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Federal Court of Australia |
Last Updated: 7 April 2005
FEDERAL COURT OF AUSTRALIA
Paramasivam v Randwick City Council [2005] FCA 369
PRACTICE and PROCEDURE – proceedings seeking judicial
review of a refusal of a Registrar to issue initiating process following
direction by a Judge
– summary dismissal application – whether
judicial review proceedings have any prospect of success – whether
arguable
case that Registrar took into account irrelevant considerations –
Federal Court Rules O 46 r 7A
Administrative Decisions
(Judicial Review) Act 1977 (Cth) s 5
Human Rights and Equal
Opportunity Commission Act 1986 (Cth) ss 46PH, 46PO
Sex Discrimination
Act 1984 (Cth) ss 5, 22
Racial Discrimination Act 1975 (Cth) ss 9,
13
Federal Court of Australia Act 1976 (Cth)
Federal
Court Rules (Cth) O 20 r 2, O 46 r 7A
High Court Rules 1952
(Cth) O 58 r 4(3)
High Court Rules 2004 (Cth) r
6.07
Seven Network Ltd v News Ltd (No 4) [2005] FCA 244
cited
Legal Aid Commission v Edwards (1982) 42 ALR 154
considered
Letts v Commonwealth (1985) 8 FCR 585
considered
Bizuneh v Minister for Immigration and Multicultural and
Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353
followed
GAJA LAKSHMI
PARAMASIVAM v RANDWICK CITY COUNCIL and OTHERS
NSD 124 of
2005
SACKVILLE J
SYDNEY
7 APRIL
2005
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GAJA LAKSHMI PARAMASIVAM
APPLICANT |
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AND:
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RANDWICK CITY COUNCIL
FIRST RESPONDENT LANCE GRANT (a Deputy District Registrar of the Federal Court of Australia) SECOND RESPONDENT THE HONOURABLE JUSTICE PETER JACOBSON (a Judge of the Federal Court of Australia) THIRD RESPONDENT |
|
DATE OF ORDER:
|
|
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The Deputy District Registrar of the Court (Mr Lance Grant) and the Honourable Justice Peter Jacobson (a Judge of the Federal Court of Australia) be joined as respondents to the proceedings. 2. The applicant’s motion filed 21 March 2005 be otherwise dismissed. 3. The Council’s motion filed 3 March 2005 be dismissed. 4. There be no order as to the costs of the motions referred to in orders 2 and 3. 5. The matter be listed for further directions on 28 April 2005 at 9.30 am.
Note: Settlement and entry of orders is
dealt with in Order 36 of the Federal Court Rules.
|
GAJA LAKSHMI PARAMASIVAM
APPLICANT |
|
|
AND:
|
RANDWICK CITY COUNCIL
FIRST RESPONDENT LANCE GRANT (a Deputy District Registrar of the Federal Court of Australia) SECOND RESPONDENTS THE HONOURABLE JUSTICE PETER JACOBSON (a Judge of the Federal Court of Australia) THIRD RESPONDENT |
REASONS FOR JUDGMENT
THE PROCEEDINGS
1 In these proceedings (the ‘judicial review proceedings’) the applicant seeks review of what is said to be an administrative decision, namely the decision
‘to refuse to accept my complaint against the Randwick City Council’.
The judicial review application is made pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’).
2 The applicant has filed the judicial review application because she is dissatisfied with the refusal of this Court to accept a previous application and supporting affidavit she sought to file. By that application (‘the discrimination application’) she sought relief under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’) in respect of what she claimed was ‘unlawful discrimination’ by the first respondent (‘the Council’).
3 On 21 December 2004, a Deputy District Registrar of the Court (‘the Registrar’) sought a direction from a Judge pursuant to Federal Court Rules (‘FCR’), O 46 r 7A in relation to the discrimination application. On 23 December 2004, Jacobson J directed the Registrar to refuse to accept the discrimination application and supporting affidavit. His Honour did so on the ground that there was no
‘evidence showing that [the applicant] was treated less favourably by reason of sex or race’.
