Federal Court of Australia

Rachelle v Victorian Institute of Teaching (Summary Dismissal) [2026] FCA 1038

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    The applicant filed a “Notice of appeal from a Tribunal” on 16 December 2025 by which she purported to appeal a decision of the Administrative Review Tribunal given on 20 June 2025. The respondent seeks summary dismissal of the appeal.

2    An appeal from the Tribunal on a question of law may be brought under s 172 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). An appeal under s 172 is in the original jurisdiction of the Court, is confined to a question of law, and is a form of statutory judicial review: Equality Australia Ltd v Commissioner of Australian Charities and not-for-Profits Commission [2024] FCAFC 115; 305 FCR 189 at [6] (Wheelahan, Hespe and Kennett JJ); Manikantan v Secretary, Department of Employment and Workplace Relations [2024] FCAFC 116 at [39] (Collier, Raper and Shariff JJ). Identifying a question of law as the subject matter of the appeal is therefore important. To this end, r 33.12(2)(b) of the Federal Court Rules 2011 (Cth) requires that the notice of appeal must state “the precise question or questions of law to be raised on the appeal”.

3    An appeal from the Tribunal must be made no later than 28 days after the Tribunal gives the party its statement of reasons for the decision: ART Act s 174(1). If a person applies to refer the decision to the Guidance and Appeals Panel of the Tribunal (see s 123), then for the purpose of counting the 28 days any day in the period between the day the application to refer is made and the day the President refers the decision or refuses the application is not taken into account: s 174(3). The Federal Court may extend the period within which the appeal must be made: s 174(2). The Court does not have jurisdiction to hear an appeal from the Tribunal if it is not made within the period provided for by s 174.

Background

4    The applicant applied to the Tribunal to review a decision of the respondent not to reinstate her teacher registration. The matter had an extensive procedural history which was summarised by the Tribunal in its decision of 20 June 2025: Rachelle and Victorian Institute of Teaching [2025] ARTA 802 (20 June 2025) at [4]. The Tribunal affirmed the decision under review.

5    This proceeding has been case-managed by a Registrar of the Court. Amongst other things –

(a)    in the body of an order made 10 March 2026 the Registrar noted that the applicant had been referred to r 33.12(2) of the Federal Court Rules concerning the required content of a notice of appeal; and

(b)    on 31 March 2026 the Registrar gave the applicant leave to file and serve by 4.00 pm on 21 April 2026 –

(i)    an application for leave to extend the time for filing the Notice of Appeal in accordance with Rule 33.13 of the Federal Court Rules; and

(ii)    an amended notice of appeal that complies with the requirements set out in r 33.12.

6    The applicant did not file an application for an extension of time or file an amended notice of appeal.

The applicant’s notice of appeal

7    The body of the applicant’s notice of appeal is as follows, which I set out verbatim –

Questions of law

1.    Exploitation, under the Privacy Law Act 1988

2.    Employment Relations Act 2000

Findings of fact that the Court is asked to make

1.    Review of mistruths, credible evidence

2.    Unlawful exploitation

Orders sought

1.    Financial Compensation as promised by the (VIT) emailed

2.    Amount being submitted is between $1.2 Million - $2.5 million legally suggested by work safe, Victoria.

Grounds relied on

1.    Unlawful activities (and)

2.    Illegal practises.

8    In addition, the applicant set out the following formulation in a document that was a combination of an affidavit and submission, where I have underlined the text that is additional to the body of the applicant’s notice of appeal –

Questions of law

1.    Exploitation, under the Privacy Law Act 1988

2.    Employment Relations Act 2000

3.    Bribery and Corruption under the Criminal Code Act 1995 and the Corporations Act 2001

Findings of fact that the Court is asked to make

1.    Review of mistruths, credible evidence

2.    Unlawful exploitation

3.    Proof by bribery towards the Applicant’s Sister Julia Rachelle via CD Recording

Orders sought

1.    Financial Compensation as promised by the (VIT) emailed

2.    Amount being submitted is between $1.2 Million - $2.5 million legally suggested by work safe, Victoria.

Grounds relied on

1.    Unlawful activities (and)

2.    Illegal practises.

The interlocutory application

9    The respondent seeks orders that the appeal be dismissed pursuant to section 31A of the Federal Court of Australia Act 1976 (Cth), and r 26.01 and r 33.32 of the of the Federal Court Rules. The respondent read to the Court an affidavit of the respondent’s lawyer dated 5 May 2026. Annexed to that affidavit were the following documents –

