SZSSJ v Deputy District Registrar [2016] FCA 434

FEDERAL COURT OF AUSTRALIA

SZSSJ v Deputy District Registrar [2016] FCA 434 File number(s): NSD 278 of 2016

Judge(s): BUCHANAN J

Date of judgment: 27 April 2016

Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court Rules 2011 (Cth), r 2.26 Public Service Act 1999 (Cth), ss 10, 10(5), 13 Racial Discrimination Act 1975 (Cth), ss 9, 10, 11 Law Reform (Vicarious Liability) Act 1983 (NSW), s 7

Cases cited: Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI [2016] HCATrans 55

Date of hearing: 27 April 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 31

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: The respondent filed a submitting notice

ORDERS NSD 278 of 2016

BETWEEN: SZSSJ Applicant

AND: DEPUTY DISTRICT REGISTRAR Respondent

JUDGE: BUCHANAN J DATE OF ORDER: 27 April 2016

THE COURT ORDERS THAT:

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BUCHANAN J: 1 The applicant in this matter is in immigration detention. It is for that reason that he is identified in the anonymous way in which he is. He has unresolved claims for a protection visa which have received consideration by various courts. None of those matters require attention in this judgment. 2 This is an application for judicial review of a decision of a Deputy District Registrar to refuse to accept documents for filing, which were intended to initiate civil proceedings in this Court. The present application does not nominate the statutory source of the proceedings (contrary to the requirement of the Federal Court Rules 2011 (Cth)) but it may most conveniently be considered against the requirements of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). 3 The grounds of the application (which is dated 25 February 2016) are that the Deputy District Registrar was biased, abused his power, obstructed the process of justice or denied procedural fairness. Those allegations fall comfortably within the scope of the ADJR Act. A document purporting to be a "Statement of claim" (dated 24 February 2016) (which does not state material facts, and would be liable to be struck out for that reason) simply repeats the same allegations. 4 An affidavit (dated 23 February 2016) filed when the present proceedings were commenced simply annexes various documents. The first of those documents is a letter to the applicant dated 9 February 2016 explaining to him why an originating application and statement of claim, each dated 8 February 2016, and an affidavit dated 2 February 2016, would not be accepted for filing. 5 I will return to that letter when I have outlined the nature of the proceeding the applicant sought to commence on 8 February 2016. 6 The originating application which the applicant sought to file (dated 8 February 2016) attempted to commence proceedings against Serco Australia Pty Ltd, the Minister for Immigration and Border Protection and the New South Wales Police Force. The claims made by it were stated as follows: 1. A declaration that the Respondents have, individually and collectively, shown Systematic corruption. 2. The Respondents pay the Applicant damages, as he agrees. 7 A "Statement of claim" (dated 8 February 2016), contained only the following: The Respondents have, individually and collectively, breached several statutory provisions including the following: 1. ss 10 and 13 Public Service Act 1999 (cth); 2. ss 9, 10 and 11 Racial Discrimination Act 1975 (cth); 3. s 7 Law Reform (Vicarious Liability) Act 1983 (NSW). (Bold and italics in original.) 8 This document could not survive as a statement of claim in this form, if challenged. It does not state material facts. However, it will serve to focus attention on matters which are relevant to the assessment to be made at present. 9 An affidavit (dated 2 February 2016) lodged with the originating application and statement of claim contained assertions about an incident on 25 December 2015 at the Villawood Immigration Detention Centre and its aftermath. The central element of that allegation was that the applicant was assaulted by a kitchen staff member who grabbed the applicant's wrist and "did not let me change my fruit-plate". Other assertions concerned a complaint then made by the applicant and an alleged attempt to contact Australian Federal Police. 10 At the present hearing, the applicant confirmed that the factual allegations he wished to make about the incident on 25 December 2015, and its immediate aftermath, were the essential foundation for the broad allegation of "systematic corruption" contained in the originating application dated 8 February 2016. 11 It is in that context, therefore, that the relevance, if any, of the references in the statement of claim of the same date may be understood. 12 Sections 10 and 13 of the Public Service Act 1999 (Cth) deal, respectively, with "APS Values" and "The APS Code of Conduct". No suggested connection between those provisions (or their asserted legal consequence, general or particular) was articulated in the originating application, statement of claim or affidavit. At the present hearing, the applicant made a passing reference to s 10(5): 10 APS Values … Impartial (5) The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence. but I am satisfied that this particular provision (like the references to ss 10 and 13 generally) is not an adequate foundation for the attempted proceeding. 13 Sections 9, 10 and 11 of the Racial Discrimination Act 1975 (Cth) state general standards of protection against racial discrimination, unequal application of laws and restrictions on access to places and facilities. They have no apparent relevance to the incident referred to in the affidavit of 2 February 2016 notwithstanding an argumentative suggestion by the applicant at the hearing that the kitchen staff employee accused of assaulting him (believed by him to be Afghani) may have treated a "white person" differently. 14 Section 7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) makes a "master" liable for the conduct of his "servant". It adds nothing of significance to the assessment of whether the proposed proceedings had apparent utility and validity. 15 The letter to the applicant from the respondent on 9 February 2016 referred to r 2.26 of the Federal Court Rules which states: 2.26 Refusal to accept document for filing—abuse of process or frivolous or vexatious documents 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. 