4 FCR, O 46 r 7A, provides as follows:
‘If a document presented to a Registry in any proceeding, including any document which is or will if issued become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar may refuse to accept or issue it or may seek the direction of a Judge who may direct him:
(a) to accept or issue it; or
(b) to refuse to accept or issue it; or
(c) to refuse to accept or issue it without the leave of a Judge first had and obtained.’
‘Registrar’ includes a Deputy District Registrar of the Court: O 1 r 4.
5 The judicial review application names only the Council as a respondent. The applicant has filed a motion seeking to join as respondents ‘the Registrar and the Duty Judge of the Federal Court who rejected my [discrimination] application’. The motion names the Registrar and identifies Jacobson J as the Duty Judge. The Registrar and Jacobson J have appeared by a solicitor and do not object to being joined as respondents to the judicial review application. Mr Markus, who appeared on their behalf, informed the Court that they submit to any orders of the Court save as to costs.
6 The Council has filed a motion seeking, relevantly, an order that the judicial review application be dismissed or permanently stayed pursuant to FCR, O 20 r 2, on the basis that no reasonable cause of action is disclosed or that the proceedings are frivolous and vexatious. At the time the Council filed its motion, it did not have a copy of the memorandum sent by the Registrar to Jacobson J seeking a direction pursuant to O 46 r 7A. The relevant file was made available to the parties at the hearing of the motion and the memorandum was duly tendered by the Council. As Mr Fraser, who appeared for the Council, recognised, the memorandum made it difficult for the Council to contend that the applicant’s case in these judicial review proceedings is hopeless.
BACKGROUND
The Dispute with the Council
7 The applicant is the co-owner (with her husband) of a unit in Coogee. The discrimination proceedings in this Court have their origins in the applicant’s objection to owners of other units in the building using them as serviced apartments. One such unit was owned by a Mr C. The applicant became dissatisfied with the responses of the Council to her objections to the continued use of units as serviced apartments, in particular that owned by Mr C.
8 In a letter to the Council dated 3 September 2004, the applicant complained that two letters from the Council had been addressed only to her husband, even though she was a co-owner of the unit. The applicant complained that the omission of her name was
‘unlawfully discriminatory on the basis of our sexes, with a view to giving me lower status than my husband. This effectively discredits my work [in objecting to development approval being given to the owners of the other units]’.
She advised the Council that she intended to complain to the Human Rights and Equal Opportunity Commission (‘HREOC’).
9 The Council wrote to the applicant on 1 October 2004, as follows:
‘I refer to your recent email regarding Council’s response to your submission concerning the application to vary the use of dwellings within levels 9 and 10 of the building in which you live.
I advise that letter dated 30th August was addressed to your husband alone because Council’s property information system which is used to generate letters to property owners indicated your husband as the sole owner of your dwelling.
I apologise for any offence caused, which I can assure you was entirely unintended.’
The Complaint to HREOC
10 In the meantime, the applicant lodged a complaint with HREOC. The letter of complaint was not in evidence before me. However, the President of HREOC, in a letter dated 22 November 2004, summarised the applicant’s complaint as follows:
‘In your correspondence received by this Commission on 3 September 2004, you state that the [Council] has discriminated against you on the basis of your sex. You claim that you had been involved in an application under s 96 of the Environmental Planning and Assessment Act 1979 [(NSW)] regarding conditions of consent in your apartment block which was before the [Council]. You state that on 19 April 2004 and again on 30 August 2004, the [Council] wrote to your husband in relation to this application process and you claim that addressing correspondence to your husband only when you are a joint owner of the property and not communicating with you directly about your submission is an act of sex discrimination.’
11 The President’s letter recorded that the Council had given the same explanation to HREOC as it had previously given to the applicant for omitting her name from the correspondence. The Council informed HREOC that it had reviewed its procedures to prevent a recurrence of any similar error.
