Storry v Parkyn

Case [2024] FCAFC 67

FEDERAL COURT OF AUSTRALIA

Storry v Parkyn [2024] FCAFC 67

Appeal from: Storry v Parkyn [2023] FCA 1141
File numbers: QUD 422 of 2023
QUD 49 of 2024
Judgment of: LEE, FEUTRILL AND JACKMAN JJ
Date of judgment: 28 May 2024
Catchwords:

APPEAL AND NEW TRIAL – where primary judge dismissed an application for judicial review of a Registrar’s decision to refuse to accept documents for filing – where Registrar formed the view the documents on their face were frivolous or vexatious – where appellant sought to set aside judgment refusing application for leave to appeal on the basis of alleged fraud – distinct jurisdiction in equity to set aside perfected common law judgments – where proposed originating application had no reasonable prospects of success – appeal dismissed

ADMINISTRATIVE LAW – application for judicial review of a Registrar’s decision to refuse to accept documents for filing – where matter in the original jurisdiction of the Court referred to the Full Court pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) – nature of appellate jurisdiction – where Registrar formed the view the documents were an abuse of process and otherwise frivolous or vexatious – where decision of Registrar unattended by legal error – application dismissed

Legislation:

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

Bankruptcy Act 1966 (Cth) ss 58, 116

Family Law Act 1975 (Cth)

Federal Court of Australia Act 1976 (Cth) Pt VAAA, Div 2, ss 20(1A), 24, 33, 35A(5), 37AO, 37AO(2)(b), 37AO(3), 37AO(4)

Federal Court Rules 2011 (Cth) rr 2.26, 39.05

Judicature Act 1873 (UK)
Cases cited:

Clone Pty Ltd v Players Pty Ltd (in liquidation) [2018] HCA 12; (2018) 264 CLR 165

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Fuller v Toms [2015] FCAFC 91; (2015) 234 FCR 535

Hazel-Atlas Glass Co v Hartford Empire Co 322 US 238 (1944)

Jones v Skyring (1992) 66 ALJR 810

Monroe Schneider Assocs (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234

Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 146

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Re Barrell Enterprises [1973] 1 WLR 19

Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262

Storry and Office of Fair Trading (Victoria) [2021] AATA 5329

Storry v Australian Financial Security Authority [2024] QCA 55

Storry v Business Licensing Authority (No 2) [2023] FCA 102

Storry v Business Licensing Authority (No 3) [2023] FCA 245

Storry v Business Licensing Authority [2022] FCA 1321

Storry v Business Licensing Authority [2023] FCA 964

Storry v Business Licensing Authority, Office of Fair Trading (Victoria) [2023] HCASL 184

Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30

Storry v Chief Executive, Department of Justice and Attorney General [2024] QCA 22

Storry v Chief Executive, Department of Justice and Attorney-General [2022] QCATA 43

Storry v Commissioner of Police [2017] QDC 282

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AGLC
Storry v Parkyn [2024] FCAFC 67
Case
[2024] FCAFC 67
Decision Date

CaseChat Overview and Summary

The case of Storry v Parkyn involved Ms Venetia Louise Storry, who sought judicial review of a Registrar's decision to refuse to accept documents for filing. The Registrar had formed the view that the documents were frivolous or vexatious and amounted to an abuse of process. The case was heard before Rangiah J, who dismissed the application for judicial review. Ms Storry then sought to set aside the judgment refusing her application for leave to appeal on the basis of alleged fraud. The court had to decide whether the narrow and historically distinct power in equity to set aside a judgment obtained at law operated to void the decree obtained by fraud and whether the Registrar's decision was attended by legal error.

The court found that the narrow and historically distinct power in Chancery to set aside a judgment obtained at law did not operate to void the decree obtained by fraud. The power in equity survived the procedural fusion of law and equity and applied to perfected common law judgments. However, the court concluded that Ms Storry had failed to demonstrate any legal error by the Registrar in making the assessment that the documents were frivolous or vexatious and in refusing to accept the documents for filing. The proposed originating application had no reasonable prospects of success.

Accordingly, the appeal was dismissed. The court also ordered that Ms Storry be prohibited from instituting proceedings in the court without making an application for leave to institute proceedings in accordance with section 37AR of the Federal Court of Australia Act 1976 (Cth). The court further ordered that any oral hearing in relation to the making of a vexatious proceedings order be listed for hearing by the Full Court on a date to be fixed following 28 June 2024. Finally, the court dismissed the originating application for judicial review dated 31 January 2024.

Orders

Orders of the court

In QUD 422 of 2023:

1. Subject to Orders 2 and 3 below, the appeal be dismissed.

2. On or by 28 June 2024, the appellant:

(a) file any material upon which she intends to rely to oppose an order (proposed order) being made in the following terms:

Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Ms Venetia Louise Storry be prohibited from instituting proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

(b) notify the Registry in writing as to whether she wishes to have an oral hearing in relation to whether the proposed order ought to be made by the Full Court and, in the absence of such notification, the issue as to whether the proposed order ought to be made be dealt with on the papers by the Full Court.

3. Any oral hearing in relation to the making of a vexatious proceedings order under Pt VAAA, Div 2 of the Federal Court of Australia Act 1976 (Cth) is to be listed for hearing by the Full Court on a date to be fixed following 28 June 2024.

