PRACTICE AND PROCEDURE - appeal - whether exercise of power by Registrar of the Federal Court of Australia to refuse documents for filing an administrative decision - whether decision reviewable under s 35A(5) of theFederal Court Act 1976 (Cth) - consideration of exercise of administrative and judicial decisions by a Registrar - whether primary judge conducted a review of the decision under s 5 of the Administrative Decisions (Judicial Review Act) 1977 (Cth)
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
51
Counsel for the Appellant:
The Appellant did not appear
Counsel for the Respondent:
The Respondents did not appear
ORDERS
WAD 648 of 2017
BETWEEN:
EMSON NYONI
Appellant
AND:
JILLIAN MURPHY & ORS
Respondent
JUDGES:
BARKER, BANKS-SMITH AND COLVIN JJ
DATE OF ORDER:
25 MAY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.No order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
This appeal concerns the refusal by a Registrar of this Court to accept certain documents for filing. The respondents indicated that they submit to the outcome of the appeal and did not wish to be heard.
The appellant, Mr Nyoni, did not appear at the hearing of the appeal. He had foreshadowed in communications with…
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.
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AGLC
Nyoni v Murphy [2018] FCAFC 75
Case
[2018] FCAFC 75
Decision Date
CaseChat Overview and Summary
The Federal Court of Australia considered an appeal by Nyoni against the decision of Barker J, who had dismissed an application by Nyoni to set aside a judgment and orders. The appeal involved the refusal by the Registrar of the Federal Court to accept documents for filing an interlocutory application, which was deemed frivolous or vexatious under r 2.26 of the Federal Court Rules 2011 (Cth). The primary issue was whether the Registrar's decision was reviewable under s 35A(5) of the Federal Court Act 1976 (Cth) and if it was subject to judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court found that the Registrar's decision was administrative in nature and not judicial, and therefore, it was not subject to judicial review under the ADJR Act. The Court concluded that the Registrar's power to refuse documents for filing was not a 'power of the Court' under s 35A and was of an administrative character.
The Court further reasoned that the Registrar's decision was made in accordance with the rules of court, which are designed to maintain the efficient operation of the registry and the administration of justice. The Court held that the Registrar's decision did not follow any judicial direction, and there was no evidence to suggest it was based on anything other than the documents. The Court found that the Registrar's decision was not a judicial one but rather an administrative decision that did not require judicial review. The Court also noted that the purpose of a rule such as r 2.26 was to assist the Registrar in maintaining the efficient operation of a registry.
The Court dismissed the appeal and made no order as to costs. The decision underscored the distinction between administrative decisions and judicial decisions and the limited scope of judicial review in cases involving administrative decisions made by a Registrar. The Court's reasoning highlighted the importance of procedural rules in maintaining the administration of justice and the efficient operation of the court system.
Orders
Orders of the court
1. The appeal is dismissed.
2. 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
In the circumstances, rather than dismiss the appeal summarily, we have chosen to determine it and accordingly deliver these reasons.Background The parties have been involved in ongoing litigation since 2010. In 2015, the respondents caused a bankruptcy notice to issue to Mr Nyoni. The debt referred to in the bankruptcy notice comprised the respondents' entitlement to costs in an amount exceeding some $80,000 under various costs orders. On 17 February 2017 a judge of the Federal Circuit Court of Australia made a sequestration order against the estate of Mr Nyoni based on his non-compliance with the bankruptcy notice. His Honour delivered detailed reasons: see Murphy & Ors v Nyoni [2017] FCCA 143. On 27 April 2017 Mr Nyoni sought an extension of time to appeal the orders of the Federal Circuit Court to this Court. The application was heard by Barker J on 18 July 2017. On 16 August 2017 Barker J dismissed the application, having formed the view that the reasons for decision of the primary judge did not reveal any error: Nyoni v Murphy [2017] FCA 941. On 24 August 2017 Mr Nyoni sought to file in this Court an interlocutory application and supporting affidavit seeking, amongst other things, that the judgment and orders of Barker J be 'set aside' pursuant to r 39.05(c), (e), (g) and (h) of the Federal Court Rules 2011 (Cth). We will refer to those rules as the 2011 Rules, as the Federal Court Rules as at 1979 are also referred to below. Rule 39.05 of the 2011 Rules provides as follows:The Court may vary or set aside a judgment or order after it has been entered if:(a) it was made in the absence of a party; or(b) it was obtained by fraud; or(c) it is interlocutory; or(d) it is an injunction or for the appointment of a receiver; or(e) it does not reflect the intention of the Court; or(f) the party in whose favour it was made consents; or(g) there is a clerical mistake in a judgment or order; or(h)there is an error arising in a judgment or order from an accidental slip or omission. By the proposed application, in addition to seeking to have Barker J's judgment and orders set aside, Mr Nyoni also sought to have 'the proceedings listed de novo before a different judge' and an order that Barker J be recused from the proceedings. The affidavit filed in support of the proposed application addressed the refusal by Barker J of Mr Nyoni's application filed 3 July 2017 that he recuse himself. Justice Barker had heard that application and refused it on 18 July 2017 before then proceeding with the hearing of the extension application. In the proposed affidavit Mr Nyoni also contested certain factual findings in the reasons published by Barker J. By letter dated 24 August 2017 the Registrar wrote to Mr Nyoni informing him that she was rejecting the documents for filing under r 2.26 of the 2011 Rules. That rule provides: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.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Ground 6 contends that the primary judge failed to assess any of the review grounds under s 5 of the ADJR Act.Consideration - Ground 5 The primary judge's analysis of the authorities referred to above was accurate and in our view his Honour was right to follow and apply the Full Court's decision in Satchithanantham. First, the power exercised is not a 'power of the Court' under s 35A. None of the powers listed in s 35A refer to the power to refuse documents for filing. Second, the Registrar's decision in this case was a decision of an administrative nature. The decision did not follow any direction made by a judge (and accordingly we have not addressed such a scenario). There is no evidence to suggest the Registrar formed her opinion based on anything other than the documents. The Registrar's letter states that she is satisfied 'on the face of the documents' that they are frivolous or vexatious. We concur with the view of the Full Court in Satchithanantham (at [49]) that such a decision of the Registrar is one which is administrative in nature and not of a judicial character. There is no reason to distinguish the power exercised under O 46 r 7A of the 1979 Rules as considered in Satchithanantham from that exercised by the Registrar under r 2.26 of the 2011 Rules. We concur with the primary judge's conclusion in that regard (and see Rahman v Hedge [2012] FCA 68 at [5] where Perram J considered the two provisions were substantially the same). The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15]. It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend. Procedural law deals with the means and instruments by which courts regulate the conduct and relations of courts and litigants in respect of the litigation itself: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176. Compliance with rules as to practice and procedure is usually adjudicated rather than dealt with administratively. However, some aspects of procedural law are carried into effect administratively without any judicial determination. Subject to provisions within the Federal Court Act with respect to practice and procedure, the practice and procedure of this Court shall be in accordance with Rules of Court: s 38 of the Federal Court Act. In particular, the Rules of Court may make provision for or in relation to the practice and procedure to be followed in Registries of the Court (that is, by Registrars in dealing with those aspects of procedure that are to be dealt with administratively): s 59(1) of the Federal Court Act. The Rules of Court have the force of law as rules of practice and procedure: TK v Australian Red Cross Society (1989) 1 WAR 335, 340. They deal with the means by which substantive rights may be enforced in the conduct of court business and may not go so far as to make, alter or remove substantive rights: Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324-325, 341-342.