Federal Court of Australia

AZO24 v Commonwealth of Australia [2024] FCA 555

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal the order made on 7 March 2024 is refused.

2.    Leave to appeal the order made on 20 March 2024, that no document be accepted for filing in NSD1036/2023 without leave granted by a Judge, is refused.

3.    Leave to appeal the order made on 20 March 2024, that the applicant be refused leave to file the interlocutory application and accompanying affidavit she sought to file on 18 March 2024, is refused.

4.    The applicant is to pay the costs of the respondents to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant seeks leave to appeal from three orders made by the primary judge. First, an order made on 7 March 2024 dismissing an application that his Honour disqualify himself from hearing the matter: AZO24 v Commonwealth [2024] FCA 218; second, an order made on 20 March 2024, that no document filed by the applicant can be accepted for filing in the proceeding without leave of the Court: AZO24 v Commonwealth (No 2) [2024] FCA 426; and third, an order refusing the applicant leave to file an interlocutory application and affidavit said to support an application for an injunction against the respondents: AZO24 v Commonwealth (No 2) [2024] FCA 426.

2    These claims arise in proceedings where the applicant claims various forms of relief based on what she contends is a concerted program of surveillance, intimidation, assault, and harassment of her, by the respondents and others, since around 2017.

3    The applicant relies on the following material support of the applications:

(1)    a copy of the interlocutory application in proceeding NSD1036/2023, dated 18 March 2024 and accompanying affidavit dated 18 March 2024;

(2)    an affidavit dated 21 March 2024; and

(3)    an affidavit dated 25 March 2024.

4    Each of the above materials were filed to support the applications for leave to appeal, with the interlocutory application and affidavit dated 18 March 2024 being the document which the primary judge refused leave to file.

5    In addition, the applicant filed the following written submissions in support of the grants of leave to appeal:

(1)    written submissions dated 8 May 2024;

(2)    written submissions dated 10 May 2024; and

(3)    written submissions in reply dated 20 May 2024.

6    With the agreement of the parties, this matter was determined on the papers.

7    I have considered this material relied on by the applicant, and the written submissions filed by each of the respondents.

8    For the reasons below, leave to appeal is refused.

Consideration

9    It is necessary to first consider the applications for leave to appeal.

10    The relevant principles are well established. The discretion to grant leave to appeal is an unfettered one, with each case being determined on its merits. Nonetheless the discretion is informed by well-established principles including that generally an applicant must establish: (1) that, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2) that substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 (Décor Corporation) at 398-400; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [44]; Samsung Electronics Co. Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [26]-[30]. These considerations are “cumulative” and are not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at [5].

11    In determining whether to grant leave, the Court must have regard to the statutory command that the power must be exercised in a way that best promotes the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: Bellamy’s Australia Ltd v Basil (2019) 372 ALR 638; [2019] FCAFC 147 at [6].

12    If an appeal has no prospect of success, leave to appeal should be refused: Kamruzzaman v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 523 at [17].

13    Insofar as the applicant relied on s 24(1C) of the Federal Court Act to contended that she does not require leave to appeal as the matters she alleges relate to her liberty, I do not accept the submission. These interlocutory orders, given their terms and the context in which they were made, cannot properly be said to affect the liberty of an individual. As the orders which the applicant seeks to appeal are interlocutory in nature, leave to appeal is required.

Disqualification application

14    The disqualification application was heard on an ex parte basis as the applicant was yet to serve her proceedings on the respondents.

15    The primary judge applied the correct legal principles, as articulated in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2023] HCA 15; (2023) 409 ALR 65 at [38] (summarised in AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252 at [10]-[11], recited at [8] of the primary judgment).

16    As the primary judge correctly details, the application was advanced on the basis his Honour was appointed to the Court by the Governor-General acting on the advice of the current federal government, on the advice of the current Attorney-General. This, the applicant said, gave rise to an apprehension of bias. The primary judge described the basis of that apprehension at [7]:

The apprehension of bias is said to arise, not because the Commonwealth is a party to the proceeding, but because the applicant makes allegations that each of the Prime Ministers and Attorneys-General who have held office since 2017 has been personally involved in decisions to take unlawful actions against her and has done so for improper purposes. Again, it is not necessary to go into the details. To understand the applicant’s point, it is sufficient to note that the judge who hears the case (if it goes to a final hearing) may have to decide whether to make findings of serious misconduct against persons who hold and have held office as Prime Minister and as Attorney-General. Her argument is that it is unsatisfactory for those matters to be decided by a judge who was appointed on the advice of any of those persons.

