Federal Court of Australia

Mahmoud v Duty Registrar of the Federal Court of Australia [2026] FCA 1381

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 of the orders made by Jackman J on 24 July 2026 in this proceeding be stayed, pending the final determination of the applicant’s application for leave to appeal, that was accepted for filing on 24 August 2026.

2.    The applicant’s interlocutory application that was accepted for filing on 24 August 2026 be otherwise dismissed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

HALLEY J:

A.    Introduction

1    By an interlocutory application dated 18 August 2026 and accepted for filing on 24 July 2026, the applicant, Mr Mahmoud, seeks a stay of orders made by Jackman J on 24 July 2026 refusing an application made by Mr Mahmoud for an extension of time in which to lodge an application for an order for review under s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and providing for a hearing, on the Court’s own initiative of a vexatious proceedings order against Mr Mahmoud pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Jackman J delivered short ex tempore reasons for making these orders: Mahmoud v Duty Registrar of the Federal Court of Australia [2026] FCA 985.

B.    Relevant background

2    The relevant circumstances leading up to today’s application can be briefly summarised.

3     On 27 November 2025, Mr Mahmoud lodged an application, supported by an affidavit, with the Court Registry, in which he named five respondents, namely:

(a)     the Inspector-General in Bankruptcy;

(b)    the Australian Financial Security Authority (AFSA);

(c)    the Official Trustee in Bankruptcy;

(d)    the Official Receiver; and

(e)     the head of the Sydney office of the AFSA.

4    Mr Mahmoud sought a wide range of declaratory relief in the application as to the commission of various crimes, various pecuniary remedies, and other relief, such as removal from office of certain of the respondents.

5    On 3 December 2025, the Duty Registrar rejected the application made by Mr Mahmoud. Mr Mahmoud was advised that:

The duty registrar has decided that the documents ought to be rejected for filing because on their face, they allege criminal offences which the Federal Court does not have jurisdiction to hear and determine (see s 27(2) of the Bankruptcy Act 1966).

6    Mr Mahmoud maintains that although he sought declarations as to the commission of criminal offences, a declaration ultimately is a civil remedy and the criminal allegations he sought to advance were steps toward civil remedies directed at seeking the repayment of money and the removal of certain of the respondents named in the application from office. The application was determined by Jackman J on the basis it was not necessary for his Honour to come to a concluded view as to whether s 27 (2) of the Bankruptcy Act 1966 (Cth) precluded the application because, his Honour concluded he was able to dispose of the matter on discretionary grounds, even assuming (but not accepting) in Mr Mahmoud’s favour that the matter was arguable and arguably within the Court’s jurisdiction.

7    His Honour rejected each of the explanations provided by Mr Mahmoud for the extension of time being made five months late. His Honour concluded that the purported explanations did not justify the delay of about five months in filing the application, or indeed any delay beyond the deadline of 31 December 2025. His Honour also noted there was no evidence to the effect that the applicant was not aware of the 28-day deadline. For present purposes, it is not necessary to explore in greater depth the explanations provided by Mr Mahmoud for the delay. Having concluded that it was appropriate that the application for an extension of time to be refused, his Honour went on to consider whether a vexatious litigant order should be made against the applicant.

8    That issue has led to considerable concern on the part of Mr Mahmoud. His Honour noted in his ex tempore reasons at [9] that a vexatious proceedings order was made against Mr Mahmoud on 24 September 2015 by Rothman J in the Supreme Court of New South Wales (NSWSC) pursuant to s 8 of the Vexatious Proceedings Act 2008 (NSW): Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899. Jackman J noted that an appeal to the Court of Appeal was allowed in part, being that the order was varied to prohibit the applicant from instituting proceedings in New South Wales other than with the leave of an appropriate court, such that the order would not apply to the applicant instituting proceedings in criminal proceedings brought against him as an accused or seeking relief in the nature of a writ of habeas corpus: Mahmoud v Attorney-General of New South Wales [2017] NSWCA 12.

9    His Honour considered that Rothman J’s order raised for consideration whether this Court should make a vexatious proceedings order against Mr Mahmoud pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) on its own initiative. His Honour observed that s 37AO(4) provides that the Court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity to be heard. Accordingly, his Honour ordered Mr Mahmoud to file any affidavits and written submissions regarding whether a vexatious proceedings order should be made against him and fixed a date for the hearing of that question. These matters were addressed in Orders 2 and 3 of Jackman J’s orders made on 24 July 2026.

