Shaw v Buljan

Case [2016] FCA 829

FEDERAL COURT OF AUSTRALIA

Shaw v Buljan [2016] FCA 829

File number(s): VID 727 of 2016
Judge(s): CHARLESWORTH J
Date of judgment: 21 July 2016
Catchwords:

ADMINISTRATIVE LAW – application for review of a decision made by a Registrar of the Federal Court of Australia – where Registrar refused to accept a proposed interlocutory application for filing – whether Registrar complied with obligation to give reasons – whether Registrar complied with the rules of natural justice – whether Registrar took into account irrelevant considerations –whether Registrar failed to identify utility in the relief sought.

HIGH COURT AND FEDERAL COURT – jurisdiction of Federal Court of Australia to restrain solicitors from acting for a party – nature of jurisdiction

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5, 6, 11, 13, 16

Bankruptcy Act 1966 (Cth), s 153B

Federal Court Act 1976 (Cth), ss 20A, 24, 25

Federal Court Rules 2011 (Cth), rr 2.25, 2.26, 31.01

Judiciary Act 1903 (Cth), s 39B
Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124

Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd [2014] FCA 1065, (2014) 228 FCR 252

Fonterra Brands (Australia) Pty Ltd v Viropoulos [2013] FCA657, (2013) 304 ALR 332

Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404, (2006) 237 ALR 612

Grimwade v Meagher [1995] 1 VR 446

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Lamb v Moss (1983) 76 FLR 296

Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181

McVeigh v Willara Pty Ltd (1984) 6 FCR 587

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Ethic Affairs v Taveli (1990) 23 FCR 162

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Police Federation of Australia v Nixon (2011) 198 FCR 267, [2011] FCAFC 161

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656

R v Civil Service Appeal Board; Ex parte Cunningham [1991] 4 All ER 310

R v Forbes; Ex Parte Bevan (1972) 127 CLR 1

R v Secretary of State for the Home Department; Ex parte Doody [1994] 1 AC 531

Rahman v Hedge [2012] FCA 68

Satchithanantham v National Australia Bank Limited (2010) 268 ALR 222; [2010] FCAFC 47

Shaw v MAB Corporation Pty Ltd [2013] FCA 1231

Shaw v MAB Corporation Pty Ltd [2014] FCA 62, (2014) 220 FCR 425.

Shaw v Yarranova Pty Ltd [2016] FCA 88

Western Australia v Ward (1997) 76 FCR 492; [1997] FCA 585

Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616

Date of hearing: Determined on the papers
Date of last submissions: 11 July 2016
Registry: Victoria
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 99
Counsel for…

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AGLC
Shaw v Buljan [2016] FCA 829
Case
[2016] FCA 829
Decision Date

CaseChat Overview and Summary

In the case of Shaw v Buljan, the applicant, Mr. Shaw, sought judicial review of a decision made by a Deputy Registrar of the Federal Court of Australia. The Deputy Registrar had refused to accept an interlocutory application for filing, which sought orders to restrain the respondents' solicitors from acting on their behalf in an appeal proceeding. Mr. Shaw argued that the refusal to accept the application for filing was an error of law, as the Deputy Registrar had failed to comply with the obligation to give reasons, had breached the rules of natural justice, and had taken into account irrelevant considerations. Additionally, Mr. Shaw contended that the Deputy Registrar had failed to identify the utility in the relief sought.

The primary legal issues in this case were whether the Deputy Registrar complied with the obligation to give reasons, whether the Deputy Registrar complied with the rules of natural justice, whether the Deputy Registrar took into account irrelevant considerations, and whether the Deputy Registrar failed to identify the utility in the relief sought. The Court found that the Deputy Registrar had not erred in the manner alleged by Mr. Shaw, as the reasons provided by the Deputy Registrar were to be read beneficially and without an eye attuned to the perception of error. The Court also found that the Deputy Registrar had not failed to recognise the existence of the Court's jurisdiction to restrain a solicitor from acting for a party in proceedings before it.

