Federal Court of Australia

Snow v Birchall (No 2) [2025] FCA 1206

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

CHARLESWORTH J

1    On 11 June 2025, a Registrar of the Court refused to accept for filing two Documents lodged by the applicant, Mr Christopher Snow. This is Mr Snow’s application for judicial review of the Registrar’s decision.

2    By lodging the Documents, Mr Snow purported to commence an application for leave to appeal from an order of a single judge of the Court made on 27 May 2025 in appellate proceeding SAD 98/2024 relating to his social security pension (27 May order).

3    By the 27 May order, O’Callaghan J refused to grant Mr Snow leave to rely on a newly introduced ground of appeal alleging a breach of procedural fairness relating to his unsuccessful attempts to secure legal representation in the proceedings at first instance. The proposed new ground was contained in [17] of a Supplementary Amended Notice of Appeal (SANOA) lodged by Mr Snow on 6 January 2025. Among other things, it alleged wrongful interference by the Attorney-General for South Australia in Mr Snow’s dealings with various legal services.

4    O’Callaghan J concluded that the subject matter of the proposed ground could have no bearing on the issues that could possibly arise on the appeal.

5    A registrar may refuse to accept a document for filing under r 2.26 of the Federal Court Rules 2011 (Cth) if satisfied that the document is an abuse of process by reference to the face of the document, or by reference to any documents already filed or submitted with it. A document may constitute an abuse of process if it purports to commence a proceeding that has no reasonable prospects of success, including because the proceeding is one that the Court has no jurisdiction to entertain.

6    The decision of the Registrar to refuse to accept the Documents for filing was based on two alternate lines of reasoning.

7    First, the Registrar concluded that the 27 May order was made in the exercise of the Court’s appellate jurisdiction and that no appeal lies to the Court from a judgment or order made in the exercise of the Court’s own appellate jurisdiction in accordance with s 24 of the Federal Court of Australia Act (1976) (Cth) (FCA Act). Accordingly, the Registrar concluded that the Documents constituted an abuse of process within the meaning of r 2.26 of the Rules.

8    Alternatively, the Registrar concluded that even if the 27 May order was made in the exercise of the Court’s original jurisdiction, no appeal would lie to the Court by the operation of s 24(1AA) and s 20(3) of the FCA Act.

9    Mr Snow alleges error on the part of the Registrar in both lines of reasoning.

10    With his consent, the application for judicial review is determined on the papers. I have read Mr Snow’s originating application, Mr Snow’s affidavits sworn on 1 July 2025, 5 August 2025, 15 August 2025 and 2 September 2025, and a document titled “Appellant’s consolidated submissions” filed 2 September 2025. By those documents, Mr Snow invited the Court to have regard to submissions made in opposition to the 27 May order and I have done so.

Appellate jurisdiction

11    An appeal is a creature of statute and this Court’s jurisdiction is itself limited by statute. It’s appellate jurisdiction is defined by s 24 of the FCA Act. Section 25 of the FCA Act affects the manner of its exercise. Insofar as they have potential application to the present case, those provisions provide:

24 Appellate jurisdiction

(1)    Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine:

(a)    appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court;

…

(1AA)    An appeal must not be brought from a judgment referred to in paragraph (1)(a), (d) or (e) if the judgment is:

(a)    a determination of an application of the kind mentioned in subsection 20(3); or

…

(1A)    An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

(1B)    Subsection (1A) is subject to subsection (1C).

…

(1E)    The fact that there has been, or can be, no appeal from an interlocutory judgment of the Court in a proceeding does not prevent:

(a)    a party from founding an appeal from a final judgment in the proceeding on the interlocutory judgment; or

(b)    the Court from taking account of the interlocutory judgment in determining an appeal from a final judgment in the proceeding.

25 Exercise of appellate jurisdiction

(1)    The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court.

…

(2)    Applications:

(a)    for leave or special leave to appeal to the Court; or

…

(c)    for leave to amend the grounds of an appeal to the Court; or

…

must be heard and determined by a single Judge unless:

(e)    a Judge directs that the application be heard and determined by a Full Court; or

(f)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

…

(2B)    A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(bd)    give directions under subsection 37P(2); or

(c)    give other directions about the conduct of an appeal to the Court, including directions about:

(i)    the use of written submissions; and

(ii)    limiting the time for oral argument.

(2BA)    In subsection (2B), a reference to an appeal includes a reference to an application of the kind mentioned in subsection (2).

(2BB)    An application for the exercise of a power mentioned in subsection (2B) must be heard and determined by a single Judge unless:

(a)    a Judge directs that the application be heard and determined by a Full Court; or

(b)    the application is made in a proceeding that has already been assigned to a Full Court and the Full Court considers it is appropriate for it to hear and determine the application.

12    Section 24(1AA)(a) precludes an appeal from a judgment made on the determination of an application of a kind mentioned in s 20(3). Such applications include an application determined by a single Judge exercising the Court’s original jurisdiction in determining whether leave should be granted to amend grounds of an appeal. The word “appeal” in that context may be understood to refer to an appeal of a kind that may be heard and determined in the Court’s original jurisdiction, including an appeal from an administrative decision of a tribunal of the kind commenced by Mr Snow at first instance.

