Case: Paramasivam v Randwick City Council [2005] FCA 369
Outcome: applied
in Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J observed that there was some doubt about the reasoning of the Full Court in Bizuneh [2003] FCAFC 42 ; 128 FCR 353 insofar as it classified a direction by a Judge to a Registrar pursuant to O 46 r 7A as " administrative in character ". His Honour nonetheless followed Bizuneh [2003] FCAFC 42 ; 128 FCR 353 as he regarded himself as being bound by the decision. At [40], his Honour said: 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. In Paramasivam [2005] FCA 369 at [43] ff, Sackville J considered whether the proceedings brought by the applicant in the case before him should be summarily dismissed. At [46] [47], his Honour said: 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. 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: &#8226; 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)). (Original emphasis) In Paramasivam [2005] FCA 369 , Sackville J noted that, at the same time as the Registrar sent the memorandum to the Duty Judge requesting a direction pursuant to O 46 r 7A, the Registrar sent a further memorandum which set out some of the applicant's litigious history. Sackville J took the view that the existence of this accompanying memorandum which set out some of the applicant's litigious history was a sufficient basis to allow the proceedings to go to trial because it may have supported an ultimate contention on the part of the applicant that the Registrar had taken into account an irrelevant consideration, namely, that the applicant's litigious history was a matter to which regard might be had in forming the requisite opinion under O 46 r 7A. In the course of his Reasons for Judgment in Paramasivam [2005] FCA 369 , Sackville J discussed the meaning of the expression on its face when used in O 46 r 7A. At [45], his Honour said: 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'. In the present case, there is no evidence to suggest that the second respondent formed the opinion which she did by reference to anything other than the proposed Notice of Appeal. Indeed, Counsel for the first respondent made detailed submissions designed to demonstrate that the proposed Notice of Appeal was, on its face, clearly an abuse of the process of the Court. Those submissions were based solely on the terms of the proposed Notice of Appeal. She submitted that the grounds of appeal were largely incomprehensible. Counsel also submitted that the pejorative terms " duress "; " suffering natural justice "; " apprehended bias "; " undue influence "; and " favouritism " were all bandied about in the proposed Notice of Appeal without any proper foundation. In the proposed Notice of Appeal, the applicant also sought to incorporate oral arguments made before the Federal Magistrate in an entirely impermissible way.