FEDERAL COURT OF AUSTRALIA Samootin v Hannigan [2012] FCA 462 Citation: Samootin v Hannigan [2012] FCA 462 Parties: ALEXANDRA SAMOOTIN v DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN, FEDERAL COURT OF AUSTRALIA, SYDNEY REGISTRY IN THE STATE OF NEW SOUTH WALES File number(s): NSD 627 of 2012 and NSD 628 of 2012 Judge: BENNETT J Date of judgment: 4 May 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 – no basis advanced and no evidence adduced in support of allegations of bias and sex discrimination Legislation: Federal Court Rules 2011 r 2.26 Sex Discrimination Act 1984 (Cth) Cases cited: Buck v Bavone (1976) 135 CLR 110 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 cited Rahman v Hedge [2012] FCA 68 cited Satchithanantham v National Australia Bank Ltd (2009) 260 ALR 567 cited SBBF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 358 cited Walton v Gardiner (1993) 177 CLR 378 cited Date of hearing: 4 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 627 of 2012 NSD 628 of 2012 BETWEEN: ALEXANDRA SAMOOTIN Applicant AND: DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN, FEDERAL COURT OF AUSTRALIA, SYDNEY REGISTRY IN THE STATE OF NEW SOUTH WALES Respondent JUDGE: BENNETT J DATE OF ORDER: 4 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applications be dismissed. Note: Entry of orders is dealt with in Order 39.32 of the Federal Court Rules 2011. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 627 of 2012 NSD 628 of 2012 BETWEEN: ALEXANDRA SAMOOTIN Applicant AND: DEPUTY DISTRICT REGISTRAR PADDY HANNIGAN, FEDERAL COURT OF AUSTRALIA, SYDNEY REGISTRY IN THE STATE OF NEW SOUTH WALES Respondent JUDGE: BENNETT J DATE: 4 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Ms Samootin, sought to file two sets of documents in the Court. They were an interlocutory application together with an affidavit in support and an application for leave to appeal a decision of a judge of the Court together with an affidavit in support. A Deputy District Registrar of the Court (the Registrar) rejected both sets of documents pursuant to rule 2.26 of the Federal Court Rules 2011 (the Rules) on the stated basis that the documents are an abuse of process and the applications are doomed to fail. 2 Ms Samootin has lodged originating applications for judicial review of each of those decisions. The details of her claims, grounds of application, affidavit evidence in support and submissions in support are essentially the same for each of her applications. She asks that they be dealt with together in this way and I shall do so. 3 Contrary to Ms Samootin's contention, the Registrar does have the power, under the Rules, to refuse to accept documents. Rule 2.26 provides that: 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 Proceedings may constitute an abuse of process if they are doomed to fail (Walton v Gardiner (1993) 177 CLR 378 at 393). 5 As was stated by Perram J in Rahman v Hedge [2012] FCA 68 at [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) 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 As Perram J further observed at [6], r 2.26 confers a power on the Registrar to refuse to accept a document for filing if he or she is satisfied of the particular state of affairs referred to in the rule. The opinion required to be formed by the Registrar must be honestly and actually formed (Satchithanantham v National Australia Bank Ltd (2009) 260 ALR 567 at [43]). A person affected will obtain relief if he or she can show that the authority has misdirected itself in law or that the authority has failed to consider matters that it was required to consider or has taken irrelevant matters into account (Buck v Bavone (1976) 135 CLR 110 at 118, as cited in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [128]–[137]). However, Gibbs J continued in Buck v Bavone (1976) 135 CLR 110 at 118–119 to state that: … 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 has erred in one of these ways, or that its decision could not reasonably have been reached. 7 Ms Samootin asserts, in substance: Bias by the Registrar; A denial of a fair hearing because the Registrar predetermined the outcome; A denial of her human rights; Abuse of power; and Sex discrimination. 8 No basis was advanced in support of the allegation of bias, abuse of power or of any predetermination of issues, other than the asserted discrimination on the ground of gender. An allegation of bias is a serious allegation and requires evidence. It must be distinctly made and clearly proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J). 9 Ms Samootin adduces no evidence of the alleged bias and relies solely on the Registrar's decision record. The Full Court in SBBF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 358 (at [16]) said that: It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent by reference only to the reasons for the decision themselves. 10 No basis for the allegation is proferred or made out. It must be rejected. 11 There is no evidence in support of the asserted denial of a fair hearing, other than a general submission that Ms Samootin was entitled to one. It seems to be that the bases for the Registrar's decisions were the documents themselves, as presented to the Registry. In those circumstances, as discussed in Rahman at [8], there was no obligation on the part of the Registrar to indicate in advance of the decisions that she was contemplating refusal of the permission to file those documents and there was no denial of procedural fairness. 12 The substance of Ms Samootin's submissions centres on asserted discrimination on the basis of sex. That also enlivens her contention of a denial of her human rights. Ms Samootin relies on The Convention on the Elimination of all Forms of Discrimination against Women, New York, opened for signature 1 March 1980 (the Convention), which Australia has signed, in particular on Article 4 and Article 15. Ms Samootin also relies on the Handbook on The Convention for Parliamentarians, titled 'The Convention on the Elimination of all Forms of Discrimination against Women and its Optional Protocol', in particular Chapter 5, and on the concluding observations of the Committee on the Elimination of Discrimination Against Women on Australia dated 12 July 2007, in particular paragraph 16. 13 Ms Samootin recognises that the Convention has not been fully adopted into Australian law and says that she is dissatisfied as to how Australia has implemented the Convention. 14 In Minister of State for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, Mason CJ and Deane J said (at 286 - 287): It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Although Australia has signed the Convention, Ms Samootin can only rely on the provisions that have been incorporated into Australian law 15 In any event, even if Ms Samootin were relying on the Sex Discrimination Act 1984 (Cth), she has not adduced any evidence of sex discrimination by the Registrar. There is no evidence, or submissions, as to how the decisions were made by reason of, or in any way connected with, Ms Samootin's sex or a characteristic of her sex, or as to how a man who had filed the documents would have been treated. Indeed, there is no evidence or basis put forward for any discrimination against her on the ground of sex, or otherwise. 16 Similarly, there is no evidence or basis advanced for Ms Samootin's contention that she is the victim of any abuse of power contrary to the United Nations General Assembly Resolution, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985), in the exercise by the Registrar of the powers provided for in r 2.26 of the Rules. 17 Ms Samootin seeks orders that the decisions of the Registrar be set aside. The applications must be refused. No question of costs arises. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 8 May 2012