FEDERAL COURT OF AUSTRALIA Fuller v Registrar, Federal Court of Australia [2016] FCA 650 File number(s): WAD 402 of 2015 Judge(s): SIOPIS J Date of judgment: 3 June 2016 Catchwords: PRACTICE AND PROCEDURE – review of Registrar's decision to refuse to permit a person subject to a vexatious litigant order to file an application – whether that person was entitled to file the application by reason of a previous order made by the Court. Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AO(2), 37AR, 37AR(3), 37AR(3)(b), 37AR(3)(c), 37AT Cases cited: Fuller v Toms [2013] FCA 1422 Fuller v Toms [2015] FCAFC 91 Date of hearing: 15 October 2015 Date of last application and submissions: 31 May 2016 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 43 Counsel for the Applicant: The Applicant appeared in person. Counsel for the Respondent: The Respondent did not appear. ORDERS WAD 402 of 2015 BETWEEN: DONALD FULLER Applicant AND: REGISTRAR, FEDERAL COURT OF AUSTRALIA Respondent JUDGE: SIOPIS J DATE OF ORDER: 3 JUNE 2016 THE COURT ORDERS THAT: 1. The decision of the Deputy District Registrar to refuse to accept for filing the applicant's application in WAD 1 of 2014 dated 16 July 2015, and supporting documents (the 16 July application), is set aside. 2. The applicant's application dated 31 May 2016, to re-open his case is dismissed. 3. The Registry is directed to accept the applicant's 16 July application for filing. 4. By 4:00 pm on 22 June 2016, the applicant is to file and serve on the respondents to WAD 332 of 2012 (the respondents) an affidavit which addresses the matters referred to in s 37AR(3)(a), (b) and (c) of the Federal Court of Australia Act 1976 (Cth) and takes into account the observations made in [38] to [39] of the reasons for decision (the s 37AR(3) affidavit). 5. Service of the 16 July application on the respondents is otherwise dispensed with. 6. The submissions filed by the applicant and the respondents in this application are taken to have been filed in respect of the determination of the 16 July application in WAD 1 of 2014. 7. The respondents have leave to rely upon the affidavit of Mr Justin Anthony McDonnell dated 13 May 2014, in respect of the determination of the 16 July application in WAD 1 of 2014. 8. By 4:00 pm on 1 July 2016, the respondents are to file and serve any affidavits in response to the applicant's s 37AR(3) affidavit. 9. By 4:00 pm on 8 July 2016, the applicant is to file and serve any supplementary submissions in support of his 16 July application upon the respondents, such submissions are not to exceed five pages. 10. By 4:00 pm on 15 July 2016, the respondents are to file and serve any supplementary submissions in opposition to the applicant's 16 July application, such submissions are not to exceed five pages. 11. Unless the Court, on the application of either the applicant or the respondents, otherwise orders, the 16 July application is to be determined on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT SIOPIS J: 1 On 16 July 2015, Mr Fuller attempted to file an application and supporting documents in the Western Australia District Registry of this Court in the matter of Fuller v Toms & Ors, WAD 1 of 2014, applying for an order that leave be granted to apply for leave to appeal from orders made by Barker J on 19 December 2013 (Fuller v Toms (2013) FCA 1422), striking out Mr Fuller's statement of claim and dismissing his originating application in WAD 332 of 2012. 2 However, about three weeks earlier, on 26 June 2015, the Full Court of this Court (Fuller v Toms [2015] FCAFC 91) had dismissed Mr Fuller's appeal against a vexatious litigant order which had also been made by Barker J on 19 December 2013, when Barker J had made the orders mentioned above. 3 This vexatious litigant order was made by Barker J under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), and was to the effect that the applicant must not start or continue any other proceeding in this Court against any of the respondents in WAD 332 of 2012 (the respondents), without the leave of the Court. 4 Before attempting to file the application and supporting documents on 16 July 2015, Mr Fuller had not made, consequent upon the Full Court's decision, any application under s 37AR of the Federal Court Act for leave to commence or continue any proceeding against the respondents. 5 On 17 July 2015, the Deputy District Registrar (the Registrar) refused to accept the documents for filing. 6 By this application, Mr Fuller seeks to review the decision of the Registrar of this Court to refuse to accept the documents for filing. 7 In bringing this proceeding (WAD 402 of 2015), Mr Fuller sought to proceed ex parte. However, I made orders that he serve the proceeding on the solicitors for the respondents because the respondents' interests could be affected by the outcome of the proceeding. background 8 It is necessary to set out some background to this matter. 