(a)    the Tribunal’s decision dated 20 June 2025;

(b)    an email from the Tribunal to the applicant and the respondent’s lawyer dated 19 June 2025 advising that the Tribunal’s decision would be handed down by email on 20 June 2025 “and sent to these email addresses” and also mailed to the applicant’s postal address; and

(c)    an email from the Tribunal to the respondent’s lawyer dated 20 June 2025 attaching a copy of the Tribunal’s decision.

10    The Tribunal’s email dated 20 June 2025, unlike its email dated 19 June 2025, was not addressed to the applicant.

11    In support of the application, the respondent relied on an affidavit of its lawyer dated 5 May 2026 which was read without objection. The applicant relied on two affidavits. The first affidavit was dated 23 March 2026 which annexed a number of documents relating to the subject matter of the applicant’s circumstances. It included various court documents from other proceedings, and a character reference dated 17 December 2024 to the effect that the applicant is a wonderful and committed carer to her mother. The second affidavit was dated 16 July 2026 and was included in a memorandum from the applicant dated 20 July 2026 which itself included the applicant’s written reply submissions and the page containing the revised formulation that I set out at [8] above. Both documents of the applicant were received into evidence without objection.

12    At the hearing of the application the parties made oral submissions to supplement the written submissions that the parties had filed. The respondent advanced three grounds in support of the orders sought.

13    First, the respondent submitted that the appeal was not made within time, and that the applicant had not made any application for an extension of time.

14    Secondly, the respondent submitted that the applicant had no reasonable prospects of prosecuting the proceeding. The first reason was that the applicant had not identified any question of law in her notice of appeal. The second reason was that the appeal was frivolous, vexatious, and otherwise an abuse of process. The foundation for this argument was the relief that the applicant sought in the notice of appeal which was not directed to review of the Tribunal’s decision, but which sought financial compensation, which was not a remedy available in this proceeding.

15    Thirdly, the respondent submitted that the Court should dismiss the proceeding under r 33.32(1)(a) to (d), which provide –

33.32    Application to dismiss appeal

(1)    A respondent to an appeal may apply to the Court for an order that the appeal be dismissed for the failure by the applicant for the appeal to do any of the following:

(a)    comply with a direction of the Court;

(b)    comply with these rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

…

16    The claimed defaults of the applicant relied on by the respondent were the applicant’s failure to –

(a)    file and serve an affidavit of service of the notice of appeal on the Tribunal by 7 April 2026, as required by order 1 of the Registrar made 31 March 2026;

(b)    file and serve an application for leave to extend the time for filing the notice of appeal and supporting affidavit, as required by r 33.13, despite being provided further opportunity to do so by order 5(a) of the orders made 31 March 2026;

(c)    file and serve a notice of appeal that complies with the requirements of r 33.12 of the Rules, despite being provided further opportunity to do so by order 5(b) of the Orders made 31 March 2026; and

(d)    appear at a case management hearing listed before the Registrar at 11.00 am on 24 April 2026, despite having been granted the leave of the Court to appear by video-link.

17    In response, the applicant denied that the notice of appeal was filed out of time. The applicant submitted that the notice of appeal was actually filed two days ahead of time. This submission was also made in writing by the applicant, stating in her reply submissions that she had submitted the notice of appeal “well before 18th July 2025”. These submissions are difficult to reconcile with the fact that the notice of appeal on the court file is dated above the applicant’s signature as 16 December 2025 and is recorded as having been lodged with the Court on 23 December 2025.

18    Otherwise, the applicant made oral submissions to the Court in a spirited manner that showed that she has a number of grievances. The submissions appeared to relate to the underlying circumstances that led to the respondent’s decision not to renew her teacher registration that was ultimately affirmed by the Tribunal on review. To the extent that any of the applicant’s submissions were relevant to the second and third grounds on which the respondent sought summary dismissal, the submissions appeared to confirm that the applicant sought financial compensation, and the applicant made several submissions that referred to claims of bribery.

