Federal Court of Australia

McGinn v High Court of Australia (No 5) [2025] FCA 975

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) (FCA Act), Sophia McGinn be prohibited from instituting any proceedings in this Court without making an application for leave to institute proceedings in accordance with s 37AR of the FCA Act.

2.    Pursuant to s 37AO(2)(a) of the FCA Act, the appeals instituted by Sophia McGinn in relation to the decisions made in NSD1070/2024, NSD519/2025, NSD1825/2024, NSD520/2025, NSD1867/2024, NSD463/2025, NSD536/2025, NSD577/2025 be stayed.

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    When the matter was called for hearing today there was no appearance by Ms McGinn. Yesterday, 13 August 2025, Ms McGinn wrote to the registry by email seeking an adjournment of today's hearing, attaching a medical certificate dated 12 August 2025, in the following terms:

I, Dr Sharon Wong [or perhaps Wang] certify that on 12/08/2025, Mr/Miss/Mrs/Ms Sophia McGinn presented at Rose Dental Surgery for Dental Surgery. In my professional opinion, based on the information provided to me at the time, he/she will be unfit to attend work/school for the period commencing 12/08/2025–15/08/2025.

The certificate was signed by Dr Sharon Wong [or perhaps Wang] and dated 12 August 2025.

2    No further information is available to me as to what information was provided by Ms McGinn to Dr Wong as referred to in the medical certificate, what the "dental surgery" involved, whether it was pre-arranged, or any reasons for Ms McGinn's unfitness to attend work over a four-day period. It is well-established that what needs to be provided for a medical certificate to be meaningful is material that establishes why or how it is that the person suffering from a medical condition would be unfit for participation at a court hearing: NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] (Lindgren J), Singh v Minister for Immigration and Border Protection [2016] FCA 108 at [2] (Pagone J), SZWBK v Minister for Immigration and Border Protection [2017] FCA 1020 at [15] (Lee J). The medical certificate provided by Ms McGinn falls well short of that standard. In those circumstances I give the medical certificate very minimal weight.

3    My Associate replied to Ms McGinn's email, via the court’s registry, to the effect that I would deal with Ms McGinn's application for an adjournment at the listed hearing on 14 August 2025 at 10.15 am. Ms McGinn responded on 13 August 2025 saying that she would not be able to talk or make any oral submissions until she recovered from the procedure. Assuming that to be truthful, Ms McGinn does not say that she is unable to make written submissions or prepare an affidavit, and Ms McGinn does not indicate by when her powers of speech are likely to return. Ms McGinn is well practised in putting her arguments and evidence in written form.

4    I note also that Ms McGinn's emails of 13 August 2025 indicate that she was then seeking an order from the High Court for a stay of this hearing, in view of an application made by her on 8 August 2025 for constitutional writs. No explanation has been provided to me as to how her desire for her application to the High Court for a stay to be considered and determined urgently on 13 August 2025, can be reconciled with her claimed inability to address this Court on 14 August 2025.

5    Finally, I note that today's hearing was fixed for a day which Ms McGinn told me, on 21 July 2025, suited her convenience.

6    Section 37P of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) gives me ample power to give directions about the practice and procedure to be followed in relation to a civil proceeding before the court or any part of it. That is a power to be exercised consistently with the overarching purpose of the civil practice and procedure provisions expressed in s 37M, of facilitating the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible. That includes the just determination of all proceedings before the court, the efficient use of the judicial resources available for the purposes of the court, and the efficient disposal of the court's overall case load: subs 37M(2). In my view, it is appropriate to direct that the hearing as to whether a vexatious proceeding order should be made against Ms McGinn, and the terms of any such order, should be heard and determined in the absence of Ms McGinn. I dismiss her application for an adjournment.