12 The President’s letter enclosed a formal determination, issued pursuant to s 46PH(2) of the HREOC Act, terminating the complaint pursuant to s 46PH(1)(c) on the ground that it was ‘lacking in substance and misconceived’.
13 The President’s reasons for terminating the complaint noted that the complaint had been investigated as a possible breach of ss 5 and 22 of the Sex Discrimination Act 1984 (Cth) (‘SDA’). The reasons explained the decision to terminate the complaint as follows:
‘Section 5 of the [SDA] states that sex discrimination occurs if by reason of a person’s sex...
"the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex."
That is, to establish discrimination on the basis of sex under the [SDA] you must show that you were treated less favourably than a man in the same or similar circumstances would have been treated and this were because of your sex. It is not sufficient that you are unhappy with the treatment that you received and that you are a female.
Furthermore section 22 of the SDA states that:
"It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
While it is not in dispute that the [Council] wrote to Mr Paramasivam [the applicant’s husband] and did not include your name in their correspondence of 19 April 2004 and again on 30 August 2004, the [Council] claims that this was an administrative error which has now been rectified. There is no evidence before me, other than your belief, that supports your claim that the act of not including your name on [the Council’s] correspondence about the consent application process and the approval notification, was based on your sex and constitutes unlawful discrimination. Nor is there any evidence before me to not accept the [Council’s] explanation [that] this was an administrative oversight only. Furthermore, I understand that notwithstanding your name was omitted from the letter of 19 April 2004 you in fact made a submission to the Council on 28 April 2004 whereas your husband did not. Although the second letter of 30 August 2004 from the [Council] which acknowledged your submission along with its decision was only addressed to Mr Paramasivam, the [Council] claims this too was an administrative error. Therefore I am satisfied that this aspect of your complaint is also lacking in substance.
Accordingly, in the circumstances, I have decided to terminate your complaint as I am of the view that the complaint is lacking in substance and misconceived pursuant to section 46PH(1)(c) of the HREOC Act.’
The Discrimination Application
14 On 20 December 2004, the applicant sought to file three documents in the Court Registry. The first was an application (Form 5) seeking a declaration that the Council
‘has committed unlawful discrimination and directing [the Council] not to repeat or continue such unlawful discrimination’.
The application also sought orders that the Council restore the applicant’s ‘special rights’ before the resolution granting development consent in relation to Mr C’s unit was approved or pay damages of ‘$500,000 to compensate for the fall in value that resulted due to not including my wisdom in making the said decision’.
15 The second document was an application (Form 167) under the HREOC Act alleging unlawful discrimination. The application recorded the alleged discrimination as follows:
‘My submissions as a resident were ignored which resulted in me losing opportunities to participate in local governance & loss of property. This was confirmed when the Council heard Mr [C] to his advantage. In addition, the Council left my name out of their communication but addressed it to my husband only.’
The document also indicated that the application to the Federal Court was being made pursuant to s 46PO of the HREOC Act and that the actions taken by the Council were unlawful under ss 5 and 22 of the SDA and ss 9 and 13 of the Racial Discrimination Act 1975 (Cth).
16 The third document was an affidavit accompanying the application. This referred to the applicant’s complaints against Mr C and claimed that Mr C had ‘brainwashed’ the other unit owners. The applicant repeated her allegation that the letters by the Council had been addressed to her husband and that ‘this was due to [Mr C’s] influence on the Council’.
17 The affidavit continued as follows:
‘I believe that the Council treated me less favourably than other males such as Mr [C] who successfully used the Council to carry out his wishes. The Council has not provided evidence that my opposition to the proposal by Mr [C] was considered before the proposal was approved. These changes have diminished the value of my property relative to the original valuation which placed a premium on my unit due to the restrictions and the resulting higher quality of our environment ...
