Re Finocchiaro
[2023] NTSC 23
•8 March 2023
CITATION:Re Finocchiaro; Ex parte The Proper Officer [2023] NTSC 23
PARTIES:Re FINOCCHIARO, Salvatore
Ex Parte THE PROPER OFFICER
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-00541-SC
DELIVERED: 8 March 2023
HEARING DATE: On the papers
JUDGMENT OF: Huntingford A/AsJ
CATCHWORDS:
PRACTICE AND PROCEDURE – refusal by Proper Officer to seal originating process – whether issuing proceeding would be an abuse of process – refusal to direct Proper Officer to seal - proceedings without merit and bound to fail
Registration of Births, Deaths and Marriages Ordinance 1962 (NT)
Supreme Court Rules 1987 (NT) 0r 27.06
Fingleton v The Queen (2005) 227 CLR 166
Mark Lawlor v Ruby Rose Langenheim [2022] VSC 591
Staats v United States of America (1992) 66 ALJR 793
Berwick Ltd v Deputy Commissioner of Taxation (1976) 8 ALR 580
REPRESENTATION:
Counsel:
Applicant:Self-represented
Judgment category classification: B
Judgment ID Number: Hun2303
Number of pages: 7
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINRe Finocchiaro; Ex parte The Proper Officer [2023] NTSC 23
No. 2023-00541-SC
BETWEEN:
SALVATORE FINOCCHIARO
Applicant
AND:
EX PARTE THE PROPER OFFICER
CORAM: HUNTINGFORD A/AsJ
REASONS FOR DECISION
(Delivered 8 March 2023)
Introduction
Mr Salvatore Finocchiaro seeks a direction pursuant to r 27.06(3) of the Supreme Court Rules 1987 (NT) that the Proper Officer,[1] in this case the Civil Registry Manager, seal two writs sought to be issued by him. The Proper Officer refused to seal each originating process, in accordance with her authority in r 27.06(1), on the ground that she considered that the contents of the documents showed that, if issued, each proceeding would be an abuse of the process of the Court.
Rule 27.01 is in these terms:
27.06Proper officer refusing to seal or accept document
The Proper Officer may refuse to seal an originating process without the direction of the Court where he considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.
Where a document for use in the Court is not prepared in accordance with this Chapter or an order of the Court:
(a) the Proper Officer may refuse to accept it for filing without the direction of the Court; or
(b) the Court may order that the party responsible shall not be entitled to rely on it in any manner in the proceeding until a document which is duly prepared is made available.
(3)The Court may direct the Proper Officer to seal an originating process or accept a document for filing.
By email dated 8 February 2023, Mr Finocchiaro provided written submissions as to why his writs should be issued. His previous letters to the Registrar, dated 19 December 2022 and 16 January 2023, emails of 1, 2 and 3 February 2023, together with a copy of his birth certificate, and copy of a letter dated 10 November 2022 from the Registry of Births, Deaths, and Marriages in Queensland were also considered, as he requested.
Legal principles
A proceeding in the Court is commenced by filing an originating process.[2] The physical act of “sealing” an originating process means that the Proper Officer stamps the document with the approved stamp.[3] Sealed copies of the originating process filed in the Court are required to effect service upon a defendant.[4] Sealing an originating process is a necessary part of commencing or issuing a proceeding, as is clear from the words “were the document to be sealed the proceeding so commenced” in r 27.06(1).
Refusal by a court to allow commencement of a proceeding is a significant decision because access to courts is a fundamental aspect of our system of government. However, as the High Court pointed out in Staats v United States of America,[5] courts must, in the public interest and in the interest of litigants, have procedures to prevent litigation without merit.[6] The Proper Officer’s discretionary power in r 27.06(1) to refuse to seal an originating process is one such procedure. The power must, however, be exercised with care and only in a clear case.[7]
A proceeding that has no prospect of success is a form of abuse of the process of the Court.[8] In Lawlor v Langenheim,[9] O’Meara J referred to the “very rare and exceptional cases”, in which a court must “protect itself and the administration of justice generally by refusing to receive documents that would constitute an abuse of its process”.[10]
First writ – claim against a judicial officer in Queensland
Mr Finocchiaro’s first proposed writ was sent to the registry, in its final form, on 1 February 2023. The document names a judge of the District Court of Queensland as the sole prospective defendant.
