Federal Court of Australia

Independent Commission Against Corruption v Waterhouse (Removal of Filed Document) [2026] FCAFC 110

ORDERS

THE COURT ORDERS THAT:

1.    Paragraphs 17 and 19 of the respondent's notice stating grounds of opposition to the creditor's petition are struck out.

2.    The respondent pay the applicant's costs of and incidental to the applicant considering and responding to the interlocutory application lodged by Mr Waterhouse on 5 December 2025 and of complying with the orders of Markovic J dated 15 April 2026.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In June 2025, the Independent Commission Against Corruption in New South Wales (ICAC) petitioned for a sequestration order against the estate of Mr Martin Waterhouse. The petition, which is yet to be heard, relies upon assessments pursuant to cost orders made against Mr Waterhouse in proceedings in the Supreme Court of New South Wales and the alleged failure to comply with a bankruptcy notice that was issued based on those cost assessments.

2    Mr Waterhouse has been a solicitor of many years standing. He is conducting the defence of the creditor's petition on his own behalf. During oral submissions, he informed the Court that his application to renew his practicing certificate had been refused recently for reasons associated with the conduct of the proceedings in this Court. Whilst Mr Waterhouse is a litigant in person, the obligations to provide explanations to litigants in person as to the Court's procedure are to be applied selectively with due regard to his lifetime of experience in the law: Trkulja v Markovic [2015] VSCA 298 at [42] (Kyrou and Kaye JJA and Ginnane AJA); Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 (Giles and Tobias JJA and Sackville AJA) and Martin v Norton Rose Fulbright Australia [2021] FCAFC 216; (2021) 289 FCR 369 at [249(6)] (Jagot, Katzmann and Banks-Smith JJ). Mr Waterhouse may be taken to be aware of the responsibilities of litigants and the need to have a proper foundation for factual contentions advanced to the Court.

3    Mr Waterhouse has filed a notice stating grounds of opposition to the creditor's petition. Amongst other things, the notice makes claims to the effect that the judgment debts the subject of the petition were 'knowingly and perversely granted'. Mr Waterhouse also alleges that the justices of the Supreme Court, ICAC and ICAC's lawyers, 'together with other persons yet to be named' conspired 'to cover up and keep covered up serious and systemic corruption within the administration of justice'. He also claims that 'politicians are rigging police investigations and trials in our superior courts'. He also claims that the 'conspiracy and cover-up' was continued into the High Court when several of its judges 'together with other public officials' who were 'motivated…to cover up the evidence and horrendous scandal' acted to further defeat and deny justice to Mr Waterhouse 'by unlawful perverse and foul means'.

4    Although these matters are advanced by Mr Waterhouse as grounds of opposition to the petition, he also says that this Court has an inherent supervisory jurisdiction to deal with the claims because the Commission has sought to 'further an alleged criminal purpose' by bringing its petition.

5    As part of his grounds of opposition, Mr Waterhouse says that he moves the Court to recuse itself and adjourn the matter to allow time for the making of 'special arrangements' with the filing of evidence by the Commission in response to the claims made by Mr Waterhouse to occur once those special arrangements have been made. The special arrangements to which Mr Waterhouse refers are for the appointment of 'jurists (judges) from outside the jurisdiction and beyond political influences in this country [as] acting Federal Court judges to try just this case'. The proposal in the grounds is for the appointment to be made by the Chairman of the International Commission of Jurists. The matters identified in the grounds that are said to sustain the claim that there is no judge of this Court who should hear and determine the petition are:

(1)    Five of the High Court judges are former members of this Court; and

(2)    Every judge of this Court 'has a personal interest in this case by reason of their former colleagues in the High Court whose allegedly corrupt conduct that are being asked to judge'.

6    Since filing his grounds of opposition to ICAC's creditor's petition, Mr Waterhouse has pursued a course of demanding special arrangements and maintaining that the petition must be adjourned until that has occurred. He contends that the Chief Justice of this Court has an obligation to make the special arrangements he proposes.