7    On 3 July 2025, I heard and determined nine sets of proceedings brought by Ms McGinn in the Federal Court, together with numerous applications, that I disqualify myself on the ground of actual bias. My reasons for judgment in those matters are as follows:

(a)    in NSD 1070 of 2024, Ms McGinn's application that I disqualify myself on the ground of actual bias was decided against her in McGinn v Australian Information Commissioner [2025] FCA 779, and Ms McGinn's substantive application for judicial review was decided against her in McGinn v Australian Information Commissioner (No 2) [2025] FCA 780;

(b)    in NSD 519 of 2025, Ms McGinn's application that I disqualify myself on the ground of actual bias was decided against her in McGinn v Federal Court of Australia [2025] FCA 781, and Ms McGinn's substantive application for written reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 782;

(c)    in NSD 1825 of 2025, Ms McGinn's application that I disqualify myself on the ground of actual bias was decided against her in McGinn v Federal Court of Australia [2025] FCA 783, and her substantive application for judicial review was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 784;

(d)    in NSD 520 of 2025, Ms McGinn's application that I disqualify myself on the ground of actual bias was decided against her in McGinn v Federal Court of Australia [2025] FCA 785, and her substantive application for written reasons under s 13 of the ADJR Act was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 786;

(e)    in NSD 1867 of 2025, Ms McGinn's substantive application for judicial review was decided against her in McGinn v Federal Court of Australia [2025] FCA 787;

(f)    in NSD 463 of 2025, Ms McGinn's application that I disqualify myself was decided against her in McGinn v Federal Court of Australia [2025] FCA 788, and her substantive application for judicial review was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 789;

(g)    in NSD 536 of 2025, Ms McGinn's application that I disqualify myself was decided against her in McGinn v Federal Court of Australia [2025] FCA 790, and her substantive application for judicial review was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 791;

(h)    in NSD 577 of 2025, Ms McGinn's application that I disqualify myself on the ground of actual bias was decided against her in McGinn v Federal Court of Australia [2025] FCA 792, and her substantive application for writs of prohibition was decided against her in McGinn v Federal Court of Australia (No 2) [2025] FCA 793; and

(i)    in NSD 544 of 2025, Ms McGinn's application that I disqualify myself for actual bias was decided against her in McGinn v High Court of Australia [2025] FCA 794, and her substantive application for judicial review was decided against her in McGinn v High Court of Australia (No 2) [2025] FCA 795.

8    I also note that in NSD1070/2024, on 14 October 2024 Yates J decided Ms McGinn's application for an order suppressing her identity adversely to her in McGinn v Australian Information Commissioner [2024] FCA 1185, and also decided Ms McGinn's applications for a stay of proceeding pending the outcome of an intended appeal and that Yates J disqualify himself for actual bias adversely to her in McGinn v Australian Information Commissioner (No 2) [2024] FCA 1196. On 4 November 2024, Yates J decided Ms McGinn's application that the judgments of 14 October 2024 be set aside on the ground that they were made in her absence, adversely to Ms McGinn: McGinn v Australian Information Commissioner (No 3) [2024] FCA 1271.

9    On 21 July 2025, I dealt with an application by Ms McGinn for a stay of proceedings concerning whether a vexatious proceedings order should be made against her pending the outcome of her appeal from my decisions in NSD1070/2024 and any other notice of appeal which she may file. That was preceded by the usual application by Ms McGinn that I disqualify myself, which I decided against her: McGinn v High Court of Australia (No 3) [2025] FCA 846. I then dismissed her application for a stay pending appeal: McGinn v High Court of Australia (No 4) [2025] FCA 847.

10    Last week, on 6 August 2025, Ms McGinn applied again for a stay of proceedings concerning whether a vexatious proceedings order should be made until her appeals were determined. The duty judge, Needham J, dismissed that application: McGinn v Australian Information Commissioner [2025] FCA 962.

11    On 11 August 2025, three days ago, Ms McGinn sought yet again to obtain an order staying the hearing and determination of the question whether a vexatious proceedings order should be made pending her appeals, which Perry J as the duty judge, on 12 August 2025 declined to entertain in light of the matter having been assigned to my docket and in light of the earlier unsuccessful application to Needham J.

