Federal Court of Australia

McGinn v Federal Court of Australia (No 2) [2025] FCA 784

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    This is an application for judicial review under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the AD(JR) Act) to review a decision of Registrar Edwards of the Federal Court made on 11 December 2024 on the grounds of breach of natural justice, improper exercise of the relevant power, and no evidence to justify making the decision.

2    An interlocutory application was filed in this matter seeking a stay of the proceeding until a decision was made in matter NSD519/2025. I gave reasons in matter NSD519/2025 this morning, and I have now proceeded to hear NSD1825/2024.

3    The decision of Registrar Edwards was to refuse to accept for filing an application for judicial review dated 7 December 2024 and a supporting letter in relation to confidentiality. The Registrar referred to r 2.26 of the Federal Court Rules 2011 (Cth), which provides that the 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. The Registrar refused to accept the documents for filing because they did not, on their face, disclose a claim that invokes the jurisdiction of the Federal Court. As the Registrar explained, the proposed application was for judicial review, under s 5 of the AD(JR) Act, of a decision made by a Registrar of the Supreme Court of New South Wales under s 18 of the Civil Procedure Act 2005 (NSW) (CPA) to refuse to postpone a filing fee, and a decision made by a Registrar of the Supreme Court of New South Wales under the CPA is not a decision to which the AD(JR) Act applies. Accordingly, the Registrar said that in the absence of jurisdiction, the documents constituted an abuse of the Court’s process.

4    That reasoning was entirely correct. A decision made under the CPA does not fall within the definition in s 3 of the AD(JR) Act of a “decision to which this Act applies”, which in turn is picked up in ss 5 and 6 of the AD(JR) Act.

5    Ms McGinn has also filed an application for summary judgment pursuant to r 26.01(1)(e) on the ground that the respondent has no prospect of successfully defending the proceeding. That application was supported by an affidavit of Ms McGinn dated 6 February 2025 which referred to the respondent filing a submitting notice under rule 12.01 on 15 January 2025 as a party which does not want to contest the relief sought in the originating application. Ms McGinn’s application for summary judgment appears to proceed on the view that litigation is akin to a sporting match in which one side forfeits the game if they do not turn up to contest it. On the contrary, the absence of an active respondent in litigation does not determine the outcome. The applicant must still persuade the Court that he or she is entitled to the relief sought. In the present case, there is not only a defence, but Ms McGinn’s substantive application lacks any merit. Summary judgment is a discretionary matter, which is simply not available in those circumstances.

6    Accordingly, the originating application in NSD1825/2024 is dismissed.

Associate:

Dated:    11 July 2025