Nyoni v Bird

Case [2021] FCA 959

FEDERAL COURT OF AUSTRALIA

Nyoni v Bird [2021] FCA 959  

File number: VID 300 of 2020
Judgment of: SNADEN J
Date of judgment: 17 August 2021
Catchwords: ADMINISTRATIVE LAW – judicial review – Federal Court Rules r 2.26 – whether registrar erred by refusing to accept for filing an originating application – whether application an abuse of process – whether court has jurisdiction to review or grant prerogative relief in respect of its own decisions – originating application an abuse of process – registrar did not err – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules 2011 (Cth) r 2.26

Cases cited:

Bird v Free (1994) 126 ALR 475

Kostov v Australian Financial Security Authority [2020] FCA 1105

Rahman v Hedge [2012] FCA 68

R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437

Re Jarman; Ex parte Cook (No 1) (1997) 188 CLR 595

Reaper v Luxton [2015] FCA 430

Satchithanantham v National Australia Bank Ltd (2010) 268 ALR 222

Somasundaram v Luxton [2020] FCA 1076
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 44
Date of hearing: 2 February 2021
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: The respondent filed a submitting notice, save as to costs
Amicus Curiae:   Ms J Moir

ORDERS

VID 300 of 2020
BETWEEN:

EMSON NYONI

Applicant
AND:

REGISTRAR BIRD

Respondent

MS J MOIR (AMICUS CURIAE)

Contradictor

ORDER MADE BY:

SNADEN J

DATE OF ORDER:

17 AUGUST 2021

THE COURT ORDERS THAT:

1.The application be dismissed.

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


REASONS FOR JUDGMENT

SNADEN J:

  1. Before the court is an application for judicial review of—and for prerogative relief directed to—a decision of a registrar not to accept for filing an application that the applicant, Mr Nyoni, sought to commence in this court. The application is brought pursuant to s 39B of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”).

  2. The application that Mr Nyoni sought to commence was itself an application for judicial review and prerogative relief in respect of a separate decision of a different registrar not to accept for filing a third application.

  3. By that (third) proposed application, Mr Nyoni sought to have various orders made by judges of this court reviewed and/or set aside.

  4. Although it is only the ultimate decision of the respondent registrar to which the present application relates, the decisions made by each registrar are based on equivalent reasoning: namely that the applications that Mr Nyoni proposed to commence each constituted an abuse of process and, therefore, fell within the contemplation of (and could be refused pursuant to) r 2.26 of the Federal Court Rules 2011 (the “Rules”).

  5. Mr Nyoni seeks…

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Details
AGLC
Nyoni v Bird [2021] FCA 959
Case
[2021] FCA 959
Decision Date

CaseChat Overview and Summary

The matter before the Court was an application by Mr Nyoni for judicial review of a decision by Registrar Bird to refuse to accept for filing a February Originating Application. The February Originating Application was a challenge to a prior decision by Registrar Hird to refuse to accept for filing a January Originating Application, which sought judicial review of decisions of certain judges of the Federal Court. The core dispute was whether the registrars’ decisions constituted an abuse of process and whether the Court had jurisdiction to review or grant prerogative relief in respect of its own decisions.

The legal issues before the Court were whether the registrars’ decisions to refuse to accept for filing the originating applications were an abuse of process and whether the Court had jurisdiction to review the registrars’ decisions. The Court had to consider whether the applications disclosed a cause of action against all respondents and whether the Court could order itself to do or not do an act or thing.

The Court found that there was no improper exercise of power by the registrars. The applications sought judicial review of decisions of the Court, which the Court cannot review or grant prerogative relief against itself. The applications did not disclose a cause of action against all respondents and were therefore an abuse of process. As such, the registrars were entitled to exercise their discretion to refuse to accept the applications for filing. The Court had no jurisdiction to review the registrars’ decisions.