The Court allowed the application for judicial review, ordering that the Deputy Registrar accept for filing the interlocutory application and the supporting affidavit submitted by Mr. Shaw on 12 May 2016. The Court found that the Deputy Registrar's reasons were to be read as proceeding upon an assumption that the Court may, in an appropriate case, restrain a solicitor from acting or continuing to act in a proceeding before it. The Court also rejected Mr. Shaw's contention that the Deputy Registrar failed to take into account the content of the proposed supporting affidavit submitted for filing with the proposed interlocutory application.

Orders

Orders of the court

1. The application is allowed.

2. The Deputy Registrar is to accept for filing in proceedings VID 182 of 2016 the following two documents submitted for filing by the applicant on 12 May 2016;

(a) the applicant’s interlocutory application dated 10 May 2016; and

(b) the applicant’s supporting affidavit sworn on 10 May 2016.

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

Background

Background to the litigation

For the reasons given below, the application for judicial review against the Deputy Registrar’s decision should be allowed.BACKGROUND A sequestration order was made against Mr Shaw on 11 June 2014: Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616 (Gordon J). On 17 December 2014, Mr Shaw commenced proceedings under s 153B of Bankruptcy Act 1966 (Cth) to have the sequestration order annulled or set aside. Pagone J dismissed the application: Shaw v Yarranova Pty Ltd [2016] FCA 88. That is the judgment appealed against in the appeal proceeding. The proceedings to which I have referred are recent chapters in a lengthy and complex course of litigation between Mr Shaw and the respondents to the appeal proceeding. I will refer to the salient features of that history later in these reasons. For present purposes, it is sufficient to note that the course of litigation is one in which Mr Shaw has been largely unsuccessful. Mr Shaw contends that during the course of that litigation, the respondents have at all times been represented by the law firm Arnold Bloch Leibler (ABL) of which the same solicitor, Mr Alexander King, has acted as file principal. A Notice of Address for Service filed on behalf of the first and second respondents in the appeal proceeding on 20 April 2016 confirms that ABL acts as solicitor for both respondents. The Notice is signed by Mr King on behalf of ABL. As I have mentioned, Mr Shaw now seeks to file an interlocutory application seeking orders restraining ABL and Mr King from acting for the respondents on the appeal. Neither ABL nor Mr King are joined as parties on this application. The consequence of my allowing the application is that the respondents and their solicitors may be heard on the merits of the interlocutory application, or make their own applications in respect of it if they are so advised.THE PROPOSED INTERLOCUTORY APPLICATION There are two orders sought on the proposed interlocutory application: 1.The court restrain Arnold Bloch Leibler & Mr Alexander King from acting as solicitors of record for the respondents in this proceeding.2.Costs. The affidavit sought to be filed by Mr Shaw in support of the proposed interlocutory application states:I believe that there is ample evidence that would cause a reasonably informed observer to conclude that there is a real risk that the administration of justice would be compromised if the solicitors were allowed to represent both of the respondents. There follows a list of 15 reasons as to why the respondents’ solicitors “would not be seen to be impartial”, together with a lengthy and detailed history of alleged dealings between Mr Shaw and the respondents’ solicitors dating back as early as 2007. Mr Shaw deposes to having appeared self-represented in “dozens of proceedings against the respondents with Mr King & ABL acting for them”. He complains that in those proceedings, Mr King and other solicitors under the employ of ABL have sworn affidavits that were relied upon by the respondents. He makes broad ranging and serious allegations to the effect that the respondents’ solicitors have acted unethically or otherwise inappropriately in the course of those proceedings. The affidavit concludes:I am disappointed that not one judge or barrister appearing against me in all the previous hearings has raised the issue of a potential conflict or to question the ethics of Mr King & his solicitors giving evidence against me & acting as the only witnesses in all of the proceedings.However, taking into account the history & Mr King’s testimony in the annulment hearing, I submit that it is not too late to redress this potential miscarriage of justice or the appearance that justice is not being seen to be done & request that the court restrain ABL from acting further in this proceeding.THE DEPUTY REGISTRAR’S DECISION

