FEDERAL COURT OF AUSTRALIA

AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004

ORDERS

THE COURT ORDERS THAT:

1.    The Registry be directed not to accept the interlocutory application dated 27 August 2024 for filing pursuant to r 2.27(e) of the Federal Court Rules 2011 (Cth).

2.    The application for judicial review filed on 18 July 2024 is dismissed.

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

REASONS FOR JUDGMENT

NEEDHAM J:

1    This proceeding concerns an application for Judicial Review (ADJR application) filed on 18 July 2024. The decision of which the applicant is seeking review is a decision by the second respondent, a Registrar of this Court, not to accept for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (FCR) an Interlocutory Application and supporting affidavit affirmed on 4 July 2024 (together, the Documents). The applicant presented the Documents to the New South Wales Registry of the Federal Court of Australia on 5 July 2024.

2    The ADJR Application sets the scene as follows:

The Applicant applies to the Court under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) … to review the decision of the Second Respondent (T Stewart) as made on 9 July 2024 to refuse to accept documents for filing pursuant to r. 2.26 of the Federal Court Rules 2011 (FCR) for the interlocutory application dated 4 July 2024 to re-open the leave to appeal and subsequent amended application of 9 July 2024.

Further, the review is to take consideration of the decisions of the NSW registry on 3 and 28 June 2024, and the decision of the registrar, MC Buckingham as made on 18 June 2024 for failure to provide proper procedural directions upon refusal to file an application for judicial review that was of the same nature and substance of the 4 July 2024 interlocutory application the applicant sought to file.

3    The named respondents to the ADJR Application were the Registrar, Registry of New South Wales, Federal Court of Australia as first respondent, and Thomas Stewart, National Registrar, Federal Court of Australia (the Registrar), as second respondent. The Registrar filed a Submitting Notice on 23 July 2024.

The application

4    On 9 July 2024, the Registrar informed the applicant by letter that he refused to accept the Documents for filing in exercise of r 2.26 of the FCR as he was satisfied that the Documents were an abuse of process and frivolous or vexatious.

5    On 31 July 2024, on the basis that the Registrar, as the decision-maker, was the proper respondent to the ADJR application, I made an order to dispense with service on the first respondent, namely:

(1)    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (FCR), the requirement in r 8.06 of the FCR that the applicant serve a copy of the originating application and any accompanying document on the first respondent be dispensed with.

6    The applicant relied on the following further material in support of the ADJR application:

(1)    An affidavit dated 17 July 2024 (including annexures and exhibits), and

(2)    An affidavit dated 16 August 2024 (including annexures and exhibits).

7    In addition, the applicant filed written submissions in support of the ADJR application. The Documents were part of the material provided by the applicant.

Interlocutory Orders sought in the ADJR application

8    The ADJR application included Interlocutory Orders, some of which are dealt with in my judgment in AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia & anor [2024] FCA 976 (AZO24 No 1) which was delivered on 27 August 2024. In that decision, I ordered, for the reasons given therein, that Interlocutory Orders 2–5 be redacted by the Registrar pursuant to r 2.29 of the FCR (the redaction order), and that applications for joinder of the Commonwealth of Australia and the State of New South Wales to these proceedings not be accepted for filing by the Registrar pursuant to r 2.27(e) of the FCR.

9    By email to the Registry late in the afternoon of 27 August 2024, the applicant sought to file an interlocutory application to set aside the redaction order pursuant to r 39.04 of the FCR and s 37P(3)(g) of the Federal Court of Australia Act 1976 (Cth) (the FC Act), and that the orders directing the Registrar not to accept the joinder application for filing be set aside pursuant to those same provisions (the application to set aside). The application to set aside had not, by the time of the hearing on 28 August 2024, been accepted for filing. At the hearing, the applicant confirmed that she was restricting her application for varying or setting aside the redaction order in relation to orders 4 and 5 only.

Procedural History

10    There is a complicated history of filings by the applicant. I set out that history, briefly, below.

11    The original process filed by the applicant in the primary proceedings NSD 1036/2023 sought relief under s 107A of the Telecommunications (Interception and Access) Act 1979 (Cth) and various other Acts relating to the applicant’s privacy and security in her own home, alleging unlawful actions and conspiracies focused upon her by, amongst others, the NSW Commissioner of Police and the Prime Minister.