In QUD 49 of 2024:

4. The originating application for judicial review dated 31 January 2024 be 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

This was the administrative decision which came before Rangiah J exercising the judicial power of the Court. B.2 The Decision of the Primary Judge The application before the primary judge, among other things, was that the decision of the Registrar be set aside. Although Ms Storry had initially sought review of the Registrar’s decision pursuant to s 35A(5) of the FCA Act, his Honour, with respect correctly, pointed to authority that a decision of a Registrar under FCR 2.26 is not reviewable under that section: see Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 146 (at 171 [37] per Barker, Banks-Smith and Colvin JJ). His Honour, however, noted that a decision under FCR 2.26 is amenable to review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Nyoni (at 172 [41])) and, accordingly, regarded Ms Storry as having sought judicial review of the Registrar’s decision under that section (at J [5]). As it emerged during the course of oral submissions, Ms Storry’s attack upon the primary judge’s reasons was that his Honour misapprehended the nature of her claim. As will already be evident, what Ms Storry was seeking was an order setting aside the orders made by Sarah C Derrington J on 15 August 2023 (see above (at [9])) and, in doing so, alleged that that judgment had been obtained by “fraud” in two respects. The first was that false evidence had been placed before the Queensland Civil and Administrative Tribunal (QCAT) and, later, the Supreme Court of Queensland. The second was that the BLA had determined that Ms Storry had provided a false statement when it knew that the statement was in fact true (at J [12])). His Honour noted (at J [13]) that the power of the Court to set aside its own perfected judgment for fraud requires actual fraud, and that the fraud be proved by fresh evidence not available to the moving party before the judgment was delivered: Clone Pty Ltd v Players Pty Ltd (in liquidation) [2018] HCA 12; (2018) 264 CLR 165 (at 175 [2], 196 [65] per Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); see also Monroe Schneider Assocs (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 (at 241 per Spender, Gummow and Lee JJ); Spalla v St George Motor Finance Ltd (No 5) [2004] FCA 1262 (at [60]–[61] per French J). Ms Storry contends that his Honour erred and confused the nature of a requirement existing in relation to the statutory concept of an appeal against a judgment, with the distinct jurisdiction in equity (which survived the procedural fusion of law and equity occasioned by the Judicature Act 1873 (UK) reforms) to allow a judgment at law obtained by fraud to be set aside in equity. As the High Court explained in Clone v Players (at 193–194 [56]): The power of a court of equity to rescind its own decrees for fraud was unaffected by the provisions of the Supreme Court of Judicature Act. Indeed, the power expanded to apply also to perfected common law judgments (109), the execution of which could no longer be restrained by a common injunction (110). As an exception to finality, the power survived the statutory regime which defined the powers of appellate courts because it was, and remained, a “narrowly defined” (111) exception and was therefore tolerable. …(Citations omitted)

Ratio Decidendi

Legal Principle Established

The narrow and historically distinct power in Chancery to set aside a judgment obtained at law did not operate to void the decree obtained by fraud. Rather, Chancery acted in personam against the party having the benefit of the judgment so as to prevent that party taking any advantage from it in circumstances where enforcement of the judgment would be contrary to conscience: Monroe Schneider (at 239); Hazel-Atlas Glass Co v Hartford Empire Co 322 US 238 (1944) (at 245 per Black J). It has been said that this power derives from equity’s jurisdiction to unravel the consequences of fraud: Re Barrell Enterprises [1973] 1 WLR 19 (at 24 per Russell LJ). B.3 Consideration Whatever be the merits of Ms Storry’s argument in this regard, it is beside the point. It is evident that the proceeding before Sarah C Derrington J was an application for leave to appeal against the judgment of a Judge of the Court. There is no basis for suggesting that her Honour was misled as to the application of the well-known principles governing the criteria for granting leave to appeal set out in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (at 398 per Sheppard, Burchett and Heerey JJ). Ms Storry did not appear to grasp before the primary judge the distinction between contending that the judgment of Sarah C Derrington J was obtained by fraud with the separate notion that earlier proceedings in the Tribunal and QCAT were affected by evidence Ms Storry regards as fraudulent. In this respect, Ms Storry’s attack upon the primary judge’s reasons must fail. His Honour was correct to conclude that Ms Storry, in substance, was attempting to reopen the application for leave to appeal to raise allegations that were known to her and capable of being agitated before Sarah C Derrington J and in the earlier proceedings to the extent they were relevant. That finding was at the heart of the primary judge’s reasoning (at J [14]) and was not the subject of any direct challenge by Ms Storry in her submissions in this proceeding. Accordingly, the primary judge held (at J [15]) that the proposed originating application had no reasonable prospects of success, and the Registrar was correct to conclude that the documents on their face were frivolous or vexatious which, if accepted for filing, would constitute an abuse of process. We agree with the conclusion of the primary judge. Ms Storry had failed to demonstrate any legal error by the Registrar in making that assessment and in refusing to accept the documents for filing. B.4 Conclusion For these reasons, the appeal must be dismissed. C THE ORIGINAL JURISDICTION PROCEEDINGC.1 The Application In the original jurisdiction proceeding, by an originating application for judicial review dated 31 January 2024 (judicial review application), Ms Storry seeks two orders:1. An order that the decision of Registrar Stewart be set aside.2. The decision of Justice Logan be listed to be set aside pursuant to s 25(2B)(ab) [of the FCA Act].