FEDERAL COURT OF AUSTRALIA

Grass v Tesoriero [2016] FCA 794

File number: NSD 886 of 2016 Judge: PERRAM J Date of judgment: 12 July 2016 Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Citizenship Act 2007 (Cth) Federal Court Rules 2011 (Cth), r 2.26, 16.02(1) Cases cited: Northern Territory v Mengel (1995) 185 CLR 307 Date of hearing: Heard on the papers Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 25 Counsel for the Applicants: The applicant appeared in person Counsel for the Respondent: The respondent filed a submitting appearance

ORDERS

NSD 886 of 2016 BETWEEN: JOHN GRASS First Applicant CORAZON GRASS Second Applicant AND: A TESORIERO DEPUTY DISTRICT REGISTRAR FEDERAL COURT Respondent

JUDGE: PERRAM J DATE OF ORDER: 12 JULY 2016

THE COURT ORDERS THAT:

1. Order absolute in the first instance for a writ of certiorari directed to the respondent quashing the decision of 2 June 2016 to refuse the applicants’ documents for filing.

2. If the Registrar ultimately accepts for filing the documents lodged with the Registry on 1 June 2016 they are to be taken to be and always to have been filed on that date.

3. 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

PERRAM J:

1 This is an application for an order that a decision made by a Registrar of this Court on 2 June 2016 be set aside. That decision was a decision to refuse to accept for filing an originating application and statement of claim which the applicants (Mr and Mrs Grass) had sought to file with this Court in order to commence a proceeding.

2 The Registrar is authorised under rule 2.26 of the Federal Court Rules 2011 (Cth) to refuse to accept a document for filing in certain circumstances. It provides:

2.26 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.

3 The Registrar concluded that he should exercise this power. He gave reasons for this decision as follows:

The issues canvassed in your application have been heard and determined. I refer to original proceedings in the Federal Circuit Court in file SYG2514/2012 and also an appeal from that decision in this Court in file NSD473/2014 where your appeal was heard and dismissed on 27 March 2015.

For these reason, in my view the application cannot possibly succeed and therefore the document is an abuse of the process of the Court and frivolous and vexatious.

4 It is necessary to say something of these earlier proceedings. Mrs Grass is a citizen of the Philippines. In 2009 she applied to become an Australian citizen and her application to do so was approved on 21 May 2009. Under the Australian Citizenship Act 2007 (Cth) she could nevertheless not become a citizen before taking what is referred to as a ‘pledge of commitment’. As a matter of usual practice, ceremonies are arranged at which groups of people take the pledge all at once. As a matter of law, however, this is not necessary and the pledge may be taken at any time before various prescribed persons.

5 After Mrs Grass had been approved on 21 May 2009 she could have perfected her citizenship at any time by so taking the pledge. She was not obliged to wait for a scheduled ceremony. However, she waited, like most people, for the next such ceremony. Unbeknownst to her, officials within the Department had decided that the original approval of 21 May 2009 should be reviewed on the basis that some information provided by Mrs Grass had not been accurate. The approval may be annulled before the pledge is taken but not afterwards. The Department was not in a position to make a cancellation decision as matters then stood because it did not have sufficient evidence. To get that evidence it was conducting inquiries in the Philippines.

6 The Department did not inform Mrs Grass of the true position and thereby avoided the risk that she would take the pledge immediately and become a citizen. Indeed to thwart that possibility it appears that the officials involved lied to her about when the next ceremony was and how long she would have to wait in order to buy the Department more time. But for these dishonest statements Mrs Grass could have become a citizen. An inference which may be available to be drawn is that this dishonest activity was done with the intention of harming Mrs Grass at least in the sense of preventing her from becoming a citizen.

7 For example an internal memorandum says this:

Hi Megan

I contacted the client’s husband Mr John Grass in response to the email recd and gave him the same information I told the client yesterday that at this stage Ryde Council have not provided any ceremony dates for next year. He was quite persistent about knowing approximately when her ceremony would be as he had found out from the council that they hold ceremonies every month for 100 clients and he was sure his wife would be somewhere on the top of the list. I advised him that there were still clients who were approved about the same time as his wife waiting for a ceremony. Without advising him about the pending investigation, I said that the clients who were approved about May would be invited about Feb or March. I also advised him that 100 clients per ceremony did not mean the first 100 on the list. Some families had many children included in their application and the more number of children the number of main applicants would diminish. He said we should do something about clients waiting for citizenship so long. His wife was depending on her citizenship as she had travel plans. He then thanked me for responding to his enquiry.

8 On 5 July 2010, the addressee of the above note cancelled the approval which had been granted to Mrs Grass on 21 May 2009. This was done on the basis that Mrs Grass was not of good character because she had given false information about her date of birth, identity, marital status and family composition.

9 A subsequent investigation by the Department concluded that the officer involved had breached the Department’s Code of Conduct and an unspecified sanction was imposed.

10 In November 2012 Mrs Grass commenced judicial review proceedings in the Federal Circuit Court. In January 2013 the Minister’s solicitors indicated that the Minister would agree to the setting aside of the cancellation decision on the ground of apprehended bias. They suggested that it be set aside with effect from 8 April 2013 and that Mrs Grass be restrained from take the pledge of commitment before 22 April 2013. This was evidently designed to ensure that a fresh cancellation decision might be made. Mrs Grass was not agreeable to this and the matter was then resolved by the Federal Circuit Court.

11 The Federal Circuit Court made orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) on 13 February 2013 setting aside the cancellation decision of 5 July 2010 with effect from 8 April 2013. On 8 April 2013 a delegate of the Minister again decided to cancel the approval.

