SZSSJ v Deputy District Registrar [2016] FCA 909

FEDERAL COURT OF AUSTRALIA

SZSSJ v Deputy District Registrar [2016] FCA 909 Appeal from: Application for an extension of time: SZSSJ v Deputy District Registrar [2016] FCA 434

File number: NSD 985 of 2016

Judge: FLICK J

Date of judgment: 9 August 2016

Catchwords: PRACTICE AND PROCEDURE – application for an extension of time in which to appeal – brief extension required – appeal with no prospects of success – extension of time refused

Legislation: Federal Court of Australia Act 1976 (Cth), ss 14(2), 24(1)(a), 25(1), 25(2), 37M Federal Court Rules 2011 (Cth), rr 2.26, 36.03, 36.05

Cases cited: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 SZSSJ v Deputy District Registrar [2016] FCA 434

Date of hearing: 20 July 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 21

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 985 of 2016

BETWEEN: SZSSJ Applicant

AND: DEPUTY DISTRICT REGISTRAR Respondent

JUDGE: FLICK J DATE OF ORDER: 9 AUGUST 2016

THE COURT ORDERS THAT:

1. The Application for an extension of time is dismissed. 2. The proceeding is otherwise dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 A little after 6pm on Christmas Day 2015 at the Villawood Immigration Detention Centre the Applicant claims that he was "physically & verbally assaulted and bullied by a Serco kitchen staff". He claimed that he was "unable to get my meal while he is serving". The written complaint made on 28 December 2015 was responded to on 30 December 2015, including in part the response: Witnesses have spoken of you taking an extra portion of fruit whilst a salad was being made for you and when challenged you made unnecessary remarks to the SERCO staff member which was witnessed by other SERCO staff. At no time were you touched or verbally abused by SERCO staff that were simply carrying out their duties. 2 Founded upon these events and the aftermath, the Applicant sought to file in this Court an Originating Application and a Statement of Claim. The applicant claimed (without alteration): 1. A declaration that the Respondents have, individually and collectively, shown Systematic corruption. 2. The Respondents pay the Applicant damages, as he agrees. The Statement of Claim simply stated as follows (without alteration): 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). 3 A Deputy District Registrar refused to accept these documents. Rule 2.26 of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules") permits a Registrar to refuse to accept documents for filing if the Registrar "is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious". 4 On 27 April 2016 a Judge of this Court dismissed an application seeking judicial review of the Deputy District Registrar's decision: SZSSJ v Deputy District Registrar [2016] FCA 434. In doing so, his Honour reviewed in outline each of the statutory provisions to which the Applicant had referred, together with written submissions filed by the Applicant which focussed upon the jurisdiction entrusted to this Court to resolve a "federal matter". His Honour observed: [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". His Honour then reverted to the decision sought to be reviewed and the grounds upon which judicial review was sought, namely: bias; abuse of power; obstruction of the process of justice; and a denial of procedural fairness. When addressing the decision taken to refuse the documents for filing, his Honour concluded: [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 … 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. 5 The Applicant now seeks to appeal from that decision of the primary Judge. Section 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act") confers a right of appeal from "judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court". Section 25(1) of that Act provides that, subject to the section itself, the appellate jurisdiction of the Court is to be exercised by a Full Court. Section 14(2) provides in part that a "Full Court consists of 3 or more Judges sitting together…". Rule 36.03 of the Federal Court Rules provides that an appeal is to be filed within 21 days after the day on which the judgment appealed from was pronounced or the order was made. Rule 36.05 of those Rules provides a discretionary power to extend the time within which an appeal must otherwise be filed. 6 The matter comes before the Court constituted by a single Judge because the Applicant requires an extension of time within which to appeal. Section 25(2) of the Federal Court Act provides, in part, as follows: Applications: … (b) for an extension of time within which to institute an appeal to the Court…. must be heard and determined by a single Judge unless: (e) a Judge directs that the application be heard and determined by a Full Court; or (f) the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application. 7 In support of his application for an extension of time, the Applicant relies upon an affidavit in which he states that on 18 May 2016 he called the Registry and was told that "since it was an application to the original jurisdiction of the Court, the time limit for the appeal is 28 days". As a result of that conversation, the Applicant maintains that on 25 May 2016 he faxed to the Court a "Notice of Appeal and other relevant documents". In doing so, the Applicant believed that he was within the time permitted to appeal. 