7    On 5 December 2025, Mr Waterhouse lodged an interlocutory application for special arrangements to be made and an affidavit in support of that application. The documents were accepted for filing and the interlocutory application was allocated to Markovic J.

8    On 4 March 2025, a case management hearing was conducted by Markovic J in respect of the interlocutory application. Her Honour raised a concern that the interlocutory application appeared to be an abuse of the process of the Court. She ordered the filing of submissions on the question whether an order should be made pursuant to r 2.28(1) of the Federal Court Rules 2011 (Cth) in relation to the interlocutory application.

9    Subsequently, those orders were vacated and the interlocutory application brought by Mr Waterhouse referred to a Full Court. We were convened as the judges to comprise that Full Court.

10    At a further case management hearing conducted by Markovic J on 15 April 2026, orders were made as to the hearing to be conducted by the Full Court. The terms of those orders are appended to these reasons (Orders). The Orders provided for certain questions to be heard and determined by the Full Court on 22 July 2026. The questions concerned whether certain powers could and should be exercised to require the removal of the Interlocutory Application from the Court file.

11    The Orders required the parties to address matters raised by the Court of its own motion, namely:

(1)    Whether the interlocutory application by Mr Waterhouse is an abuse of process and, if so, whether the Court should order or direct its removal from the Court file;

(2)    Whether the interlocutory application, on its face is a document that should not have been accepted for filing and, if so, whether the Court should order or direct its removal from the Court file;

(3)    Whether the Court should direct the Registrar to remove the interlocutory application from the Court file on the basis of what is apparent from the Court file;

(4)    If any such order or direction is made, whether there should be any consequential orders; and

(5)    If any such order or direction is not made, the case management orders that should be made for the hearing and determination of the interlocutory application.

12    Pursuant to the Orders, the Commission filed written submissions. They were to the effect that the Court should order or direct the removal of the interlocutory application from the Court file.

13    Mr Waterhouse then filed written submissions which he described as 'Submissions of Official Complaint of Actual Bias and Improper Conduct by Judges of the Court' (Waterhouse Submissions). The complaint was said to be made to the Chief Justice of this Court and included a claim that the complaint should be dealt with by 'a suitably qualified jurist nominated by the Chairman of the International Commission of Jurists'. Despite being ordered to limit his written submissions for the hearing to be conducted on 22 July 2026 to 15 pages, the Waterhouse Submissions comprised some 43 pages. We need only deal with them to the extent they raise matters that bear upon the questions the subject of the Orders.

14    At the heart of the submissions advanced by Mr Waterhouse was his contention that every judge of this Court was affected by apprehended bias. The precise basis for that contention was somewhat obscure. It appeared to be based upon the fact that five of the judges of the High Court were formerly judges of this Court and assertions by Mr Waterhouse concerning those five judges. The suggestion was that there was actual bias or the appearance of bias on the part of all judges of this Court by reason of that fact and those assertions. In his written submissions Mr Waterhouse also referred to 'a very large number of past and present public officials, Directors of Public Prosecutions, senior police officers, judges, Chief Justices, politicians, Attorneys-General, corruption commissioners and others who have been adversely named in…pleadings and evidence' by Mr Waterhouse and that 'virtually every judge of this…Court would be personally acquainted with many of those named' (which are said by Mr Waterhouse to include current justices of the High Court who are former judges of this Court).

15    Broadly speaking, by those submissions, Mr Waterhouse raises the following contentions as to why the Court should not exercise any administrative or procedural power to require the removal of the interlocutory application from the Court file:

(1)    As the interlocutory application seeks to exercise a right to seek recusal for bias, it must be heard and determined and there is no power or authority to refuse to accept the application for filing or to now direct or order that it be removed from the Court file;

(2)    Before the Court could strike out the interlocutory application it must accept as true the allegation that all judges of the Court are affected by bias because those claims have been made and supported by evidence in affidavits filed in opposition to the creditor's petition; and

(3)    The Orders themselves were made in furtherance of the corruption and coverup that Mr Waterhouse alleges.