I believe that I have been treated less favourably than Mr [C]. This could be due to my race and / or gender. Since the Human Rights Commission seeks gross level proof for unlawful [race] discrimination, I sought investigations on the basis of my gender.
...
Since the Council has admitted to the discrimination by calling it an administrative error, I concluded that it has been established that there was discrimination, if not consciously, then negligently. Since I have been an active participant in these issues but failed to receive a direct response, whereas Mr [C] had his wishes fulfilled, and my husband who was not at all involved in these issues was included in the routine ...
I believe that I have established that there is discrimination and that it has been proven to be "subjective". The Council’s letters indicate that the reason could be gender. I believe it is also my race.’ (Emphasis in original.)
The Direction
18 On 21 December 2004, the Registrar wrote a memorandum to the Duty Judge as follows:
‘On 20 December 2004, [the applicant] presented the enclosed Application (dated 20 December 2004) and affidavit in support to the Registry.
By way of background I have enclosed a copy of a memorandum from ... a former Deputy District Registrar ... dated 18 March 2002 that sets out the history of applications made to that date. I have not attempted to update it.
It appears to me that the Application, on its face, is an abuse of the process of the Court or is frivolous or vexatious.
I seek your direction under O 46 r 7A.’
19 The memorandum enclosed by the Registrar was to an Associate of a Judge seeking a direction from the Judge in relation to another application the applicant wished to file. The memorandum of 18 March 2002 sets out a brief history of a number of proceedings the applicant had instituted or sought to institute in this Court.
20 Jacobson J endorsed the Registrar’s memorandum on 23 December 2004, directing the Registrar to refuse to accept or issue the documents. His Honour recorded in handwriting that his reason for making the direction was that there was:
‘No evidence showing that [the applicant] was treated less favourably by reason of sex or race’.
21 On 24 December 2004, the Registrar wrote to the applicant as follows:
‘I refer to the Application (Form 5) supported by an Application Alleging Unlawful Discrimination (Form 167) and an affidavit that were presented to the Registry on 20 December 2004, which you sought to have accepted for filing.
The documents were submitted to the Honourable Justice Jacobson pursuant to Order 46 Rule 7A of the Federal Court Rules and his Honour has directed that the Registrar refuse to accept or issue it on the basis that there was "no evidence showing that [the applicant] was treated less favourably by reason of sex or race".’
A Further Complaint to HREOC
22 The applicant wrote to a delegate of HREOC on 30 December 2004. The flavour of the letter can be gleaned from the following passages:
‘I believe that the Federal Court is discriminating against me on the basis of my race and is victimizing to stop me from seeking justice through their system. Since there is no "order" specifically against me, I see no reason why my matters are being "blocked" at the Registry level. If it is specifically against me, then this needs to be highlighted and not covered up under "lack of evidence".
...
Had I been a stranger to Federal Courts, then the documents ought to have been used on the same basis as any other person. Since I have used the Registry system many times in the past, I am entitled to an explanation in relation to my past experience where the documents were accepted without further investigation. The Federal Court Registry does not have the lawful right to single me out.
...
The Federal Court Registry has used its Management language and not its Administrative language to make the decision to reject my application. As per the Truth they have found out about me, they have placed me in a lower position than an unknown Australian seeking their services. They have thus labeled me an "abuser" of their system.
...
Others may consider the Federal Court system higher than the Human Rights Commission’s system. I do not. The Federal Court has lost its way by failing to uphold Truth. This is not different to the Church system that lost its way due to forced recruitment of members who were not ready to forego pleasures and therefore were better suited for the family system.
...
The Federal Court has abused the "Certificate" given by the Human Rights Commission about my position in the legal community. Had the Commission done more work to use the right terminology to describe the reason for termination, the Federal Court would not have had the tools through which to express their corporate racism.’