12    The primary proceedings came before Kennett J. His Honour gave judgment in an interlocutory matter on 7 March 2024, being AZO24 v Commonwealth of Australia [2024] FCA 218 (in which his Honour refused an application to disqualify himself on the basis of apprehended bias) and AZO24 v Commonwealth of Australia (No 2) [2024] FCA 426 (on 20 March 2024, in which his Honour refused leave to file an interlocutory application and accompanying affidavit). On 20 March 2024, Kennett J ordered that no document be accepted for filing in the primary proceedings without the leave of a Judge. On 21 March 2024, the applicant lodged an application for leave to appeal each of those orders.

13    On 28 May 2024, the application for leave to appeal was heard on the papers, and dismissed by Abraham J in AZO24 v Commonwealth of Australia [2024] FCA 555 (the leave to appeal judgment).

14    The applicant sought on or around 31 May 2024 and 14 June 2024 to file an application for judicial review of the leave to appeal judgment, but that originating application was refused by a Registrar on 18 June 2024 pursuant to r 2.26 and r 2.27(b) of the FCR. On 5 July 2024, the Applicant lodged the Documents with the Registry of New South Wales.

15    That part of the Documents which comprises an Interlocutory Application seeks extensive interlocutory orders, the entirety of which will not be reproduced here. In summary, proposed orders 1–3 and 5–8 seek to re-open the leave to appeal application which was determined by Abraham J in the leave to appeal judgment. Proposed orders 9–15 relate to the primary proceedings and seek, amongst other things, to stay the primary proceedings pending determination of the appeal and to set aside the interlocutory orders made by Kennett J in the primary proceedings on 21 June 2024 (including orders refusing leave to file an interlocutory application seeking a stay of the primary proceedings and timetabling orders in relation to interlocutory applications seeking summary judgment/dismissal of the proceedings). Order 4 seeks to quash the Registrar’s decision of 18 June 2024 to refuse filing of documents and order 16 seeks that the Interlocutory Application be expedited.

16    As noted above, on 9 July 2024 the Registrar refused to accept the Documents for filing. The decision included the following reasons:

The prayers in respect of NSD325/2024 seek, when considered as a whole, to ‘re-open’ the application for leave to appeal from the orders of Justice Kennett. That application has been finally determined by Abraham J in the above decision. I can discern no basis for the relief sought and for this reason it would be doomed to fail. Accordingly, I am satisfied that this portion of the Application is an abuse of process.

The remainder of the relief sought in the Application in relation to proceeding NSD1036/2023 is either consequent upon an appeal having been instituted or granted (in circumstances where neither has occurred) or seeks relief pursuant to s 39B of the Judiciary Act 1903 (Cth) against the respondents and Justice Kennett. In substance, what this relief seeks is to overturn the orders of Justice Kennett made in proceeding NSD1036/2023 which was the very subject of the application for leave in NSD325/2024. The judicial decisions of Justice Kennett in the first instance proceeding are not susceptible to judicial review pursuant to the Judiciary Act 1903 (Cth), and it would be an abuse of process and frivolous or vexatious for relief to be sought in this manner when the application for leave to appeal has already been refused.

17    The ADJR application sets out a list of the grounds on which the applicant contends that the Registrar’s decision should be set aside. In summary, the applicant contends that the decision failed to observe the procedures required by law in the making of the decision and involved an error of law pursuant to ss 5(1)(b), (c) and (f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) for the following reasons:

(1)    the documents should have been accepted for filing as the errors identified in the leave to appeal judgment should be able to be remedied by the Court pursuant to ss 22, 23, 28 and 51 of the FC Act and r 39.04 or r 39.05 of the FCR;

(2)    the leave to appeal judgment can be set aside within 14 days after it has been entered pursuant to r 39.32(3) of the FCR and the Applicant had drawn the Court’s attention to errors in the leave to appeal judgment within this timeframe by email on 31 May 2024, or alternatively, the Applicant could have applied for an extension under r 1.39 of the FCR;