17    This is further articulated at [11]-[12]. The judge noted that many appointed judges would fall within the category the applicant complains of.

18    The primary judge, at [13], explained five points need be noted when considering the reasonableness of an apprehension that a judge might decide the case otherwise than on its merits.

(1)    First, the hypothetical observer is appropriately informed (and knows the appointment process).

(2)    Second, the hypothetical observer must also be taken to understand that judges of this Court have security of tenure up to the age of 70 years (except in limited circumstances which were detailed) and a judge therefore has no incentive to try to protect the interests of Ministers involved in their appointment.

(3)    Third, that appointment of a judge on the advice of a particular Minister does not create any ongoing connection between the judge and the Minister that might lead to awkwardness or discomfort in making findings against the Minister (in contrast to, for example, a friendship or familial relationship).

(4)    Fourth, the judge may hold a private view that the decision to recommend their appointment demonstrated wisdom and perspicacity and may therefore be slow to accept that the makers of that decision have been involved in misconduct but this possibility falls into the category of preliminary views on an issue rather than something pointing to a potential inability to decide the issue on its merits.

(5)    Fifth, all that remains is the possibility that, as a result of good will or gratitude towards those responsible for their appointment, but to extent that suggests the possibility of an improper fetter on the judge’s capacity to decide the case on its merits, the hypothetical observer would not regard it as a realistic possibility (noting there was no suggestion of some specific personal connection or affinity with the Minister concerned).

19    In those circumstances, the primary judge, at [14], was not persuaded that “a fair-minded and appropriately informed lay observer might reasonably apprehend that I might not bring a fair, impartial and independent mind to the determination of this matter on its merits”.

20    The applicant in submissions challenged the merit of the judgment on several grounds. For example, she submitted in respect to [6] and [9] of his Honour’s decision that there:

... is higher risk that a current government can intervene to influence the judiciary creating the potential for bias than it is for a former Government Minister. The former Prime Ministers and two Attorney Generals are no longer serving MPs. This reduces the risk of their ability to improperly intervene to affect decisions by justices, though it is not negligible. The judges available is large if it extends prior to June 2022. The 14 available pre 2017 is a large number who could preside to reduce the risk of bias.

21    However, this does not address the objective test summarised in the primary judge’s conclusion, referred to above at [18]. The applicant’s challenge to [7] of his Honour’s reasons, that his Honour is conflicted having been appointed by certain Ministers, is no more than an assertion as to the correctness of the submission. I note that the applicant also relies on material that occurred after his Honour’s ruling, being the 20 March 2024 order made that she not be permitted to file documents without leave of the Court, to submit that it was “prejudicial and gives cause to an apprehension of bias for the proceedings that will be eventually heard”. The applicant also complains of the content and timing of the delivery of his Honour’s reasons dated 26 April 2024 in support of leave to appeal the disqualification application. She observes also that there is no reason why the primary judge “should not be disqualified” given the early stage of the proceedings.

22    The applicant makes various assertions that the primary judge has “displayed prejudice and made derogatory comments”, citing his Honour’s finding that some of the applicant’s contentions displayed an “irrational thought process”. She claims substantial injustice would arise if the proceedings were to continue before his Honour. That a docket judge has made an adverse finding against an applicant in the conduct of the proceeding before him does not give rise to any apprehension of bias: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352; Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11]; Kazal v Thunder Studios Inc) California [2023] FCAFC 174 at [260].

23    I do not accept the applicant’s characterisation of that decision of the primary judge. The language of the primary judge does no more than explain his Honour’s reasoning process. The language was not gratuitous or without reason. A proper reading of the judgment reflects that it was not intended to cause any offence to the applicant but was necessary to address the issue before him. There is no basis to suggest that the primary judge acted in any way other than in the proper execution of his Honour’s duty. For that reason, I also do not accept that significant injustice would arise because “it would not be possible for the applicant to be given a fair trial by” the primary judge given his Honour’s alleged prejudice.