9 Mr Fuller has since 2009 been engaged in litigation with the respondents in which he has sought to allege that the respondents have caused him to suffer loss or damage arising from his attempt, as a member of a group of investors, in 2009, to acquire a shareholding in the company, Australian Agricultural Company Limited (AA Co). In broad summary, Mr Fuller's complaint is that there was a misrepresentation as to the number of cattle held by AA Co in its financial reports, that his group's bid for the shareholding did not proceed, and he has suffered loss or damage. Further, Mr Fuller claims that, when he made that allegation in public, four of the respondents brought a spurious claim for defamation against him in the Supreme Court of Queensland, which had the effect of putting an end to his group's bid for a shareholding in AA Co. 10 These allegations have been made by Mr Fuller in pleadings in a number of proceedings filed in this Court and, before that, in the Supreme Court of Queensland. 11 The lengthy history of those proceedings is set out in [20] of the reasons for judgment of the Full Court (see [2] above) and it is not necessary to rehearse that history in detail in these reasons for judgment. 12 Suffice to say, Mr Fuller's allegations against the respondents were initially pleaded in May 2009 in a defence and cross-claim to the defamation action which was brought against Mr Fuller in the Queensland Supreme Court. Mr Fuller's pleading was struck out by P Lyons J and then on 18 December 2009, P Lyons J refused Mr Fuller any further leave to amend his pleadings. Mr Fuller's appeal to the Court of Appeal of the Supreme Court of Queensland from this decision was dismissed on 15 October 2010. Mr Fuller then sought special leave to appeal to the High Court. On 9 February 2011, the High Court dismissed Mr Fuller's application for special leave to appeal. 13 In July 2011, Mr Fuller commenced a proceeding, WAD 322 of 2011, against the respondents in the Western Australia District Registry of this Court, seeking damages against the respondents founded upon, essentially, the same complaints as made in his defence and cross-claim in the Queensland proceeding. 14 On 19 August 2011, Barker J struck out Mr Fuller's statement of claim in WAD 322 of 2011 and required that Mr Fuller obtain leave to file any substituted statement of claim. On 5 October 2011, Mr Fuller applied for leave to file an amended originating application and substituted statement of claim. On 16 February 2012, Barker J dismissed Mr Fuller's application for leave to file the amended originating application and substituted statement of claim, and dismissed the proceeding, WAD 322 of 2011, entirely. 15 Mr Fuller then applied for leave to appeal against the orders of Barker J made on 16 February 2012. On 5 November 2012, the Full Court of this Court refused Mr Fuller leave to appeal against those orders. 16 On 26 November 2012, three weeks after the Full Court's decision, Mr Fuller commenced another originating application against the respondents (WAD 332 of 2012) in relation to essentially the same complaint as made in the previous proceedings. The respondents applied to strike out the statement of claim, dismiss the proceeding and sought an order that no further proceedings against the respondents be brought without the leave of the Court, alternatively, that if any further proceeding was brought by Mr Fuller, it be stayed until the costs orders made against Mr Fuller in his previous unsuccessful applications have been paid. 17 On 19 December 2013, Barker J made the following orders: 1. The statement of claim filed in this proceeding be entirely struck out. 2. The proceeding be dismissed. 3. Pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth), the applicant must not start or continue any other proceeding in the Court against any of the respondents without the leave of the Court. 4. The applicant pay the respondents' costs of the proceeding, to be taxed if not agreed. 18 On 3 January 2014, Mr Fuller filed an originating application and supporting affidavit (WAD 1 of 2014) whereby he sought an order that leave be granted to apply for leave to appeal from the whole of the judgment of Barker J on 19 December 2013. 19 On 24 April 2014, in WAD 1 of 2014, I made the following orders: 1. The applicant is granted leave to make an application for leave to appeal in respect of Order 3 and attendant costs order made by Barker J on 19 December 2013 in WAD 332 of 2012 (the vexatious litigant order). 2. The application for leave to appeal, and if leave is granted, the appeal be heard by the Full Federal Court at the same time. 3. The time for bringing the application for leave to appeal be extended until the date of the filing of the leave application. 4. Should the applicant succeed on his appeal against the vexatious litigant order, the time for filing an application for leave to appeal against Order 1 and Order 2 and attendant costs order made by Barker J on 19 December 2013 in WAD 332 of 2012 (the substantive orders), be extended until 14 days after the Full Federal Court has decided the application for leave to appeal and, if leave be granted, any appeal. 5. The application for leave to appeal against the vexatious litigant order must be served on the respondents. 