Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 (13 March 2003)

Last Updated: 13 March 2003

FEDERAL COURT OF AUSTRALIA

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42

PRACTICE AND PROCEDURE - application for leave to appeal - whether application in respect of a "judgment" - whether a direction by a Judge to the Registrar pursuant to 0 46 r 7A of the Federal Court Rules constitutes a judgment - proper construction of 0 46 r 7A

WORDS & PHRASES - "judgment"

Constitution s 73

Federal Court of Australia Act 1976 (Cth) ss 4, 24(1A)

Federal Court Rules O 46 r 7A, O 52 rr 1 and 10

Driclad Pty Ltd v Commissioner of Taxation [1966] HCA 59; (1968) 121 CLR 45 cited

Moller v Roy [1975] HCA 31; (1975) 132 CLR 622 cited

Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 76 ALJR 926 cited

Consolidated Press Limited v Australian Journalists' Association [1947] HCA 11; (1947) 73 CLR 549 cited

Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566 cited

Minister for Works for the Government of Western Australia v Civil and Civic Pty Limited [1967] HCA 18; (1967) 116 CLR 273 cited

Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 cited

Brooks v Upjohn Company (1998) 85 FCR 469 referred to

Barton v Walker [1979] 2 NSWLR 740 referred to

The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 referred to

Piepkorn v Caroma Industries Ltd [2002] FCAFC 37 referred to

Jessop v Westpac Banking Corp [1999] FCA 1646 referred to

Gunter v Doogan [1999] FCA 1648 referred to

Roderick v Australian & Overseas Telecommunications Corporation Ltd [1997] FCA 325 referred to

Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126 referred to

TAFESE ESHETU BIZUNEH v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1113 OF 2002

LEE, WHITLAM & JACOBSON JJ

13 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1113 OF 2002

AN APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TAFESE ESHETU BIZUNEH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	LEE, WHITLAM & JACOBSON JJ
DATE OF ORDER:	13 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1113 OF 2002

AN APPLICATION FOR LEAVE TO APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	TAFESE ESHETU BIZUNEH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	LEE, WHITLAM & JACOBSON JJ
DATE:	13 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an application pursuant to O 52 r 10 of the Federal Court Rules ("the Rules") for leave to appeal from an interlocutory judgment of the Court. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Act") provides that an appeal shall not be brought from an interlocutory judgment of the Court unless the Court or a Judge gives leave to appeal. Section 4 of the Act defines "judgment" as "a judgment, decree or order, whether final or interlocutory, or a sentence". In terms O 52 r 1 of the Rules repeats that definition.

2 The applicant was represented by counsel appointed pro bono publico pursuant to the provisions of O 80 of the Rules. Counsel addressed a threshold issue as to the competency of the application, namely, whether a judgment had been pronounced by the Court in respect of which leave to appeal may be obtained under O 52 r 10.

3 The word "judgment" as used in O 52 r 10 may be taken to refer to an "operative judicial act". (See: Driclad Pty Ltd v Commissioner of Taxation [1966] HCA 59; (1968) 121 CLR 45 per Barwick CJ, Kitto J at 64). A judgment as defined in s 4 of the Act has the same meaning as "judgments, decrees, orders and sentences" used in s 73 of the Constitution, namely, a formal order made by a court which disposes of, or deals with, the proceeding then before it. (See:  Moller v Roy [1975] HCA 31; (1975) 132 CLR 622 per Mason J at 639). Section 73 is confined to decisions made in the exercise of judicial power (See: Mobil Oil Australia Pty Ltd v Victoria (2002)76 ALJR 926 per Gaudron, Gummow, Hayne JJ at [63]; Consolidated Press Limited v Australian Journalists' Association [1947] HCA 11; (1947) 73 CLR 549; Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566 per Gaudron, Gummow, Hayne JJ at [9]-[10]).

4 As Barwick CJ said in Minister for Works for the Government of Western Australia v Civil and Civic Pty Limited [1967] HCA 18; (1967) 116 CLR 273 at 277:

"It is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights. It is not enough that the judge or Court exercises a jurisdiction of the Supreme Court in a matter judicial in its substance. The judge or Court must authorizedly give a binding judgment which determines or settles rights."

5 The extent to which a judgment defines legal rights may be, of course, a question of construction of the terms of the judgment. (See: Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 per Toohey J at 400-402). Whether a bare determination by a Judge not to accede to a request for recusal made by a party to a proceeding can be said to define a right and, thereby, constitute a judgment is an issue for which there is opposing authority. (See: Brooks v Upjohn Company (1998) 85 FCR 469, 472-476; Barton v Walker [1979] 2 NSWLR 740, 749; The Queen v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 266). It is to be noted that in Brooks formal orders were made on a notice of motion filed by the party seeking the recusal.