16    Mr Waterhouse's submissions also raised a claim of actual or apprehended bias on the part of Markovic J based upon the conduct by her Honour of the two case management hearings and the limitations on written and oral submissions imposed by the terms of the Orders.

17    The bias claims in respect of Markovic J are addressed by her Honour's separate reasons to be published with these reasons. They are also addressed by the reasons of each of Colvin and McElwaine JJ prepared after being provided with a draft of the reasons of Markovic J (we have also each addressed claims of apprehended bias raised by Mr Waterhouse). For the reasons there given, we do not accept that there is any basis for recusal.

18    These reasons address the remainder of the matters the subject of the Orders.

Relevant principles and rules concerning the filing of documents

19    Following the long-established practice of Courts of record, the Court protects it processes from abuse by refusing to accept certain types of documents for filing. The responsibility for scrutinising documents to assess whether they may be accepted for filing is entrusted to registry officers who work under the day-to-day supervision and direction of the Principal Registrar and other Registrars of the Court. However, ultimately, the registry of any Court acts under the administrative direction of the judges of the Court: AMB19 v Minister for Home Affairs [2020] FCA 439 at [61] (Colvin J) and Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [33] (Wheelahan J).

20    Parties do not file documents with the Court. They lodge documents. Whether a document that has been lodged is accepted and included as part of the Court file (being the formal Court record of the proceedings), is a matter for those responsible for maintaining those records.

21    The Court has express power to make Rules as to the practice and procedure to be followed in Registries of the Court: s 59(1) of the Federal Court of Australia Act 1976 (Cth). It has done so. Rules 2.26 and 2.27 of the Federal Court Rules 2011 (Cth) provide for circumstances in which a document may be refused for filing or will not be accepted for filing. Rule 2.26 provides that a Registrar may refuse to accept a document for filing if the Registrar 'is satisfied' that the document is an abuse of process on the face of the document or by reference to any documents already filed.

22    Rule 2.27 specifies instances where a document 'will not be accepted for filing'. It includes instances where a judge has given a direction that the document not be accepted for filing: see r 2.27(e). However, a registrar may refuse to accept a document for filing without a direction from a judge in the other instances described in the Rules.

23    The Rules as to the practice and procedure to be followed in the Registries of the Court deal with the means by which substantive rights may be enforced in the conduct of Court business and may not go so far as to make, alter or remove substantive rights: Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324-325 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ), 341-342 (Kirby J). Rules that protect the Court from abuse by preventing the filing of documents that are (a) scandalous as to their content; or (b) do not conform with the procedural requirements of the Court; or (c) involve repetitive filing of documents previously rejected are necessary to enable the Court to efficiently and fairly administer justice. They do not invite adjudication of substantive rights. Accordingly, they are a valid exercise of the Court's rule-making power.

24    Even without such Rules, 'it may be thought that it would be implied that a Registrar would have the power, or be under a duty, to protect Court procedures from abuse by refusing to accept a document for lodgement or filing which, on its face, would be an abuse of court process or frivolous or vexatious': Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42; (2003) 128 FCR 353 at [15] (Lee, Whitlam and Jacobson JJ).

25    As we have mentioned, the work of the Registry is administrative, not judicial. In conducting the affairs of the Court's Registry, the Registrars of the Court (and those who assist them), do not adjudicate or determine proceedings or otherwise exercise judicial power. When a judge directs a Registrar not to accept a document for filing, the judge acts in aid of the administration of the Court. No exercise of judicial power is involved: Bizuneh at [15]-[18]. Further, the Registrar who carries the direction into effect does not make a decision or exercise any separate power on the part of the Registrar. In such instances, the Registrar gives effect to the administrative decision of the judge. Consequently, no review could be sought of the actions of the Registrar in refusing to accept a document for filing where the Registrar is giving effect to an administrative direction by a judge.

