Nyoni v Cho

Case [2019] FCA 560

FEDERAL COURT OF AUSTRALIA

Nyoni v Cho [2019] FCA 560

File numbers: NSD 35 of 2019
NSD 168 of 2019
Judge: GRIFFITHS J
Date of judgment: 24 April 2019
Catchwords: ADMINISTRATIVE LAW – applications under s 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for judicial review of decisions by Registrars to reject for filing originating processes seeking judicial review of conduct of a Judge of the Federal Court of Australia – where the proposed originating processes were obviously untenable as the impugned conduct was not conduct relating to a decision of an administrative character made under an enactment – applications dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Federal Court Rules 2011 (Cth) rr 2.26, 39.05

Federal Court of Australia Act 1976 (Cth) s 35A
Cases cited:

Bird v Registrar, Federal Court of Australia [2016] FCA 21

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353

Buck v Bavone 135 CLR 110

Huddart, Parker and Co Pty Ltd v Moorehead (1909) 8 CLR 330

McDonald v Federal Court of Australia [2017] FCA 1216

Murphy v Nyoni [2017] FCCA 143

Nyoni v Murphy (No 2) [2017] FCA 1479

Nyoni v Murphy [2017] FCA 941

Nyoni v Murphy [2018] FCAFC 75

Nyoni v Pharmacy Board of Australia (No 2) [2019] FCA 225

Nyoni v Pharmacy Board of Australia (No 6) [2018] FCA 526

Nyoni v Shire of Kellerberrin (No 7) [2016] FCA 135

Nyoni v Shire of Kellerberrin (No 8) [2016] FCA 245

Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576

Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477

Nyoni v Shire of Kellerberrin (No 3) [2013] FCA 1090

Nyoni v Shire of Kellerberrin (No 4) [2014] FCA 22

Nyoni v Shire of Kellerberrin (No 5) [2014] FCA 204

Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294

Nyoni v Shire of Kellerberrin (No 9) [2016] FCA 472

Nyoni v Shire of Kellerberrin [2011] FCA 1299

Nyoni v Shire of Kellerberrin [2017] FCAFC 59; 248 FCR 311

Rahman v Hedge [2012] FCA 68

Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222

Shire of Kellerberrin v Nyoni [2018] HCA Trans 27

SZQYP v Hannigan [2012] FCA 723
Date of hearing: 15 April 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 57
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent in NSD35/2019: The respondent filed a submitting appearance.
Counsel for the Respondent in NSD168/2019: The respondent filed a submitting appearance
Amici curiae (contradictors) Ms S Kaur-Bains with Ms C Trahanas

ORDERS

NSD 35 of 2019
BETWEEN:

EMSON NYONI

Applicant
AND:

REGISTRAR CHO

Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

24 APRIL 2019

THE COURT ORDERS THAT:

1.The interlocutory application filed on 24 April 2019 be allowed. 

2.The originating application be dismissed. 

3.There be no…

Continue reading Nyoni v Cho

Sign in free to access the full text

Details
AGLC
Nyoni v Cho [2019] FCA 560
Case
[2019] FCA 560
Decision Date

CaseChat Overview and Summary

The applicant, Nyoni, sought judicial review of decisions by Registrars Cho and Tesereiro to reject for filing originating processes that sought to challenge the conduct of Colvin J in various proceedings in which Nyoni was a party. The application was brought under section 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The primary legal issue before the Court was whether the Registrars' decisions to reject the originating processes were legally sound, particularly in light of the requirement that any decision subject to judicial review under the ADJR Act must relate to a decision of an administrative character made under an enactment. Additionally, the Court had to determine whether the originating processes were frivolous or vexatious as per Rule 2.26 of the Federal Court Rules 2011 (Cth).

The Court found that the impugned conduct concerning Colvin J was not conduct relating to a decision of an administrative character made under an enactment, and thus, it did not fall within the scope of the ADJR Act's jurisdiction. The Court emphasized that judicial review under the ADJR Act is limited to administrative decisions, and the actions of a Judge performing judicial functions do not constitute administrative decisions. Furthermore, the Court held that the originating processes were frivolous or vexatious, as they were obviously untenable and doomed to fail. The Court also noted that the applicant's repeated attempts to file similar documents constituted an abuse of the Court’s process.

Based on the above findings, the Court dismissed both judicial review applications. The Court did not make any order as to costs. The Court's reasoning was grounded in the jurisdictional limits of the ADJR Act and the well-established principles regarding the nature of administrative decisions and the criteria for determining frivolous or vexatious applications.

