Haque v Tesoriero [2017] FCA 86

FEDERAL COURT OF AUSTRALIA

Haque v Tesoriero [2017] FCA 86 File number: NSD 1751 of 2016

Judge: BROMWICH J

Date of judgment: 9 February 2017

Catchwords: PRACTICE AND PROCEDURE – review of Registrar's decision to refuse to accept application for leave to appeal from Haque v Jabella Group Pty Ltd [2016] FCA 962

Legislation: Federal Court of Australia Act 1976 (Cth), s 35A(5) Federal Court Rules 2011 (Cth), r 3.11

Cases cited: Haque v Jabella Group Pty Ltd [2016] FCA 962

Date of hearing: 9 February 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 7

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: The Respondent filed a submitting notice save as to costs

ORDERS NSD 1751 of 2016

BETWEEN: AKM AZMERUL HAQUE Applicant

AND: ANTHONY TESORIERO Respondent

JUDGE: BROMWICH J DATE OF ORDER: 9 February 2017

THE COURT ORDERS THAT:

1. The originating application filed on 30 September 2016 be dismissed. 2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J: 1 This is an originating application for judicial review of a decision of a Deputy District Registrar of this Court (the Registrar) to refuse to accept documents for filing. Although the application does not state the provision under which it is brought, it is evident that it must be under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) together with r 3.11 of the Federal Court Rules 2011 (Cth). 2 The supporting affidavit annexes copies of three letters from the Registrar dated 8 September 2016, 13 September 2016 and 15 September 2016 which between them make it reasonably clear what the nature of the documents were that were attempted to be filed, why the Registrar refused to accept them for filing and why the Registrar adhered to that decision. The body of those three letters is as follows: Registrar's letter dated 8 September 2016 I refer to the following documents which were received by the Registry: • Application for Leave to Appeal (Form 117); and • Affidavit in Support (Form 59) ("the Documents") I have considered the Documents to see if the Registry should accept them for filing. I note the terms of Rule 2.26 of the Federal Court Rules which states: 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. In accordance with that rule, I refuse to accept the documents. My reasons are as follows: Your original application to this Court was for an extension of time and for leave to appeal a decision of the Federal Circuit Court (FCC) made on 4 February 2016. Because the Respondents' successful application for summary dismissal of the amended application in the FCC was interlocutory, section 24(1A) of the Federal Court Act 1976 (Cth) (the Act) requires leave to appeal. On 18 August 2016 the Federal Court dismissed your application for an extension of time and for leave to appeal. Section 25(1) of the Act provides that the appellate jurisdiction of the Federal Court shall be exercised by a Full Court, however section 25(2) provides that an application for an extension of time within which to institute an appeal to the Court must be heard and determined by a single judge unless a judge directs that it [be] heard and determined by a Full Court. In this matter the judge hearing the matter did not make a direction that it be heard by a Full Court hence he was exercising the appellate jurisdiction of the Federal Court. There are no further avenues of appeal in this matter. For this reason the application cannot possibly succeed and therefore the document is an abuse of the process of the Court and frivolous and vexatious. I enclose the documents. Registrar's letter dated 13 September 2016 I refer to the documents which were received by the Registry on 8 September 2016 and to your undated note handed to the Registry today. I have not change[d] my decision to refuse the documents that you lodged on 8 September 2016 and I suggest that you seek legal advice if you would like to take this matter further. Registrar's letter dated 15 September 2016 I refer to previous correspondence in this matter and in particular to your letter dated 15 September 2016. I refer to the decision of Justice Bromwich on 18 August 2016 at paragraph 2: Because the respondents' successful application for summary dismissal of the amended application was interlocutory, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) requires leave to appeal. Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that a written application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made, or such other date as is fixed by the Court. No other date was fixed, so the application for leave to appeal was required to be made by 18 February 2016. The 18 February 2016 deadline was not met. Instead, the applicant filed the present application for an extension of time and for leave to appeal 19 days late on 8 March 2016. As your application for an extension of time and leave to appeal out of time was refused there are no further appeal grounds in this Court. You cannot now appeal a separate issue of costs. I have not changed my decision to refuse the documents that you lodged on 8 September 2016. 3 From the above correspondence it is plain that the applicant was seeking to file an application for leave to appeal from my decision of 18 August 2016 in Haque v Jabella Group Pty Ltd [2016] FCA 962 by which I dismissed his application for an extension of time and leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia. Because this application concerns a decision that I made, I would not ordinarily be an appropriate judicial officer to deal with this application. However that reservation does not apply in circumstances where the decision of the Registrar turns purely on a fundamental question of whether this Court has any jurisdiction to entertain the proceedings sought to be brought by the applicant. No question presently arises as to whether my decision was incorrect in any way. In short form, the applicant is seeking to appeal from the appellate jurisdiction of this Court to the appellate jurisdiction of this Court. 4 On 22 November 2016 I made procedural orders which were designed to encourage the applicant to focus on the fundamental problem that he had in seeking to bring a further appeal, or leave to appeal, from a decision in the appellate jurisdiction of this Court. The orders that I made were as follows: 1. By 4.00 pm on Thursday, 2 February 2017, the applicant file the following with the Court: a. written submissions of no more than five (5) pages explaining how a competent appeal can be brought from a single judge of the Federal Court exercising the Court's appellate jurisdiction to a Full Court of the Federal Court exercising the Court's appellate jurisdiction, including specifically identifying which sections of the Federal Court of Australia Act 1976 (Cth) authorise such an appeal and how those sections allow such an appeal to be brought; b. any other written submissions of no more than five (5) pages about how the respondent Registrar erred by refusing to permit the applicant's notice of appeal to be filed; and c. a list of any authorities (case law and legislation) to be relied upon. 2. The matter be listed for hearing for one hour at 10.15 am on Thursday, 9 February 2017. 5 The applicant chose not to file any written submissions. Instead he filed on 1 February 2017 an affidavit described as a "combined affidavit" containing what was accurately described as "narrative paragraphs" over 16 pages, and a list of authorities listing various statutes and cases and containing narrative about a large number of those cases. However, none of that material addressed either the topic of how a competent appeal can be brought from a single judge of this Court exercising appellate jurisdiction to a Full Court of this Court exercising appellate jurisdiction, or the topic about how the Registrar erred by refusing to permit his application for leave to appeal (erroneously referred to in my orders as a notice of appeal) to be filed. 6 At the hearing of the application I invited the applicant to make any oral submissions that he wished to on either of the above topics. In response he made reference to a different case that he sought to bring. I informed him that I was not able to deal with any other case that he may wish to bring as that was not before the Court. 7 In the course of oral submissions, the applicant accepted that he could not bring a case from the appellate jurisdiction to the appellate jurisdiction of this Court, and that no section or law allowed him to do that. He said the Registrar's decision was right. He said he was "happy to dismiss this case", in context meaning this application. The applicant has by those comments and by what he has placed before the Court necessarily failed to explain how any competent appeal can be brought from a single judge of this Court exercising appellate jurisdiction to a Full Court of this Court exercising appellate jurisdiction (and indeed has expressly accepted that this cannot be done). He has failed to demonstrate any other error on the part of the Registrar. I not satisfied that the Registrar made any error. To the contrary, I am satisfied that the Registrar was entirely correct to refuse to accept for filing the applicant's application for leave to appeal and supporting affidavit. I therefore dismiss the application. There was no issue of costs requiring any determination. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.