Federal Court of Australia

Khan v Registrar of the Federal Court of Australia [2026] FCA 1115

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

BUTTON J:

1    The Applicant, Mr Khan, brought this proceeding seeking judicial review of a decision of a Registrar of this Court to refuse to accept for filing an Originating Application for Relief under s 39B of the Judiciary Act 1903 (Cth) (the s 39B OA), and accompanying Statement of Claim (SOC). The Respondent named in the s 39B OA and SOC that Mr Khan sought to file was the State of Victoria.

2    The Registrar was named as the Respondent to this judicial review application, and filed a submitting appearance.

3    The Registrar’s decision was made under r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules). The Registrar gave reasons for his decision to Mr Khan, by letter dated 21 April 2026, as follows (emphasis in original):

Dear Mr Kahn [sic],

Re: Documents presented for filing on 26 February 2026

I refer to the Form 69 Originating Application for relief under section 39B Judiciary Act 1903 and Statement of Claim (together, the Documents) submitted to the Victoria Registry of the Federal Court of Australia.

The Documents have been referred to me, as National Duty Registrar, for review and determination as to whether they should be accepted for filing. I extend my apologies for the delay in the provision of this letter to you.

Rule 2.26 of the Federal Court Rules 2011 (Rules) states that:

A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court, or is frivolous or vexatious:

(a)     on the face of the document; or

(b)     by reference to any documents already filed or submitted for filing with the document.

In Ferdinands v Registrar Cridland [2021] FCA 592 at [30] White J said that “a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful.”

The Documents primarily seek injunctions and other relief against the State of Victoria pursuant to the Planning and Environment Act 1987 (Vic) (PE Act) in relation to land development and approval decisions under that act. It is not entirely clear on the face of the documents as to the specific injunctions and relief sought but it appears to be related to decisions that were undertaken in respect of your residential area. The matter is said to be within the jurisdiction of the Federal Court of Australia by operation of s 39B of the Judiciary Act 1903 (Cth) as it involves an issue as to the interpretation of the Constitution. That constitutional issue is said to arise pursuant to s 118 of the Constitution as to whether ‘Commonwealth recognises the PE Act (and the Enforcement Powers best in within) are still applicable’. This submission is difficult to follow and appears to proceed from a misunderstanding of the meaning of s 118, which relates to the inconsistency of a state laws [sic] with other laws.

Having reviewed them in their entirety, I am not satisfied on the face of the documents that the Documents establish a basis upon which the Federal Court would have jurisdiction to grant the relief sought. Accordingly, in my view they are doomed to fail, and it would be an abuse of court process if the Documents were accepted for filing. I refuse them pursuant to r 2.26 of the Rules.

I recommend you seek independent and professional legal advice on the matters raised in your documents.

4    In his judicial review application, Mr Khan does not cavil with the Registrar’s reasoning insofar as it concerned s 118 of the Constitution, but says that the Registrar erred because he did not take account of the fact that the substantive claim that Mr Khan sought to advance by the s 39B OA and SOC also raised s 2 of the Australia Act 1986 (Cth) (the Australia Act).

5    Mr Khan lodged a written Outline of Submissions dated 15 July 2026. I convened a case management hearing, at which I asked Mr Khan if he wanted to present any material or submissions to the Court, whether in writing or orally, that were not already contained within that Outline of Submissions and the documents filed in the judicial review proceeding. He confirmed he did not want to say or file anything more. I asked him why he had sought to file his s 39B OA and SOC in this Court given the claims were made under Victorian legislation. His answer was that similar claims had been made in the courts of Victoria but had been rejected on their merits.

6    The substance of the SOC is that residents and owners in the residential area where Mr Khan lives are breaking the law by using the development in a way that is not in accordance with the applicable local council Planning Scheme. The particular complaints are that there are no footpaths, the roads are narrower than 5.5 metres wide at some points, and do not comply with some standards set out in a table in the relevant Planning Scheme. There is also a complaint about storm water management not being in accordance with a provision of the Planning Scheme, and there are some issues about compliance with a planning permit’s conditions involving Telstra. The SOC also states that Planning Schemes are issued under the Planning and Environment Act 1987 (Vic) (the PE Act), and that Act sets out objectives to be delivered by Planning Schemes.