12 Proceedings were then commenced in this Court to review the decision of the Federal Circuit Court. This second case was concerned with two related narrow legal issues about whether there was power to make the order in the prospective way that the Federal Circuit Court did. This Court, and subsequently the Full Court, concluded that such a power did exist and declined relief: Grass v Minister for Immigration and Border Protection [2015] FCAFC 44. The Full Court invited further submission on costs at [79] in these terms:

79. The circumstances which have brought this matter before the Court and, in particular, the misconduct within the Department may potentially have cost consequences upon which the appellant should be heard. The appellant should file and serve written submissions on the issue of costs within 7 days of the date hereof and the respondents should do so within a further 7 days. Neither submission should exceed 5 pages.

13 Subsequently, the Full Court determined that although the conduct giving rise to the litigation may have been improper, the Minister’s conduct of the litigation had not been and that there was therefore no reason to depart from the ordinary rule that costs follow the event: Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61.

14 Two features of this abbreviated history should be noted. First, the issue in the case in the Federal Circuit Court and this Court was whether the initial cancellation decision should be set aside on the basis of apprehended bias (answer: yes) and if so, from what date (answer: prospectively from 8 April 2013). It was not disputed that the official had misbehaved. Indeed, it was that misbehaviour which plainly formed the basis of the Minister’s agreement that the initial cancellation decision should be set aside.

15 I turn then to Mr and Mrs Grass’ proposed originating application and statement of claim. It is apparent that they have been prepared without the benefit of legal assistance. Nevertheless, it is reasonably clear what they seek.

16 Prayer 1 of the originating application says that the applicants claim damages, including exemplary damages, for misfeasance in public office, ‘common law tort’ and breaches of the Commonwealth Citizenship Act 2007 (Cth). The proposed statement of claim lists in single spacing over 16 pages a detailed chronology of the matter. I intend no disrespect but the document in no way resembles what a Court would recognise as a pleading. As a matter of formality it does not begin to comply with r 16.02(1) which provides:

16.02 Content of pleadings—general

(1) A pleading must:

(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

(b) be as brief as the nature of the case permits; and

(c) identify the issues that the party wants the Court to resolve; and

(d) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

(e) state the provisions of any statute relied on; and

(f) state the specific relief sought or claimed.

17 I do not say this critically but it should be emphasised for Mr and Mrs Grass’ benefit that there is much more to running a court case than writing the whole story down in a chronology. They would be well advised to seek legal assistance.

18 Despite these pleading problems, it is clear that the basic complaint made by Mr and Mrs Grass is that the action of the official in deliberately deceiving them about the need for Mrs Grass to wait to take the pledge so that a decision to revoke the initial approval might be made was tortious. For example, paragraph 10 reads:

10. Citizenship officers intentionally and unlawfully delayed Mrs Grass’s citizenship ceremony to facilitate the process that cancelled Mrs Grass’s citizenship approval.

19 There are other parts of the statement of claim which disclose the same theme:

14. Chronology of Misfeasance in Public Office by Citizenship officers to facilitate the unlawful process that cancelled Mrs Grass’s Citizenship approval and conceal misconduct by Citizenship officers involved in the process:

….

20 The elements of the tort of misfeasance in public office, at least in a simple case, were conveniently stated by the High Court in Northern Territory v Mengel (1995) 185 CLR 307 at 345. Liability for this tort can be established by showing that, assuming damage, the officer acted with an intention of causing harm. It seems to me that this is the essential complaint that Mr and Mrs Grass make.

21 The Registrar rejected the documents for filing because he was of the view that the claim now made had already been determined by the Federal Circuit Court and this Court. In my opinion that is not so. The Federal Circuit Court had set aside the cancellation decision because the misconduct of the official generated an apprehension of bias and the Full Court of this Court upheld the ability of the Federal Circuit Court to make its order doing so prospective. There is no inconsistency between those proceedings and what is now proposed. Indeed, at several points in those proceedings this Court pointed out the inappropriateness of what had been done to Mrs Grass.

22 It follows that the Registrar’s conclusion that the proceeding was an abuse of process was wrong. The proceeding would not be an abuse of process by reason of the earlier proceedings and it is apparent that the Registrar arrived at the view that r 2.26 was engaged on an erroneous understanding of the legal effect of the earlier proceedings. Consequently, no power arose under r 2.26 to reject the documents for filing on the basis expressed. Put another way, the Registrar had no jurisdiction to decide as he did. Further, were it necessary it seems to me that there was also an error of law patent on the face of the record. In principle, a writ of certiorari absolute in the first instance should issue to quash the decision of the Registrar of 2 June 2016.

23 There are two matters I mention for completeness. First, the documents presented by Mr and Mrs Grass have their obvious difficulties. But it is also plain that there is an underlying and quite plausible cause of action. Secondly, there may be limitation issues although whether, given the history of the matter, these will be relevant, in light of the Minister’s obligations as a model litigant, remains to be seen.

24 There is also a final observation which should be made. I have not ordered the Registrar to accept the documents for filing. That remains a matter for him. It is Registry practice to make the date of filing of an originating application the date upon which it is lodged with the Court, which in this case was 1 June 2016. There is some support for this view in r 2.25 although the situation is perhaps not as clear as it should be. I have the power to make directions inconsistent with the rules (see r 1.35). For the avoidance of doubt, in this case I will therefore also direct that should the Registrar eventually accept for filing the documents lodged by the applicants on 1 June 2016, they will be taken to have been filed on that date.

25 I make the following orders:

(1) Order absolute in the first instance for a writ of certiorari directed to the respondent quashing the decision of 2 June 2016 to refuse the applicant’s documents for filing.

(2) If the Registrar ultimately accepts for filing the documents lodged with the Registry on 1 June 2016 they are to be taken to be and always to have been filed on that date.

(3) No order as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated: 11 July 2016