(3)    the Registrar failed to provide proper procedural directions as requested by the Applicant in order to re-open leave to appeal, which led to a delay in lodging the Interlocutory Application on 4 July 2024, being a power under rr 1.21 35.22, or 36.11 of the FCR;

(4)    the Registrar failed to consider the substance of the interlocutory application and the errors in the leave to appeal judgment as identified by the Applicant;

(5)    the Registrar’s decision was an improper use of the power conferred by r 2.26 of the FCR and the Registrar used his discretion under r 2.26 frivolously and vexatiously and abused his own process as he did not send the ADJR application to a Judge in breach of s 35A(7)(b) of the FC Act; and

(6)    there was a lack of procedural fairness and there is additional evidence subsequent to the leave to appeal judgment (referred to in oral submissions as “fresh evidence”) which supports the renewed application for leave to appeal.

18    The applicant’s affidavit of 17 July 2024 sets out in further detail the grounds of her application and the background to the proceedings. In her affidavit, she states:

Registrar Stewart has not considered the substance of my application, the errors identified that are errors of the Court and the relevant provisions in the Federal Court Rules of r. 39.04 and 39.05 enabling the application to be filed and the specific case law references cited, in particular to that of Kitoko and Pettigrew and Autodesk.

19    In the applicant’s written and oral submissions, the applicant again contended that the Documents were improperly refused as the Registrar did not properly consider the substance of the Interlocutory Application, and the Documents should be accepted for filing as there are omissions and errors in the leave to appeal judgment. She outlined “fresh evidence” which she alleged had arisen in relation to the leave to appeal. The applicant argued that the order for costs made in the leave to appeal judgment was “procedurally unfair and punitive”.

20    The affidavit dated 16 August 2024 annexes the “fresh evidence” that the applicant proposes to lodge should she be successful in overturning the Registrar’s decision. This includes evidence that the applicant had “sought to lodge prior to the leave to appeal judgment of 28 May 2024”, “fresh evidence in support of re-opening the leave to appeal”, and “fresh evidence of bias and procedural unfairness by the primary judge in proceedings NSD1036/2023”.

Basis of the power for judicial review

21    This Court has jurisdiction to review the Registrar’s decision under the ADJR Act, and in exercise of its original jurisdiction conferred by s 39B(1) of the Judiciary Act 1903 (Cth).

22    Amongst other things, the ADJR Act applies to a decision of an administrative character, proposed to be made, or required to be made (whether in the exercise of a discretion or not), under an Act of the Commonwealth.

23    In Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [41], (per Barker, Banks-Smith and Colvin JJ) the Court noted that a Registrar’s decision in refusing to accept documents for filing was a decision of an administrative character and may be susceptible to judicial review under the ADJR Act.

24    Section 5(1) of the ADJR Act provides that in order for a person to have standing to seek a review of a decision pursuant to that section, the person must be “aggrieved” by the decision to which the ADJR Act applies

25    Relief under the ADJR Act is discretionary: s 16 of the ADJR Act.

Rule 2.26 of the FCR

26    Rule 2.26 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.

27    The nature of the power bestowed on a Registrar pursuant to O 46, r 7A of the original Federal Court Rules (the predecessor of r 2.26) was discussed by the Full Court in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353; [2003] FCAFC 42 at [15]. The Full Court said:

The rule in its current form removed a clog on the Registrar’s discretion to act by permitting the Registrar to refuse to accept or issue a document without the Registrar being required to obtain authority from a Judge so to act. The first point to note in the construction of the rule is that O 46 is directed to administration of registries of the Court. The purpose of r 7A is to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court. Even without a rule in the terms of r 7A 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.