6. The applicant's application dated 3 January 2014, so far as it seeks leave to commence a proceeding seeking leave to appeal against the substantive orders, is otherwise adjourned sine die. 20 In due course, Mr Fuller appeared before the Full Court and argued his appeal against the making of the vexatious litigant order. On 26 June 2015, the Full Court made the following orders: 1. The application for leave to file a notice of appeal so as to start an appeal against Order 3 of the orders made by the Court in proceeding WAD 332 of 2012 on 19 December 2013 is dismissed. 2. The applicant pay the 1st, 2nd, 4th to 7th, 9th, 10th, and 14th to 23rd and 25th to 28th respondents' costs of and incidental to the application, to be taxed if not agreed. 21 The consequence of the Full Court's dismissal of Mr Fuller's appeal against the vexatious litigant order was that order 3 of Barker J's orders continued to apply. 22 Section 37AR of the Federal Court Act applies to a person against whom a vexatious litigant order has been made. Section 37AR provides as follows: (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court; or (b) acting in concert with another person who is subject to an order mentioned in paragraph (a). (2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order. (3) The applicant must file an affidavit with the application that: (a) lists all the occasions on which the applicant has applied for leave under this section; and (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 37AT(1)(a). If the order is made, the applicant must serve the copy in accordance with the order. mr fuller's application for review 23 The documents which Mr Fuller attempted to file on 16 July 2015 did not purport to be a fresh application for leave to institute a proceeding under s 37AR of the Federal Court Act, but rather a relisting, pursuant to order 6 of WAD 1 of 2014, of his application for leave to apply for leave to appeal against order 1 and order 2 of the orders made by Barker J on 19 December 2013 in WAD 332 of 2012. In addition to an interlocutory application seeking that relief, the documents which Mr Fuller attempted to file comprised submissions, and an affidavit sworn by Mr Fuller on 16 July 2015. Annexed to that affidavit was: a proposed notice of appeal in respect of order 1 and order 2 made by Barker J on 19 December 2013, a proposed amended originating application in WAD 332 of 2012 and a proposed amended statement of claim in WAD 332 of 2012. 24 In support of his application to review the decision of the Registrar, Mr Fuller filed an affidavit dated 4 August 2015. That affidavit also annexed the proposed notice of appeal, the proposed originating application and the proposed amended statement of claim which Mr Fuller had annexed to his affidavit of 16 July 2015, to which I have referred in the preceding paragraph. In addition to those documents, Mr Fuller also annexed to his affidavit of 4 August 2015, correspondence which had ensued between himself and the Registrar in relation to the Registrar's refusal to accept his application for filing during the period 17 July to 24 July 2015. Mr Fuller's letter of 23 July 2015 to the Registrar contains the following paragraph: My application to Siopis J has so far only been partly dealt with; and in now applying to bring the matter back to him to deal with the remainder, the format is presented in just the same way. 25 On 4 August 2015, Mr Fuller filed his application to review the Registrar's decision as an ex parte application. 26 However, on 19 August 2015, I made directions that Mr Fuller serve his application for review filed on 4 August 2015, on the respondents. 27 The solicitors for the respondents did not apply for leave to appear at the hearing, but filed written submissions, and sought leave in writing to rely upon the written submissions and an affidavit made by Mr Justin Anthony McDonnell, dated 13 May 2014, at the hearing. At the hearing, Mr Fuller objected to the granting of this leave. However, in my view, the respondents have a direct interest in the outcome of the application and, on that basis, I rejected Mr Fuller's application, and I granted the respondents leave to rely on the submissions and the affidavit of Mr McDonnell. 28 On 31 May 2016, Mr Fuller applied to reopen his case so as to adduce further evidence comprising an affidavit dated 30 May 2016. I will deal with that application in due course. 29 I now deal with Mr Fuller's contention that the Registrar erred in refusing to accept his application for filing because he was entitled to file the application pursuant to order 6 of the orders that I made on 24 April 2014. 30 In my view, the Registrar erred in rejecting Mr Fuller's contention that he was entitled to file the application which he attempted to file in WAD 1 of 2014 on 16 July 2015, pursuant to order 6 of the orders that I made on 24 April 2014, and in refusing to accept the application for filing. 31 The application in WAD 1 of 2014 which Mr Fuller made on 3 January 2014, refers in its heading to the vexatious litigant order made by Barker J pursuant to s 37AO(2) of the Federal Court Act and applies for leave to be granted to apply for leave to appeal from the whole of the judgment of Barker J delivered on 19 December 2013. 