Federal Court of Australia

AZO24 v Commonwealth of Australia (No 2) [2024] FCA 426

ORDERS

THE COURT ORDERS THAT:

1.    The applicant be refused leave to file the interlocutory application and accompanying affidavit she sought to file on 18 March 2024.

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

REASONS FOR JUDGMENT

KENNETT J:

1    The applicant seeks declarations that the respondents have acted illegally and in breach of her rights under various international instruments. She also seeks a range of other relief. These claims arise from what the applicant claims is a concerted program of surveillance and harassment of her, by the respondents and various corporate parties, since around 2017. For present purposes it is not necessary to go into the details of the allegations or express any opinion about the prospects of their being made out. The applicant is currently known by the pseudonym AZO24, pursuant to orders I made on 7 March 2024 under s 37AI of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).

2    On 18 March 2024, the respondent attempted to file an interlocutory application that sought orders pursuant to s 23 of the Federal Court Act and s 39B(1) of the Judiciary Act 1903 (Cth). The orders sought would require: the removal of people who live within the applicant’s residential apartment building (who she says are agents of the respondents placed there to intimidate her); that the respondents not go within the boundaries of her apartment building; that the respondents not follow her; and that they not interfere with evidence in her possession. The interlocutory application was accompanied by an unsigned affidavit the applicant intended to depose, which I will mention further shortly. For present purposes, nothing turns on the fact the affidavit was not sworn or affirmed, and I reviewed the affidavit on the assumption that it would have been sworn or affirmed in due course.

3    The interlocutory application and affidavit were brought to my Chambers’ attention on 18 March 2024. On 20 March 2024, I ordered that no document be accepted for filing in this proceeding without leave granted by a Judge of this Court: see r 2.27(f) of the Federal Court Rules 2011 (Cth). By doing so, I intended to refuse leave to file those two documents. I have written these brief reasons because the applicant has lodged an application for leave to appeal from my refusal to grant leave. Because the applicant also seeks leave to appeal from my decision not to disqualify myself (see AZO24 v Commonwealth [2024] FCA 218), I thought it best that the application for leave to appeal from the refusal of leave to file the interlocutory application be heard by another Judge, and that I not exercise any judicial power in connection with this proceeding while my decision not to disqualify myself remains under challenge.

4    I refused leave to file the interlocutory application and the associated affidavit because there is no prospect of the Court making the orders sought in the application on the evidence supplied, and in those circumstances the Court’s time and resources should not be spent hearing the application. The application seeks extraordinary orders in an attempt to remove people from their homes in the applicant’s apartment building and stop people from following her. Many of the people whose interests would be affected by the proposed orders are not parties to the proceeding. Such orders are discretionary and would only be made in the most extraordinary case. Even then, there may be a question about whether this Court has power to make such orders, which the respondents may well wish to contest. Cogent evidence would be needed to persuade the Court that interlocutory orders of this kind were appropriate.

5    There is simply no prospect of the orders sought being made in this case on the basis of the evidence sought to be filed in support of the application (being the applicant’s affidavit).

6    In the affidavit, the applicant asserts that people who live within the same apartment building as her are agents of the Commonwealth and the State of NSW, placed there to intimidate her in connection with these proceedings. She also says that agents of the respondents have followed her on public transport to intimidate her in connection with this proceeding. Two points emerge from a reading of the affidavit.

7    The first point is that the case for making the proposed orders does not rise any higher than the applicant’s own suspicion arising from a series of seemingly unconnected events. There is nothing approaching direct evidence of the concerted and elaborate campaign that the applicant alleges. More than suspicion would be needed to establish, even on an interlocutory basis, the existence of such a campaign.

8    The second point is that, with great respect, the evidence proposed to be provided in support of the applicant’s contentions discloses an irrational thought process that does not reflect reality. That is best shown by providing examples.

(a)    The applicant says that “[since] I moved into my apartment I have noticed a series of objects placed around the premises in common areas that appear to have been placed there deliberately, make innuendo to me and are to intimidate or threaten”. The examples the applicant cites include a grey laundry basket being placed in the foyer of her apartment, containing a bath mat and a taupe towel. The applicant indicated these were “the same as items I have” and that “[t]his indicated they had seen these items with the possibility they had entered my apartment to see them in my bathroom…”. Similarly, on 4 November 2022 and 6 February 2023, supermarket shopping bags were left in the apartment foyer, and were said to be related to surveillance of the applicant.

(b)    The applicant also says that, after she had served the respondents with originating documents in these proceedings, a woman sat in front of her on public transport on the journey home and opened a computer (with the username indicating she had the same first name as the applicant) to look at an invoice from a company called “Poolwerx” and viewed pictures of swimming pools. The applicant then says that “[t]he week before I had watched the film “Swimming Pool” at home on my TV which the police can hear through the surveillance.” The applicant then concludes that it “appears the woman on the train was an agent following me … and she was making reference to this film I had watched”, and that it “appeared to me an act of intimidation”.

(c)    The applicant also says that it appears to her that various media articles published on the websites of the Australian Broadcasting Corporation, The Sydney Morning Herald and The Age were placed there as acts of intimidation. One article mentioned is from ABC Online entitled “Aussie kids learn what to pack in an emergency and how to prepare emotionally for disaster”, and its main landing page thumbnail which read “How pillow cases are helping kids combat anxiety in a world of extremes”. The applicant later says: “[t]he pillow I assume to have a connotation to infer smothering or suppressing me … the children in the photo in the article are also wearing yellow t-shirts. Yellow is a colour associated with me.”

9    The affidavit contains more such material. It concludes with the applicant’s assertion that “[h]aving agents residing within my apartment block or agents following me for the purpose of intimidating me increases my anxiety and distress”.

10    I do not suggest that the applicant’s anxiety and distress are not genuinely or keenly felt. I also do not doubt that the applicant has filed the interlocutory application and the affidavit in good faith to try and put an end to an injustice she perceives being wrought against her. However, a genuine belief in persecution is not sufficient to persuade me that the Court’s processes should be used to bring an application which is not grounded in reality or rational thinking. The respondents are bodies politic and the costs of responding to a meritless application would be borne by the taxpayer, consuming resources that would otherwise be used for public purposes. The Court’s resources that would be consumed by the hearing of the application are also public resources: see s 37M(2) of the Federal Court Act. Allowing this interlocutory application to be brought against the respondents would be unjust to other users of the Court whose proceedings would be delayed: see Sali v SPC Ltd (1993) 116 ALR 625, 629 (Brennan, Deane and McHugh JJ).

11    For these reasons I concluded that it was not appropriate to grant leave for the applicant to file her interlocutory application and the accompanying affidavit.

Associate:

Dated:    26 April 2024