26    Separately, a judge may direct the Registrar not to accept the document unless leave has been obtained from a judge to accept the document for filing: r 2.27(f). A direction of that kind is also an administrative act by the judge: Bizuneh at [18]. A Registrar who then refuses to accept a document for filing on the basis that the required leave has not been obtained makes no separate decision of a kind that might be reviewed. However, where an application for leave is made and determined by a judge, that determination would involve an exercise of judicial power: Bizuneh at [18].

27    Conclusions to the same effect were reached in Manolakis v District Registrar, South Australia District Registry, Federal Court of Australia [2008] FCAFC 162; (2008) 170 FCR 426 at [19]-[20] (Gray, Branson and Besanko JJ); Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47 at [47]-[52] (Marshall, Cowdroy and Buchanan JJ) and Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [33] (Barker, Banks-Smith and Colvin JJ).

28    Consequently, it is not the case that every document lodged with the Court must be accepted for filing. Indeed, there would be the potential for considerable abuse of the process of the Court if that were so. There would also be the potential for an overwhelming burden to be placed on the limited resources of the Court if there was an unlimited or unrestricted requirement for the Court to accept as part of the Court file every document that was lodged.

29    Of course, administrative powers of the above kind exist to protect the Court's jurisdiction from abuse, not to intrude into a form of evaluation appropriately reserved for judicial consideration. They are confined and are only to be exercised in clear cases: see Nyoni at [38] and Re Young [2020] HCA 13 at [11]-[13] (Gageler J).

30    For completeness, we observe that, in addition to the exercise of their administrative responsibilities, Registrars may exercise other types of power to which the above reasoning does not apply. They may be appointed to conduct mediations. They may be appointed by orders of the Court to act as a referee and provide a report to the Court. They may also act as taxing officers.

31    Separately to these responsibilities, Registrars may also exercise delegated judicial power. However, as a matter of constitutional law, any such delegation must be subject to a right to a fresh hearing before a judge of the Court: Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 at [1]-[8] (Allsop CJ, Markovic and Colvin JJ).

32    Also, Judges of the Court can make procedural orders in the course of proceedings as to the documents that may be allowed to remain on a Court file. They may do so on the Court's own motion or in circumstances where a party, by application to the Court, has demonstrated that the document is an abuse of process or contains material of a scandalous nature that should not continue to form part of the Court record. They may also refuse leave to file a document where a direction has been made requiring leave. Decisions of that kind will involve the exercise of judicial power: Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate [2016] HCA 41 at [25] (Nettle J). Consequently, they may be the subject of appeal because they involve the exercise of judicial power. However, as they will be interlocutory, any appeal will require leave. It may be expected that leave would be difficult to obtain given the procedural nature of the order and likelihood that the order would not have a substantive consequence.

33    Specific provision is made in r 2.28 of the Rules as to the removal from the Court file of documents that have been accepted for filing. The rule is expressed in the following terms:

(1)     A document which has been accepted for filing will be removed from a Court file if:

(a)     the Court has ordered that the document be removed from the Court file:

(i)     on its own initiative; or

(ii)     on the application of a party under rule 6.01 or subrule 16.21(2); or

(b)     for an affidavit--the Court has ordered that the affidavit be removed from the Court file:

(i)     on its own initiative; or

(ii)     on the application of a party under subrule 29.03(2); or

(c)     the Court is satisfied that the document:

(i)     is otherwise an abuse of process of the Court; or

(ii)     should not, under rule 2.27, have been accepted for filing.

(2)     A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.

(3)     A document removed from a Court file under this rule must be stored:

(a) if an order mentioned in this rule specifies a way to store the document--in the way specified in the order; or

(b) otherwise--as directed by the District Registrar.

34    The language used in r 2.28 distinguishes between instances where the Court has ordered that a document be removed from a Court file and instances where the Court 'is satisfied' that the document ought to be removed. Significantly, the instances where a document will be removed on the basis of the Court's satisfaction correspond with the subject matter of r 2.26 (abuse of process) and r 2.27 (documents not to be accepted for filing). Those Rules deal with the circumstances in which a Register may not allow a document to be filed.