8 By 25 May 2016, however, the Applicant was about a week out of time. 9 When called upon to exercise the discretion to extend the time within which to appeal, Tracey J in Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 outlined the principles which guide the exercise of that discretion, as follows: [12] … The Court has an unfettered discretion to grant or refuse such an application. That discretion must, of course, be exercised judicially. This requires a balancing of potentially conflicting interests and regard to the peculiar circumstances of each case. The starting point in any given case is that the relevant legislation or rules have prescribed a period within which an appeal must be lodged. Such prescription serves the public purpose of bringing disputes to finality. There is, therefore, what has been described as a prima facie rule that applications or appeals brought out of time will not be entertained: cf Lucic v Nolan (1982) 45 ALR 411 at 416. It is, therefore, necessary for an applicant who seeks an extension of time to advance some plausible reasons which explain the delay in commencing the appeal and provide a foundation for the conclusion that it is in the interests of justice that an extension be granted: cf Duff v Freijah [1982] FCA 159; (1982) 62 FLR 280 at 285. One factor which may carry significant weight in determining where the justice of a case lies is the merits of any proposed appeal: cf Lucic at 417. Where an extension of time is sought in order to lodge a notice of appeal, it is to be borne in mind that "the respondent to the application has a vested right to retain the judgment, the subject of the appeal": see Jackamarra v Krakourer (1998) 195 CLR 516 at 519-20 (Brennan CJ and McHugh J). In assessing the merits of a potential appeal the Court is not required to examine a case in great detail. A "full rehearsal" of the argument on appeal is not required. Any assessment of "the merits" must necessarily be undertaken "in a fairly rough and ready way": see Jackamarra at 522. See also: Jess v Scott (1986) 12 FCR 187 at 191-2 and the authorities therein referred to. These principles remain a valuable guide to the exercise of the discretion: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [10] per North, Besanko and Flick JJ. 10 The draft Notice of Appeal which was annexed to the Applicant's initial affidavit set forth the proposed Grounds of Appeal, assuming an extension of time were granted, as follows: 1. The Court below was biased. 2. The Court below has misconstrued the relevant laws. 3. The Court below has denied me procedural fairness. The deficiencies in the Grounds of Appeal were raised with the Applicant when the matter first came before the Court on 15 July 2016. On that date the application for an extension of time was stood over for hearing on 20 July 2016. 11 On 20 July 2016 the Applicant filed a further affidavit and a draft Amended Notice of Appeal. Leave was granted to amend the Notice of Appeal. On that occasion, the Applicant stated that he was ready to proceed with the hearing of his application to extend time notwithstanding the fact that there was no available transcript of the proceeding before the primary Judge and no response to an application made for documents pursuant to the Freedom of Information Act 1982 (Cth) (the "Freedom of Information Act"). 12 As amended, the proposed Grounds of Appeal claimed that the primary Judge: had not brought "an impartial and unprejudiced mind at the hearing", the Particulars including a statement that the primary Judge had made "multiple discriminatory comments"; erred "by misconceiving and misconstruing my submissions"; "misconstrued the relevant laws"; failed "to consider relevant submissions"; and denied the Applicant procedural fairness. 13 On the facts of the present case, at least three factors weigh heavily in favour of granting the extension sought, namely: the extension sought is for a relatively short period of time; the advice provided to him by an officer of the Registry of this Court was erroneous; and the fact that the Applicant in making the inquiry of the Registry was obviously trying to comply with such time constraints as were imposed by the Federal Court Rules. But there is one factor which weighs heavily against the grant of an extension of time, namely: the fact that the appeal has no merit. In so commenting upon the merit of the appeal, regard has been had to both the grounds upon which judicial review was first sought of the decision of the Deputy District Registrar and the proposed Grounds of Appeal, as amended. The conclusion of the primary Judge, with respect, was inevitable and unquestionably correct. The proposed Grounds of Appeal are without any prospect of success. 