SZVCP v Cho

Case [2017] FCA 310

FEDERAL COURT OF AUSTRALIA

SZVCP v Cho [2017] FCA 310

File numbers: NSD 1944 of 2016
NSD 1995 of 2016
NSD 2056 of 2016
Judge: MARKOVIC J
Date of judgment: 28 March 2017
Catchwords: ADMINISTRATIVE LAW – application for review of decisions made by Registrars of the Federal Court of Australia – where Registrars refused to accept documents for filing pursuant to r 2.26 of the Federal Court Rules – whether Registrars’ decisions were beyond power or an abuse of power – whether Registrars complied with the rules of natural justice – whether Registrars’ decisions were legally unreasonable – standard of legal unreasonableness under s 5(2)(g) of the Administrative Decisions (Judicial Review) Act – whether Registrars took into account irrelevant considerations
Legislation:

Administrative Decisions (Judicial Review) Act 1977 ss 5(1)(a), 5(1)(c), 5(1)(e), 5(2)(a), 5(2)(g), 5(2)(j)

Federal Court Rules 2011 (Cth) rr 2.26

Cases cited:

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

CKI Utilities Development Pty Ltd v Australian Energy Regulator [2016] FCA 17

East Australian Pipeline Pty Ltd v ACCC (2007) 233 CLR 229

Emmett v McCormack [2015] FCA 826

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

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

Paramasivam v Randwick City Council [2005] FCA 369

Satchithanantham v National Australia Bank Limited [2009] FCA 1171

Shaw v Buljan [2016] FCA 829

Date of hearing: Determined on the papers
Date of last submissions: 28 February 2017
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent in NSD 1944 of 2016: The respondent filed a submitting notice
Counsel for the Respondent in NSD 1995 of 2016: The respondent did not appear
Counsel for the Respondent in NSD 2056 of 2016: The respondent filed a submitting notice

ORDERS

NSD 1944 of 2016
BETWEEN:

SZVCP

Applicant
AND:

JAMES CHO (DEPUTY REGISTRAR)

Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

28 MARCH 2017

THE COURT ORDERS THAT:

1.The originating application for judicial review filed on 10 November 2016 be dismissed.

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


ORDERS

NSD 1995 of 2016
BETWEEN:

SZVCP

Applicant
AND:

T MORGAN (DEPUTY REGISTRAR)
Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

28 MARCH 2017

THE COURT ORDERS THAT:

1.The originating application for judicial review filed on 21 November 2016 be dismissed.

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


ORDERS

NSD 2056 of 2016
BETWEEN:

SZVCP

Applicant
AND:

C NG (DEPUTY REGISTRAR)
Respondent

JUDGE:

MARKOVIC J

DATE OF ORDER:

28 MARCH 2017

THE COURT ORDERS THAT:

1.The decision of the Deputy District Registrar made on 23 November 2016 be set aside.

2.The documents the subject of the decision of the Deputy District Registrar made on 23 November 2016, namely…

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AGLC
SZVCP v Cho [2017] FCA 310
Case
[2017] FCA 310
Decision Date

CaseChat Overview and Summary

In the case of SZVCP v Cho, the applicant, SZVCP, sought judicial review of decisions made by the Deputy District Registrars of the Federal Court of Australia, who refused to accept certain documents for filing. The applicant argued that these decisions were unlawful under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). The court was tasked with determining whether the Deputy District Registrars' decisions were contrary to the grounds specified in s 5(1) of the ADJR Act, including whether the decisions were beyond power, an abuse of power, or otherwise legally unreasonable.

The court considered whether the Deputy District Registrars' decisions were made in accordance with the rules of natural justice and whether they complied with the legal requirements set out in the ADJR Act. It specifically examined whether the decisions involved taking irrelevant considerations into account or failing to take relevant considerations into account. Under s 5(2)(a) of the ADJR Act, a decision may be quashed if a breach of the rules of natural justice occurred in connection with the decision-making process. Additionally, s 5(2)(g) allows for quashing if the decision was so unreasonable that no reasonable person could have made it.

The court found that the first two decisions made by the Deputy District Registrars did not contravene any of the grounds set out in s 5(1) of the ADJR Act. However, the third decision was made contrary to s 5(1)(e) of the ADJR Act, which addresses improper exercise of power, read with s 5(2)(a), which pertains to breaches of natural justice. The court concluded that the Deputy District Registrars' decisions were not beyond power or an abuse of power, as they were empowered under Rule 2.26 of the Federal Court Rules 2011 to refuse documents if they were frivolous or vexatious. Nevertheless, the court determined that the third decision was legally unreasonable due to a breach of natural justice.

