Federal Court of Australia

McGinn v Australian Information Commissioner [2025] FCA 962

ORDERS

THE COURT ORDERS THAT:

1.    Application dismissed with costs.

2.    The Applicant file and serve her written submissions entitled “Appellant’s Submissions for Stay Application” dated 6 August 2025.

3.    The Respondent file and serve an affidavit and any submissions, not exceeding 3 pages in length, in support of the lump-sum claim (Costs Summary) by 8 August 2025.

4.    The Appellant file and serve any affidavit responding to the matters raised in the Costs Summary, and any submissions, not exceeding 3 pages in length, by 12 August 2025.

5.    The question of costs be determined on the papers.

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

NEEDHAM J:

1    These proceedings came before me on 6 August 2025 in my role as duty judge. The current proceedings are an appeal against two decisions in first instance proceedings NSD1070/2024. In particular, the now amended Notice of Appeal cites two decisions, one of Yates J on 14 October 2024, and one of Jackman J on 3 July 2025. Those proceedings (to which I will refer as the AIC proceedings) were dismissed by Jackman J on 3 July 2025 (see McGinn v Australian Information Commissioner (No 2) [2025] FCA 780) along with a number of Ms McGinn's other proceedings in this court.

2    The applicant had previously sought that day that Jackman J disqualify himself. That application was dismissed (see McGinn v Australian Information Commissioner [2025] FCA 779). Also before Jackman J on 3 July 2025 was NSD544/2025 McGinn v The High Court of Australia, (to which I will refer as the High Court proceedings). In the High Court proceedings, again on 3 July, Jackman J dismissed an application that he disqualify himself in those proceedings (see McGinn v The High Court of Australia [2025] FCA 794).

3    His Honour then dealt with the High Court proceedings in McGinn v The High of Court Australia (No 2) [2025] FCA 795. The orders his Honour made were:

(1)    On the completion of the matters set out in Orders 2 and 3 below, the originating process in NSD544/2025 will be dismissed.

(2)    Ms McGinn is to file any affidavits and written submissions in relation to why a vexatious proceedings order should not be made against her by 8 August 2025.

(3)    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 July Orders)

4    The basis for those orders appears in [7], [8], [9] and [10] of the decision in McGinn v the High Court of Australia (No 2) [2025] FCA 795. In summary, it was Jackman J's view that there might be a ground for a vexatious proceedings order in relation to Ms McGinn. His Honour said, at [8]:

I have not made any decision as to whether such orders are appropriate, and I am fully open to persuasion by Ms McGinn not to make a vexatious proceedings order.

5    Ms McGinn then filed an interlocutory application in the High Court proceedings on 13 July 2025, seeking to stay orders 2 and 3 of the 3 July Orders. On 17 July, she filed submissions in relation to that stay application, and on 20 July, filed further submissions that Jackman J disqualify himself on the basis of actual and apprehended bias. In those submissions Ms McGinn took issue (as she does on the appeal) with Jackman J making those orders in proceedings where the respondent, the High Court of Australia, had filed a submission notice and did not appear.

6    His Honour heard both of those applications on 21 July and dismissed each of them. He dismissed the application for a stay (see McGinn v High Court of Australia (No. 4) [2025] FCA 847) on the basis that the applicant had not demonstrated a proper basis for a stay.

7    Ms McGinn argued in that application that the proceedings previously brought by her were supported by reasonable grounds and were not vexatious proceedings within the meaning of section 37AM of the Federal Court of Australia Act 1976 (Cth). His Honour noted that he had not yet made any determination as to whether a vexatious proceedings order should be made (at [5]) and accordingly found there was no sufficient prejudice to Ms McGinn in orders 2 and 3 being made. His Honour considered the issue of her appeal in the AIC proceedings and any other appeals which might be filed, and noted that even if a vexatious proceedings order were made, the applicant would have an opportunity before a judge of this court to argue that the appeal or appeals had sufficient prospects of success so that they should not be stayed.

8    The applicant, as I have said, came before me as duty judge and seeks orders in accordance with paragraph 8 of her Amended Notice of Appeal. That order is headed “Interlocutory order sought”. Paragraph 8 provides:

The Appellant seeks an order to stay proceedings NSD544/2025 pending the determination of this appeal, because Justice Jackman relies on the decisions under appeal to make vexatious order, and refused to stay vexatious order hearing, the appeal will be abortive if stay is not granted.

9    Ms McGinn appeared before me unrepresented, and Ms Ronan appeared for the Australian Information Commissioner. As I have said, the High Court of Australia has submitted to the orders of the court, and there was no appearance. As noted above, this application is made in the appeal in the AIC proceedings.

