Scott v Judicial Registrar Ditton

Case [2023] FCA 947

FEDERAL COURT OF AUSTRALIA

Scott v Judicial Registrar Ditton [2023] FCA 947

File number(s): SAD 193 of 2022
Judgment of: O'SULLIVAN J
Date of judgment: 11 August 2023
Catchwords: ADMINISTRATIVE LAW – application for judicial review of a Registrar’s decision under r 2.26 of the Federal Court Rules 2011 (Cth) to reject documents for filing – whether the original application and accompanying documents are an abuse of process, frivolous or vexatious – application dismissed
Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), 11(1)

Commonwealth of Australia Constitution Act 1900 (Cth)

Federal Court of Australia Act 1976 (Cth), ss 19(1), 32(1), 37AM

Judiciary Act 1903 (Cth), s 39B(1A)

Federal Circuit Court Rules 2011 (Cth), Schedule 1, r 31.01(1)

Cases cited:

Ferdinands v Registrar Stone [2022] FCA 589

Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164
Division: General Division
Registry: South Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 40
Date of last submission/s: 16 March 2023
Date of hearing: Determined on the papers
Counsel for the Applicant: The Applicant was self-represented
Counsel for the Respondent: The Respondent filed a submitting notice

ORDERS

SAD 193 of 2022
BETWEEN:

SUSAN JANE SCOTT

Applicant
AND:

ALICIA DITTON, JUDICIAL REGISTRAR

Respondent

ORDER MADE BY:

O'SULLIVAN J

DATE OF ORDER:

11 AUGUST 2023

THE COURT ORDERS THAT:

1.The application for judicial review is dismissed.

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


REASONS FOR JUDGMENT

O’SULLIVAN J:

  1. On 7 December 2022, the applicant in these judicial review proceedings, Susan Jane Scott, attempted to file an originating application and supporting documents (Documents).  On 20 December 2023, a Judicial Registrar of this Court refused to accept the documents for filing (Decision) pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR).

  2. The applicant filed an originating application seeking judicial review of the Decision (JR Application).

  3. The Registrar lodged a Form 29 submitting notice on 20 February 2023.

  4. The applicant requested that the Court deal with this matter on the papers.  Given the Registrar filed a submitting notice, the only evidence filed is by the applicant.

  5. It is for the reasons set out below that the application for judicial review is dismissed.

    THE DOCUMENTS

  6. The originating application the applicant attempted to file on 7 December 2022 claimed:

    “Relief sought under the provisions of the Claim of Civil Liability for Wrongful Acts causing Death Act 1936 (SA) asserted as justiciable matters to the Federal Court.  Exemplary damages are sought …”

  7. The exemplary damages are sought against the Crown Solicitor of South Australia; the President of the South Australian Civil and Administrative Appeals Tribunal (SACAT); the Public Advocate of South Australia, and a fourth person.

  8. The Documents referred to ss 19(1) and 32(1) of the Federal Court of Australia Act 1976 (Cth) (FCA) and s 39B(1A) of the Judiciary Act1903 (Cth).

  9. An affidavit sworn by the…

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AGLC
Scott v Judicial Registrar Ditton [2023] FCA 947
Case
[2023] FCA 947
Decision Date

CaseChat Overview and Summary

Scott brought an application for judicial review of a decision by the Judicial Registrar Ditton to reject documents for filing. The application was dismissed by the Federal Court. The legal issues that arose were whether the decision made by the Registrar was an abuse of process, frivolous, or vexatious. The Court found that the Registrar was performing an administrative task when rejecting the documents, and not making a substantive judgment about the underlying merits of the claims. The Court also found that the applicant had not identified the grounds in s 5(1) of the Administrative Decisions (Judicial Review) Act upon which the applicant relied. The Court dismissed the application for judicial review. The Court held that the Registrar was not prohibiting the exercise of judicial power and was ensuring compliance with procedural requirements. The Court also held that the proceeding was not frivolous or vexatious as it was not based on a cause of action which no reasonable person could properly treat as bona fide or if it was without substance, groundless, or fanciful. The Court dismissed the application for judicial review.

Orders

Orders of the court

1. The application for judicial review is dismissed.

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

The JR application does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to the Registrar having failed to comprehend the originating application as invoking the jurisdiction of the Court suggests ss 5(1)(c) and (f). Those provisions provide: 5Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:…(c)that the person who purported to make the decision did not have jurisdiction to make the decision;...(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;… I accept the applicant is a person who is aggrieved within the meaning of s 5(1) of the ADJR Act. Although it is suggested by the applicant in her written submissions that the Registrar acted to prohibit the exercise of judicial power by the Court, that is incorrect. The Registrar did not make a substantive judgment about the underlying merit of the claims in the Documents when making the Decision but was carrying out an administrative task: Nyoni at [41]. There can be no suggestion the Registrar was prohibiting the exercise of judicial power. The Registrar was ensuring compliance with procedural requirements. That is sufficient to dispose of the ground of review in s 5(1)(c) of the ADJR Act. In Ferdinands v Registrar Cridland at [27]-[31], White J considered the meaning of the terms “frivolous” or “vexatious” or the expression “an abuse of the Court’s process”. His Honour noted that the Dictionary contained in Schedule 1 to FCR contained a definition of “vexatious proceeding” by reason of a cross-reference to s 37AM of the FCA. Section 37AM(1) provides:vexatious proceeding includes:(a)a proceeding that is an abuse of the process of a court or tribunal; and(b)a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and(c)a proceeding instituted or pursued in a court or tribunal without reasonable ground; and(d)a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. After referring to s 37AM, his Honour continued at [28]-[30]:28As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.29In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of the terms “vexatious” and “frivolous” appearing in r 26.01(1) of the FCR. His Honour said:[35]The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …[36]A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …[37]In relation to the term ‘frivolous’:(a)a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;(b)a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and(c)‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …[38] In relation to the term ‘vexatious’:(a)a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;(b)proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;(c)a proceeding is to be regarded as ‘vexatious’ where:(i)it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or(ii)it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or(iii)irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and(d)‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …(Citations omitted)30.As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. There is no reason to suppose that the Registrar did not apply meanings of this kind in the present case when considering whether the applicant’s proposed proceeding was frivolous or vexatious on the face of the documents. In reaching that conclusion, I take into account that the applicant has not sought to point to any particular error by the Registrar in her construction of these terms.

Ratio Decidendi

Legal Principle Established

In Ferdinands v Registrar Stone [2022] FCA 589 at [13], I said:In Ferdinands v Registrar Cridland [2021] FCA 592 at [9], White J referred to what he said in Ferdinands v Registrar Parkyn [2020] FCA 1676 where he set out some provisions from the authorities concerning the power which a Registrar may exercise pursuant to FCR 2.26. In Cridland, his Honour said:10The nature of the power bestowed on a Registrar pursuant to O 46, r 7A of the original Federal Court Rules (the predecessor of r 2.26) was discussed by the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353. The Full Court said:[15]The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious.11This reasoning was applied more recently in Nyoni v Murphy in which the Full Court said:[33]The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry … 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 ……[38][A] Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious …(Citation omitted and emphasis added)Consideration The JR application does not identify the ground or grounds in s 5(1) of the ADJR Act upon which the applicant relies. The reference to the Registrar having failed to comprehend the originating application as invoking the jurisdiction of the Court suggests ss 5(1)(c) and (f). Those provisions provide: 5Applications for review of decisions(1)A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:…(c)that the person who purported to make the decision did not have jurisdiction to make the decision;...(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;…