12    Ms McGinn has now filed notices of appeal from my decisions in each of matters NSD1070/2024, NSD519/2025, NSD1825/2024, NSD520/2025, NSD1867/2024, NSD463/2025, NSD536/2025 and NSD577/2025. She has not filed a notice of appeal in NSD544/2025, presumably because my order dismissing the originating process in those proceedings is expressed not to take effect until the completion of the hearing and determination of the question whether a vexatious proceedings order should be made against her.

13    In McGinn v High Court of Australia (No 2) [2025] FCA 795 at [7], I said that the circumstances appeared to me to raise a 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 FCA Act, with the effect of prohibiting Ms McGinn from instituting proceedings in the court without first obtaining the leave of the court.

14    At [8], I said that there was also a question whether an order might be made staying or dismissing any other proceedings which Ms McGinn may have instituted. I noted that s 37AO(3) provides that the court may make a vexatious proceedings order on its own initiative, but that s 37AO(4) provides that the court must not make a vexatious proceedings order without hearing the person or giving the person an opportunity to be heard. I then made orders for the filing of written submissions and affidavits by Ms McGinn and listed the matter for hearing today.

15    Ms McGinn has filed written submissions and an affidavit dated 31 July 2025, which I have read and which I will take into account on the question whether a vexatious proceedings order should be made against her. As indicated above, she has not appeared today in order to address the court either orally or by way of any further written submissions.

16    Section 37AO(1) provides relevantly that s 37AO applies if the court is satisfied that a person has frequently instituted or conducted vexatious proceedings in Australian courts. "Vexatious proceeding" is defined in s 37AM(1) as including various matters, including relevantly a proceeding instituted or pursued in a court without reasonable ground. "Proceeding" in relation to a court has the meaning given by s 4, which includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

17    I am comfortably satisfied that Ms McGinn has frequently instituted and conducted vexatious proceedings. Each of the substantive applications, which I heard and decided on 3 July 2025, was wholly without merit and lacked reasonable grounds on the basis of the reasons given by me. The appeals brought by Ms McGinn against those decisions likewise lack reasonable grounds. Each of the disqualification applications which I heard on 3 July 2025 and also on 21 July 2025 similarly lacked reasonable grounds on the basis of the reasons which I have given. The interlocutory applications heard and decided by Yates J on 14 October 2024 and 4 November 2024 lacked reasonable grounds in light of his Honour's reasons for dismissing them. The stay application made before me on 21 July 2025 lacked reasonable ground, and that application was then repeated before Needham J and was sought to be repeated before Perry J in their Honours’ respective roles as duty judges. It is not necessary to decide whether elements of the definition of "vexatious proceedings" in s 37AM(1) other than a proceeding instituted or pursued in a court without reasonable ground are also satisfied.

18    In my view, it is appropriate to order pursuant to s 37AO(2) that Ms McGinn be prohibited from instituting proceedings in this Court. The effect of that order is set out in s 37AR, namely that Ms McGinn may apply to the Court for leave to institute a proceeding, and any such application must be accompanied by an affidavit setting out the matters required by s 37AR(3). In my view, in the present case, while such an order is a serious matter for Ms McGinn, it is necessary to protect the judges and registrars of the Court from the expense of time, the burden and the inconvenience of baseless and at times repetitious proceedings by Ms McGinn: see generally Storry v Parkyn (Vexatious Proceedings Order) [2024] FCAFC 100; (2024) 304 FCR 318 at [1]–[7] and [16]–[19] (Lee, Feutrill and Jackman JJ). Further, while most of Ms McGinn's proceedings have been against the Federal Court and the High Court, which have not appeared otherwise than by filing submitting notices, the Australian Information Commissioner has been subjected to wasteful and baseless proceedings from which it should be protected. There may well in the future be other litigants put in a similar position by Ms McGinn.