10    Ms McGinn made two main submissions. The first submission is that her appeal would be rendered nugatory were no stay to be ordered of orders 2 and 3 of the 3 July Orders, and the second, that no order should be made prior to the appeal process determining the correctness of the judgments below.

11    She handed up written submissions entitled “Appellant's Submissions for Stay Application”. There was no order that they be filed, but I will make such an order now. They were dated 6 August 2025. Again, in those written submissions, she said that if vexatious proceedings orders were made and the appellant succeeds in the appeal, the appeal would prove abortive. She noted that there was no requirement, in determining whether a stay should be granted, that the merits of the appeal be required to be assessed and cited Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 695. Ms McGinn noted that there was no active contradictor to oppose the stay and from that I infer that she submits that that is an indication that there would be no prejudice to any party in the proposed stay orders.

12    She submitted that the balance of convenience favoured the granting of a stay and noted that the Australian Information Commissioner is not a party in the High Court proceedings. She also laid emphasis on the fact that neither respondent in the two proceedings was the moving party for the proposed hearing of the vexatious proceedings order, but that the orders were made of the Court’s own motion.

13    Ms Ronan for the Australian Information Commissioner submitted that no stay should be ordered on three grounds.

14    Firstly, she submitted that the rule allowing a stay pending appeal, which is rule 36.08 of the Federal Court Rules 2011 (Cth) (FC Rules), would not apply to these proceedings given that the appeal is filed in the AIC proceedings and the stay is sought in the High Court proceedings. While that may be correct, I do not need to decide that issue for two reasons: one is that sub-rule (2) of rule 36.08 allows “an interested person” to make an application to the court for a stay. Secondly, it appears to me that in any event I have an inherent power to regulate proceedings, including to stay or to make orders that are necessary (see also rules 1.32 and 1.40 of the FC Rules).

15    During argument, I indicated to Ms McGinn that she need not address me on rule 36.08 and that she could assume that I regarded myself as having the power to make a stay order.

16    Secondly, the respondent pointed to the fact that this is the second application to stay the proceedings. Ms Ronan submitted that repeated applications may themselves be an abuse of process and cited Bethell v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 771. Again, while this may be correct, I am prepared in these circumstances to treat this application as if it were an approach to the Full Court after the primary judge had refused to stay, even though there is that complexity between the proceedings appealed from and the proceedings before me now. In any event, I am prepared to proceed as if this application is not, prima facie, an abuse of process or vexatious, but I do not have to decide that matter today.

17    The third ground raised by the respondent was that the interests of justice are served by Jackman J hearing the question of a vexatious proceedings order on its merits. It is relevant to note at this point that Jackman J has not yet heard the applicant on whether a vexatious proceedings order should or should not be made, and the orders are only for the timetabling leading up to that hearing. I further note that the applicant has already filed submissions in accordance with order 2 of the 3 July Orders.

18    In reply, I asked the applicant to provide me with submissions as to why I should stay the orders of another judge timetabling a hearing on whether a vexatious proceedings order should be made. Her submissions raised issues, as before, as to prejudice arising out of whether the underlying proceedings were correctly decided and then being used “as the basis for a vexatious proceedings order”. She also raised the detriment to her if the vexatious proceedings orders were made and, in addition, at the end of the submissions, raised issues of damage to her reputation and suggested that any suggestion that she were vexatious was defamatory.

19    I have considered the submissions made by both parties. I do not consider that the interests of justice are served by my granting a stay as sought in the Amended Notice of Appeal. For one thing, as I have said, Jackman J has not come to the point of considering whether an order should be made and may very well not make that order. As his Honour said in his reasons in McGinn v High Court of Australia (No. 4) [2025] FCA 847, if an order were made the applicant would have the opportunity to make submissions as to whether the appeal should be stayed, and if it were, to make submissions as to why leave to continue that appeal should be granted.

20    It seems to me that, for that reason alone, the application is premature and asks me to proceed as if the vexatious proceedings order will necessarily be made. No such assumption can be made. Jackman J has said on a number of occasions that he has not yet determined that issue and that he retains an open mind. This is, of course, quite proper because he has not read the submissions of the applicant as to why no vexatious proceedings order should be made, nor has he, if any evidence is to be filed, considered that evidence.

21    As I have said, the applicant has already filed submissions in support of her position that no vexatious proceedings order should be made. The time for making any further or additional submissions or filing of evidence, should she wish to do so, is still open and expires tomorrow. There is no prejudice, in my view, arising out of her having the opportunity to resist those orders being made and to have a full hearing on that issue. For me to stay the timetabling orders would not be in the interests of justice. I agree with the respondent that given there has been no final vexatious proceedings order made, the current orders are merely timetabling orders, and the lack of prejudice to the applicant, there is no reason to stay the orders of 3 July in the High Court proceedings.

22    The application is dismissed with costs.

Associate:

Dated:    13 August 2025