Rahman v Hedge [2012] FCA 68 (7 February 2012)

Last Updated: 10 February 2012

FEDERAL COURT OF AUSTRALIA

Rahman v Hedge [2012] FCA 68

Citation:		Rahman v Hedge [2012] FCA 68
Parties:		SHAIKH HAFIZUR RAHMAN v JENNIFER HEDGE, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA'
File number:		NSD 81 of 2012
Judge:		PERRAM J
Date of judgment:		7 February 2012
Catchwords:		ADMINISTRATIVE LAW – Judicial review – Federal Court Rules r 2.26 – whether Deputy District Registrar properly exercised power to refuse to accept document for filing – whether Deputy District Registrar denied the applicant natural justice – whether Deputy District Registrar failed to exercise power in good faith – whether Deputy District Registrar improperly exercised power
Legislation:		Administrative Decisions (Judicial Review) Act 1977 (Cth) Competition and Consumer Act 2010 (Cth) Federal Court Rules 2011 rr 2.26, 31.01
Cases cited:		Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 cited Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 51 cited Satchithanantham v National Australia Bank Ltd (2009) 260 ALR 567; [2009] FCA 1171 cited
Date of hearing:	7 February 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	The respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 81 of 2012

BETWEEN:	SHAIKH HAFIZUR RAHMAN Applicant
AND:	JENNIFER HEDGE, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	7 FEBRUARY 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. There be no order as to costs.
   

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 81 of 2012

BETWEEN:	SHAIKH HAFIZUR RAHMAN Applicant
AND:	JENNIFER HEDGE, DEPUTY DISTRICT REGISTRAR, FEDERAL COURT OF AUSTRALIA Respondent

JUDGE:	PERRAM J
DATE:	7 FEBRUARY 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an originating application for judicial review of a decision given by the Deputy District Registrar on 3 January 2012. The application takes the form of a Form 66 and thereby invokes Federal Court Rules r 31.01 which applies to applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The decision made by the Deputy District Registrar on 3 January 2012 was a decision that a document prepared by the applicant for the purpose of filing with the Registry should not be accepted by the Registry. That document was a Form 14 and was expressed in terms to be an originating application by a prospective applicant for an order for discovery.
2. Attached to that application was a draft originating application which itself had been presented to the Registry for filing on or around 30 December 2011 and which had been refused for filing too. The proposed originating application relating to discovery would, if accepted for filing, name 16 respondents, the principal one of whom would be the University of New South Wales. The draft originating application makes claims under the Competition and Consumer Act 2010 (Cth), but not in a way which provides any particularity as to what it is that Mr Rahman alleges has been done to him. Despite that, however, in his affidavit in support of the present application, he put before the Court a long document entitled ‘A Statement of the Facts’ which, in some detail, sets out his complaints.
3. Putting the matter shortly, Mr Rahman is dissatisfied with the way in which his enrolment in an architecture course at the University of New South Wales has been treated. It is not obvious that that complaint is articulated in the originating processes which were placed before the Deputy District Registrar. The Deputy District Registrar communicated her determination to decline to permit Mr Rahman to file his documents by means of a letter dated 3 January 2012. That letter specifically invoked Federal Court Rules r 2.26 which provides:

A 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.

4. In respect of this, the Deputy District Registrar concluded:

The provision of this draft Form 15 application in such general terms, however, has not substantively assisted and confirms that in their present form the documents sought to be filed are misguided. In respect of the Form 14 “Application by prospective applicant for order of discovery” the documents presented do not sufficiently identify a right of the prospective applicant for relief or provide material to support a possible application for preliminary discovery.

Pursuant to Federal Court Rule 2.26, I refuse to accept for filing the documents submitted on 30 December 2011, as an abuse of process and doomed to fail. The eLodgement will be rejected.

5. The power being exercised by the Deputy District Registrar under r 2.26 is, in my opinion, substantively the same as the power which formerly existed under the former Federal Court Rules in O 46 r 7A. It is clear that the power under O 46 r 7A (and I interpolate also under r 2.26) is a power of an administrative nature. It was so held by Foster J in Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; (2009) 260 ALR 567 at 575 [31]; [2009] FCA 1171 at [31]. Consequently it is necessary for Mr Rahman to bring himself within the requirements for judicial review under the Administrative Decisions (Judicial Review) Act.
6. That directs attention then to the terms of r 2.26 which confers a power to refuse to accept a document for filing in circumstances where the Registrar is ‘satisfied’ of the particular state of affairs referred to in the rule. The manner and circumstances in which judicial review of powers subject to the formation of a satisfaction or of an opinion are to be conducted are well-known and usefully, with respect, collected by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650-654 [128]-[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118-119:

In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it erred in one of these ways, or that its decision could not reasonably have been reached.

7. Those remarks form the necessary backdrop to the two grounds of review pursued by Mr Rahman. He says that in exercise of the power under r 2.26, the Deputy District Registrar denied him natural justice. He also claims that the decision involved an improper exercise of power and was also in bad faith. The decision would have been arrived at in circumstances involving a breach of the rules of natural justice only if Mr Rahman was denied, in effect, an appropriate hearing in relation to the decision. The material upon which the Deputy District Registrar acted consisted not only of the application in draft for discovery but also, of course, the application which had clearly been rejected on 30 December 2011.
8. The basis upon which the Deputy District Registrar has acted consists, so far as I can see, in neither more nor less than the document which Mr Rahman presented to the Registry. I cannot discern in that arrangement a want of procedural fairness. The Deputy District Registrar was not obliged by notions of procedural fairness or natural justice to indicate to Mr Rahman in advance of the decision that she was contemplating refusing him permission to file the document. A number of authorities establish that an administrative decision-maker is not obliged to give a running commentary on their current state of mind: cf. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 51 at 69 [31] per Gleeson CJ and Hayne J; Fitness Australia Ltd v Copyright Tribunal [2010] FCAFC 148 at [54].
9. For that reason, I do not accept that a want of procedural fairness is established in the circumstances thus disclosed. Insofar as Mr Rahman suggested that there was an improper exercise of power or a want of good faith, it is not possible, so it seems to me, on the material before me, to form the conclusion that there was any want of good faith or any improper exercise of power by the Deputy District Registrar. The material before me in relation to the Deputy District Registrar’s decision consists of her two letters of 3 and 4 January 2012. These letters do no more than to point out to Mr Rahman that the form his documents took was not one which could be accepted.
10. Having perused those documents myself – although it does not matter – that is a view with which I concur. It may be that Mr Rahman has some form of case, but it is not presently one which appears from these documents. No doubt, if he wishes to pursue the matter further, he will need to accommodate himself to the requirements of this Court’s rules and the requirements of ordinary pleading. This is a burden which rests on all litigants in this Court. It is not always an easy burden to be borne, but it is one borne by everyone. If Mr Rahman wishes to pursue his case, he will need – as I think the Deputy District Registrar has pointed out to him – to pursue it in a form which is acceptable to the ordinary rules of pleading and the rules of this Court.
11. All that having been said, I cannot infer from the Deputy District Registrar’s letters any want of good faith or any inappropriate exercise of power, from which it must follow that I reject the grounds put forward in support of the originating application. The order I will make is that the application be dismissed. It is not appropriate that I make an order for costs. The application is dismissed.
    

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 9 February 2012