Federal Court of Australia

McGinn v High Court of Australia (No 4) [2025] FCA 847

ORDERS

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application dated 13 July 2025 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    On 3 July 2025, in McGinn v High Court of Australia (No 2) [2025] FCA 795, I expressed the view that the circumstances appeared to me to raise the question whether the grounds might exist for the Court possibly to be satisfied that a vexatious proceedings order might be made against Ms McGinn under s 37AO of the Federal Court of Australia Act 1976 (Cth), with the effect of prohibiting Ms McGinn from instituting proceedings in the Court without first obtaining the leave of the Court (at [7]). I also indicated that I was not aware of any other proceedings in the Court which Ms McGinn had already instituted, but if there were, then there would also be a question whether an order might be made staying or dismissing those proceedings, (at [8]).

2    I made Orders 2 and 3 that day, requiring Ms McGinn to file and serve any affidavits and written submissions in relation to why a vexatious proceedings order should not be made against her by 8 August 2025, and I ordered that the matter stand over to 14 August 2025 at 10.15 am for hearing as to whether a vexatious proceedings order should be made against Ms McGinn.

3    By interlocutory application dated 13 July 2025, Ms McGinn seeks an order staying Orders 2 and 3 made on 3 July 2025 until her Notice of Appeal in NSD1070/2024 is determined. The principal judgment in NSD1070/2024 dismissed Ms McGinn's originating application for judicial review against the Australian Information Commissioner. Ms McGinn has also sought to file what she calls a Joinder Notice of Appeal under rule 9.02 of the Federal Court Rules 2011 (Cth) to appeal against my decisions in another seven matters which I determined on 3 July 2025. The registry has not accepted that document for filing.

4    There is no proper basis disclosed for a stay of Orders 2 and 3 made on 3 July 2025. Ms McGinn is entitled to argue on 14 August 2025 that her Notice of Appeal in relation to NSD1070/2024 and any other Notice of Appeal she has filed by then have sufficient merit and that the proceedings previously brought by her were supported by reasonable grounds and were otherwise not vexatious proceedings within the meaning of s 37AM. I will consider those arguments on their merits with a mind open to persuasion. It is neither necessary nor desirable to await the decision of the Full Court as to whether my reasons in NSD1070/2024 disclosed appellable error. There is a public interest in having the issue whether a vexatious proceedings order should be made against Ms McGinn dealt with in a timely manner.

5    If I am minded to make a vexatious proceedings order on 14 August 2025, one question which seems to me likely to arise then is whether Ms McGinn's appeal from my decision in NSD1070/2024, and any other appeal she has filed by then, should itself be stayed and whether such a stay should be subject to the grant of leave by a judge of the Court for Ms McGinn to proceed with any such appeal. That qualification would give Ms McGinn the opportunity to argue before another judge that her appeal or appeals enjoy sufficient prospects that they should be allowed to proceed.

6    Accordingly, I do not think that there is any sufficient prejudice to Ms McGinn in Orders 2 and 3 made on 3 July 2025 despite the fact that her appeal in NSD1070/2024 and any other appeal from my decisions on 3 July 2025 are very unlikely to have been heard and determined by 14 August 2025.

Associate:

Dated:    22 July 2025