23 HREOC treated the applicant’s letter as a complaint that the Federal Court had breached s 9 of the RDA. In terminating the complaint, the President of HREOC noted that to establish a complaint of racial discrimination under the RDA it is not sufficient for a person to show that he or she is of a different race or ethnic origin and has suffered unfair treatment. The unfair treatment must be based on or be sufficiently connected with his or her race or ethnic origin. The letter continued as follows:
‘Although, in my view, it is doubtful that you have provided evidence which supports that your application was refused by the [Court] because of your ethnic origin or race, I note that in accordance with case law a decision made pursuant to Order 46 rule 7A of the Federal Court Rules is an administrative decision. I am of the view this complaint would be more appropriately dealt with by making an application for review under the [ADJR Act] with the [Court]. I have enclosed copies of sections 5 and 11 of the ADJR Act for your information. Therefore, I have terminated your complaint pursuant to section 46PH(1)(e) of the [HREOC Act] on the basis that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available.’
24 The applicant apparently followed the President’s suggestion and instituted the judicial review proceedings. The initiating process in these proceedings was also referred to a Judge of the Court by a Registrar pursuant to FCR, O 46 r 7A, but his Honour directed that the Registrar issue it.
THE GROUNDS OF THE JUDICIAL REVIEW APPLICATION
25 The judicial review application states that the applicant is aggrieved for the following reasons:
‘The applicant believes that the Registrar & Duty Judge were discriminating on the basis that the applicant had previously filed similar applications. The applicant therefore considers this to be victimization for seeking the services of the Human Rights & Equal Opportunity Commission.
The applicant’s previous complaints with this Registry were accepted by the officers at the counter.
The applicant believes that she is being denied due service through subjective decision by the Registrar & the Duty Judge.’
26 The grounds of the application are said to be s 5(1)(a), (b), (e) and (h) and s 5(2)(b), (e) and (h) of the ADJR Act. No particulars of those grounds are provided. The relief sought is a direction to the Registrar to accept ‘the complaint as if the applicant was not known to them’.
27 Section 5 of the ADJR Act provides as follows:
‘(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 Magistrates 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;
...
(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;
...
(h) that there was no evidence or other material to justify the making of the decision; (i) 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;
...
(e) an exercise of a personal discretionary power at the direction or behest of another person;
...
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
...
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.’
PRINCIPLES ON A SUMMARY JUDGMENT APPLICATION
28 FCR, O 20 r 2 provides as follows:
‘(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding:
(a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).’
29 The principles regarding summary dismissal applications are well settled. Recently, in Seven Network Ltd v News Ltd (No 4) [2005] FCA 244, I said (at [14]):
‘It is only a very clear case indeed that will justify the summary intervention of the Court, since litigants are not to be deprived the right to submit genuine controversies for determination: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, at 91-92, per Dixon J. Accordingly, the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, at 129-130, per Barwick CJ; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, at 99, per curiam. A Full Court of this Court in Australian Building Industries Pty Ltd v Stramit Corporation Ltd [1997] FCA 1318, approved the formulation of Millett J in Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D), at 5 as follows:
"A plaintiff is entitled to pursue a claim in these courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of process of the court, it must be allowed to proceed to trial." ’
30 The standard the Council has to satisfy is therefore very high.
THE NATURE OF THE DECISION
31 The nature of a decision not to accept or issue documents pursuant to FCR, O 46 r 7A, or similar powers, has been considered in several cases.
32 In Legal Aid Commission of Western Australia v Edwards (1982) 42 ALR 154, the Commission sought to file in the Family Court of Western Australia a notice disputing a bill of costs presented by a firm of solicitors acting for a legally aided party. The Registrar of the Family Court declined to accept the notice on the ground that the Court had no jurisdiction to deal with the dispute. The Commission sought judicial review in the Federal Court of the Registrar’s decision, invoking s 5 of the ADJR Act.