Evidence

Evidence Before The Court

As Mr Shaw could not advance any other reason to oppose the determination of the matter without an oral hearing, the matter proceeded by reference to Mr Shaw’s written materials, including written submissions filed by Mr Shaw on 11 July 2016.Evidence admitted on this application For the purposes of determining this application, the Court had before it the two documents sought to be filed by Mr Shaw. These were received in evidence for the limited purpose of proving the fact that documents in those terms were sought to be filed. They are:(1)the proposed interlocutory application (marked A2); and(2)the proposed supporting affidavit of Mr Shaw sworn on 10 May 2016 (marked A3). Mr Shaw provided the Court with a copy of the submissions he made before the Deputy Registrar. In response to that invitation, Mr Shaw provided two bundles of emails. The first bundle may properly be described as submissions made in correspondence to the Deputy Registrar and was received in evidence as proof of those submissions having been made. It is marked A1. The second bundle of emails included correspondence between Mr Shaw and the Victoria District Registry of this Court in relation to the preparation and commencement of these proceedings. Some of that material is irrelevant to the determination of Mr Shaw’s application for judicial review. However, the bundle also includes evidence of a request Mr Shaw made pursuant to s 13 of the Act for a written statement of reasons, and evidence of the Deputy Registrar’s response to that request. The bundle is relevant insofar as it evidences that request and the response made to it. It is marked A4. The Court also had regard to the Notice of Appeal filed in the appeal proceeding. That is a document that Mr Shaw alleges to have been “inadmissible” before the Deputy Registrar. For the reasons given below, I consider him to be wrong about that.The particularised grounds The grounds for review adopt some of the language employed in s 5(1) of the Act. Having regard to Mr Shaw’s written materials, I proceed on the basis that Mr Shaw intends the Court to read his particularised grounds in the manner expressed below. GROUND ONE alleges that a breach of the rules of natural justice occurred in connection with the making the decision within the meaning of s 5(1)(a) of the Act in that the Deputy Registrar did not comply with:(1)a statutory duty to furnish him with a statement of reasons in accordance with s 13 of the Act;(2)a duty arising independently of s 13 of the Act to furnish reasons equivalent in detail to those of a judicial officer of the Court. GROUND TWO alleges that procedures that were required by law to be observed in connection with the making of the decision were not observed within the meaning of s 5(1)(b) of the Act in that;(1)the Deputy Registrar failed to observe a procedural requirement that she only refer to the two documents sought to be filed and no other documents; (2)the Deputy Registrar impermissibly referred to the Notice of Appeal filed in the appeal proceeding;(3)the Deputy Registrar impermissibly made her own assessment, based upon the Notice of Appeal, of the prospects of success of the proposed interlocutory application.

