Sally-Brown v Parkyn
[2016] FCA 162
•29 February 2016
FEDERAL COURT OF AUSTRALIA
Sally‑Brown v Parkyn [2016] FCA 162
File number: SAD 449 of 2015 Judge: WHITE J Date of judgment: 29 February 2016 Catchwords: ADMINISTRATIVE LAW – application for judicial review – application for extension of time – Deputy Registrar of Federal Court refused pursuant to r 2.26 Federal Court Rules 2011 (Cth) to accept documents for filing – whether application constituted an abuse of process – decision of Registrar to refuse to accept document for filing reviewable under s 5 of Administrative Decisions (Judicial Review) Act 1977 (Cth) – Deputy Registrar’s decision does not involve error of law – application dismissed. Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 11(1)(c)
Australian Constitution s 109
Children’s Protection Act 1993 (SA)
Federal Court Rules 2011 (Cth) rr 2.26,31.11
Judiciary Act 1903 (Cth) ss 39B, 78B
Cases cited: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47 Date of hearing: 9 February 2016 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent did not appear ORDERS
SAD 449 of 2015 BETWEEN: MERET‑FIELD SALLY‑BROWN
Applicant
AND: NIC PARKYN
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
29 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The oral application for an extension of time within which to commence proceedings is refused and the application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHITE J:
The applicant lodged documents for filing in this Court on 16 October 2015. The respondent (a Deputy Registrar of the Court) refused to accept the documents. He took the view that the documents did not disclose a cause of action which could be heard by the Court, or a claim for relief which the Court could grant, and that the proposed proceeding was, accordingly, an abuse of process.
In a letter to the applicant dated 19 October 2016, the respondent said that he was acting pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the FCR). 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.
The applicant, who is self‑represented, seeks judicial review of the respondent’s decision. I proceed on the basis that the application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) because the applicant has used the form prescribed by the FCR for such applications. Decisions of the impugned kind may be reviewed under that Act: Satchithanantham v National Australia Bank Limited [2010] FCAFC 47.
The respondent has filed a notice indicating that he submits to any decision which the Court may make in the proceedings, but wishes to be heard on the question of costs.
The applicant did not commence her application until 16 December 2015. This was well beyond the 28 day period fixed by s 11(1)(c) of the ADJR Act for the bringing of such applications. Accordingly, the applicant needs an extension of time. At the hearing she made an oral application for an extension of time. Prominent among the matters which the Court considers on such applications is the merit of the claim which would otherwise be statute‑barred. Accordingly, it is appropriate to consider the merits of the applicant’s claim. If the claim lacks merit, that will be sufficient to indicate that the discretion to extend time should not be exercised in the applicant’s favour.
In order to succeed, the applicant must establish at least one of the grounds listed in s 5(1) of the ADJR Act. Her application does not indicate reliance on any of those listed grounds. I proceed on the basis that the applicant alleges that the respondent’s decision was affected by an error of law because his view that Court does not have jurisdiction to hear and determine the applicant’s claim was erroneous.
The applicant did not put into evidence the documents which the respondent refused to accept for filing. She acknowledged, however, that with the addition of her own affidavit made on 16 October 2015 (the original of which she provided during the hearing), the documents produced from the Court’s own records are the documents in question. These are:
(a)the proposed originating application;
(b)a statement of claim;
(c)notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth).
The respondents to the proposed proceedings were the Honourable John Rau MP, the Attorney‑General for the State of South Australia and the Honourable George Brandis MP, the Attorney‑General for the Commonwealth of Australia.
The originating application which the applicant had lodged for filing was in Form 69 prescribed by Federal Court Rule 31.11 and indicated that it was an originating application under s 39B of the Judiciary Act. Subsection 39B(1A) vests jurisdiction in this Court as follows:
(1A)The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
Note:Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia.