35    The terms of r 2.28(1)(c) are appropriately considered in the immediate context of r 2.28 (1)(a) and (b), each of which contemplate the making of an order (that is, the exercise of judicial power) and their evident connection with the earlier rules which concern the administrative control of the Court file. Considered in that context, we regard the use of the word 'satisfaction' to refer to the administrative practice and procedure to be followed in respect of the Court file. The power conferred by r 2.27(c) is administrative. It reflects the matters described earlier, particularly the overall responsibility of the judges of the Court for the practice and procedure of the Court relating to the acceptance of documents for filing. Its exercise does not require the Court to conduct any form of judicial hearing. Procedural fairness in its exercise will likely require the party concerned to have an opportunity to advance submissions that will be considered in forming any state of satisfaction. However, where the Court is satisfied as to one of the matters in r 2.28(c), the consequent removal of a document from the Court file will be an administrative act of the judge who forms the state of satisfaction for that purpose.

36    The present case does not concern the exercise of the powers conferred upon Registrars by r 2.26 and r 2.27. It is now well established that an exercise of those powers may be the subject of an application for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth); Nyoni at [41]. However, it is well to note that the exercise of that administrative power is not otherwise able to be the subject of a form of review or rehearing by a judge. Rather, an aggrieved party may seek an order, as provided for by r 3.04, requiring the Registrar to accept the document for filing. Of course, any applications of that kind may be overtaken if, when the matter comes to the attention of a judge, an administrative direction is made by the judge that the document is not to be accepted for filing. For that reason, a judge may consider it appropriate to invite submissions in advance of the hearing of any such application as to whether the power conferred by r 2.27(e) should be exercised.

37    Finally, there is provision in the Rules for a Registrar to exercise the power conferred by r 2.28 to make an order to remove from a Court file a document (see r 3.01 and Part 3.7 of Schedule 2). Exercise of that power by a Registrar would be an exercise of delegated judicial power in respect of which a party would have a right to seek a rehearing before a judge.

Mr Waterhouse's application not in a special category

38    We do not accept the contention advanced by Mr Waterhouse to the effect that the Court is unable to exercise the administrative power available to it to require the removal of the interlocutory application from the Court file because it raises an allegation of bias and corruption. Nor do we accept his contention that by reason of its subject matter the interlocutory application must be heard and could not be the subject of an order requiring its removal from the Court file.

39    If accepted, Mr Waterhouse's contention would mean that there was a category of application that would not be subject to the administrative processes we have described. The Court would be burdened with having to consider all applications which raised some form of allegation of apprehended or actual bias no matter how they were expressed. The Court would be at risk of being overcome by having to consider such applications even where they are plainly misconceived, confused or manifestly untenable.

40    Equally, there is the potential for other parties to be unfairly burdened. If an application is accepted for filing then, in our adversarial system, the likely consequence is that another party will be called upon to answer the application. Even having to consider the application and decide whether to abide by any decision the Court may make can be time consuming and expensive. It is significant for any party to be required by Court process and procedure to answer claims and allegations.

41    Mr Waterhouse's submissions would seek to justify the exception on the basis that applications of apprehended or actual bias are concerned with the integrity of the Court. No doubt that is so. However, the integrity of the Court also depends upon its ability to function. It must have administrative mechanisms by which it is able to exclude filings which fail to conform with basic procedural requirements.

The interlocutory application should be removed from the Court file

42    Mr Waterhouse's interlocutory application seeks orders as to the judicial officers before whom the bankruptcy proceedings brought by ICAC should be listed. The arrangements as to how cases are allocated or assigned for determination is a matter for the Chief Justice: s 15(1AA) of the Federal Court of Australia Act. Individual judges including those convened as a Full Court do not have power or authority to determine the way in which cases will be allocated or assigned. They are unable to make orders or directions as to the composition of the Court in a particular case. Further, the assignment of a particular case is not a matter that is justiciable by a litigant. It is fundamental to the independence of the administration of justice that individual litigants are unable to control or influence the identity of the judge who will determine their cause. As to these matters see the reasoning in Rajski v Wood (1989) 18 NSWLR 512.

