REGISTRAR REFUSED TO ACCEPT APPLICANT’S DOCUMENTS
Frigger v Trott [2021] FCA 18 (25 January 2021)
This case involves the determination on whether the Registrar erred in refusing to accept the applicant’s documents for filing.
Facts:
The applicants sought to commence proceedings against Professional Services of Australia Pty Ltd (PSA) and others. The remedies sought were damages for harm done to reputation, emotional distress and similar damage, legal costs and losses caused to the applicants' self-managed superannuation fund.
The wrongs alleged to give rise to those remedies were malicious prosecution of a proceeding in the Supreme Court of Western Australia and related appeals, abuse of process in PSA's application for the appointment of a provisional liquidator to, and for the winding up of, Computer Accounting and Tax Pty Ltd (in liquidation) (CAT), malicious prosecution of criminal proceedings against Mrs. Frigger for an alleged attempt to pervert the course of justice, and malicious prosecution of a means inquiry in the Supreme Court. The originating process also alleged 'breach of warranty of authority' against the lawyers in connection with most of those matters.
The affidavit in support contained a narrative of the facts said to support the relief sought. The documents appear to have been lodged for filing with the registry of this court. The Registrar wrote to the applicants on 2 October 2020 notifying them that he had refused to accept the documents stating that it appeared they raised issues that had already been dealt with by this court in previous proceedings commenced by the applicants.
Issue: Is the Registrar correct in refusing to accept the applicant’s documents?
Law:
Analysis:
It is difficult to see how he could have formed that view without referring to documents filed in those earlier proceedings, or basing it on his own acquaintance with and knowledge of those proceedings as gained in the past. The documents sought to be filed do not describe any issues as having been previously dealt with by this court. The court infers that the Registrar must have gained the knowledge on which he relied from some source other than the two documents which were sought to be filed. And as the proceeding had not been commenced at the time, there was no other document 'already filed' within the meaning of r 2.26(b)
It is true that there are references to two previous proceedings in this court in the affidavit of Mrs Frigger which was rejected for filing, but nothing in the Registrar's letter suggests that his view was formed on the basis of those references. They merely disclosed the existence and matter number of each proceeding. They say nothing about the subject matter or other content of the proceedings. A mere reference to a proceeding by matter number gives no immediate or apparent information as to what the proceeding is about.
This case is no occasion to consider any broader question as to the extent of background knowledge which may properly inform a state of satisfaction reached on the face of a document for the purpose of r 2.26. The rule does not authorize a state of satisfaction to be reached on the basis of documents filed in another proceeding, or of an applicant's litigious history if that does not appear on the face of the documents.
Conclusion: The court considers that the Registrar here made an error of the kind referred to in ss 5(1)(e) and 5(2)(g) of the ADJR Act.
