred in concluding that a breach of the rules of natural justice had not occurred. Mr Nyoni argued that the primary judge erred in following Bird v Free and in concluding that there was no breach of procedural fairness.
The Court found that the primary judge was correct in his findings. The Court noted that the historical origins of the prerogative writs, as well as hundreds of years of case law, indicated that the writs were confined to inferior courts and authorities. The Court also found that the primary judge was correct in concluding that the Federal Court was not obliged to receive and consider submissions before deciding not to accept the application for filing. The Court held that even if the Registrar was incorrect in concluding that the application was an abuse of process, it would be futile to set aside the decision of the Registrar as it is doomed to fail, as ultimately Mr Nyoni seeks to quash the decisions of certain judges where there is no jurisdiction to do so.
Based on the Court's reasoning, the appeal was dismissed. The Court found that Mr Nyoni's arguments were contrary to the historical origins of the prerogative writs and the case law that binds the Court. The Court also found that the primary judge was correct in concluding that the Federal Court could not grant prerogative relief against itself and that there was no breach of procedural fairness. The appeal was dismissed, and the decision of the primary judge was upheld.
Orders
Orders of the court
1. The appeal is dismissed.
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
Full text does not contain this section.
Decision
Reasons for decision
As I have observed, on 26 March 2020, Registrar Bird refused to accept for filing the February 2020 proposed application and it is that decision which was the subject of the originating application to the primary judge and which is now before us on appeal.THE DECISION OF THE PRIMARY JUDGE The primary judge commenced by correctly acknowledging that a decision by a registrar pursuant to r 2.26 is of an administrative character and is susceptible to judicial review; Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222; [2010] FCAFC 47 per Marshall, Cowdroy and Buchannan JJ. His Honour summarised the argument of Mr Nyoni to the effect that the February 2020 proposed application was not, on its face, an abuse of process for the reason that it is “regular in form” and “contains intelligible grounds of review”: PJ [19]. Thus (in accordance with the argument) the decision of Registrar Bird to the contrary in substance deprived Mr Nyoni of his “right to be heard” upon the contentions that he sought to make out pursuant to it: PJ [20]. The primary judge rejected that submission for two reasons. One, the February 2020 proposed application did amount to an abuse of process and the other, that the Registrar was not bound to give Mr Nyoni the opportunity to make submissions before deciding to exercise the power conferred by r 2.26: Somasundaram v Luxton [2020] FCA 1076 at [41] per Murphy J. Dealing next with the argument that neither the January or February proposed applications amounted to an abuse of process, the primary judge was unpersuaded by the submission that this Court has jurisdiction to judicially review its own decisions for the reasons given by Drummond J in Bird v Free (1994) 126 ALR 475 (Bird v Free), which his Honour followed and applied. As to the final ground, which his Honour understood to be a contention that Registrar Hird had improperly exercised her power in that she purported to do so at the behest or direction of another, being one or more present or former justices of this Court, he reasoned that the contention “…is plainly without foundation and, to the extent that it was put, it must fail”: PJ [41].SUBMISSIONS UPON THE APPEAL In support of his grounds of appeal, and in summary, Mr Nyoni advanced two arguments. First, that the primary judge was wrong to conclude that this Court does not have jurisdiction to judicially review its own decisions and was therefore wrong to follow the decision in Bird v Free. Secondly, that Registrar Bird did not “honestly and actually” reach a state of satisfaction that the February 2020 proposed application was an abuse of process with the consequence that he was denied procedural fairness. The gravamen of that complaint would appear to be that the consequence of the decision made by Registrar Bird is to deprive Mr Nyoni of his ability to argue the merit of the January and February 2020 proposed applications. Ms Moir, in summary, framed her submissions as follows. The primary judge was correct to conclude that it is not open to this Court to judicially review itself and the reasoning in Bird v Free is sound. He was also correct to find that there was no breach of the rules of procedural fairness; in particular, the Registrar was not obliged to receive and consider submissions before deciding not to accept the application for filing. Although it may be that the Registrar was incorrect to conclude that the application was an abuse of process because it did not disclose a cause of action against all of the respondents, it would be futile to set aside the decision of the Registrar in that it is doomed to fail as ultimately Mr Nyoni seeks to quash the decisions of Katzmann, Flick and Banks-Smith JJ where manifestly there is no jurisdiction to do so.
Ratio Decidendi
Legal Principle Established
For the reasons that follow, each submission of Ms Moir is correct and the appeal must be dismissed.CONSIDERATION The first argument of Mr Nyoni is contrary to the historical origins of the prerogative writs, hundreds of years of case law and authority that binds this Court. The history of the prerogative writs is traced by Professor SA de Smith in two prominent articles and is summarised in his eponymous work: SA de Smith, The Prerogative Writs (1951) 11 CLJ 40; SA de Smith, Wrongs and Remedies in Administrative Law (1952) 15 MLR 189 and De Smith’s Judicial Review (8th ed, Sweet and Maxwell, 2018) at [15-001]–[15-027]. What is clear is that from the earliest origins, the writs were confined to inferior courts and authorities. Thus, Professor de Smith writing in 1952 in the second of the articles just mentioned said at p 191:From the last years of Henry III’s reign until the end of the sixteenth century writs of certiorari issued for a great variety of purposes. From 1600 onward we find reports of cases in which certiorari issued for a purpose relevant to the present inquiry: the King’s Bench awarded certiorari to quash convictions made by justices out of sessions. Gradually it became settled that to move the Kings Bench for a certiorari was the appropriate method of attacking orders and convictions by inferior courts for irregularity or want of jurisdiction, and by 1700, Holt CJ was able to generalise in the broadest terms: “It is a consequence of all jurisdictions to have their proceedings returned here by certiorari…. Where any court is erected by statute, a certiorari lies to it. (citations omitted.) The reference to Holt CJ is Groenvelt v Burwell (1700) 1 Ld Raym 454 at 469; 91 ER 1202 at 1212. He made the same point in his 1951 article: The Prerogative Writs, at p 53:Certiorari was historically linked with the King’s person as well as the King’s Bench; it was of high importance for the control of inferior tribunals, particularly with respect to the administration of criminal justice; it was a writ of course for the King but not for the subject. Lord Mansfield CJ is generally understood to be the first judge to classify and group the various writs in R v Cowle (1759) 2 Burr 834 at 855–856; 97 ER 587 at 599–600, which concerned an order nisi directed to the corporation-justices of Berwick to remove and quash an indictment for assault. On showing cause it was argued that the court lacked jurisdiction over Berwick, where the proceeding was according to the former laws of Scotland, not England. Ultimately the order nisi was discharged on discretionary, not jurisdictional, grounds. Lord Mansfield said:Writs, not ministerially directed, (sometimes called prerogative writs, because they are supposed to issue on the part of the King,) such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution given to Berwick: upon a proper case, they may issue to every dominion of the Crown of England. There is no doubt as to the power of this Court; where the place is under the subjection of the Crown of England; the only question is, as to the propriety.