7    The substantive relief sought by the s 39B OA is an injunction under s 114 of the PE Act restraining the use of land in contravention of applicable planning controls and an order under s 199 of the PE Act for “full restoration of the subdivision as per planning schemes and permit”. Compensation is also sought for residents.

8    The SOC does not mention the Constitution or the Australia Act. They are, however, mentioned in the s 39B OA. The s 39B OA sought the following orders:

1.    A declaration that pursuant to

a)     Australia Act 1986 (s 2) that The State of Victoria has acted within its constitutional authority by utilizing the legislative powers vested in it — such as the Planning and Environment Act 1987 (Vic) (“the PE Act”), — to enforce relevant planning laws/regulations such as planning schemes and planning permits.

b)     CONSTITUTION ACT s 118 weather [sic] Commonwealth recognises the PE Act (and the Enforcement Powers vested in within) are still applicable.

2.     Pursuant to section 114 of the PE Act, the Applicant seeks an injunction to restrain the use of the land development which is in contravention to the planning controls. the Applicant relies upon the Planning and Environment Act 1987 (Vic) including section 126, which provides that a person who uses or develops land in contravention of a planning scheme, a permit, or an agreement under section 173 commits an offence.

3.     The applicants pursuant to PE Act sec 119 (B) seeks for a full restoration of the subdivision as per planning schemes and permit.

4.     Residents to be compensated with the charges which they have paid for the usage period of the development and decrease in the value of the property.

9    The Applicant’s originating application in the present judicial review proceeding sets out the following grounds of the application:

1.     This appeal is made under the ADMINISTRATIVE DECISIONS (JR) ACT 1977 – SECT 11

2.    The decision of the registrar is the subject matter of this application/appeal pursuant to FEDERAL COURT RULES 2011 – RULE 3.11

3.     The matter relates to the original jurisdiction of the Federal Court of Australia which includes jurisdiction in any matter pursuant to Judiciary Act 1903 (s39B).

(1A)     The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)     in which the Commonwealth is seeking an injunction or a declaration; or

(b)     arising under the Constitution, or involving its interpretation; or

(c)     arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

4.     The matter relates to the two acts

I.    Australia Act 1986 (s2) - weather [sic] the Victorian State has correctly used the legislated powers, as vested in Planning and Environment (PE) Act for enforcement issues (related to the Planning Schemes and Planning Permits), as a good governance of the state.

II.     Constitution Act per sec 118 which states that full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of every State; weather [sic] Commonwealth recognise and gives full faith and credit to the PE Act.

10    The judicial review application must be dismissed for the following reasons.

11    As noted above, the s 39B OA asserts that this Court has jurisdiction only by reference to s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act). To the extent that provision refers to the Constitution, it was dealt with by the Registrar and no complaint is made about how it was dealt with.

12    However, as the s 39B OA and the originating application in the present proceeding both make clear, the Applicant sought to support jurisdiction under s 39B of the Judiciary Act also on the basis that his intended proceeding concerns a “matter … arising under” a law of the Parliament, specifically, s 2 of the Australia Act.

13    The Registrar did not refer to whether the Court would have jurisdiction under s 39B of the Judiciary Act on that basis.

14    Although legal error may be identified due to the Registrar’s failure to consider this Court’s jurisdiction as it may arise in connection with s 2 of the Australia Act, the result would inevitably have been the same even if that legal error had not occurred.

15    There is no controversy concerning the State of Victoria’s use of its legislative power to pass the PE Act. There is no “controversy” and no “matter” arising under s 2 of the Australia Act which could found jurisdiction: see the discussion in Palmer v Ayres (2017) 259 CLR 478; [2017] HCA 5 at [25]ff (Kiefel, Keane, Nettle and Gordon JJ), see also IMF (Australia) Ltd v Sons of Gwalia Ltd (2004) 211 ALR 231; [2004] FCA 1390 at [43] (French J) and Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 (Rana) at [17]–[19] (Allsop CJ, Besanko and White JJ). The subject matter of the controversy does not “owe its existence to Commonwealth legislation”: Rana at [18].

16    Accordingly, there is no realistic possibility that the decision could have been different had the error not occurred; the error is not material: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ).

17    Relief would in any event be refused on the basis that quashing the Registrar’s decision and remitting the matter of the filing of the s 39B OA and SOC to the Registrar for reconsideration would be futile: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [27]–[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). Granting relief would be futile on the same basis as the error is not material.

Associate:

Dated:    11 August 2026