10    On 20 August 2026, Mr Mahmoud lodged the interlocutory application for filing together with an application for an extension of time and leave to appeal the orders made by Jackman J on 24 July 2026 (leave application). Both the interlocutory application and the leave application were accepted for filing on 24 August 2026.

11    On 27 August 2026, Perram J made an order to the effect that, pending allocation to a docket judge of the interlocutory application, Orders 2 and 3 made by Jackman J on 24 July 2026 were stayed until the end of Wednesday, 23 September 2026. Subsequently on that day, Mr Mahmoud complied with the order to file affidavits and written submissions pursuant to Order 2 made by Jackman J.

12    At the hearing of the interlocutory application today, Mr Mahmoud confirmed that he was pressing for a stay of each of the three orders made by Jackman J on 24 July 2026, pending the final determination of the leave application.

C.    Consideration

C.1.    The orders made by Jackman J

13    Justice Jackman made orders in the following terms on 24 July 2026:

1.    The application for an extension of time dated 27 November 2025 be refused.

2.    The applicant file any affidavits and written submissions on the question whether a vexation proceedings order should be made against him by 27 August 2026.

3.     The matter be listed for hearing on 2 September 2026 at 9.30am on the question whether a vexatious proceedings order should be made.

14    I note, however, the application for an extension of time the subject of Order 1 was in fact dated 27 May 2026, as is readily apparent from the ex tempore reasons of Jackman J at [1].

C.2.    The Stay of Order 1

15    There does not appear to be any merit in the application for a stay of Order 1. The order does not require Mr Mahmoud to take or refrain from taking any steps and it is otherwise the subject of the leave application. I see no reason why there is any prejudice to Mr Mahmoud if a stay of the order is not granted or that there is any utility in staying that order.

C.3.    The Stay of Order 2

16    Conceptually, the stay of Order 2 is misconceived. Order 2 provided for the filing of affidavits and written submissions on the question of whether a vexatious proceedings order should be made against Mr Mahmoud. Mr Mahmoud has now complied with that order. There is no utility in staying an order that has already been complied with.

C.4    The Stay of Order 3

17    The real question for determination is whether there should be a stay of Order 3 fixing a date for the hearing of the vexatious proceedings order.

18    The leave application includes a number of proposed grounds of appeal which are directed at the hearing of the foreshadowed vexatious proceedings order against Mr Mahmoud. They relevantly include proposed grounds of appeal to the following effect:

(a)    proposed ground 1, that the primary judge (Jackman J) erred in disposing of an application for extension of time on purely discretionary grounds, while at the same time invoking s 37AO of the FCA Act on its own motion;

(b)    proposed ground 2, that the primary judge erred by initiating the process pursuant to s 37AO of the FCA Act in the absence of any conduct by Mr Mahmoud in this Court that could objectively be characterised as vexatious;

(c)    proposed ground 3, that the primary judge erred by impermissibly relying upon an historical order made against the applicant in the NSWSC to justify invoking s 37AO of the FCA Act;

(d)    proposed ground 7, that the primary judge acted with undue harshness and committed a substantial miscarriage in the exercise of his discretion by translating an application for an extension of time into a personal inquiry into whether a vexatious proceedings order should be made;

(e)    proposed ground 8, that the primary judge erred by relying on historical and unrelated state jurisdiction proceedings as a proxy or foundation for a potential finding that the applicant’s current and unfiled civil claim was vexatious, where no extreme circumstances or patterns of abuse within the Federal Court Registry had been established; and

(f)    proposed ground 11, that the primary judge committed a gross abuse of process and denied the applicant procedural fairness by using an extension of time hearing to initiate, on his own motion, a vexatious proceedings inquiry under the Federal Court Act, relying erroneously on a spent order of the NSWSC.

19    Given that a not insignificant number of the proposed grounds of appeal are directed at the manner in which the primary judge is said to have invoked an inquiry pursuant to s 37AO of the FCA Act, I have concluded that any hearing of that inquiry should not occur until after the determination of the application for leave to appeal. Since the fate of the leave application may well relevantly inform the determination of the s 37AO inquiry, it is preferable that these challenges should be resolved prior to any determination of the s 37AO inquiry by Jackman J. It follows that Order 3 made by Jackman J on 24 July 2026 should be stayed until after the final determination of the leave application.

d.    Disposition

20    In these circumstances, I have therefore concluded that an order should be made staying Order 3 of the orders made by Jackman J on 24 July 2026 in these proceedings, pending the final determination of the applicant’s leave application. The interlocutory application is otherwise to be dismissed.

Associate:

Dated:    17 September 2026