28    This reasoning was applied more recently in Nyoni at [33], [38] in which the Full Court said:

The purpose of a rule such as r 2.26 is to assist the Registrar to maintain efficient operation of a registry … It is in the interests of the administration of justice that there be procedural requirements to be met in order for an application to be brought before a judge of the Court and for other parties to be required to attend …

…

[A] Registrar acting under r 2.26 does not have power to adjudicate under the substantive law whether an application that a party seeks to bring is an abuse of process (or is frivolous or vexatious). The Registrar has no judicial power to determine substantively whether a claim must be dismissed because it is an abuse of process (or is frivolous or vexatious). Rather, r 2.26 is the means by which an administrative requirement is expressed that all documents filed in the Registry must not in their form and content (irrespective of any substantive assessment of their merit) be an abuse of the process of the Court or frivolous or vexatious …

(Citations omitted and emphasis added)

29    The meaning of “vexatious” and “frivolous” was considered by White J in Ferdinands v Registrar Cridland [2021] FCA 592:

27    …  However, the term ‘vexatious proceeding’ is defined in s 37AM(1) of the Federal Court of Australia [Act] 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section provides:

vexatious proceeding includes:

(a)    a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

28    As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause.

29    In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J discussed the meaning of the terms ‘vexatious’ and ‘frivolous’ appearing in r 26.01(1) of the FCR. His Honour said:

[35]    The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’ …

[36]    A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’ …

  [37]    In relation to the term ‘frivolous’:

(a)    a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’ …;

(b)    a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable …; and

(c)    ‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time …

[38] In relation to the term ‘vexatious’:

(a)     a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging …;

(b)     proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy …;

(c)    a proceeding is to be regarded as ‘vexatious’ where:

(i)    it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or

(ii)    it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or

(iii)    irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless …; and

(d)    ‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious …

(Citations omitted)

30    As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful.  …

30    This passage was cited with approval by the Full Court on appeal in Ferdinands v Registrar Cridland [2022] FCAFC 80 at [8].

Questions for determination at the hearing

31    At the hearing on 28 August 2024, the applicant appeared in person. An agreed format for her submissions was as follows:-

(1)    First, whether I should direct that the Registry accept the application to set aside for filing; and, if so, whether I should:-

(a)    make orders setting aside the orders for redaction; and

(b)    make orders setting aside the application for joinder of the respondents in the primary proceeding;

(2)    Second, whether I should make orders 1–6 in the ADJR application (order 1 being that the decision of the Registrar on 9 July 2024 be quashed, and orders 2–6 being consequential orders if that order is made).

32    The applicant was amenable to this order of hearing, and generally kept to the subjects at hand, although her overriding submission was that each of the matters was interwoven with the others, “like a snowball that accumulates”.

The application to set aside

33    The application to set aside sought the following orders:

1.    An order pursuant to r. 39.04 of the Federal Court Rules 2011 (FCR) and s37P(3)(g) of the Federal Court of Australia Act (FCOAA), that the orders made on 27 August 2024 to redact interlocutory orders 2 to 5 of the originating application, affecting numbers 4 and 5, be set aside such that the interlocutory orders sought in the originating application numbered 4 and 5 be heard by the applicant at the hearing on 28 August 2024 pursuant to s15 of the Administrative Decision (Judicial Review) Act 1977.

2.    An order pursuant to r. 39.04 of the FCR and s37P(3)(g) of the FCOAA, that the orders made on 27 August 2024 to refuse to accept for filing the interlocutory application dated 21 August 2024 for joining parties to the proceeding be set aside such that the interlocutory application dated 21 August 2024 is heard by the applicant at the hearing on 28 August 2024 pursuant to r 9.05 of the FCR.

3.    Matter to be re-heard in prayers contained herein also pursuant to Wentworth v. Woollahra Municipal Council ((3) (1982) 149 CLR, at p 684 and Nathanson v Minister for Home Affairs [2022] HCA 26.

34    Rule 39.04 of the FCR provides, simply:

39.04 Varying or setting aside a judgment or order before it has been entered

The Court may vary or set aside a judgment or order before it has been entered.

35    An application for variation or setting aside of an order is not an appeal from an order; it is a power in the Court to revise or recall its own orders. As noted in Louis Vuitton Malletier SA v Knierum [2004] FCA 1584 at [8]:

It is well settled that a court has the power to recall an order before it is entered:  see O 35 r 7(1) of the Federal Court Rules.  The court also has an inherent jurisdiction to recall an order.  It is true that the power to vacate an order must be exercised with great caution and that the circumstances which would justify a rehearing must be “quite exceptional”:  State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29, 38.  Usually the power to recall an order is only exercised to deal with technical or incidental changes to the form or contents of an order.  But as Mason CJ said in Autodesk Inc v Dyson No 2 (1993) 176 CLR 300, 303 if the court has “proceeded according to some misapprehension of the facts of the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing” then the jurisdiction can be exercised.

