Manolakis v Leonard [2008] FCA 929 (19 June 2008)

ANASTASIOS MANOLAKIS v JAN LEONARD TRADING AS OG SPEED SHOP, LEN LEONARD TRADING AS OG SPEED SHOP and DISTRICT REGISTRAR, SOUTH AUSTRALIA DISTRICT REGISTRY, FEDERAL COURT OF AUSTRALIA

SAD 72 OF 2008

MANSFIELD J
19 JUNE 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 72 OF 2008

BETWEEN:

ANASTASIOS MANOLAKIS
Applicant

AND:

JAN LEONARD TRADING AS OG SPEED SHOP
First Respondent

LEN LEONARD TRADING AS OG SPEED SHOP
Second Respondent

DISTRICT REGISTRAR, SOUTH AUSTRALIA DISTRICT REGISTRY, FEDERAL COURT OF AUSTRALIA
Third Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	19 JUNE 2008
WHERE MADE:	ADELAIDE

1. The description of the third respondent be amended to District Registrar, South Australia District Registry, Federal Court of Australia.

3. The applicant pay the first and second respondents’ costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 72 OF 2008

BETWEEN:

ANASTASIOS MANOLAKIS
Applicant

AND:

JAN LEONARD TRADING AS OG SPEED SHOP
First Respondent

LEN LEONARD TRADING AS OG SPEED SHOP
Second Respondent

DISTRICT REGISTRARY, SOUTH AUSTRALIA DISTRICT REGISTRY, FEDERAL COURT OF AUSTRALIA
Third Respondent

JUDGE:	MANSFIELD J
DATE:	19 JUNE 2008
PLACE:	ADELAIDE

1 On 7 April 2008, the applicant applied in the Federal Magistrates Court for orders against the first and second respondents apparently relating to an "idle Solonoid" supplied by those respondents, in which he alleged "the wrong part as old solonoid (sic) was shown". The claim was based upon the alleged contravention of various provisions of Pts IVA and V of the Trade Practices Act 1975 (Cth). The supporting affidavit did not further explain the claim. The first and second respondents filed an appearance and affidavit indicating that they intended to resist the claim.

2 The matter came before Federal Magistrate Lindsay for directions on 5 May 2008 at 9:30 am. The applicant asked the Federal Magistrate to disqualify himself from hearing the matter. There was some brief discussion. The matter was adjourned ultimately to 11:00 am that day. The application that the Federal Magistrate disqualify himself from hearing the matter was refused, and the Federal Magistrate then dismissed the application itself.

3 On 12 May 2008, the applicant presented to the Court a notice of appeal from that decision, relying upon the right of appeal under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). By direction of a judge of the Court, the District Registrar refused to permit it to be filed pursuant to O 46 r 7A of the Federal Court Rules because it contained scandalous and vexatious material: see O 41 r 5. That material was contained in paras 5, 7, 8, 9 and 10 of the proposed notice of appeal. This is an application to review the Registrar’s decision.

4 The applicant insists that the proposed notice of appeal be filed in the terms in which it was presented by him. In other words, he insists that it be received including the material which was regarded as scandalous and vexatious. He refuses to accommodate the possibility that the notice of appeal should be received only containing its other paragraphs. But for that attitude, and subject to certain considerations referred to below, I would have been disposed to make some orders which enabled him to appeal from the decision of the Federal Magistrate of 5 May 2008.

5 The proposed notice of appeal raised the correctness of the decision of the Federal Magistrate not to disqualify himself, including his decision to rule on that question without giving the applicant the opportunity to present evidence in support of it. In my view, those grounds are appropriate grounds of appeal. The transcript of the hearing indicates that the applicant was not aware, before attending for directions on 5 May 2008, that Federal Magistrate Lindsay would be the Magistrate in whose docket the matter was to be heard. He promptly raised his concern because of a complaint which he had made concerning the conduct of that Federal Magistrate in another matter. He asked for an adjournment to enable him to present the material to support his application. There was a series of vigorous exchanges between the applicant and the Federal Magistrate, in which the Federal Magistrate sought more specific information about the nature of the objection, as it appears that his Honour was not aware of the complaint or did not recollect the circumstances in which it had apparently been made. I do not need to go into that aspect further, save to remark that at least arguably there was some prospect of the applicant succeeding on appeal in challenging those decisions of the Federal Magistrate, firstly the decision not to give the applicant an opportunity to present material in support of his application for disqualification and secondly the decision not to disqualify himself.

6 The proposed notice of appeal also raises the quality of the material advanced on behalf of the first and second respondents. It is said to have been hearsay evidence and not admissible. It is unclear from the transcript whether the Federal Magistrate, having refused the disqualification application, then dismissed the primary application on the merits (in which case that ground of appeal may be relevant, and in my view, is arguable). The alternative is that the Federal Magistrate dismissed the appeal because the applicant, having had his adjournment application refused, and having had his disqualification application refused in the circumstances briefly referred to above, left the Court. He told the Federal Magistrate that he had another commitment elsewhere, and that he had attended at 9:30 am because he understood that a directions hearing would take only a relatively short time. Again, if the latter alternative occurred, in my view again it would be arguable on an appeal that the applicant was not accorded procedural fairness in the circumstances and that somehow his application should be reinstated for hearing and determination.

7 The remaining grounds of appeal (paras 5, 7, 8, 9 and 10) involve allegations against third parties, that is persons not party to the proceedings, of fraudulent and corrupt conduct and criminal conduct. They are unsupported by any detailed particulars. If established, they would not support the claim that Federal Magistrate Lindsay should have disqualified himself. They could not possibly otherwise be relevant to the claim. They are clearly scandalous and vexatious.

8 In my view, the Registrar acted correctly in refusing to permit the filing of the proposed notice of appeal in those terms.

9 As the applicant insists on his proposed notice of appeal being filed in those terms, or not at all, I accordingly refuse his application.

10 As I have said, if his proposed notice of appeal were to be amended to remove those "grounds" of appeal, I would have been disposed to have made orders enabling the decision of the Federal Magistrate to be reviewed. There are some procedural matters, however, which would then have needed to be addressed. Firstly, as the first and second respondents are not a trading corporation, it is not clear that the Federal Magistrates Court had jurisdiction under the Trade Practices Act 1975 (Cth) to entertain the claims made. Secondly, the decision of the Federal Magistrate to refuse to disqualify himself, and unless the dismissal of the proceeding itself was on the merits, its summary dismissal, were probably interlocutory decisions which required leave to appeal to be granted pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Thirdly, I have not heard argument as to whether the application to review the decision of the District Registrar was itself properly brought before the Court. I do not need to address any of those matters for the reasons I have already given.

11 For convenience, I order that the respondents in the proceeding in the Federal Magistrates Court be designated as the first and second respondents. I order that the description of the District Registrar be amended to District Registrar, South Australia District Registry, Federal Court of Australia and that she be described as the third respondent.

12 The application to review the decision of the District Registrar is dismissed. The applicant must pay the second and third respondents their costs of the application.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Counsel for the Applicant:	The applicant appeared in person

Counsel for the First and Second Respondents:	Ms J Leonard appeared in person

Date of Hearing:	12 June 2008

Date of Judgment:	19 June 2008