14 Even on the basis of the Grounds of Appeal as amended, the proposed appeal remains an appeal without any prospects of success. There is no point in extending time within which to file an appeal which will inevitably be dismissed. To do so would be contrary to the "overarching purpose of the civil practice and procedure provisions" imposed by s 37M of the Federal Court Act to resolves disputes, not only "according to law" but to do so "as quickly, inexpensively and efficiently as possible". 15 To some extent, the factual basis on which the case was now sought to be advanced by the Applicant should have been advanced – if it were to be advanced at all – before the primary Judge and not on appeal. The Applicant thus sought to contend upon the present application that the documents sought in his application, pursuant to the Freedom of Information Act, would expose documents relevant to his claim that the alleged assault was the product of a failure to discharge the duty of care to protect persons from assault. But if such documents were relevant, they should have been sought as part of the case at first instance and not on appeal. And it was not part of the responsibilities of the primary Judge to advise the Applicant of the prospect of seeking a subpoena to secure the production of such documents. There was no denial of procedural fairness, on the part of the primary Judge, in not providing advice to the Applicant on the prospect of seeking the issue of a subpoena. 16 To some extent, the case now sought to be advanced by the Applicant depends upon documents which should have been sought – if at all – well prior to the application for an extension of time made on 20 July 2016. A transcript of the proceeding before the primary Judge, for example, could have exposed any "discriminatory comments" said to have been made. But no attempt had been made to secure a transcript as at 20 July 2016 and there was then available no evidence to support the Particular claiming that such statements had been made. 17 To a large extent, the arguments now sought to be advanced are in any event without substance. The Applicant (for example) now contends that the primary Judge erred in failing to take into account submissions which were advanced in a written Outline of Submissions dated 27 April 2016, namely submissions that: the Deputy District Registrar erred in failing to find a "logical connection between the circumstances set out [in an affidavit] and the sections" of the statutes relied upon (as set forth in paras [6] and [7] of those written submissions); and the Court did have jurisdiction (as set forth in para [9] of those written submissions). The Applicant maintains that such submissions should have been – but were not – expressly set forth in the primary Judge's summary of the arguments: [2016] FCA 434 at [18]. This argument is without substance for the simple reason that both of these arguments were inextricably involved with the primary Judge's rejection of the arguments as to why the Deputy District Registrar erred. 18 But, whatever may be the relevance of such observations, there forever remained two fundamental difficulties which the Applicant could not overcome in seeking to obtain an extension of time, namely: the fact that the allegations made as to the alleged assault on Christmas Day fell, as the primary Judge observed ([2016] FCA 434 at [21]), "a long way from the present unparticularised charge of 'systematic corruption'"; and the fact that, again as explained by the primary Judge, the Applicant remained free if he so wished "to pursue some cause of action based on an alleged assault … in a competent court" ([2016] FCA 434 at [21]). Always to be born in mind is the fact that the matter before the primary Judge involved the decision of the Deputy District Registrar to refuse to accept documents for filing. Those documents sought damages and declaratory relief for "systematic corruption". The decision of the Deputy District Registrar involved no determination on the merits of any allegation of assault. The claim sought to be pursued by the Applicant in this Court was, with respect, a claim without substance and he suffers no prejudice in an extension of time being refused. 19 As the Application was framed, the Deputy District Registrar was correct in refusing to accept the documents for filing and, more relevantly, the primary Judge was correct in refusing to set that decision aside. 20 Considerable reservation should be exercised on the part of a single judge refusing an extension of time which precludes a party seeking to appeal to a Full Bench of this Court, especially in circumstances where an officer of the Registry has provided erroneous advice. If the Applicant had been able to show any real inability to pursue his claims for damages for the alleged assault or any argument which had any potential to succeed, a different exercise of discretion may have been called for. But there is no real prejudice and no such argument. 21 The application for an extension of time should thus be dismissed. The Deputy District Registrar filed a submitting appearance and, accordingly, has incurred no costs.

THE ORDERS OF THE COURT ARE: 1. The Application for an extension of time is dismissed. 2. The proceeding is otherwise dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate: Dated: 9 August 2016