Manolakis v Carter

• Jurisdiction: Australia Federal only
• Judgment Date: 21 November 2008
• Neutral Citation: [2008] FCAFC 183
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Manolakis v Carter [2008] FCAFC 183

PRACTICE AND PROCEDURE – abuse of process – documents and affidavits filed which contain scandalous, vexatious and oppressive matter – available remedies – appropriate relief – where applicant in default – where no reasonable prospect of prosecuting a proceeding – where a proceeding is frivolous or vexatious – whether judgment final or interlocutory – need for leave to appeal – appeals dismissed

Federal Court of Australia Act 1976 (Cth) ss 19(1), 25(2)(a) and 31A(2)

Federal Court Rules O1 r4, O4 r3, O4 r6, O11 r16, O14 r8, O19 r2(2)(d), O20 r5, O35A r2(1)(b), O35A r3(1)(a), O41 r5, O46 r7A, O52 r10, O52 r10(2), O52 r10(2A)(b)

MZWGB v Minister for Immigration and Multicultural Affairs [2006] FCA 1681

Port of Melbourne Authority v Anshun Proprietary Limited (No 1) (1980) 147 CLR 35

Decor Corporation Pty Limited v Dart Industries Inc (1991) 33 FCR 397

ANASTASIOS MANOLAKIS v BRUCE CARTER, PETER IVAN MACKS, INSPECTOR-GENERAL IN BANKRUPTCY, COMMISSIONER OF TAXATION and CHAIRPERSON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

SAD 55 of 2008

ANASTASIOS MANOLAKIS v SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA, DEPUTY REGISTRARS OF THE HIGH COURT OF AUSTRALIA, SENIOR MS CAROLYN ROGERS, SENIOR REGISTRAR HIGH COURT OF AUSTRALIA, MS DENISE WEYBURY, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA, MS ROSEMARY MUSOLINO, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, MR DAMIAN BUGG - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, THE AUSTRALIAN FEDERAL POLICE, MR MICHAEL KEELTY - AUSTRALIAN FEDERAL POLICE COMMISSIONER, REGISTRAR FEDERAL COURT OF AUSTRALIA, MRS ELIZABETH SHEPPARD and COMMONWEALTH OF AUSTRALIA

SAD 56 of 2008

SPENDER, GRAHAM AND TRACEY JJ

21 NOVEMBER 2008

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 55 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANASTASIOS MANOLAKIS Appellant
AND:	BRUCE CARTER First Respondent PETER IVAN MACKS Second Respondent INSPECTOR-GENERAL IN BANKRUPTCY Third Respondent COMMISSIONER OF TAXATION Fourth Respondent CHAIRPERSON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Fifth Respondent

JUDGES:	SPENDER, GRAHAM AND TRACEY JJ
DATE OF ORDER:	21 NOVEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The name of the fifth respondent be amended by substituting ‘Investments’ for ‘Investment’.

2. The appeal be dismissed.

3. The appellant pay the third respondent’s costs on an indemnity basis.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 56 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANASTASIOS MANOLAKIS Appellant

AND:

SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA First Respondent DEPUTY REGISTRARS OF THE HIGH COURT OF AUSTRALIA Second Respondent SENIOR MS CAROLYN ROGERS, SENIOR REGISTRAR HIGH COURT OF AUSTRALIA Third Respondent MS DENISE WEYBURY, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA Fourth Respondent MS ROSEMARY MUSOLINO, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA Fifth Respondent COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Sixth Respondent MR DAMIAN BUGG - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Seventh Respondent THE AUSTRALIAN FEDERAL POLICE Eighth Respondent MR MICHAEL KEELTY - AUSTRALIAN FEDERAL POLICE COMMISSIONER Ninth Respondent REGISTRAR FEDERAL COURT OF AUSTRALIA Tenth Respondent MRS ELIZABETH SHEPPARD Eleventh Respondent COMMONWEALTH OF AUSTRALIA Twelfth Respondent

JUDGES:	SPENDER, GRAHAM AND TRACEY JJ
DATE OF ORDER:	19 NOVEMBER 2008
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 55 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	ANASTASIOS MANOLAKIS Appellant
AND:	BRUCE CARTER First Respondent PETER IVAN MACKS Second Respondent INSPECTOR-GENERAL IN BANKRUPTCY Third Respondent COMMISSIONER OF TAXATION Fourth Respondent CHAIRPERSON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Fifth Respondent