43    In appropriate instances, a litigant can inform the Court of known associations or interests that the litigant considers the Chief Justice might bring to account in determining whether to allocate or assign the litigant's case to a particular judge. In the rare instance where all judges have known associations or interests, special arrangements might be put in place by the Chief Justice. However, it is not for a litigant to make some form of application for an order by a judge or judges of the Court as to those arrangements (whatever they might be). Rather, the appropriate course for any litigant is to make a recusal application when the judge or judges have been allocated.

44    Of course, any recusal application must be clear as to its basis. Once made, a recusal application must be addressed by the judge or judges concerned before the matters allocated for determination are decided. Only where a reasoned conclusion is reached that there should be no recusal should the allocated matters be determined by the allocated judge or judges.

45    Here, the interlocutory application sought orders contrary to these fundamental principles. It is obvious on the face of the interlocutory application that it seeks relief of a kind that a litigant cannot seek and invites a judge to make an order of a kind that no judge of this Court can make. For those reasons, we are satisfied for the purposes of r 2.28(1)(c) that the interlocutory application is an abuse of process in the sense that it is a clear case where the interlocutory application is entirely without any arguable jurisdictional foundation.

46    The necessary consequence of that conclusion is that the interlocutory application will now be removed from the Court file under r 2.28(1). For reasons that we have given, that step will be taken administratively.

47    It follows that it is unnecessary to consider whether the document should have been accepted for filing or whether there should now be a direction to a Registrar to remove the interlocutory application from the Court file. It is also unnecessary to determine ICAC's submissions concerning the possible limits on the kinds of special arrangements that may be put in place having regard to the character of the Federal Court. We are of the view that it is not appropriate to address these further matters given the conclusion that we have reached that the interlocutory application is clearly an abuse of process and should be removed from the court file.

No assumption to be made as to the matters raised as the basis for the interlocutory application

48    The submission advanced by Mr Waterhouse to the effect that for the purposes of considering whether the interlocutory application will or should be removed from the Court file it was necessary to assume the truth of the claims made by him as the basis for his application was misconceived. It treated the Orders as invoking some form of summary dismissal process or demurrer of a kind where it was said that even if the truth of the allegations made were assumed to be true there was no prospect of the case succeeding. That was not the nature of the issues posed by the Orders that the parties were asked to address.

49    For reasons we have given, the issue with the interlocutory application was more fundamental. It did not matter what the basis for the application was asserted to be, it was clearly a form of application that could not be brought.

50    As to the claims of actual and apprehended bias we have dealt with those matters in our separate reasons.

Consequential orders

51    As we have explained, the grounds of opposition to ICAC's creditor's petition that have been filed by Mr Waterhouse include a claim that 'special arrangements' must be put in place for the hearing of the creditor's petition. For reasons we have given, that aspect of the grounds is without any merit. There should be a consequential order striking out that part of the grounds.

Costs and orders

52    ICAC sought an order that Mr Waterhouse pay the costs of and incidental to the interlocutory application and of the costs associated with complying with the Orders. Those costs are attributable to the conduct of Mr Waterhouse. The Orders were made by reason of his conduct in seeking orders as to 'special arrangements' for the hearing of the creditor's petition. His actions in seeking those 'special arrangements' lacked any legal or factual foundation. In those circumstances, we are persuaded that there should be a costs order substantially in the terms sought by ICAC.

53    Otherwise, no orders are required. As we have explained, consequent on the state of satisfaction we have reached, the interlocutory application will be removed from the Court file administratively. No order is needed for that to occur. The only orders will be the order striking out part of Mr Waterhouse's grounds of opposition and the order as to cost.

Associate:

Dated:    28 August 2026