Decision

Reasons for decision

There follows a list of 15 reasons as to why the respondents’ solicitors “would not be seen to be impartial”, together with a lengthy and detailed history of alleged dealings between Mr Shaw and the respondents’ solicitors dating back as early as 2007. Mr Shaw deposes to having appeared self-represented in “dozens of proceedings against the respondents with Mr King & ABL acting for them”. He complains that in those proceedings, Mr King and other solicitors under the employ of ABL have sworn affidavits that were relied upon by the respondents. He makes broad ranging and serious allegations to the effect that the respondents’ solicitors have acted unethically or otherwise inappropriately in the course of those proceedings. The affidavit concludes:I am disappointed that not one judge or barrister appearing against me in all the previous hearings has raised the issue of a potential conflict or to question the ethics of Mr King & his solicitors giving evidence against me & acting as the only witnesses in all of the proceedings.However, taking into account the history & Mr King’s testimony in the annulment hearing, I submit that it is not too late to redress this potential miscarriage of justice or the appearance that justice is not being seen to be done & request that the court restrain ABL from acting further in this proceeding.THE DEPUTY REGISTRAR’S DECISION Rule 2.26 provides:2.26Refusal to accept document for filing—abuse of process or frivolous or vexatious documentsA 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 Deputy Registrar gave reasons for her refusal to accept the proposed interlocutory application and affidavit for filing by way of a letter dated 25 May 2016 (the 25 May Letter). It relevantly stated: I refer to the documents you sought to file at the Court Registry on 11 May 2016. The documents consist of a Form 35 Application under Rule 17.01(1) of the Federal Court Rules 2011 (‘the Rules’) and a supporting affidavit. The documents have been referred to me to decide if they should be accepted for filing.I have reviewed your documents. I note that the documents refer to a range of allegations that also appear to have been raised in the Notice of Appeal (VID182/2016) you filed with the Court on 26 February 2016. I further note that the relief sought in the interlocutory application has no bearing on the conduct of the appeal matter VID182/2016 and, therefore, there would appear to be no utility to the application.In the above circumstances, I am satisfied that your documents comprise an abuse of process. Accordingly, pursuant to r 2.26 of the Rules, I refuse to accept your documents for filing. Mr Shaw received the 25 May Letter by email on that day. The following morning, he sent an email to the Deputy Registrar requesting that the decision be reconsidered. He made submissions challenging the Deputy Registrar’s finding that the relief sought on the proposed interlocutory application would have no bearing on the conduct of the appeal proceeding. He said, among other things:…if my allegations are made out there would be the possibility that the appeal itself would be compromised if the solicitors were allowed to continue. In other words, if the evidence shows that the administration of justice has already been compromised, this situation should not be allowed to continue in the Court of Appeal & during the hearing of the appeal.That is the basis of my application.Applications to restrain solicitors from acting are routinely made in the Federal Court.

Ratio Decidendi

Legal Principle Established

It is against that background that I now turn to consider whether the Deputy Registrar erred in the manner specified in Grounds Three and Four of this application for judicial review.Consideration The reasons of the Deputy Registrar are to be read beneficially and without an eye attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. When considered against those principles, the reasons of the Deputy Registrar should be interpreted as proceeding upon an assumption that the Court may, in an appropriate case, restrain a solicitor from acting or continuing to act in a proceeding before it. The Deputy Registrar’s statement that matters raised in Mr Shaw’s proposed supporting affidavit “are more properly raised with the relevant professional regulator” does not involve a denial of the existence of the Court’s jurisdiction to respond to the allegations by making an order restraining the respondents’ solicitors from acting in the appeal proceeding. The phrase “more properly” is to be read as an expression by the Deputy Registrar of an opinion that there was a more appropriate means, among alternatives, by which Mr Shaw’s complaints ought be resolved. For similar reasons, I reject Mr Shaw’s allegation that the Deputy Registrar failed to take into account the content of the proposed supporting affidavit submitted for filing with the proposed interlocutory application. The 26 May Letter makes direct reference to the affidavit and characterises it as one raising issues that, in the Deputy Registrar’s view, would more properly be resolved by means other than the making of an interlocutory application in the appeal proceeding. The Deputy Registrar’s reasons are concerned not so much with the question of the Court’s power to grant the relief, but with the question of whether the relief, if granted, could have any bearing on the conduct of the appeal proceeding or could otherwise have any utility. Jurisdiction to grant the relief is assumed by the Deputy Registrar, although the utility in the relief is denied. Finally on this issue, I reject Mr Shaw’s contention that the Deputy Registrar failed to take into account the authorities to which he referred in his response to the 26 May Letter. That response was made after the Deputy Registrar’s decision had been made, then reconsidered, then affirmed. Mr Shaw’s response set out the authorities upon which he relied in support of his contention that this Court has the jurisdiction, in an appropriate case, to restrain a solicitor for acting for a party in proceedings before it. As I have already determined, the Deputy Registrar did not fail to recognise the existence of that jurisdiction in any event. It follows that Grounds Three and Four are rejected insofar as they contend that the Deputy Registrar failed to take into account the existence of this Court’s jurisdiction to restrain a solicitor from acting for a party. Ground Three is also rejected insofar as that ground alleges that the Deputy Registrar failed to take into account Mr Shaw’s submissions or authorities going to that topic, or the content of the proposed supporting affidavit submitted for filing with the proposed interlocutory application.Utility