19    Further, in my view, it is also appropriate to order that the appeals pursuant to the eight notices of appeal filed by Ms McGinn be stayed. I have found that the substantive applications which have given rise to those appeals were instituted or pursued without reasonable ground. It follows that the appeals must also be without reasonable ground, except to the extent that the grounds of appeal raise matters of procedural fairness or other procedural points arising from the manner in which the proceedings at first instance were heard and determined. The amended notice of appeal relating to NSD1070/2024 raises grounds of procedure or procedural fairness in the hearing and determination of the matter by Yates J and myself, which go beyond the substantive issues at stake. The grounds are expressed as follows:

Grounds of appeal for decisions made on 14/10/2024

(1)    Ultra vires and breach of hearing rule - the dismissal of recusal application was made without giving the Appellant opportunity to file written submissions.

(2)    Breach of evidence rule - the dismissal of stay application was made without any objection being filed.

(3)    Perjury - Justice Yates (at [8]) concealed he filed submitting appearance at High Court admits he should be disqualified.

(4)    Ultra vires and breach of hearing rule - the cost orders were made without an application for costs, let alone an opportunity for the Appellant to file written submissions.

Grounds of appeal for decisions made on 3/7/2025

(1)    Failed to consider material evidence -– Justice Jackman J concealed the material evidence that BMW North Shore admits the service on 15/5/2017 is for one hour diagnose of Appellant's car, to support his finding the service record on 15/5/2017 does not exist.

(2)    Alternatively, perjury - Jackman J's finding the service record on 15/5/2017 does not exist is knowingly false.

(3)    Failed to consider material evidence - Jackman J failed to mention, let alone consider, the Appellant's only submission on costs: an inactive contradictor is not a successful party, therefore, per the principle of awarding costs, the Respondent is not entitled to costs in any circumstance.

20    I cannot see how any of those grounds raises a tenable or arguable challenge to the decisions of either Yates J or myself, and Ms McGinn did not advance any such argument in her written submissions as to whether or not a vexatious proceedings order should be made or the terms of any such order. The other seven notices of appeal all express grounds directed to the substantive issues which I rejected on 3 July 2025, and which I regard as having been pursued without reasonable ground.

21    The procedure under s 37AR for seeking leave to institute a proceeding applies where a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court. It does not apply in its terms where proceedings are stayed under s 37AO(2)(a). On 21 July 2025, in dismissing Ms McGinn's application for a stay of the hearing of the question whether to make a vexatious proceedings order pending her appeals, I said that the question was likely to arise whether an order staying Ms McGinn's appeals should be subject to a grant of leave by a judge of the Court for Ms McGinn to proceed with any such appeal. I am not persuaded that the order staying Ms McGinn's appeals should be subject to that qualification, and Ms McGinn did not submit in her written submissions that it should be, despite my having raised the issue on 21 July 2025. In light of the complete lack of merit in the appeals which Ms McGinn has filed, it would be a waste of the Court's time to have to hear and determine whether any such leave should be granted, and all the more so given that it is realistic to expect that any application for leave by Ms McGinn will be accompanied by repeated and groundless applications for disqualification by the judge in question. Unlike prospective proceedings which fall within s 37AR, the notices of appeal have been filed, and their lack of merit can and should be determined here and now.

22    I am conscious that I am the trial judge against whose decisions those appeals have been brought, but my mind has been open to persuasion by Ms McGinn that I may have erred in some way in making those decisions. Ms McGinn’s written submissions have not exposed any such error. I reject Ms McGinn's submission that I raised the question of whether to make a vexatious proceedings order for the wrongful purpose of preventing her from appealing against my decisions. However, I am now firmly of the view that none of Ms McGinn's underlying proceedings, nor her appeals from my decisions in respect of them, raise any contention which could reasonably be seen as having any realistic prospect of leading to a decision in Ms McGinn's favour.

Associate:

Dated:    15 August 2025