Bird v Free

In Bird v Free, the applicant, Boffrey Bird, sought to appeal the refusal by the District Registrar to accept his application for leave to appeal against a direction given by Spender J to the District Registrar under O. 46 r. 7A of the Federal Court Rules. The direction was to not accept Bird's application, which sought a writ of prohibition and an injunction against a judge of the Federal Court. The legal issues were whether the Federal Court has jurisdiction to issue a writ of prohibition or injunction against one of its own judges and whether Bird's application was frivolous or vexatious.

The court found that a judge of the Federal Court does not have jurisdiction to issue a writ of prohibition or injunction against another judge of the Court. The court reasoned that the authority vested in the Federal Court by s. 39B of the Judiciary Act 1903 is an authority vested in the Court, i.e., in all the judges who make up the Court. Authority conferred only on the entire group cannot be exercised by one member against another member of that group. The court also found that Bird's application was frivolous or vexatious within the meaning of that term in O. 46 r. 7A because he had no prospects of obtaining leave to appeal Spender J's direction.

The court directed the District Registrar to refuse to accept or issue Bird's application. The court also concluded that the grounds relied upon by Bird to justify the disqualification of Kiefel J were such that no person, acting reasonably, could possibly think that there was any substance in any of them.