I have carefully considered the proposed writ and statement claim. It is clear that the facts and matters alleged do not disclose a cause of action with any prospect of success. No amendment could cure the defect because the action that the applicant seeks to bring is not available to him.
Mr Finocchiaro’s complaints relate to his conviction and sentencing in the District Court of Queensland in 2020. The judge was clearly exercising his jurisdiction in that proceeding based on the matters set out in the proposed statement of claim.
At common law, no civil liability, including liability for damages, attaches to a judge for anything said or done in the exercise of their jurisdiction. The basis for the immunity was described by the Chief Justice of the High Court of Australia in Fingleton v The Queen: [11]
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour.
….
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.
The proposed proceeding has no legal merit, is hopeless and bound to fail. If the proceeding were issued, it would be an abuse of process and liable to bring the administration of justice into disrepute. I agree with the Proper Officer that the proposed writ should not be sealed and I decline to direct her to do so.
Second writ – claim against the Commonwealth
The second writ that Mr Finocchiaro seeks to have sealed was received by the registry on 8 February 2023. This document purports to bring an action against the Commonwealth of Australia for “punitive damages” for infringement of Mr Finocchiaro’s religious rights as a person of the Christian faith. In summary, his concern is that the practice of the Registrar of Births, Deaths and Marriages in using capital letters in the printing of his name on his birth certificate creates a graven image contrary to Biblical scripture, in particular the Second Commandment, and is offensive to his religious convictions.
This proposed writ does not contain any facts or matters that could found a cause of action that could possibly succeed. The mere use of capital letters in a document could never found any claim at common law or under statute.
The proposed writ refers to a supposed law of the Commonwealth described as the “Registration of Births, Deaths and Marriages 1963 Act of Parliament compelling every state and territory to enforce the registration of names at birth”. No such statute ever existed. From his submission it appears that Mr Finocchiaro was referring to the Registration of Births Deaths and Marriages Act 1963 (NI), a continuing law of Norfolk Island.[12] Mr Finocchiaro’s interpretation of that law, which has only ever applied in Norfolk Island, is plainly incorrect and cannot support his claim.
It follows that I agree with the Proper Officer that this proceeding would be an abuse of the process of the Court if commenced, and the originating process should not be sealed.
Finally, I note that some of Mr Finocchiaro’ correspondence includes a “declaration of sovereignty” and that the proposed writs refer to an “Affidavit and Declaration of Sovereignty Status” and an “Affidavit of Truth Declaration” having been sent by him to various government and public officials. For completeness, I record that such “declarations of sovereignty”, however described, have no legal basis or effect and do not provide any foundation for the proposed proceedings.[13]
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[1] Supreme Court Rules 1987 (NT) r 1,09 (‘SCR’).
[2] Ibid r 5.11. See r 5.01 for definition of “originating process”.
[3] Ibid r 28.04.
[4] Ibid r 5.11(3)
[5](1992) 66 ALJR 793. 793.
[6]Ibid.
[7] Ibid.
[8]Shaw v A-G (Vic) [2011] VSCA 63, [14].
[9][2022] VSC 591. See also Little v State of Victoria, (Supreme Court of Victoria, Gillard J, 17 June1997).
[10] Ibid [15].
[11](2005) 227 CLR 166, 186 [38]–[39] (Gleeson CJ). Note also that judicial officers in Queensland are immune from criminal suit pursuant to s 30 of the Criminal Code Act 1899 (Qld) ch 1.
[12] At the time of the registration of Mr Finocchiaro’s birth in the Northern Territory in 1963, the relevant legislation was the Registration of Births, Deaths and Marriages Ordinance 1962 (NT), which was amended by the Registration of Births, Deaths and Marriages Act 1978 (NT), and then the Births, Deaths and Marriages Registration Act 1996 (NT). Norfolk Island is part of the Commonwealth of Australia, see Berwick Ltd v Deputy Commissioner of Taxation (1976) 8 ALR 580, 583-584 per Mason J (with whom Barwick CJ and McTiernan and Murphy JJ agreed).
[13] R v Sweet [2021] QDC 216, [6], approved in Coles Supermarkets Australia Pty Ltd v Stacey GA [2022] VSC 438, [17]. For a description of the history of the “sovereign citizen” movement more generally see his Honour Judge Glen Cash QC, writing extra-judicially, 'A kind of magic: the origins and culture of "Pseudolaw"', speech given at the Queensland Magistrates State Conference, Brisbane, 26 May 2022
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