Federal Court of Australia

Davies, in the matter of an application by Davies [2026] FCA 428

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The Registrar is directed to consider whether the originating application and concise statement lodged on 23 February 2026 should be accepted for filing.

3.    Any request by a person who is not a party to the proceeding for access to or a copy of the unredacted affidavits of Mr Davies filed in these proceedings shall be referred to a judge.

4.    Until further order, the affidavits of Mr Davies filed in these proceedings shall be marked confidential in the electronic court file.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On 11 March 2026, an application by Mr Kevin Davies against Lazer Safe Pty Ltd was accepted for filing. The application sought leave for a proposed originating application and proposed concise statement to be accepted for filing. Mr Davies also filed written submissions in support of his application for leave. For the following reasons, his application for leave must be refused. However, there should also be a direction to the Registrar to consider whether the documents should be accepted for filing.

2    It is necessary to first explain the circumstances of a previous unsuccessful application by Mr Davies to obtain leave to file an application against Lazer Safe.

3    Mr Davies and Triclops Technologies Pty Ltd were the unsuccessful applicants in Davies v Lazer Safe Pty Ltd [2018] FCA 702 (McKerracher J) delivered 18 May 2018. Their appeal from the orders made by the primary judge was dismissed: Davies v Lazer Safe Pty Ltd [2019] FCAFC 65 (Greenwood, White and Burley JJ) delivered 26 April 2019. The proceedings concerned a patent that related to a safety system.

4    Since October 2024, Mr Davies has made numerous attempts to file documents to reopen those applications on the basis of allegations by him to the effect that the judgments in those earlier proceedings were obtained by fraud.

5    On 5 August 2025, Mr Davies made a further lodgement of documents relating to a proposed interlocutory application in the proceedings that had been determined by McKerracher J. A direction was made by Banks-Smith J that those documents not be accepted for filing by the Registrar without leave from a judge. Mr Davies then made an application for leave to file those documents. On 9 December 2025, the application for leave was dismissed: Davies, in the matter of an application by Davies [2025] FCA 1552.

6    Therefore, the operative effect of the direction made by Banks-Smith J has been exhausted. The direction related to particular documents that were sought to be filed in proceedings that were determined many years ago. Leave was sought in respect of those particular documents. Leave was refused. Consequently, there is no capacity to seek leave to file other documents pursuant to that leave.

7    The application that has now been brought purports to be an application for leave to file a fresh originating application and concise statement. It is not an attempt to re-open the proceedings that have been determined. It disavows any attempt to challenge earlier findings. Rather, it purports to be an attempt to bring proceedings for what Mr Davies describes as 'a confined subsequent-period infringement claim of products, configurations and features not in issue in the previous proceedings'. He says that it is not framed as a collateral attack on the earlier judgments and does not seek to relitigate or contradict findings in those proceedings.

8    Mr Davies says that when he sought to file the originating application and concise statement, he was advised by the Registry that by reason of the previous direction of Banks-Smith J, leave was required before the documents could be accepted for filing. It is for that reason that he has made the application for leave. On the material he has filed in support of his leave application this appears to be correct. This is unfortunate and to be regretted because, irrespective of the circumstances in which the present leave application came to be brought, it is misconceived. The direction by Banks-Smith J did not concern the filing of originating applications. It concerned only the filing of the particular documents that were considered by Banks-Smith J at the time of the making of the direction. Further, those documents sought to bring an interlocutory application in the proceedings that were determined in 2018 (and in respect of which an appeal was refused in 2019).

9    There was no general requirement for leave to be obtained in any instance where Mr Davies sought to commence new proceedings. Indeed, I doubt whether a general requirement of that kind that related to future originating documents yet to be lodged could be imposed unless it took the form of an order declaring a litigant vexatious (or a limited form of order made after proceedings were determined that was designed to prevent attempts to relitigate the matters that has been adjudicated: see, for example, Ogbonna v Government of Western Australia (No 5) [2023] FCA 935 at [50]).

10    A requirement for leave to file an originating application may be imposed in respect of particular documents that have been lodged for filing. In such a case, a judge will have considered the documents as lodged and directed that those particular documents not be accepted for filing without the leave of a judge. A direction of that kind operates only in respect of documents that have been considered by the judge. It is a qualified exercise of the procedural power for a judge to direct a registrar not to accept for filing a document that has been lodged, but which on its face is not a form of document that ought be accepted for filing: as to that power see the decisions of Wheelahan J in Luck v National Duty Registrar of the Federal Court of Australia (Permanent Stay) [2024] FCA 1257 at [36] and Luck v Principal Registrar and Chief Executive Officer of the Federal Court of Australia (Permanent Stay) [2024] FCA 1256 at [33]–[34].

11    For those reasons, the application for leave must be refused. There is simply no existing requirement for leave.

12    In the circumstances, it seems to me that the appropriate course is for the proposed originating application and the proposed statement of claim (which were lodged on 23 February 2026) to be treated as documents in respect of which consideration by the Registry as to whether they should be accepted for filing is still pending. In my view, that consideration has not yet been undertaken because of the error in the communication to Mr Davies as to the need to seek leave. Those documents should be considered in the usual way and Mr Davies informed of the outcome. It seems to me that it is appropriate for a direction to be made under r 1.37 of the Federal Court Rules 2011 (Cth) for such a course to be taken. In addition to the error, there is possible significance of the lodgement date for the purposes of questions of limitation.

13    As to the further consideration of whether the documents should be accepted for filing, I observe that on the face of the originating application and concise statement those documents do not seek to revisit events at the time of the previous proceedings. Rather, they claim that there has been a subsequent breach by Lazer Safe of a patent allegedly held by Mr Davies. On the face of those documents, and based on the submissions advanced by Mr Davies, they do not give rise to the concerns that arose in respect of the documents considered in Davies, in the matter of an application by Davies. Beyond that, the technical nature of the claims made means that any issues that may arise as to whether the proposed proceedings seek to contradict findings previously made are not appropriately addressed as part of a consideration as to whether the documents should be accepted for filing.

14    Mr Davies sought an oral hearing on his application for leave. As has been mentioned, he has provided written submissions. There is no factual issue to be determined. I have explained the nature of the application. The question whether leave should be given turns upon a consideration of the contents of the documents that are sought to be filed and, as I have explained, whether there is indeed a requirement for leave. I am satisfied that s 20A(2) of the Federal Court of Australia Act 1976 (Cth) applies to the application for leave to file documents.

15    Finally, Mr Davies maintains that some of the information contained in the affidavits that he has sworn in support of the leave application is confidential. He seeks an interim order for confidentiality as to that information. In order to protect Mr Davies ability to seek appropriate confidentiality orders should any party seek to inspect the documents, I will make orders to preserve confidentiality to enable such an application to be made if access is sought by a third party to inspect the documents.

Associate:

Dated:    14 April 2026