24    These submissions based on the reasons of 26 April 2024 also fail to recognise this is an application for leave to appeal from the decision made, being the 7 March 2024 orders. This is not a new application. That said, given my conclusion below that also there is no basis established for leave to be granted in relation to the 20 March 2024 orders, and the criticisms of his Honour’s reasoning given in support of it, the premise of these additional submissions is flawed.

25    The applicant has not established that the decision is attended by sufficient doubt to warrant it being reconsidered. Nor has the applicant established, supposing the decision to be wrong, that substantial injustice would result if leave were refused.

Leave to file documents

26    On 20 March 2024 the primary judge 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) (FCR). As explained in his Honour’s reasons, this related to the interlocutory application and accompanying affidavit she sought to file on 18 March 2024, which the primary judge directed not be accepted.

27    The primary judge, at [2], summarised the interlocutory application as follows:

On 18 March 2024, the [applicant] 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.

28    The primary judge, at [4]-[5], succinctly explains why leave was refused:

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.

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).

29    At [8]-[9], the primary judge explains that the affidavit in support of the applicant’s contentions “discloses an irrational thought process that does not reflect reality” and provides some examples. At [10] his Honour observes:

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).

30    The applicant complains that she was not given an opportunity to address the making of the order. Most of the submission is directed to the content of the 26 April 2024 reasons. The applicant contends that the reasons “[are] in [their] entirety without substantiation”. The applicant takes great umbrage at the conclusion that her contentions in support of her application for an injunction disclose an “irrational thought process” as unfair and a personal attack on her that denies the opportunity for her interlocutory application to be heard. The applicant also complains that consideration was not given to a later affidavit that was not accepted for filing. It is unnecessary to recite each of the complaints made. Suffice to say the applicant takes issue with his Honour’s factual conclusions based on the correctness of her assertions.

31    I note also that some of her submissions appear to suggest that the primary judge could have made various orders to obtain the evidence to support her application. There is no proper basis to contend that should have occurred. Nor, contrary to the applicant’s contention, was it necessary to refer in his Honour’s reasons to every factual assertion that the applicant made in the affidavit. Similarly, it was not necessary, given the lack of evidential basis, for the primary judge to refer to the law the applicant now relies on in support of her application for injunction (being the Court’s purported power to make the orders sought). I note that the failure to refer to all the evidence (or submissions) does not, as the applicant contends, amount to them being ignored.

32    Further, the applicant made the following submission as to the timing of the primary judge publishing his reasons in relation to this order:

His Honour’s reasons of 26 April 2024 appear contrived and lack substantiation, with admission at deliberately causing delay to my proceedings at [10]. They appear to have been given intentionally on a date to mark 7 years since I raised my concerns with a United States authority about Trent Reznor, being 23 April 2017. His Honour should not be making provocative and pejorative actions like this, that mock, insult or for amusement.

33    There is no proper basis this submission. Rather, it is another example which supports the primary judge’s characterisation of the applicant’s reasoning.

34    I note, as the second respondent contends, r 2.27 of the FCR does not require for the applicant to be given an opportunity to be heard before the order is made.

35    The applicant generally criticises the submissions of the respondents on the basis that they have primarily referred to and relied on the reasoning of the primary judge, they have not addressed each of her submissions (or allegations in her affidavits) and have not produced evidence to contradict her case. These submissions fail to recognise the nature of the applications being made. These are applications for leave to appeal and not an application for an injunction. The test referred to above at [10] focusses on the reasoning of the primary judge in light of the material before him. There was no requirement or need for each respondent to address each submission made by the applicant or to lead evidence in response. Nor was there a requirement to address the applicant’s submission as to the statutory basis to grant the injunction. Not further detail was necessary. As the primary judge observed, such orders can only be made on cogent evidence. It is the absence of such evidence which is the basis of the primary judge’s conclusion and the orders made.

36    The applicant has not established that there is any reason to doubt the accuracy of the primary judge’s description of the evidence relied on, which founded his Honour’s decision. Indeed, the conclusion that there was no prospect of the Court making the orders sought on the evidence supplied is plainly correct.

37    Considering the material relied on by the applicant and his Honours’ reasons, the applicant has not established that the decision is attended by sufficient doubt to warrant it being reconsidered. In the circumstances the applicant has not established that substantial injustice would result if leave were refused, supposing the decision to be wrong. That is so in relation to the order that leave be required to file documents and the conclusion that the application for an injunction and supporting affidavit be refused for filing.