33 Toohey J held that:
(i) the Registrar’s refusal to accept the notice was a ‘decision’ made by him;
(ii) the decision was made ‘under an enactment’, namely the Family Law Act 1975 (Cth) and the regulations thereunder; and
(iii) the decision was of an administrative character.
34 Toohey J pointed out (at 601) that the decision had been made by a Deputy Registrar on his own initiative, with the consequence that there would be no assessment of costs. His Honour said (at 602) that the decision:
‘had none of the formal or procedural attributes associated with judicial decisions. There was no hearing, albeit reasons were offered for the decision.’
Accordingly, his Honour considered that the Registrar’s decision could be reviewed pursuant to the ADJR Act.
35 In Letts v Commonwealth (1985) 8 FCR 585, a Registrar of the High Court, acting in accordance with the High Court Rules 1952, O 58 r 4(3), sought the direction of a Judge in relation to initiating process Mr Letts sought to have issued. The sub-rule required the Registrar to take this step where the process presented to the Registry appeared to him to be an abuse of the Court’s process. (See now High Court Rules 2004, r 6.07, which is in substantially the same terms as FCR, O 46 r 7A.) Mason ACJ, pursuant to the same sub-rule, directed the Registrar not to issue the process without prior leave of a justice. Mr Letts challenged the decision of the Registrar to refer the matter to a justice under the ADJR Act.
36 Toohey J held that although the Registrar had made a decision, it was not a decision of an administrative character. His Honour reasoned as follows (at 587):
‘The Registrar was in truth exercising the jurisdiction of the High Court to control frivolous or vexatious applications, a jurisdiction that may be exercised through officers of the court as well as justices. "Although he was not a member of the court he was ... part of the organisation through which the powers and jurisdiction of the court were exercised...": see Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; (1982) 150 CLR 49 per Gibbs CJ at 59. Order 58, [r 4(3)] provides convenient machinery by which a matter may be brought to the attention of a justice of the High Court. In this regard Legal Aid Commission of Western Australia v Edwards may be distinguished for there the action of the Deputy Registrar of the Family Court in refusing to accept a notice disputing a bill of costs was not readily susceptible of review by a judge of that Court.
Furthermore Mr Letts was not truly a person aggrieved by the Registrar’s decision. The Registrar’s actions did not of themselves materially affect him; it was the decision of the Acting Chief Justice that precluded the Registrar from accepting Mr Letts’ documents and that decision had built into it the machinery by which Mr Letts may seek leave to issue process.’
37 In Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353, the issue was the competency of an application for leave to appeal from a direction given by a Judge of the Court to the Registrar, pursuant to FCR, O 46 r 7A, not to accept an application. The Full Court held that the application for leave to appeal was incompetent because the direction was a determination of administrative obligations with respect to the presentation of documents to a Registrar.
38 The Court pointed out (at [13]) that O 46 r 7A, in its original form, was inserted into the FCR in 1983. At that time it read as follows:
‘If a document in any proceeding, including any originating document, appears to a Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious, the Registrar shall seek the direction of a Judge who may direct him to issue it or to refuse to issue it without the leave of a Judge first had and obtained by the party seeking to issue it.’
39 Their Honours considered (at [15]-[19]) that the rule in its current form, which was introduced in 1985:
‘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.
No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a judge as to performance of the Registrar’s duties, the direction sought is administrative in character. It is a direction provided by a judge to assist the Registrar in the task of administration and is not a determination of right made by a judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.
Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a judge where assistance is provided to a Registrar under r 7A.
A direction pursuant to the rule either assures a Registrar that he, or she, would not breach a duty by refusing to accept or issue a document, or advises the Registrar that a document, rejection of which is being considered by the Registrar, should be accepted, the judge being unable to form a view on the face of the document that the Registrar is entitled to reject it. Further, the Registrar may be directed by the judge to inform the party who has presented the document that the Registrar will not accept it until that party has obtained leave from a Judge to lodge or file the document. An application to a judge for such leave, pursuant to which submissions would be presented and considered, would be determined in the exercise of judicial power.