13    Under s 25(2B)(bd) of the FCA Act, in exercising the Court’s appellate jurisdiction, a single judge or the Full Court may give directions under s 37P(2). Section 37P(2) supplies a broad source of power to give directions about practice and procedure to be followed in a civil proceeding.

Mr Snow’s submissions

14    On this application, Mr Snow’s principal submission is that the Registrar mischaracterised the Documents as being an “impermissible second appeal”, failed to properly consider the application and hence denied him procedural fairness.

15    He submits that the 27 May order was made “pursuant to the Court’s procedural powers” under s 37P of the FCA Act, that the single judge who made the order was “managing the appeal – not adjudicating it”, and that the 27 May order was interlocutory and procedural. I discern from those submissions that Mr Snow takes issue with the proposition that the 27 May order was made in the exercise of the Court’s appellate jurisdiction because it was not an order finally determining the appeal.

16    Mr Snow further submits that the issues he sought to raise by [17] of the SANOA were “supervening” and that they gave rise to serious issues arising under Ch III of the Australian Constitution. Mr Snow contends that the decision to refuse to accept the Documents for filing had the effect of depriving him the opportunity to argue substantive issues that had not been fully ventilated in the first instance proceeding and so amounted to a denial of natural justice. I interpret those submissions to mean that an issue raised for the first time on an appeal is not strictly speaking a matter arising in the appellate jurisdiction of the Court but rather is a matter falling within the Court’s original jurisdiction.

17    Mr Snow further argues that the Registrar erred in characterising the 27 May order as an order refusing to grant him leave to amend his notice of appeal so as to introduce the arguments contained in [17] of the SANOA. His argument on that topic is to the effect that [17] of the SANOA formed a part of the appeal by virtue of the document containing it having been accepted for filing on 16 January 2025 such that the hearing before O’Callaghan J was concerned not with a grant of leave, but with the question of whether that newly introduced ground should be retained. Accordingly, he submits, the 27 May order was not made on an application of the kind mentioned in s 20(3) of the FCA Act such that an appeal from the order could not be precluded by s 24(1AA).

Outcome on this application

18    Mr Snow’s principal arguments proceed from an assumption that an order is not made in the exercise of appellate jurisdiction unless it is an order finally determining an appeal on its substantive merits. Whether that is so turns on a question of statutory construction.

19    The 27 May order was made in action SAD 98/2024, being an appeal from a judgment of the Court constituted by a single judge exercising the original jurisdiction of the Court within the meaning of s 24(1) of the FCA Act. In the exercise of that jurisdiction, a single judge may make procedural orders regulating the conduct of the appeal. So much is expressly provided for under s 25 of the FCA Act. An order granting or refusing leave to amend a notice of appeal is a procedural order that may be made under s 37P(2) of the FCA Act, and so is made in the exercise of appellate jurisdiction by virtue of s 25(2B)(bd).

20    Accordingly, the Registrar was correct to characterise the 27 May order as having been made in the exercise of the Court’s appellate jurisdiction. The Registrar was also correct in concluding that s 24 of the FCA Act does not confer power on the Court to hear and determine an appeal from an order made by a single judge in the exercise of appellate jurisdiction. Section 24 of the FCA Act makes no provision for such an appeal.

21    That is a sufficient basis to dismiss the application for judicial review.

22    The Registrar’s alternate line of reasoning proceeded from an assumption that the 27 May order was made in the exercise of the Court’s original jurisdiction. Proceeding from that assumption, the Registrar was correct in characterising the 27 May order as one refusing to grant leave to amend a notice of appeal such that an appeal from the order would be precluded in any event by s 24(1AA) in combination with s 20(3). It is strictly unnecessary to consider the grounds of review impugning that characterisation, given my conclusion that the 27 May order was made in the exercise of the Court’s appellate jurisdiction. However, for completeness, I reject Mr Snow’s contention that O’Callaghan J did not hear an application for leave to amend his grounds of appeal within the meaning of s 20(3). The acceptance of the SANOA for filing did not constitute a general grant of leave to amend, and the respondent’s correspondence made it plain that leave to introduce the ground proposed in [17] was opposed. That dispute came before O’Callaghan J and was resolved by the 27 May order.

23    Mr Snow’s argument that the Registrar’s decision has deprived him of an opportunity to raise the argument on his appeal in proceeding SAD 98/2024 is not correct. The exclusion of the ground in [17] of the SANOA was the effect of the 27 May order, not the Registrar’s decision. The Registrar refused to accept the Documents for filing because they purported to invoke appellate jurisdiction that the Court does not have.

24    The Documents constituted an abuse of process because they purported to invoke jurisdiction that the Court does not have.

25    It follows that the application for judicial review must be dismissed.

Associate:

Dated:    1 October 2025