Federal Court of Australia

McGinn v Federal Court of Australia [2025] FCA 787

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) (AD(JR) Act) to review a decision of Registrar Birchall of the Federal Court made on 20 December 2024 on grounds of breach of natural justice, improper exercise of the relevant power, no evidence to justify the making of the decision, and that the decision involves an offence and is thus otherwise contrary to law.

2    An interlocutory application was filed in this matter seeking a stay of the proceeding until a decision was made in matter NSD520/2025. I gave reasons in matter NSD520/2025 this morning, and I have now proceeded to hear NSD1867/2024.

3    The decision of Registrar Birchall was to refuse for filing an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) dated 15 December 2024 and an originating application for judicial review under the AD(JR) Act dated 14 December 2024. Each application sought an order or declaration for reasons to be given under s 13 of the AD(JR) Act in relation to a decision of Registrar Griffin under r 6.07.1 of the High Court Rules 2004 (Cth) to seek the direction of a Justice of that Court.

4    Registrar Birchall said that relief under s 13 of the AD(JR) Act is only available to a person entitled to make an application under s 5 if that person is aggrieved by a “decision” to which the AD(JR) Act applies, and that such a decision must be a final or operative decision, not just an internal administrative stepping stone on the way to a final and operative decision.

5    The Registrar then referred to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules), which provides that a Registrar may refuse to accept the document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of process of the Court, or is frivolous or vexatious. The Registrar found that the decision of Registrar Griffin was not a final or operative decision and, in any event, no justiciable controversy arose from it, and thus he was satisfied that the document sought to be filed by Ms McGinn disclosed no properly stated cause of action and embodied applications that were fanciful and with no real prospect of success. As such, the Registrar regarded the proposed originating applications as frivolous and vexatious, and to accept them for filing would be an abuse of the process of the Court.

6    The Registrar was correct to say that Registrar Griffin’s decision was not a decision to which the AD(JR) Act applies. It is well established that a reviewable decision under the AD(JR) Act entails a decision which is final or operative and determinative, at least in a practical sense, of the issue falling for consideration; and a conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 337 (Mason CJ, with whom Brennan and Deane JJ agreed). The Registrar correctly applied that principle to the decision of Registrar Griffin, which was not final, operative or determinative of the issue falling for consideration but was merely a minor procedural step along the way to an ultimate decision. In addition, Registrar Griffin’s decision was in connection with the institution or conduct of proceedings in a civil court, and for the reasons given earlier today in relation to the Chief Justice’s decision in proceedings NSD520/2025, it was not a decision to which s 13 applies.

7    Ms McGinn has also filed an application for summary judgment pursuant to r 26.01(e) of the Rules 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 r 12.01 on 4 February 2025 as a party which does not wish 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 remedy which is not available in those circumstances.

8    Accordingly, the originating application in NSD1867/2024 is dismissed.

Associate:

Dated:    11 July 2025