6 In the instant matter the applicant seeks leave to appeal from a direction by a Judge of the Court to the Registrar pursuant to O 46 r 7A of the Rules that the Registrar refuse to accept an application presented by the applicant for issue by the Registrar as an "originating document".

7 The Registrar had sought the direction of the Judge by a memorandum addressed to the Judge in the following terms:

"Mr Tafese Bizuneh attended the Registry today and submitted for filing the accompanying application and affidavit (Tab `A') in support sworn 8 October 2002.

The application is made by Mr Tafese Bizuneh against the Minister for Immigration and Multicultural and Indigenous Affairs and is claiming, amongst other things, that his individual rights have been affected in what he states in the application as `crimes against humanity, constitutional error and denial of procedural fairness and natural justice'.

This application is in most respects the same as the earlier application and affidavit (Tab "B") in support that Deputy District Registrar Quilter referred to you on 8 October 2002 and was the subject of your direction on 9 October 2002 that the Registrar pursuant to Order 46 rule 7a(b) refuse to accept the application in its present form.

The fresh application refers to the sections 91R(c), 321, 377, 439 and 459 of the Migration Act 1958 and the Codes of Crimes, International Law Commission.

In my discussion with Mr Bizuneh he indicated that since his release from Villawood Migration Detention Centre he was granted a bridging visa E that includes the following restrictions: (a) no work; (b) no study and (c) that he is required to inform the Department of Immigration of any change of address. His main claim its [sic] seems is to obtain a work permit.

The application is, in substance, a complaint about the Executive Government and a member of it. It appears that no justiciable legal controversy is identified.

The application on its face appears to be an abuse of process of the Court. The application and affidavit are referred for your consideration pursuant to Order 46 Rule 7A."

8 On or about 16 October 2002 the Judge made a handwritten endorsement on the memorandum as follows:

"I agree. I direct the Registrar to refuse to accept the application in this form or any substantially similar form."

9 The document presented by the applicant to the Registrar contained the following under the heading "Details of Claim":

"On the grounds stated in the accompanying affidavit, the applicant claims:

1. To be treated by the Australian government humanely.

2. Primarily to be granted work permit to regain my dignity, self-esteem and independence; otherwise to get formal assistance according to the international and domestic laws for the basic need of human being - food, shelter and health care and others.

3. To get an explanation from the Minister why my sensitive departmental file given to my former employer - Harvey Norman Moore Park without my consent.

4. To be compensated for mental, physical, material and professional damage and loss I received and am receiving.

5. Other orders this Honourable court believes appropriate and give me relief."

10 The patent deficiency in the application was not overcome by "the accompanying affidavit" which, on its face, did no more than make a general complaint that the applicant had suffered physical and mental harm "as the result of the government policy". Only if the affidavit were read with an over-generous eye could it be said that the material in the affidavit was capable of suggesting that the applicant sought to establish that he had suffered loss or damage by reason of assaults inflicted upon him whilst he was detained by the respondent ("the Minister") under powers provided to the Minister by the Migration Act 1958 (Cth) and that such assaults had occurred by reason of breaches of a duty of care owed to the applicant by the Minister.

11 To this point there is no authority that establishes that a direction made by a Judge pursuant to O 46 r 7A is a judgment of the Court. However, in several earlier proceedings that assumption has been made. (See: Piepkorn v Caroma Industries Ltd [2002] FCAFC 37; Jessop v Westpac Banking Corp [1999] FCA 1646 (FC); Gunter v Doogan [1999] FCA 1648 (FC); Roderick v Australian & Overseas Telecommunications Corporation Ltd [1997] FCA 325; Bizuneh v Minister for Immigration & Multicultural Affairs [2000] FCA 126 (FC)).

12 At the outset it is necessary to determine the proper construction of O 46 r 7A before the character of the function performed pursuant thereto can be identified.

13 Rule 7A in its original form was inserted in the Rules on 1 February 1983. It then read:

"Abuse of Process

7A. 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."

14 The rule was repealed and promulgated in its present form on 1 July 1985 and it reads as follows:

"Abuse of process

7A. 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."

15 The rule in its current form 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.

16 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.

17 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.

18 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.

19 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.

20 The application must be dismissed as incompetent.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 13 March 2003

Counsel for the Applicant:	T Reilly (pro bono publico)
Solicitor for the Respondent:	A Markus (Australian Government Solicitor)
Date of Hearing:	13 February 2003
Date of Judgment:	13 March 2003