Federal Court of Australia

McGinn v Federal Court of Australia (No 2) [2025] FCA 789

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    In matter NSD463/2025, Ms McGinn applies for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) of a decision by Registrar Stewart made on 6 March 2025 on the grounds of breach of natural justice, improper exercise of the relevant power, no evidence to justify the making of the decision, and the decision involves an offence and thus is otherwise contrary to law.

2    The decision of the Registrar on 6 March 2025 was to refuse to accept for filing an originating application by Ms McGinn pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules), which provides that 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. The application in question sought to compel Beech-Jones J of the High Court of Australia to provide reasons to Ms McGinn pursuant to section 13 of the AD(JR) Act in respect of a direction given by his Honour pursuant to r 6.07.2 of the High Court Rules 2004 (Cth) to the Registrar of the High Court. Rule 6.07.2 provides that a Justice may direct the Registrar to issue or file a document, or to refuse to issue or file a document, without the leave of the Justice first had and obtained by the party seeking to issue or file the document.

3    The Registrar said that a decision of a Justice of the High Court in giving such a direction is not a decision of an administrative character to which the AD(JR) Act would apply, and thus if the application were accepted for filing it would be doomed to fail. The Registrar said that he was satisfied that the application was an abuse of process of the Court and thus refused to accept it for filing pursuant to r 2.26.

4    The Registrar’s decision was entirely correct. 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 decision of Beech-Jones J under r 6.07.2 was not final, operative or determinative of the issue falling for consideration but was merely a procedural step along the way to an ultimate decision.

5    In addition, section 13(1) of the AD(JR) Act provides for reasons to be obtained where a person makes “a decision to which this section applies”. That expression is defined in section 13(11) as a decision to which the AD(JR) Act applies (being certain decisions of an “administrative character” as defined in section 3(1)), but does not include, relevantly, a decision included in any of the classes of decisions set out in Schedule 2 to the Act. One of the classes of decisions set out in Schedule 2 (at para (f)) is “decisions in connection with the institution or conduct of proceedings in a civil court”.

6    The decision of Beech-Jones J was judicial rather than administrative in character, and was in connection with the conduct of proceedings in a civil court. It was therefore not a decision to which section 13 applies.

7    Ms McGinn informed me that she has applied to the Chief Justice (or perhaps the Acting Chief Justice or the next most senior judge) for a referral of these proceedings to a Full Court under section 20(1A) of the Federal Court of Australia Act 1976 (Cth), and has not heard anything in response. In the absence of any decision to refer the matter to a Full Court, I have proceeded to hear and decide the matter myself.

8    The originating application in NSD463/2025 thus has no merit and must be dismissed.

9    Ms McGinn has also filed an application for summary judgment pursuant to r 26.01(1)(e) of the Rules on the ground that the respondent has no prospect of successfully defending the proceedings. Her affidavit in support, of 5 June 2025, refers to the respondent having filed a submitting notice under r 12.01 as a party which does not want to contest the relief sought in the originating application. For the reasons given earlier today in matters numbered NSD1825/2024 and NSD1867/2024, that application is misconceived and must be dismissed.

Associate:

Dated:    11 July 2025