36    Section 37P of the FC Act provides, relevantly:

37P Power of the Court to give directions about practice and procedure in a civil proceeding

(1)    This section applies in relation to a civil proceeding before the Court.

(2)    The Court or a Judge may give directions about the practice and procedure to be followed in relation to the proceeding, or any part of the proceeding.

(3)    Without limiting the generality of subsection (2), a direction may:

…

(g)    revoke or vary an earlier direction.

The applicant’s submissions

37    The applicant’s arguments revolved around the power granted to the Court in r 39.04 (and, in relation to interlocutory applications, r 39.05(c)) to vary or set aside a judgment or order. In relation to the orders in AZO24 No 1, clearly those orders were interlocutory, and had not yet been entered. It was not argued by the applicant that I did not have the power to make the orders that I did to redact the Interlocutory Orders and to direct the Registrar not to accept the joinder applications for filing.

38    Orders 4 and 5 of the Interlocutory Orders were, prior to redaction, as follows:-

4.     An order to stay the whole of the primary proceedings NSD1036/2023, except for the return of subpoenas issued, until the outcome of the review as it affects a decision relating to the disqualification of the presiding Judge, therefore the execution of the primary proceeding are affected under the Decision. Pursuant to s15(1)(b) of the Administrative Decision (Judicial Review) Act 1977 and/or r. 36.08(2) of the FCR.

5.     An order that the order for costs made in the 28 May 2024 order number 4 by J Abraham in the judgement of the leave to appeal NSD325/2024 be suspended or stayed pending the outcome of this review in accordance with s15(1)(b) of the ADJR Act.

39    Order 4 relates to the primary judgment, and order 5 to the leave to appeal judgment. I refer to my decision in AZO24 No 1 for the reasons as to why the redaction order was made.

40    The applicant’s position in relation to variation or setting aside of the relevant orders made in AZO24 No 1 can be summarised as being that because there was a power in the FC Act or the FCR to seek to vary or set aside the orders, it could not be an abuse of process for the applicant to seek to do so. It was suggested that the Court should look behind the orders made by Kennett J and Abraham J respectively, to look for the bias and lack of procedural fairness alleged by the applicant, and that that was sufficient to ground the “quite exceptional” circumstances required for a variation or setting aside of the orders.

41    In relation to order 4, it was submitted that the applicant was seeking to re-open the decision on the leave to appeal application which was dismissed by Abraham J, to ensure that Kennett J not hear cases brought by her, and that it was inappropriate for his Honour to hear her matter on 3 September (the week following this hearing). It was submitted that I should take into account the fact that Kennett J had the primary proceedings listed before him notwithstanding the ADJR application filed by the applicant, a position which she submitted was “unreasonable”. It was submitted that these matters brought the application to set aside the order to redact order 4 of the Interlocutory Orders within the “quite exceptional” circumstances required for an order under r 39.04.

42    In her oral submissions, the applicant said that because Kennett J took the view that there was no “active” leave to appeal application, he was continuing to make orders (despite his apparent earlier position that he would not make orders while a leave to appeal application from his refusal to disqualify himself was on foot). This was the “fresh evidence” that the applicant relied on to ground the setting aside of the redaction order. This submission was difficult to follow, but seemingly refers to the dates of orders being made, and the date of orders being stamped.

43    The applicant further submitted that because she was able to institute a fresh leave to appeal application, she should be allowed to do so, on the basis that s 22 and s 37M of the FC Act seek to avoid a multiplicity of proceedings. On that basis, it is submitted, I should not have redacted order 4 of the Interlocutory Orders as an abuse of process.

44    In relation to order 5 of the Interlocutory Orders – a stay of the costs order made by Abraham J – it was further submitted that I should not have redacted those orders on a similar basis to that raised in relation to order 4, but with the addition that the applicant contended that she had already sought a stay, but that “it hasn’t been actioned” and “that would start to fall into the category of a failure to make a decision”.

