Federal Court of Australia Ward v Judicial Registrar Cho [2021] FCA 1661 File numbers: QUD 335 of 2021 Judgment of: LOGAN J Date of judgment: 1 November 2021 Catchwords: PRACTICE AND PROCEDURE – application to review decision of Registrar to refuse to accept for filing an originating application claiming writ of certiorari to quash treatment confirmation by Queensland Mental Health Tribunal – where applicant did not attend case management hearing – whether Registrar entitled to refuse to permit filing as abuse of process or frivolous or vexatious document – where applicant raises constitutional defence against the Mental Health Tribunal – where multiple avenues of appeal in State Court system – where no jurisdiction evident – application dismissed Legislation: Constitution ss 28, 51, 109 Judiciary Act 1903 (Cth) ss 39B, 78B Mental Health Act 2016 (Qld) ss 28, 539, 549, 641, 705, 707, 708 Federal Court Rules 2011 (Cth) r 2.26 Cases cited: F. and A. Capelvenere v Omega Developments Corporation Pty Ltd (1983) 77 FLR 385 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 1 November 2021 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: The Respondent filed a submitting notice, save as to costs ORDERS QUD 335 of 2021 BETWEEN: AMELITA WARD Applicant AND: JUDICIAL REGISTRAR JAMES CHO, FEDERAL COURT OF AUSTRALIA Respondent order made by: LOGAN J DATE OF ORDER: 1 NOVEMBER 2021 THE COURT ORDERS THAT: 1. The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 By a letter dated 28 September 2021, a Registrar of the Court in the Court's New South Wales District Registry (Registrar) advised the applicant, Ms Amelita Ward of Carrara in Queensland, of a decision not to accept for filing an originating application in form 15, together with an accompanying affidavit and application for reduction of applicable court fees. The originating application claimed a writ of certiorari to quash what was said to be the unlawful confirmation by the Queensland Mental Health Tribunal (Tribunal) on 14 September 2021 of a treatment authority under the Mental Health Act 2016 (Qld) (Mental Health Act). 2 That the decision was made by a Registrar within the Court's New South Wales District Registry reflects a prevailing registry administration practice whereby the registry services of the Court are administered nationally. The document concerned was sought to be filed electronically on the Court's electronic court file. It is a noteworthy feature of the originating application that it was prepared by a "Glenn Floyd", a "pro bono advocate". 3 On 14 October 2021, Ms Ward filed an application for the review by a judge of the Registrar's decision. Today is the appointed first case management hearing date for that review. I am satisfied that notice of the listing of the proceeding for case management today was sent by the registry to Ms Ward at the address for service nominated on the originating application for review. When the proceeding was called on this morning, there was no appearance by or on behalf of Ms Ward. That position was confirmed after the number and name of the proceeding was called three times in the Court's public area, at my direction, by a court officer. 4 That there was no appearance this morning was not altogether surprising, in light of correspondence directed recently to the registry making reference to an anxiety state of some sort on the part of Ms Ward which would occasion her non-attendance. She had earlier been placed on notice by the registry that if there were no appearance by or on her behalf, the proceeding may be dismissed for want of prosecution. The application for review also records on its face that it has been prepared by Mr Floyd, "pro bono advocate". 5 There has been earlier correspondence by the registry with Ms Ward, advising that the Court would permit Mr Floyd, who is apparently a resident in Victoria and who is not a legal practitioner, to act as a McKenzie friend, if that were practically possible, by his attendance to provide discrete advice to Ms Ward in relation to the proceeding. Ms Ward was informed by the registry that leave would not be granted to Mr Floyd to speak for her, only to act as a McKenzie friend. 6 Regard both to the originating application sought to be filed as well as to the application for review offers ample reason why there ought to be no relaxation of the requirement that litigants either appear on their own behalf or by a legal practitioner. Each document displays an abject ignorance, with all respect to Mr Floyd, of the Court's jurisdiction. It would be wasteful of the Court's time to grant any leave at all, in these circumstances, to Mr Floyd to do other than act as a McKenzie friend. 7 The apparent foundation for the Registrar's decision to refuse to permit the filing of the originating application and related documents was r 2.26 of the Federal Court Rules 2011 (Cth), which states: 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. 8 The Registrar's view was that the proceeding sought to be instituted by the originating application was, on its face, frivolous or vexatious. On reviews such as the present, it is for the Court to reach its own view in relation to the question as to whether, in this case, a document ought to be permitted to be filed so as to institute proceedings. As it happens, approaching the matter afresh, I find myself completely in agreement with the view reached by the Registrar. 