AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia

[2024] FCA 1151

FEDERAL COURT OF AUSTRALIA

AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia [2024] FCA 1151

File number:	NSD 1252 of 2024
Judgment of:	NICHOLAS J
Date of judgment:	1 October 2024
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AI
Cases cited:	AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	10
Date of hearing:	1 October 2024
Counsel for the Applicant:	The applicant was self-represented
Counsel for the Respondents:	The respondents filed a submitting notice

ORDERS

NSD 1252 of 2024

BETWEEN:

AZO24

Applicant

AND:

REGISTRAR, REGISTRY OF NEW SOUTH WALES, FEDERAL COURT OF AUSTRALIA

First Respondent

THOMAS STEWART, NATIONAL REGISTRAR, FEDERAL COURT OF AUSTRALIA

Second Respondent

ORDER MADE BY:	NICHOLAS J
DATE OF ORDER:	1 OCTOBER 2024

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application is dismissed.

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

REASONS FOR JUDGMENT

NICHOLAS J:

1. Before the Court is an interlocutory application filed by the applicant seeking the following orders:

   1.An order for a stay of execution of proceedings NSD942/2024 until after the appeal is heard and determined pursuant to r. 36.08(2) and (3) of the Federal Court Rules 2011.

   2.An order to suspend (or stay) the orders made on 28 August 2024 in NSD942/2024 until after the appeal is heard and determined pursuant to r. 36.08(2) and (3) of the Federal Court Rules 2011.

2. The proceeding referred to in the interlocutory application was one in which the applicant sought judicial review of a decision of the Registrar not to accept various documents lodged by the applicant for filing.  The proceeding was heard by a Judge of the Court (Needham J) who on 2 September 2024 made an order dismissing the application.  Her Honour gave detailed written reasons for judgment (AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004). The applicant has filed a notice of appeal from her Honour’s judgment. The interlocutory application before the Court was filed in the appeal proceeding.

3. On 28 August 2024 Needham J made the following order:

   Pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth), until further order:

   a.the identity of the applicant not be published or otherwise disclosed other than to court staff, any legal advisers retained by the applicant, the respondents and their lawyers.

   b.the applicant be referred to by a pseudonym in any public notifications and disclosures of information in relation to the proceeding.

4. The order made by her Honour on 28 August 2024 was an interim order expressly made under s 37AI of the Federal Court of Australia Act 1976 (Cth). That no doubt explains why her Honour made her further orders on 26 September 2024. Those orders were as follows:

   1.The question of whether the order made on 28 August 2024 be vacated or continued be listed for hearing at 2:15pm on 11 October 2024 for no more than 2 hours.

   2.The Applicant to file any evidence and submissions by 4 October 2024.

5. Turning to the applicant’s interlocutory application, the applicant accepts that the second of the orders sought by her is misconceived.  The order of 28 August 2024 was made to protect the identity of the applicant and ensure that, until further order, she is referred to by her pseudonym in any relevant notifications or disclosures.  The applicant no longer seeks a stay of that order. 

6. So far as the first order sought by the applicant is concerned, it would, if made, result in a stay of the proceeding before the primary judge until such time as the applicant’s appeal is heard and determined. Since nothing more remains to be done in the proceeding before Needham J beyond determining whether the interim order should be vacated or extended under s 37AF (i.e., so that it is no longer interim), the interlocutory application seeks, in substance, a stay of her Honour’s orders of 26 September 2024.

7. Because the order made by Neeham J on 28 August 2024 is an interim order made under s 37AI, the Court is required to proceed to hear any application by the applicant for an order under s 37AF. That is what should happen on 11 October 2024. In circumstances where an interim order under s 37AI(1) is made, s 37AI(2) requires that the Court determine the application under s 37AF promptly. In the language of s 34AI(2), the Court must determine such an application “as a matter of urgency”.

8. The applicant has not advanced any arguable basis for making an order staying what remains of the proceeding before the primary judge.  In her submissions the applicant asserted that Needham J was biased against her and that she did not think it appropriate that the question referred to in order 1 of 26 September 2024 be heard by her Honour. However, that assertion was not developed by the applicant.  I have had regard to her notice of appeal which raises in ground 1 an allegation of apprehended bias, but it also does not amount to anything more than a vague and unparticularised assertion.  The interlocutory application should therefore be dismissed. 

9. I should note that in her notice of appeal, the applicant has described herself by the pseudonym used by her in the proceeding before Needham J. The terms of the order made by her Honour on 28 August 2024 arguably extend to public disclosures of the applicant’s identity in the appeal proceeding. The question whether the applicant should continue to be referred to by a pseudonym should her Honour vacate the interim order without making an order under s 37AF is a matter that will need to be revisited by a Judge once Needham J has heard and determined the application under s 37AF.

10. Order accordingly. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.

Associate:

Dated:       1 October 2024