FEDERAL COURT OF AUSTRALIA
Pickering, in the matter of Pickering [2009] FCA 809
PRACTICE AND PROCEDURE - whether Court should direct Registrar to issue applications lodged by the applicant – proposed applications frivolous, vexatious and if permitted to issue would constitute an abuse of process of the Court – no direction ordered - application dismissed.
Constitution
Federal Court Rules O1 r 4, O 46 r 7, O 46 r 7(2), O 46 r 7A, O 46 r 7A(1), O 46 r 7A(2)
Federal Court of Australia Act 1976 (Cth) s 24(1)(a)
Administrative Decisions (Judicial Review) Act 1977 (Cth)Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353
Gallo v Dawson (1988) 82 ALR 401
Letts v Commonwealth (1985) 8 FCR 585
Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426
Paramasivam v Randwick City Council [2005] FCA 369
Pickering v Centrelink [2008] FCA 561
Pickering v Chief Executive Officer of Centrelink [2006] FCA 477
Pickering v Commonwealth [2007] FCA 1253IN THE MATTER OF JEFFERY JOHN PICKERING; JEFFERY JOHN PICKERING
WAD 95 of 2009
BARKER J
3 AUGUST 2009
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 95 of 2009
BETWEEN: IN THE MATTER OF JEFFERY JOHN PICKERING; JEFFERY JOHN PICKERING
Applicant
JUDGE:
BARKER J
DATE OF ORDER:
3 AUGUST 2009
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application made by Mr Pickering pursuant to O 46, r 7(2), that directions be given to the Registrar to issue two originating applications lodged with the Western Australia District Registry of the Court on 19 May 2009, is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 95 of 2009
EX PARTE: IN THE MATTER OF JEFFERY JOHN PICKERING; JEFFERY JOHN PICKERING
Applicant
JUDGE:
BARKER J
DATE:
3 AUGUST 2009
PLACE:
PERTH
REASONS FOR JUDGMENT
APPLICATION FOR DIRECTIONS UNDER O 46, R 7(2)
On 20 May 2009, a Deputy District Registrar of the Federal Court of Australia in the Perth Registry, exercising the powers of a registrar under O 1, r 4 of the Federal Court Rules (Cth) (Rules) decided that two proposed originating applications lodged with the Western Australia District Registry of the Court by Jeffery John Pickering should not be issued, as they appeared to be an abuse of process of the Court, frivolous and/or vexatious.
The Deputy District Registrar's decision was made pursuant to O 46, r 7A(1) of the Rules.
The Deputy District Registrar communicated this decision to Mr Pickering by letter dated 20 May 2009.
Mr Pickering then made ex parte application pursuant to O 46, r 7(2) for the Court to give directions to the Deputy District Registrar to issue the proposed applications.
THE PROPOSED APPLICATIONS
In the first proposed application, Mr…
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- AGLC
- Re Pickering [2009] FCA 809
- Case
- [2009] FCA 809
- Decision Date
CaseChat Overview and Summary
The court considered the history of the applicant's litigation, which included numerous applications and proceedings that were deemed misconceived or vexatious. The court concluded that the proposed proceedings were similarly misconceived and would constitute an abuse of the court's process if permitted. The court declined to give any directions to the Registrar to issue the applications, finding that the applicant had not demonstrated a genuine entitlement to proceed with the proposed litigation. The court emphasised the need for the applicant to seek appropriate legal advice regarding the causes of action, jurisdiction, and prospects of success.
The court dismissed the applicant's application for directions and formally ordered that the application be dismissed. The court noted that the decision to refuse to issue the applications was administrative in nature and not a judicial act subject to appeal. Consequently, the applicant's application was dismissed, and no further directions were given to the Registrar regarding the proposed applications.
ORDERS:
1. The application made by Mr Pickering pursuant to O 46, r 7(2), that directions be given to the Registrar to issue two originating applications lodged with the Western Australia District Registry of the Court on 19 May 2009, is dismissed.
Orders
Orders of the court
1. The application made by Mr Pickering pursuant to O 46, r 7(2), that directions be given to the Registrar to issue two originating applications lodged with the Western Australia District Registry of the Court on 19 May 2009, is dismissed.
Note:
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
Ratio Decidendi
Legal Principle Established
Established by: BARKER J
Order 46, r 7 provides as follows:7 Operation of registries(1)Subject to these Rules and the direction of the Court or a Judge, the Registrar of the Court may give a direction as to the operation of any Registry.(2) A person may apply to the Court ex parte for a direction to the Registrar that he do any act which he is bound or entitled to do and has refused to do. A general question arises whether the Court, when it deals with an application made under r 7(2) is engaged in the exercise of judicial power or administrative power, and whether the decision is amenable to appeal; and whether any other person should be given notice of the hearing and the opportunity to appear and make representations to the Court. In this regard, guidance may be obtained from decisions of the Court concerning the power of the Registrar under O 46, r 7A(1), to refuse to accept a document because it appears on its face to be an abuse of process, and that of the Court to give directions in relation thereto under O 46, r 7(2). In Bizunehv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353, the appellant appealed against the direction of the Court made under O 46, r 7A that the Registrar refuse to accept an application as an "originating document". The Full Court (Lee, Whitlam and Jacobson JJ) said that no judicial act is carried out by the Registrar under r 7A, and so far as the direction of the Court is concerned it is "administrative in character" (at 357). The Court explained at 357: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. Consequently, the Court concluded (at 357) that a direction under O 46, r 7A is not a judgment able to be subject to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. It should be noted that in Paramasivam v Randwick City Council [2005] FCA 369 Sackville J doubted the correctness of the Full Court's statement that a direction given by the Court was not a judicial act, and referred to the decision of Toohey J in Letts v Commonwealth (1985) 8 FCR 585. However, His Honour accepted there was a serious question whether such a direction by the Court would constitute a "judgment" for the purpose of appeal or leave to appeal under the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and Rules. Nonetheless, Sackville J considered himself bound by the decision of the Full Court. In Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia (2008) 170 FCR 426, another Full Court considered that it should now be accepted that a direction by the Court under O 46, r 7A is not a judgment from which an appeal may be brought pursuant to s 24(1)(a) of the Federal Court Act.