The Court dismissed the application. It held that the January Originating Application was an abuse of process as it sought judicial review of decisions of the Court. The February Originating Application was also an abuse of process as it did not have any realistic prospect of success. The registrars’ decisions were not the product of error and were not reviewable. The Court had no jurisdiction to grant the relief sought by Mr Nyoni.

Orders

Orders of the court

1. The application be dismissed.

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

Background

Background to the litigation

Mr Nyoni seeks to have the respondent’s decision quashed (as well as other, related forms of relief). For the reasons that follow, the application will be dismissed.BACKGROUND AND EVIDENCE Mr Nyoni read three affidavits, each sworn by him on 23 April 2020, 25 July 2020 and 27 January 2021, respectively. The present application has its genesis in other proceedings, the nature and particulars of which needn’t be traversed. It suffices to record that, within those actions, other judges of this court have made orders by which Mr Nyoni is aggrieved. Mr Nyoni seeks to challenge those orders; and, to that end, filed (or sought to file) an application for judicial review and prerogative relief dated 28 January 2020 (the “January Originating Application”). The January Originating Application named eighteen respondents, including six judges of this court. On 31 January 2020, a registrar of this court, Registrar Hird, refused to accept the January Originating Application and other documents that Mr Nyoni sought to file in support of it. By letter dated 31 January 2020, Registrar Hird wrote to Mr Nyoni as follows:In the documents, you name a number of respondents including current Federal Court Judges, various Government Departments of Western Australia, a trustee, and various individuals. From my perusal of the documents, you appear to seek various forms of relief, including “orders quashing the decision” of Justices Flick, Katzmann and Banks-Smith.After considering the documents, I have refused to accept them for filing pursuant to s 2.26 of the Federal Court Rules 2011, on the basis that I am satisfied that they constitute an abuse of process for the following reason:•The documents do not disclose a cause of action against all respondents; and •The matter is foredoomed to failed [sic] as the Court (constituted by a Judge) cannot order that the Court (constituted by a Judge) do or not do an act or thing. On 27 February 2020, Mr Nyoni sought to file an originating application for judicial review of Registrar Hird’s decision to refuse to accept for filing the January Originating Application (the “February Originating Application”). The February Originating Application named Registrar Hird as a respondent, together with the eighteen respondents named in the January Originating Application. On 26 March 2020, the respondent, Registrar Bird, refused to accept for filing the February Originating Application. By letter dated 26 March 2020, Registrar Bird advised Mr Nyoni as follows:After considering the document, I have refused to accept the documents for filing pursuant to s 2.26 of the Federal Court Rules, as I am satisfied that it constitutes an abuse of process on the basis that the documents do not disclose a cause of action against all of the respondents named in the application. On 6 May 2020, Mr Nyoni filed an originating application for judicial review of the decision of Registrar Bird to refuse to accept for filing the February Originating Application. It is to that application that this judgment relates.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J
There was no improper exercise of power by Registrar Bird (or, for that matter, Registrar Hird). None of the situations described in s 5(2) of the ADJR Act is applicable to Registrar Bird’s decision. For the reasons set out earlier in this judgment, the applications that Mr Nyoni sought to file comfortably qualified as abuses of process. Accordingly, Registrar Bird was entitled to exercise her discretion to refuse to accept for filing the February Originating Application in accordance with r 2.26 of the Rules. There being no improper exercise of power by Registrar Bird, it follows that ground three is not established. CONCLUSION The January Originating Application sought judicial review of various decisions of judges of this court. There is clear and binding authority to the effect that this court cannot grant prerogative relief against itself. The January Originating Application was an abuse of process and Registrar Hird did not err by refusing to accept it for filing. The February Originating Application was equally without foundation. It did not have any realistic prospect of establishing any reviewable error on the part of Registrar Hird. It, too, was an abuse of process, as the respondent correctly concluded. It follows that neither decision was the product of error, discretionary or otherwise. Neither is of a kind in respect of which this court should grant the relief that Mr Nyoni seeks. The application will, therefore, be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: MS J

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