The court ordered that the decision made by the Deputy District Registrar on 23 November 2016 be set aside. Furthermore, the documents in question—the originating application for relief under s 39B of the Judiciary Act 1903, the statement of claim, and the affidavit sworn on 18 November 2016—were to be referred to a Registrar of the Court, other than the Deputy District Registrar who made the decision, for further consideration. This referral ensures that the documents are reviewed by a different authority, maintaining procedural fairness and addressing the breach of natural justice identified in the court's reasoning.

Orders

Orders of the court

1. The decision of the Deputy District Registrar made on 23 November 2016 be set aside.

2. The documents the subject of the decision of the Deputy District Registrar made on 23 November 2016, namely the originating application for relief under s 39B Judiciary Act 1903 dated 18 November 2016, the statement of claim dated 18 November 2016 and the affidavit of the applicant sworn 18 November 2016, be referred to a Registrar of the Court, not being the Deputy District Registrar who made the decision, 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

Section 5 of the ADJR Act sets out the grounds on which a person who is aggrieved by a decision to which that Act applies may apply to the Court for an order of review. It relevantly provides:Applications 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 Court for an order of review in respect of the decision on any one or more of the following grounds:(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;(c)that the person who purported to make the decision did not have jurisdiction to make the decision;(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;(f)that the decision involved an error of law, whether or not the error appears on the record of the decision;(g)that the decision was induced or affected by fraud;(h)that there was no evidence or other material to justify the making of the decision;(j)that the decision was otherwise contrary to law.(2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:(a)taking an irrelevant consideration into account in the exercise of a power;(b)failing to take a relevant consideration into account in the exercise of a power;(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;(d)an exercise of a discretionary power in bad faith;(e)an exercise of a personal discretionary power at the direction or behest of another person;(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and(j)any other exercise of a power in a way that constitutes abuse of the power.Sub-section 16(1) of the ADJR Act sets out the power of the Court to make orders on an application for an order of review in respect of a decision and relevantly provides:16Powers of the Federal Court and the Federal Circuit Court in respect of applications for order of review(1)On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit Court may, in its discretion, make all or any of the following orders:(a)an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;(b)an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;(c)an order declaring the rights of the parties in respect of any matter to which the decision relates;(d)an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.THE APPLICANT’S SUBMISSIONS

Ratio Decidendi

Legal Principle Established

The applicant has filed submissions on which he relies in all three applications. It is convenient to set them out in full:1. I rely on the grounds Outlined in my Originating Applications, Affidavits and Statements of claims together,2The precedent in the Case of TANIORA V. Commonwealth and others and which is before your honor and was before your Honor and was before Justice Griffitts J. from your Honors Judgement and hopefully would still be heard in March 2017 if it has not been Withdrawn or discontinued before your Honor.3The material that I filled in the Federal Court in 2011 which were heard by two Justices of Federal Court in 2012.It is respectfully Submitted that it is instructive to State that those materials filled in those Proceedings and heard by the Court are sufficiently precedent and Authority in this matter and that the documents before the courts forms a sufficient basis for the matters to be heard and determined by the Court properly in accordance with Chapter iii of the constitution.Further, those materials revealed a challenge on constitutional grounds and its interpretation and therefore, should have been and must be heard by the Court.It is Respectfully submitted that Australian Law does not tolerate the injustices done by the actions of the Deputy Registrars. Their actions and decisions represented a Fundamental Departure and breach of Applicable Principles of Australian Law. The Law provides relief.Their actions and decisions was beyond Power, unreasonable, Illogical, Irrational and plainly unjust and was a denial of Procedural fairness and denial natural Justice.(errors in original)CONSIDERATION The issue that is before the Court for determination is whether each of the decision made by the Deputy District Registrars made contrary to any of the matters set out in s 5(1) of the ADJR Act. There is no reference to that Act in any of the applications. Notwithstanding that I have considered the grounds raised by the applicant by reference to s 5(1) of the ADJR Act where it is apparent that a relevant statutory ground is available. Having done so, in my opinion, the First Decision and the Second Decision were not made contrary to any of the matters set out in s 5(1) of the ADJR Act and the First and Second Applications must fail. However, the Third Decision was made contrary to s 5(1)(e), read with s 5(2)(a), of the ADJR Act. Thus the Third Application succeeds and orders should be made setting aside the Third Decision. My reasons follow. The decision made in each case by the Deputy District Registrars was not beyond power or an abuse of power as alleged. This ground may be taken to be a reference to s 5(1)(c) and s 5(1)(e), read with s 5(2)(j), of the ADJR Act and an allegation that, in each case, the Deputy District Registrar had no jurisdiction to make his decision or improperly exercised his power. Rule 2.26 of the Rules clearly empowers a Registrar to refuse to accept a document if he or she is satisfied that the document is an abuse of process of the Court or it is frivolous or vexatious. The Deputy District Registrars were so satisfied and cannot be said to have acted contrary to ss 5(1)(c) or 5(1)(e), read with s 5(2)(j), of the ADJR Act.