It should be concluded, therefore, that a mere direction under O 46 r 7A is not a judgment able to be subjected to appeal by a person whose document has been rejected by the Registrar pursuant to the direction. Similarly, a respondent against whom litigation is commenced by a document accepted and issued by a Registrar, acting under a direction of a judge pursuant to r 7A, cannot subject that direction to an appeal. If such a respondent contends that the originating document as filed involves an abuse of process or is frivolous or vexatious, the respondent may, by motion under O 20 r 2 of the Rules, seek a summary judicial determination that the proceeding be stayed or dismissed.’ (Emphasis added.)
40 It will be observed that the Court in Bizuneh was apparently not referred to the decision of Toohey J in Letts. Had the reasoning in Letts been followed, it would seem that the Judge’s direction would have been regarded as a judicial act, although there still would have been a serious question as to whether the direction (or the Registrar’s actions pursuant to the direction) constituted a ‘judgment’ for the purposes of the Federal Court of Australia Act 1976 (Cth) and thus whether it could be the subject of an appeal or an application for leave to appeal.
41 In my opinion, there is, with great respect, some doubt about the reasoning in Bizuneh insofar as it classifies a direction by a Judge pursuant to O 46 r 7A as ‘administrative in character’. However, I am bound by the decision. Even if the Court’s observations on this issue could be regarded as obiter, I would follow them on a summary dismissal application.
42 In any event, the Council did not dispute that the refusal by the Registrar to accept the applicant’s initiating process was a decision to which the ADJR Act applies (although the Council’s written submissions did not make clear whether the relevant decision was that of the Judge or of the Registrar acting at the direction of the Judge). The Council also accepted for the purposes of the summary dismissal application that the applicant is a ‘person aggrieved’ within the meaning of s 5(1) of the ADJR Act.
REASONING ON THE SUMMARY DISMISSAL APPLICATION
43 The applicant’s case in the judicial review proceedings, as pleaded, appears to be that the Registrar and Jacobson J discriminated against her in some way because she had sought to complain to HREOC about the treatment she had received at the hands of the Council. Generally speaking, the applicant’s written submissions are difficult to follow and do little to elucidate her claim. However, in her written submissions in reply to the Council’s submissions, the applicant contends that the Registrar (and presumably Jacobson J) did not limit themselves to considering the documents that she sought to file ‘on [their] face’, as required by FCR, O 46 r 7A. She submits that the Registrar (and presumably Jacobson J) took account of her Asian background and also the fact that she has made previous unsuccessful applications to the Court alleging race-based discrimination.
44 FCR, O 46 r 7A applies where a document presented to a Registry in any proceedings, including any originating process:
(i) appears to a Registrar;
(ii) on its face;
(iii) to be an abuse of the process of the Court or to be frivolous or vexatious.
In these circumstances, the Registrar has the power to refuse to accept or issue the document or may seek the direction of a Judge. When the direction is sought, the Judge is empowered to direct the Registrar to:
• accept or issue the document;
• refuse to accept or issue it; or
• refuse to accept or issue it without prior leave of a Judge.
45 The expression ‘on the face’, according to Butterworths Australian Legal Dictionary refers to
‘the immediate and apparent meaning of something written; the meaning to be given to a word or phrase upon first glance; the literal meaning as opposed to any subjective meaning that may be given by inference or extrapolation’.
There is little doubt that if a Registrar refuses to accept a document for filing or seeks the direction of a Judge in relation to that document on the basis of the person’s litigious history (unless perhaps the history is revealed on the face of the document itself), the Registrar has not confined himself or herself to a consideration of the relevant document ‘on its face’.
46 FCR, O 46 r 7A, confers on the Registrar certain powers if he or she forms a particular opinion. The requisite opinion is that a document presented to a Registry on its face is an abuse of the Court’s process or is frivolous or vexatious. If the Registrar forms that opinion, he or she may, without more, refuse to accept or issue the document. Alternatively, the Registrar may seek the direction of a Judge. Although r 7A does not expressly say so, it is clearly intended that the Registrar must act in conformity with the Judge’s direction.
