Reaper v Luxton

Case [2017] FCA 949

FEDERAL COURT OF AUSTRALIA

Reaper v Luxton [2017] FCA 949

File number: VID 289 of 2017
Judge: O'CALLAGHAN J
Date of judgment: 21 August 2017
Catchwords: ADMINISTRATIVE LAW – application for review of Deputy District Registrar’s decision pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) to refuse to accept documents for filing – where Deputy District Registrar formed the view that documents were an abuse of process – whether Deputy District Registrar took into account irrelevant considerations – whether decision was legally unreasonable
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5

Bankruptcy Act 1966 (Cth), s 178(1) and (2)

Federal Court Rules 2011 (Cth), rr 2.26, 26.01
Cases cited:

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Paramasivam v Randwick City Council [2005] FCA 369

Rahman v Hedge [2012] FCA 68

Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; 260 ALR 567

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

Shaw v Buljan [2016] FCA 829

SZVCP v Cho [2017] FCA 310
Date of hearing: 21 April 2017
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 37
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: The Respondent filed a submitting notice save as to costs

ORDERS

VID 289 of 2017
BETWEEN:

BRETT REAPER
Applicant

AND: DEPUTY DISTRICT REGISTRAR LUXTON
Respondent

JUDGE:

O'CALLAGHAN J

DATE OF ORDER:

21 AUGUST 2017

THE COURT ORDERS THAT:

1.The name of the respondent be amended to “Deputy District Registrar Luxton”.

2.The respondent’s decision to refuse to accept for filing the documents lodged by the applicant on 5 March 2017 be set aside.

3.The documents the subject of the decision referred to in order 2 be referred to the Registrar (as defined in the Federal Court Rules 2011 (Cth)), not being the Deputy District Registrar who made the decision referred to in order 2, for further consideration.

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


REASONS FOR JUDGMENT

O’CALLAGHAN J:

  1. This is an application for judicial review of a decision made by a Deputy District Registrar of this Court (the Deputy Registrar) to refuse to accept certain documents for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules).

    THE REJECTED DOCUMENTS

  2. On 5 March 2017, the applicant lodged with the Victoria Registry an application (the new application), which sought in part to invoke or rely on s 178 of the Bankruptcy Act 1966 (Cth) (the Act).

  3. Section 178(1) and(2) of the Act provide as follows:

    (1)If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in…

Continue reading Reaper v Luxton

Sign in free to access the full text

Details
AGLC
Reaper v Luxton [2017] FCA 949
Case
[2017] FCA 949
Decision Date

CaseChat Overview and Summary

In the matter of Reaper v Luxton, the applicant sought a review of a decision by the Deputy District Registrar to refuse to accept documents for filing. The Deputy Registrar determined that the documents were an abuse of process, considering them to be an attempt to re-agitate matters already before the Court or resolved by it. The case raised significant questions about the scope and limits of a Registrar's discretion in determining whether a document constitutes an abuse of process or is frivolous or vexatious. The Court had to decide whether the Deputy Registrar took into account irrelevant considerations in making his decision and whether the decision was legally unreasonable.

The central legal issue was whether the Deputy Registrar correctly exercised his discretion in determining that the documents were an abuse of process. Specifically, the Court needed to examine if the Deputy Registrar took into account documents from other proceedings when making his decision, which, according to previous case law, constitutes taking into account irrelevant considerations. Additionally, the Court had to assess if the Deputy Registrar's decision was legally unreasonable, either under the common law standard or under section 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Court held that while the Deputy Registrar's decision that the documents did not identify relevant acts, omissions, or decisions was reasonable, his consideration of documents from other proceedings was improper. Therefore, the decision was found to be legally unreasonable.

The Court found that the Deputy Registrar erred in taking into account documents from other proceedings when determining that the documents were an abuse of process. This constituted taking into account irrelevant considerations, which is not permissible under the Federal Court Rules. The Court set aside the Deputy Registrar's decision and referred the documents to another Registrar for further consideration. The Court emphasized that while the Deputy Registrar's view on the sufficiency of the particulars provided in the documents was reasonably formed, his inclusion of documents from other proceedings was not. The Court concluded that the Deputy Registrar's decision was legally unreasonable due to this error.

The final orders of the Court included amending the name of the respondent to "Deputy District Registrar Luxton," setting aside the Deputy Registrar’s decision to refuse to accept the documents for filing, and referring the documents to another Registrar for further consideration. These orders ensure that the Deputy Registrar's error is rectified and that the documents are reviewed by an appropriate authority without the influence of irrelevant considerations.