32 Mr Fuller's application for leave to be granted to apply for leave to appeal against Barker J's orders of 19 December 2013 did not refer expressly to s 37AR of the Federal Court Act; nor did it comply with the formalities set out in s 37AR(3) of the Federal Court Act in that the affidavit that Mr Fuller filed in support of his application did not deal with the matters required to be dealt with under that section. 33 However, it emerges from a proper construction of my orders made on 24 April 2014 that I treated Mr Fuller's application as being an application to achieve two objectives. The first objective was to rid Mr Fuller of the status of a vexatious litigant by appealing against order 3 of Barker J's orders of 19 December 2013, declaring him to be a vexatious litigant. The second objective was, even if he was unsuccessful in that endeavour, to seek leave to apply for leave to appeal, as a vexatious litigant, against order 1 and order 2 of Barker J's orders, namely, the substantive orders, striking out Mr Fuller's statement of claim and dismissing his originating application filed in WAD 332 of 2012. 34 Thus, order 4 of my orders of 24 April 2014 contemplates a process for challenging order 1 and order 2 of Barker J's orders, in the event that Mr Fuller was successful in his appeal and was able to rid himself of the status of a vexatious litigant. Order 6, on its proper construction, contemplates that Mr Fuller, even as a vexatious litigant, would be at liberty to relist his application of 3 January 2014, for leave to apply for leave to appeal against order 1 and order 2 made by Barker J on 19 December 2013. In other words, on 16 July 2015, Mr Fuller was not seeking to commence a new proceeding as a vexatious litigant without leave, but was rather seeking to relist a proceeding in which he had sought such leave, but which had not yet been determined. 35 Accordingly, I will set aside the Registrar's decision not to accept the application and supporting documents which Mr Fuller attempted to file on 16 July 2015; and will direct that these documents be accepted for filing. 36 I will treat the affidavit of 4 August 2015, and the submissions of Mr Fuller filed in this application, as having been filed in support of his relisted application in WAD 1 of 2014. I will also permit the respondents to rely upon the affidavit of Mr McDonnell of 13 May 2014 in Mr Fuller's relisted application in WAD 1 of 2014, as well as the submissions which were filed by the respondents in this application. Also, of course, Mr Fuller's submissions, which are part of the documents Mr Fuller attempted to file on 16 July 2015, will stand in his relisted application in WAD 1 of 2014. 37 However, in order to regularise Mr Fuller's application as being a valid application under s 37AR of the Federal Court Act, it is necessary for Mr Fuller to comply with the formalities of s 37AR(3) by filing a further affidavit (the s 37AR(3) affidavit) which addresses the matters referred to in s 37AR(3)(a), (b) and (c) of the Federal Court Act. 38 Mr McDonnell's affidavit deposes to the history of litigation between Mr Fuller and the respondents from 2009. Therefore, in deposing to the matters referred to in s 37AR(3)(b) of the Federal Court Act, it will not be necessary for Mr Fuller to depose to the history of litigation that Mr Fuller has instituted against the respondents which is referred to in Mr McDonnell's affidavit. However, insofar as there are other proceedings of the kind referred to in s 37AR(3)(b) which Mr Fuller has instituted, then he would need to depose to those proceedings. 39 In addition to any other matters to which Mr Fuller may depose in complying with s 37AR(3)(c), Mr Fuller should also depose to the extent to which he has complied with each of the costs orders made against him in favour of the respondents in the proceedings between them since 2009, and, insofar as any one or more of those costs orders have not been met, the reason for not meeting the costs orders. 40 I will order, under s 37AT of the Federal Court Act, that Mr Fuller serve his s 37AR(3) affidavit upon the respondents by serving the solicitors for the respondents in writing. I will dispense, however, with requiring Mr Fuller to serve the relisted application, dated 16 July 2015, and supporting documents on the respondents because that application and documents have already been served on the respondents in the course of this application for review. 41 I will also make directions for the filing of further written supplementary submissions by each of Mr Fuller and the respondents, such supplementary submissions to comprise no more than five pages. I will also give the respondents an opportunity to file any evidence, if they so choose, in response to Mr Fuller's s 37AR(3) affidavit. 42 Further, unless the Court, on the application of Mr Fuller or the respondents, otherwise orders, Mr Fuller's application under s 37AR for leave to apply for leave to appeal against order 1 and order 2 of Barker J's orders of 19 December 2013 will be determined on the papers. mr fuller's application to re-open 43 In light of the conclusion to which I have come, it is unnecessary for Mr Fuller to re-open his case and, accordingly, his application of 31 May 2016, will be dismissed. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 3 June 2016