45    In discussion with the applicant, it was clarified that:-

(1)    she had filed an application for a stay of those orders, but did not know what had happened to that application;

(2)    that application appears from the Court record to have been accepted for filing on 9 July 2024; and

(3)    accordingly this application was the second application before the Court for stay of the costs order made by Abraham J.

46    The applicant submitted that because there was a lack of procedural fairness and bias in the way in which she said Abraham J’s decision was handed down, she preferred to make a new application for a stay of the costs order rather than wait to have it determined by Abraham J.

47    The applicant further submitted that I had made a relevant error in redacting order 5, because I had the technical power to hear an application for a stay from Abraham J’s costs order. That is, with respect, a misreading of the decision in AZO24 No 1. Again, the applicant submitted that because I had the power to make a particular decision, it could not be an abuse of process for her to seek that I do. That fundamentally misunderstands the difference between a power to make an order, and the factual, legal, and discretionary underpinnings which would lead the Court to make that order.

48    Notwithstanding her two applications for a stay of the costs order, the applicant conceded that she had not been asked to pay any costs as yet.

Whether leave to file the application to set aside the orders in AZO No 1 should be given

49    Having considered the evidence and listened to the applicant’s submissions, and giving her the chance to add, orally, to the written submissions already made, I am of the view that the orders sought in the application to set aside should not be made. I came to this view because:-

(1)    There was no relevant misapprehension of the facts or the law which led to the orders redacting the Interlocutory Orders;

(2)    The “fresh evidence” did not lessen the view I had of the abuse of process in relation to the Interlocutory Orders; and

(3)    In fact, there was an additional reason to redact order 5, in that there was already an application for stay of the costs order made by Abraham J filed in the Court (albeit not currently having been listed).

50    Accordingly, I would not, if it were filed, make the orders sought in the application to set aside. The application to set aside is, on its face, frivolous and vexatious, and an abuse of process, because it seeks to re-open an order made by the Court without any exceptional circumstances being shown. The orders sought to be varied or set aside are themselves frivolous or vexatious, and an abuse of process. I direct, pursuant to r 2.27(e), that the application to set aside not be accepted for filing in the Registry.

51    That determination results in the application for joinder remaining as not to be accepted for filing as per my order in AZO24 No 1. It would be futile, as well as costly, to have the Commonwealth of Australia and the State of New South Wales joined to the ADJR application in order to argue a contrary position to an argument, not aligned with the ADJR application, that does not engage with the underlying requirements of r 39.04.

Orders 1–6 in the ADJR application

52    The ADJR application seeks that the Registrar’s decision to not allow the Interlocutory Application and supporting affidavit lodged on 5 July 2024 to be filed be quashed.

53    In orders 1–6 of the ADJR Application, the applicant seeks the following relief:

1.    An order that the decision of the Registrar of 9 July 2024 be quashed.

2.    An order that the proposed interlocutory application and associated documents which the Registrar refused to accept be deemed to have been lodged for filing on the date and at the time that the applicant sought to lodge those documents for filing, being 4 July 2024.

3.    An order to grant the filing of the amended interlocutory application dated 9 July 2024.

4.    An order that the applicant be granted an extension of time in which to lodge the interlocutory application to re-open the leave to appeal, pursuant to r. 1.39 and/or r. 35.14 or 36.11(2)(a), in the event of r. 39.04 of the FCR being utilised.

5.    An order that the interlocutory application be listed for an expedited case management hearing and determined before a Justice other than J Abraham in order prevent prejudice to the applicant for the proper administration of justice.

6.    An order that no costs order is to be made in this judicial review proceeding such that each party pays its own costs. In the alternative, the costs of the judicial review be reserved (or deferred) such that it is combined to be assessed in the whole of the primary proceedings upon its conclusion to prevent prejudice to the proper administration of justice.

54    The applicant agreed that orders 2–5 were consequential upon order 1 being made.

55    The applicant, in order to seek relief under the ADJR Act, must be a “person aggrieved”. As she is the applicant whose documents were not accepted for filing, I accept that she is a person who is aggrieved by the decision of the Registrar. As noted above, a decision not to accept documents for filing is a decision amenable to review under the ADJR Act (see Nyoni, cited in paragraph [23] above).