Consideration

The respondent’s first ground

19    As to the respondent’s first ground, I am not satisfied on the evidence before the Court of the date on which the Tribunal gave the applicant its statement of reasons for its decision. The email correspondence annexed to the respondent’s lawyer’s affidavit does not include any communication of the Tribunal’s statement of reasons to the applicant.

20    On the evidence currently before the Court, I decline to make a finding for summary judgment purposes that the appeal was made outside the time fixed by s 174(1) of the Act. On the evidence in its present state, I am not prepared to infer that the Tribunal gave its statement of reasons to the applicant at the same time as the respondent. That conclusion is only for the purposes of this interlocutory application. Whether the appeal was made within time would remain a live issue if this matter went further.

The respondent’s second ground

21    Although it is the “first duty” of any Court to consider its jurisdiction, that does not preclude the Court in the exercise of its discretion from addressing some other dispositive issue: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [62]; Babet v Electoral Commissioner [2023] FCAFC 164; 300 FCR 81 at [59] to [61]. I will proceed to address the respondent’s other grounds seeking summary dismissal.

22    In exercising the Court’s discretionary powers of summary determination under r 26.01 of the Rules and s 31A of the Federal Court of Australia Act, the provisions must be interpreted and applied, and the powers thereunder exercised or carried out in the way that best promotes the overarching purpose provided for by s 37M of the Act: Ascic v Australian Federal Police [2025] FCA 124 at [27] (Feutrill J). The overarching purpose includes the following objectives –

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner; and

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

23    I accept the respondent’s submission that the applicant has failed to identify any question of law that could be the subject of an appeal under s 172 of the ART Act. Even allowing for the fact that the Court is to look at the substance of the matter and is not confined to the precise articulation of a question of law in a notice of appeal, there is no identification in the material before the Court of any question of law that would be capable of being the subject matter of an appeal under s 172 of the ART Act: cf, Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62], [84] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ) and Luck v Secretary, Department of Human Services [2015] FCAFC 111; 233 FCR 494 at [47] (Collier, Griffiths and Mortimer JJ). I also accept the respondent’s submission that the proceeding is frivolous, vexatious and an abuse of process. The applicant has not identified any intelligible ground of appeal relating to any question of law, and the only relief sought by the applicant is outside the scope of an appeal under s 172 of the ART Act. The oral submissions advanced by the applicant only confirmed the absence of any proper subject-matter of the appeal, and that she was seeking a remedy that was outside the scope of an appeal under s 172 of the ART Act. For these reasons, I am also satisfied for the purposes of s 31A of the Federal Court of Australia that the applicant has no reasonable prospect of successfully prosecuting this proceeding in the way that condition for the exercise of power under s 31A was explained in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 at [17], [25] to [26] (French CJ and Gummow J), and [51] to [53] (Hayne, Crennan, Kiefel and Bell JJ). There is no discretionary reason why the proceeding should not be summarily dismissed: the overarching purpose demands that it be dismissed.

The respondent’s third ground

24    As to the third ground on which the respondent sought dismissal of the appeal, I am satisfied that the applicant has failed to comply with the Rules by failing to file a notice of appeal that complies with the requirements of r 33.12. In particular, the applicant has failed to state, “the precise question or questions of law to be raised on the appeal”. This failure has occurred notwithstanding that the applicant was given an opportunity to remedy the position by leave given to the applicant by the Registrar on 31 March 2026 to file an amended notice of appeal that complied with the requirements set out in r 33.12.

25    One of the purposes of r 33.12 is to facilitate the efficient discharge of the Court’s function in hearing appeals from the Tribunal, and one of the purposes of the power of dismissal under r 33.32, when applied in accordance with the overarching purpose in s 37M of the Act, is to protect the Court’s processes and resources. The overarching purpose demands that the Court exercise its discretionary power under r 33.32 to dismiss the appeal.

26    It is unnecessary to consider the other grounds on which the respondent sought dismissal of the appeal under r 33.32.

Conclusion

27    I will make an interlocutory order that the proceeding be dismissed and order that the applicant pay the respondent’s costs of the proceeding.

Associate:

Dated:    30 July 2026