Orders

Orders of the court

1. The interlocutory application filed on 24 April 2019 be allowed.

2. The originating application be dismissed.

3. There be no order as to costs.

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

Background

Background to the litigation

I will outline the background to both proceedings, summarise the evidence and the applicant’s submissions and the submissions of amici curiae and then explain why both proceedings should be dismissed.Summary of background matters(a) Registrar Cho proceeding By an originating application which explicitly relies on s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), the applicant seeks judicial review of a decision dated 24 December 2018 by Registrar Cho. Registrar Cho refused to accept an originating application for filing in the Court in its New South Wales Registry. The rejected originating application purported to be an application brought solely under s 6 of the ADJR Act. In that rejected originating application, the applicant sought judicial review in respect of the conduct and actions of Colvin J in various proceedings in which the applicant is a party. Registrar Cho’s decision to reject the originating application for filing was made under r 2.26 of the Federal Court Rules 2011 (Cth) (2011 FCRs) on the basis that the subject matter of the originating application did not relate to a decision of an administrative character and it failed to set out a tenable cause of action that engaged the Court’s jurisdiction. The applicant challenges Registrar Cho’s decision on multiple judicial review grounds which reflect virtually all the heads of judicial review set out in s 5 of the ADJR Act. There are 12 grounds in all. (b) Registrar Tesereiro proceeding In this proceeding, the applicant seeks judicial review of a decision dated 25 January 2019 by Registrar Tesereiro, who refused to accept for filing in the Court in its New South Wales Registry an originating application which was substantially similar to the one which had been rejected earlier by Registrar Cho. Registrar Tesereiro also refused to accept the document for filing under r 2.26 of the 2011 FCRs. Registrar Tesereiro explained that he had rejected the originating document for filing on the basis that the judicial review which it sought was bound to fail, that the cause of action relied on was misconceived and that the document was frivolous or vexatious. The Registrar also noted that, as a proceeding had already been commenced for judicial review in relation to the originating application the subject of Registrar Cho’s decision, attempting to file the same document again was likely to be an abuse of the Court’s process. The originating application filed on 6 February 2019 in respect of Registrar Tesereiro’s decision raises most of the grounds relied upon in the originating application concerning Registrar Cho’s decision. There are 11 grounds in all, many of which are unparticularised. (c) Involvement of amici curiae Both Registrar Cho and Registrar Tesereiro filed submitting appearances, which meant that there was no contradictor. The Court expresses its gratitude to the Bar Association of New South Wales for arranging to provide amici curiae to assist the Court in both proceedings. (d) Summary of further relevant information concerning the decisions of Registrar Cho and Registrar Tesereiro

Evidence

Evidence Before The Court

The relevant passage in Registrar Tesereiro’s reasons is as follows:It appears that on 24 December 2018, Judicial Registrar Cho rejected a filing of a similar application to that set out in the Document, which you are now seeking judicial review to this Court in NSD 35/2019. I understand that that matter is now docketed and listed before a Judge of this Court. Having considered the Document separately, I am of the view that the judicial review you seek is bound to fail for it misconceives the cause of action arising under the relevant Act you rely upon, and as such, is frivolous and vexatious. I also note that, given you are seeking judicial review of Judicial Registrar Cho's decision set out in NSD 35/ 2019 (sic), this attempt at filing the Document is likely an abuse of the process of the Court. The applicant’s evidence and submissions summarised The applicant relied upon two affidavits sworn by him, both dated 25 February 2019. In one of those affidavits, the applicant described at some length many of the proceedings brought by him in the Court involving the Shire of Kellerberrin, commencing with his application in WAD357/2014 which was filed on 26 November 2014. In the other affidavit, the applicant described many of the proceedings relating to the Pharmacy Board and AHRPA. The applicant relied upon the same outline of submissions in both proceedings. As amici curiae pointed out, those submissions addressed the proposed originating applications which Registrars Cho and Tesereiro respectively refused to accept for filing, as opposed to the originating applications filed by the applicant in respect of the Registrars’ decisions. The originating applications which were not accepted for filing made the following allegations:(a)there was a relationship between Colvin J and counsel for the Pharmacy Board and AHPRA because they had both been members of the same set of barristers’ chambers in Perth;(b)Colvin J was involved in many of the applicant’s proceedings in the Court;(c)Colvin J did not recuse himself (presumably, from the judicial review proceedings in relation to Registrar Benter’s decision and case management of the applicant’s appeal against Barker J’s award of damages); and(d)the respondents in the Pharmacy Board proceedings influenced Colvin J in the Benter proceeding. The applicant represented himself. In the course of the hearing, the Court invited the applicant to make oral submissions in support of his two judicial review applications. He was asked to explain how the ADJR Act applied to the actions or conduct of a Judge of the Federal Court performing judicial functions as part of the exercise of Commonwealth judicial power. In particular, he was asked to address how any such conduct related to a decision of an administrative character made under an enactment so as to attract the jurisdiction of the Court under s 6 of the ADJR Act. The applicant submitted that the matters relating to Colvin J about which he complained were matters of an “administrative character”. He contended that the making of orders or directions as part of case management merely involved administrative steps engaged in for the purpose of preparing cases for judicial determination. He did not explain how conduct arising from Colvin J’s membership of a Full Court in hearing and determining an appeal was a matter of an “administrative character”. The submissions of amici curiae summarised