9 The apparent subject of Ms Ward's grievance is a decision of the Tribunal made on 14 September 2021 at Southport, confirming a treatment authority. The application for review asserts that the Court has jurisdiction to grant the writ of certiorari. In particular, reference is made in the application for review to s 39B(1A) of the Judiciary Act 1903 (Cth). That subsection provides: (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. 10 It is asserted in the application for review that a federal issue has been raised as part of a claim or defence before the Tribunal. That federal issue is said to be: … Ms Ward's fundamental Constitutional s 51(xxiiiA) claim of defence That is apparently a reference to s 51(xxiiiA) of the Constitution, which provides at s 51 that: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: and then (xxiiiA): the provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances; 11 It may be accepted that a matter arising under the Constitution may be one jurisdictional foundation for the institution of a proceeding in this Court. Section 51 of the Constitution delineates subjects in respect of which the Commonwealth Parliament has legislative competence concurrent with the states. Where the Parliament chooses to enact legislation pursuant to one of these subjects, it may additionally choose to give such legislation paramountcy over any state legislation via the operation of s 109 of the Constitution. 12 Neither in the originating application nor in the application for review is there any allegation of any inconsistency between federal legislation enacted pursuant to s 51(xxiiiA) of the Constitution and the Mental Health Act. As it is, the reference to s 51(xxiiiA) of the Constitution is completely devoid of any apparent basis for the invocation of jurisdiction under s 39B of the Judiciary Act. 13 The Mental Health Act summarises the jurisdiction of the Tribunal in s 28. Part of that Tribunal's jurisdiction, as s 28(1)(a) reveals, is the review of treatment authorities. The Tribunal is established under the Mental Health Act. Its members are drawn, either in the case of the president or a deputy president, from legal practitioners. Other members may be either legal practitioners, psychiatrists or persons having other qualifications and experience which the State Minister for Health considers relevant to exercising the Tribunal's jurisdiction: see s 707 and s 708 of the Mental Health Act – and allowed under s 28; see also s 705(1)(a)(i). 14 Decisions of the Tribunal are not immune from challenge. By s 539 of the Mental Health Act, provision is made for an appeal to the Mental Health Court by persons and in respect of decisions identified in sch 2 to that Act. Regard to sch 2 discloses that Ms Ward had a right of appeal to the Mental Health Court in respect of the decision confirming the treatment authority. The Mental Health Court is constituted by a judge of the Supreme Court – see s 641 of the Mental Health Act – assisted by members who are clinicians. 15 In turn, the Mental Health Act, by s 549, provides for a right of appeal from the Mental Health Court to the Court of Appeal. The Mental Health Act does not – and, indeed, it would be beyond State legislative competence – provide for any jurisdiction at all to be exercised in respect of Tribunal decisions by this Court: note the fate, after constitutional challenge, of State cross vesting legislation: see Re Wakim; Ex parte McNally (1999) 198 CLR 511. 16 However one approaches the present case, there is just no jurisdiction. The Registrar, therefore, was quite right to regard the proceeding as frivolous or vexatious. In these circumstances, there is truly no matter arising under the Constitution, or involving its interpretation, such as would warrant the giving of notices under s 78B of the Judiciary Act to the various Attorneys General and the associated public expense thereby entailed. 17 That it was necessary to have considered s 78B of the Judiciary Act offers, almost 40 years later, confirmation of the wisdom, with respect, of observations made by Fitzgerald J in F. and A. Capelvenere v Omega Developments Corporation Pty Ltd (1983) 77 FLR 385 as to a need for reconsideration of the procedure for which 78B of the Judiciary Act provides in relation to inconvenience which can be occasioned by that provision. In my view, where an asserted constitutional issue is so completely devoid of merit as to be but colourable, s 78B of the Judiciary Act is not engaged. 18 The result, then, is that the application for review ought to be dismissed for two reasons. Principally, it should be dismissed because it has no merit. It ought also to be dismissed on the basis of a failure to prosecute the application, as demonstrated by Ms Ward's failure to appear today. As it happens, and for the principal reason given, the dismissal, in my view, occasions no injustice to Ms Ward and no reason to adjourn so as to permit any later appearance. No amount of adjournment could cure the complete absence of invocation of jurisdiction. 19 I should also, for completeness, record that it is apparent from the Tribunal decision annexed to the originating application that Ms Ward is over 18 years of age. I have assumed that she is mentally competent, although an interrogative note is perhaps sounded by the treatment authority. Of course, if she were not of sufficient mental competence to institute a proceeding herself, as opposed to via a tutor, that would provide, by virtue of the absence of any such representative, yet another reason to dismiss the proceeding. 20 For these reasons, then, the application must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 9 February 2022