Orders

Orders of the court

1. The name of the respondent be amended to “Deputy District Registrar Luxton”.

2. The respondent’s decision to refuse to accept for filing the documents lodged by the applicant on 5 March 2017 be set aside.

3. The documents the subject of the decision referred to in order 2 be referred to the Registrar (as defined in the Federal Court Rules 2011 (Cth)), not being the Deputy District Registrar who made the decision referred to in order 2, for further consideration.

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

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

I should also note, for completeness, that I have carefully considered two of the previous applications made to this Court (VID73/2017 and VID74/2017), to which the Deputy Registrar referred in his 9 March 2017 letter, including in the context of ruling on those applications: see Reaper v Vrsecky (Trustee), in the matter of Reaper [2017] FCA 948. Having done so, it seems to me sufficiently clear that the matters that Mr Reaper sought to raise in his new application have not been the subject of any of the many actions which Mr Reaper has previously brought against the trustee in this Court. CONCLUSION The power of the Court to review a decision of a Registrar is obviously important because, without that power, the making of legitimate claims in proceedings in which a party asks a Judge of this Court to exercise the judicial power of the Commonwealth could be stymied by administrative action. That is particularly so where the document in question would, if accepted, constitute an originating application. For the reasons given above, I am satisfied that the Deputy Registrar erred in refusing to accept the documents lodged on 5 March 2017 for filing. In so finding, the Court says nothing about the merits of Mr Reaper’s claims. What, if anything, is to become of the application must await another day. In SZVCP v Cho [2017] FCA 310, Markovic J considered (at [46]) that, having found a decision of the Registrar to be an improper exercise of the power conferred by the r 2.26 of the Rules, it would not be appropriate for the Court to make an order directing the Registrar to accept the document for filing. I agree. The Court will order that the Deputy Registrar’s decision to refuse to accept for filing the documents lodged by the applicant on 5 March 2017 be set aside and refer the documents the subject of that decision to the Registrar (as defined in the Rules), not being the Deputy District Registrar who made the relevant decision, for further consideration.

Ratio Decidendi

Legal Principle Established

Thus, when determining whether a particular lodgement constitutes an abuse of process or is frivolous or vexatious, a Registrar may have regard to documents already filed in the proceeding in which the document in question is lodged. However, regard may not be had to documents already filed in a different proceeding (SZVCP v Cho [2017] FCA 310 at [27]-[28]; citing with approval Shaw v Buljan [2016] FCA 829 at [55]) or to documents previously not accepted by a Registrar for filing in the same proceeding: SZVCP v Cho [2017] FCA 310. The latter was recently held by Markovic J in SZVCP v Cho [2017] FCA 310 to involve taking into account irrelevant considerations.CONSIDERATION In substance the new application contemplates an action in damages against the trustee arising out of the execution of the warrant of possession. It seems to me that the Deputy Registrar’s decision was made on two bases: the first, that, on the face of the documents constituting the lodgement, the lodgement was an abuse of process because it did not “identify the relevant acts, omission or decision pursuant to which s 178 [was] said to be enlivened”; the second, that, having regard to both the terms of the documents constituting the lodgement and documents filed in other proceedings – namely, VID73/2017, VID74/2017 and VID 58/2017 – the lodgement was an abuse of process because it sought to re-agitate matters already before, or dispensed with by, the Court. The first basis for the Deputy Registrar’s decision is authorised by r 2.26(a). While, having carefully considered the terms of the new application it seems to me likely that another decision-maker may have formed a different view as to the sufficiency of the particulars provided, there is no evidence before me to support a conclusion that the Deputy Registrar’s view in this respect was not reasonably, honestly and actually formed. Moreover, I do not consider that that aspect of the Deputy Registrar’s decision was unreasonable in the legal sense. There is some debate as to whether the test for unreasonableness at common law is broader than that in s 5(2)(g) of the ADJR Act: see SZVCP v Cho [2017] FCA 310 at [30]-[41] and the cases there cited. I am not satisfied that either standard of unreasonableness is met in this case. The Deputy Registrar’s finding that the lodgement did not “identify the relevant acts, omission or decision pursuant to which s 178 [was] said to be enlivened” cannot, in my view, be characterised as so unreasonable that no reasonable decision-maker would have arrived at it (within the language of s 5(2)(g) of the ADJR Act). Nor was the finding “sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power”: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop CJ.