38    I note that the applicant complains that the primary judge did not consider the affidavit of 25 March 2024, but that affidavit was sought to be filed after the orders were made. The applicant has also sought to provide further material since that date.

39    In any event, if the evidence were relied on, it could not have altered the conclusion. The 25 March 2024 affidavit, which it is said to relate to events after filing the interlocutory application, further confirms the primary judge’s characterisation of the applicant’s reasoning. To provide just three examples from that affidavit, being [6], [7] and [12]:

[6] On the morning of 22 March 2024, a box was placed outside the foyer of my unit block for delivery to Unit 1 with “Athletic greens” written on it. This appeared to be innuendo to the colour green, as is associated with matters related to me, innuendo to the reference I made to the woman from this unit in a hot pink gym top after going for a run in my lodged affidavit and possibly the efficiency in which I prepared and lodged my appeal the day before. I took a photo. Because my phone is being intercepted, the police will have been able to see the photos I took on my phone. …

[7] On 22 March 2024, on the SMH Online, published the headline article “Inside the alleged $3million ‘fake robbery’ of high-end Sydney jewellery store” about an owner reporting a fake robbery. This appeared to be published intentionally by the Sydney Morning Herald in light of their knowledge of the restraining order I had just lodged which I ask that the respondents be restrained from entering my premises a there is a risk of tampering and theft by them. This method of placing articles to make allusion to me through innuendo is a common practice undertaken by the media as part of the controlled operation, which will be part of my proceedings. This also highlights the media are in receipt of content from the surveillance of me and knowledge of what I am lodging with the court, then make comment about it in innuendo in this manner. …

[12] On the evening of 23 March 2024, I was sitting on my balcony and I saw the young woman and man who were the new tenants … arrive. He had parked his car across the road and was getting a fridge out which he put on a trolley and wheeled into the block. He was wearing a rugby jersey that was striped black and red with a DHL logo on the back, which is red and yellow and had white trim. The front had a Ford motor car company logo. The back of his jersey is the colours of black and white and red and yellow that is associated with me …

40    No Court would make the orders sought on the evidence filed in support. In the applicant’s submissions in reply and accompanying interlocutory application she also sought to file additional evidence of events that have occurred since her affidavit of 25 March 2024, which she summarised at [7]-[8] of her submissions. I do not grant leave to do so. That proposed evidence could not assist the applicant as it is of the same nature and character as in the affidavits already filed. It could provide no proper basis for establishing substantial injustice will be occasioned if leave is not granted. Nor could it properly found an injunction.

41    The evidence relied on by the applicant could not establish any proper basis to grant an injunction. I agree with the reasons of the primary judge in refusing to accept the application for filing, and his characterisation of the evidence then relied on. That description is apt for the additional evidence.

42    Although I do not doubt that the applicant genuinely perceives that an injustice is being done to her, as explained by the primary judge (with whom I agree), a genuine belief in persecution is not enough to establish a basis to grant an injunction when the evidence and reasoning relied on as to the belief is not rational or logical.

Conclusion

43    The applicant has not established that any of the decisions are attended by sufficient doubt to warrant them being reconsidered or that substantial injustice would result if leave were refused. Indeed, the proposed appeal has no prospect of success. Leave to appeal is refused.

44    The applicant opposes an order for costs, primarily on the basis that it the would be punitive and impose a financial penalty on her. The premise of the submission is that it is the respondents’ actions that caused her to bring the proceedings. The applicant also submitted that the primary judge was at fault and not her. Having rejected each of the applications, the submissions have no basis. I note also that the applicant submits she is unemployed.

45    Section 43 of the Federal Court Act confers jurisdiction on the Court to award costs. The award involves the exercise of a discretionary judgment: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 at [25]. Costs are compensatory in nature and not awarded by way of punishment: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543. Ordinarily the successful party is entitled to its costs: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67]; Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [25]. Impecuniosity is not a relevant consideration in the exercise of the discretion: Northern Territory of Australia v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [26]-[36]. There is no proper basis to do other than follow the usual course and order the applicant pay the respondents costs.

Associate:

Dated:    28 May 2024