Federal Court of Australia

McGinn v High Court of Australia (No 6) [2025] FCA 1123

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 1 September 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 14 August 2025, I made vexatious proceedings orders pursuant to s 37AO(2) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) prohibiting Ms McGinn from instituting any proceedings in this Court without making an application for leave to institute proceedings, and also staying the appeals which had been instituted by Ms McGinn (the VPOs); McGinn v High Court of Australia (No 5) [2025] FCA 975 (the VPO judgment). I made those orders in the absence of Ms McGinn, and I regarded Ms McGinn's application by email for an adjournment on the basis of an inadequate medical certificate as insufficient to justify an adjournment. I note that the respondent has filed a submitting notice and did not appear on 14 August 2025.

2    At the outset of today's hearing, Ms McGinn applied for me to disqualify myself on the ground of actual bias. The basis for Ms McGinn's submission is that I was an active party in the making of the VPOs on 14 August 2025 and thus lacked impartiality to decide whether to make the VPOs. It is true that the question whether to make VPOs was taken on my initiative. However, I did so pursuant to what is expressly contemplated by s 37AO(3) of the FCA Act, and I did not do so as an active party. I reassure Ms McGinn that I am open to persuasion on her present interlocutory application, and I am open to persuasion that there may have been matters on 14 August 2025 which I overlooked or got wrong. Further, I am open to the receipt of evidence concerning further matters of which I may have been unaware on 14 August 2025. There is no basis, in my view, for Ms McGinn's application to disqualify myself on the ground of actual bias, and I reject that application.

3    Ms McGinn now applies, pursuant to r 39.05(a) of the Federal Court Rules 2011 (Cth), for the VPOs to be set aside as they were made in the absence of her as a party. Ms McGinn has filed written submissions dated 6 September 2025 as follows:

1.     The respondent filed submitting notice, however, Justice Jackman, as the presiding judge of the proceedings, acted like an active party, objected to applicant's adjournment application.

2.     An active party is entitled to object an adjournment on prejudice.    

3.     Justice Jackman is not an active party; he has no legal rights to claim prejudice; therefore, his objection is illegal.

4.     He is fully aware the court's usual practice is to grant adjournment when it is by consent.

5.    The applicant is the only active party in these proceedings to give consent; therefore, the adjournment is by consent.

6.    He has granted adjournment in NSD1070/2024 when the Applicant apply for adjournment by parties' consent.

7.    Justice Jackman relied on three authorities to raise the question: whether the Applicant's medical certificate provides sufficient information to justify the adjournment, knowing all three authorities have active parties in the proceedings.

8.     The fact Justice Jackman concealed the fact the Respondent filed submitting notice by deleting the Respondent's appearance details in the judgment (tampering with evidence), so as he can argue "whether sufficient information on medical certificate", (lie) instead of "whether the adjournment is by consent" (flight) constitutes an admission he has no reason to refuse the adjournment (consciousness of guilt - lie and flight).

9.     The fact Justice Jackman concealed the fact the only handwritten reason in the Applicant's medical certificate is "dental surgery" the rest are printed, standard words of that medical certificate when he quoted them in the judgment, so he can question the standard words (lie) instead of the handwritten reasons (flight), constitutes an admission.

10.     Justice Jackman’s request "no further information...what the 'dental surgery' involved" is so unreasonable, no reasonable person would ever request, because it is common sense it is a medical procedure in a person's mouth, the body part that is required the most in a court hearing.

11.     Therefore, the refusal of adjournment is reckless indifferent, with no reason on Justice Jackman’s admission.

12.     Accordingly, the orders should be set-aside.

4    I reject the submission that Ms McGinn's application for an adjournment of the hearing on 14 August 2025 was by consent. The respondent filed a submitting notice but did not consent to Ms McGinn's adjournment application. Instead, as far as I can tell from the email correspondence of 13 August 2025 relating to the adjournment application, the respondent was not even told of the application. The question whether the hearing should proceed was effectively a matter between Ms McGinn and the Court. As I recorded in the VPO judgment (at [3]), Ms McGinn was told that I would deal with her adjournment application at 10.15 am on 14 August 2025. It was my view then, and remains my view, that proceeding with the hearing on 14 August 2025 was amply justified for the reasons given in the VPO judgment (at [3]–[6]). The fact that parts of the medical certificate were handwritten is immaterial. Even if it had all been handwritten rather than printed, it was inadequate to justify an adjournment. No further evidence has been adduced on this occasion to indicate why (if it be the case) Ms McGinn was unable to address the Court on 14 August 2025 or why an adjournment should have been granted on that day.

5    On 4 September 2025, Ms McGinn sent an email to me via the Court’s Registry as follows:

Given the Respondent HCA filed submitting notice, the Application to set aside is unopposed (by consent).

However, given your active role in these proceedings, if you oppose this application, please email your reasons, so I can prepare my submissions in response.

If no reply/reason is received by COB tomorrow, I will take that you don't oppose the application.

6    Neither my associate nor I responded to the email. Ms McGinn was not entitled to any advance notice of my reasons for not acceding to her application to set aside the VPOs, and indeed I had not formulated any such reasons until hearing the matter today. Ms McGinn was not entitled to assume, in the absence of such reasons, that her application would be granted. Contrary to Ms McGinn's email, the Court does not oppose applications. It merely hears and decides them.

7    Ms McGinn has advanced no argument concerning the substantive question whether the VPOs should have been made, either on 14 August 2025 or now, except for her argument that an adjournment should have been granted on 14 August 2025. I have already rejected that argument.

8    It is well-established that the power to set aside a judgment or order after it has been entered is discretionary and that even in the case of orders of a procedural nature, the principle of finality of litigation has a significant role to play: Campaign Master (UK) Limited v Forty Two International Pty Limited (No 4) [2010] FCA 398; (2010) 269 ALR 76, at [69] (Yates J). As Yates J also held at [69], the overarching purpose identified in s 37M of the FCA Act of facilitating the resolution of disputes according to law as quickly, inexpensively and efficiently as possible is also to be taken into account, and that overarching purpose will not be achieved but will be subverted by a too-ready resort to the power to set aside orders that have been made and entered, even where the orders are of a procedural nature.

9    Moreover, as Yates J recognised at [70], the original order should only be set aside if the Court is satisfied, in light of the evidence now before it, that the original order should not have been made. Ms McGinn has put no further evidence or argument before the Court on that matter, except for her argument that an adjournment should have been granted on 14 August 2025. Accordingly, I am not satisfied by any evidence now before me that the VPOs should not have been made.

10    I have put to one side, in considering this application, that Ms McGinn has not applied for leave to institute this interlocutory proceeding in accordance with the s 37AR of the FCA Act. I have done so as an act of generosity to Ms McGinn in order to provide her with the best possible opportunity to put her case. I do not propose to take that lenient stance in the future, and the registry should not accept for filing any document instituting a proceeding (including any incidental proceeding) by Ms McGinn without her complying with s 37AR.

Associate:

Dated:    10 September 2025