It is not easy to summarise succinctly the claims for relief contained in the applicant’s proposed originating application because the applicant claimed relief in respect of 42 listed matters. I think that her proposed claims can be fairly categorised as follows:
(1)Claims for relief in respect of conduct by members of the South Australian Police, social workers and mental health practitioners in the public service of the Government of South Australia, and, in one instance, a former member of the Parliament of South Australia, in relation to the applicant herself (Grounds 1, 3‑9, 11‑12, 15‑16 and 33);
(2)Claims for relief in respect of the conduct by Families SA (a department of the South Australian Government) and other unidentified parties relating to the applicant’s grandson who is under the guardianship of the Minister for Education and Child Development (Grounds 5, 7, 13 and 39);
(3)Claims for relief in respect of decisions of the Youth Court of South Australia in relation to proceedings before that Court concerning the applicant’s grandson (Grounds 17‑21, 25 and 27‑28), including a claim for “relief from the Communist Regulations in the Youth Court” (Ground 34);
(4)Claims for relief in respect of proceedings in the Supreme Court of South Australia being (apparently) proceedings by way of appeal from the Youth Court (Grounds 22 and 36), including a claim for “relief from the Rebellion in the Supreme Court and its finding that I am scandalous, frivolous and vexatious” (Grounds 35 and 37);
(5)Claims for relief on behalf of the applicant’s grandson (Grounds 10, 14, 23 and 40);
(6)Claims for relief from the decisions of the Minister with responsibility for the administration of the Children’s Protection Act 1993 (SA) (Grounds 24, 26 and 29);
(7)Claims for relief from “holes” in the Children’s Protection Act (Ground 30) and because “South Australia is in dispute with the Family Court” (Ground 31);
(8)Claims for relief of miscellaneous kinds, including a claim for relief from “government arson” in 2006 (Ground 2), a claim for relief from “South Australia’s refusal to accept the federal Grandparents Raising Grandchildren Report 2003” (Ground 38), a claim for relief “from the refusal of South Australia to give me my pension and a concession discounts” (Ground 41), and a claim for relief from “the numerous constitutional matters mentioned in my documents” (Ground 32), as well as a claim for unspecified “other” relief (Ground 42).
In addition, the proposed originating application indicated that the applicant sought interlocutory orders requiring Families SA to take certain action both with respect to her grandson and herself.
The statement of claim which the applicant wished to file is discursive, extending to 55 pages and 95 paragraphs. In general, it seems to allege matters relating to the claims for relief summarised above. These are claims in respect of decisions of the Supreme Court of South Australia, the Youth Court of South Australia, government departments in South Australia, the South Australian Police and persons in the public service of South Australia.
The s 78B notice purported to identify some 17 “constitutional matters”. These were described as “section 109 breach of the Australian Constitution”. The flavour of the matters listed is indicated by the following examples:
4. Families SA v Family Court
5. Internal state terrorism v Good government in Federal jurisdiction
6.Denial of the protection of the legal system v No denial of the protection of the legal system in the Federal jurisdiction
This Court does have jurisdiction under s 39B(1A) of the Judiciary Act to hear and determine claims which involve the application of s 109 of the Australian Constitution, namely, whether there is any inconsistency between a law of the Commonwealth and a law of a State. It is evident that the applicant is seeking to invoke that jurisdiction. However, the applicant proceeds under the belief that any difference at all between her claimed treatment in South Australian courts, or pursuant to laws of the South Australian Government, which may differ from that which she asserts is available in the exercise of Federal jurisdiction or under Commonwealth law, is sufficient to attract the application of s 109. That is a misconception. An asserted contest between, for example, “internal state terrorism” and “good government in Federal jurisdiction” or “Supreme Court rebellion v No rebellion in courts of law” does not identify any issue involving the application of s 109. These examples could be multiplied. I am satisfied that the applicant’s “s 78B” notice does not identify matters within the jurisdiction of this Court.
The affidavit made by the applicant on 16 October 2015 is lengthy, consisting of some 140 pages and multiple annexures. Much of it is repetitious. The affidavit confirms that the concerns of the applicant relate to proceedings in the Youth Court and in the Supreme Court of South Australia and her alleged treatment by agencies of the South Australian government. I have read the affidavit in detail but have not identified in it any matter capable of being heard and determined in this Court.
Examples given in the affidavit of matters which are said to be constitutional matters include the “hoodwinking” of a judge in the Youth Court by a solicitor from the State Crown Solicitor’s Office, at [10]; the mal‑development of the applicant’s grandson, at [11]; an alleged breach of a custody agreement by a South Australian government minister, at [14]; and the conduct of a social worker in calling out from her seat in the public gallery of the Youth Court. Again, these are not matters in respect of which this Court has jurisdiction or in respect of which it could grant relief.
It is very evident that the applicant feels deeply about many of the matters referred to in the proposed proceedings. I accept that that is so. Nevertheless, I am satisfied that the respondent was correct in concluding that the documents which the applicant wished to file in the Court on 16 October 2015 did not disclose a cause of action which could be heard by this Court or make a claim for relief which this Court could grant. The respondent was also correct to characterise the proposed proceedings as an abuse of the process of this Court.
In these circumstances, the applicant has not shown that her claim under the ADJR Act has any merit. That circumstance by itself indicates that the oral application for an extension of time in which to commence the present proceedings should be refused.
The formal order of the Court is that the oral application of the applicant made on 9 February 2016 for an extension of time in which to commence the proceedings is refused and, accordingly, the application filed on 16 December 2015 is dismissed.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 29 February 2016
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