Consideration of the applicant’s submissions

56    The submissions of the applicant on why the Registrar’s decision of 9 July 2024 should be quashed are set out briefly below, along with a consideration of each argument.

57    The applicant submitted that the Documents should have been accepted for filing as the errors identified in the leave to appeal judgment should be able to be remedied by the Court pursuant to ss 22, 23, 28 and 51 of the FC Act and r 39.04 or r 39.05 of the FCR. These sections relate to final determination of matters before the Court (s 22), the power of the Court to make such orders as it thinks appropriate (s 23) and the principle that formal defects should not invalidate proceedings (s 51). Section 28 deals with the form of judgment on appeal and does not appear relevant, and was not the subject of separate submissions.

58    The applicant made extensive submissions on the timeframes in which leave to appeal applications can be made, and set out her reasons for not doing so in time. She submitted that she should not be subject to the time limit of 14 days to seek to set aside the orders by reason of r 39.32(3) of the FCR, as the applicant had drawn the Court’s attention to the errors of the leave to appeal judgment within this timeframe by email on 31 May 2024, or alternatively, the Applicant could have applied for an extension under r 1.39 of the FCR. The applicant relied on Kitoko v Registrar of the Federal Court of Australia [2024] FCAFC 14 where the Full Court (Thawley, Cheeseman and Shariff JJ) said at [40]:

… Under subrule 39.32(3), where an order is authenticated under subrule 39.35(1), it is taken to be entered 14 days after that authentication unless the Court directs otherwise. The 14-day period commences on the day after the order is authenticated: r 1.61.

59    The applicant relied on the decision in Kitoko to submit that that case determined that an application under r 39.04 provided “a right to … address matters in [her] leave to appeal”. She submitted that the Registrar could not have properly characterised the Documents as being an abuse of process because they sought relief under r 39.04, and it could not be an abuse of process when “there is a rule that says you can do that”.

60    In argument, it was raised with the applicant that the Registrar did not rely on the time in which she sought to file the Documents as a reason to reject them. The Full Court’s decision in Kitoko does not provide the applicant with a ground for judicial review. Additionally, in Kitoko the issue was that the Court incorrectly assumed that the orders in the appellate jurisdiction had been entered. That is a very different case from the present, where the Registrar reviewed the orders sought and found that on their face, they were an abuse of process, and so refused permission for them to be filed.

61    In support of this contention, the applicant also referred to Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 and R v Pettigrew [1997] 1 Qd R 601; [1996] QCA 235; to establish that a matter which has been otherwise determined can be re-opened.

62    Again, this argument is misplaced; there is a clear power in r 39.04 (and r 39.05 after an order has been entered) to vary or set aside a judgment or order; the existence of a power to do something does not exclude the possibility that a reliance on that power is still an abuse of process. Autodesk (at 301-302 per Mason CJ; 308 per Brennan J; 316-317 per Dawson J) dealt with a grant of a rehearing where the applicant has not been heard. It was not a case which deals with an administrative refusal to allow documents to be filed, but rather with the grant of a rehearing after a substantive breach of the right to be heard. Pettigrew is likewise not apposite, given that it deals with sentence appeals.

63    In the context of this argument about the timing of the provision of the Documents, the applicant submitted that the Registrar had failed to provide proper procedural directions as requested by the Applicant in order to re-open leave to appeal, which led to a delay in lodging the application on 4 July 2024. In relation to this ground, it was not clear whether the applicant was relying on ADJR s 5(1)(b) (procedures required by law to be observed), as she also referred to the power of the Court to issue directions (including r 38.03 of the FCR and s 37P of the FC Act). These sections do not require a Registrar to provide guidance to applicants seeking to engage the processes of the Court; the Registrar is not required to provide legal advice (see Thompson v Hird [2023] FCA 1530 at [24] per Downes J). In any event, as noted above, the time when the applicant sought to file her documents was not a matter which was relied on by the Registrar in refusing to accept them.

64    A further ground raised by the Applicant was that the Registrar failed to consider the substance of the application and the errors of the leave to appeal judgment identified by the Applicant. This ground calls into assistance subs 5(1)(c) and (f) of the ADJR Act. Again, it is misconceived; the Registrar did not, and cannot, per Nyoni, make a substantive judgment about the underlying merit of the claims in proposed proceedings when refusing to accept an originating application for filing under FCR 2.26.