16 The applicant was informed that the refusal to accept the documents was a decision in accordance with that rule. The reasons for that refusal were stated in the following terms: The Federal Court has no jurisdiction to declare there has been "systematic corruption" or to award damages for such a claim. While the Court does have jurisdiction to decide some claims under the Public Service Act 1999 and the Racial Discrimination Act 1975, there is no logical connection between the circumstances set out in the Affidavit and the sections of those Acts set out in the Statement of Claim. For these reasons, the application·is doomed to fail and is therefore an abuse of the process of the Court. Accordingly, I return the documents. 17 When the present application first came before the Court for directions, the applicant appeared in person and asked for an opportunity to file a written submission as well as put oral submissions at a hearing. Accordingly, directions were made for a submission in writing to be filed. 18 The applicant's written submission advanced an argument with the following elements at its core: "if a Commonwealth statute is involved in a dispute the Federal Court will have jurisdiction to resolve the whole dispute or controversy". "even if the cause of action or form of relief is not created or provided for by a law of the Parliament, if a law of the Parliament is relied upon as giving a right sought to be vindicated in which that right arises [sic – see below] is a matter arising under the law, hence the Court has jurisdiction". (My note.) "the assertion of the federal issue, not its disposition and not its merit, attracts the jurisdiction of the court to the relevant matter of which the federal issue forms part". 19 Those propositions were appropriately supported by cited authority. That is not surprising. They were extracted, as the applicant candidly conceded, virtually word for word (although with omissions explaining the awkward syntax of the second proposition) from a paper given in October 2007 by the present Chief Justice of the Federal Court, which is available on the internet. 20 However, the points being made in that paper about the nature of a "federal matter", and about the source and extent of the jurisdiction of the Federal Court, do not deny the necessity, in this Court as in others, for a properly articulated cause of action to sustain the commencement of proceedings and the invocation of the Court's authority and compulsive powers. 21 The documents which the applicant provided in support of the present application tend to suggest that his complaint about the incident on 25 December 2015 was investigated, and not found to be justified. The applicant appears not to accept that assessment. However, no occasion arises, on the present application, to make any assessment of the veracity of the applicant's factual allegations as set out in the affidavit dated 2 February 2016. If the applicant wishes to pursue some cause of action based on an alleged assault then, if a case is properly commenced in a competent court, such a case may require attention. That is not the issue at present. Such a case would, in any event, be a long way from the present unparticularised charge of "systematic corruption". 22 The applicant professed, in his oral remarks, to be moved by a desire to pursue a case involving an allegation of that kind in the interests of others, rather than only on his own behalf. That purpose, if the applicant holds it, seems to me to be not relevant to the present issue. 23 In an affidavit sworn on 27 April 2016, ostensibly relied on to explain a delay in filing his written submission, the applicant referred to an unsuccessful application for a bridging visa. It seems he is involved in proceedings in which the High Court of Australia has granted special leave to appeal from a judgment of a Full Court of this Court (Minister for Immigration and Border Protection & Anor v SZSSJ & Anor; Minister for Immigration and Border Protection & Ors v SZTZI [2016] HCATrans 55). He also made suggestions in that affidavit that he was being singled out for unwanted attention at the detention centre, both by its managers and Border Force staff and by other detainees. 24 Such matters, also, seem to me not to be relevant to a decision on the present application and I will say no more about them. 25 The only question for present attention is whether the Deputy District Registrar infringed a relevant legal standard in the ADJR Act when he refused to accept the documents for filing which were presented on 9 February 2016. 26 In my view, no error of that kind has been identified. The applicant apparently believes it to be sufficient that he desires to engage the jurisdiction of the Court and that he asserts that there is a federal matter requiring attention, in order for the Court (and its staff) to fall under an obligation to accommodate him. On his argument, the resolution of any defect in the proceedings, and attention to any apparent mismatch between facts and statutory provisions, must be left to the ultimate resolution and disposition of the case. 27 However, the explanation given by the Deputy District Registrar, which is set out above, sufficiently identifies for the applicant the nature of the defects in his documents. 28 It does not suffice, to create a relevant federal matter, or a cause of action which this Court might entertain, to simply add a reference to some federal statutes when making a complaint against someone. Not every "complaint" gives rise to a sustainable, or even an arguable, right of action in a civil court. A general accusation of "systematic corruption" against those who respond unfavourably to the complaint or by public bodies, government agencies or contractors, adds nothing further. Indeed, it demands rather than dispenses with a need for adequate precision. 29 In the present case, no articulated breach of a legal standard, giving rise to a discernible right of action in this Court, accompanied by an adequate statement of relevant material facts in that connection, was identified in the documents filed on 8 February 2016. In my view, the respondent was correct to refuse to accept those documents for filing. 30 There is no evidence at all before the Court to sustain any claim that the Deputy District Registrar was biased against the applicant. There is no substance in any suggestion that the applicant was denied procedural fairness. I reject the suggestion that the Deputy District Registrar abused his power or obstructed the process of justice. 31 There is no substance in the present application, which will therefore be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.