SAD 56 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANASTASIOS MANOLAKIS Appellant

AND:

SENIOR REGISTRAR OF THE HIGH COURT OF AUSTRALIA First Respondent DEPUTY REGISTRARS OF THE HIGH COURT OF AUSTRALIA Second Respondent SENIOR MS CAROLYN ROGERS, SENIOR REGISTRAR HIGH COURT OF AUSTRALIA Third Respondent MS DENISE WEYBURY, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA Fourth Respondent MS ROSEMARY MUSOLINO, DEPUTY REGISTRAR HIGH COURT OF AUSTRALIA Fifth Respondent COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Sixth Respondent MR DAMIAN BUGG - COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Seventh Respondent THE AUSTRALIAN FEDERAL POLICE Eighth Respondent MR MICHAEL KEELTY - AUSTRALIAN FEDERAL POLICE COMMISSIONER Ninth Respondent REGISTRAR FEDERAL COURT OF AUSTRALIA Tenth Respondent MRS ELIZABETH SHEPPARD Eleventh Respondent COMMONWEALTH OF AUSTRALIA Twelfth Respondent

JUDGES:	SPENDER, GRAHAM AND TRACEY JJ
DATE:	21 NOVEMBER 2008
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 The Federal Court of Australia is not a court of unlimited jurisdiction. Under s 19(1) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) the Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament.

2 Sometimes cases are instituted in the Court where the Court has not been invested with jurisdiction.

3 From time to time the Court is confronted by cases where one or other of the parties has instituted a matter or defended a matter and that party has no reasonable prospect of successfully prosecuting or successfully defending the matter. Other cases come before the Court where a proceeding or claim within it is frivolous or vexatious or an abuse of the process of the Court. Other cases arise where a pleading in a matter discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or has a tendency to cause prejudice, embarrassment or delay in the proceeding or is otherwise an abuse of the process of the Court.

4 In some instances, affidavits or other documents are filed which contain scandalous, vexatious or oppressive matter.

5 In other cases again, documents are presented for filing which, on their face, appear to be an abuse of the process of the Court or to be frivolous or vexatious.

6 The Act and the Federal Court Rules (‘the Rules’) confer powers on the Court and/or Registrars of the Court to appropriately deal with such circumstances.

7 In the case of defective applications or pleadings, or applications which have no reasonable prospects of success, the relevant powers of the Court which need to be considered include s 31A(2) of the Act together with s 4, which brings an ‘appeal’ within the meaning of ‘proceeding’ where used in s 31A; Order 20 rule 5 of the Rules; Order 11 rule 16 of the Rules (remembering that under Order 1 rule 4 a ‘pleading’ does not include an ‘application, notice of motion or affidavit’); Order 14 rule 8 of the Rules which empowers the Court to order that an affidavit containing scandalous or oppressive matter be ‘taken off the file’; Order 41 rule 5 of the Rules which empowers the Court to order that a document be ‘removed from the file’ if there is scandalous, vexatious or oppressive matter within it; Order 46 rule 7A of the Rules which empowers a Registrar to refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious.

8 Other powers of the Court extend to situations where a party is ‘in default’. Order 35A rule 3(1)(a) confers a power on the Court to order that a proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant if the applicant is in default. Under Order 35A rule 2(1)(b), one such form of default is where an applicant fails to attend a directions hearing.

9 Whatever the difficulties facing an applicant in person may be, those difficulties cannot justify a departure from the Rules relating to the institution and conduct of proceedings and to pleadings such that anything will go. Justice requires fairness to all parties. A respondent is entitled, at the least, to know the case that is brought against him or her and the rudimentary facts upon which that case is based.

10 Courts do not exist to allow self-represented litigants to make scatter-gun claims against all and sundry and to indulge themselves by using proceedings they have instituted as vehicles for what might be seen to be private ‘Royal Commissions’.

Nor do courts exist to allow the frustrations of self-represented litigants to be relieved by the making of abusive or contemptuous...