65    The Registrar made it clear in his letter that the refusal to accept the Documents for filing was on the basis that the Documents were an abuse of process of the Court, in that they sought to re-open the orders made by Kennett J and Abraham J without a proper basis being shown. As the Registrar correctly determined, the Applicant has not established a basis on which to re-open the leave to appeal judgment of Abraham J in circumstances where the application for leave to appeal Kennett J’s decision has already been refused.

66    It was submitted that the Registrar’s decision was an improper use of the power conferred by r 2.26 of the FCR and that he used his discretion under r 2.26 frivolously and vexatiously and abused his own process as the Registrar did not send the application to a Judge in breach of s 35A(7)(b) of the FCA. Section 35A states (relevantly):

(1)     Subject to subsection (2), the following powers of the Court may, if the Court or a Judge so directs, be exercised by a Registrar:

  (a)     the power to dispense with the service of any process of the Court;

  (b)     the power to make orders in relation to substituted service;

(c)    the power to make orders in relation to discovery, inspection and production of documents in the possession, power or custody of a party to proceedings in the Court or of any other person;

  (d)     the power to make orders in relation to interrogatories;

(e)    the power, in proceedings in the Court, to make an order adjourning the hearing of the proceedings;

(ea)     the power to make orders under section 32AE (about transferring certain criminal proceedings to other courts);

  (f)     the power to make an order as to costs;

(g)     the power to make an order exempting a party to proceedings in the Court from compliance with a provision of the Rules of Court;

  (h)     a power of the Court prescribed by Rules of Court.

(2)     A Registrar shall not exercise the powers referred to in paragraph (1)(f) except in relation to costs of or in connection with an application heard by a Registrar.

…

(7)    Where an application for the exercise of a power referred to in subsection (1) is being heard by a Registrar and:

 (a)     the Registrar considers that it is not appropriate for the application to be determined by a Registrar acting under this section; or

 (b)     an application is made to the Registrar to arrange for the first-mentioned application to be determined by the Court;

he or she shall not hear, or continue to hear, the application and shall make appropriate arrangements for the application to be heard by the Court.

67    The power under r 2.26 is not one of the powers referred to in s 35A(1) of the FC Act.

68    As the Registrar stated in his letter dated 9 July 2024, “the power to make a decision under r 2.26 of the Rules is an administrative power and not a judicial power that has been delegated to a Registrar pursuant to s 35A(1) of the [FC] Act. Accordingly, section 35A(7) has no operation in respect of [his] exercise of the power under r 2.26.” The Registrar’s position is correct.

69    The applicant contended that there was a lack of procedural fairness in the Registrar’s decision. This submission is based, again, on the Registrar not considering the underlying aspects of the Documents including “fresh evidence” and the Registrar “not really considering what the substance of the application was” and “what’s at stake to me”. The applicant contended that this was a ground under s 5(2)(f) of the ADJR Act, being an improper exercise of a power which was “an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case”. When asked what the rule or policy was being referred to, the applicant said it was the Registrar “overstep[ing] the mark” and using r 2.26 in “an improper” way.

70    There is no basis to this submission, because, again, the Registrar was not required to consider substantive issues of the Documents as per Nyoni.

71    The applicant made a wider submission that the Documents should be accepted for filing because she considered that it was her best chance of getting the orders she sought. She submitted that the High Court did not accept many special leave applications, particularly interlocutory applications, a position which is undoubtedly correct. However, that barrier to success in the High Court does not mean that a litigant may, instead, seek to revisit dismissed applications in this Court because, as the applicant agreed, she felt she had “a better chance” here. This is not a ground for setting aside the order of the Registrar.

Whether orders 1-6 should be made

72    The Registrar’s decision to refuse to accept the Documents because the Documents are an abuse of process and is frivolous or vexatious is correct. The grounds raised by the applicant are, as set out above, misconceived or otherwise irrelevant. It follows that the ADJR application must be dismissed.

73    As the applicant was not represented, and the Registrar filed a submitting notice, there is no need to make any order dealing with the costs of this application.

Associate:

Dated:    2 September 2024