47 The Registrar’s power to seek the direction of a Judge is thus conditional on the Registrar forming the opinion that the relevant document on its face is an abuse of the process of the Court or is frivolous or vexatious. It would seem to follow that if an applicant can establish that a Registrar who sought the direction of a Judge in relation to a document presented to the Registry:
• did not form the requisite opinion; or
• although forming an opinion that the document was an abuse of process, did so after taking into account matters other than the contents of the document itself,
it is at least arguable that the Registrar’s decision to seek the direction is amenable to judicial review under the ADJR Act. In the first case, the Registrar’s decision would not seem to have been authorised by the relevant enactment (that is, the FCR) and thus the applicant could invoke s 5(1)(d) of the ADJR Act (providing a ground of review where the decision was not authorised by the enactment). In the second case an irrelevant consideration would have been taken into account and thus the applicant could invoke s 5(1)(e) of the ADJR Act (see s 5(2)(a)).
48 It is also arguable that any direction given by a Judge not to accept the document is liable to be set aside if the precondition to the power to give such a direction has not been satisfied. This may be so notwithstanding that the Judge has confined himself or herself to the contents of the document presented to the Registry and on that basis has concluded that the document on its face is an abuse of the Court’s process.
49 It seems to me that the applicant’s case for judicial review cannot be characterised as hopeless and therefore bound to fail. The memorandum sent by the Registrar states, without any elaboration, that the application and affidavit on their face were an abuse of process or frivolous or vexatious. However, the Registrar enclosed a memorandum which set out some of the applicant’s litigious history. If the Registrar took that history into account in forming an opinion that the application and supporting affidavit constituted an abuse of the Court’s process, he arguably would have taken into account an irrelevant consideration. There is therefore a factual question that needs to be resolved. The applicant is entitled to have the Court determine the question.
50 The notation made by Jacobson J strongly suggests that his Honour was concerned only with the contents of the application and the affidavit the applicant sought to file. In other words, his Honour seems to have been correctly concerned only with whether the documents on their face constituted an abuse of process. But even if that is so, for the reasons I have given, the applicant still has an arguable case that she is entitled to relief under the ADJR Act.
51 In reaching this conclusion, I appreciate that the applicant has not specifically invoked s 5(1)(d) of the ADJR Act. However, it would require only a minor amendment for the application to include a ground based on s 5(1)(d).
52 Of course, this judgment is not to be taken as an expression of opinion that the applicant will succeed on the judicial review application. Even if the applicant does succeed, that would not necessarily mean that she would be entitled to an order directing the Registrar to accept the discrimination application and the supporting affidavit (assuming they remain in their current form). If any relief is granted, it may be limited to an order setting aside the direction not to accept the discrimination application, leaving any further application presented to the Registry to be dealt with in accordance with the FCR.
CONCLUSION
53 The following orders should be made:
1. The Deputy District Registrar of the Court (Mr Lance Grant) and the Honourable Justice Peter Jacobson (a Judge of the Court) be joined as respondents to the proceedings.
2. The applicant’s motion filed 21 March 2005 be otherwise dismissed.
3. The Council’s motion filed 3 March 2005 be dismissed.
4. There be no order as to the costs of the motions referred to in orders 2 and 3.
5. The matter be listed for further directions on 28 April 2005 at 9.30 am.
Associate:
Dated: 7 April 2005
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The applicant appeared in person.
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Counsel for the First Respondent:
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M Fraser
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Solicitor for the First Respondent:
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Bowen & Gerathy
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Solicitor for the Second and Third Respondents:
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Australian Government Solicitor
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Date of Hearing:
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4 April 2005
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Date of Judgment:
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7 April 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/369.html