Decision

Reasons for decision

Both Registrar Cho and Registrar Tesereiro filed submitting appearances, which meant that there was no contradictor. The Court expresses its gratitude to the Bar Association of New South Wales for arranging to provide amici curiae to assist the Court in both proceedings. (d) Summary of further relevant information concerning the decisions of Registrar Cho and Registrar Tesereiro Before summarising the background to these decisions, it is appropriate to note that the applicant has been involved in numerous proceedings in this Court, most of which relate to or stem from a pharmacy which the applicant operated in the Shire of Kellerberrin in Western Australia. The applicant contended that, following several complaints from the general public about the pharmacy, the Chief Executive Officer (CEO) of the Shire wrote to two regulatory authorities and notified them that the electricity supply to the pharmacy had been disconnected, with the intention that they would take steps to close the applicant’s business down. The applicant claimed that the CEO’s conduct was unlawful because it involved inter alia conduct which amounted to misfeasance in public office and was also misleading or deceptive. These proceedings were the subject of five separate interlocutory judgments by Siopis J in the period 14 November 2011 to 6 March 2014 (Nyoni v Shire of Kellerberrin [2011] FCA 1299; Nyoni v Shire of Kellerberrin (No 2) [2012] FCA 1477; Nyoni v Shire of Kellerberrin (No 3) [2013] FCA 1090; Nyoni v Shire of Kellerberrin (No 4) [2014] FCA 22 and the Nyoni v Shire of Kellerberrin (No 5) [2014] FCA 204). On 23 November 2015, Siopis J published his reasons for dismissing the applicant’s substantive claims, except for a trespass claim which involved an electrical contractor who had entered the applicant’s pharmacy to disconnect the electricity (see Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294). On 1 March 2016, Mortimer J dismissed the applicant’s applications to stay an order for costs and to add a new cause of action (see Nyoni v Shire of Kellerberrin (No 7) [2016] FCA 135). On 10 March 2016, her Honour granted the applicant’s application for leave to amend his notice of appeal (Nyoni v Shire of Kellerberrin (No 8) [2016] FCA 245. On 5 May 2016, her Honour dismissed the respondents’ application for security of costs (Nyoni v Shire of Kellerberrin (No 9) [2016] FCA 472). On 13 April 2017, the Full Court, by majority, allowed the applicant’s appeal from Siopis J’s judgment and orders dated 23 November 2015 and held that both the CEO and the Shire had committed the tort of misfeasance in public office (Nyoni v Shire of Kellerberrin [2017] FCAFC 59; 248 FCR 311). The High Court refused an application for special leave to appeal (see Shire of Kellerberrin v Nyoni [2018] HCA Trans 27). Following the remittal to the Court for a determination of damages in respect of the applicant’s successful appeal concerning the tort of misfeasance in public office (and in circumstances where Siopis J was no longer a Judge of the Court), on 19 October 2018 Barker J published his reasons for judgment for awarding the applicant $30,000 in damages (see Nyoni v Shire of Kellerberrin (No 10) [2018] FCA 1576).

Ratio Decidendi

Legal Principle Established

It is unnecessary to summarise those submissions because they are substantially reflected in the reasons below for dismissing both originating applications. Consideration and determination of the applications I will now address the two judicial review applications in relation to the Registrar’s decisions. The Court has jurisdiction under the ADJR Act to review decisions by a Registrar under r 2.26 because such a decision is a decision of an administrative character made under an enactment and is not a decision of a judicial character (see Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222 (Satchithanantham) at [49]-[50]; Murphy FCAFC at [32] and [38] and Bird v Registrar, Federal Court of Australia [2016] FCA 21 at [25] per Collier J). Rule 2.26 of 2011 FCRs provides as follows:A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:(a) on the face of the document; or(b)by reference to any documents already filed or submitted for filing with the document. The power of a Registrar to refuse to accept a document for filing turns on the Registrar’s satisfaction that the document is an abuse of process of the Court or is frivolous or vexatious. That satisfaction must be honestly and actually formed but it is amenable to judicial review, including in an appropriate case under the relevant provisions of the ADJR Act. It is incontestable that judicial review does not extend to a review of the merits of the Registrar’s decision apart from a case where the ground of unreasonableness involves an examination of the outcome of the decision for the limited purpose of that particular judicial review ground. In Rahman v Hedge [2012] FCA 68 at [5]-[6] (Rahman) Perram J held that the Registrar’s “satisfaction” of the particular state of affairs referred to in the predecessor to r 2.26 (i.e. Order 46 r 7A) was amenable to judicial review, including by reference to Gibbs J’s well-known statements in Buck v Bavone 135 CLR 110 at 118-119. I respectfully agree. It is well established that a document is:(a)an abuse of process if “it can clearly be seen to be doomed to fail” (SZQYP v Hannigan [2012] FCA 723 (SZQYP) at [30]; and(b)frivolous or vexatious, if it is “obviously untenable or utterly hopeless” (SZQYP at [30]). The purpose of a Registrar’s power not to accept a document for filing is “to assist the Registrar to maintain efficient operation of the registry and, thereby, the Court” (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; 128 FCR 353 (Bizuneh) at [15], with reference to an earlier similar provision). Referring to the previous r 7A (which not only conferred a power on the Registrar expressed in similar terms to those in r 2.26 but also empowered a Registrar in his or her discretion to “seek a direction of a Judge who may direct him” on the question whether a document should be accepted for filing), the Full Court in Bizuneh said at [17]:17.Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A.